The Elder Law Forum

The Elder Law Forum by Professor Mike Myers Editor's Note: The Elder Law Forum is a public service of The University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@ usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Beware the Medicare "ABN"

If you or a member of your family is a Medicare beneficiary, the following advice may save you money: When a hospital or clinic admitting clerk asks you to sign a document called "Advance Beneficiary Notice (ABN)," just say "No, thank you. Professor Myers told me not to."

And, if she or he says you must sign the ABN as a condition of obtaining care, then call me at 1-800-747-1895. Hospitals and clinics across the country, including the Mayo Clinic, are misapplying the law that allows providers to place Medicare beneficiaries at risk for payment of services that the Center for Medicare and Medicaid Services (CMS) deem "not medically necessary."

Here is what's going on: Historically, hospitals and physicians selling services to Medicare beneficiaries were precluded from unlimited "double dipping." They could not "dip" into the Medicare tax barrel for covered services and during the same visit dip into the patient's pocket for services not covered by Medicare. The medical lobby, with some justification, successfully argued that a patient and a physician should have the freedom to contract for services outside the Medicare benefit package.

For example, a doctor should be able to say, "Mike, there is a test or treatment that may help your condition, but Medicare probably won't pay for it; which means you would then have to. Here is why I recommend that you have the procedure, and here is why Medicare probably won't pay for it."

Sounds logical doesn't it? But here is how it is often misapplied: Medicare patients are asked to sign these ABNs prior to or at the time of admission. When you sign it you are agreeing to "hold harmless" the physician, clinic, or hospital from the financial risk of providing you care that Medicare subsequently decides not to pay for.

You, in fact, thereby become a "payment guarantor," caught between what the doctor believes to be "medically necessary" and what Medicare believes to be "medically unnecessary."

The USD Senior Legal Hotline was contacted by a woman who was being asked to pay for CT scans ordered by her Mayo physician but denied by Medicare. She signed an ABN contained in a package of materials sent to her prior to admission. At that point she was incapable of making the type of "informed consent" required by law.

Again, my advice: Do not sign an ABN unless the physician first tells you why the care is being recommended and why Medicare will likely refuse payment. Remember, Medicare is not unhappy about this misuse of the law. It saves Medicare money. And the clinic or hospital gets paid, straight from the pockets of naive Medicare beneficiaries.

Just say "No thank you. At least not without more information."

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