(Medicare Claims Processing Manual)

B. Incomplete ABNs   Allegations of improper or incomplete notices will be investigated by Medicare contractors.  If the notifier is found to have given improper or incomplete notice, the applicable Medicare contractor will not hold the beneficiary liable in the individual case.   C. Electronic Issuance of the ABN   Electronic issuance of ABNs is not prohibited.  If a healthcare provider or supplier elects to issue an ABN that is viewed on an electronic screen before signing, the beneficiary has the option of requesting paper issuance over electronic if that is what s /he prefers.  Also, regardless of whether a paper or electronic version is issued and regardless of whether the signature is digitally captured or manually penned, the beneficiary should be given a paper copy of the signed ABN to keep for his/her own recor ds.    50.8.1- Options for Delivery Other than  In-Person  (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  ABNs should be delivered in- person and prior to the delivery of medical care which is presumed to be non- covered.  In circumstances when in -person delivery is not possible, notifiers may deliver an ABN using another method.  Examples include:    Direct telephone contact;   Mail;  Secure fax machine; or   Internet e -mail.   All methods of delivery require adherence to all statutory privacy requirements under HIPAA.  The notifier must receive a response from the beneficiary or his/her representative in order to validate delivery.   When delivery is not in- person, the notifier must verify that contact was made in his/her records.  In order to be considered effective, the beneficiary should not dispute such contact.  Telephone contacts should be followed immediately by either a hand- delivered, mailed, emailed, or a faxed notice.  The beneficiary should sign and retain the notice and send a copy of this signed notice to the notifier for retention in the patients record.   The notifier must keep a copy of the unsigned notice on file while awaiting receipt of the signed notice.  If the beneficiary does not return a signed copy, the notifier should document the initial contact and subsequent attempts to obtain a signature in appropriate records or on the notice itself.  50.9 - Effects of Lack of Notification, Medicare Review and Claim Adjudication                                                                                               (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  A.  Beneficiary Liability   A beneficiary who has been given a properly delivered ABN and agrees to pay may be held liable.  The charge may be the healthcare provider or suppliers usual and customary fee for that item or service and is not limited to the Medicare fee schedule.  If t he beneficiary does not receive proper notice when required, s/he is relieved from liability.   Notifiers may not issue ABNs to shift financial liability to a beneficiary when full payment is made through bundled payments.  In general, ABNs cannot be used where the beneficiary would otherwise not be financially liable for payment for the service beca use Medicare made full payment.   B. Healthcare Provider or Supplier Liability   A notifier will likely have financial liability for items or services if s/he knew or should have known that Medicare would not pay and fails to issue an ABN when required, or issues a defective ABN.  In these cases, the notifier is precluded from collecti ng funds from the beneficiary and is required to make prompt refunds if funds were previously collected.  Failure to issue a timely refund to the beneficiary may result in sanctions.   A notifier may be protected from financial liability when an ABN is required if s/he is able to demonstrate that s/he did not know or could not reasonably have been expected to know that Medicare would not make payment.    50.10 - Using ABNs for Medical Equipment and Supplies Claims When Denials Under 1834(a)(17)(B) of the Act (Prohibition Against Unsolicited Telephone Contacts) Are Expected                                                           (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  To qualify for waiver of the Refund Requirements (RR) provision under 1834(a)(18)  or 1879(h)(3)  of the Act (unassigned and assigned claims, respectively), an ABN must clearly identify the particular item or service and state that the supplier expects that Medicare will deny payment for that particular medical equipment or supplies because the suppli er violated the prohibition on unsolicited telephone contacts.  Since it is the unsolicited telephone contact which is prohibited by law, giving notice by telephone does not qualify as notice and is not permissible.  Telephone notice may not be used in thi s case.   Since giving or mailing an ABN and obtaining the beneficiarys agreement to pay before telephoning is equivalent to obtaining the beneficiarys written permission for the supplier to telephone under 1834(a)(17)(A)(i) of the Act, a supplier has little to gain from using the ABN process instead of simply seeking the beneficiarys written permission to contact him or her.  If a supplier does use an ABN prior to calling, the beneficiarys agreement to pay is essential under the Refund Requirements in order for  the supplier to collect from the beneficiary.  Medicare denial of payment because of the prohibition on unsolicited telephone contacts applies to all varieties of medical equipment and supplies and to all Medicare beneficiaries equally.  Therefore, the us ual restriction on routine notices to all beneficiaries does not apply in this case.  Since unsolicited telephone contacts are expressly prohibited by statute, there is presumption of supplier knowledge of this provision.  To rebut this presumption, the supplier must submit convincing evidence showing ignorance of the prohibition.  A previous denial of a claim for any item furnished by a particular supplier on the basis of this prohibition is considered actual notice to that supplier.  Such a denial shall be construed as actual knowledge on all future claims.  50.11 - ABNs for Medical Equipment and Supplies Claims Denied Under 1834(j)(1) of the Act (Because the Supplier Did Not Meet Supplier Number Requirements)                                                                              (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21) To qualify for waiver of the RR under 1834(j)(4)(A)  and 1879(h)(1)  of the Act (unassigned and assigned claims, respectively) for medical equipment and supplies for which payment will be denied due to failure to meet supplier number requirements under 1834(j)(1) of the Act, the ABN must state that Medicare will deny paym ent for any medical equipment or supplies because the supplier does not have a supplier number.  The supplier should keep the ABN on file for documentation that the beneficiary has knowledge of this particular denial and that the beneficiary accepts financial liability.  This relieves the supplier, which has duly notified a beneficiary of its lack of a supplier number and the fact that Medicare will not pay, from the necessity of obtaining a signed agreement from the beneficiary every time the beneficiary does business with the supplier.  Exception to ABN Requirement   A supplier which can show that it did not know and could not reasonably have been expected to know that a customer was a Medicare beneficiary, or that a customer was making a purchase for a Medicare beneficiary, can seek protection under the LOL provision or, in the case of unassigned claims, under the applicable RR provision, 1834(j)(4) of the Act.  Below are situations where the supplier may seek protection under the LOL provision or the RR provision:    If the supplier can show that a person who is not a Medicare beneficiary made a purchase on behalf of a person who is a Medicare beneficiary and did not apprise the supplier of the fact that the purchase was being made on behalf of a Medicare beneficiary, the supplier may be protected.     If the supplier can show that a Medicare beneficiary who made a purchase did not identify himself or herself as a Medicare beneficiary and that the persons age or appearance was such that the supplier could not reasonably have been expected to know or sur mise that the person was a Medicare beneficiary, the supplier may be protected.  These protections are meant for an honest supplier in the rare case where a Medicare beneficiary who is relatively youthful, healthy and able in appearance does not identify himself or herself as a beneficiary and the supplier understandably does not surmise that he or she might be a Medicare beneficiary.   If the involved Medicare beneficiary is found to be obviously aged and/or disabled, such that any adult person working for a supplier would reasonably surmise that he or she could be a Medicare beneficiary, the suppliers allegation may not be accepted.  I f the beneficiary purchased an item which would strongly suggest to any reasonable adult person working for a supplier that the beneficiary is aged and/or disabled, the suppliers allegation may not be accepted.    If a supplier can show that a customer, who is a Medicare beneficiary or was making a purchase for a Medicare beneficiary and did not identify him/herself accordingly to the supplier, was on  notice of the necessity to so self -identify, the beneficiary may be held liable, in which case the supplier could collect from the beneficiary.   Given the possible difficulty of showing conclusively that it did not know and could not reasonably have been expected to know that a customer was a Medicare beneficiary, or that a customer was making a purchase for a Medicare beneficiary, a supplier would  be well advised to consider using signage, giving public notice alerting customers that they need to inform the supplier if they are a Medicare beneficiary or are making a purchase for a Medicare beneficiary.  If a supplier which does not have a supplier number provides adequate public  notice to a Medicare beneficiary before medical equipment or supplies are furnished (e.g., by means of clearly visible signs, and if the adequacy of such public  notice is not disputed by the beneficiary) the supplier can qualify for waiver of the Refund Requirements.  Such public notices must be such that Medicare beneficia ries:  1. Are virtually certain to see them before purchasing or renting Medicare -covered medical equipment or supplies from the supplier (that is, they are posted in places where they are most likely to be seen by the target audience), and  2. May reasonably be expected to be able to read them and understand them.   Therefore, such public notices must be readily visible, in easily readable plain language, in large print, and would have to be provided in the language(s) commonly used in the locality.    Do not hold any beneficiary who cannot read any such public notice of a supplier to be properly notified in advance by the supplier that Medicare will not pay.  If a supplier alleges that it provided adequate public notice to Medicare beneficiaries but a b eneficiary disputes the allegation, in the absence of conclusive evidence in favor of the supplier, do not hold the beneficiary to be properly notified in advance by the supplier that Medicare will not pay; hold the supplier liable.  The RR provision that the beneficiary must agree to pay for the item or service makes the use of signage without an ABN a risk for the supplier.  It would be in a suppliers best interest to issue ABNs advising beneficiaries that they will have to pay for supplies and to post public notices in its store(s) which inform beneficiaries of the fact that it is not a Medicare enrolled supplier, and that claims for supplies purchased from that supplier will be denied payment by Medicare.  The use of notices in conjunction with public notices will provide maximum protection to suppliers as well as more surely providing proper notice to beneficiaries so that they can make informed consumer decisions.  Medicare denial of payment on the basis of a suppliers lack of a supplier number applies to all varieties of medical equipment and supplies and to all Medicare beneficiaries equally.  Therefore, the usual restriction on routine notices to all beneficiarie s does not apply in this case.    50.12 - ABNs for Claims Denied in Advance Under 1834(a)(15) of the Act                                                                                                               (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  A.  Mandatory   A request for an advance determination of coverage of medical equipment and supplies is mandatory under 1834(a)(15)(C)(i) & (ii) of the Act when:    The item is listed by the Secretary as being subject to unnecessary utilization in your contractors service area under 1834(a)(15)(A);  or   The supplier is listed by the Secretary under 1834(a)(15)(B) of the Act as a supplier who has submitted a substantial number of claims, which have been denied as not medically reasonable and necessary under 1862(a)(1) of the Act or the Secretary has identified a pattern of over  utilization.   In cases in which an advance coverage determination is mandatory, an ABN must be issued to the beneficiary prior to furnishing the item.  If the advance coverage determination has not been received, or if the determination is that Medicare will not pay for th e care, an ABN is required prior to furnishing the requested item.   B.  Optional   A request for an advance determination of coverage of medical equipment and supplies is optional under 1834(a)(15)(C)(iii) of the Act when the item is customized and either the beneficiary or the supplier requests an advance determination.  In cases where an advance coverage determination is optional and the beneficiary requests such a determination, an ABN must be furnished prior to furnishing the requested item.  Every supplier is expected to know whether or not an advance coverage determination is required for Medicare payment.  The presumption of that suppliers knowledge becomes non-rebuttable after a single denial under 1834(a)(15) of a claim by a particular s upplier.