(Medicare Benefit Policy Manual)

are met).    A physician/practitioner who enters into at least one private contract with a Medicare beneficiary (under the conditions of 40.1) and who submits one or more affidavits in accordance with 40.9, opts-out of Medicare unless the opt-out is terminated early according to 40.35  or unless the physician/practitioner fails to maintain opt-out.  (See 40.11 .)   Valid opt-out affidavits signed on or after June 16, 2015, will automatically renew every 2 years. If physicians and practitioners who file affidavits effective on or after June 16, 2015, do not want their opt-out to automatically renew at the end of a 2 year opt-out period, they may cancel the renewal by notifying all contractors with which they filed an affidavit in writing at least 30 days prior to the start of the next opt-out period.  Valid opt-out affidavits signed before June 16, 2015, will expire 2 years after the effective date of the opt -out.  If physicians and practitioners that filed affidavits effective before June 16, 2015, want to extend their opt-out, they must submit a renewal affidavit within 30 days after the current opt -out period expires to all contractors with which they would have filed claims absent the opt -out.   Both the private contracts described in the first paragraph of this section and the physicians or practitioners opt-out described in the second paragraph of this section are null and void if the physician/practitioner fails to properly opt-out in accordance with the conditions of these instructions.   Both the private contracts described in the first paragraph of this section and the physicians or practitioners opt-out described in the second paragraph of this section are null and void for the remainder of the opt-out period if the physician/practitioner fails to remain in compliance with the conditions of these instructions during the opt-out period.   Services furnished under private contracts meeting the requirements of these instructions are not covered services under Medicare, and no Medicare payment will be made for such services either directly or indirectly.   40.3 - Effective Date of the Opt- Out Provision  (Rev. 1, 10-01-03) B3-3044.3  A physician/practitioner may enter into a private contract with a beneficiary for services furnished no earlier than January 1, 1998.  40.4 - Definition of Physician/Practitioner  (Rev. 62, Issued: 12-22- 06, Effective: 11 -13-06, Implementation: 04-02-07)   For purposes of this provision, the term physician is limited to doctors of medicine; doctors of osteopathy; doctors of dental surgery or of dental medicine; doctors of podiatric medicine; and doctors of optometry who are legally authorized to practice dentistry, podiatry, optometry, medicine, or 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;  Clinical social worker;   Registered dietitian; or   Nutrition Professional  The opt out law does not define physician to include chiropractors; 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.   40.5 - When a Physician or Practitioner Opts Out of Medicare  (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)  When a physician/practitioner opts-out of Medicare, Medicare covers no services provided by that individual and no Medicare payment can be made to that physician or practitioner directly or on a capitated basis.  Additionally, no Medicare payment may be ma de to a beneficiary for items or services provided directly by a physician or practitioner who has opted out of the program.  EXCEPTION:   In an emergency or urgent care situation, a physician/practitioner who opts- out may treat a Medicare beneficiary with whom he/she does not have a private contract and bill for such treatment.  In such a situation, the physician/practitioner may not charge the beneficiary more than what a nonparticipating physician/practitioner would be permitted to charge and must submit a claim to Medicare on the beneficiarys behalf.  Payment will be made for Medicare covered items or services furnished in eme rgency or urgent situations when the beneficiary has not signed a private contract with that physician/practitioner.  (See 40.28.)  Under the statute, the physician/practitioner cannot choose to opt- out of Medicare for some Medicare beneficiaries but not others; or for some services but not others.  The physician/practitioner who chooses to opt-out of Medicare may provide covered care to Medicare beneficiaries only through private contracts.  Medicare will make payment for covered, medically necessary services that are ordered or certified by a physician/practitioner who has opted out of Medicare if the ordering or certifying physician/practitioner has acquired a National Provider Identifier (NPI), reports his/her Social Security Number, has a valid opt-out affidavit on file with his or her Medicare Administrative Contractor (MAC), is of a specialty that is eligible to order and certify, and provided that the services are not furnished by another physician/practitioner who has also opted out.  For example, if  an opt -out physician/practitioner admits a beneficiary to a hospital, Medicare will reimburse the hospital for medically necessary care.   40.6 - When Payment May be Made to a Beneficiary for Service of an Opt -Out Physician/Practitioner  (Rev. 160, Issued: 10- 26-12, Effective: 01 -28-13, Implementation: 01- 28-13)  Payment may be made to a beneficiary for services of an opt out physician/practitioner in two cases:    The services are emergency or urgent care services furnished by an opt -out physician/practitioner to a beneficiary with whom he/she has not previously entered into a private contract.  (See 40.28 for further discussion of emergency and urgent care servi ces by opt -out physicians and practitioners.); or    The opt -out physician/practitioner failed to privately contract with the beneficiary for services that he/she provided that were not emergency or urgent care services.  The CMS expects this case to come to the Medicare A/B MAC (B)s attention as a result  of a complaint from a beneficiary or the beneficiarys legal representative, or as a result of the beneficiary or the beneficiarys legal representative filing a claim for services furnished by an opt out physician/practitioner.  Medicare payment may be m ade for the claims submitted by a beneficiary for the services of an opt out physician/practitioner when the physician/practitioner did not privately contract with the beneficiary for services that were not emergency care services or urgent care services and that were furnished no later than 15 days after the date of a notice by the A/B MAC (B) that the physician/practitioner has opted out of Medicare (see 42 CFR 405.435(c)).  Therefore, if the beneficiary submits a claim for a service that was furnished by  an opt out physician/practitioner, then the A/B MAC (B) must contact the opt out physician/practitioner in order to ascertain whether the beneficiary entered into a private contract with the opt out physician/practitioner.  (Note: The A/B MAC (B) should obtain a copy of the private contract from the opt out physician/practitioner before denying the beneficiarys claim if the beneficiary did, in fact, enter into a private contract with the physician/practitioner.)  If the beneficiary did not enter into a pr ivate contract with the physician/practitioner and the beneficiary did not receive notice from the A/B MAC (B) that the physician/practitioner opted out of Medicare, then Medicare payment may be made to the beneficiary for the non-emergency and/or non- urgent care services (assuming that the services would otherwise be payable).  On the other hand, if the beneficiary did enter into a private contract with the physician/practitioner for the services or received services from the physician/practitioner 15 days  after the date of a notice by the A/B MAC (B) that the physician/practitioner has opted out of Medicare, then no Medicare payment may be made.  Moreover, the A/B MAC (B) must follow the procedures outlined in 40.11 for cases in which the physician/practi tioner fails to maintain opt- out.  If the physician/practitioner does not respond to the Medicare A/B MAC (B)s request for a copy of the private contract within 45 days, the A/B MAC (B) must make payment to the beneficiary based upon the payment for a nonparticipating physician/practitioner for that service.  It must notify the beneficiary that the physician/practitioner who has opted out must privately contract with the beneficiary or the beneficiarys legal representative for services the physician/pract itioner furnished and that no further payment will be made to the beneficiary for services furnished by the opt -out physician/practitioner after 15 days from the postmark of the notice.   40.7 - Definition of a Private Contract  (Rev. 1, 10- 01-03) B3-3044.7  A private contract is a contract between a Medicare beneficiary and a physician or other practitioner who has opted out of Medicare for two years for all covered items and services the physician/practitioner furnishes to Medicare beneficiaries.  In a private contract, the Medicare beneficiary agrees to give up Medicare payment for services furnished by the physician/practitioner and to pay the physician/pra ctitioner without regard to any limits that would otherwise apply to what the physician/practitioner  could charge.  Pursuant to the statute, once a physician/practitioner files an affidavit notifying the A/B MAC (B) that the he/she has opted out of Medicare, the physician/practitioner is out of Medicare for two years from the date the affidavit is signed (unless the opt-out is terminated early according to 40.35, or unless the he/she fails to maintain opt-out (See 40.11)).  After those two years are over, a physician/practitioner could elect to return to Medicare or to opt out again.  A beneficiary who signs a private contract with a physician/practitioner is not precluded from receiving services from other physicians and practitioners who have not opted out of Medicare.   Physicians or practitioners who provide services to Medicare beneficiaries enrolled in the new Medical Savings Account (MSA) demonstration created by the BBA of 1997 are not required to enter into a private contract with those beneficiaries and to opt out of Medicare under 1802 of the Act.   40.8 - Requirements of a Private Contract  (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)  A private contract under this section must:   Be in writing and in print sufficiently large to ensure that the beneficiary is able to read the contract;   Clearly state whether the physician/practitioner is excluded from Medicare under 1128, 1156  or 1892  of the Act;    State that the beneficiary or the beneficiarys legal representative accepts full responsibility for payment of the physicians or practitioners charge for all services furnished by the physician/practitioner;   State that the beneficiary or the beneficiarys legal representative understands that Medicare limits do not apply to what the physician/practitioner may charge for items or services furnished by the physician/practitioner;   State that the beneficiary or the beneficiarys legal representative agrees not to submit a claim to Medicare or to ask the physician/practitioner to submit a claim to Medicare;   State that the beneficiary or the beneficiarys legal representative understands that Medicare payment will not be made for any items or services furnished by the physician/practitioner that would have otherwise been covered by Medicare if there was no pri vate contract and a proper Medicare claim had been submitted;    State that the beneficiary or the beneficiarys legal representative enters into the contract with the knowledge that the beneficiary has the right to obtain Medicare- covered items and services from physicians and practitioners who have not opted out of Medicare, and that the beneficiary is not compelled to enter into private contracts that apply to other Medicare-covered services furnished by other physicians or practitioners who have not opted out;   State the expected or known effective date and the expected or known expiration date of the current 2-year opt-out period;   State that the beneficiary or the beneficiarys legal representative understands that Medigap plans do not, and that other supplemental plans may elect not to, make payments for items and services not paid for by Medicare;   Be signed by the beneficiary or the beneficiarys legal representative and by the physician/practitioner;   Not be entered into by the beneficiary or by the beneficiarys legal representative during a time when the beneficiary requires emergency care services or urgent care services.  (However, a physician/practitioner may furnish emergency or urgent care services to a Medicare beneficiary in accordance with 40.28 );   Be provided (a photocopy is permissible) to the beneficiary or to the beneficiarys legal representative before items or services are furnished to the beneficiary under the terms of the contract;