Most providers are aware of Medicare’s “Mandatory Claim Submission Rule” (Social Security Act (Section 1848(g)(4))) which requires the submission of claims for all Medicare beneficiaries and applies to all physicians and suppliers. If you see a Medicare patient, you must file a claim for covered services. If you don’t, you “may be subject to a civil monetary penalty of up to $2,000 for each violation, a 10 percent reduction of a physician’s/supplier’s payment once the physician/supplier is eventually brought back into compliance, and/or Medicare program exclusion” (see MLN Matters® Number: SE0908)

What some providers may not be fully aware of is that there are several exceptions to this rule. Here are a few:

  1. Noncovered services: Noncovered services do not need to be billed UNLESS the beneficiary specifically requests that a claim be submitted to Medicare so that a supplemental policy will have the necessary Medicare denial to process the claim. Be sure that you obtain a properly executed Advance Beneficiary Notice of Noncoverage (ABN) .
  2. Beneficiary request: When the patient does NOT want Medicare to be billed, they have the right to ask you not to bill Medicare. The beneficiary needs to complete an ABN with Option #2 selected.
  3. Provider has opted out: Medicare allows some providers to opt out of the Medicare program. However, Doctors of Chiropractic may NOT opt out.

Noncovered services are covered extensively in the ChiroCode DeskBook so let’s review the beneficiary request in more detail. Additional guidance can be found in the Medicare Benefit Policy Manual, Chapter 15, Section 40 which states (emphasis added):

The only situation in which non-opt-out physicians or practitioners, or other suppliers, are not required to submit claims to Medicare for covered services is where a beneficiary or the beneficiary’s legal representative refuses, of his/her own free will, to authorize the submission of a bill to Medicare. However, the limits on what the physician, practitioner, or other supplier may collect from the beneficiary continue to apply to charges for the covered service, notwithstanding the absence of a claim to Medicare.

The manual further states that “Providers and suppliers will not violate the mandatory claim submission rules of §1848(g)(4) of the Social Security Act when a claim is not submitted per a beneficiary’s written request on an ABN.”  Select Option 2 of the ABN which states that they want the services, but they do NOT want you to bill Medicare. It is essential to explain in Section E of the ABN that this is a covered service and that Medicare will not pay because the patient chose to not send the claim to Medicare. Even though the ABN is technically for noncovered services, in this case, it is appropriate to follow the guidelines of the Medicare Benefit Policy Manual to use it for covered services.

Additionally, HIPAA Section 164.522(a)(1)(vi) specifically allows for the restriction of protected health information. While the ABN protects against violations of the Mandatory Claims Submission requirement, HIPAA’s out-of-pocket provision also allows that information about the patient encounter to not be sent to Medicare. This means that during a records request, Medicare may not obtain information about that particular patient encounter. CLICK HERE for more information.

FEE ALERT: Only charge the patient the applicable Medicare charge. If you are a participating provider, you may only charge the Medicare Allowed Amount. Non-participating providers may only charge the Limiting Amount.