C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 411—EXCLUSIONS FROM MEDICARE AND LIMITATIONS ON MEDICARE PAYMENT › Subpart K—Payment for Certain Excluded Services

42 C.F.R. § 411.400

Payment for custodial care and services not reasonable and necessary

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(a) Conditions for payment. Notwithstanding the exclusions set forth in § 411.15 (g) and (k). Medicare pays for “custodial care” and “services not reasonable and necessary” if the following conditions are met:

(1) The services were funished by a provider or by a practitioner or supplier that had accepted assignment of benefits for those services.

(2) Neither the beneficiary nor the provider, practitioner, or supplier knew, or could reasonably have been expected to know, that the services were excluded from coverage under § 411.15 (g) or (k).

(b) Time limits on payment—(1) Basic rule. Except as provided in paragraph (b)(2) of this section, payment may not be made for inpatient hospital care, posthospital SNF care, or home health services furnished after the earlier of the following:

(i) The day on which the beneficiary has been determined, under § 411.404, to have knowledge, actual or imputed, that the services were excluded from coverage by reason of § 411.15(g) or § 411.15(k).

(ii) The day on which the provider has been determined, under § 411.406 to have knowledge, actual or imputed, that the services are excluded from coverage by reason of § 411.15(g) or § 411.15(k).

(2) Exception. Payment may be made for services furnished during the first day after the limit established in paragraph (b)(1) of this section, if the QIO or the intermediary determines that the additional period of one day is necessary for planning post-discharge care. It the QIO or the intermediary determines that yet another day is necessary for planning post-discharge care, payment may be made for services furnished during the second day after the limit established in paragraph (b)(1) of this section.

Notes of Decisions
Cited in 5 cases (3 in the last 5 years), 2017–2022 · leading case: Anniken Prosser v. Xavier Becerra, 2 F.4th 708 (7th Cir. 2021).
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Anniken Prosser v. Xavier Becerra, 2 F.4th 708 (7th Cir. 2021). “§ 1395pp; 42 C.F.R. § 411.400 (a). This provision limits liability only once—after that, both the beneficiary and supplier are on notice that coverage is likely to be denied.”
Int'l Rehabilitative Sciences Inc. v. Price, 696 F. App'x 820 (9th Cir. 2017). “§ 1895pp(a)(2); see 42 C.F.R. § 411.400 (a)(2). First, RS Medical’s knowledge is established by the Advance Beneficiary Notices sent to beneficiaries stating that Medicare *821 probably would not pay for the BIO-IOOO.”
Lynn Oxenberg v. Sec'y United States Depart (3rd Cir. 2022). “§ 1395pp(a); 42 C.F.R. § 411.400 (a). This limitation on liability, which the plaintiffs refer to as the Medicare “mulligan,” applies only once: after the mulligan is used, the beneficiary and the supplier are on notice that coverage will be denied in the future.”
Townsend v. Azar (S.D.N.Y. 2021). “§ 1395pp; 42 C.F.R. § 411.400 (a)(2). The supplier can shift the risk of non-coverage to the beneficiary by providing him with advance written notice (called an “Advance Beneficiary Notice”) of the specific reason why the item or service will probably not be covered.”
Prosser v. Becerra (E.D. Wis. 2020). “42 C.F.R. § 411.400 (a), (b). Here, the ALJ decisions reflect that neither Plaintiff signed an advance waiver.”
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