(Medicare Claims Processing Manual)

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)   Section 1879 of the Act (where the LOL provisions are located) requires a healthcare provider or supplier (i.e. notifier) to notify a beneficiary in advance of furnishing an item or service when s/he believes that items or services will likely be denied by  Medicare for any of the reasons specified in the statutory provision in order to shift financial liability to the beneficiary for the denial.  For example, advance notice is required if the item or service may be denied as not reasonable and necessary und er 1862(a)(1) of the Act or because the item or service constitutes custodial care under 1862(a)(9) of the Act.  Notice (e.g., the ABN) is a way for healthcare providers or suppliers to establish beneficiary knowledge of non- coverage and therefore, shift financial liability for these items or services if Medicare denies the claim.    B.  Compliance with Limitation on Liability Provisions  A notifier who fails to comply with the ABN instructions risks financial liability and/or sanctions.  LOL provisions shall apply as required by law, regulations, rulings and program instructions.  Additionally, when authorized by law and regulations, sanct ions under the Conditions of Participation (COPs) may be imposed.  The Medicare contractor may hold any healthcare provider or supplier who either failed to give notice when required, or gave defective notice, financially liable.  A notifier who can demonstrate that s/he did not know and could not reasonably have been expected to know that Medicare would not make payment will not be held financially liable for failing to give notice.  However, a notifier who gave defective notice may not claim that s/he did not know or could not reasonably have been expected to know that M edicare would not make payment, as the issuance of the notice is clear evidence of knowledge.  A notifier who cannot demonstrate that adequate advance notice was furnished to the beneficiary will not be able to use the provisions in section 1879 of the Act  to transfer financial liability to the beneficiary.   ABN - Quick Glance Guide3  Notice Name: Advance Beneficiary Notice of Non -coverage (ABN)  Notice Number: Form CMS -R-131 Issued by: Healthcare providers and suppliers of Medicare Part B items and services;                      Hospice and Religious Non- medical HealthCare Institute (RNHCI) providing Medicare Part A items and services;                      and home health agencies(HHAs) for Part A and Part B items and services                       Recipient: Original Medicare FFS (fee for service) beneficiary;                                         Type of notice:  Must be issued:  Timing of notice:  Optional use:  Financial liability notice    Prior to providing an item or service that is usually paid for by Medicare under Part B (or under Part A for hospice, HHA, and RNHCI providers only) but may not be paid for in this particular case because it is not considered medically reasonable and necessary   Prior to providing custodial  care  For hospice providers, prior to caring for a patient who is not terminally  ill  For Durable Medicare Equipment (DME) suppliers   For HHA providers, prior to providing care when the individual is not confined to the home or does not need intermittent skilled nursing  care.  Prior to delivery of the item or service in question.  Provide enough time for the beneficiary to make an informed decision on whether or not to receive the service or item in question and accept potential financial liability.   Yes.  Prior to providing an item or service that is never covered by Medicare (i.e. not a Medicare benefit).  3 This is an abbreviated reference tool and is not meant to replace or supersede any of the directives contained in Section 50.  50.1 - ABN  Scope                                                                                       (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  The ABN is an Office of Management and Budget (OMB) -approved written notice issued by healthcare providers and suppliers for items and services provided under Medicare Part B.  With the exception of DME suppliers, only healthcare providers and suppliers who are enrolled in Medicare can issue the ABN to beneficiaries.   The ABN is given to beneficiaries enrolled in the Medicare FFS program.  It is not used for items or services provided under the Medicare Advantage (MA) Program or for prescription drugs provided under the Medicare Prescription Drug Program (Part D).   Skilled Nursing Facilities (SNFs) issue the ABN for Part B services only.  The Skilled Nursing Facility Advance Beneficiary Notice of Non- coverage (SNF ABN), CMS Form 10055, is issued for Part A SNF items and services.  Section 70 of this chapter contains information on SNFABN issuance.   50.2 - ABN  Uses                                                                                          (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  The following provisions necessitate delivery of the ABN:    1862(a)(1) of the Act (not reasonable and necessary);    1834(a)(17)(B) of the Act (violation of the prohibition on unsolicited telephone  contacts);    1834(j)(1) of the Act (medical equipment and supplies supplier number requirements not  met);    1834(a)(15) of the Act (medical equipment and/or supplies denied in advance);    1862(a)(9) of the Act (custodial  care);    1879(g)(2) of the Act (hospice patient who is not terminally ill);    1879(g)(1) of the Act (home health services requirements are not met  not confined to the home or no need for intermittent skilled nursing care);    1862(a)(1)(P) of the Act, Medicare covered personalized prevention plan services (as defined in 1861(hhh)(1) ) that are performed more frequently than indicated per coverage guidelines are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member);    Under 42 CFR 414.408(e)(3)(ii) when a noncontract supplier furnishes an item included in the Durable Medical Equipment, Prosthetic, Orthotics, and Supplies (DMEPOS) Competitive Bidding Program (CBP) for a Competitive Bidding Area (CBA).  Although all othe r denial reasons triggering mandatory use of the ABN are found in 1879 of the Act, in this situation, 1847(b)(5)(D) of the Act permits use of the ABN with respect to these items and services; or    When Medicare considers an item or service experimental (e.g., a Research Use Only or Investigational Use Only laboratory test), payment for the experimental item or service is denied under 1862(a)(1) of the Act as not reasonable and necessary.  In ci rcumstances such as this, the beneficiary must be given an ABN.  50.2.1 - Optional ABN Uses                                                                       (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  ABNs are not required for care that is either statutorily excluded from coverage under Medicare (i.e. care that is never covered) or most care that fails to meet a technical benefit requirement (i.e. lacks required certification).  However, CMS strongly encourage healthcare provide rs and suppliers to issue the ABN for care that is never covered such as:   Care that fails to meet the definition of a Medicare benefit as defined in 1861 of the Social Security  Act;   Care that is explicitly excluded from coverage under 1862 of the Social Security Act.  Examples  include:    Services for which there is no legal obligation to pay;  Services paid for by a government entity other than Medicare (this exclusion does not include services paid for by Medicaid on behalf of  dual-eligibles);  Services required as a result of war;   Personal comfort items;  Routine eye care;   Dental care; and   Routine foot  care.   When the ABN is used in this way it serves as a courtesy to the beneficiary in forewarning him/her of impending financial obligation.  The beneficiary should not be asked to choose an option box or sign the notice.  The healthcare provider or supplier is not required to adhere to the issuance guidelines for the ABN.   NOTE: Certain DME items/services that fail to meet a technical requirement may require an ABN as outlined in the mandatory use section above.   50.3 - Issuance of the ABN                                                                        (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21) Notifiers  May direct an employee or a subcontractor to deliver an ABN.  The billing entity will always be held responsible for effective delivery regardless of who gives the notice.    When multiple entities are involved in rendering care, it is not necessary to give separate ABNs.  Either party involved in the delivery of care can be the notifier when:    There are separate ordering and rendering healthcare providers or supplier (e.g. a physician orders a lab test and an independent laboratory delivers the ordered tests);   One healthcare provider or supplier delivers the technical and the other the professional component of the same service ( e.g. a radiological test that an independent diagnostic testing facility renders and a physician interprets);  or  The entity that obtains the signature on the ABN is different from the entity that bills for services (e.g. when one laboratory refers a specimen to another laboratory which then bills Medicare for the  test).   When the notifier is not the billing entity, the notifier must know how to direct the beneficiary who received the ABN to the billing entity for questions and should annotate the Additional Information section of the ABN with this information.  It is permissible to enter the names of more than one entity in the header of the notice.  Representatives of Beneficiaries  If the beneficiary has a known, legally authorized representative, the ABN must be issued to the existing representative.  If a beneficiary does not have a representative and one is necessary, a representative may be appointed for purposes of receiving not ice following CMS guidelines and as permitted by State and Local law.  When a representative is signing the ABN on behalf of a beneficiary, the ABN should be annotated to identify that the signature was penned by the rep or representative.  If the representatives signature is not clearly legible, the representatives name should be printed on the ABN.  See section 500 of this manual under Authorized representative for more information.   50.4 - ABN Triggering Events                                                                   (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  Initiations   Reductions   Terminations   The beginning of a new patient encounter, start of a plan of care, or beginning of treatment.     A reduction occurs when there is a decrease in a component of care (i.e. frequency, duration, etc.).  The ABN is not issued every time an item or service is reduced.  But, if a reduction occurs and the beneficiary wants to receive care that is no longer considered medically reasonable and necessary, the ABN must be issued A termination is the discontinuation of certain items or services.  The ABN is only issued at termination if the beneficiary wants to continue receiving care that is no longer medically reasonable and necessary.    prior to delivery of this non-covered care.   50.5 - ABN Standards                                                                                (Rev. 10862; Issued: 07- 14-21; Effective: 10 -14-21; Implementation: 10 -14-21)  The ABN, Form CMS -R-131, is the OMB approved standard written notice.  Failure to use this notice as mandated could result in the  notice being invalidated and/or the notifier being held liable for the items or services in question.  The online replicable copies of the OMB approved ABN (CMS -R-131) and instructions for notice completion are available on the CMS website at:  http://www.cms.gov/Medicare/Medicare -General - Information/BNI/ABN.html  A. Language  Choice