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Providers should keep in mind that such policies aren’t binding – but can offer valuable direction.
Imagine your Medicare Administrative Contractor (MAC) had a policy detailing their coverage of records documented by a scribe.
Say that policy had been revoked. You have located a policy by another MAC, CGS. Would it be appropriate to rely on that policy, even though you are not located within CGS’s jurisdiction? Can you treat a policy from another MAC the same as you would one from yours?
These are the good questions a listener by the name of Shannon recently asked me, to which I would say “no, you shouldn’t rely on the CGS policy,” and “yes, you should give it the same weight as you give a policy from your MAC.”
That may seem contradictory, but the truth is that you should give the policy from another MAC jurisdiction exactly the same weight that you give to a policy from your own MAC: not much. Over the last few weeks, we have discussed the enforceability of MAC policies. Because they are neither statutes nor regulations, a MAC policy isn’t binding. It can, however, offer some insight into how a MAC might handle your charts in an audit.
But MACs are not the only entity that may audit you. In fact, they probably are not even the entity most likely to audit you. Your audit might be done by a Recovery Audit Contractor (RAC), Zone Program Integrity Contractor (ZPIC), Unified Program Integrity Contractor (UPIC), or any of the other alphabet soup ingredients of government contractors.
That reviewer may choose to apply the contractor policy, but they may also choose to disregard it. More importantly, when you are sitting before an administrative law judge (ALJ), 42 C.F.R. § 405.1062(a) makes it clear that the MAC policy is not binding on an ALJ. The bottom line is that the policy from your contractor is basically the same as one from another. It is a data point as you attempt to understand how the reviewers may see an issue, but it does not have the force or effect of a regulation or statute.
This CGS policy on scribes is a good example of why you should not give undue weight to a contractor policy. The policy cites The Joint Commission as support for the policy. Joint Commission policy is utterly irrelevant for most physician practices and even many hospitals. The policy also includes this gem: “it is inappropriate for the scribe to see the patient separately from the physician and make entries in the record unless the employee is licensed, certified NPP billing Medicare for services under the NPP name and number.”
That simple declarative sentence sounds authoritative. But think about it for a moment. Can a patient record information about his or her history in the record? If I complete an online form about my history of present illness (HPI), can that serve as medical record documentation? Of course. But I’m not licensed or certified, nor do I have a Medicare billing number.
This policy, like many MAC policies, includes a purported “requirement” that is wholly made up, unsupported by any statute or regulation, and it doesn’t withstand even a modicum of scrutiny with common sense. It also incorporates provisions from a credentialing body that has no authority over the substantial portion of the healthcare marketplace.
In closing, there is a risk that the MAC or other contractor will apply the policy. And at the first level of appeal, you may not prevail. But when you reach an ALJ, the regulation gives the ALJ the authority to disregard the policy. The odds are good that the LCD will be discounted if it is not supported by higher authority.