II 

117TH CONGRESS 

1ST SESSION S. 826 

To amend title XVIII of the Social Security Act to establish a Medicare 

payment option for patients and eligible professionals to freely contract, 

without penalty, for Medicare fee-for-service items and services, while 

allowing Medicare beneficiaries to use their Medicare benefits. 

IN THE SENATE OF THE UNITED STATES 

MARCH 18, 2021 

Mr. PAUL (for himself and Ms. MURKOWSKI) introduced the following bill; 

which was read twice and referred to the Committee on Finance 

A BILL 

To amend title XVIII of the Social Security Act to establish 

a Medicare payment option for patients and eligible professionals to freely contract, without penalty, for Medicare fee-for-service items and services, while allowing 

Medicare beneficiaries to use their Medicare benefits. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Medicare Patient Em5 powerment Act of 2021’’. 


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1 SEC. 2. GUARANTEEING FREEDOM OF CHOICE AND CON2 TRACTING FOR PATIENTS UNDER MEDICARE. 

3 (a) IN GENERAL.—Section 1802 of the Social Secu4 rity Act (42 U.S.C. 1395a) is amended to read as follows: 

5 ‘‘FREEDOM OF CHOICE AND CONTRACTING BY PATIENT

6 GUARANTEED

7 ‘‘SEC. 1802. (a) BASIC FREEDOM OF CHOICE.—Any 

8 individual entitled to insurance benefits under this title 

9 may obtain health services from any institution, agency, 

10 or person qualified to participate under this title if such 

11 institution, agency, or person undertakes to provide that 

12 individual such services. 

13 ‘‘(b) FREEDOM TO CONTRACT BY MEDICARE BENE14 FICIARIES.— 

15 ‘‘(1) IN GENERAL.—Subject to the provisions of 

16 this subsection, nothing in this title shall prohibit a 

17 Medicare beneficiary from entering into a contract 

18 with an eligible professional (whether or not the pro19 fessional is a participating or non-participating phy20 sician or practitioner) for any item or service cov21 ered under this title. 

22 ‘‘(2) SUBMISSION OF CLAIMS.—Any Medicare 

23 beneficiary that enters into a contract under this 

24 section with an eligible professional shall be per25 mitted to submit a claim for payment under this 

26 title for services furnished by such professional, and 


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1 such payment shall be made in the amount that 

2 would otherwise apply to such professional under 

3 this title except that where such professional is con4 sidered to be non-participating, payment shall be 

5 paid as if the professional were participating. Pay6 ment made under this title for any item or service 

7 provided under the contract shall not render the pro8 fessional a participating or non-participating physi9 cian or practitioner, and as such, requirements of 

10 this title that may otherwise apply to a participating 

11 or non-participating physician or practitioner would 

12 not apply with respect to any items or services fur13 nished under the contract. 

14 ‘‘(3) BENEFICIARY PROTECTIONS.— 

15 ‘‘(A) IN GENERAL.—Paragraph (1) shall 

16 not apply to any contract unless— 

17 ‘‘(i) the contract is in writing, is 

18 signed by the Medicare beneficiary and the 

19 eligible professional, and establishes all 

20 terms of the contract (including specific 

21 payment for items and services covered by 

22 the contract) before any item or service is 

23 provided pursuant to the contract, and the 

24 beneficiary shall be held harmless for any 

25 subsequent payment charged for an item 


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1 or service in excess of the amount estab2 lished under the contract during the period 

3 the contract is in effect; 

4 ‘‘(ii) the contract contains the items 

5 described in subparagraph (B); and 

6 ‘‘(iii) the contract is not entered into 

7 at a time when the Medicare beneficiary is 

8 facing an emergency medical condition or 

9 urgent health care situation. 

10 ‘‘(B) ITEMS REQUIRED TO BE INCLUDED

11 IN CONTRACT.—Any contract to provide items 

12 and services to which paragraph (1) applies 

13 shall clearly indicate to the Medicare beneficiary 

14 that by signing such contract the beneficiary— 

15 ‘‘(i) agrees to be responsible for pay16 ment to such eligible professional for such 

17 items or services under the terms of and 

18 amounts established under the contract; 

19 ‘‘(ii) agrees to be responsible for sub20 mitting claims under this title to the Sec21 retary, and to any other supplemental in22 surance plan that may provide supple23 mental insurance, for such items or serv24 ices furnished under the contract if such 

25 items or services are covered by this title, 


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1 unless otherwise provided in the contract 

2 under subparagraph (C)(i); and 

3 ‘‘(iii) acknowledges that no limits or 

4 other payment incentives that may other5 wise apply under this title (such as the 

6 limits under subsection (g) of section 1848 

7 or incentives under subsection (a)(5), (m), 

8 (q), and (p) of such section) shall apply to 

9 amounts that may be charged, or paid to 

10 a beneficiary for, such items or services. 

11 Such contract shall also clearly indicate whether 

12 the eligible professional is excluded from par13 ticipation under the Medicare program under 

14 section 1128. 

15 ‘‘(C) BENEFICIARY ELECTIONS UNDER

16 THE CONTRACT.—Any Medicare beneficiary 

17 that enters into a contract under this section 

18 may elect to negotiate, as a term of the con19 tract, a provision under which— 

20 ‘‘(i) the eligible professional shall file 

21 claims on behalf of the beneficiary with the 

22 Secretary and any supplemental insurance 

23 plan for items or services furnished under 

24 the contract if such items or services are 


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1 covered under this title or under the plan; 

2 and 

3 ‘‘(ii) the beneficiary assigns payment 

4 to the eligible professional for any claims 

5 filed by, or on behalf of, the beneficiary 

6 with the Secretary and any supplemental 

7 insurance plan for items or services fur8 nished under the contract. 

9 ‘‘(D) EXCLUSION OF DUAL ELIGIBLE INDI10 VIDUALS.—Paragraph (1) shall not apply to 

11 any contract if a beneficiary who is eligible for 

12 medical assistance under title XIX is a party to 

13 the contract. 

14 ‘‘(4) LIMITATION ON ACTUAL CHARGE AND

15 CLAIM SUBMISSION REQUIREMENT NOT APPLICA16 BLE.—Section 1848(g) shall not apply with respect 

17 to any item or service provided to a Medicare bene18 ficiary under a contract described in paragraph (1). 

19 ‘‘(5) CONSTRUCTION.—Nothing in this section 

20 shall be construed— 

21 ‘‘(A) to prohibit any eligible professional 

22 from maintaining an election and acting as a 

23 participating or non-participating physician or 

24 practitioner with respect to any patient not covVerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826

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1 ered under a contract established under this 

2 section; and 

3 ‘‘(B) as changing the items and services 

4 for which an eligible professional may bill under 

5 this title. 

6 ‘‘(6) DEFINITIONS.—In this subsection: 

7 ‘‘(A) MEDICARE BENEFICIARY.—The term 

8 ‘Medicare beneficiary’ means an individual who 

9 is entitled to benefits under part A or enrolled 

10 under part B. 

11 ‘‘(B) ELIGIBLE PROFESSIONAL.—The term 

12 ‘eligible professional’ has the meaning given 

13 such term in section 1848(k)(3)(B). 

14 ‘‘(C) EMERGENCY MEDICAL CONDITION.— 

15 The term ‘emergency medical condition’ means 

16 a medical condition manifesting itself by acute 

17 symptoms of sufficient severity (including se18 vere pain) such that a prudent layperson, with 

19 an average knowledge of health and medicine, 

20 could reasonably expect the absence of imme21 diate medical attention to result in— 

22 ‘‘(i) serious jeopardy to the health of 

23 the individual or, in the case of a pregnant 

24 woman, the health of the woman or her 

25 unborn child; 


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1 ‘‘(ii) serious impairment to bodily 

2 functions; or 

3 ‘‘(iii) serious dysfunction of any bodily 

4 organ or part. 

5 ‘‘(D) PARTICIPATING; NON-PARTICI6 PATING.—The terms ‘participating’ and ‘non7 participating’ have the meanings given such 

8 terms under subsection (h) of section 1842 for 

9 purposes of such section. 

10 ‘‘(E) URGENT HEALTH CARE SITUA11 TION.—The term ‘urgent health care situation’ 

12 means services furnished to an individual who 

13 requires services to be furnished within 12 

14 hours in order to avoid the likely onset of an 

15 emergency medical condition.’’. 

16 SEC. 3. PREEMPTION OF STATE LAWS LIMITING CHARGES 

17 FOR SERVICES BY AN ELIGIBLE PROFES18 SIONAL. 

19 (a) IN GENERAL.—No State may impose a limit on 

20 the amount of charges for services, furnished by an eligible 

21 professional (as defined in subsection (k)(3)(B) of section 

22 1848 of the Social Security Act, 42 U.S.C. 1395w–4), for 

23 which payment is made under such section, and any such 

24 limit is hereby preempted. 


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1 (b) STATE.—In this section, the term ‘‘State’’ in2 cludes the District of Columbia, Puerto Rico, the Virgin 

3 Islands, Guam, and American Samoa. 

Æ 


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