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U.S. Code as of:
01/19/04
Section 1395a. Free choice by patient guaranteed
(a) Basic freedom of choice
Any individual entitled to insurance benefits under this
subchapter may obtain health services from any institution, agency,
or person qualified to participate under this subchapter 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
subchapter 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 subchapter, and
(B) for which the physician or practitioner receives -
(i) no reimbursement under this subchapter 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 subchapter 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
subchapter for such items or services even if such items or
services are otherwise covered by this subchapter;
(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
subchapter for such items or services;
(iii) acknowledges that no limits under this subchapter
(including the limits under section 1395w-4(g) of this title)
apply to amounts that may be charged for such items or
services;
(iv) acknowledges that Medigap plans under section 1395ss
of this title do not, and other supplemental insurance plans
may elect not to, make payments for such items and services
because payment is not made under this subchapter; 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 subchapter.
Such contract shall also clearly indicate whether the physician
or practitioner is excluded from participation under the
medicare program under section 1320a-7 of this title.
(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 subchapter
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
2-year period beginning on the date the affidavit is signed;
and
(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 subchapter for any item or service provided during the
2-year period described in subparagraph (B)(ii) (or receives
any reimbursement or amount described in paragraph (1)(B) for
any such item or service) with respect to such affidavit -
(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 subchapter 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).
(4) Limitation on actual charge and claim submission requirement
not applicable
Section 1395w-4(g) of this title shall not apply with respect
to any item or service provided to a medicare beneficiary under a
contract described in paragraph (1).
(5) Definitions
In this subsection:
(A) Medicare beneficiary
The term "medicare beneficiary" means an individual who is
entitled to benefits under part A of this subchapter or
enrolled under part B of this subchapter.
(B) Physician
The term "physician" has the meaning given such term by
paragraphs (1), (2), (3), and (4) of section 1395x(r) of this
title.
(C) Practitioner
The term "practitioner" has the meaning given such term by
section 1395u(b)(18)(C) of this title.
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