Anesthesia and ABNs: A Few More Considerations
Summary:
The rules surrounding the use of an advance beneficiary notice are voluminous and complex. Because of this, many providers are hesitant to avail themselves of this billing solution. In this ongoing series of articles on ABNs, we will cover additional rules for the proper use of an ABN when the provider believes the service that the patient seeks will not be covered by Medicare.
A couple of weeks ago, we published an alert dealing with the appropriate usage of advance beneficiary notices (ABNs) for Medicare patients. We primarily focused on voluntary versus mandatory ABN triggering events and provided an example of the mandatory scenario, along with its potential difficulties. You can find that article here: When Payment is in Doubt: Anesthesia Examines ABNs | Anesthesia Business Consultants (anesthesiallc.com). In this alert, we seek to expand on this topic by reviewing additional rules surrounding the usage of an ABN.
A Series of Services
While this article is primarily focused on ABN usage in connection with an anesthesia practice, we are aware that many anesthesia groups have a chronic pain practice. For such groups, it is important to note a particular rule that may come into play when (a) a pain physician provides a series of treatments over an extended period of weeks or months, and (b) one or more of these treatments will likely be denied due to medical necessity issues.
Let's say that the course of treatment you prescribe for the Medicare patient involves a series of injections, and you believe that either all or a portion of these injections will be denied, you do not need to have the patient sign an ABN for each such injection. Rather, you can issue a single ABN that describes, and thus covers, all the injections in the series that you believe will be denied. In its frequently asked questions (FAQs) describing this circumstance, WPS—the Medicare contractor for several Midwestern states—stated the following:
Q9: Do I need an ABN for every visit if Medicare may not cover it? A9. It is not necessary to fill out a separate Advance Beneficiary Notice (ABN) each time a patient returns for the same treatment. Each service or series of treatments must be documented with the individual date(s), and the patient's signature on the form, along with the narrative description of the procedure. If each service is not listed individually on the ABN or the service is not part of a series, then a separate form is required.
The Medicare contractor for several Western states, Noridian, adds this:
A single ABN is acceptable when it identifies all items/services and duration of period of treatment, no treatment changes have occurred, and services have not been added/deleted. If there are ANY changes, a new ABN is required.
Finally, the Medicare Claims Processing Manual (MCPM), Ch 30, Sec 40.3.1.3, contains the following instructive excerpt:
A previously furnished ABN is acceptable evidence of notice for current items or services if the previous ABN cites similar or reasonably comparable items or services for which denial is expected on the same basis in both the earlier and the later cases. A written denial (on the same basis in both the earlier and the later cases) of payment from a Medicare contractor for a claim for the same or similar items or services received by the beneficiary not more than one year previously is acceptable evidence of notice for current items or services.
So, where the treatments over a period of time (up to 12 months) are the same and all such treatments within that series are expected to be denied, you may issue a universal ABN reflecting the entire series.
Refusal to Sign
Though rare, there may be an occasion where the patient or his/her representative refused to sign the ABN. If they wish to proceed with the service that is expected to be denied by Medicare, the provider is not without options. The provider can either refuse to provide the service or he/she can follow the guidelines found in the following WPS Medicare FAQ:
Q6. What does a provider do if a beneficiary or their representative refused to sign the ABN? A6. The beneficiary cannot refuse to sign an Advance Beneficiary Notice and expect to have his/her financial liability waived. If the beneficiary or his/her representative refuses to sign the advanced written notice, the provider can still bill the beneficiary (for assigned claims only.) The provider needs to document the following items and have them available to WPS if requested:
● Date of refusal to sign
● Who refused to sign (beneficiary, their representative, etc.?)
● Who witnessed the refusal and the signature of the witness
● The services and date of service involved (as they appear on the ABN)
The ABN instruction form published by Medicare provides additional information that our readers may find helpful in this regard. It states: "If the beneficiary cannot or will not make a choice [regarding option 1, 2 or 3], the notice should be annotated, for example: "beneficiary refused to choose an option."
A Change of Mind
It can happen. We do it all the time. As contemplative beings, we retain the prerogative to change our minds—when we can, that is. So, the question is: can the Medicare beneficiary change his or her mind about the option they selected at some point after they have signed the ABN? By way of background, you will recall that the ABN contains three options; and the patient must select one of these. As a reminder, here is a paraphrase of the options:
- I agree to pay for the service, but I want you to submit the claim to Medicare. If they pay the claim, you need to pay me back the appropriate difference.
- I agree to pay for the service, and don't worry about submitting the claim to Medicare.
- I don't want the service.
So, they make their selection, sign the ABN and submit it to the provider; but what if they have second thoughts a day later, for example, and want to change their selection relative to the three options? Can they do this? Well, according to the MCPM, Ch 30, Sec 50, they can indeed. Here is the relevant verbiage under A1 of that section:
If after completing and signing the ABN, a beneficiary changes his/her mind, the notifier should present the previously completed ABN to the beneficiary and request that the beneficiary annotate the original ABN. The annotation must include a clear indication of his/her new option selection along with the beneficiary's signature and date of annotation. In situations where the notifier is unable to present the ABN to the beneficiary in person, the notifier may annotate the form to reflect the beneficiary's new choice and immediately forward a copy of the annotated notice to the beneficiary to sign, date, and return. In both situations, a copy of the annotated ABN should be provided to the beneficiary as soon as possible.
Alright, so, that seems clear enough. But what if the beneficiary changes their mind on the selected option after the service has been provided? You would think that would be a case of "too bad, so sad." However, the above MCPM section continues as follows:
If a related claim has been filed, it should be revised or cancelled if necessary to reflect the beneficiary's new choice.
The above language may be a little vague and open to interpretation; however, we have taken the position that beneficiaries are allowed to change their ABN option selection even where the service has been performed and the claim has been submitted. You will, therefore, need to have the patient annotate the original ABN, as outlined above, if they now choose to bill Medicare. If their new selection is to not bill Medicare, then we would rescind the claim.
In the next few weeks, we will explore ABN options for non-Medicare beneficiaries. For now, if you have questions involving ABNs, please contact your account executive, or info@anesthesiallc.com.