CMS Pub. 100-04, ch. 30, § 50.9

Adjudication

(Rev. 10862; Issued: 07-14-21; Effective: 10-14-21; Implementation: 10-14-21)

A. Beneficiary Liability

A beneficiary who has been given a properly delivered ABN and agrees to pay may be

held liable. The charge may be the healthcare provider or supplier’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.

B. Healthcare Provider or Supplier 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.