CMS-R-131 COmments #18 thru #22

American Academy of Family Physicians
April 13,2007
Center for Medicare & Medicaid Services
Office of Strategic
Operations and Regulatory Affairs
Division of Regulations Development-C
Attention: Bonnie L Harkless
Room C4-26-05
7500 Security Boulevard
Baltimore, Maryland 2 1244-1850
Dear Ms. Harkless,
I am writing on behalf of the American Academy of Family Physicians (AAFP), which
represents nearly 94,000 family physicians and medical students nationwide. Specifically, I
am writing to offer our comments in response to the request for information on the Advanced
Beneficiary Notice of Noncoverage.
Burden of ABN
We agree that the estimated burden to physicians should be updated in terms of the growth of
Medicare and an increased estimate of the time spent in provision and completion of AE3N
forms. However, the total cost per notifier of $69.39 does not agree with the statistics
provided and significantly underestimates the burden. If the 1.3 million notifiers will deliver
40,302,506 or 31.7 AEiN's each per year as indicated in number 2 of the supporting statement
and the estimated total cost of delivering the AEiN's is $326,255,502.00, the burden would be
$256.62 per notifier.
Besides not taking into account the cost of printing the AE3N forms as noted under number 13
of the supporting statement, this estimate does not include the staff time spent in reviewing
local and national coverage determinations to verify the need for an ABN. Resources are also
required to scan or file the paper document into the patient record. Accounting for these
additional burdens, the estimated burden for 31 forms per year is actually closer to $275.00
based on an additional 3 minutes of staff time per ABN.
We also feel that the estimated 31.7 ABN's per notifier is seriously underestimated for most
family physicians. While some of the notifiem included in the 1.3 million may seldom
deliver B N ' s due to the nature of the services provided, for those who provide services with
frequency limitations or other services for which an AEiN is routinely necessary, the number
of ABN's delivered will be higher by 50x to 150x. As Chapter 30, Section 40.3.6.4C of the
Medicare Claims Processing Manual indicates, virtually all beneficiaries receiving frequency
limited items and services may be at risk of having their claims denied in those
circumstances. We would ask that CMS consider again the calculation of the estimated
number of ABN's per notifier based on the consideration of whether certain types of notifiers
would be known to have higher utilization.
To aid physicians who continue to provide care to the growing number of Medicare
beneficiaries, we urge CMS to seek ways to lessen the administrativeburdens associated with

President
Hick D. Kellerman, MD
Wicl~ita.
Kansas
President-elect
JamesD. King, MD
Selrner, Tennessee
Board Chair
Larry S.Fields, MD
Flatiuoods, Kennicky
Speaker
Thomas I. Weida, MD
Lititz, Pennsylvania
Vice Speaker
Leah Raye Mabry, %ID
San Antonio. Texas
Executive Vice President
Douglas E. Henley, MD
Leawood, Kansas
Directors
Judith Chamberlain, MD
Brurzswick.Maine
Ted Epperly, MD
Boise, Iduho
Virgilio Licona. MD
Brighton, Colorado
Brad Fedderly, MD
Fox Point, Wisconsin
Lori Heim, MD
Lakeujood, Washington
Roben Pallay, MD
Hillsborougll, Newlersey
David W. Avery, MD
Vienna,West Virgirtia
James Dearing, DO
Phoenix,Arizona
Roland A. Goertz, MD
Waco, Texas
Marin Granholm, MD
(New Physician Member)
Bethel, Alaska
Daniel Lewis, MU
(Resident Member)
Greenu~ood,South Carolirza
JenniferHyer
(Student Member)
Portland, Orego~z

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Letter to CMS
April 13,2007
Page 2
Medicare wherever possible, including avoiding overuse of local and national coverage decisions.
Each local and national coverage decision requires substantial administrative work to review, track and
integrate into practice work flow. Local coverage decisions should be discouraged for purposes other
than delineation of the evidence-based appropriate use of services which are new or for which fiequent
utilization outside of appropriate indications or frequencies have been identified.
Use of a Single ABN Form
While we appreciate the efficiencies which may be gained by using one form for both general and
laboratory notifications, the current laboratory ABN form directs the patient to inform the ordering
physician when they choose not to undergo testing. This instruction is pertinent to maintaining the
physician-patient relationship and continuity of care. With Medicare patients often seeing multiple
physicians in different practices, it is especially important that the patient contact their primary care
physician when faced with a decision to forego recommended testing or pay out-of-pocket. This may
become even more critical as Medicare moves toward value-based purchasing of physician services (i.e.,
pay-for-performance).
Therefore, if the one revised ABN is to be used for all non-coverage notifications, we recommend that
Option 1 of Section G be revised as indicated in italic font below:
1. Do not provide me with anything listed above. With no care provided, there is no billing. I
understand that I cannot a~pealto Medicare when choosing this option. I agree to contact my
primary care physician to discuss this decision and potential alternative care plans.
Use of ABN for Excluded Services
We also note that the instructions provided for the new ABN form state, 'This version of the ABN must
also be used in place of the Notice of Exclusion fiom Medicare Benefits (NEMB) to provide voluntarily
notification of financial liability." We feel this is inappropriate for several reasons.
6 Neither the current nor draft ABN forms include the specific information regarding services which are
excluded under Medicare Part B as listed on the NEMB.

Where a physician chooses to voluntarily use a written notification to ensure a Medicare beneficiary
understands their financial responsibility for services excluded fiom Part B benefits, it is inappropriate for
CMS to mandate the type of notice to be used for this purpose.
6

A physician is under no obligation to file a claim for services which are never covered under Part B
unless the patient has other insurance coverage which may provide benefits for the service. As the
NEMB does not reference submission of a claim for the purpose of getting a Medicare determination, it is
more appropriate to voluntary notification of financial liability.
6

Letter to CMS
April 13,2007
Page 2
Therefore, we request that this instruction be removed or edited to indicate the ABN
also be used in
place of the Notice of Exclusion from Medicare Benefits (NEMB) to provide voluntarily notification of
financial liability.
Patient's Right to Medicare Billing
We agree with the addition of the patient's right to have a potentially non-covered service billed to
Medicare for determination of benefits. However, the notice as provided on the draft form may cause
confusion as it is listed above the three options, only one of which provides for billing to Medicare.
Based on this, we would again suggest revision as noted in italic font:

We must bill Medicare when you ask us to by choosing Option 3 below. We may help you with
billing other insurance if you choose Option 2 or 3 below, though Medicare cannot require us to do
this.
Patient Signature
For the sake of clarity, the field for patient signature on the revised ABN form should be further defined
to indicate the signature should be that of the patient or the patient's representative. Where the patient is
not able to write their name and is not accompanied by a representative, it should be clarified in the
instructions that a witness to their mark (X) is satisfactory.
Thank you for the opportunity to comment on the proposed changes to the ABN form. We appreciate the
opportunity to provide input on the administration of the Medicare program and look forward to
continued communications.
Sincerely,

Lany Fields, M.D., FAAFP
Board Chair

Professional
Review Network, Inc.
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April 13,
CMS, Office of Strategic Operations and Regulatory Affairs
Division of Regulations Development - C
Attention: Bonnie L. Harkless
Room C4-26-05
7500 Security Blvd.
Baltimore, Maryland 21244-1850
Re: Revised ABN, Form No. CMS-R-131 and public comment period-

Dear Ms. Harkless,
With over 25 years of experience with the Long Term Care Industry and working
to assure that beneficiaries receive proper and timely notification of Medicare non
coverage, we recommend the following:
Delete: "or other insurance" in the opening paragraph ".......but it is likely that you
or other insurance will have to pay". Delete item (H).

The reasons for this recommendation are:
1.) another insurance rarely, if ever, pavs for an item or service when not
covered under the Medicare program.
2.) The term "or other insurance" is misleading to the beneficiary, implying that
there is a significant likelihood that should the beneficiary have another
insurance, that insurance may pay.
Thank you for the opportunity to comment on this very important notice and
issue.
Resp tfully,

&
4
-

~ a r l e n eS. Almand, RN, Director of Utilization Management

(A) SupplierIProvider:

.

(B) Beneficiary Name:

(C) Identification Number:

'

\I

Advance Beneficiary Notice of Noncoverage (ABN)
NOTE: If Medicare does not pay for things listed below, you may have to pay.
We think Medicare will not pay for the "Item(s)/Service(s)" listed below because of certain rules for coverage
described under "Reason". You still can receive this care, since you or your health care provider may have good
reason to think you need it, but it is likely you or other insurance will have to pay. We have estimated about how
much you may have to pay under "Estimated Cost" to help you decide whether or not to receive the care listed.

Medicare wants us to be sure you make an informed choice. Read this whole notice, which explains our
o inion that Medicare won't pay. This is not an official Medicare decision. Ask us for more explanation
i you need it. For uestions on this notice or on Medicare billing, you can also call 1-800-MEDICARE
(1-800-633-4227A~:1-877-486-2048).

P

You need to make a choice about receiving the care listed above. You must choose only one of the three
options below. We cannot choose for you.
We must bill Medicare when you ask us to. We may help ou with billing other insurance if you choose
Option 2 or 3 below, though Medicare cannot require us to o this.

6'

1.

Do not provide me with anything listed above. With no care provided, there is no billing.
I understand that I cannot appeal to Medicare when choosing this option.

2.

Provide me with what is listed above. I do not want Medicare billed. I agree to be responsible
for payment. I understand that I cannot appeal to Medicare when choosing this option.

3.

Provide me with what is listed above. I want you to bill Medicare for an official decision on
payment. You can ask for payment now that will be refunded if Medicare pays. I understand
that if Medicare does not pay, I can appeal that decision.

(H) Other insurance to consider for billing:
Your signature below means that you have received this notice and understand it. You will also get a copy.

1

(I) Signature:

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OMB Approval No. 0938-0566

Form No. CMS-R-131

(June 2007)

Medicare
April 11,2007

b

1

CMS
Office of Strategic Operations and Regulatory Affairs
Division of Regulations Development - C
Attention: Bonnie L. Harkless
Room C4-26-05
7500 Security Blvd.
Baltimore, Maryland 21244-1 850
Dear Ms. Harkless
The Centers for Medicare & Medicaid Services (CMS) published a notice in the Febniay 23,
2007 Federal Register on page 8 167 indicating CMS is combining CMS-R- 131-G with the CMSR-13 1-L. These are the Advanced Beneficiary Notice (ABN) forms. Medicare designates form
CMS-R-13 1-G for general use and form CMS-R- 131-L is specific to clinical laboratory services.
Providers would only use one of these forms if the designated service were an otherwise covered
service by Medicare but in this instance, the provider believes the patient's specific situation
does not meet Medicare requirements. The ABN allows the patient to make an informed
consumer decision whether or not to receive the items or services when notified he or she may be
responsible for payment.

In an e-mail notification through a Congressional ListServ, we received a draft of the revised
form. CMS indicated they would consider public comments as part of finalizing the revised
ABN. I am a Senior Analyst with the Provider Outreach & Education department of Wisconsin
Physicians Service (WPS) Medicare. We process claims for Wisconsin, Illinois, Michigan, and
Minnesota. I believe the revised version of the form will cause additional confusion within the
provider and beneficiary community. Here are my comments:
The CMS Internet Only Manual (IOM) 100-04, Claims Processing, Chapter 30, Financial
Liability Protections, Section 20.1 provides detailed information on when it is and is not
appropriate to provide this fonn to the patient. Providing this fonn to the patient for items or
services a provider expects Medicare to deny equates to patient responsibility for the charges.
Providers are often confused between the differences in a denial based on medical necessity and
a denial for non-coverage.
1. The title of the form indicates "non-coverage." This title is inaccurate. This language is too
close to the Notice of Exclusion of Medicare Benefits (NEMB) (CMS-20007). The services
described on the ABN are covered services under Medicare. In the patient's specific
circumstances, the provider is anticipating denial based on medical necessity, not a statutory or
technical coverage issue.
2. There is a statement on the form "We must bill Medicare when you ask us to." Providers are
required to submit claims to Medicare for covered services per Sec. 1848 (g) (4) of the Social

Wisconsin Physicians Service Insurance Corporation serving as a CMS contracted carrier
P.O. Box 1787 Madison. WI 53701 Phone 608-221-4711

Jk?

Security Act unless Medicare never covers the services based on categorical or technical denial
The wordingon the'revised form allows providers to request payment from the patient and not
submit the claim to Medicare. The non-submission of the claim precludes the patient from
receiving a Medicare denial indicating patient responsibility.

An example of a categorical or technical denial not requiring submission would be a podiatrist
providing foot care services where the patient does not have either the covered diagnosis or
indications needed for payment. The podiatrist may use the NEMB (CMS 20007) and is not
required to submit the claim to Medicare. However, a podiatrist is required to submit claims for
a patient who meets the categorical and technical requirements, but Medicare will probably deny
the service based on frequency. The provider may provide the ABN and must submit the claim.
If we deny payment, then the patient is responsible.
3. Section G, Option 2 as listed on the form is the same type of concern as listed in statement #2
above. The provider should bill Medicare for the service and if Medicare denies the service, the
patient should have the right to request an appeal. Unscrupulous providers could use this option
to require patient payment for items or services that are never the patient's responsibility such as
items considered part of a global surgery package, or the Correct Coding Initiative (CCI), among
others.
4. Section G, Option 3 is going to cause the providers a problem. Providers choosing to accept
Medicare assignment on all claims are Participating (PAR.) A PAR provider collecting an
amount from the patient when Medicare subsequently allows the service would violate the PAR
agreement. The patient only becomes responsible for payment if Medicare denies the charges
under the IOM reference listed above. A provider giving the patient an acceptable ABN would
add the GA modifier to the service when submitted. The definition of GA modifier is "Waiver
of liability statement on file." Should Medicare allow the service, the ABN and GA modifier are
no longer relevant. However, if Medicare denies the service, then the GA modifier to indicate
the provider has a valid ABN on file, would cause a denial message providing for patient
responsibility. If the GA modifier was not on the line of service, our denial message would
indicate the patient is not responsible for payment.
Thank you for the opportunity to provide comments on this proposed revision. Should you have
any questions on the items I have listed above, please do not hesitate to contact me.
Sincerely,

Ellen Berra
Senior Analyst
Provider Outreach & Education
Wisconsin Physicians Service (WPS) Medicare
(618) 998-5247
ellen.berra.(c$wpsic.com

\

OSF"

HEALTHCARE
MANAGEMENT

AND CONSULTING

A division o f O S F Saint Francis, Inc.

CMS, Office of Strategic Operations and Regulatory Affairs,
Division of Regulations Development - C
Attention: Bonnie L. Harkless
Room C4-26-05,
7500 Security Blvd.
Baltimore, Maryland 21244-1850

April 11, 2007

To Whom It May Concern:
SUBJECT CMS-R-131 NEW 07 ABN DRAFT
We have the following comments/questions to the proposed revisions to the General ABN form:
We prefer (C) Identification Number: to remain as it is on the current General ABN form as "Ibledicare #
(HICN)"; reason: this is the terminology that has been ingrained in us to use, switching it will cause
confusion and unnecessary re-education.
The current General ABN form allows the reason for non-coverage to be customized. Can section (E)
Reason: be customized on the new version?
The current General ABN form directs that we only "must" give a cost estimate if the beneficiary asks f q it.
The lab that performs a lab test must bill Medicare directly. If the Lab ABN and General ABN are combined
and the provider who orders the lab test, obtains the specimen, and presents the ABN to the beneficiary is
not the billing entity, will the new version of the ABN be invalid if section (F) Estimated Cost: is not
completed?
The center of the new ABN form has three bulleted items. The first bullet tells the patient to "Read this
whole notice, which explains our opinion that Medicare won't pay." The only part of the document that
explains "our opinion" is the box above this statement. This is confusing. Would you consider moving this
to the top of the page? This first bullet also contains Medicare's phone number for questions. This
information would be less confusing for the patient if it was at the bottom of the form.
The third bulleted item may pose a problem. We usually cannot get a secondary insurance to process a
claim without first getting a denial from Medicare; therefore the statement "We may help you with billing
other insurance if you choose Option 2 or 3 below.. ." is misleading to include Option 2.
The word privacy is misspelled at the bottom of the form it says "Privay Notice".
Thank you for your kind attention to our comments.
Respectfully,

Sheri Vermeulen, CPC
OSF Saint Francis, Inc.

1619 W. Altorfer Drive, Peoria, Illinois 61615 Phone (309) 683-6570 Fax (309) 683-6580

The Sisters of the Third Order of St. Froncis

WAUKESHA
HEALTH
CARE
ProHealfh Care

N 17 W24 100 Riverwood Drive
Suite 250
Waukesha, WI 53188
Tel: 262.650.4100
Fax: 262.544.0270
www.prohealthcare.org

April 11,2007
CMS, Office of Strategic Operations and Regulatory Affairs,
Division of Regulations Development - C
Attn: Bonnie L. Harkless
Room C4-26-05
Baltimore, MD 2 1244-1850

After reviewing the proposed changes to the ABN, we have a
question as to what the purpose of" (H) Other insurance to
consider for billing:" is? Why is this being put on the ABN?
Thank you for your consideration.
Sincerely,

Denise A. Vollbrecht, CPC, CCP
Coding Compliance Auditor
Waukesha Healthcare