60 Day Public Comment Response

CMS Response to Public Comments Received for CMS-2019-0121

The Centers for Medicare and Medicaid Services (CMS) received several comments from
the public for CMS-2019-0121. This is the reconciliation of the comment.
Comment: The Medicare Contractors require the printed name and relationship if
someone other than the Medicare Beneficiary signs the CMS-R-131 Advance Beneficiary
Notice of Non-coverage (ABN) form. Can that information be added to the form that is
released for 2020? This would prevent a lot of ABN forms from being considered invalid
by the Medicare Contractors and would make the expectations clear to the authorized
representative who is signing on behalf of the Medicare Beneficiary.
Response: CMS appreciates the suggestion. At this time, we recommend that
healthcare providers and suppliers utilize the Blank H (Additional Information)
section to include the authorized representative’s information. Also, we recommend
that the term “representative” be used next to the signature of the representative so
it is clear whom is signing the form.
Comment: Under Medicare, suppliers are forbidden from instructing beneficiaries on
how to fill out an ABN form and the beneficiary’s decision to fill out an ABN form is
voluntary. Attached is the current version of the ABN form instructions that states the
ABN completion process is voluntary by the beneficiaries. In addition, the DME MACs
have consistently educated the supplier community to never instruct beneficiaries on how
to fill out the ABN form.
This new direction in the instructions requiring suppliers to instruct dually enrolled
patients to check Option 1 appears to go against Medicare ABN previous direction.
AAHomecare requests CMS provide clarity and consistency on the supplier’s role in the
process of completing an ABN form. It would be inconsistent for supplier to
‘sometimes’ instruct beneficiaries on how to complete the form.
Response: Thank you for your comment. While CMS does reiterate that
beneficiaries must not be instructed to select any options, this specific direction is
only used for those beneficiaries who are enrolled in both Medicare and Medicaid.
This instruction comes from direct statutory authority under Title 18 of the Social
Security Act. CMS has also edited the language on the ABN form instructions to
clarify the conflicting language.
Comment: HCA is concerned that patients receiving services from HHAs that operate in
New York State (NYS) under a Third Party Liability (TPL) program may incorrectly
choose Option Box One unless further guidance is included in the instructions.
Under the TPL, HHAs that believe a dual eligible patient does not meet Medicare home
health eligibility criteria (i.e. is not homebound or does not require skilled care) can bill
Medicaid for services without billing Medicare first. Then a third party contractor for the
New York State Department of Health (DOH), Office of Medicaid Inspector General
(OMIG) – the University of Massachusetts Medical School – reviews such cases

retrospectively and determines if a claim should be submitted to Medicare. If the
contractor decides that a claim should be submitted, HHAs are then instructed and
required to demand bill Medicare.
Historically, HHAs in NYS have relied on the following language from the Medicare
Claims Processing Manual, Chapter 30 – Financial Liability Protections (page 69) and
the TPL program to instruct dual eligible patients to select Option Box 2. HCA
recommends that CMS incorporate some of this language from the Medicare Claims
Processing Manual into the ABN instructions so that dual eligible patients are instructed
to choose Option Box 2 in the affected states.
Conflicting Language
The language in the proposed instructions on page 5 which states that “Dually Eligible
beneficiaries must be instructed to check Option Box 1 on the ABN in order for a claim
to be submitted for Medicare adjudication” seem to conflict with the following statement
on page 6 of the proposed instructions:
The beneficiary or his or her representative must choose only one of the three options
listed in Blank (G). Under no circumstances can the notifier decide for the beneficiary
which of the 3 checkboxes to select. Pre-selection of an option by the notifier invalidates
the notice.
CMS may want to consider adding language to this section of the proposed instructions
on page 6 to clarify that this may not apply to dual eligible cases as explained on page 5
of the instructions.
Unclear Language
Lastly, on page 5 of the proposed instructions, the second bullet is unclear and we
suggest that the word “with” be replaced with “has”:
 If the beneficiary with has full Medicaid coverage and Medicaid denies the claim (or
will not pay because the provider does not participate in Medicaid), the ABN could allow
the provider to shift financial liability to the beneficiary per Medicare policy, subject to
any state laws that limit beneficiary liability.
Response: Thank you for your comment. CMS is looking into your concern
regarding the HHAs of NY and other TPL program states and are open to
providing specific guidance to these states as needed. CMS has edited the language
on the ABN form instructions to clarify the conflicting and unclear language.
Comment:
Additional Guidance for Dual Eligibles and QMBs
We welcome the additional special guidance in the form instructions for dual eligibles
and commend CMS for including guidance specific to dual eligibles in this Paperwork

Reduction Act submission. We frequently hear from advocates that ABNs can be
confusing for dual eligibles, particularly given the federal rules prohibiting the billing of
dual eligibles for Medicare Part A and B covered services.1 This additional language
helps to clarify for providers who work with dual eligibles that they cannot collect for
covered services and explicitly delineates the limited circumstances under which such
payment is appropriate. We also appreciate the inclusion of recognizing potential
protections in state law as well. Despite increased attempts at outreach and education
from CMS and advocacy organizations, we find that some Medicare providers remain
confused or unaware of these billing protections, so this additional language serves as yet
another important reminder to providers about the QMB billing rules.
Ensuring ABNs Are Used Appropriately
CMS has a responsibility to make clear under what situations ABNs are to be issued and
to prevent providers from abusing the form. We were surprised to find that the form
instructions do not remind providers that under most circumstances, ABNs are not to be
issued on a routine basis as explained in the Medicare Learning Network (MLN) on
Medicare Advance Written Notices of Noncoverage, ICN 006266 (October 2018). We
believe this MLN contains helpful reminders about both the frequency of and
prohibitions on ABN issuance that are important to include in the form instructions.
Ensuring Beneficiaries Understand the ABN
ABNs are only useful when beneficiaries truly understand their choices and the potential
consequences of accepting a service that may be denied under Medicare. Accordingly,
we ask CMS to ensure that ABNs, as standard documents that affect beneficiary payment
responsibilities, translate the form to the 17 languages in which the Social Security
Administration routinely makes materials available and include guidance to providers
that reminds them of their obligation to ensure access to interpreter services when
appropriate. We frequently encounter situations where ABNs are invalidated because an
English ABN was given to an older adult with limited English proficiency without any
interpretation.
Similarly, under the section “Completing the Notice,” the instructions direct providers to
use 12-point font, but in our experience, older adults find 14 and 16-point font more
legible, so we encourage CMS to direct providers to use a font size that older adults will
not strain to comprehend.
Response: CMS appreciates your comments regarding the additional language
added for the dual eligible beneficiaries and QMBs. Thank you for your comments
regarding adding language from the MLN into the ABN form instructions. CMS
will consider this addition in the future. Please note that this language may already
be found in the Medicare Claims Processing Manual located at:
https://www.cms.gov/Regulations-andGuidance/Guidance/Manuals/Downloads/clm104c30.pdf

CMS instructs providers, suppliers, and beneficiaries to contact 1-800-Medicare or
email [email protected] for alternative formats of the form. CMS
also provides our forms in large print format. These forms may be located on the
ABN website:
https://www.cms.gov/Medicare/Medicare-General-Information/BNI/ABN.html
Comment: We strongly encourage CMS to expand the current Medicare Fee-for-Service
(FFS) ABN to Medicare Advantage (MA) to ensure beneficiaries are provided the same
financial protections. Currently, when an MA beneficiary has a qualifying Out-ofNetwork (OON) event, but services the provider delivers are not medically necessary
under FFS rules, the provider is able to bill the beneficiary directly for the cost of the
service.
Response: Thank you for your comment. At this time, the statutory authority for
the ABN is only applicable to Medicare FFS beneficiaries. CMS will take your
comment into consideration.