LegalEase: Compliance: Don’t call, unless you can confirm
By Elizabeth E. Hogue, Esq.
Burtonsville, MD
Home health agencies frequently encounter a variety of issues for which there does not appear to be any clear regulatory direction. That means providers are tempted to pick up the telephone and call representatives of the Centers for Medicare & Medicaid Services (CMS) and other regulatory organizations to obtain clarification.
Staff may fear if they do not get clarification, they could be in violation of applicable regulatory requirements that some regulators may characterize as fraudulent or abusive. But staff must exercise extreme caution when they raise issues and receive answers that are inconsistent with information they previously received. Some managers have, for example, written their question on a piece of paper. Then they telephone CMS or other regulators and read the question to a member of the staff.
They wait for 30 minutes or so and then call CMS or the same regulator again. They repeat the question they initially asked word-for-word to another staff member and get a completely different and inconsistent response.
Relevant court decisions make it clear that providers cannot rely on information they verbally receive from regulators and/or representatives of CMS unless they confirm the information in writing. The best advice for providers, therefore, seems to be: Don’t call; don’t ask unless you are prepared to confirm information you receive in writing. Furthermore, providers should recognize it is their responsibility to confirm information in writing. Staff should not ask regulators to reduce their verbal communications to writing.
Specifically, staff should parrot back to regulators what they were told verbally. Managers should be very careful not to put words in the mouths of regulators or modify what they were told in any way, even though the answer they received is not the one they hoped or expected to receive.
It is, however, wise to conclude confirmation letters with the following language: “If we have misunderstood our conversation in any way, please notify us immediately in writing. If we do not hear from you in writing, we will rely on the above information.” Regulators should certainly correct any misstatements in writing.
Confirmation letters should be faxed. It is not necessary to send them by certified or registered mail. In fact, use of certified or registered mail may slow down the process of confirming information at a time when clarity is crucial.
Providers may, however, wish to send a copy of the letter through the regular mail in addition to faxing it. Proof of mailing may be obtained at any U.S. Post Office in the form of a certificate of mailing that costs approximately 60 cents per item. Delivery confirmation also is available for a modest fee.
Remember, when you have itchy fingers to pick up the telephone and seek clarification, make sure your fingers are itchy enough to follow up with a letter. Otherwise, your efforts have been wasted.
[A complete list of Elizabeth Hogue’s publications is available by contacting Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Phone: (301) 421-0143. Fax (301) 421-1699. E-mail: [email protected].]
Home health agencies frequently encounter issues for which there does not appear to be any clear regulatory direction and are tempted to call the Centers for Medicare & Medicaid Services and other regulatory organizations for clarification. But staff must exercise extreme caution when they raise issues and receive answers that are inconsistent with information they previously received.
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