In newly posted frequently asked questions (FAQs) about the Review Choice Demonstration (RCD), CMS provides details about what financial impact beneficiaries will face if an agency provides care but never receives provisional affirmation.
CMS states that Limitation on Liability protections of §1879 of the Social Security Act (the Act) will apply to review choice.
States CMS: “The Limitation on Liability provisions require a provider to notify a beneficiary in advance of furnishing an item or service when such item or service is considered not medically reasonable and necessary, or when a beneficiary is not considered homebound, or when the beneficiary does not need physical therapy, speech-language pathology, skilled nursing care on an intermittent basis, or have a continuing need for occupational therapy, in order to shift financial liability for non-covered care to the beneficiary.
Per CMS, in accordance with CMS’ policies, if an advanced beneficiary notice (ABN) “was not issued when required at the start of care and the pre-claim review is non-affirmative, the beneficiary is not financially liable for the care that the HHA provided while awaiting the pre-claim review decision. If the HHA believes that the pre-claim review will be non-affirmative for any of the reasons listed, the provider may issue an ABN in accordance with CMS policy which would allow the beneficiary to choose to receive the service and accept financial liability. The ABN would be effective for denied services furnished after receipt of the ABN. If the HHA expects Medicare to cover the services, an ABN should not be issued. Blanket or routine issuance of ABNs is prohibited under Medicare policy.”
CMS also tells agencies to consider the following: “Other requirements to qualify for the Medicare home health benefit, such as the face-to-face encounter, are considered technical in nature and are not part of the Limitation on Liability provisions and do not trigger an 1879 of the Act determination. If this documentation is missing then it would be a technical denial, and the provider would be held liable (i.e., not be able to charge the beneficiary) based on 1866(a)(1) of the Act. When a pre-claim review is non-affirmed, the decision letter will include a detailed written explanation outlining which specific policy requirements were not met. If the non-affirmation is due to one of the reasons listed above that trigger application of the limitation on liability provision, the HHA may issue an ABN and the beneficiary will be held financially liable for denied services received following issuance of a valid ABN. If the non-affirmation was due to documentation errors, the HHA can correct the deficiencies and resubmit the request with all relevant documentation. In this situation it would not be appropriate to issue an ABN. Also, if the pre-claim review decision is non-affirmed for a reason for which the HHA would otherwise be financially liable (that is, the reason for denial is not one that triggers the limitation on liability provision), the HHA should not issue an ABN following anon- affirmative pre-claim review decision in an attempt to shift liability.”