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Background/Statutory Concepts
Some of the confusion over the use of the ABN itself revolves around Medicare ABN guidance which speaks to things referred to as “technical denials” and “medical necessity denials.” With respect to the ABN, the “medical necessity denial” is not the same as the “clinical medical necessity” issue for ambulance (i.e., “other forms of transport are contraindicated” under SSA 1867(s)(1) or 42 CFR 410.40). For ambulance ABN purposes, the concept of a “medical necessity” denial is really a “reasonableness” denial (as outlined under SSA 1862(a)(1)). To other healthcare providers, the concept of “medical necessity” is also addressed in SSA 1862 – it’s only ambulance that seems to have a separate concept of “medical necessity.” Thus, the use of this phrase “medical necessity” globally to all types of healthcare providers in describing the ABN concept (where medical necessity has a separate definition for ambulance) triggers confusion and chaos.
Therefore, where “clinical medical necessity” is not met for an ambulance transport (under SSA 1861(s)(7)), this triggers a “technical denial” (or “statutory denial”) issue – that is, the service is not covered at all by Medicare under the underlying basic statute (or law) related to clinical medical necessity. In these “technical denial” situations, an ambulance entity is not required to issue an ABN before billing the beneficiary. In fact, most ambulance “denials” are rooted in these “technical” denials due to the ambulance transport service not meeting “clinical medical necessity.” Accordingly, an ABN is not required.
By contrast, in the ambulance context, when certain services are not “reasonable and necessary” under SSA 1862(a)(1) the ABN will be applicable. But even then, there are restrictions and limitations. As a reminder, only where it was required to issue an ABN will the failure to do so mean that you cannot bill the beneficiary. If the ABN was not required at all, you can bill the beneficiary (even if an ABN was not issued).
Applicability of the ABN
As mentioned in Part 1, the ABN is a standardized form, which requires some customization by the healthcare provider. Specifically, the form must indicate the specific service that is not covered, and the estimated cost of that service. Providing such information to the patient (in advance of the transport) allows the patient to ultimately decide whether he/she wants to proceed with the service (knowing that Medicare will not cover the ambulance transport).
There are several things to keep in mind regarding the ABN:
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An ABN shall never be used in an “emergency” situation where a patient is under duress and otherwise unable to make decisions about his or her healthcare5.
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An ABN does not have to be used (but can be) for technical denials under SSA 1867(s)(1) or the “coverage requirements” described under 42 CFR 410.40 and 42 CFR 410.41, including things like:
- Clinical medical necessity (other forms of transport being contraindicated)
- Transport to a non-covered destination
- Transport involving excess mileage
- A PCS was not obtained
- Preference or convenience transports
- In order to bill a beneficiary, an ABN must be provided to the beneficiary only in the following situations:
- Transport by air where the transport could have occurred safely and effectively by ground.
- Provide ALS level of service transport where BLS would have been sufficient.
- A transport from a residence to a hospital for a service could be performed more economically at the beneficiary’s home.
- A transport of a SNF patient from the SNF to a hospital (or another SNF) for a service that can be performed more economically at the first SNF.
Think about these four scenarios for a minute. These would all (likely) involve cases where the patient had some say in choosing the mode (or level) of service or specifically wanted to be moved (i.e., a “preference transport”). The patient specifically chose the air transport where ground was available. The patient specifically chose ALS services when only BLS services were clinically required. The patient chose to be transferred from home or SNF to hospital to receive services that could have been provided at the origin location. These are the only situations where an ABN must be issued to the patient, in advance of the transport, to allow the ambulance service to bill the patient. If the ABN was not given in one of these four cases ,then the service is not payable by Medicare, and the patient cannot be billed either. Similarly, if the ABN was given but was left incomplete, not returned signed, or was not a valid form, then the ABN will be considered invalid, or otherwise treated as though it were never issued. It is imperative that the ABN - when required in order to bill a patient - be complete and accurate in all aspects (including that the most current ABN version is used).
Who Needs to Know About These ABN Requirements?
Interestingly, the ABN is something that impacts call intake/ dispatch, crew documentation, and billing. Because the ABN is something that must be issued to the patient before the transport, it can (ideally) be given before the crew even arrives (i.e., by dispatch coordinating with the sending facility). Similarly, the crew must be aware of this, to be able to either ensure the ABN was given or to obtain a signed copy of the ABN back from the patient. Finally, deciding how the claim can be billed (and to whom) is an important billing/coding decision. Therefore, all three of these
departments play a role in the ABN and therefore all three must be aware of its relevance, importance, application, when it is needed (and when it’s not) and why.
From the billing perspective, there are several additional modifiers that are used when the ABN is involved. For those cases where an ABN is required and was provided to the patient, the GA secondary modifier advises Medicare that it’s a mandatory use ABN situation (from the list of 4 scenarios above) and the ABN was, indeed, executed. The GA triggers a Medicare denial but holds the patient financially responsible. In cases where an ABN was required but not issued, then the GZ modifier is used. This tells Medicare the ABN should have been issued, but wasn’t and triggers both a Medicare denial and a “patient not responsible” denial on the EOB/RA. This means that the ambulance service cannot be billed at all. For the optional/permissive use situations of the ABN, either GX or GY modifiers can be used. Both modifiers indicate the service is not covered and trigger patient financial liability to appear on the EOB/RA.
Final Thoughts
The Assignment of Benefits (signature authorization or “AOB”) language should already contain some language that notifies the patient of potential personal financial liability for non-covered services (other than those four cases where the ABN would be required). This AOB language, however, does not replace the ABN, and the ABN language cannot simply be inserted into the AOB paragraph. The ABN must exist on a standalone (Medicare-specific) form and only be issued when appropriate. Finally, please keep in mind that some state Medicaid Programs have ABN-type forms are used to shift liability to a Medicaid beneficiary for certain Medicaid non-covered services. In most cases the ABN will not serve as a substitute for those state-specific forms (and vice versa). Daniel Pedersen, Esq.
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