CMS Pub. 100-04, ch. 33, § 10.2.2.1

If a Medicare contractor issued the guidance, then the contractor must have been acting

within the scope of the contractor’s Medicare contract authority.

A Medicare contractor as defined in §10.2.2 shall be presumed to be acting within the

scope of its Medicare contract authority (but only for the purpose of implementing this

Section) if the guidance:

i) was issued by the contractor in the form of a general communication (e.g., a

formally published contractor bulletin, a statement on the contractor’s Web site,

etc.) or in the form of a communication directed to the particular provider or

supplier that seeks to invoke the penalty waiver (or to such provider or supplier’s

billing agent, attorney, or other agent of such provider or supplier);

ii) addresses a matter that appears to be within the scope of Medicare fee-for-service (e.g., a provider or supplier may not presume that a communication

pertaining to the Medicare Advantage Program or to the Medicare Part D drug

benefit would also apply to the traditional Medicare fee-for-service program

unless there is an express statement to such effect; similarly, a communication

that addresses a contractor’s private-side health insurance business should not be

relied upon for Medicare purposes); and

iii) addresses a matter that appears to be within the scope of responsibility for the

type of Medicare contractor that issued the guidance (e.g., home health agencies

enrolled in Medicare, which submit claims to a designated A/B MAC (HHH),

may not presume that a DME MAC may instruct such agencies in matters related

to claim submission (without some further explanation regarding the DME

MAC’s atypical involvement in home health agency billing matters).

However, if the provider or supplier knew or should have known of any fact that would

have caused a reasonable provider or supplier to doubt whether the contractor may have

been acting outside the scope of its Medicare contract authority, then the provider or

supplier may not rely on the foregoing presumption but, rather, must enquire of the

issuing Medicare contractor whether the contractor is authorized to issue the particular

guidance. Reconfirmation by the Medicare contractor that it possesses such authority

shall be sufficient to satisfy this condition.

See §10.2.8 regarding the related issue as to whether the provider or supplier’s reliance

on the guidance was reasonable.