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“Ghost” guidance must be identified – even on government sites.

Using the Internet is often a risky business. Phishing attacks or hacking may immediately come to mind, but there are other perils associated with being online. One often overlooked peril is outdated information. 

Internet research, while certainly a blessing, can also be a curse. The Internet makes it much easier to find and research laws. It also makes it much easier to find free advice. But sometimes, the adage “you get what you pay for” rings true. Most people know that there is inaccurate information available on the web.  But when it comes to performing your own Internet research, it is easier to miss the fact that outdated information routinely remains available on the web, even on official government websites, including that of the Centers for Medicare & Medicaid Services (CMS). Smart researchers can reach the wrong conclusion when they rely on a “ghost” document. 

Here is a real-world example:

Say you want to determine a physician’s need to certify hospital admissions. Someone conducting research on the Internet might find a Sept. 5, 2013 memo from CMS titled “Hospital Inpatient Admission Order and Certification.”

One could read that and assume he or she found the answer to a question. However, it will be far from obvious that there’s another memo dated Jan. 30, 2014 with the same title, and text that varies from that September memo. The January memo isn’t redlined and it does not make any reference to the September memo.

This is merely one example.  There are others. 

I’ve also encountered this problem when trying to conduct research about the 96-hour rule. This rule, which is actually a statute, is found in two different provisions. One is a condition of participation indicating that on average, a critical access hospital (CAHs) may not have patient stays lasting more than 96 hours. Second, there’s a provision that requires physicians to certify that they expect a patient to be discharged within 96 hours. Under the rule, that certification may be made no later than one day before the date on which the claim is submitted. Over the years, CMS interpretation of the provisions has changed and it is possible to find various documents with different approaches.

Finally, as I was preparing for a speech about gainsharing/co-management and how it is much easier to enter into legal gainsharing arrangements than many think, I went to the Social Security Administration’s website to copy and paste key statutory language. The relevant law, 42 USC section 1320a-7a(b)(1), imposes a penalty upon any hospital that makes payments to a physician if the payment is an inducement to reduce or limit “medically necessary” services. 

Browsing the official Social Security Administration website, I found that the words “medically necessary” (which were added in 2015 as part of the CHIP reauthorization act of 2015, public law 114-10) were omitted from the law. (It appears that since then, the error has been corrected at that site, but not at several other sites that provide free access to federal laws.) 

The bottom line is that when rules and polices change, the Internet will not always clearly indicate that a document you are reviewing is obsolete. 

To be clear, I am not suggesting that CMS should remove its old memos from its website. I am glad they keep the full history of advice readily available. Removing them would be misleading, and would make it difficult to accurately reconstruct the history of CMS guidance during litigation. But it would be helpful if web pages included some reference to newer guidance so you have a warning that the document you are reading is no longer valid.  

If you find a document on the Internet that appears to answer a question you have, don’t assume that the document represents the most recent guidance on the issue. Finally, remember that if what you found is a memo from CMS or a contractor, you can’t assume that that guidance is binding, even though it is issued by an “official” source, because there is still a possibility that the guidance is not consistent with the law. That is a topic for another article. 

The bottom line is that while it’s certainly worthwhile to engage in Internet research, you need to make sure your results are truly valid. It is often worth running your conclusion by legal counsel. On the Internet, nothing ever truly disappears.  


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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