CMS Change Request 8219 Permits Use of Rubber Stamp Signature if the Provider Is Physically Disabled

On May 17, 2013, the Centers for Medicare and Medicaid Services (“CMS”) published Change Request 8219 (Transmittal 465) (“CR 8219”) announcing new guidance on the use of rubber stamp signatures. For medical review purposes, Medicare requires providers to authenticate services provided or ordered with a handwritten or electronic signature. Currently, CMS does not accept rubber stamp signatures as a method for authenticating provider orders and services, and failure to provide the appropriate authentication can be a basis for payment denial. There are three exceptions to the signature requirements. With CR 8219, CMS will be adding a fourth exception. Effective June 18, 2013, physically disabled providers will be permitted to affix a rubber stamp signature to a medical record entry if the disabled provider can provide proof to CMS of the provider’s inability to sign his or her signature due to the disability. This rubber stamp signature will certify that the author has reviewed the document.

The new guidance/claim review contractor technical direction subject of CR 8219 is consistent with the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in programs run or funded by federal agencies. It is a very limited exception to the general prohibition on use of signature stamps. CR 8219 also provides clarification and review of the Medicare signature requirements that, in the past, have caused confusion insofar as the various fiscal intermediaries did not consistently enforce the “no rubber stamp signature” rule.

CR 8219 revises Section 3.3.2.4 of the Medicare Program Integrity Manual (“MPIM”), (Pub. 100-08). Other than the addition of the new exception, Section 3.3.2.4 of the MPIM is unchanged. In excerpting and publishing Section 3.3.2.4 as part of CR 8219, CMS provides an opportunity for providers to review the current, somewhat serpentine signature requirements. CR 8219 can be found here.

The Four Exceptions to the Signature Requirements

Generally, for medical review purposes, Medicare requires all services provided/ordered to be authenticated by the author. The permitted methods of authentication are a handwritten signature or an electronic signature. There are four exceptions:

1. Facsimiles of original written or electronic signatures are acceptable for the certification of terminal illness for hospice.
2. Some orders, for example orders for some clinical diagnostic tests, do not need to be signed. However, if these orders are not signed, there must be medical record documentation clearly indicating the physician’s intent that the test be performed. This documentation must be authenticated by the prescribing physician via a handwritten or electronic signature.
3. Other regulations and CMS instructions regarding conditions of payment related to signatures take precedence. If a regulation, National or Local Coverage Determination (“NCD” or “LCD,” respectively) or CMS manuals are silent on whether a signature must be legible or present and the signature is illegible or missing, an audit contractor reviewing a medical record is instructed to follow the signature guidelines, excerpted from the MPIM immediately below, to determine the identity and professional credentials of the signator. For example, in cases where a signature is illegible or missing, the submission of a “signature log” or “attestation statement” may cure the signature noncompliance. If the relevant regulation, NCD, LCD and CMS manuals have specific signature requirements, those signature requirements trump other guidance.

CMS Signature Guidelines

(Excerpted from Section 3.3.2.4 of the MPIM, Pub. 100-08.)

4. Beginning June 18, 2013, rubber stamp signatures may be used by a physically disabled author who is unable to sign his/her signature due to a physical disability. Proof of the disability must be provided to CMS, although CMS does not comment in the change request what sorts of proof would be acceptable.

Electronic Signatures

Providers using electronic health records need systems and software products that are protected against modification. Further, providers must “apply adequate administrative procedures that correspond to recognized standards and laws.”¹ With e-prescribing, providers can transmit prescription-related information to dispensers or pharmacy benefit managers via electronic media without writing or faxing prescriptions.

Practical Takeaways

CR 8219 provides for the addition of one new exception permitting the use of a rubber stamp signature only when the provider is physically disabled and cannot sign his/her name. There are no other changes to the long-standing signature requirements. Republication of Section 3.3.2.4 of the MPIM in CR 8219 reiterates the general prohibition on rubber stamps – a matter unclear and a source of some confusion a few years ago. While the hospital conditions of participation do not expressly prohibit the use of rubber stamp signatures, Medicare can deny payment or recoup an overpayment if a rubber stamp signature is discovered on audit. In a world with shrinking governmental health care program reimbursement, it is essential that hospitals capture and keep every legitimately earned payment possible.

Finally, the new exception has broader implications for hospitals and other health care employers under the Americans with Disabilities Act (“ADA”). Since, in just one week, CMS will permit physically “disabled” authors to authenticate medical record entries with an inexpensive signature stamp, employers will certainly want to keep the signature stamp option in mind as a potential accommodation under the ADA for an author with an impairment who is unable to authenticate services provided or ordered with a handwritten or electronic signature. While, as a practical matter, hospitals and other health care providers will almost certainly have to adopt electronic health record technology (providing e-signature capability) in order to avoid future market basket update or Medicare payment reductions, the new signature stamp exception provides important protection for “disabled” health care professionals and identifies a possible accommodation for employers to consider as part of the good faith interactive process under the ADA.

If you have any questions or would like additional information on the signature requirements, please contact Adele Merenstein at 317-752-4427 or amerenst@hallrender.com or your regular Hall Render attorney. For additional information on the labor and employment aspects of this topic, please contact Dana E. Stutzman at 317-977-1425 or dstutzman@hallrender.com.