12/09/2003 Barry H. Block, DPM, JD
Everything You Need to Know About Opting Out of Medicare - Part 6
Everything You Need to Know About Opting Out of
Medicare
Barry H. Block, DPM, JD- Part 6 – Some
Concluding Thoughts
The process to opt-out is statutorily complex
and must be followed meticulously. Failure
to “dot your i’s and cross your t’s” in either
your affidavit or private patient contracts can
result in the voiding the entire opt-out
process. If this occurs, you could be faced with
a bureaucratic paperwork nightmare. Imagine
having to code and refund money to hundreds (or
thousands) of patients! In addition, you could
be subject to both civil and criminal
prosecution.
While it is technically possible for providers
to opt-out by themselves, it is wise for any
practitioner considering this pathway to consult
a healthcare attorney to oversee this process.
This small investment will enable you to sleep
better at night and will provide you with
recourse if your opt-out status is ever
challenged.
Editor’s note: We will keep you apprised as to
the percentage of DPM’s who elect to opt-out
when these statistics become available. In
addition, we will relate the experiences, both
positive and negative of those who exercise this
option.
12/08/2003 Barry H. Block, DPM, JD
Everything You Need to Know About Opting Out of Medicare- Part 5
Everything You Need to Know About Opting Out of
Medicare
Barry H. Block, DPM, JD- Part 5 –
To Opt-Out or Not?
Before deciding to opt out do your
homework. Review your managed care agreement to
determine whether private contracting will have
any adverse consequences. For example,
credentialing requirements of managed care plans
should be reviewed to confirm that participation
in Medicare is not required.
One idea suggests Kenneth Malkin, DPM,
noted Medicare expert, is to switch to non-
participating status before opting-out. “see how
your patients react to having to lay out funds
first”, he cautions.
For other podiatrists, such as Lowell
Weil, Sr., D.P.M. of Des Plaines, IL, the
decision to opt-out was an easy one to make. “My
practice is in a high socioeconomic area with
patients who will pay for perceived/real quality
and service. At the same time, I will not turn
away someone who cannot afford my reasonable and
customary fees. I will treat them the same way
that I did 30 years ago when we could
decide "who" to charge "what."
12/06/2003 Barry H. Block, DPM, JD
Everything You Need to Know About Opting Out of Medicare - Part 4
Everything You Need to Know About Opting Out of
Medicare
Barry H. Block, DPM, JD-
Part 4 - Other Timing Considerations
Timing Considerations
Most DPM’s are participating physicians
in Medicare. CMS has set rather strict timing
guidelines for this class of providers who wish
to opt out. "To opt out of Medicare, a
participating physician must first terminate his
or her Medicare Part B participation agreement"
CMS allows termination on the following
quarterly basis: Jan. 1, Apr. 1, July 1, and
Oct. 1. Note, however, that a participating
physician must give his or her carrier 30-days'
prior notice by sending in the opt-out affidavit
with an effective date of the beginning of the
next quarter. For example, the carrier must
receive the notice from the physician by March 1
if the physician seeks to provide private
contracting services beginning on April 1.
Non-participating providers, as well as
those who have never enrolled are not bound by
these timing rules.
12/05/2003 Barry H. Block, DPM, JD
Everything You Need to Know About Opting Out of Medicare- Part 3
Everything You Need to Know About Opting Out of
Medicare
Barry H. Block, DPM, JD- Part 3 - Physician’s
Affidavit
The next major requirement of opting out is the
requirement to complete and timely submit a
physician’s affidavit. To be valid this
affidavit must be in writing, signed by the
physician, and contain the physician's full
name, address, telephone number, uniform
provider identification number (if one has been
assigned), or the physician's tax identification
number.
The affidavit should state that during the opt-
out period:
• Except for emergency or urgent care services,
the physician will provide services to Medicare
beneficiaries only through private contracts
that meet specific criteria.
• The physician or his/her agent will not submit
a claim to Medicare for any service furnished to
a Medicare beneficiary.
• The physician understands that he/she may
receive no direct or indirect Medicare payment
for services furnished to Medicare beneficiaries
with whom he/she has privately contracted.
• The physician acknowledges that his/her
services are not covered under Medicare and that
no Medicare payment may be made to any entity
for these services, directly or on a capitated
basis.
• The physician promises to be bound by the
terms of both the affidavit and the private
contracts into which he/she has entered.
• The physician recognizes that the terms of the
affidavit apply to all Medicare-covered items
and services furnished to Medicare beneficiaries
by the physician during the opt-out period.
• The physician understands that a beneficiary
who has not entered into a private contract and
who requires emergency or urgent care services
may not be asked to enter into a private
contract with respect to receiving such
services.
The physician’s affidavit must be filed with all
Medicare carriers no later than 10 days after
the first private contract into which the
affidavit applies is entered.
12/04/2003 Barry H. Block, DPM
Everything You Need to Know About Opting Out of Medicare- Part 3
Everything You Need to Know About Opting Out of
Medicare
Barry H. Block, DPM, JD- Part 3 - Requirements
of Patient Contracts
As part of the opt-out process, a contract must
be entered into with every Medicare patient.
According to Steven M. Harris, JD, “if a
physician fails to properly opt out of Medicare,
then the private contracts the physician
executed are null and void.” He lists the
following technical requirements for the opt out
patient contract:
Pursuant to federal regulations, the private
contract 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 is
excluded from Medicare.
• State that the beneficiary or his or her legal
representative accepts full responsibility for
payment of the physician's charge for all
services furnished by the physician.
• State that the beneficiary or his or her legal
representative understands that Medicare limits
do not apply to what the physician or
practitioner may charge.
• State that the beneficiary or his or her legal
representative agrees not to submit a claim to
Medicare or to ask the physician to submit a
claim to Medicare.
• State that the beneficiary or his or her legal
representative understands that Medicare payment
will not be made for any items or services
furnished by the physician or practitioner that
would have otherwise been covered by Medicare if
there was no private contract and a proper
Medicare claim had been submitted.
• State that the beneficiary or his or her legal
representative enters into the contract with the
knowledge that he or she has the right to obtain
Medicare-covered items and services from
physicians 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 who have not opted out.
• State the expected or known effective date and
expected or known expiration date of the opt-out
period.
• State that the beneficiary or his or her 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 his or her
legal representative and by the physician.
• Not be entered into by the beneficiary or by
the beneficiary's legal representative during a
time when the beneficiary requires emergency or
urgent care services.
• Be provided (a photocopy is permissible) to
the beneficiary or to his or her legal
representative before items are furnished to the
beneficiary under the terms of the contract.
• Be retained (original signatures of both
parties required) by the doctor for the duration
of the opt-out period.
• Be available to CMS on request.
• Be entered into for each opt-out period.
Also, both the private contracts and the
physician's opt-out are null and void for the
remainder of the opt-out period if the physician
fails to remain in compliance with the
conditions of the opt-out statute or rules.
12/03/2003 Barry H. Block, DPM, JD-
Everything You Need to Know About Opting Out of Medicare- Part 2
Everything You Need to Know About Opting Out of
Medicare
Barry H. Block, DPM, JD- Part 2 On the Plus Side
For many providers, the loss of paying Medicare
patients which
results when you opt out is no big deal. This is
particular true if
either 1)you have a busy practice and derive
higher income from non-
Medicare patients 2) your reputation is such
that Medicare patients
are willing to forego reimbursement for superior
podiatric services
or 3) most of the services you provide are
routine foot care and
thus not eligible for reimbursement.
The Two-Year Rule
It's important to note that opting out is an
irreversible all-or-nothing two-year decision.
The two-year year period commences with
the effective date of the affidavit you must
file with CMS and your local Medicare carriers.
Bureaucratic Complexity
Once you are fully aware of the implication of
opting-out, you are faced with the complexities
of getting this done. Unfortunately,
there are no simple forms to accomplish this
goal. We will lay out the general requirements
as mandated by statute, but this article
should not be construed as legal advice. Because
there are consequences for violating the
provisions and because this procedure
must be done meticulously, we advise you seek
the services of a healthcare attorney to oversee
this process.
12/02/2003 Barry H. Block, DPM, JD
Everything You Need to Know About Opting Out of Medicare - Part 1
Everything You Need to Know About Opting Out of
Medicare -------
By Barry H. Block, DPM, JD - Part 1
Podiatrists now have the right to “opt-out” of
Medicare. This stands as one of the great
victories of the new millennium for the APMA.
The significance of this provision, passed as
part of the 2003 Medicare Reform Bill, was to
put DPM’s on parity with MD’s and DO’s, who have
had this right since 1997.
While most DPM’s will elect not to opt-out of
Medicare, it is nevertheless important to
understand what this provision means and how it
activated.
What Opting Out Means
Opting-out means removing yourself from the
Medicare system. This is far different from non-
participating. Non-participating Medicare
providers do not accept Medicare payments
directly from the government. They simply charge
Medicare patients, who in turn are reimbursed by
the government. Non-participating providers are
still subject to fee and coverage limitations.
In addition, non-participating providers can
still be audited.
When you opt-out, you can charge whatever fee
you wish irregardless of whether a procedure
is “covered” or not. Additionally, since you
have entered into a private contract with the
patient, you cannot be audited by Medicare.
So why wouldn’t you want to opt-out. The fly in
the ointment is the private contract you must
enter into with your Medicare patients. This
contract, among other things, informs your
patients that you are no longer part of Medicare
and therefore, neither they or the provider will
receive any government funds.
Since most patients are used to either 1) not
paying for services (except for the deductible
and co-insurance) or 2) Paying and being
reimbursed, it is likely that you will lose a
large percentage of your Medicare patients.
