Something Out of Nothing – electronic certificates of medical necessity – Brief Article
Cara C. Bachenheimer
Byline: CARA C. BACHENHEIMER, ESQ.
There has been much confusion and consternation regarding electronic certificates of medical necessity. It is clear that e-CMNs provide the home medical equipment system – suppliers, physicians and the four durable medical equipment regional carriers – with cost savings by reducing paperwork and improving program integrity.
However, although the Centers for Medicare and Medicaid Services required the DMERCs in September 2001 to accept e-CMNs, CMS failed to provide additional guidance. Specifically, CMS has not yet directed the DMERCs to allow suppliers to use e-CMNs, or to allow physicians to use electronic signatures on CMNs.
Last year, CMS added new language to the Medicare Program Integrity Manual advising the DMERCs to accept, whenever possible, a copied, faxed or electronic CMN. “DMERCs need not make any standard system changes to electronically accept e-CMNs, as CMS views e-CMNs as a transaction between the physician and suppliers,” the agency said. “The DMERC may request [that the supplier] download and print a hard copy of an electronic order or CMN if the DMERC can not access it electronically.”
While this instruction allowed the e-CMN process to be completely electronic, it left the window open for the DMERCs to request a hard copy of the CMN from providers.
Following CMS’ guidance, the DMERCs in December 2001 issued instructions to providers for implementing the above changes. “The DMERCs will accept orders and CMNs that have been faxed or transmitted electronically between a physician and the supplier,” the DMERCs said. “[Previously], suppliers were required to be able to provide to the DMERC on request a hard copy of the order or CMN with the physician’s original signature and a handwritten signature date entered by the physician. Except for not requiring a document with the original signature and date, a fax or electronic order or CMN must meet all the requirements.”
The new policy continued, “Electronic orders and CMNs must have an electronic physician signature and a date that is entered by the physician … . The supplier is required to provide on request a legible copy of the document [he or she] received from the physician.”
But the Region B DMERC qualified these provisions even further in its “June 2002 Supplier Bulletin,” issuing a policy change regarding the acceptability of faxed, electronic or photocopied documents. “Effective for dates of service on or after August 15, 2002,” Region B said, “suppliers must provide a hard copy of the order and the CMN with the original signature and date written by the treating physician, if [such a hard copy] is requested by the DMERC. Although faxed, electronic, or photocopied documents usually are acceptable for claim submission, appeals, and medical review, the DMERC has the authority to request the document with the original signature and date in individual cases – for example, in a fraud audit in which there is a question as to whether a CMN that is being reviewed has been falsified.”
Unfortunately, this bulletin did not explain the DMERC’s definition of “original signature and date,” as the phrase applies to e-CMNs.
For purposes of e-CMNs, an original signature should be, by definition, an electronic signature. If a DMERC suspects fraud in relation to the physician’s signature, the supplier should be responsible for demonstrating that the physician’s electronic signature was appropriately executed according to industry standards. In other words, the supplier should be obligated to prove the authenticity of the physician’s electronic signature and the security of the e-CMN process by answering the following questions:
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Are there controls in the supplier’s e-CMN process that limit the supplier’s ability to access Section B of the e-CMN?
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Are there controls in place that prevent anyone other than the ordering physician from electronically signing the e-CMN?
CMS should direct the DMERC to allow the supplier, at the time of the fraud audit, to obtain the physician’s confirmation that the physician’s original electronic signature was executed appropriately.
For program integrity purposes, electronic documentation is far more secure than paper documentation. For example, investigators can detect electronic-document tampering much more easily than they can detect paper-document tampering. Consequently, if the government would clarify the appropriate criteria for e-CMN use, government investigators could improve their ability to detect improperly completed e-CMNs.
Instead, CMS has authorized e-CMN use, but has allowed the DMERCs to request a paper document with a physical physician signature when an e-CMN is used. Thus, the DMERCs actually could increase documentation requirements.
Until the Department of Health and Human Services issues electronic signature standards, CMS must direct the DMERCs to accept electronic signatures that meet industry standards.
As Billy Tauzin, chairman of the U.S. House Committee on Energy and Commerce, made clear in a July 2001 letter to HHS Secretary Tommy Thompson, reducing paperwork is CMS’ goal, and e-CMNs can help the agency reach that goal. Echoing Tauzin’s sentiments, the Practicing Physician Advisory Committee also said the e-CMN issue is a priority among efforts to reduce unnecessary paperwork requirements for physicians. However, only the full use of e-CMNs – including the DMERCs’ acceptance of valid electronic signatures – will allow all parties to reduce paperwork burdens.
A specialist in health care legislation, regulations and government relations, Cara C. Bachenheimer is an attorney with the law firm of Epstein, Becker & Green in Washington. Bachenheimer previously worked at the American Association for Homecare and the Health Industry Distributors Association. You can reach her by phone at 202/861-1825 or e-mail at cbachenheimer@ebglaw.com.
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