ABN Special Considerations

50.17 – ABN Special Considerations (Rev. 10862; Issued: 07-14-21; Effective: 10-14-21; Implementation: 10-14-21) A. Obligation to Bill Medicare Upon receipt of an ABN, beneficiaries always have the right to ask the notifer to submit a claim to Medicare for an official payment decision. A beneficiary must receive the item/service described in the ABN and choose Option 1 in order to request Medicare claim submission. Healthcare providers or suppliers should refer to Publication 100-4, Chapter 1, Section 60 for instructions on submitting claims for statutorily non-covered items or services. Note: Healthcare providers or suppliers will not violate mandatory claims submission rules under Section 1848 of the Social Security Act when a claim is not submitted to Medicare at the beneficiary’s request by their choice of Option 2 on the ABN. B. Dually Eligible Individuals (Has a Qualified Medicare Beneficiary (QMB) Program and/or Medicaid coverage) Dually Eligible beneficiaries must be instructed to check Option Box 1 on the ABN in order for a claim to be submitted for Medicare adjudication. The provider must strike through Option Box 1 as provided below: □ OPTION 1. I want the (D) listed above. You may ask to be paid now, but I also want Medicare billed for an official decision on payment, which is sent to me on a Medicare Summary Notice (MSN). I understand that if Medicare doesn’t pay, I am responsible for payment, but I can appeal to Medicare by following the directions on the MSN. These edits are required because the provider cannot bill the dual eligible beneficiary when the ABN is furnished. Providers must refrain from billing the beneficiary pending adjudication by both Medicare and Medicaid in light of federal law affecting coverage and billing of dual eligible beneficiaries. If Medicare denies a claim where an ABN was needed in order to transfer financial liability to the beneficiary, the claim may be crossed over to Medicaid or submitted by the provider for adjudication based on State Medicaid coverage and payment policy. Medicaid will issue a Remittance Advice based on this determination. Once the claim is adjudicated by both Medicare and Medicaid, providers may only charge the patient in the following circumstances: • If the beneficiary has QMB coverage without full Medicaid coverage, the ABN could allow the provider to shift financial liability to the beneficiary per Medicare policy. • If the beneficiary has full Medicaid coverage and Medicaid denies the claim (or will not pay because the provider does not participate in Medicaid), the ABN could allow the provider to shift financial liability to the beneficiary per Medicare policy, subject to any state laws that limit beneficiary liability. Note: These instructions should only be used when the ABN is used to transfer potential financial liability to the beneficiary and not in voluntary instances. More information on dual eligible beneficiaries may be found at: https://www.cms.gov/Outreach-and- Education/Medicare-Learning-Network- MLN/MLNProducts/downloads/Medicare_Beneficiaries_Dual_Eligibles_At_a_Glan ce.pdf C. Ambulance Transports Emergency or urgent situations In general, a notifier may not issue an ABN to a beneficiary who has a medical emergency or is under similar duress. Forcing delivery of an ABN during an emergency may be considered coercive. ABN usage in the ER may be appropriate in some cases where the beneficiary is medically stable with no emergent health issues. Non-emergent/urgent ambulance transport If the provider or supplier wants to transfer liability to the beneficiary, issuance of the ABN is mandatory for ambulance transport services if all of the following 3 criteria are met:: 1. The service being provided is a Medicare covered ambulance benefit under §1861(s)(7) of the SSA and regulations under this section as stipulated in 42 CFR §410.40 -.41; 2. The healthcare provider or supplier believes that the service may be denied, in part or in full, as “not reasonable and necessary” under § 1862(a)(1)(A) for the beneficiary on that particular occasion; and 3. The ambulance service is being provided in a non- emergency situation. (The patient is not under duress.) ABN issuance is mandatory only when a beneficiary’s covered ambulance transport is modified to a level that is not medically reasonable and necessary and will incur additional costs. If an ambulance transport is statutorily excluded from coverage because it fails to meet Medicare’s definition of the ambulance benefit, a voluntary ABN may be issued to notify the beneficiary of his/her financial liability as a courtesy. D. Hospice Mandatory use of the ABN is very limited for hospices. Hospice providers are responsible for providing the ABN when required as listed below for items and services billable to hospice. Hospices are not responsible for issuing an ABN when a hospice patient seeks care outside of the hospice’s jurisdiction. The three situations that would require issuance of the ABN by a hospice are: • Ineligibility because the beneficiary is not determined to be “terminally ill” as defined in §1879(g)(2) of the Act; or • Specific items or services that are billed separately from the hospice payment, such as physician services, are not reasonable and necessary as defined in either §1862(a)(1)(A) or §1862(a)(1)(C); or • The level of hospice care is determined to be not reasonable or medically necessary as defined in §1862(a)(1)(A) or §1862(a)(1)(C), specifically for the management of the terminal illness and/or related conditions. Note: It is the hospice’s responsibility to issue an ABN when a beneficiary who has elected the hospice benefit chooses to receive inpatient hospice care in a hospital that is not under contract with the hospice. The hospice may delegate delivery of the ABN to the hospital in these cases. End of all Medicare covered hospice care – When it is determined that a beneficiary who has been receiving hospice care is no longer terminally ill and the beneficiary is going to be discharged from hospice, the hospice may be required to issue the Notice of Medicare Non-coverage (NOMNC), CMS 10123. If upon discharge the patient wants to continue receiving hospice care that will not be covered by Medicare, the hospice would issue an ABN to the beneficiary in order to transfer liability for the non-covered care to the beneficiary. If no further hospice services are provided after discharge, ABN issuance would not be required. ABNs are not required for Hospice Services in these situations: • Revocations - Hospice beneficiaries or their representatives can revoke the hospice benefit. Revocations are not considered terminations under liability notice policy since the beneficiary is exercising his/her own freedom of choice. Therefore, no ABN is required. • Respite Care Beyond Five Consecutive Days - Respite care is limited to five consecutive days under the Act. When respite care exceeds five consecutive days, an ABN is not required since additional days of respite care are not part of the hospice benefit. CMS encourages hospice providers to give the ABN as an optional notice to inform patients of financial liability when more than five days of respite care will be provided. • Transfers - Beneficiaries are allowed one transfer to another hospice during a benefit period. However, subsequent transfers within the same benefit period are not permitted. In either case, an ABN is not required. • Failure to Meet the Face to Face Requirement - The ABN must not be issued when the face to face requirement for hospice recertification is not met within the required timeframe. Failure to meet the face to face requirement for recertification should not be misrepresented as a determination that the beneficiary is no longer terminally ill. • Room and Board Costs for Nursing Facility Residents - Since room and board are not part of the hospice benefit, an ABN would not be required when the patient elects hospice and continues to pay out of pocket for long term care room and board. E. Comprehensive Outpatient Rehabilitation Facility (CORF) Since Comprehensive Outpatient Rehabilitation Facility (CORF) services are billed under Part B, CORF providers must issue the ABN according to the instructions given in this section. The ABN is issued by CORFs before providing a service that is usually covered by Medicare but may not be paid for in a specific case because it is not medically reasonable and necessary. When all Medicare covered CORF services are going to end, CORF’s are required to issue a notice regarding the beneficiary’s right to an expedited determination called a NOMNC, CMS 10123. Upon termination of all CORF care, the ABN would be issued only if the beneficiary wants to continue receiving some or all services that will not be covered by Medicare because they are no longer considered medically reasonable and necessary. An ABN would not be issued if no further CORF services are provided. F. Home Health Agency (HHA) The following chart summarizes the statutory provisions related to ABN issuance for LOL purposes: Application of LOL for the Home Health Benefit Citation from the Act Brief Descripti on of Recommen ded Explanation §1862(a)(1)( A) Care is not reasonable and necessary Medicare does not pay for care that is not medically reasonable and §1862(a)(9) Custodial care is the only care delivered Medicare does not usually pay for custodial care, §1879(g)(1) (A) Beneficiary is not homebound Medicare requires that a beneficiary cannot leave home (with certain exceptions) in order to cover services §1879(g)(1) (B) Beneficiary does not need skilled nursing care on an intermittent basis Medicare requires part-time or intermittent need for skilled nursing care in order to cover Triggering Events for ABN issuance by HHAs* HHAs may be required to provide an ABN to an Original Medicare beneficiary when a triggering event occurs. EVENT DESCRIPTION EXAMPLE Initiation An ABN must be issued to the beneficiary prior to receiving care that is usually covered by A beneficiary requires skilled nursing Medicare, but in this particular instance, it is not covered or may not be covered by Medicare because the care is not medically reasonable and necessary, the beneficiary is not confined to his/her home (considered homebound), or the beneficiary does not need skilled nursing care on an intermittent basis, or the beneficiary is receiving custodial care only. wound care 3 times weekly; however, she is not confined to the home. She wants the care done at her home by the HHA. Reduction Reductions involve any decrease in services or supplies, such as frequency, amount, or level of care, provided by the HHA and/or care that is part of the POC. If a reduction occurs for an item or service that will no longer be covered by Medicare but the beneficiary wants to continue to receive the care and assume the financial charges, the HHA must issue the ABN prior to providing the non-covered items or services. The beneficiary requires physical therapy (PT) for gait retraining 5 times per week for 2 weeks, then reduce to 3 times weekly for 2 weeks. After 2 weeks of PT, the beneficiary wants to continue therapy 5 times a week even though this amount of therapy is no longer medically reasonable and necessary. The HHA would issue an ABN to the beneficiary so that he understands the situation and can consent to financial responsibility for the PT not covered by Medicare. Termination When an HHA expects that Medicare coverage will end for all items and services in total. *If the beneficiary does not want the item or service that is being initiated, reduced, or terminated, no ABN is required. When an HHA performs an initial assessment of a beneficiary prior to admission but does not admit the beneficiary, an ABN is not required if there is no charge for the assessment. However, if an HHA charges for an assessment, the HHA must provide notice to the beneficiary before performing and charging for this service. Since Medicare has specific requirements for payment of home health services, there may be occasions where a payment requirement is not met, and therefore, the HHA expects that Medicare will not pay for the services. The HHA cannot use the ABN to transfer liability to the beneficiary when there is concern that a billing requirement may not be met. For example, a home health agency can’t issue an ABN at initiation of home care services in order to charge the beneficiary if the healthcare provider face to face encounter requirement is not met. When all Medicare covered home health care is terminated, HHAs may sometimes be required to deliver the NOMNC, CMS- 10123. The NOMNC informs beneficiaries of the right to an expedited determination by a Quality Improvement Organization (QIO) if they feel that termination of home health services is not appropriate. If a beneficiary requests a QIO review upon receiving a NOMNC, the QIO will make a fast decision on whether covered services should end. If the QIO decides that Medicare covered care should end and the patient wishes to continue receiving care from the HHA even though Medicare will not pay, an ABN must be issued to the beneficiary since this would be an initiation of non-covered care. HHA Exceptions to ABN Notification Requirements ABN issuance is NOT required in the following HHA situations: • initial assessments (in cases where beneficiaries are not admitted) for which HHAs do not charge; • care that is never covered by Medicare under any circumstances (i.e., an HHA offers complimentary hearing aid cleaning and maintenance); • telehealth monitoring used as an adjunct to regular covered HH care; or • non-covered items/services that are part of care covered in total under a Medicare bundled payment (e.g., HH prospective payment system (PPS) episode payment).