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Get Ready For Wheelchair Advertising Restrictions

Published on Thu Jan 06, 2005

Surprise site visits, revised CMN needed too, new report says.

The Government Accountability Office has weighed in on who is to blame for Medicare power wheelchair fraud, and surprisingly the finger isn't pointed at suppliers. But the industry still must fight an uphill battle to reclaim its good name.
 
The December GAO report pinpoints problems at the Centers for Medicare & Medicaid Services and its contractors that led to the rampant abuse of power wheelchair billing. Most notably, CMS turned a blind eye to its own payment data that showed irregularities with power wheelchair billing long before it became a staggering problem.
 
"Over a 6-year period beginning in 1997, CMS's contractors repeatedly communicated with CMS about escalating spending for power wheelchairs ... but CMS did not lead a coordinated effort to address the underlying problems," the GAO criticizes.
 
The GAO even notes that wheelchair suppliers themselves went to the authorities with their fraud and abuse concerns, only to be dismissed.
 
"Suppliers told us that they, other suppliers, and beneficiaries reported their suspicions to the Palmetto [GBA] fraud unit, the Medicare fraud hotline, the Federal Bureau of Investigation, and the [HHS Office of Inspector General]," the GAO says in the report (GAO-05-43).
 
The report also notes legitimate reasons for wheelchair spending to increase. "A number of factors other than improper payments may have contributed to [increased wheelchair spending], including increased demand due to technological improvements or a growing number of beneficiaries who may meet the Medicare coverage criteria," the watchdog agency says.
 
The GAO's comments add up to a positive report for wheelchair suppliers, says Erik Sokol with the Power Mobility Coalition.
 
The GAO was more sympathetic to the industry than were previous reports from CMS and the OIG, adds Seth Johnson with Exeter, PA-based Pride Mobility Products Corp.
 
To identify and prevent improper payments for durable medical equipment, the GAO recommends that CMS:

 

  • Spot and address trends. CMS should "develop a process to focus on trends in Medicare spending and disproportionate or suspicious Medicare payments; develop strategies to address the trends that may indicate possible improper payments for DME; and take timely action, when warranted," the GAO recommends.

     

  • Revise the CMN. To adjudicate claims properly, DME regional carriers must have a wheelchair certificate of medical necessity "that incorporates key elements of power wheelchair coverage criteria," the GAO says.
     
    CMS already has been hard at work on that project, with the revised wheelchair CMN expected shortly and new coverage criteria in the midst of a National Coverage Determination process (see Eli's HCW, Vol. XIII, No. 45, p. 355).

     

  • Tighten up marketing rules. The GAO wants CMS to strengthen supplier standards, and especially target wheelchair marketing. CMS should prohibit "certain misleading or abusive marketing practices," the report recommends.
     
    The GAO is especially critical of advertising that says chairs are free, offers to routinely waive beneficiary copayments and door-to-door solicitations for the items.
     
    "The existing supplier standards prohibit suppliers from violating the federal anti-kickback statute," which includes offering wheelchairs free and waiving copays, notes attorney John Wester with Sidley Austin Brown & Wood in Washington, DC. "But an express standard focused on advertising copayment waivers would be easier for the government to interpret and enforce," Wester adds.
     
    A prohibition on suppliers advertising any DME, including wheelchairs, as free is likely, Wester predicts. But "given constitutional considerations, any such restriction would need to be narrowly tailored," he says.
     
    The industry wants clear guidance on marketing practices, and for CMS to enforce any rules equally, Sokol says. Suppliers also want to have input into the restrictions CMS settles upon, he adds.
     
    To make door-to-door solicitations off limits, as telephone solicitations currently are, a new law may be required, CMS notes in its response to the report.

     

  • Conduct surprise site visits. CMS has already hopped on this issue, instructing the National Supplier Clearinghouse to start conducting out-of-cycle site visits in summer of 2003. Of 600 surprise visits the NSC has made so far, it has found 306 suppliers out of compliance with supplier standards, CMS says in its report comments.
     
    The GAO's recommendations "touch on things the industry has been calling for for quite some time," Johnson tells Eli. 
     
    Editor's Note: The GAO report is at     www.gao.gov/new.items/d0543.pdf.

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