CMS-R-131 Comments #23 thru #26

Centers 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 21244-1850
RE:

Advance Beneficiary Notice of Noncoverage (ABN);
72 Federal Register 8167, February 23, 2007

Ms. Harkless:
Thank you for the opportunity to comment on the proposed revision to the
Advance Beneficiary Notice (ABN), which providers ask Medicare beneficiaries to
sign when the provider believes that Medicare will not cover a proposed
treatment or service.
We appreciate the goal of more user friendly language in the proposed revision,
and can see merit in having one ABN form that incorporates physician-ordered
laboratory tests into the General Use ABN. We also agree that the 1-800MEDICARE number, information about the beneficiary's right to demand that
Medicare be billed, and providing a space for other insurance information are
useful additions to the form.
However, we urge you to provide more clarity and balance in the sentence
informing beneficiaries of their payment options when they choose to receive a
service listed on an ABN. Rather than state that "You can ask for payment now
that will be refunded i f Medicare pays," as suggested in the proposed form, it
should instead state:
"I understand that I can either wait to see whether Medicare will cover this
service before I make payment, or make payment now that will be
refunded if Medicare pays."

Also, in the introductory paragraph, it would be better to state that "we believe,
rather than "it is likelyJJ
that your or other insurance will have to pay, since
Medicare coverage determinations are not always clear in advance.

"

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Page 2
Prior Authorization Rights
Finally, we are concerned that this ABN revision does not inform beneficiaries of
their rights under Section 938 of the Medicare Modernization Act. This provision
allows physicians and beneficiaries to request a prior determination of coverage
for certain physician services. The statute specifically requires the Secretary to
establish mechar~ismsfor such prior determinations not later than 18 months
after the date of enactment. However, it has been more than 3 years since
enactment and there is still no final rule, and no proposal to explain this right to
beneficiaries when they are asked to sign an ABN.
We urge you to act expeditiously to meet your statutory obligation by issuing a
final rule implementing Section 938. The final rule should adopt changes to the
proposed rule suggested in public comments filed by the American Academy of
Family Physicians. Specifically, the pool of services on which prior authorization
can be sought should include any service or situation in which coverage is
unclear, as local and national coverage policies are often ambiguous and not
generally known by beneficiaries. Also, Medicare contractors should be required
to process prior deterrr~inationrequests as quickly as possible, not merely within
45 days.
Provisions of that final rule should then be incorporated into this revised ABN so
that beneficiaries are fully and clearly informed about how to exercise this
important right to prior determination when they are asked to sign an ABN.
Thank you for considering our comments. If you have any questions please feel
free to contact Paul Cotton on our Federal Affairs staff at (202) 434-3778.
Sincerely,

David Certner
Legislative Counsel and Legislative Policy Director
Government Relations and Advocacy

SAINT BARNABAS

@\#

3: HEALTH CARE SYSTEM
Saint Barnabas Hospice and
Palliative Care Center
RONALD J. DEL MAURO

YEARS OF
EXCELLENCE

LORRAINE SCIARA, CHE

Pres~dentand Ch~efExecuhve Ofhcer
Salnt Bamabas Health Care System

Execuhve director

CMS
Office of Strategic Operations and Regulatory Affairs
Division of Regulations Development--C
Attention: Bonnie L Harkless
Room C4-2605
7500 Security Boulevard
Baltimore, Maryland 21244-1850
Re: ABN for hospice patients
Dear Ms. Harkless,
According to the MLN Matters: MM5117, there are three instances when an ABN is
appropriate for hospice.
1. Ineligibility because the beneficiary is not "terminally ill"...
2.

... Physicians' services were not reasonable and necessary...

3. The level of hospice care is determined not reasonable or medically necessary...
Per PM Transmittal AB-02-168, issuing an ABN also requires the hospice to submit a
claim using occurrence code 32 on the UB 92.
I have difficulty reconciling the direction to issue an ABN and billing Medicare when the
hospice team has already determined that a patient no longer meets criteria. In fact in
the FAQs the following appears:
Q. "if the medical director does not re-certify the patient for hospice under Medicare
(patient has no other insurance) why would we need to issue and ABN?
A. You would not need an ABN.
Therefore, it is unclear why MLN Matters states that (1) ineligibility because the
beneficiary is not "terminally ill" requires an ABN. I apply the same logic to (3) above. If
the hospice team determines that the level of care is no longer appropriate how can the
hospice bill Medicare?
Although the hospice must not@ any beneficiary of the potential liability for non-covered
services the ABN does not appear to be the appropriate tool since it implies that the
hospice will be billing for services it already determined to be inappropriate.
I look forward to your advice.

Sincerely,
Patricia Kelley
irector of Education and Quality

4B

Joint Commission
on Accreditation of HeaHhctre Organizations

95 OLD SHORT HILLS ROAD

WEST ORANGE, NJ 07052

(973) 322-4800 / FAX (973) 322-4795

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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 2 1244-1850
Re: ABN Proposed Changes (CMS-R- 131)
To Whom It May Concern:
I appreciate CMS's efforts in simplifying two forms into one. Overall, the proposed ABN is fine. 1 feel some of the wording is a bit
elementary and awkward. Other than the misspelling of "privacy" at the bottom, my only concern would be the possible
misconception under option 3 that indicates payment will be refunded if Medicare pays. If there is a deductible applied or co-pay due
and the patient does not have a secondary insurance, the patient may not be refunded in full.
Please contact me if you have any questions.

Thank you.

Government Supervisor
704-367-7884 phone
704-367-5722 fax

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MAYO

April 18,2007

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200 First Street SW
Rochester, Minnesota 55905
507-284-2511

Centers for Medicare and 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:
We appreciate the opportunity to comment on the proposed Advanced Beneficiary Notice of
Noncoverage (ABIq) that was referenced in February 23,2007 Federal Register. We offer the
following comments for your consideration.
VERBIAGE
We feel that some modifications to the proposed verbiage should be made. Please refer to the
following:
The NOTE section could be changed to state "NOTE: You need to make a choice about
receiving this procedure(s) or test(s) " We believe this sounds more patient-hendly.
The third sentence under the "NOTE" section should be changed to state "You can still
receive this care, since you or your health care provider have established that there is a
medical reason for ordering this test"
In the bulleted section in the middle of the form we are requesting that the information
following the section for "Items/Services" be simplified to state "For questions call 1800-MEDICARE" and located at the end of the form.
The statement in the first bullet should be changed to state "This is an officialMedicare
document" vs. "This is not an official Medicare decision" This would assist the patient in
understanding that this an official document from CMS and not a provider designed
document.
The second bullet should be simplified to give the patient instruction on choosing ONE
option and signing and dating the form.
In the patient option section, the second sentence of the third option currently states "You
can ask for payment now" we request that this is changed to "Provider/Supplier can ask
for payment now ",to avoid confusion.

Centers for Medicare and Medicaid Services
Page 2

Patient option # 2 conflicts with Medicare Claims Processing Manual Chapter 1,60.4.1
which states "Must submit all ABN-related services as covered charges" and should be
removed as an option.
CLARIFICATION
We respectfully request clarification of the following:
Medicare Claims Processing Manual, Chapter 30,40.3.1.1 states that at least a 12 point
font should be used; given the additional information and the items/services that may be
listed on the form, this may not be feasible. Would a provider be allowed to change the
font size in less significant areas of the form?
The header section is significantly smaller; can pre-printed labels be utilized in this
section?
In the "Reason" section, it does not specify if the reason should state non coverage due to
the diagnosis or the actual testJprocedure. Can there be section or checkbox on the form
that allows the provider to specify?
We are also seeking guidance when multiple tests/procedures are needed and the patient
would like to have one test performed but not the others.
REMARKS
We believe that if the patient option area remains as drafted this would create operational issues
for fiont desk personnel. It would require cash flow in clinical designated areas where the ABN
is most likely obtained.
If this ABN truly requires 7 minutes on average to complete, we feel this will cause significant
time delays for the check-in process. Previous measurements show that this process currently
takes less than 3 minutes.
Thank you for the opportunity to comment on the proposed Advanced Beneficiary Notice of
Noncoverage. Please feel free to contact either Desiree Rarnirez (904) 953-0579 or me at (507)
284-4627, if you have any questions.
Very truly yours,
Ronald W. Grousky
Director, Medicare strategy Unit
Mayo Clinic