UPDATE: Telemarketing by Durable Medical Equipment Suppliers is Still Prohibited

Generally, Durable Medical Equipment (“DME”) suppliers are statutorily prohibited from telemarketing Medicare beneficiaries regarding furnishing a covered item. There are three exceptions to this rule: (a) the beneficiary has given written consent to be contacted by the supplier; (b) the contact is regarding a covered item that the supplier has previously furnished to the beneficiary; and (c) the supplier has furnished covered items to the beneficiary in the last 15 months.

Because the OIG received information regarding DME suppliers hiring third parties for telemarketing purposes, it released a Special Fraud Alert to reemphasize a March 2003 alert on a similar issue. The OIG clearly states that “[s]uppliers cannot do indirectly that which they are prohibited from doing directly.” The DME supplier is responsible for what third parties do on its behalf, and must also ensure that those third parties are not engaging in prohibited solicitation on its behalf.

“If a claim for payment is submitted for items or services generated by a prohibited solicitation, both the DME supplier and the telemarketer are potentially liable for criminal, civil, and administrative penalties for causing the filing of a false claim, as well as criminal and civil penalties for using interstate telephone calls in furtherance of schemes to defraud.”

For more information, please contact Adrienne Dresevic, Esq. or Carey F. Kalmowitz, Esq. at (248) 996-8510.