(Medicare General Information, Eligibility, and Entitlement)

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   Process the State or local court subpoena duces tecum that seeks other kinds of CMS records in accord with 10.2 above.   C. Pena lty for Failure to Comply With the Rules Relating to Disclosure of Information Obtained in the Administration of the Act   Section 1106(a) of the Act provides that any person who violates the disclosure provisions shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not exceeding $1,000, by imprisonment not exceeding 1 year, or both.  40.2 - The Authority for Disclosure  (Rev. 1, 09- 11-02)  Regulation No. 1 of the Act defines the basic authorization for disclosure of information obtained in the administration of the program.  The general rule is that information about an individual obtained in the administration of the program may not be disclosed without the authorization of that individual.  Medical information re lating to an individual will generally be disclosed under more restrictive conditions than other information and, where permitted, usually may be furnished only upon the written authorization of the individual.  Specific exceptions to this rule are detaile d in the following sections.  As far as program operations are concerned, information about an individual may be disclosed without the individual's authorization when the disclosure is necessary in connection with any claim, or other proceeding, under the Social Security Act.   Information will be disclosed for other than program purposes only if the disclosure is authorized by Regulation No. 1 and is consistent with the proper and efficient administration of the program.   50 - Disclosure Necessary for Prope r Administration of the Health Insurance Program  (Rev. 1, 09- 11-02)  A. Information About an Individual   Disclosure of any record, report, or information about an individual may be made without the individual's authorization if it is in connection with any  claim, or other proceeding, under the Act when it is necessary for the proper performance of duties of:    Any officer or employee of the Department; or    Any officer or employee of a State agency, contractor, provider of services, or other agency or organi zation participating in the administration of the program by contract or agreement in carrying out such contract or agreement.   The SSOs have a responsibility for public information activities.  In its development of a human interest story concerning healt h insurance, an SSO may, on occasion, request the contractor to provide claims reimbursement information about a specific beneficiary.  The contractor will honor such a request when it comes from an SSO employee having authority for liaison with the contra ctor.  Depending upon the agreements made with the parallel SSO, the employee authorized may be the manager, assistant manager, staff assistant, and/or HI coordinator.  The contractor will not honor requests by other employees for beneficiary claims inform ation.  B. Disclosure to Third Parties   In the administration of the program, the contractor may want to avail itself of the services of third parties such as auditors, court reporters, public stenographers, microfilm processors, or companies developing equipment for use in the program.  The arrangement between the contractor and such third parties, even where it is of short duration, is in the nature of an agreement supplementing its contract with the Secretary. Under such an arrangement, disclosure to the se parties of necessary information that relates to, and is used in, the administration of title XVIII of the Social Security Act is permitted as provided by 1106 of the Social Security Act and Regulation No. 1.  However, when the contractor enters into a n agreement with these parties, it will inform them that 401.1 of Regulation No. 1 precludes the disclosure of any information on identifiable individuals.  It will call their attention to the penalty clause of 1106(a).  It will call attention to these p rovisions by letter (see below), and obtain a written agreement to comply with the disclosure provisions before releasing any information.  Sample Letter to Third Party   Dear   We are prepared to make available to your organization certain social security records so that (state reason).   However, before making these records available, we must point out that by law, all information derived on identifiable individuals in the administration of the Social Security Act is confidential and may be disclosed to othe rs only under very restrictive circumstances.  Regulation No. 1 of the Social Security Administration which governs disclosure of official records and information precludes you from disclosing any information on identifiable individuals.  You should also note that 1106(a) of the Social Security Act imposes criminal penalties for unauthorized disclosure.   Any social security records which do not identify or make identifiable any individuals are not subject to these restrictions, but may be restricted under  the provisions of the Freedom of Information Act.   In order to comply with the requirements of the Social Security Act and Freedom of Information Act you must agree to the following conditions before we can make any social security records available to yo u:  Any information which is turned over to you will be used only for the specific purpose intended.  All employees having access to this material will be instructed as to its confidential nature.   An official of your company will assume the responsibility  for ensuring that the information is not revealed to another.   The material must be returned to us as soon as you have finished the job.   We must have a letter from a responsible official in your office agreeing to these conditions and assuming responsibi lity for carrying them out.   Upon receipt of such letter, the social security records will be made available to you.  Sincerely yours,   60 - Disclosure of Information  (Rev. 123, Issued: 05- 10-19, Effective: 06- 11-19, Implementation: 06- 11-19)  For more information related to disclosure of PII and PHI, please refer to Pub. 100- 9, Medicare Contractor Beneficiary and Provider Communications Manual, Chapter 6, section 80.  70 - Disclosure of Information after the Death of a Beneficiary (Contractors)  (Rev. 1, 09- 11-02)  The contractor may disclose information concerning the fact, date, or circumstances of death when efficient administration permits.  The request must be in writing and must state why the information is sought.  Additional information may be dis closed to a surviving relative or an authorized representative of that relative, the legal representative of the estate, or to a probate court for the purpose of appointing a legal representative of the decedent's estate.  The contractor must exercise care, however, to see that it discloses no information which would appear to be detrimental to the individual or the individual's estate, i.e., unusual place or manner of death or information which could create a liability to the individual's estate.   The cont ractor may disclose medical information, in form and detail consistent with proper and efficient administration of the program, when such disclosure is reasonably necessary for a title XVIII purpose. (See 50  of this chapter for further information concerning the disclosure of non- medical and medical information when necessary for a program purpose.)   The contractor may disclose medical information obtained in the administration of title XVIII to a surviving relative or legal representative of the estate of the individual or to others for other than a title XVIII purpose, when such information is necessary for a determination as to what supplementary benefits or services such deceased individual  was eligible to receive under a private or public hospital or medical insurance program which is consistent with the purposes and objectives of title XVIII.  The contractor may disclose such information only if the individual has consented to such disclos ure or a surviving relative or the legal representative of the estate consents.  (See 80.1  "Release of Title XVIII Claims Information for Complementary Insurance Purposes" in this chapter.)   80 - Disclosure to Third Parties for Other than Program Purposes (Contractors)  (Rev. 1, 09- 11-02)  A. Non -medical Information   Non-medical information about an individual may be disclosed for other than a program purpose, to persons or organizations desi gnated by the individual, if the individual authorizes disclosure, and if disclosure is consistent with the proper and efficient administration of the Act.   B. Disclosure of Medical Information to a Physician, Institution, or Other Supplier of Services   The contractor may disclose medical information to a supplier of medical services solely for the purpose of the beneficiary's care or treatment.  Such supplier will be informed that the information is being furnished in connection with the treatment of the b eneficiary and that its use should be restricted to that purpose.   C. Disclosure to the Source of Medical Evidence   Occasionally in the course of reviewing medical evidence submitted to substantiate a claim, contractor medical personnel may discover a medi cal condition of which the source of the information is unaware.  (For purposes of this section, the "source" of the information is the part submitting the evidence.) In cases where a serious or potentially serious condition is found, the contractor may wi sh to inform the source of the information.  If the source of the information indicates that the beneficiary is not institutionalized and the identity of the beneficiary's current physician is not known, the source should recommend that the beneficiary con sult a physician or institution of the beneficiary's choice for further treatment.  D. Disclosure to a Source of Medical Services other Than the Source of the Information   Medical information may also be disclosed, upon request, to the beneficiary's physic ian or to a medial institution at which the beneficiary is or was a patient when such physician or institution is not the source of the information.  However, consent for the release must be obtained from the beneficiary.   80.1 - Release for Title XVIII Claims Information for Complementary Insurance Purposes (Contractors)  (Rev. 1, 09- 11-02)  The contractor may not release or use information obtained in the administration of the Medicare program for non -program activities.  Howev er, when the beneficiary has given written authorization the contractor is permitted to release certain information to its complementary insurance program under specific conditions in its capacity as insurance writer or administrator, or to other insurers for complementary health benefits purposes.  Under no circumstances may the contractor use the knowledge of an individual's entitlement or benefit utilization information for purposes of dropping an individual from a group health insurance plan.  A. Inform ation That May be Released   Subject to necessary authorizations, copies, extracts, or summaries of only the following records may be released:    Provider billing forms (e.g., Form CMS -1450);   Explanation of benefits for Part B Provider Services, or denial le tters; and   Information on date of entitlement to Part A, or date of enrollment under Part B, or the date Part B coverage began.   Requests for other information desired for complementary insurance purposes should be referred to the RO.   B. Form of Authoriz ation   The contractor must make certain that information is not released without the required authorization.  This authorization may be either indicated on the billing and admission form or on a dated statement from the beneficiary.  Where the authorizatio n is on a dated statement it must:   Authorize release of information about his/her title XVIII Medicare claim;  Designate to whom the release is authorized;   Show that the release authorized is for complementary insurance purposes (this may be implied by the  designation in the second bullet above);   Indicate whether the authorization is for a one -time or ongoing release of data (i.e., for the duration of the claims and appeals process, but not to exceed 2 years); and   Bear the signature of the beneficiary, the  beneficiary's legal guardian, or the beneficiary's authorized representative.   Where the bill contains a beneficiary signature or indicates that the beneficiary's signature authorizing release of information is contained in the provider's records, the bil l must contain the name of the complementary insurer unless a dated statement as outlined above is already on file.   Where the contractor has a dated statement on file, information may not be released for individual claims when the beneficiary indicated that they do not want disclosure on that claim.  This may be indicated on certain claims forms by the beneficiary checking an appropriate block, or by attaching a separate statement.