Medicare Patient Empowerment Act of 2021
Bill: S.826 | Sponsor: Sen. Paul, Rand (R-KY)
Policy area: Health

Summary:
Medicare Patient Empowerment Act of 2021
This bill allows any Medicare beneficiary to enter into a contract with an eligible professional, regardless of whether the professional is a participating or non-participating physician or practitioner, for any item or service covered by Medicare.
Such beneficiaries may submit a claim for Medicare payment in the amount that would otherwise apply, except that, where the professional is considered to be non-participating, payment shall be paid as if the professional were participating. An eligible professional is a physician, physician assistant, nurse practitioner, clinical nurse specialist, certified registered nurse anesthetist, certified nurse-midwife, clinical social worker, clinical psychologist, registered dietitian or nutrition professional, physical or occupational therapist, qualified speech-language pathologist, or qualified audiologist.
A Medicare beneficiary must agree in writing in such a contract to (1) pay the eligible professional for a Medicare-covered item or service; and (2) submit, in lieu of the eligible professional, a claim for Medicare payment. However, a beneficiary may negotiate, as a term of the contract, for the eligible professional to file such claims on the beneficiary's behalf.
The bill preempts state laws from limiting the amount of charges for physician and practitioner services for which Medicare payment is made.

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Medicare Patient Empowerment Act of 
2021''.

SEC. 2. GUARANTEEING FREEDOM OF CHOICE AND CONTRACTING FOR PATIENTS 
              UNDER MEDICARE.

    (a) In General.--Section 1802 of the Social Security Act (42 U.S.C. 
1395a) is amended to read as follows:

       ``freedom of choice and contracting by patient guaranteed

    ``Sec. 1802.  (a) Basic Freedom of Choice.--Any individual entitled 
to insurance benefits under this title may obtain health services from 
any institution, agency, or person qualified to participate under this 
title if such institution, agency, or person undertakes to provide that 
individual such services.
    ``(b) Freedom To Contract by Medicare Beneficiaries.--
            ``(1) In general.--Subject to the provisions of this 
        subsection, nothing in this title shall prohibit a Medicare 
        beneficiary from entering into a contract with an eligible 
        professional (whether or not the professional is a 
        participating or non-participating physician or practitioner) 
        for any item or service covered under this title.
            ``(2) Submission of claims.--Any Medicare beneficiary that 
        enters into a contract under this section with an eligible 
        professional shall be permitted to submit a claim for payment 
        under this title for services furnished by such professional, 
        and such payment shall be made in the amount that would 
        otherwise apply to such professional under this title except 
        that where such professional is considered to be non-
        participating, payment shall be paid as if the professional 
        were participating. Payment made under this title for any item 
        or service provided under the contract shall not render the 
        professional a participating or non-participating physician or 
        practitioner, and as such, requirements of this title that may 
        otherwise apply to a participating or non-participating 
        physician or practitioner would not apply with respect to any 
        items or services furnished under the contract.
            ``(3) Beneficiary protections.--
                    ``(A) In general.--Paragraph (1) shall not apply to 
                any contract unless--
                            ``(i) the contract is in writing, is signed 
                        by the Medicare beneficiary and the eligible 
                        professional, and establishes all terms of the 
                        contract (including specific payment for items 
                        and services covered by the contract) before 
                        any item or service is provided pursuant to the 
                        contract, and the beneficiary shall be held 
                        harmless for any subsequent payment charged for 
                        an item or service in excess of the amount 
                        established under the contract during the 
                        period the contract is in effect;
                            ``(ii) the contract contains the items 
                        described in subparagraph (B); and
                            ``(iii) the contract is not entered into at 
                        a time when the Medicare beneficiary is facing 
                        an emergency medical condition or urgent health 
                        care situation.
                    ``(B) Items required to be included in contract.--
                Any contract to provide items and services to which 
                paragraph (1) applies shall clearly indicate to the 
                Medicare beneficiary that by signing such contract the 
                beneficiary--
                            ``(i) agrees to be responsible for payment 
                        to such eligible professional for such items or 
                        services under the terms of and amounts 
                        established under the contract;
                            ``(ii) agrees to be responsible for 
                        submitting claims under this title to the 
                        Secretary, and to any other supplemental 
                        insurance plan that may provide supplemental 
                        insurance, for such items or services furnished 
                        under the contract if such items or services 
                        are covered by this title, unless otherwise 
                        provided in the contract under subparagraph 
                        (C)(i); and
                            ``(iii) acknowledges that no limits or 
                        other payment incentives that may otherwise 
                        apply under this title (such as the limits 
                        under subsection (g) of section 1848 or 
                        incentives under subsection (a)(5), (m), (q), 
                        and (p) of such section) shall apply to amounts 
                        that may be charged, or paid to a beneficiary 
                        for, such items or services.
                Such contract shall also clearly indicate whether the 
                eligible professional is excluded from participation 
                under the Medicare program under section 1128.
                    ``(C) Beneficiary elections under the contract.--
                Any Medicare beneficiary that enters into a contract 
                under this section may elect to negotiate, as a term of 
                the contract, a provision under which--
                            ``(i) the eligible professional shall file 
                        claims on behalf of the beneficiary with the 
                        Secretary and any supplemental insurance plan 
                        for items or services furnished under the 
                        contract if such items or services are covered 
                        under this title or under the plan; and
                            ``(ii) the beneficiary assigns payment to 
                        the eligible professional for any claims filed 
                        by, or on behalf of, the beneficiary with the 
                        Secretary and any supplemental insurance plan 
                        for items or services furnished under the 
                        contract.
                    ``(D) Exclusion of dual eligible individuals.--
                Paragraph (1) shall not apply to any contract if a 
                beneficiary who is eligible for medical assistance 
                under title XIX is a party to the contract.
            ``(4) Limitation on actual charge and claim submission 
        requirement not applicable.--Section 1848(g) shall not apply 
        with respect to any item or service provided to a Medicare 
        beneficiary under a contract described in paragraph (1).
            ``(5) Construction.--Nothing in this section shall be 
        construed--
                    ``(A) to prohibit any eligible professional from 
                maintaining an election and acting as a participating 
                or non-participating physician or practitioner with 
                respect to any patient not covered under a contract 
                established under this section; and
                    ``(B) as changing the items and services for which 
                an eligible professional may bill under this title.
            ``(6) Definitions.--In this subsection:
                    ``(A) Medicare beneficiary.--The term `Medicare 
                beneficiary' means an individual who is entitled to 
                benefits under part A or enrolled under part B.
                    ``(B) Eligible professional.--The term `eligible 
                professional' has the meaning given such term in 
                section 1848(k)(3)(B).
                    ``(C) Emergency medical condition.--The term 
                `emergency medical condition' means a medical condition 
                manifesting itself by acute symptoms of sufficient 
                severity (including severe pain) such that a prudent 
                layperson, with an average knowledge of health and 
                medicine, could reasonably expect the absence of 
                immediate medical attention to result in--
                            ``(i) serious jeopardy to the health of the 
                        individual or, in the case of a pregnant woman, 
                        the health of the woman or her unborn child;
                            ``(ii) serious impairment to bodily 
                        functions; or
                            ``(iii) serious dysfunction of any bodily 
                        organ or part.
                    ``(D) Participating; non-participating.--The terms 
                `participating' and `nonparticipating' have the 
                meanings given such terms under subsection (h) of 
                section 1842 for purposes of such section.
                    ``(E) Urgent health care situation.--The term 
                `urgent health care situation' means services furnished 
                to an individual who requires services to be furnished 
                within 12 hours in order to avoid the likely onset of 
                an emergency medical condition.''.

SEC. 3. PREEMPTION OF STATE LAWS LIMITING CHARGES FOR SERVICES BY AN 
              ELIGIBLE PROFESSIONAL.

    (a) In General.--No State may impose a limit on the amount of 
charges for services, furnished by an eligible professional (as defined 
in subsection (k)(3)(B) of section 1848 of the Social Security Act, 42 
U.S.C. 1395w-4), for which payment is made under such section, and any 
such limit is hereby preempted.
    (b) State.--In this section, the term ``State'' includes the 
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and 
American Samoa.
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