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Routine Notice Prohibitions and Exceptions
In general, the “routine” use of ABNs is not effective. By “routine” use, CMS means giving ABNs to beneficiaries where there is no specific, identifiable reason to believe Medicare will not pay. Notifiers should not give ABNs to beneficiaries unless the notifier has some genuine doubt that Medicare will make payment as evidenced by their stated reasons. Giving routine notices for all claims or services is not an acceptable practice. If the contractor identifies a pattern of routine notices in situations where such notices clearly are not effective, it will write to the notifier and remind it of these standards. In general, routinely given ABNs are defective notices and will not protect the notifier from liability. However, ABNs may be routinely given to beneficiaries when all or virtually all beneficiaries may be at risk of having their claims denied.
“Generic ABNs” are routine ABNs to beneficiaries which do no more than state that Medicare denial of payment is possible, or that the notifier never knows whether Medicare will deny payment. Such “generic ABNs” are not considered to be acceptable evidence of advance beneficiary notice. The ABN must specify the service and a genuine reason that denial by Medicare is expected. ABN standards likewise are not satisfied by a generic document that is little more than a signed statement by the beneficiary to the effect that, should Medicare deny payment for anything, the beneficiary agrees to pay for the service. “Generic ABNs” are defective notices and will not protect the notifier from liability.
A notifier should not give an ABN to a beneficiary unless the notifier has some genuine doubt regarding the likelihood of Medicare payment as evidenced by its stated reasons. Giving ABNs for all claims or items or services (i.e., “blanket ABNs”) is not an acceptable practice. Notice must be given to a beneficiary on the basis of a genuine judgment about the likelihood of Medicare payment for that individual’s claim.
Signed Blank ABNs
A notifier is prohibited from obtaining beneficiary signatures on blank ABNs and then completing the ABNs later. An ABN, to be effective, must be completed before delivery to the beneficiary. The contractor will hold any ABN that was blank when it was signed to be defective notice that will not protect the notifier from liability.
Routine ABN Prohibition Exceptions
Services Which Are Always Denied for Medical Necessity
In any case where a national coverage decision provides that a particular service is never covered, under any circumstances, as not reasonable and necessary (e.g., at present, all acupuncture services by physicians are denied as not reasonable and necessary), an ABN that gives as the reason for expecting denial that: “Medicare never pays for this item/service” may be routinely given to beneficiaries, and no claim need be submitted to Medicare. If the beneficiary demands that a claim be submitted to Medicare, the notifier should submit the claim as a demand bill.
Experimental Items and Services
When any item or service which Medicare considers to be experimental (e.g., “Research Use Only” and “Investigational Use Only” laboratory tests) is to be furnished, since all such services are denied as not reasonable and necessary because they are not proven safe and effective, the beneficiary may be given an ABN that gives as the reason for expecting denial that: “Medicare does not pay for services which it considers to be experimental or for research use.” Alternative, more specific, language with respect to Medicare coverage for clinical trials may be substituted as necessary as the ABN’s reason for expecting denial.
Frequency Limited Items and Services
When any item or service is to be furnished for which Medicare has established a statutory or regulatory frequency limitation on coverage, or a frequency limitation on coverage on the basis of a national coverage decision or on the basis of the contractor’s local medical review policy (LMRP), because all or virtually all beneficiaries may be at risk of having their claims denied in those circumstances, the notifier may routinely give ABNs to beneficiaries. In any such routine ABN, the notifier must state the frequency limitation as the ABN’s reason for expecting denial (e.g., “Medicare does not pay for this item or service more often than frequency limit”).
Medical Equipment and Supplies Denied Because the Supplier Had No Supplier Number or the Supplier Made an Unsolicited Telephone Contact
Given that Medicare denials of payment on the basis of a supplier’s lack of a supplier number, the prohibition on unsolicited telephone contacts, apply to all varieties of medical equipment and supplies and to all Medicare beneficiaries equally, the usual prohibition on provision of routine notices to all beneficiaries does not apply in these cases.
NOTE: A routine ABN, like any other ABN, is effective only for the reason for expecting denial that is specified on the ABN. Such a routine ABN will not be effective notice, that is, will not shift liability to the beneficiary, in the case of any Medicare denial of the claim for any reason other than that specified on the ABN.