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July 22, 2009

The Impact of the New ABN Form
By Lamon Willis, CHCO, CPC-P, CPC-H, CPC-I
For The Record
Vol. 21 No. 14 P. 10

On March 1, providers (including independent laboratories), physicians, practitioners, and suppliers began using the revised Advance Beneficiary Notice (ABN) (Form CMS-R-131) for all situations where Medicare payment is expected to be denied. This form replaces the existing ABN-G (Form CMS-R-131G), ABN-L (Form CMS-R-131L), and Note of Exclusion From Medicare Benefits (NEMB) (Form CMS-20007). (Note: Skilled nursing facilities must use the revised ABN for items or services expected to be denied only under Medicare Part B.)

Additional features of the new form include the following:

• A new official title—the Advance Beneficiary Notice of Noncoverage more clearly conveys the purpose of the notice.

• It has a mandatory field for cost estimates of the items or services at issue.

• It includes a new beneficiary option, under which an individual may choose to receive an item or service and pay for it out of pocket rather than have a claim submitted to Medicare.

The revised ABN is the new CMS-approved written notice that is issued by providers, practitioners, suppliers, and laboratories for items and services provided under Medicare Part A (hospice and regional nonmedical healthcare institutes only) and Part B and given to beneficiaries enrolled in the Medicare Fee-For-Service program. The new form may not be used for items or services provided under the Medicare Advantage Program or for prescription drugs provided under the Medicare Prescription Drug Program (Part D); it is now used to fulfill both mandatory and voluntary notice functions.

The revised ABN is mandated statutorily for the following items:

• unreasonable and unnecessary services;

• violation of the prohibition on unsolicited telephone contacts;

• unmet requirements for medical equipment suppliers’ requirements;

• medical equipment and/or supplies denied in advance;

• custodial care; and

• a hospice patient who is not terminally ill.

ABNs are not required for care that is either statutorily excluded from coverage under Medicare (ie, care that is never covered) or fails to meet a technical benefit requirement (ie, lacks required certification). However, the ABN can be issued voluntarily in place of the NEMB for care that is never covered, such as the following:

• care that fails to meet the definition of a Medicare benefit as defined in §1861 of the Social Security Act; or

• care that is explicitly excluded from coverage under §1862 of the Social Security Act.
Examples include the following:

• 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 physicals and most screening tests;

• routine eye care;

• dental care; and

• routine foot care.

For further guidance related to using the new ABN, refer to Section 50.1 of the “Medicare Claims Processing Manual, Chapter 30: Financial Liability Protections.” The data begin on page 41 of the document and can be found at www.cms.hhs.gov/manuals/downloads/clm104c30.pdf.

The statutorial authority for ABNs, which can be found in the Financial Liability Protection (FLP) provisions of the Social Security Act, is to protect beneficiaries and healthcare providers under certain circumstances from unexpected liability for charges associated with claims that Medicare does not pay. The FLP provisions include the following:

• Limitation on Liability (LOL) under §1879(a)-(g) of the act;

• Refund Requirements for Nonassigned Claims for Physicians Services under §1842(l) of the act; and

• Refund Requirements for Assigned and Nonassigned Claims for Medical Equipment and Supplies under §§1834(a)(18), 1834(j)(4), and 1879(h) of the act.

The LOL protections apply only when a provider believes that an otherwise covered item or service may be denied either as unreasonable and unnecessary under §1862(a)(1) of the act or because the item or service constitutes custodial care under §1862(a)(9) of the act. §1879 of the act requires a provider to notify a beneficiary in advance when he or she believes that items or services will likely be denied either as unreasonable and unnecessary or as constituting custodial care. If such notice is not given, providers may not shift financial liability for such items or services to beneficiaries should a claim be denied by Medicare. Note that beneficiaries are not afforded LOL protection when items or services are denied for reasons other than those listed in the FLP provisions of Title XVIII, which are listed in §50.3.1.

A healthcare provider (herein referred to as 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, sanctions under the Conditions of Participation may be imposed.

The Medicare contractor will hold any provider financially liable who either failed to give notice when required or gave defective notice. A notifier who can demonstrate that he or she 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 he or she did not know or could not reasonably have been expected to know that Medicare would not make payment, as the issuance of defective notice is clear evidence of knowledge. The beneficiary is not protected from liability if there is clear evidence that he or she knew that Medicare would not make payment. See §50.12 for refund requirements.

Disclaimer: When querying qualified coding consultants on such regulatory matters, it is important to point out the provider type (physician or hospital), which payer is referenced, and details from operative, nursing, physician, and therapy notes, etc. Otherwise, there is a lack of information, which may lead to speculation.

— Lamon Willis, CHCO, CPC-P, CPC-H, CPC-I, a healthcare consultant at Craneware, Inc, has more than 15 years’ experience in outpatient coding and reimbursement in hospital and physician services, revenue cycle, and practice management.

The information provided in this article is of a general nature. Although these opinions are based on extensive industry experience serving more than 1,000 healthcare organizations of all sizes and grounded in the CMS source documents indicated, they are not a substitute for consulting with a professional who is familiar with your healthcare organization’s specific requirements. For further information, visit www.craneware.com.