(Medicare Claims Processing Manual)

40.2.2 - Written Notice Special Considerations  (Rev.: 4197; Issued: 01- 11-19; Effective: 04 -15-19; Implementation: 04 -15-19)  A.  Responsiveness to Inquiries    A notifier must answer any questions from a beneficiary regarding the written notice.  This includes requests for further information and/or assistance in understanding and responding to a notice.  The Medicare contractor will hold that a beneficiary did not receive proper written notice in any case where it finds that the notifier refused to answer inquiries.    B.  Dealing With Beneficiary Refusals   A beneficiary who has been given a written notice may decide to receive the item(s) and/or service(s).  In this case, the beneficiary should indicate that s/he is willing to be personally and fully responsible for payment.  When a beneficiary decides to de cline an item or service, s/he should so indicate.  If a beneficiary refuses to sign a valid written notice, the notifier should consider not furnishing the item or service, unless the consequences (health and safety of the patient, or civil liability in c ase of harm) are such that this is not an option.  Additionally, the notifier may annotate the written notice indicating the circumstances and persons involved.  The notifier should have the annotation witnessed.     Claims to Which LOL Provisions Apply -  If the beneficiary demands the item or service and refuses to pay, the notifier should have a second person witness the provision of the written notice and the beneficiarys refusal to sign.  Where there is only one person on site (e.g., in a draw station), the second witness may be contacted by telephone to witness the beneficiarys refusal to sign the written notice by telephone and may sign the written notice annotation at a later time.  An unused patient signatur e line on the written notice form may be used for such an annotation; writing in the margins of the form is also permissible.  The notifier should file its claim as having given the written notice.  The beneficiary will be held liable in case of a denial.    Claims to Which RR Provisions Apply -  if the physician or supplier does furnish the item or service, the beneficiarys signature is meant to attest both to receipt of the written notice and to the beneficiarys agreement to pay.  The beneficiary must receive a valid written notice so that s /he is on notice (that is, the beneficiary knew, or could reasonably have been expected to know, that payment could not be made) and  must agree to pay.  The beneficiary has the same two legitimate choices as the cases  of claims to which LOL provisions apply.  If the beneficiary demands the item or service and refuses to pay (will not sign or else marks out the agreement to pay language), the physician or supplier must take into account the fact that it will not be able  to collect from the beneficiary in deciding whether or not to furnish the items or services.  Although there would be little point in having a second person witness the provision of the written notice and the beneficiarys refusal to agree to pay (because the requirement that the beneficiary agree to pay still would not be fulfilled), the physician or supplier may annotate the written notice.  If the items or services are furnished despite the beneficiarys refusal to pay, the physician or supplier should file the claim as not having obtained a signed written notice.  The Medicare contracto r will not hold the beneficiary liable and will hold the physician or supplier liable.   NOTE:   In either case, the beneficiary who does receive an item or service, of course, always  has the right to a Medicare determination and the claim must be filed with Medicare.    C.  Routine Notice Prohibition   In general, the routine use of written notices is not effective and therefore is not an acceptable practice.  By routine use, CMS means giving written notice to beneficiaries where there is no specific, identifiable reason to believe Medicare will not pay.  Notifiers should only give written notices to beneficiaries when there is some genuine doubt that Medicare will make payment.  If the Medicare contractor identifies a pattern of routine notices in situations where such notices clearly are not valid, it will write to the notifier and remind it of these standards.  While in general, routine written notices are invalid and will not protect the notifier from liability, there are some exceptions.    Generic Written Notices  Generic written notices are routine written notices to beneficiaries which do no more than state that Medicare denial of payment is possible , or that the notifier never knows whether Medicare will deny payment.  Such generic written notices are not considered to be acceptable evidence of written notice and will not protect the notifier from liability.  The written notice must specify the ite m and/or service and a genuine reason that denial by Medicare is expected.  Written noti ce standards likewise are not satisfied by a generic document that is little more than a signed statement by the beneficiary to the effect that, should Medicare deny payment for anything, the beneficiary agrees to pay for the item and/or service.     Blanket Written Notices  - Giving written notices for all claims or items or services (i.e., blanket written notices) is not an acceptable practice.  Notice must be given to a beneficiary on the basis of a genuine judgment about the likelihood of Medicare payment for that individuals claim.    Signed Blank Written Notices  - A notifier is prohibited from obtaining beneficiary signatures on blank written notices and then completing the written notices later.  In order for a written notice to be effective, it must be completed before delivery to the beneficiary.  The Medicare contractor will hold any written notice that was blank when it was signed to be an invalid notice that will not protect the notifier from liability.    Routine Written Notice Prohibition Exceptions  - In general, routine written notices will not be considered valid.  There are, however, a few limited circumstances when a routine notice can be given to a beneficiary and considered effective.    Exception  Description  Items or Services Which Are Always Denied for Medical Necessity  In any case where a national coverage decision provides that a particular item or service is never covered, under any circumstances, as not reasonable and necessary under 1862(a)(1)  of the Act (e.g., at present, all acupuncture services by physicians are denied as not reasonable and necessary), a written notice that gives as the reason for expecting denial that: Medicare never pays for this item/service may be routinely given to beneficiaries, and no claim need be submitted to Medicare.  If the beneficiary demands that a claim be submitted to Medicare, the notifier should submit the claim as a demand bill.  Experimental Items and Services  When any item or service which Medicare considers to be experimental (e.g., Research Use Only and Investigational Use Only laboratory tests) is to be furnished, since all such items or services are denied as not reasonable and necessary under 1862(a)(1)  of the Act because they are not proven safe and effective, the beneficiary may be given a written notice that gives as the reason for expecting denial that: Medicare does not pay for items or services which it considers to be experimental or for research  use. Language with respect to Medicare coverage for clinical trials may be substituted as the reason for expecting denial.  Frequency Limited Items and Services  When Medicare has established a frequency limit for any item or service, a routine written notice can be given.  This is applicable anytime a frequency limitation is made through statute or regulation, through medical national coverage determinations, or on the basis of the Medicare contractors local Exception  Description  coverage determinations.  In any such routine written notice, the notifier must state the frequency limitation as the reason for expecting denial (e.g., Medicare does not pay for this item or service more often than frequency limit ). Medical Equipment and Supplies Denied Because the Supplier Had No Supplier Number or the Supplier Made an Unsolicited Telephone Contact Given that Medicare denials of payment under 1834(j)(1)  of the Act, and under 1834(a)(17)(B) of the Act, apply to all varieties of medical equipment and supplies and to all Medicare beneficiaries equally, the usual prohibition on routine notices to all beneficiaries does not apply in these cases.   NOTE:  A routine written notice, like any other written notice, is valid only for the denial reason specified on the notice.  A written notice will not be considered a valid notice in the case of any Medicare denial of the claim for any reason other than that specified on the notice.   40.3 - Medical Emergency or Otherwise Under Great Duress Situations  (Rev.: 4197; Issued: 01- 11-19; Effective: 04 -15-19; Implementation: 04 -15-19)  A written notice should not be obtained from a beneficiary in a medical emergency or otherwise under great duress (i.e., when circumstances are compelling and coercive) since that individual cannot be expected to make a reasoned informed decision.  A beneficiary (or authorized representative) cannot be expected to make an informed, rational decision when in an emergency situation and therefore cannot be considered a capable recipient.  If the beneficiary is not capable of receiving the notice, then the beneficiary has not received proper written notice and cannot be held liable  where the LOL or RR provisions apply, and the notifier may be held liable.   Examples:    Ambulance companies may not give written notices to beneficiaries (or authorized representatives) in any emergency transport because such beneficiaries are under great duress.     Skilled nursing facilities may not give written notices in the case of middle -of-the-night emergencies or in any other emergency circumstances, since the beneficiary clearly cannot make an informed decision.  NOTE:   The Medicare contractor will consider any written notice given in any kind of coercive circumstances, including medical emergencies, to be invalid.  The Medicare contractor will determine the healthcare providers or suppliers liability by the appropriate knowledge standards which are used in cases where written notices are not given and beneficiary agreements to pay are not obtained.  40.4 - Emergency Medical Treatment and Active Labor Act (EMTALA) Situations  (Rev.: 4197; Issued: 01- 11-19; Effective: 04 -15-19; Implementation: 04 -15-19)  A written notice should not be given to a beneficiary in any case in which EMTALA (1867 of the Act) applies, until the hospital has met its obligations under EMTALA.  These include completion of a medical screening examination (MSE) to determine the presence or absence of an emergency medical condition, or until an emergency medical condition has been stabilized.  The CMS published this policy in the November 10, 1999 OIG/HCFA Special Advisory Bulletin on the Patient Anti -Dumping Statute: A hospital would violate the patient anti -dumping statute if it delayed a medical screening examinat ion or necessary stabilizing treatment in order to prepare an ABN and obtain a beneficiary signature.  The best practice would be for a hospital not to give financial responsibility forms or notices to an individual, or otherwise attempt to obtain the individuals agreement to pay for services before the individual is stabilized.  This is because the circumstances surrounding the need for such services, and the individuals limited information about his or her medical condition, may not permit an individual  to make a rational, informed consumer decision. This policy applies in any case in which EMTALA applies, not only to EMTALA cases seen in emergency rooms (ERs).  This policy also includes times when a beneficiary does not appear to have a life threatening condition, rather, h/she is seeking primary care services at an ER, if EMTALA applies.    A written notice that is otherwise appropriate may be given to a Medicare beneficiary who is seen in the ER after completion of an MSE, but a written notice should not be given unless there is a genuine reason to expect that Medicare will deny payment for the item and/or service.  EMTALA does not prohibit asking payment questions entirely, rather, only doing so before screening/stabilization.  After screening/stabilization, EMTALA no longer applies and written notices may be given, as applicable, to beneficiaries who come to emergency care settings after they have received a medical screening examination and are stabilized.    50 - Advance Beneficiary Notice of Non -coverage (ABN)                        (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21) A.  General Statutory Authority -  Applicability to Limitation on Liability  (LOL)