Recognizing the significant program-integrity advantages that electronic certificates of medical necessity have over paper documents, officials at the Baltimore-based Centers for Medicare and Medicaid Services recently directed the durable medical equipment regional carriers to accept eCMNs and other electronic documents — for the second time.

Despite the fact that CMS issued a similar directive more than one year ago, home medical equipment providers have remained uncertain about whether they actually could use electronic documents “safely.” This most recent directive leaves no room for uncertainty.

Yes, You Can

After the first directive, the DMERCs' varied interpretations of the rules governing the use of eCMNs — interpretations that appeared on the carriers' Web sites, arose during meetings between DMERCs and providers, and made their way into other DMERC communications — cast serious doubt on the notion that suppliers could use eCMNs.

Reacting to these interpretations, CMS Sept. 27 issued another directive, which stated unequivocally that the DMERCs “must accept” electronic, faxed and copied versions of CMNs. This national policy directive should lay the eCMN issue to rest, finally.

Sources of Confusion

Until now, one of the biggest questions surrounding the use of eCMNs was, “What will happen during a post-payment or other audit?” Providers wondered whether the DMERCs could ask for the original signature in these situations — and with good cause. At least one DMERC publicly stated that an “original signature” on a CMN meant a pen-and-ink signature.

Obviously, the requirement for a pen-and-ink signature makes little sense when the provider and the physician are exchanging electronic documents. In these cases, the physician's signature is electronic. Producing a pen-and-ink signature from the original electronic document would be impossible.

CMS' Sept. 27 issuance directly addresses this issue.

“When a DMERC is investigating potentially fraudulent behavior by a supplier, it will be the supplier's responsibility to prove the authenticity/validity of the claim(s) under investigation,” CMS says in its transmittal. “A DMERC may require the supplier to prove the authenticity/validity of the signature on the CMN or order, or any other questionable portion of the claim(s) under investigation.”

This means, regardless of whether a supplier is using an electronic, paper, faxed or copied CMN, the supplier will have the burden of proving that the CMN portion in question is authentic and valid. From an attorney's perspective, an appropriate eCMN can prove the authenticity/validity of a document far more easily than can an old-fashioned paper document.

Gone will be the days when an investigator examined handwriting on a CMN. Electronic CMNs can provide a complete audit trail, documenting who did what, and when, to each portion of the CMN.

Choose Your eCMN System Wisely

CMS has not yet determined the technical specifications for eCMNs, primarily because the federal electronic-signature requirements still are under development.

A few requirements already are clear, however: CMS says that written orders and CMNs may be electronic documents, and that suppliers must maintain the electronic order and/or CMN in his or her records before submitting a claim for payment to Medicare.

Upon a DMERC's request, the supplier must provide that CMN in a format the DMERCs can accept. If the DMERC cannot access the document electronically, DMERC officials can ask the supplier to download and print a hard copy of the electronic order or CMN.

To be prudent, a supplier should use an electronic CMN system that includes all of the program integrity protections that technology has made available. For example, section B of the CMN should only be accessible to the physician and his office staff, not to the supplier. The physician signature section should be accessible only to the physician.

By using electronic CMNs with these protective features, the supplier will find it far easier to “prove the authenticity/validity” of the CMN portion under review.

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.