Out With the Old, in With the New ABN Form

The Advance Beneficiary Notice (ABN) form is required under certain circumstances, and when required, must be given in its CMS-approved format, with very few changes allowed. That format is subject to review and revision at least every 3 years. The current version sunsets on June 30, 2023, and a new version is available here: https://www.cms.gov/Medicare/Medicare-General-Information/BNI 

The instructions for this new form, including the changes being made to it and how to fill in each of the sections can be found here: https://www.cms.gov/medicare/medicare-general-information/bni/downloads/abn-form-instructions.pdf 

This new version should be used for services beginning on and after June 30, 2023. The good news is that there were no substantive changes to the form, only some changes to the non-discrimination language near the bottom, so transitioning to the new form should not be a significant undertaking or require any new training for your staff, but it does require some attention to detail. The ABN form has a few sections that do allow for customization and have some mandatory fill-in-the-blanks.  If you have a version of the current ABN where you have filled in those blanks with the types of services that you wish to give your patients advance notice that their insurance may not cover, then you should be able to take the language from those sections and move it over onto the new version of the form.

The Right Circumstances for ABN

While the transition to the new form may be easy, now is also a good time to discuss something that is not quite so simple: when and how do you use the ABN? There are some circumstances where you must use the ABN and others where you can use the ABN if you wish, we will discuss both.   

The “must use” scenarios for ambulance service suppliers are relatively rare.  They only occur in non-emergency situations, and then only when the care requested is not “reasonable”.  This happens when a patient can be provided care where they are more economically than taking the patient to that care, for example, when the patient is in a SNF and care could have been provided there but the patient (or SNF) requests to be transported to a hospital (again, this would not be for an emergency condition).  In that situation, it is required that you advise the patient in advance that Medicare will not pay for that trip.  Similarly, if a patient or their representative asks to be transported by air when a ground ambulance would have been safe, or when they ask for ALS-level transport when BLS would have been safe, then you have to give advance notice of non-coverage.   

It is especially important to follow CMS’ instructions for filling out the ABN form when a “must use” situation arises. CMS will not honor improperly completed or delivered ABNs and the patient will be deemed not liable. 

There are many more “may use” situations, but why you would want to give advance notice of non-coverage if you are not required to?  Good question.  And the answer is that patients who do not understand their insurance coverage are less likely to pay the balance due.  They think their insurance should pay, they think that they have been misled, they feel like the ambulance service has made a mistake, or they just want an excuse.  In any event, giving them advance notice that their claim may not be covered, and getting them to understand that, can help when later trying to collect payment.

"May Use" Situations

So, let’s look at the circumstances where you may want to use the ABN even though you are not required to.  The “may use” situations include those where the service is never covered under Medicare. Again, these situations are limited to non-emergency scenarios—never in an emergency. Common situations include transports that are not medically necessary, loaded mileage beyond the closest appropriate facility, transportation to a non-covered destination, transports of convenience for the patient, their family, or their personal physician, or transports in a non-ambulance vehicle such as a wheelchair van.  Any or all of these can be included in the “Reasons Medicare Many Not Pay” section of your ABN.   

Because the use of the ABN is optional in these situations, CMS states that the patient should not be asked to choose an option box or sign the notice. This is because the issuance guidelines do not apply like they would for “must use” situations. Filling out the patient’s name, description of the services provided, the reason Medicare may not pay, the cost estimate, and leaving a copy with the patient are all that are necessary. 

Though the update to the ABN form is minor, this is a great opportunity for your service to review the ABN form and its uses. Make sure you have a process for identifying when the ABN form must or may be used and make sure it is being properly completed and delivered to the patient in accordance with CMS requirements and your own internal policies. 

For another take on the “reasonableness” of ambulance transport, see the article here: https://www.hmpgloballearningnetwork.com/site/emsworld/article/1224173/will-telehealth-redefine-whether-ambulance-services-are-reasonable 

Christopher Kelly is General Counsel for Amerimed Mobile Heath and the Managing Attorney at Mobile Healthcare Law, LLC, a law firm dedicated to providers of EMS, ambulance, mobile integrated healthcare (“MIH”), non-emergency medical transportation (“NEMT”), telehealth, and the software and billing companies that support these industries. This article is not intended as legal advice. For more information or for assistance, he can be reached at (404) 934-8999 or by email at ckelly@mobilehealthcarelaw.com. 

Maxwell Shipley, J.D., CACO, is the Director of Operations for Medical Compliance Services, Inc., a full-service compliance consulting firm for ambulance services. For more information or specific questions, he can be reached at max@medcompservices.com.