For non-covered outpatient services (includes observation status), the ABN must be provided to the patient before the items or services that are the subject of the notice. The ABN is issued in order to transfer financial liability to beneficiaries to convey that Medicare is not likely to provide coverage in a specific case.
The following are the general instructions that notifiers must follow in preparing an ABN for mandatory use:
A. Number of Copies: A minimum of two copies, including the original, must be made so the beneficiary and notifier each have one. The notifier should retain the original whenever possible.
B. Reproduction: Notifiers may reproduce the ABN by using self-carbonizing paper, photocopying, digitized technology, or another appropriate method. All reproductions must conform to applicable form and manual instructions.
C. Length and Size of Page: The ABN form must not exceed one page in length; however, attachments are permitted for listing additional items and services. If attachments are used, they must allow for clear matching of the items or services in question with the reason and cost estimate information. The ABN is designed as a lettersized form. If necessary, it may be expanded to a legal sized page.
D. Contrast of Paper and Print: A visually high-contrast combination of dark ink on a pale background must be used. Do not use reversed print (i.e. white print on black paper), or block-shaded (highlighted) text.
E. Font: To the extent practicable, the fonts as they appear in the ABN downloaded from the CMS web site should be used. Any changes in the font type must be based solely on limitations of the notifier’s software and/or hardware. In such cases, notifiers should use alternative fonts that are easily readable, such as Arial, Arial Narrow, Times New Roman, and Courier. Font style and formatting must be maintained regardless of font type used. Any other changes to the font, such as italics, embossing, bold, etc., should not be used since they can make the ABN more difficult to read. The font size generally should be 12 point. Titles should be 14-16 point, but insertions in blanks of the ABN can be as small as 10 point if needed. Information inserted by notifiers in the blank spaces on the ABN may be typed or legibly hand-written.
F. Customization: Notifiers are permitted to do some customization of ABNs, such as pre-printing information in certain blanks to promote efficiency and to ensure clarity for beneficiaries. Notifiers may develop multiple versions of the ABN specialized to common treatment scenarios, using the required language and general formatting of the ABN. Blanks (G)-(I) must be completed by the beneficiary or his/her representative when the ABN is issued and may never be pre-filled. Lettering of the blanks (A-J) should be removed prior to issuance of an ABN. If pre-printed information is used to describe items/services and/or common reasons for noncoverage, the notifier must clearly indicate on the ABN which portions of the preprinted information are applicable to the beneficiary. For example, pre-printed items or services that are inapplicable may be crossed out, or applicable items/services may be checked off. Providers who pre-print a menu of items or services may wish to list a cost estimate alongside each item or service. For example, notifiers may merge the items/service section (Blank D) with the estimated cost section (Blank F) as long as the beneficiary can clearly identify the services and related costs that may not be covered by Medicare.
G. Modification: The ABN may not be modified except as specifically allowed by these instructions.
Notifiers must exercise caution before adding any customizations beyond these guidelines, since changing ABNs too much could result in invalid notice and provider liability for noncovered charges. Validity judgments are generally made by Medicare contractors, usually when reviewing ABN-related claims; however, any complaints received may be investigated by contractors and/or CMS central or regional offices.
A. Beneficiary Liability
A beneficiary who has been given a properly written and delivered ABN and agrees to pay may be held liable. The charge may be the supplier/provider’s usual and customary fee for that item or service and is not limited to the Medicare fee schedule. If the beneficiary does not receive proper notice when required, s/he is relieved from liability.
Notifiers may not issue ABNs to shift financial liability to a beneficiary when full payment is made through bundled payments. In general, ABNs cannot be used where the beneficiary would otherwise not be financially liable for payment for the service because Medicare made full payment. See 50.13 for information on collection of funds.
B. Provider Liability
A notifier will likely have financial liability for items or services if s/he knew or should have known that Medicare would not pay and fails to issue an ABN when required, or issues a defective ABN. In these cases, the notifier is precluded from collecting funds from the beneficiary and is required to make prompt refunds if funds were previously collected. Failure to issue a timely refund to the beneficiary may result in sanctions.
A notifier may be protected from financial liability when an ABN is required if s/he is able to demonstrate that s/he did not know or could not reasonably have been expected to know that Medicare would not make payment. However, issuance of a defective notice establishes the notifier’s knowledge of potential noncoverage, and will not afford the notifier financial protection under the LOL or refund provisions.
Social Security Act, Section 1842, provisions relating to the administration of Part B (includes observation patients)
Guidelines for issuing the ABN can be found beginning in Section 50 in the Medicare Claims Processing Manual, 100-4, Chapter 30 (PDF)
ABN can also be given out during an outpatient observation stay if the service(s) is no longer found to be reasonable and necessary and the discharge order has been written.
Questions regarding the ABN can be submitted at: https://appeals.lmi.org/
The ABN, Form CMS-R-131, and instructions have been approved by the Office of Management and Budget (OMB) for renewal. Due to COVID-19 concerns, CMS has expanded the deadline for use of the renewed ABN, Form CMS-R-131 (exp. 6/30/2023). At this time, the renewed ABN will be mandatory for use on 1/1/2021. The renewed form may be implemented prior to the mandatory deadline. The ABN form and instructions may be found in the download section.