II 

113TH CONGRESS 

1ST SESSION S. 236 

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

payment option for patients and physicians or practitioners 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 

FEBRUARY 7, 2013 

Ms. MURKOWSKI (for herself, Mr. COBURN, Mr. PAUL, and Mr. BARRASSO) 

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 physicians 

or practitioners 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’’. 


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

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 a participating or non-participating physician 

19 or practitioner for any item or service covered under 

20 this title. 

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

22 beneficiary that enters into a contract under this 

23 section shall be permitted to submit a claim for pay24 ment under this title, and such payment shall be 

25 made in the amount that would otherwise apply 

26 under this title if such claim had been filed by a parVerDate Mar 15 2010 20:35 Feb 19, 2013 Jkt 029200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S236.IS S236

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1 ticipating physician or practitioner (as defined in 

2 section 1842(i)(2)) in the payment area where the 

3 physician or practitioner covered by the contract re4 sides. Payment made under this title for any item or 

5 service provided under the contract shall not render 

6 the physician a participating or non-participating 

7 physician, and as such, requirements of this title 

8 that may otherwise apply to a participating or non9 participating physician would not apply with respect 

10 to any items or services furnished under the con11 tract. 

12 ‘‘(3) BENEFICIARY PROTECTIONS.— 

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

14 not apply to any contract unless— 

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

16 signed by the Medicare beneficiary and the 

17 physician or practitioner, and establishes 

18 all terms of the contract (including specific 

19 payment for physicians’ services covered by 

20 the contract) before any item or service is 

21 provided pursuant to the contract, and the 

22 beneficiary shall be held harmless for any 

23 subsequent payment charged for a service 

24 in excess of the amount established under 


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1 the contract during the period the contract 

2 is in effect; 

3 ‘‘(ii) the contract contains the items 

4 described in subparagraph (B); and 

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

6 at a time when the Medicare beneficiary is 

7 facing an emergency medical condition or 

8 urgent health care situation. 

9 ‘‘(B) ITEMS REQUIRED TO BE INCLUDED

10 IN CONTRACT.—Any contract to provide items 

11 and services to which paragraph (1) applies 

12 shall clearly indicate to the Medicare beneficiary 

13 that by signing such contract the beneficiary— 

14 ‘‘(i) agrees to be responsible for pay15 ment to such physician or practitioner for 

16 such items or services under the terms of 

17 and amounts established under the con18 tract; 

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 physician or practitioner is excluded from 

13 participation under the Medicare program 

14 under 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 physician or practitioner shall 

21 file claims on behalf of the beneficiary with 

22 the Secretary and any supplemental insur23 ance plan for items or services furnished 

24 under the contract if such items or services 


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1 are covered under this title or under the 

2 plan; and 

3 ‘‘(ii) the beneficiary assigns payment 

4 to the physician for any claims filed by, or 

5 on behalf of, the beneficiary with the Sec6 retary and any supplemental insurance 

7 plan for items or services furnished under 

8 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 to prohibit any physician or prac21 titioner from maintaining an election and acting as 

22 a participating or non-participating physician or 

23 practitioner with respect to any patient not covered 

24 under a contract established under this section. 

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


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

2 ‘Medicare beneficiary’ means an individual who 

3 is entitled to benefits under part A or enrolled 

4 under part B. 

5 ‘‘(B) PHYSICIAN.—The term ‘physician’ 

6 has the meaning given such term by paragraphs 

7 (1), (2), (3), and (4) of section 1861(r). 

8 ‘‘(C) PRACTITIONER.—The term ‘practi9 tioner’ means a practitioner described in section 

10 1842(b)(18)(C). 

11 ‘‘(D) EMERGENCY MEDICAL CONDITION.— 

12 The term ‘emergency medical condition’ means 

13 a medical condition manifesting itself by acute 

14 symptoms of sufficient severity (including se15 vere pain) such that a prudent layperson, with 

16 an average knowledge of health and medicine, 

17 could reasonably expect the absence of imme18 diate medical attention to result in— 

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

20 the individual or, in the case of a pregnant 

21 woman, the health of the woman or her 

22 unborn child; 

23 ‘‘(ii) serious impairment to bodily 

24 functions; or 


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1 ‘‘(iii) serious dysfunction of any bodily 

2 organ or part. 

3 ‘‘(E) URGENT HEALTH CARE SITUA4 TION.—The term ‘urgent health care situation’ 

5 means services furnished to an individual who 

6 requires services to be furnished within 12 

7 hours in order to avoid the likely onset of an 

8 emergency medical condition.’’. 

9 SEC. 3. PREEMPTION OF STATE LAWS LIMITING CHARGES 

10 FOR PHYSICIAN AND PRACTITIONER SERV11 ICES. 

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

13 the amount of charges for services, furnished by a physi14 cian or practitioner, for which payment is made under sec15 tion 1848 of the Social Security Act (42 U.S.C. 1395w– 

16 4), and any such limit is hereby preempted. 

17 (b) STATE.—In this section, the term ‘‘State’’ in18 cludes the District of Columbia, Puerto Rico, the Virgin 

19 Islands, Guam, and American Samoa. 

Æ 


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