The new Medicare policy that allows you to provide your Medicare consumers with upgraded items using the Advance Beneficiary Notice (ABN) form has been effective since January 1 of this year, but many mobility product suppliers still have questions about its use.

Their concerns are well founded. The government views the ABN process as a beneficiary protection measure. If beneficiaries complain that they were inappropriately provided an upgrade or were coerced into making a decision to receive an upgraded product, the Durable Medical Equipment Regional Carriers (DMERCs) have the authority to review any and all claims, including those involving ABNs.

However, for educated mobility product providers, the ABN process offers an opportunity to get Medicare customers the upgraded products that can improve their quality of life and the provider’s bottom line.

Consider the following questions and answers to see if you have covered them in your ABN procedures.

1. If I provide an ultra lightweight wheelchair every time a beneficiary has an order for a lightweight wheelchair, will it trigger an Office of Inspector General (OIG) audit?
Government audits of supplier ABN usage will be triggered primarily by beneficiary complaints. Therefore, the issue is whether you appropriately provided the beneficiary with an ABN, and the beneficiary freely agreed to pay the difference between the lightweight and the ultra lightweight wheelchair. If you followed the appropriate procedure and the beneficiary is willing to pay the difference, there should be no audit triggered by beneficiary complaints.

The government may also audit suppliers based on high utilization of ABNs. However, this fact in and of itself should not be problematic. In discussions with the Centers for Medicare & Medicaid Services (CMS), we covered the likelihood that rehabilitation suppliers would provide a higher percentage of upgrade claims. In the event audits triggered by high ABN use do occur, the focus will still be on whether the ABNs were appropriately provided and agreed to by the beneficiary.

2. Do I charge tax on the upgraded portion of a beneficiary order that is not covered by a physician’s order?
This is an issue Medicare will not address because state sales tax regulations are determined by the individual states. Contact your state legislators about this issue.

3. Will the double line on the Medicare 1500 form for the ABN claim cause a duplicate claims situation with Medicare?
No, the DMERCs were specifically instructed in an October 22, 2001, program memorandum to change their systems to accommodate two-line billing when the ABN modifier is used.

4. Will the extensive use of a single ABN trigger an OIG audit?
Any investigation of your use of an ABN will be triggered primarily by beneficiary complaints. If the government conducts an investigation of your use of ABNs, the question will be whether you handled the process appropriately, or whether there is evidence that you coerced the beneficiary into signing the ABN.

5. If it is my responsibility to educate the beneficiary, what criteria should I use in determining who should be educated and offered the option?
You should provide the information about possible upgraded items if you believe the beneficiary has an interest in receiving items that better meet his or her lifestyle, and you believe the beneficiary (or a family member) may have the financial resources to purchase the upgraded item.

6. Could I be charged with discriminating if I selectively chose which beneficiaries I told about the ABN option?
Federal antidiscrimination laws prohibit discrimination based on age, sex, religious preference, and the like. They do not prohibit discrimination based on financial resources. Antidiscrimination laws will not apply to a situation in which you determine that a beneficiary may or may not be amenable to paying for an upgraded item. Consumer protection laws, however, will apply to all your transactions with consumers, including those with ABNs.

In any situation where there will be an ongoing payment agreement between the patient and your company, you should carefully evaluate the patient’s ability to pay on an ongoing basis. Not doing so will create a growing accounts receivable in the patient pay column.

7. How long does a consumer have to change his or her mind after signing an ABN?
The ABN is a binding contract between the consumer and the provider. In general, if the provider accepted payment from the patient for an upgraded item and the merchandise was supplied, the consumer has a very slim, if any, chance to change his or her mind. The only time when the consumer could change his or her mind would be before the money changed hands and prior to billing Medicare on an assigned basis for the item. Public relations and marketing concerns, however, may motivate you to allow consumers to change their minds and replace an upgraded item with the “standard” Medicare item.

8. What procedure should I follow if I use an upgrade ABN for a lightweight wheelchair patient, but when the claim is submitted to Medicare for the standard wheelchair, Medicare denies it?
First, you should investigate the denial reason. Not all Medicare denials have the same meaning. Thus, if the standard wheelchair claim line was denied as medically unnecessary, then you would have to go back and review the Certificate of Medical Necessity (CMN) to see if information was missing or unreflective of the patient’s true condition. If you believe that there is additional medical information that the DMERC did not see when it processed the initial claim, then you should pursue your appeal rights and take the first step by requesting a review. However, if you pursued your appeal rights and failed to overturn the denial, then you may have to refund the upgraded amount collected from the beneficiary and pick up the equipment. This is a sticky situation. You may want to obtain expert counsel if you encounter it.

9. Can a beneficiary upgrade from a manual wheelchair to a power chair, or does the ABN strictly apply to the same equipment category as it was originally introduced?
CMS has defined an upgrade as an item that is “medically appropriate” and “consistent with the order of the ordering physician.” There will be instances in which you will have to contact the physician to determine whether an upgraded item is medically appropriate for a beneficiary, depending on the beneficiary’s particular circumstances. With respect to an upgrade from a manual to a power wheelchair, there will be limited instances in which this will be “medically appropriate” because the physician likely believed that the beneficiary would benefit from the exercise of self-propulsion. In this instance, you should discuss this with the ordering physician and, if the ordering physician agrees that the upgrade to a power wheelchair is “medically appropriate,” you should document the physician’s concurrence.

10. Where can I get more information?
Visit CMS online. Spanish and English language copies of the ABN form (CMS-R-131-G), the program memorandum transmittal on use of the ABN form (AB-02-114), and general information are available at www.cms.gov/medicare/bni/default.asp. In addition, a series of frequently asked question (FAQ) and their answers are posted at www.cms.gov/medlearn/abndmeposfaq.pdf.  

Cara C. Bachenheimer, JD, is a partner at the law firm Epstein, Becker & Green in Washington, DC. A specialist in health care legislation, regulations, and government relations, she has worked at the American Association for Homecare and the Health Industry Distributors Association, and often speaks on industry-related legislation. Contact her at (202) 861-1825 or cbachenheimer@ebglaw.com.  

Mobility Insider

Duwayne Kramer, Jr The market for mobility products continues to grow as an aging population demands more care. Duwayne Kramer, Jr, president of Leisure-Lift Inc, Kansas City, Kan, describes how his company’s all-American and all on-site manufacturing policies enable it to meet such needs. Q What makes Leisure-Lift’s products different from those of other manufacturers? A While it may sound old-fashioned, we take pride in the fact that we do everything ourselves. Because we actually manufacture the products we sell, we are able to build in more safety, reliability, and value than those with an overseas supplier building to minimum standards. That extra time and effort pay off for dealers in more satisfied customers, more repeat business, and fewer headaches. That is why we have been successful for more than 30 years. Q Leisure-Lift prides itself on providing American-made products. What does this mean for our readers? A Aside from the fact that we keep America working, we have the capabilities to do things others cannot. As the only manufacturer who still builds its scooters and wheelchairs in the United States, we are able to specialize our product to the individual. This enables us to meet dealer needs. Our engineering, production, and service staff are all located within close proximity, making the answers to dealer questions available more quickly. We also stock millions of dollars’ worth of parts here in Kansas City. When we need more, we do not have to wait. Q How is Leisure-Lift positioned to keep up with the market’s ever-evolving technology? A Leisure-lift is at the forefront of new technologies available today. Because we design, build, and test our products on-site, we are able to evaluate and implement rapid improvements. For example, [at Medtrade] in Atlanta, we were able to introduce an inexpensive, modular wheelchair controller that will revolutionize the low and midrange power wheelchair market. We also introduced an exciting new concept in 600-pound bariatric powerbases and seating systems geared for the Medicare market. Q What do you envision for the future of the mobility industry? A We believe eventually there will be a “backlash” against the poor quality of some of the foreign units on the market today. Either consumers or the US Food and Drug Administration will force manufacturers to improve the safety and performance of their vehicles. We believe Leisure-Lift is excellently positioned to maintain our place at the leading edge of safety, dependability, and satisfaction for years to come.

Bob McCoy, RRT, is managing director of Valley Inspired Products, Savage, Minn. Contact him at bmccoy@inspiredrc.com.