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Worried doctor sitting on floor

CMS inserted regulatory language in 42 C.F.R. § 410.20(e) indicating that they loosened the signature requirement. 

Sometimes, the desire to save money by skipping legal review is penny-smart, but pound-foolish. I was talking with a client in the desert southwest about a problem recently when I mentioned something about how people often mistakenly believe that signatures are required at times when they are not. The client noted that my remark was timely, because they were just about to refund money for services by two professionals who had not signed their charts. 

In one case, the professional had left the practice, and in another, the professional had died. The organization wasn’t planning to check in with legal counsel, because it seemed unnecessarily expensive, and they assumed a refund was required. But when I mentioned it, we had a short conversation. It was fortuitous. While it is true that our conversation will cost them a couple of hundred dollars, it was well worth it; they avoided thousands of dollars in refunds. If spending 200 bucks saves you thousands even 10 percent of the time, the expense is well worth it. So, why did I tell them a refund wasn’t necessary?

Let me begin my analysis by saying that since nearly every Recovery Audit Contractor (RAC), Medicare Administrative Contractor (MAC), and Unified Program Integrity Contractor (UPIC) assumes there is a signature requirement, and fighting with them about it is a pain, I strongly recommend having all charts signed. This is the quintessential situation where it is easier to accede than fight. But that said, it’s the rare situation where I would decline to bill or refund because of a missing signature. 

As part of the fee schedule a few years ago, the Centers for Medicare & Medicaid Services (CMS) inserted regulatory language in 42 C.F.R. § 410.20(e) indicating that they loosened the signature requirement. Unfortunately, I believe they were wrong, because prior to that provision, there was almost no signature requirement in the conditions of payment. I should clarify that the conditions of participation for hospitals, Ambulatory Surgical Centers (ASCs), and the like often require that charts be signed.

But while a missing signature may get one of those providers cited by Medicare, it doesn’t require the physician or supplier to refund the money. So, let’s examine the new provision. It says:

“Medical record documentation. The physician may review and verify (sign/date), rather than re-document, notes in a patient’s medical record made by physicians; residents; nurses; medical, physician assistant and advance practice registered nurse students; or other members of the medical team including, as applicable, notes documenting the physician’s presence and participation in the services.”

That indicates that a professional can adopt another professional’s note by cosigning it. The new rule does allow someone to argue that physicians are supposed to sign documentation recorded by other professionals, though I do want to emphasize that the provision says that a physician “may review and verify,” rather than “must review and verify.” But whether or not that rule requires a physician to sign documentation by others, it is most certainly not an explicit signature requirement for a physician’s own note. It only applies in a situation in which the physician is verifying someone else’s documentation. Here, the professional recorded their own documentation. The notion that a signature is required to verify a note seems quite silly to me, and is certainly not required by any regulatory provision. 

I want to cover a related topic. On Friday, Linda, a Monitor Mondays listener from Texas, emailed me to report that her MAC, WPS GHA, recently said on a conference call that it would “never” be appropriate for someone to document on behalf of a physician. Now, I wasn’t on the call, so I am trusting that Linda is accurately reporting this conversation, but I have to say that my own experience suggests that her report is accurate. I hope not, because that would be so blatantly wrong. I have already read you 410.20(e), which explicitly permits physicians to adopt another professional’s documentation. Linda astutely quoted that back to the MAC. But even without that, are they familiar with transcriptionists? Others have been documenting in medical records for decades. There is nothing that says only a physician can document in a medical record, and such a requirement would be inane.

So, thanks to Linda for challenging the MAC, and for taking the time to share this with me, and you. And a plea to CMS: in  the last week I have done two stories about government contractors blatantly misapplying the law.

I hope that CMS will step in and take corrective action. It isn’t fair to hold the healthcare industry to a higher standard than it holds its contractors. But right now, that is what is occurring. 

Returning to my opening point, when you plan to refund, checking with a creative healthcare lawyer is money well spent. You don’t need to refund when a professional has failed to sign their own note.

Programming Note: Listen to David Glaser’s “Risky Business” report every Monday on Monitor Mondays, 10 Eastern. 


David M. Glaser, Esq.

David M. Glaser is a shareholder in Fredrikson & Byron's Health Law Group. David assists clinics, hospitals, and other health care entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David's goal is to explain the government's enforcement position, and to analyze whether this position is supported by the law or represents government overreaching. David is a member of the RACmonitor editorial board and is a popular guest on Monitor Mondays.

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