AMARILLO, TX – In the DME industry, it is not unusual to see claims for reimbursement denied by Medicare for a number of different reasons. When this happens, DME suppliers are often left bearing the financial burden. To address this issue, the Advance Beneficiary Notice of Non-Coverage (ABN) was established as part of the Financial Liability Protections provisions of the Social Security Act. The Financial Liability Protections protect beneficiaries, providers, and suppliers from unexpected liability for claims that Medicare does not pay.

Providers and suppliers are required to notify a beneficiary in advance of furnishing an item or service when it is believed that the item or service will likely be denied by Medicare. The ABN establishes beneficiary knowledge of non-coverage and gives the beneficiary an opportunity to choose whether to receive the service as an informed consumer.

What Is The ABN And When Must It Be Issued?
The ABN, Form CMS-R-131, is a form that all providers and suppliers must issue to Medicare beneficiaries and Medicare/Medicaid (dual eligible beneficiaries) when Medicare is expected to deny a payment. The ABN provides notice to the beneficiary and allows him/her to make an informed decision about whether to receive the services for which he or she may bear financial responsibility. If the supplier does not provide the beneficiary with the ABN in advance of the items or services being furnished, the supplier cannot bill the beneficiary for the service if Medicare denies the claim. The furnishing of ABNs is subject to strict guidelines that can be accessed in Chapter 30, Section 50 of the Medicare Claims Processing Manual. These are routinely revised and were last updated on July 14, 2021.

Key Provisions That Were Updated
On July 14, 2021, CMS published MLN Matters Number: MM12242 titled “Section 50 in Chapter 30 of Publication (Pub.) 100-04 Manual Updates” that notified suppliers changes were made to the ABN section in the Medicare Claims Processing Manual.

Beginning on October 14, 2021 (“Effective Date”), suppliers must use the updated and revised ABN guidelines found in Chapter 30, Section 50 of the Medicare Claims Processing Manual. A few of the key provisions that were revised include: (i) the events that trigger the furnishing of an ABN, (ii) general notice preparation requirements, (iii) the furnishing of ABNs to dual eligible individuals, and (iv) the period of effectiveness. In the following sections, this article will address some of the key revisions that DME suppliers should be aware of.

What Suppliers Should Know

ABN Triggering Events
Generally, CMS recognizes three events known as “ABN Triggering Events” where a supplier must furnish an ABN to a beneficiary prior to furnishing items or services. These three events are:

a) Initiation – At the beginning of a new patient encounter, start of a plan of care, or beginning of treatment, a supplier must issue an ABN to the beneficiary if the supplier knows or reasonably believes that Medicare is likely going to deny payment.
b) Reduction – A supplier must issue an ABN to a beneficiary if there is a reduction in the patient’s care plan and the patient would like to continue receiving care that is no longer considered medically reasonable or necessary.
c) Termination – A supplier must issue an ABN to a beneficiary if there is a discontinuation of certain items or services and the beneficiary would like to continue receiving care that is no longer medically reasonable and necessary.

General Notice Preparation Requirements
When furnishing an ABN to a beneficiary, it is imperative that the supplier follow the general notice guidelines.

The supplier must generate at least two copies of the ABN so that the beneficiary may retain a copy. The supplier must keep the original for its records. Additionally, the ABN must not exceed one page in length with the exception of attachments. Suppliers should avoid customizing or modifying the ABN whenever possible because making extensive changes to the ABN could result in invalid notice and expose the supplier to financial liability.

Suppliers may run into a situation where the beneficiary refuses to complete or sign the ABN. In this circumstance, it is a good practice for suppliers to note on the original ABN that the beneficiary refused to sign, provide a copy with the notation to the beneficiary, and consider whether or not the items or services should still be provided.

If the ABN is furnished successfully to the beneficiary, it is subject to the newly revised effectiveness period.

Period of Effectiveness
Prior to the July 14, 2021, revisions, ABNs were effective for up to one year. However, as of the Effective Date of revised provisions, a valid ABN will remain effective indefinitely so long as there is no change in:

• the patient’s plan of care;
• the beneficiary’s health status that would require a change in treatment for the non-covered condition; and/or
• there are changes to the Medicare coverage guidelines for the items or services in question.

If any of the above-mentioned criteria changes during the course of treatment, the supplier must issue a new ABN to the beneficiary. If the beneficiary is receiving items or services that are repetitive or continuous in nature, the supplier may issue another ABN after the first year, but it will no longer be required to do so.

Dual Eligible Individuals
CMS made significant revisions to the guidelines for furnishing ABNs to dual eligible individuals. When providing a dual eligible beneficiary with an ABN, suppliers must instruct the individual to check the “Option 1” box on the form. Before doing so, the supplier must cross through the language of Option 1 as follows:

“OPTION 1. I want the (D) listed above. I want Medicare billed for an official decision on payment, which is sent to me on a Medicare Summary Notice (MSN).

Suppliers must refrain from billing a dual eligible beneficiary pending adjudication by both Medicare and Medicaid. If Medicare denies a claim where an ABN was furnished, it is acceptable for the claim to be submitted to Medicaid. If the beneficiary has full Medicaid coverage and Medicaid denies the claim, the ABN may still be used pursuant to Medicare policy guidelines.

Conclusion
Out of all of the revisions made to the ABN guidelines, the extension of the period of effectiveness is likely the most significant. Previously, if the course of treatment extended past one year, a new ABN was required. With this extension, suppliers can refrain from furnishing a new ABN at the end of each year. Even though the remainder of the updates to the ABN guidelines are not significantly different than previous versions, it is still important for suppliers to review the updated version and ensure that their employees understand and comply with its instructions. Failure to comply with ABN instructions could mean that the supplier will be held financially responsible for the non-covered items and services. Therefore, every supplier should maintain updated policies and procedures for the furnishing of ABNs in accordance with the most recent CMS updates.

AAHOMECARE’S EDUCATIONAL WEBINAR

Oxygen Patients: Free Pre-Screens, Free Use of Equipment, and Other Free Services

Presented by: Jeffrey S. Baird, Esq., Brown & Fortunato & Lisa K. Smith, Esq., Brown & Fortunato

Thursday, September 9, 2021

1:30-2:30 p.m. CENTRAL TIME
Serving oxygen patients always has, and always will be, an important component of the DME industry. With 78 million Baby Boomers, most of whom will live into their 80s, the demand for oxygen therapy will continue to increase. The question facing many oxygen suppliers is whether they are allowed to provide value-added services to oxygen patients such as free pre-screens and free use of equipment for a short period of time. The general rule continues to be that providing free products and services to Medicare patients is prohibited by the federal beneficiary inducement statute and the federal anti-kickback statute (“AKS”). However, in a move to make health care more readily available to consumers, statutes have been passed – and regulations implemented – that give DME suppliers more flexibility to offer value-added services and products designed to give access to health care to those consumers that normally would not have such access. This webinar will discuss the recent changes in the law, including the Affordable Care Act, recent OIG Advisory Opinions, the November 2020 modifications to civil monetary penalties pertaining to patient inducements, and the November 2020 modifications to the AKS safe harbors. This program will discuss how these recent changes affect the ability of suppliers to provide value-added services and products to oxygen patients.

Register for Oxygen Patients:  Free Pre-Screens, Free Use of Equipment, and Other Free Services on Thursday, September 9, 2021, 1:30-2:30 p.m. CT, with Jeffrey S. Baird, Esq. and Lisa K. Smith, Esq. of  Brown & Fortunato.

Members:  $99
Non-Members:  $129

Kelly T. Custer, JD, is an attorney with the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, and other health care providers throughout the United States. Mr. Custer can be reached at (806) 345-6343 or [email protected].

Jeffrey S. Baird, JD, is Chairman of the Health Care Group at Brown & Fortunato, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers, and other health care providers throughout the United States.  Mr. Baird is Board Certified in Health Law by the Texas Board of Legal Specialization and can be reached at (806) 345-6320 or [email protected].