Eyeworld

EW NEWS & OPINION 10 September 2016 reimbursement for services provided by non-enrolled physicians. According to CMS' response, physicians have only three options for providing and billing for Medi- care covered services: (1) partici- pation; (2) non-participation; or (3) opt-out/private contracting. 10 There is no fourth option in which non-enrolled physicians may bill Medicare patients directly for cov- ered services. That letter also confirmed that the mandatory claims submission re- quirement applies to all physicians, even if the physician is not enrolled in Medicare, and that penalties can be applied for failing to submit a claim for a Medicare beneficiary. As for the issue of beneficiaries submit- ting their own claims to Medicare using CMS-1490S, CMS states that this form is "rarely used" and that it is only intended for situations in which an enrolled physician refuses to submit a claim on the benefi- ciary's behalf. In such cases, the beneficiary may submit a claim and be paid, but the beneficiary is also supposed to notify the contractor in writing of the physician's refusal to submit the claim, and Medicare contractors are expected to educate physicians on their obligation to submit claims on the beneficiary's behalf. Despite CMS' clear statement that there is no fourth option, we are not aware that the agency is actively enforcing the opt-out or claim submission rules against physicians who continue to treat and bill Medicare patients without following these rules. However, it also appears that CMS is not paying for claims submitted by patients in these circumstances. Judicial interpretation CMS' interpretation is consistent with the decision in Association of American Physicians and Surgeons, Inc. v. Sebelius, 11 in which the United States District Court for the District of Columbia addressed an issue very similar to that raised by the "fourth option." The court specifically rejected the notion that non-enrolled physicians could avoid the Medicare opt-out rules and bill patients outside of Medicare: First, plaintiffs allege that nothing in Medicare or any other provision of law requires "non-Medicare providers" to comply with the statutory opt- out requirement before treating and obtaining payment from Medicare-eligible beneficiaries outside the Medicare system. … The Medicare statute itself requires physicians who treat Medicare beneficiaries, but re- ceive compensation from those patients outside of Medicare, to comply with the opt-out requirements. … Although the complaint classifies physicians who refer under Medicare Part B as "non-Medicare providers," these physicians are actually just the type of providers to whom that requirement applies; they treat Medicare beneficiaries but require payment outside of Medicare. 12 In short, Medicare law is clear that physicians cannot avoid Medicare billing rules, including the limiting charge, by not enrolling in Medicare and having the patient submit a claim directly to Medi- care using CMS-1490S. In addition, a physician who knowingly and willfully refuses to submit claims to Medicare on the beneficiary's behalf would be in violation of the man- datory claims submission rules and subject to civil monetary penalties. For those thinking that the pri- vate contracting and limiting charge laws themselves are over-reaching and should be challenged, the answer is they have been, and the courts have uniformly rejected such challenges, finding the laws to be within the constitutional powers of the government. As far as the courts are concerned, the fact that ben- eficiaries participate in a federally funded health insurance program like Medicare gives the government substantial power to regulate the Setting continued from page 3 2016 Alliance of Specialty Medicine Legislative Fly-In To read about ASCRS•ASOA attendees' experiences at this year's Fly-In, see page 21.

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