One reason that healthcare lawyers don’t worry about unemployment is that very simple questions often have complicated answers. One such question is this: “Must a physician or non-physician practitioner (NPP) sign this chart?” The answer depends on a number of factors, including where the service is performed and what payer is involved. In addition, the consequence of a missing signature may be very small, or very significant. This is a great illustration of the many layers of oversight that apply in healthcare.
For Medicare, the regulatory requirement to sign a chart is found in the Medicare conditions of participation for certain types of providers, including hospitals and ambulatory surgical centers. Any organization potentially can be decertified from the Medicare program if its charts are not properly signed. Such a draconian result may be unlikely, but for a hospital, a series of unsigned charts carries potential for other significant consequences as well.
By contrast, there is no statute or regulation that requires a physician or NPP to sign a Medicare note written in the office setting. Conditions of participation do not apply to freestanding clinics (though they do apply to hospital-based clinics); therefore, in such a setting, there is no requirement to sign. Please note, however, that this does not mean there is no such requirement in the clinic for a physician/NPP to sign a chart. And in some parts of the country, state law may require a professional to sign a chart regardless. The Medicaid program also requires signatures in some states. Likewise, private insurers may have a contractual requirement (either applied directly or through a manual that is contractually imposed) that a chart be signed. In short, the fact that Medicare does not require a physician/NPP in a freestanding clinic to sign a chart does not mean that there is no obligation to sign any chart in such a setting.
Because there is such a widespread belief that failure to sign a Medicare chart permits Medicare to recoup payment (and requires the clinic or hospital to refund any payments received), I want to finish this article by offering some legal analysis.
In 1995, when the physician evaluation and management guidelines first were promulgated, the Centers for Medicare & Medicaid Services (CMS, then known as the Health Care Financing Administration, or HCFA) and the American Medical Association (AMA) issued a joint question-and-answer sheet that included the following exchange:
“11. Is the physician’s signature required on each page of the documentation?
No. The guidelines only state that the identity of the observer be legibly recorded.”
This document makes it clear that, at least in 1995, physician signatures were not required for medical record documentation.
There is more recent guidance available, however. If you have been “fortunate” enough to receive a CERT request from CMS, you may have noticed the following instruction with regard to authentication of the note:
“Request a signature log or an attestation of medical record entries if the medical record documentation is not signed or if the signature(s) are not clearly legible. In order to be considered valid for Medicare medical review purposes, an attestation statement must be signed and dated by the author of the medical record entry and must contain sufficient information to identify the beneficiary.”
If a signature was a precondition for payment of all Medicare claims, CMS’s instruction on this CERT request would indicate that the lack of a signature required denial.
The Program Integrity Manual, CMS Pub 100-08 §126.96.36.199, Signature Requirements, forms the basis for the CERT guidance:
“If the signature is missing from an order, MACs (Medicare Administrative Contractors) and CERT shall disregard the order during the review of the claim (e.g., the reviewer will proceed as if the order was not received).
If the signature is missing from any other medical documentation (other than an order), MACs and CERT shall accept a signature attestation from the author of the medical record entry.”
This provision indicates that failure to sign some orders may be problematic, but an unsigned chart may be authenticated. The bottom line is that, when a signature is missing from a chart, it is permissible for a professional to authenticate the chart at the time Medicare requests the chart for review (it should go without saying that any additions to a medical record always should be dated accurately.)
This legal analysis is backed by common sense. It is extremely difficult for me to understand any argument that a physician signature adds meaningful information to a chart. After all, authenticity is not verified by a signature, specifically an electronic signature. In addition, there is not a requirement that a physician personally compile the documentation; the physician can dictate information to an assistant.
The final question is whether charts that are subject to the conditions of participation should be analyzed differently. CMS explicitly advises Medicare contractors that a violation of the conditions of participation does not create an overpayment. The Program Integrity Manual, §3.1 – Introduction states that “if during a review it is determined that a provider does not comply with conditions of participation, do not deny payment solely for this reason. Refer to the applicable state survey agency.” In short, the manual makes it clear that violations of conditions of participation do not constitute program overpayments. This position has been adopted by most of the courts that have reviewed this issue. As result, even when a chart is not signed by a physician working for a provider subject to the conditions of participation, no refund is required.
Despite this, I still recommend that medical professionals sign their charts. I have seen a number of instances in which MACs have denied claims simply because a chart was unsigned. Rather than paying counsel to hash out the legal arguments in these cases, it would be preferable simply to sign. However, I believe that when you find an unsigned Medicare chart, you still may bill and receive payment for the encounter.
About the Author
David Glaser is a shareholder in Fredrikson & Byron's Health Law Group and helped establish its Health Care Fraud & Compliance Group. David helps healthcare 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.
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