CMS Pub. 100-04, ch. 33, § 10.2.8

The eighth condition that must be met is that the provider or supplier’s reliance on the

guidance provided by the Medicare contractor or by CMS must have been reasonable.

A Medicare program communication (which qualifies as a writing) that was issued to the

provider or supplier (specifically, or as part of a class, or to all providers and suppliers

generally, that is directly on point with respect to the matter presented by the provider or

supplier, and that purports to speak definitively to such matter, creates a rebuttable

presumption that the provider or supplier’s reliance was reasonable.

However, if the communication, by its own terms, does not purport to be definitive, i.e., it

contains relevant and material speculations, disclaimers, a set of possibilities, or other

equivocal language, or a request for additional information, such that a reasonable

provider or supplier would consider that a further exchange of views or a further

presentation of facts, or an additional inquiry was warranted, then no such rebuttable

presumption is created.

Also, certain electronically transmitted communications, such as e-mail, although

qualifying as a writing, may, in a particular circumstance, be so sparse in content or

informal in manner of expression, or may be sent by an individual who is not likely to be

authorized to furnish the type of guidance that was issued, that a reasonable provider or

supplier would question whether reliance on the guidance, without further inquiry or

confirmation, would be reasonable.

Further, the guidance must appear accurate on its face to any reasonable, similarly

situated provider or supplier. One circumstance when it would not be reasonable to rely

on a particular guidance is when such guidance is in direct conflict with a then current,

Medicare program issuance that is applicable in the circumstance addressed by the

guidance (unless the guidance itself references such official issuance in terms of

supersession or resolving an apparent conflict). Another circumstance when it would not

be reasonable to continue to rely on a particular guidance is when the guidance, once

accurate (or arguably so), has been superseded by new policy that has been

communicated by a program issuance to which the provider or supplier was or should

have been privy.

A provider or supplier’s reliance on a particular guidance may become questionable or

may be determined to be unreasonable if a claim or other filing that was submitted

pursuant to such guidance is returned as unprocessable, is denied in whole or in part, is

challenged, rejected, or if, in any in other way, a Medicare program communication or

other act or omission by CMS or a Medicare contractor would indicate to a reasonable

provider or supplier that continued reliance on such guidance would be unreasonable

without confirming the continuing validity of the guidance.

If the provider or supplier had received notice of the erroneous nature of the prior

guidance, then such provider or supplier shall be bound by the terms of such subsequent

notice and may not thereafter rely on the prior, erroneous guidance.