FREE CHOICE BY PATIENT GUARANTEED

Sec. 1802. [42 U.S.C. 1395a] (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 him such services.

(b) Use of Private Contracts by Medicare Beneficiaries.—

(1) In general.—Subject to the provisions of this subsection, nothing in this title shall prohibit a physician or practitioner from entering into a private contract with a medicare beneficiary for any item or service—

(A) for which no claim for payment is to be submitted under this title, and

(B) for which the physician or practitioner receives—

(i) no reimbursement under this title directly or on a capitated basis, and

(ii) receives no amount for such item or service from an organization which receives reimbursement for such item or service under this title directly or on a capitated basis.

(2) Beneficiary protections.—

(A) In general.—Paragraph (1) shall not apply to any contract unless—

(i) the contract is in writing and is signed by the medicare beneficiary before any item or service is provided pursuant to the contract;

(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 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 not to submit a claim (or to request that the physician or practitioner submit a claim) under this title for such items or services even if such items or services are otherwise covered by this title;

(ii) agrees to be responsible, whether through insurance or otherwise, for payment of such items or services and understands that no reimbursement will be provided under this title for such items or services;

(iii) acknowledges that no limits under this title (including the limits under section 1848(g)) apply to amounts that may be charged for such items or services;

(iv) acknowledges that Medigap plans under section 1882do not, and other supplemental insurance plans may elect not to, make payments for such items and services because payment is not made under this title; and

(v) acknowledges that the medicare beneficiary has the right to have such items or services provided by other physicians or practitioners for whom payment would be made under this title.

Such contract shall also clearly indicate whether the physician or practitioner is excluded from participation under the medicare program under section 1128.

(3) Physician or practitioner requirements.—

(A) In general.—Paragraph (1) shall not apply to any contract entered into by a physician or practitioner unless an affidavit described in subparagraph (B) is in effect during the period any item or service is to be provided pursuant to the contract.

(B) Affidavit.—An affidavit is described in this subparagraph if—

(i) the affidavit identifies the physician or practitioner and is in writing and is signed by the physician or practitioner;

(ii) the affidavit provides that the physician or practitioner will not submit any claim under this title for any item or service provided to any medicare beneficiary (and will not receive any reimbursement or amount described in paragraph (1)(B) for any such item or service) during the applicable 2-year period (as defined in subparagraph (D)); and^[3]

(iii) a copy of the affidavit is filed with the Secretary no later than 10 days after the first contract to which such affidavit applies is entered into.

(C) Enforcement.—If a physician or practitioner signing an affidavit under subparagraph (B) knowingly and willfully submits a claim under this title for any item or service provided during the applicable 2-year period(or receives any reimbursement or amount described in paragraph (1)(B) for any such item or service) with respect to such affidavit—^[4]

(i) this subsection shall not apply with respect to any items and services provided by the physician or practitioner pursuant to any contract on and after the date of such submission and before the end of such period; and

(ii) no payment shall be made under this title for any item or service furnished by the physician or practitioner during the period described in clause (i) (and no reimbursement or payment of any amount described in paragraph (1)(B) shall be made for any such item or service).

(D) Applicable 2-year periods for effectiveness of affidavits.— In this subsection, the term “applicable 2-year period” means, with respect to an affidavit of a physician or practitioner under subparagraph (B), the 2- year period beginning on the date the affidavit is signed and includes each subsequent 2-year period unless the physician or practitioner involved provides notice to the Secretary (in a form and manner specified by the Secretary), not later than 30 days before the end of the previous 2-year period, that the physician or practitioner does not want to extend the application of the affidavit for such subsequent 2-year period.^[5]

(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)Posting of information on opt-out physicians and practitioners.—

(A) In general.— Beginning not later than February 1, 2016, the Secretary shall make publicly available through an appropriate publicly accessible website of the Department of Health and Human Services information on the number and characteristics of opt-out physicians and practitioners and shall update such information on such website not less often than annually.

(B) Information to be included.— The information to be made available under subparagraph (A) shall include at least the following with respect to opt-out physicians and practitioners:

(i) Their number.

(ii) Their physician or professional specialty or other designation.

(iii) Their geographic distribution.

(iv) The timing of their becoming opt-out physicians and practitioners, relative, to the extent feasible, to when they first enrolled in the program under this title and with respect to applicable 2-year periods.

(v) The proportion of such physicians and practitioners who billed for emergency or urgent care services.^[6]

(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) Physician.—The term “physician” has the meaning given such term by paragraphs (1), (2), (3), and (4) of section 1861(r).

(C) Practitioner.—The term “practitioner” has the meaning given such term by section 1842(b)(18)(C).

(D) Opt-out physician or practitioner.— The term “opt-out physician or practitioner” means a physician or practitioner who has in effect an affidavit under paragraph (3)(B).^[7]

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^[3]  P.L. 114-10, §106(a)(1)(A)(i) Struck “during the 2–year period beginning on the date the affidavit is signed” and inserted “ during the applicable 2-year period (as defined in subparagraph (D)). Effective April 16, 2015.

^[4]  P.L. 114-10, §106(a)(1)(A)(i) Struck “during the 2-year period described in subparagraph (B)(ii)” and inserted “during the applicable 2-year period”. Effective April 16, 2015.

^[5]  P.L. 114-10, §106(a)(1)(A)(ii) Added subparagraph (D). Effective April 16, 2015.

^[6]  P.L. 114-10, §106(a)(2)(C) Inserted new paragraph (5). Effective April 16, 2015.

^[7]  P.L. 114-10, §106(a)(2)(A) Added subparagraph (D). Effective April 16, 2015.

P.L. 114-10, §106(a)(2)(B) Redesignated paragraph 1802–b-5 to 1802–b-6. Effective April 16, 2015.