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September 12, 2012   Medicaid Planning

Important Medicare Update

On June 1, 2012, the Centers for Medicare & Medicaid Services issued Transmittal No. R2480CP , which took effect September 4, 2012.  The Transmittal updated instructions on the issuance of ABNs.  This transmittal clarifies the difference between a mandatory and voluntary ABN, brings the ABN process into compliance with the Affordable Care Act (ACA), creates a Quick Glance Guide and offers new hypothetical situations to illustrate the use of ABNs.

Highlights of the Transmittal are briefly covered below with language directly from the Transmittal in quotes:

Background An Advance Beneficiary Notice of Noncoverage (ABN) provides notice to a Medicare beneficiary that an ordinarily covered Medicare item or service will not be covered.

Required Notice If notice is not given in the form of an ABN, or as otherwise required, to the beneficiary, the provider/supplier may not shift liability to the beneficiary.

Skilled Nursing Facilities, Preventive Services and Hospice Care The transmittal clarifies use of ABNs with Skilled Nursing Facilities (SNFs) and when form CMS-R-131 should be used.  It also addresses that Home Health Agencies use a separate form call a Home Health Advance Beneficiary Notice of Noncoverage (HHABN).  The transmittal discusses when hospice providers are required to issue an ABN.The transmittal clarifies the mandatory use of ABNs for preventive services established by the ACA’s annual wellness visit and the preventive physical examination (the Welcome to Medicare physical) established by the Medicare Modernization Act.

Mandatory Use of ABNs An ABN is mandatory in the following situations:  1) not reasonable and necessary; 2) violation of the prohibition on unsolicited telephone contacts; 3) medical equipment and supplies supplier number requirements not met; 4) medical equipment and/or supplies denied in advance; 5) custodial care; 6) hospice patient who is not terminally ill.

Expanded Mandatory Uses of ABNs In addition to the previously detailed Mandatory ABNs, this transmittal added the following to the Mandatory ABN list:  1)   The item or service is furnished by a non contract supplier AND the item is included in the Durable Medical Equipment, Prosthetic, Orthotics and Supplies (DMEPOS) Competitive Bidding Program (CBP) for a Competitive Bidding Area (CBA) (unless the beneficiary has already signed an ABN); or 2) The preventive service frequency limitations have been exceeded.

Voluntary Use of the ABN Where a Voluntary ABN is appropriate, it does not have to comply with the formal requirements of a mandatory ABN.  “The voluntary ABN serves as a courtesy to the beneficiary in forewarning him/her of impending financial obligation. When an ABN is used as a voluntary notice, the beneficiary should not be asked to choose an option box or sign the notice."

Notifiers "Regardless of who gives the notice, the billing entity will always be held responsible for effective delivery. When multiple entities are involved in rendering care, it is not necessary to give separate ABNs.”

Recipients of the ABN The ABN must be issued prior to the item or service being provided.

Representatives of Beneficiaries If the beneficiary has a known legal representative, notice must be given to the representative.  If no legal representative exists, but it is believed one is necessary, CMS may appoint one.

Reduction of benefits "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 prior to delivery of this noncovered care.”

Termination of Benefits "The ABN is only issued at termination if the beneficiary wants to continue receiving care that is no longer medically reasonable and necessary. “

Repetitive or Continuous Noncovered Care Generally, an ABN is valid for one year.  The Transmittal provides new language with specific clarification regarding ongoing treatment and the issuance of the initial ABN and a renewal ABN.

Proper notice requires an up-to-date ABNCMS makes it clear in this transmittal that the ABN used must be up-to-date or it is considered inadequate notice.

Beneficiaries responsible for usual fee if proper notice given Where a beneficiary has been properly notified with an ABN, she may be held responsible at the rate of the providers/suppliers usual and customary fee for the items or services furnished.

Electronic Retention Providers are permitted to retain electronic copies of signed ABNs.  In addition, providers may electronically provide beneficiaries with ABNs, but these are only valid if the beneficiary can clearly see the screen.  The provider/supplier must provide the beneficiary with a hard copy of the ABN after signed acknowledgement.

DMEPOS, Ambulance Services and CORFs Mandatory use of ABNs with DMEPOS, ambulance services and CORFs are specifically addressed in the Transmittal.

Instructions for ABNs ABNs are provided on the CMS website.  It is the provider/supplier’s responsibility to check the dates of the ABN and periodically check the CMS website for updates.  The notice requirements can be found at:  www.cms.gov/BNI/Downloads/ABNFormInstructions.zip. For a summary of the transmittal provided by the Center of Medicare Advocacy, follow the link:  http://www.medicareadvocacy.org/2012/08/16/cms-clarifies-when-the-advance-beneficiary-notice-of-non-coverage-abn-must-be-issued/ 

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David Wilson Tue Sep 25, 2012
Thanks for providing this. We are all working to understand and navigate the new requirements laid out by the ACA.
Special needs trust attorney Tue Nov 13, 2012
Thanks for providing this. We are all working to understand and navigate the new requirements laid out by the ACA.

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