Eyeworld

3 EW NEWS & OPINION by Robert Portman, JD, MPP, and Rebecca Burke, JD Setting the record straight: There is no "fourth option" for treating Medicare patients September 2016 a Medicare beneficiary would be in violation of Medicare law unless the physician had opted-out of Medi- care. Non-covered services The Medicare claims submission, limiting charge, and private con- tracting rules do not apply to ser- vices for which there is no Medicare coverage, such as LASIK. However, the fact that a physician is not en- rolled in Medicare does not have the effect of converting covered services to non-covered. In other words, if the service would be covered when provided by an enrolled physician, the Medicare claims submission, limiting charge, and private con- tracting rules would apply even if the physician is not enrolled in Medicare. Medicare letter to the American Medical Association In an effort to address confusion in the physician community surround- ing the hypothetical fourth option, the American Medical Association (AMA), together with a number of other physician organizations, in- cluding ASCRS, sent a letter to CMS in 2012 asking specifically whether Medicare law permitted non-en- rolled physicians to treat and charge Medicare beneficiaries, in some cases in an amount in excess of the limiting charge, without entering into a private contract with the ben- eficiary under the Medicare opt-out rules. That letter also asked whether beneficiaries could submit claims for I f you are confused about Medicare billing and limiting charge rules, you have plenty of company. We often hear complaints and questions from physicians trying to navigate the complicated world of Medicare billing and reimbursement. One issue that seems to generate major confusion relates to the Medicare private contracting rules. For in- stance, we recently have heard from some ASCRS members who have asked about a so-called "fourth op- tion" for treating Medicare patients outside the program—one that they think allows a physician who is not enrolled in Medicare to bill the pa- tient directly without entering into a private contract under the Medicare "opt-out" rules and still permits the patient to bill Medicare for the phy- sician's services. Under this "fourth option," the patient would pay the physician's charge out of pocket and then submit the bill to Medicare and get reimbursed up to the Medicare allowable rate. The ASCRS members who have asked about the fourth option point out that this type of arrangement would not cost the Medicare program any more than it would otherwise pay. But there is no such "fourth op- tion" for treating Medicare patients, and physicians who engage in such practices run the risk of civil mon- etary penalties and exclusion from Medicare. Participation options There are three ways a physician can lawfully treat and bill Medicare pa- tients: (1) enroll and become a "par- ticipating physician"; (2) enroll but remain a "non-participating phy- sician"; or (3) opt-out of Medicare and enter into private contracts with each Medicare patient the physician continues to treat and bill. • Participating physicians are those who sign participation agreements with Medicare and agree to accept assignment for all services they provide to Medicare patients and to accept the Medi- care-approved charge as payment in full. • Non-participating physicians are those who choose not to sign a participation agreement. They may accept assignment on a case- by-case basis and may "balance bill" the patient up to 115% of the reduced Medicare approved charge (i.e., 95% of the full approved charge) for the particular service. This amount is referred to as the Medicare limiting charge. 1 • Private contracting/opt-out: In 1997, Congress passed a law that allows Medicare beneficiaries to contract privately with physicians for certain covered services as long as the physician agrees not to participate in the Medicare pro- gram for 2 years and follows other opt-out requirements. 2 Under the private contracting or "opt-out" rules, a physician may charge a Medicare patient a mutually agreed upon fee that can be in excess of the limiting charge. This provision gave physicians a third option for relating to the Medicare program. The so-called "fourth option" The legality of a "fourth option" for relating to the Medicare pro- gram has been posited by some in the physician community. Under this theory, physicians who are not enrolled in Medicare could bill the patient any amount (including an amount that is higher than the limiting charge) without opting-out of Medicare pursuant to the private contracting rules. The patient, in turn, could submit a claim to Medi- care using CMS Claim Form 1490S (designed for patient claims submis- sion) and receive reimbursement. Proponents of this theory note that this arrangement does not cost the Medicare program more money because Medicare would simply pay the approved amount to the patient instead of to the physician. Medicare law and guidance The fourth option is not supported by Medicare law. Unless a physi- cian has opted-out of Medicare, the statute requires that the physician complete a claim form and submit it to Medicare on behalf of the bene- ficiary. 3 Failure to do so can result in a civil monetary penalty of up to $2,000 per claim and exclusion from Medicare for up to 5 years. 4 The mandatory claims submission requirement applies to all physicians, suppliers and other persons who pro- vide services for which Medicare Part B payment may be made. The only exception is for physicians who have properly opted out of Medicare. 5 The obligation to submit claims for Medicare beneficiaries does not distinguish between physicians enrolled in Medicare and those who are not. A non-enrolled physician who has not properly opted out of Medicare and who refuses to submit a claim on behalf of a beneficiary or instructs the beneficiary to file his or her own claim for reimbursement is at least technically in violation of the Medicare mandatory claims submission law. In addition, the Medicare limit- ing charge applies to "a nonpartici- pating physician or … other person … who does not accept payment on an assignment-related basis." 6 The Medicare statute defines a non-par- ticipating physician as "a physi- cian who at the time of furnishing the services is not a participating physician … " 7 This definition is not limited to physicians enrolled in Medicare and would encompass a physician who is not enrolled. A physician who "knowingly and willfully bills or collects for services in violation of [the limiting charge] on a repeated basis" is subject to sanctions. 8 Further, Medicare guidance on this issue states that even physicians who have never enrolled in Medi- care are required to opt-out before they can treat and privately bill a Medicare patient. 9 The only excep- tion is that created by Congress in 1997 under the private contracting or opt-out rules. Therefore, a non-enrolled phy- sician who bills and collects from continued on page 10 " There is no such 'fourth option' for treating Medicare patients, and physicians who engage in such practices run the risk of civil monetary penalties and exclusion from Medicare. "

• Cover