Sign ON the Dotted Line

     In a proposed rule published by CMS in July, Medicare has set forth possible changes for patient signature-gathering requirements in emergent situations. Currently, patient signatures, or the signature of one of five other authorized persons if the patient cannot sign, must be obtained for all services for which a claim will be submitted to Medicare. The other five possible signers are legal guardians; a relative who receives Social Security or other benefits on the patient's behalf; a relative or other person that arranges healthcare for the patient; a representative of another healthcare entity that did not furnish care in the ambulance transport, but that has furnished other care to the patient; or, a representative of a provider or nonparticipating hospital. CMS has heard concerns from ambulance suppliers and providers regarding the ability to get patient signatures in emergent situations where patients may be incapable of signing due to their medical condition. In emergent situations, it is also unlikely that any of the other five people will be available to sign for the patient at the time of service.

     CMS understands the concerns of ambulance providers and suppliers in emergent situations and has outlined another option. According to the proposed rule, if a beneficiary is physically or mentally incapable of signing, and the other five individuals are unavailable or unwilling to sign for the patient at the time of transport, the ambulance service may file a Medicare claim if they maintain in their files for at least four years documentation that includes: 1) a statement signed at the time of transport by the ambulance crew saying the beneficiary was physically or mentally unable to sign for him/herself and none of the other five individuals were available or willing to sign; 2) the date and time the patient was transported, and the name and location of the facility he/she was transported to; and 3) a signed statement from a representative of the receiving facility at the time of admission that shows the patient's name, time and date of arrival.

     I personally do not see why a change is necessary, since the current rule seems to allow for a provider to sign in the event that the four alternates are not available. However, in EMS, where rules and regulations are often surrounded by gray areas instead of having clear answers, it is preferable to have a definite solution that is specific to the ambulance industry.

     Also, the proposed rule is not far from what many ambulance services already do in emergent situations. Some crews simply write "patient unable to sign" ("PUTS") on the signature line for a patient who is mentally or physically incapacitated. While this is not sufficient today, if the final rule is published as currently written, a statement conforming to the new rule can be added to the trip report for the crew to sign when appropriate. The rest of the required information should already be gathered on your trip report and kept for more than four years. Therefore, the new rule will not be a burden, and will ensure that there is no question about the validity of the Medicare claim for transport.

     This rule is expressly for emergent ambulance service. Non-emergent transports will still require signatures from the patient or one of the five alternative signers.

     Also, the requirement for patient signatures in this rule has nothing to do with HIPAA. The HIPAA patient signature should remain separate from any other signature blocks and simply acknowledge that the patient has been given notice of your privacy policy and his privacy rights. There is an emergency exception to the HIPAA signature requirement in place already; however, it operates differently. HIPAA generally requires a patient signature prior to the service being rendered, but, in emergent situations, the signature can be gathered (or an attempt made to gather it) after the service has been performed.

     The proposed rule can be viewed at CMS's website at www.cms.hhs.gov.

     This article is not intended to be legal advice.

G. Christopher Kelly is an attorney practicing in Atlanta, GA. Chris focuses on federal laws and regulations as they relate to the healthcare industry and specifically to the ambulance industry. He also lectures and advises ambulance company clients across the U.S. Contact him at chris@emscltd.com.

Chris Kelly is a featured speaker at EMS EXPO, October 11-13, in Orlando, FL. For more information, visit www.emsexpo2007.com.