(Medicare General Information, Eligibility, and Entitlement)

Performing any other special service requested, that the contractor agrees to provide -  actual costs of operating any machinery, plus actual cost of any materials used, plus charges for the time of its employees, at the rates given in paragraph 2b of this section.  Special Forwarding Arrangements -  Actu al cost.  This includes special delivery, airmail, registered mail, etc.   21.2 - Billing of Fees and Charges  (Rev. 1, 09- 11-02)  The contractor is responsible for the billing of costs resulting from providing disclosable information.  To invoice, use Form CMS -633 -  Invoice of Fees for FOIA Services (Exhibit C).  The requester sends payment derived from the release of information to the CMS Division of Accounting.   21.3 - Advance Payment/Requests Fulfilled Without Remittance  (Rev. 1, 09- 11-02)  Where estimat ed costs exceed $250.00, or if the requester has failed to pay previous bills in a timely fashion, collect fees and charges before the requested material is copied and furnished.  Use the Division of Accounting, CMS's FOIA Bad Debtor Listing to determine d elinquency.  Notify the requester of the total estimated charges, using language similar to the following:  The HHS regulations require that a charge be made to recover some of the costs incurred in the disclosure of information.  The total (estimated) bil lable cost for the material you requested is $ ______.  The cost consists of the following charges: (list here breakdown of charges; e.g., "Photocopying: $10; Searching: $450).  Please send a check or money order for the total amount made out to CMS and ma il it to (contractor address).  The material will be mailed to you upon receipt of payment (subject to any adjustment to the estimate).  If we do not hear from you within 30 days, we will assume your request has been withdrawn and no further action will be  taken.  Be sure to point out to the requester that even though the invoice says to mail the check to the CMS Division of Accounting in Baltimore, in this case the check must be mailed to the contractor so that payment can be verified before the material i s mailed.  Subsequent to the contractor's receipt of the advance payment, send both the check and the finance copy of the invoice to the Division of Accounting in Baltimore.  Because some requesters will neither provide advance payment nor notify the contr actor that they no longer desire the requested material, do not send the "Finance" copy of the invoice to Accounting until after the advance payment check is received.  For the same reason, do not begin searching for and photocopying the requested material  until the advance payment is received. If you do not hear from the requester in 30 days, close the request.  30 - Disclosure of Program Materials (Contractors)  (Rev. 1, 09- 11-02)  The Freedom of Information Act deals with the right of the public to inform ation about Government rules and methods of operating.  It requires that every Federal agency make available for inspection and copying:   "522(a)(2) (B) those statements of policy and interpretations which have been adopted by the agency and are not publis hed in the Federal Register; and (C) administrative staff manual and instructions to staff that affect any member of the public, unless such materials are promptly published and copies offered for sale."   Information contained in Medicare program manuals and Program Memoranda can be obtained via the Internet.  Where requests are made to contractors, contractors will photocopy Program Memoranda and individual pages from CMS manuals to respond to minor requests.  When inquirers ask to see Social Security Manuals and letters that are not maintained, the contractor will refer them to the SSO.  If the request is for Medicare related information, the contractor may disclose the following:    Written policy used to evaluate and make payment decisions on claims subjec t to medical review.  (Parameters are not components of medical payment policies and should not be disclosed.)    Fee schedules and profiles of customary and prevailing charges of physicians/suppliers, including backup data, as long as the provider identifiers and the frequencies of procedures per provider have been deleted.    Relative value units and conversion factors used to develop approved charges for procedures done too rarely to compile customary charges.    Lists of contractors, physicians/suppl iers and provider numbers.    Documents listing and/or describing acceptable diagnostic or procedure codes, rate schedules or covered services.   The contractor will not engage in interpretive analysis or discussion of the material when responding to requests .  The contractor will not release information on the parameters and computer edits used to identify claims for medical review.  These are tools for selection of claims for MR and are not determinants of whether a service is payable.   EXAMPLE:   The contrac tor has a screen which identifies for review all claims for CAT Scans of the head in excess of 3 in 30 days.  Written MR policy contains diagnoses and other descriptions of medical conditions that would justify CAT Scans in excess of that amount.  The cont ractor is required to release the policy guidelines but must withhold the "3 in 30 days" parameter used to identify claims for MR.  The contractor must refer requests for information for which denial is recommended, including parameters and computer edits to the RO.  30.1 - Manuals, PMs, and Other CMS Materials (Rev. 1, 09- 11-02)  The contractor should provide a facility for the public to view the program manuals and other information available to the public on the Internet.   It will fulfill requests for printouts resulting in 50, or fewer, pages.   Requests to examine manuals or letters usually arise where a beneficiary calls at an office to discuss his/her claim.  In such situations, the contractor will abstain from engaging in interpretative analysis or discussion of the material.   30.2 - Internal Guidelines  (Rev. 1, 09- 11-02)  All interpretive materials, guidelines, and clarification of policies that relate to payment of Medicare benefits must be released.   Upon request, the contractor will release written guidelines used to evaluate and make payment decisions on claims subject to MR.  Precise information on the screens, parameters and computer edits used to identify claims for MR may be withheld.  EXAMPLE:   A screen identifies for review any SNF claim with more than 30 covered days.  Written MR policy contains the documentation standards and guidelines which assist the reviewer in the decision to pay or deny the claim.  Release of the policy guidelines is required, but the review screen can be withhe ld.  Guidelines may be withheld that use specific criteria and tolerances intended to identify claims that raise a strong possibility of fraud or abuse because of a pattern of payment requests for excessive or duplicate services, or services not rendered.  If disclosure of such guidelines could be judged to adversely affect the program by allowing violators to go undetected, the contractor should refer the request to the RO with its recommendations.  The contractor will acknowledge any requests that should have gone to another contractor and refer them to the appropriate contractor.   40 - Disclosure of Information about Identifiable Beneficiaries (Contractors)  (Rev. 1, 09- 11-02)  Sections 3764 -  3769 set the guidelines for disclosure of information about a named beneficiary, to whom it may be disclosed, and the purposes for which it may be disclosed. In general, no information may be released except to the beneficiary (or the beneficiary's legal guardian) without the beneficiary's (or legal guardian's) explic it written authorization.  In cases requiring the beneficiary's consent, the authorization may be in any form, but it must:  Be signed and dated;   Specify the individual, organizational unit, class of individuals or organizational units to which the informat ion may be disclosed;   Specify the record(s), information, or type(s) of information which may be disclosed; and   Indicate whether the consent is a one- time or on -going release of records.  A contractor will not honor a blanket consent to disclose all benefi ciary records to unspecified individuals or organizational units.  The disclosure of information about beneficiaries is governed by the provisions of  1106 if the Social Security Act as implemented by Regulation No. 1, the Privacy Act, the FOI Act, and the DHHS Public Information Regulation.  40.1 - Prohibition Against Disclosure  (Rev. 1, 09- 11-02)  Section 1106 of the Social Security Act prohibits disclosure of any file, record, report, or other paper, or any information obtained at any time by the Secretary or an officer or employee of DHHS in the course of discharging their duties under the Act, ex cept as prescribed by regulations.  Where manual instructions permit disclosure, assume that related regulations have been published.  The same prohibition applies to information received by any person outside DHHS, from the Secretary, or an officer or emp loyee of DHHS.   The prohibition applies to any agency, organization (e.g., contractors), or institution, or any of its officers or employees, in the fulfillment of a contract or agreement with the Secretary.   A. Disclosure of Provider or Physician Records   The prohibition also relates to any information received from DHHS, a contractor, or any person or entity that furnishes services under arrangements with a provider or accepts an assignment under the program.  However, patient records in the possession of  a provider or physician are not subject to the prohibition against disclosure or to the Departmental rules and regulations concerning confidentiality merely because the patient is entitled to Medicare benefits.  Disclosure of provider or physician records  not in the possession of CMS or a contractor may, however, be subject to applicable State or local laws, or to hospital rules governing disclosure.   B. Authority for Refusal to Disclose Information   Denial of all or portions of requested records can only be made by the CMS Freedom of Information Officer.  Therefore, when a request for information is received, disclosure of which is prohibited under these guidelines, the contractor will follow 10.2  above.   The CMS FOIA Officer has authorized Medicare contractors to issue a denial on his/her behalf in the following situation:  If any officer, employee, agent or subcontractor is served a subpoena or other compulsory process requiring the produc tion of records or information on a beneficiary or individual practitioner that are contained in a Privacy Act System of records and such a request is not accompanied by a valid authorization to release the records signed by the subject of the records, he/ she will decline to produce the records or information.  He/she will base the refusal on 1106 of the Social Security Act and on 5 USC 552a, 5 USC 552, 45 CFR Part 2 and 45 CFR Part 5.  The contractor will notify the RO immediately.   If the contractor di rectly receives such a subpoena, it uses the following language to respond:   Dear Sir or Madam:   This is in response to the subpoena duces tecum, dated ______, initiated by your firm, for certain Medicare records in our possession.  The Department of Healt h and Human Services regulation at 45 CFR Part 2 states, among other things, that the Department will treat subpoenas duces tecum for records in its possession as requests under the Freedom of Information Act (5 U.S.C. 552).  Because the records the subpo ena seeks are in a Privacy Act system of records, the Privacy Act (5 U.S.C. 552a) precludes release of those records except pursuant to a written authorization to release signed by the subject(s) of the records or unless the Freedom of Information Act requires release of the records or a court of competent jurisdiction orders release.  Regarding the latter condition of disclosure, for purposes of the Privacy Act, a court of competent jurisdiction is a Federal court only.  Review of this matter indicates th at your firm has not presented a written authorization to release records signed by the subject(s) of the records.  Moreover, your firm's subpoena is not an order of a court of competent jurisdiction, and 45 CFR Part 2 requires us to treat the subpoena duc es tecum as a Freedom of Information Act request.  Further the Freedom of Information Officer for the Centers for Medicare & Medicaid Services has determined that the requested records are exempt from mandatory disclosure under the Freedom of Information Act by exemption (b)(6) of that Act.  Exemption (b)(6) permits the withholding of information about individuals in personnel and medical files and similar files, when the disclosure of such information would constitute a clearly unwarranted invasion of pers onal privacy.  Based upon the foregoing, we respectfully decline to produce the Medicare records requested by your firm's subpoena duces tecum.   If you have reason to disagree with this decision, you may appeal.  Your appeal should be mailed, within 30 days of the date of this letter, to the Deputy Administrator, Centers for Medicare & Medicaid Services, Room C5- 16-03, 7500 Security Boulevard, Baltimore, MD 21244- 1850.  Please mark your envelope "Freedom of Informa tion Act Appeal," and enclose a copy of this letter.   Sincerely yours,   Signature of Authorized Official   cc: FOI Officer, CMS