OIG zeroes in on ABNs for noncovered lab services
According to the Health and Human Services Office of Inspector Generals (OIG) latest Work Plan, practices vary widely when advanced beneficiary notices (ABN) are provided, especially with respect to noncovered laboratory services.
The theory is that when a physician waives a copay, patients are influenced to come back to him or her. But federal law prohibits providers from offering any type of "remuneration" to patients, and this includes waiving copays. The OIG now wants to review the financial impact on both patients and physicians to see how this is affecting both in the ABN, said Lori Canady, a senior associate on the physician coding team at PriceWaterHouse-Coopers in Washington, DC, during an audio conference on physician compliance issues sponsored by the Philadelphia-based Health Care Compliance Association Jan. 25.
According to the rule, providers are prohibited from extending discounts to patients unless the patients qualify for a financial hardship. Now the OIG wants to know who is getting the ABN signed and when it is being signed, especially for non-covered laboratory services.
Frank Sheeter of the Sheeter Firm in Dallas, says providers should review guidance from carriers as well as a Program Memorandum on this subject (MCM 7300.1), which says the purpose of ABNs is to protect beneficiaries from liability in denial cases when the services they receive are excluded from coverage because they are not medically necessary.
He says there are several scenarios to determine whether there should be payment when a service is considered not to be reasonable or necessary. The first is when neither the beneficiary nor the physician or supplier could reasonably have been expected to know the items were excluded. "That is a pretty rare case," he adds.
The second instance is when the patient did not know that the service might not be reasonable and necessary and covered, but the physician did know. "The physician [who] does not get an ABN is basically out of luck on payment," says Sheeter.
"There is beneficiary liability when you have a properly completed ABN," Sheeter adds. That means it is in physicians’ best interest when they think there is a reasonable chance the carrier will deny reimbursement to have a properly completed ABN in the medical record.
Sheeter says some services are never covered, but other services depend on certain criteria. The Centers for Medicare & Medicaid Services has an ABN quick-reference guide available on the Internet that providers can use, he adds.
He says there also is an issue about whether ABNs may violate the Emergency Medical Treatment and Active Labor Act (EMTALA). "If you are stopping to have these forms filled out instead of doing an initial assessment of the patient, arguments have been made that you are potentially violating EMTALA," he explains.
Sheryl Vacca, a director with Deloitte and Touche in Sacramento, CA, says it is critical that everyone is educated on ABN forms. She says the first thing to look at is whether ABNs routinely were being used with generic language. "Those are absolute no-nos," she warns. "They are not supposed to be a routine form that is utilized for each procedure, but rather in gray areas or when providers are not clear that it would be a denied service and it is medically necessary."
Vacca says it also is important to make sure modifiers are not routinely used. "When you are auditing and monitoring, it would not be enough just to look and pull out the claims or encounter forms that have the modifier on them," she says "You also need to look at a cross-reference of the outpatient claims to identify those where the modifier was not used."
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