For purposes of this provision, the term "physician" is limited to doctors of medicine and doctors of osteopathy who are legally authorized to practice medicine and surgery by the state in which such function or action is performed; no other physicians may opt out. Also, for purposes of this provision, the term "practitioner" means any of the following to the extent that they are legally authorized to practice by the state and otherwise meet Medicare requirements: physician assistant, nurse practitioner, clinical nurse specialist, certified registered nurse anesthetist, certified nurse midwife, clinical psychologist, or clinical social worker.
The opt-out law does not define physician to include optometrists, chiropractors, podiatrists, dentists, and doctors of oral surgery; therefore, they may not opt out of Medicare and provide services under private contract. Physical therapists in independent practice and occupational therapists in independent practice cannot opt out because they are not within the opt-out laws definition of either a physician or practitioner
When a physician or practitioner opts out of Medicare, no services provided by that individual are covered by Medicare and no Medicare payment can be made to that physician or practitioner directly or on a capitated basis. Additionally, no Medicare payment may be made to a beneficiary for items or services provided directly by a physician/practitioner who has opted out of the program. Under the statute, the physician or practitioner cannot choose to opt out of Medicare for some Medicare beneficiaries but not others; or for some services but not others.
Medicare will make payment for covered, medically necessary services that are ordered by a physician or practitioner who has opted out of Medicare if the ordering physician or practitioner has acquired a unique provider identification number (UPIN) from Medicare and provided that the services are not furnished by another physician or practitioner who has also opted out. For example, if an opt-out physician admits a beneficiary to a hospital, Medicare will reimburse the hospital for medically necessary care.
In an emergency or urgent care situation, a physician or practitioner who opts out may treat a Medicare beneficiary with whom he or she does not have a private contract and bill for such treatment. In such a situation, the physician or practitioner may not charge the beneficiary more than what a non-participating physician would be permitted to charge and must submit a claim to Medicare on the beneficiary's behalf. Payment will be made for Medicare covered items or services furnished in emergency or urgent situations when the beneficiary has not signed a private contract with that physician/practitioner.
Definition of the new national HCPCS modifier: GJ = OPT-OUT PHYSICIAN OR PRACTITIONER EMERGENCY OR URGENT SERVICES. This modifier must be used on claims for services rendered by an opt out physician or practitioner for an emergency/urgent service
Effective Date of the Opt-out Provision a physician or practitioner may enter into a private contract with a beneficiary for services furnished no earlier than January 1, 1998. Contents of the Private Contract with the Beneficiary Under Section 4507 of the BBA, a valid private contract must:
- Be in writing and be signed by the Medicare beneficiary or the beneficiary's legal representative in advance of the first service furnished under the agreement;
- Clearly indicate if the physician or practitioner is excluded from participation in the Medicare program under Section 1128 of the Social Security Act;
- Indicate clearly that by signing the contract the beneficiary or the beneficiary's legal representative:
-Agrees not to submit a claim or to request the physician or practitioner to submit a claim for payment under Medicare, even if such items and services would otherwise be covered by Medicare;
-Acknowledges that Medigap plans do not, and that other supplemental insurance plans may choose not to, make payment for items and services furnished by the physician or practitioner under the contract;
-Agrees to be responsible for payment of such items or services;
-Acknowledges that Medicare will provide no reimbursement for such items and services;
-Acknowledges that the physician or practitioner is not limited in the amount that he or she may charge the beneficiary for the items and services furnished; and
-Acknowledges that the beneficiary has the right to have such items and services provided by other physicians/practitioners who have not opted out of the program.
To be valid, the agreement cannot be signed by the beneficiary or the beneficiary's legal representative when the Medicare beneficiary is facing an emergency or urgent health care situation.
Relationship to Non-Covered Services:
Since Medicare rules and regulations do not apply to items or services not covered by Medicare, a private contract is not needed to furnish such items or services to Medicare beneficiaries. A private contract is needed only for items or services that would be covered by Medicare and where Medicare might make payment if a claim were submitted. Examples of services not covered by Medicare include cosmetic surgery and routine physical exams.
Similarly, where a beneficiary, who is enrolled in a Medicare risk-based managed care plan, goes out of plan to acquire a service and the plan does not cover it, the enrollee is liable for the full charge for the service and the physician or practitioner does not need to sign a private contract to collect payment for the non-covered service.
Mandatory Claims Submission:
Social Security Act Section 1848(g)(4), Physician Submission of Claims, regarding mandatory claims submission, does not apply once a physician or practitioner signs and submits an affidavit to the Medicare carrier opting out of the Medicare program, for the duration of his/her opt-out period, unless he/she knowingly and willfully violates a term of the affidavit.
Violation of Agreement Not to File Claims When a physician or practitioner who has opted out of the Medicare program and knowingly and willfully submits a bill to Medicare, he or she is no longer exempt from the mandatory claims and limiting charge rules and must submit claims (which HCFA will deny per Section 1802(b)(3)(C)(ii) of the Social Security Act) and is bound by the limiting charge in what he/she can charge the beneficiary.
