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Home Health & Hospice Week

Fraud & Abuse:

WAKE-UP CALL COMES FOR TELEMARKETERS

Published on Thu Mar 06, 2003

Disturbing people during dinner could be the least risky problem in telemarketing to home medical equipment beneficiaries.

You could be courting disaster if you let your employees or a third-party contractor telephone beneficiaries outside of the scenarios in which Medicare allows such calls. You could find yourself facing False Claims Act charges, the HHS Office of Inspector General warns suppliers in a Special Fraud Alert issued March 3.

The watchdog agency warns in its first Special Fraud Alert since early 2000 that suppliers can't skirt a ban on making unsolicited telephone sales calls to Medicare beneficiaries by hiring independent marketing firms.

Suppliers should heed the OIG's warning, says attorney Carolyn McElroy with Mintz Levin Cohn Ferris Glovsky and Popeo in Washington. Even though suppliers know telemarketing is a no-no except under very special circumstances, the OIG still found an increase in improper telephone calls. Part of the problem is that third-party marketers tell HME companies, "you can't telemarket because you're a provider, but we're not a provider so we can telemarket," McElroy explains.

But it makes no difference, according to McElroy. Whether you telemarket on your own behalf or hire someone else to do it for you, your liability is the same. Or as the OIG puts it, "Suppliers cannot do indirectly that which they are prohibited from doing directly."

There are only three circumstances where phone solicitations are OK:

  • The beneficiary has given the supplier written permission to make contact by telephone.

  • The phone contact involves a covered item the supplier already has provided to the bene.

  • The supplier has furnished at least one covered item to the beneficiary during the preceding 15 months.

    Telephone calls made outside of those three safe harbors could face criminal, civil and administrative penalties, including exclusion from federal health care programs, the OIG points out. And if you have a third-party company marketing on your behalf, it's your responsibility to make sure the outside company isn't steering out of the safety zones.

    But if you're calling the wrong people or authorizing the wrong calls, you could have much bigger problems than the OIG, says McElroy.

    For one thing, the Federal Trade Commission recently revised its Telemarketing Sales Rule to give consumers more choice about whether they receive telemarketing calls. The FTC is establishing a national "do not call" list. It soon will be illegal for most telemarketers to call anyone on that list. The FTC is still awaiting congressional funding for the move, after which it will go forward.

    Also, every state has different laws on telemarketing. You don't have to worry about just your own state's requirements, but also those of any state in which a person to whom you make calls resides, McElroy points out.

    Finally, there are huge privacy issues with letting a third party market to patients, and you must make sure any company you provide patient information to complies with the Health Insurance Portability and Accountability Act.

     

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