The Case of the Missing Signature

It’s important to remember that Medicare manuals are not binding, and they can’t “require” anything, including signatures.

A few weeks ago, I wrote an article on Medicare signature requirements. I am lucky enough to have really smart clients, and a new client sent me two documents of which I was completely unaware. So first, thanks Lori! While neither of these documents change my analysis, they are worth discussing, because there are a number of important lessons to learn.

The first lesson is that the regulatory framework is constantly changing. Never assume you know all of the rules, even if you carefully study them all the time. New things are constantly appearing.

The first document has actually been around for almost a year; it’s a Medicare Learning Network (MLN) post, 905364, which came out in March 2021. That document contains the following gem of a paragraph: 

“Medicare Signature Requirements. 

Documentation must meet Medicare’s signature requirements. Medicare claims reviewers look for signed and dated medical documentation meeting Medicare signature requirements. If entries aren’t signed and dated, they may deny the associated claims.” 

Talk about a circular paragraph. The signature requirements are that you have to follow the signature requirements? One can’t dispute that, but it’s the sort of argument you might get from a 4-year-old. What ARE the requirements? The document does not say. The MLN post does include a variety of arbitrarily made-up declarations, like “you can’t add late signatures to orders or medical records (beyond the short delay that happens during the transcription process).” That’s just factually untrue. One can sign a document “late.” If their point is that they won’t accept one, that’s fine, but they better have some authority to which to point. Is there some regulation that says signatures must be signed within X hours? I think not.

The end of this basically authority-less document cites two resources, Medicare Program Integrity Manual Chapter 3, Section, and another MLN matters article. The Program Integrity Manual (PIM) is the second new document Lori called to my attention. It was implemented in November 2021. That Manual section says that “for medical review purposes, Medicare requires that services provided/ordered/certified be authenticated by the persons responsible for the care of the beneficiary, in accordance with Medicare’s policies.”    

That may sound like a signature requirement, but it is really important to remember that Medicare manuals are not binding, and they can’t “require” anything. A manual must be based on something in a statute or regulation, and there is not a statute or regulation I know of requiring the signature as a condition of payment. Let me emphasize that even this off-the-wall Manual provision indicates that when the contractor finds that a signature is deficient, they are supposed to contact the organization and give them 20 days to submit an attestation. 

To sum up, I was not aware of that MLM or the new language added in November, but neither an MLN nor manual language can change legal analysis. It merely offers insight into what the government thinks. And in this case, the government thinks that if a medical record is unsigned, they can ask for an attestation. 

The citationless MLN and its attempt to justify baseless claims that there is a signature requirement in Medicare causes me to hum “games people play, you take it, or you leave it. Things that they say are not right. If I’m telling you the truth right now, do you believe it? Games people play in the middle of the night.” Or, in this case, in the middle of a MLN article.

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

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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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