Waiver of Liability Services

Rationale for the Referral: The ALJ erred in determining the limitation on liability provision of section 1879 of the Act was inapplicable, and thus concluding the beneficiary was financially responsible for the cost difference between the higher-level air ambulance services furnished and the lower-level ground ambulance transportation services. Pursuant to Ruling 95-1, “Medicare payment for the difference between reasonable and necessary services and items and those actually furnished is denied on the basis of section 1862(a)(1)(A) of the Act as not reasonable and necessary.”

Referral Document

Appeals Council Decision

Rationale for the Referral: When Medicare payment for ambulance services is denied because other means of transportation were not contraindicated, that is a statutory denial based on section 1861(s)(7) of the Social Security Act and the financial protections of section 1879 of the Act are inapplicable.

Referral Document

Appeals Council Decision

Rationale for the Referral: Prior to shifting liability to a beneficiary, an ALJ must afford the beneficiary the due process-based procedural protections required by Medicare regulations, including notifying the beneficiary of any proceedings at the ALJ level.

If Medicare does not pay for otherwise covered items or services because the provider or supplier has failed to obtain the requisite physician certification, the provider or supplier may not charge the beneficiary for the otherwise covered services pursuant to 42 CFR Section 489.21(b)(1).

A SNF Advance Beneficiary Notice (ABN) informing a beneficiary of termination of coverage is only valid on and after the date stated in the ABN and does not provide adequate notice of non-coverage for services furnished before that date.

Referral Document

Appeals Council Decision

Rationale for the Referral: If Medicare coverage for an item or service does not exist because the items or services do not comply with Medicare coverage guidelines, including CMS Rulings, a supplier or provider is not entitled to a limitation on liability pursuant to section 1879 of the Social Security Act.  A factual finding that items or services were not covered by Medicare for failing to satisfy clearly articulated coverage criteria precludes application of the protections of section 1879 of the Act.

Referral Document

Appeals Council Decision

Rationale for the Referral: The limitation on liability provisions under § 1879 of the Social Security Act (the Act) do not apply to a DME supplier that furnished ostomy supplies directly to a beneficiary who was under a home health plan of care subject to consolidated billing. The waiver provision of § 1879 of the Act applies only if coverage is denied because the item is not medically reasonable and necessary under section 1862(a)(1) of the Act or is excluded custodial care under section 1862(a)(9) of the Act, or, in the case of home health care services, the beneficiary is not homebound or does not need skilled nursing care on an intermittent basis.

Referral Document

Appeals Council Decision