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Capable Recipients for the Advance Beneficiary Notice of Noncoverage

The purpose of the ABN is to inform a Medicare beneficiary before he or she receives specified items or services that, in this circumstance, Medicare certainly or probably will not pay for the item or service(s). This notification allows the beneficiary to make an informed consumer decision as to whether or not to receive the item or service(s) and pay out-of-pocket.

Medical review has received documentation on a number of occasions where an ABN was issued to the beneficiary for a particular item or service(s). Upon further review of the medical chart, the documentation demonstrates the beneficiary is not capable of understanding the liability of the ABN and, therefore, is not considered a capable recipient. Based on medical records the physician and/or nursing staff has documented, the beneficiary is experiencing confusion due to dementia or Alzheimer’s disease.When the documentation demonstrates the beneficiary is not a capable recipient, the ABN is invalid and the provider is liable for the charges of the item or service(s).

CMS IOM Publication 100-04, Medicare Claims Processing Manual, Chapter 30, Section 40.3.4.3, "Capable Recipient" states,

“The contractor will not consider delivery of a notice to be properly done unless the beneficiary, or authorized representative, was able to comprehend the notice (i.e., they were capable of receiving notice). A comatose person, a confused person (e.g., someone who is experiencing confusion due to senility, dementia, Alzheimer’s disease), a legally incompetent person, a person under great duress (for example, in a medical emergency) is not able to understand and act on his/her rights, therefore necessitating the presence of an authorized representative for purposes of notice. A person who does not read the language in which the notice is written, a person who is not able to read at all or who is functionally illiterate to read any notice, a blind person or otherwise visually impaired person who cannot see the words on the printed page, or a deaf person who cannot hear an oral notice being given by phone, or could not ask questions about the printed word without aid of a translator, is a person for whom receipt of the usual written notice in English may not constitute having received notice at all (this is not an exclusive list). This may be remedied when an authorized representative has no such barrier to receiving notice. However, in the absence of an authorized representative, the notifier must take other steps to overcome the difficulty of notification. These may include providing notice in the language of the beneficiary (or authorized representative), in Braille, in extra large print, or by getting an interpreter to translate the notice, in accordance with the needs of the beneficiary or authorized representative to act in an informed manner. If the beneficiary was not capable of receiving the notice, the contractor will hold that the beneficiary did not receive proper notice, hold that the beneficiary is not liable, and will hold the notifier liable.”

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