Provider Types Affected
Physicians, suppliers, and providers who bill Medicare and who face penalties as a result of such billings

Provider Action Needed
Impact to You

Providers and suppliers may not be subject to a penalty if the basis for the penalty that would have otherwise been applicable was that the provider acted in accordance with erroneous guidance from the Medicare program.

What You Need to Know
Medicare can grant a waiver of a penalty when ALL of the following conditions are present:

• The guidance was erroneous.
• The guidance was issued by the Secretary of the Department of Health and Human Services or was issued by a Medicare contractor (carrier, fiscal intermediary, durable medical equipment regional carrier (DMERC) or regional home health intermediary (RHHI)) acting within the scope of the contractor’s Medicare contract authority.
• The guidance was in writing.
• The guidance related to the furnishing of an item or service or to the submission of a claim for benefits for furnishing such item or service with respect to the provider or supplier submitting such claim.
• The guidance was issued timely.
• The provider or supplier accurately and fully presented the circumstances relating to such items, services, and claim to the Medicare contactor or to the Centers for Medicare & Medicaid Services (CMS), and did so in writing.
• The provider or supplier followed the guidance provided by the Medicare contractor (or by CMS).

What You Need to Do
Review CR3898 if you feel you are being subjected to a penalty for acting in accordance with erroneous guidance from the Medicare program.

Background
Section 903 (c) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, referred to as MMA, establishes a basis for waiving penalties and interest charges levied on providers and suppliers who incurred such penalties and/or interest as a result of following Medicare guidance, which turned out to be erroneous. CR 3898 details the conditions under which a provider or supplier may seek a waiver of a penalty due to such erroneous guidance. CR3898 does not address the waiver of interest charges.

Additional Information
Full details of the process for seeking and obtaining a waiver can be found in Chapter 33 (Miscellaneous Hold Harmless Provisions), Section 10 (Erroneous Program Guidance: Basis to Waive Penalty) of the Medicare Claims Processing Manual. That material is attached to CR3898, which can be found by going to: http://www.cms.hhs.gov/Transmittals/ on the CMS Web site. From that Web site, look for CR3898 in the CR NUM column on the right, and click on the file for that CR.

For additional information relating to this issue, please refer to your local carrier or intermediary at their toll-free number, which may be found at http://www.cms.hhs.gov/MedlearnProducts/downloads/CallCenterTollNumDirectory.pdf on the CMS Web site.

Disclaimer
This article was prepared as a service to the public and is not intended to grant rights or impose obligations. This article may contain references or links to statutes, regulations, or other policy materials. The information provided is only intended to be a general summary. It is not intended to take the place of either the written law or regulations. We encourage readers to review the specific statutes, regulations and other interpretive materials for a full and accurate statement of their contents.

For more information, visit the Medlearn Matters Web page at: http://www.cms.hhs.gov/MedlearnMattersArticles/.

Pub. 100-4, Transmittal# 739, CR# 3898
Medlearn Matters Number: MM 3898
Related CR Release Date: November 1, 2005
Effective Date: July 24, 2003
Implementation Date: January 19, 2006

Posted:11/15/2005

CPT codes, descriptions, and other data only are copyright 2005 American Medical Association (or such other date of publication of CPT). All Rights Reserved. Applicable FARS/DFARS Apply.