Disclosure of Medicare Reports

140.2 - Disclosure of Medicare Reports (Rev. 1, 09-11-02) A. Provider Survey Report and Related Information Information concerning survey reports of providers or facilities, as well as statements of deficiencies based on survey reports are available at the local social security office or the public health assistance office in the area where the facility is located. The following data may be released under this provision. • The official Medicare survey report; • Statement of deficiencies which have been conveyed to the provider following a survey; • Plans of correction, and pertinent comments submitted by the provider relating to Medicare deficiencies cited following a survey. B. Program Validation Review Reports and Other Formal Evaluation (CMS) Upon written request, CMS makes available to the public official reports and other formal evaluations of the performance of providers. After CMS prepares the survey reports and other formal evaluations, it must provide the evaluated provider an opportunity (not to exceed 30 days) to review the report and submit comments on the accuracy of the findings and conclusions. CMS must incorporate the provider's pertinent comments in the report. Generally, the RO serving the area in which the provider is located releases Program validation review reports. It will provide a copy of the report and the provider's comments to the contractors servicing the provider. CMS may also make available to the public, subject to certain possible exemptions, informal reports and other evaluations of the performance of providers prepared by the contractor. The contractor refers requests for these reports to the Medicare regional office with a copy of the information requested. C. Provider Cost Reports (A/B MAC (A) or (HHH)) 1. Requests for Disclosure Requests by the public either to inspect or to obtain a copy of a provider cost report must be in writing and must identify the provider or class of providers and specific cost reports requested. NOTE: Personal salary information cannot be disclosed. 2. Ten Day Notice Requirement A/B MACs (A) or (HHH) must respond in writing within 10 working days after receipt of the written request, advising the requestor of the date the reports will be available. This date should be no earlier than 10 working days from the date of the contractor's response. (For exceptions, see Exceptions To 10-Day Notice Requirement immediately below.) A copy of this response must be sent simultaneously to the provider, thus putting it on notice that its report has been requested and by whom. (For exception, see §140.3 below.) If the request is for a report submitted by a former owner of a participating facility, copies of the contractor's response should go to both the present and former owners. If the request is for a report submitted by a provider no longer participating in the program, a copy of the contractor's response should be sent to the former provider. (For both former owners and former providers the copy of the response should be sent to the last known address of the party.) If we cannot make the information available within a reasonable period of time, our response will include a brief explanation for the delay (e.g., because of the extent of searching, photocopying, or delay in securing reports from records retention centers). In addition to the provider's copy, the contractor sends a copy to the CMS regional office servicing the provider. If a contractor receives a request for information concerning providers that it does not service, it will immediately forward such request to the CMS regional office servicing the provider and will inform the requester of its action. The regional office forwards the request to the servicing contractor. 3. Exceptions to 10 Day Notice Requirement No 10-day delay in furnishing cost reports is necessary in the case of requests from: • Federal or State agencies that need cost report information to carry out requirements of the Social Security Act (e.g., a State health planning agency under title XI (§1122), or a Medicaid State agency under title XIX). The Congress - Requests from Congress are limited to those from the Congress as an official body (e.g., the Speaker of the House or the President of the Senate, or from the chairman of a committee or subcommittee of the House or Senate with jurisdiction related to the information requested). Requests from individual members of the House or Senate are considered requests from the public. 4. Information That Can Be Disclosed CMS's rules limit disclosure to cost report documents that providers are required by regulations and instructions to submit. In the case of a settled cost report, this includes the contractor's notice of program reimbursement. Cost report documents include the statistical page, the settlement pages, trial balance of expenses, cost finding schedules, balance sheet, statement of income and expenses, and other schedules or documents required as part of the regular cost report process. (Where a provider, after first obtaining program approval, submits equivalent documents in lieu of official program documents, such documents are subject to the same disclosure rules as apply to official forms.) Information That May Not Be Disclosed If a provider chooses to submit with its cost report additional information not specifically required by regulations or instructions, the contractor should not disclose such information unless it is contained within an official document or the equivalent thereof. For example, some providers may submit supplementary analyses of certain expenses, details of the professional component adjustment, financial statements (other than the statement of income and expenses and the balance sheet as required in accordance with cost reporting instructions), or income tax returns that are not required by the program. These would not be disclosable by the contractor. Except where a provider has not submitted an acceptable cost report and supplements are required to complete the report, any additional documents or schedules that the contractor requires the provider to submit in support of its cost representations are also not to be disclosed. In addition, do not disclose audits, schedules, letters, notes, and comments; comments on results of desk reviews (including copies of the actual desk review documents); contractor notes and comments (including transmittal letters); audit adjustment summaries that contractors and auditors are required to prepare; and information pertaining to an individual patient. Contractors acknowledge such requests and refer them to the regional office. NOTE: Cost report information that the contractor may not disclose may, nevertheless, be disclosed under the Freedom of Information Act by the CMS regional office, central office or, upon appeal of a denial, by the Administrator, CMS. Upon judicial review, a U. S. District Court may order Disclosure. When an A/B MAC (A) or (HHH) discloses a settled report, it may disclose schedules applicable to the settlement that have been reworked. The general rule is that if the contractor has reworked any of the schedules that the provider is required to submit with its original submission, these schedules become an integral part of the report for disclosure purposes. However, the A/B MAC (A) or (HHH) may not disclose any details containing contractor or auditor comments concerning the settlement, details of specific adjustments, or supporting schedules applicable to the settlement of the provider's operation. Prior to the release of cost report information to the requestor, the A/B MAC (A) or (HHH) servicing the provider must screen each cost report and remove non-disclosable documents and information. If the A/B MAC (A) or (HHH) is uncertain whether a particular document must be disclosed it should consult the regional office in the region in which the provider is located. Further, if the A/B MAC (A) or (HHH) discovers as a result of review that the cost report reflects information that might result in adverse program publicity, it alerts the RO immediately. However, it does not delay disclosure. The above instructions do not negate in any manner the requirement that the A/B MAC (A) or (HHH) submit cost reports to CMS that contain full and complete information, including the details of all contractor and auditor adjustments, comments, and any supporting schedules that may be needed to verify the settlement. 5. Responding to Requests for Inspection of Cost Reports The A/B MAC (A) or (HHH) will make cost reports available for inspection by the requestor at the A/B MAC (A) or (HHH)'s office during regular business hours. In addition, arrangements will be made to make copies available upon specific request at any RO, or at central office. The A/B MAC (A) or (HHH) must provide appropriate space for such inspections. It must establish procedures to ensure that all reports inspected are properly accounted for. Under no circumstances should it permit any requester to remove cost reports from the place of inspection. If the requester has questions with respect to the interpretation or analysis of cost report information, the A/B MAC (A) or (HHH) will advise the requester to submit such requests for more than routine explanations in writing to the regional office. 6. Disclosure of Cost Reports If a request is received to inspect or to obtain a copy of a report that has not been settled; i.e., the final settlement notice of program reimbursement has not been sent, the A/B MAC (A) or (HHH) will disclose a copy of the report as submitted by the provider. If settlement has been made, it will disclose the settled report. If a requester specifically asks for both the settled and unsettled cost reports of a provider, the A/B MAC (A) or (HHH) will comply. When a report is made available for inspection or copying, it should be clearly marked with one of the following captions, as applicable. Cost report as submitted: • Settlement subject to audit; and • Audited settlement. Requests for reproduction of all or part of a provider's cost report may be subject to photocopy fees. If it is determined that a fee must be charged, the A/B MAC (A) or (HHH) prepares the written response to the requester in accordance with §20 and §20.4 of this chapter. 7. Responding to Requests for Information A requester may desire only selected cost report information of a provider or several providers. However, the DHHS Freedom of Information Regulation specifies that agencies are not required to create a record by compiling selected items from the files; such requests will be met by furnishing copies of specific documents which contain the information requested. In addition, when the contractor receives a request that requires selecting documents from various cost reports, the request should be honored. It will follow the written response procedure above even though the entire report is not being disclosed. It will advise the requester that a searching fee will be charged and give an approximate date when the documents will be ready. D. Medicare Payment and Cost Data The A/B MAC (A) or (HHH) may release Medicare payment or Medicare cost data concerning a named provider without giving the provider the ten-day notice required in §10.2 or 30 above. However, it does not give the requester enough information to calculate provider non-Medicare data as well. For example, A/B MACs (A) or (HHH) do not tell a requester that Medicare payments to the provider represent 30 percent of its total revenues. The Medicare payment or Medicare cost data may be extracted from such documents as cost reports or Form CMS-3286, Monthly Actuarial Sample of Hospital Reimbursement. Any extraction of data is subject to the instructions above concerning creation of records. E. Waiver of Liability Status The waiver of liability status of a particular provider and the statistics used to determine that status may be disclosed.