CMS Pub. 100-01, ch. 6, § 140.2

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.