(Medicare Benefit Policy Manual)

40.24 - The Difference Between Advance Beneficiary Notices (ABN) and Private Contracts  (Rev. 1, 10- 01-03) B3-3044.24  An Advance Beneficiary Notice (ABN) allows a beneficiary to make an informed consumer decision by knowing in advance that the beneficiary may have to pay out-of-pocket.  An ABN is not needed where the item or service is categorically excluded from Medicare coverage or outside the scope of the benefit.   An ABN is used when the physician/practitioner believes that Medicare will not make payment, while private contracts are used for services that are covered by Medicare and for which payment might be made if a claim were to be submitted.   See the Medicare Claims Processing Manual, chapter 30, for a description of the ABN.  40.25 - Private Contracting Rules When Medicare is the Secondary Payer  (Rev. 1, 10-01-03) B3-3044.25  The opt- out physician/practitioner must have a private contract with a Medicare beneficiary for all Medicare- covered services (see 40.7), notwithstanding that Medicare would be the secondary payer in a given situation.  No Medicare primary or  secondary payments will be made for items and services furnished by a physician/practitioner under the private contract.  40.26 - Registration and Identification of Physicians or Practitioners Who Opt Out (Rev. 160, Issued: 10-26-12, Effective: 01-28-13, Implementation: 01-28-13)  If the Medicare contractor has the physicians/practitioners NPI, then the Medicare contractor should use it in order to identify opt-out physicians or practitioners nationwide.  However, if the physician/practitioner does not have an NPI, then the Medicare contractor must use the physicians or practitioners TIN to identify opt-out physicians or practitioners nationwide.  40.27 - System Identification  (Rev. 160, Issued: 10-26-12, Effective: 01-28-13, Implementation: 01-28-13)  The Medicare contractor must ensure that its system can automatically identify claims that include services furnished by providers or practitioners who have opted out of Medicare.  It must not make payment to any opt-out physician/practitioner for items or services furnished on or after the effective date of the physicians or practitioners opt out affidavit unless there are emergency or urgent care situations involved.  In an emergency or urgent care situation, payment can be made for services furnished t o a Medicare beneficiary if the beneficiary has no contract with the opt-out physician/practitioner.  See the following section for related instructions.  40.28 - Emergency and Urgent Care Situations (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)  Payment may be made for services furnished by an opt-out physician or practitioner who has not signed a private contract with a Medicare beneficiary for emergency or urgent care items and services furnished to, or ordered or prescribed for, such beneficiary on or after the date the physician opted out.  Where a physician or practitioner who has opted out of Medicare treats a beneficiary with whom the physician or practitioner does not have a private contract in an emergency or urgent care situation, the physician or practitioner may not charge the benefic iary more than the Medicare limiting charge for the service and must submit the claim to Medicare on behalf of the beneficiary for the emergency or urgent care.  Medicare payment may be made to the beneficiary for the Medicare covered services furnished to  the beneficiary.   In other words, where the physician or practitioner provides emergency or urgent care services to the beneficiary, the physician or practitioner must submit a claim to Medicare, and may collect no more than the Medicare limiting charge in the case of a phy sician, or the deductible and coinsurance in the case of a practitioner.  This implements 1802(b)(2)(A)(iii)  of the Act, which specifies that the contract may not be entered into when the beneficiary is in need of emergency or urgent care.  Because the services are excluded from coverage under 1862(a)(19)  of the Act only if they are furnished under private contract, CMS concludes that they are not excluded in this case where there is no private contract, notwithstanding that they were furnished by an opt-out physician or practitioner.  Hence, they are covered services furnished by a nonparticipating physician or practitioner, and the rules in effect absent the opt-out would apply in these cases.  Specifically, the physician or practitioner may choose to take assignment (thereby agreeing to collect no more than the Medicare deductible and coinsurance based on the allowed amount from the beneficiary) or not to take assignment (and to collect no more than the Medicare limiting charge), but the practitioner must take assignment under 1842(b)(18)  of the Act.   Therefore, in this circumstance the physician or practitioner must submit a completed Medicare claim on behalf of the beneficiary with the appropriate HCPCS code and HCPCS modifier that indicates the services furnished to the Medicare beneficiary were emergency or urgent care services and the beneficiary does not have a private contract with the physician or practitioner.  If the physician or practitioner did not submit the GJ national HCPCS modifier, then the Medicare contractor must deny the claim so that the beneficiary can appeal.   GJ = Opt -out physician/practitioner EMERGENCY OR URGENT SERVICES  This modifier must be used on claims for services rendered by an opt-out physician/ practitioner for an emergency/urgent care service.  The use of this modifier indicates that the service was furnished by an opt-out physician/practitioner who has not signed a private contract with a Medicare beneficiary for emergency or urgent care items and services furnished to, or ordered or prescribed for, such beneficiary on or after the date the physician/practitioner opted out.  The Medicare contractor must deny payment for emergency or urgent care items and services to both an opt-out physician or practitioner and the beneficiary if these parties have previously entered into a private contract, i.e., prior to the furnishing of the emergency or urgent care items or services but within the physicians or practitioners current 2-year  period.  Under the emergency and urgent care situation where an opt-out physician or practitioner renders emergency or urgent service to a Medicare beneficiary (e.g., a fractured leg) who has not entered into a private agreement with the physician or practitioner, as stated above the physician or practitioner is required to submit a claim to Medicare with the appropriate modifier (GJ and 54 as discussed further below) and is subject to all the rules and regulations of Medicare, including the limiting charge.  However, if the opt-out physician or practitioner asks the beneficiary, with whom the physician or practitioner has no private contract, to return for a follow up visit (e.g., return within 5 to 6 weeks to remove the cast and examine the leg) the physician or practitioner must ask the beneficiary to sign a private contract.  In other words, once a beneficiary no longer needs emergency or urgent care (i.e., non-urgent follow up care), Medicare cannot pay for the follow up care and the physician or practitioner can and must, under the opt-out affidavit agreement, ask the beneficiary to sign a private contract as a condition of further treatment.  The way this would work in the fractured leg example (see previous paragraph) is that the physician or practitioner would bill Medicare for the setting of the fractured leg with the emergency opt-out HCPCS modifier  (GJ) and the surgical care only modifier (54) to ensure that Medicare does not pay the Evaluation and Management (E&M) that is in the global fee for the procedure.  The physician or practitioner would then either have the beneficiary sign the private contract or refer the beneficiary to a Medicar e physician or practitioner who would bill Medicare using the post op only modifier to be paid for the post op care in the global period.  If the beneficiary continues to be in a condition that requires emergency or urgent care (i.e., unconscious or unstable after surgery for an aneurysm) follow up care would continue to be paid under emergency or urgent care until such time as the beneficiar y no longer needed such care.  In the absence of incontrovertible evidence, CMS recommends accepting what the physician or practitioner says via the modifiers and doing post-pay records review of frequent users of the opt-out modifier.  40.29 - Definition of Emergency and Urgent Care Situations  (Rev. 206, Issued: 04-10-15, Effective: 07-13-15, Implementation: 07-13-15)  Emergency care services means inpatient or outpatient hospital services that are necessary to prevent death or serious impairment of health and, because of the danger to life or health, require use of the most accessible hospital available and equipped to furnish those services.  Congress intended that the term emergency or urgent care services not be limited to emergency services since they also included urgent care services.  Urgent Care Services are defined in 42 CFR 405.400 as services furnished within 12 hours in order to avoid the likely onset of an emergency medical condition.  For example, if a beneficiary has an ear infection with significant pain, CMS would view that as requiring treatment to avoid the adverse consequences of continued pain and perforation of the eardrum.  The patients condition would not meet the definition of emergency medical condition because immediate care is not needed to avoid placing the health of the individual in serious jeopardy or to avoid serious impairment or dysfunction.  However, although it does not meet the definition of emergency care, the beneficiary needs care within a relatively short period of time (which CMS defines as 12 hours) to avoid adverse consequences, and the beneficiary may not be able to find another physician or practitioner to provide treatment within 12 hours.  40.30 - Denial of Payment to Employers of Opt -Out Physicians and Practitioners  (Rev. 160, Issued: 10-26-12, Effective: 01-28-13, Implementation: 01-28-13)  If an opt-out physician or practitioner is employed in a hospital setting and submits bills for which payment is prohibited, the Medicare contractor usually detects and investigates the situation.  However, in some instances an opt-out physician or practit ioner may have a salary arrangement with a hospital or clinic or work in a group practice and may not directly submit bills for payment.  If the Medicare contractor detects this situation, it must recover the payment made for the opt-out physician/practitioner from the hospital/clinic/group practice, after appropriate notification.   40.31 - Denial of Payment to Beneficiaries and Others  (Rev. 160, Issued: 10-26-12, Effective: 01-28-13, Implementation: 01-28-13)  If a beneficiary submits a claim that includes items or services furnished by an opt-out physician or practitioner on dates on or after the effective date of opt out by such physician or practitioner, the Medicare contractor must deny such items or service s except as permitted by 40.6.  40.32 - Payment for Medically Necessary Services Ordered or Prescribed by an Opt -out physician or Practitioner  (Rev. 160, Issued: 10-26-12, Effective: 01-28-13, Implementation: 01-28-13)  If claims are submitted for any items or services ordered or prescribed by an opt out physician or practitioner under 1802 of the Act, the Medicare contractor may pay for medically necessary services of the furnishing entity, provided the furnishing entity is not also a physician or practitioner that has opted out of the Medicare program.    40.33 - Mandatory Claims Submission  (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)  Section 1848(g)(4) of the Act, Physician/Practitioner Submission of Claims, regarding mandatory claims submission, does not apply once a physician or practitioner signs and submits an affidavit to the Medicare contractor opting out of the Medicare program, for the duration of the physicians or practitioners opt-out period, unless the physician or practitioner knowingly and willfully violates a term of the affidavit.  40.34 - Cancellation of Opt -Out (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)  A physician or practitioner may cancel opt-out by submitting a written notice to each MAC to which he or she would file claims absent the opt-out, not later than 30 days before the end of the current 2-year opt-out period, indicating that the physician or practitioner does not want to extend the application of the opt-out affidavit for a subsequent 2- year period.   40.35 - Early Termination of Opt -Out (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)  If a physician or practitioner changes his or her mind after the Medicare contractor has approved the affidavit, the opt-out may be terminated within 90 days of the effective date of the affidavit.  To properly terminate an opt -out, a physician or practiti oner must:    Not have previously opted out of Medicare;   Notify all Medicare contractors, with which the physician or practitioner filed an affidavit, of the termination of the opt- out no later than 90 days after the effective date of the initial 2 -year period;   Refund to each beneficiary with whom the physician or practitioner has privately contracted all payment collected in excess of: