CMS Pub. 100-02, ch. 15, § 40.6

Physician/Practitioner

(Rev. 160, Issued: 10-26-12, Effective: 01-28-13, Implementation: 01-28-13)

Payment may be made to a beneficiary for services of an opt out physician/practitioner in two cases:

• The services are emergency or urgent care services furnished by an opt-out physician/practitioner to

a beneficiary with whom he/she has not previously entered into a private contract. (See §40.28 for further

discussion of emergency and urgent care services by opt-out physicians and practitioners.); or

• The opt-out physician/practitioner failed to privately contract with the beneficiary for services that

he/she provided that were not emergency or urgent care services. The CMS expects this case to come to the

Medicare A/B MAC (B)’s attention as a result of a complaint from a beneficiary or the beneficiary’s legal

representative, or as a result of the beneficiary or the beneficiary’s legal representative filing a claim for

services furnished by an opt out physician/practitioner. Medicare payment may be made for the claims

submitted by a beneficiary for the services of an opt out physician/practitioner when the

physician/practitioner did not privately contract with the beneficiary for services that were not emergency

care services or urgent care services and that were furnished no later than 15 days after the date of a notice

by the A/B MAC (B) that the physician/practitioner has opted out of Medicare (see 42 CFR 405.435(c)).

Therefore, if the beneficiary submits a claim for a service that was furnished by an opt out

physician/practitioner, then the A/B MAC (B) must contact the opt out physician/practitioner in order to

ascertain whether the beneficiary entered into a private contract with the opt out physician/practitioner.

(Note: The A/B MAC (B) should obtain a copy of the private contract from the opt out

physician/practitioner before denying the beneficiary’s claim if the beneficiary did, in fact, enter into a

private contract with the physician/practitioner.) If the beneficiary did not enter into a private contract with

the physician/practitioner and the beneficiary did not receive notice from the A/B MAC (B) that the

physician/practitioner opted out of Medicare, then Medicare payment may be made to the beneficiary for the

non-emergency and/or non-urgent care services (assuming that the services would otherwise be payable).

On the other hand, if the beneficiary did enter into a private contract with the physician/practitioner for the

services or received services from the physician/practitioner 15 days after the date of a notice by the A/B

MAC (B) that the physician/practitioner has opted out of Medicare, then no Medicare payment may be

made. Moreover, the A/B MAC (B) must follow the procedures outlined in §40.11 for cases in which the

physician/practitioner fails to maintain opt-out. If the physician/practitioner does not respond to the

Medicare A/B MAC (B)’s request for a copy of the private contract within 45 days, the A/B MAC (B) must

make payment to the beneficiary based upon the payment for a nonparticipating physician/practitioner for

that service. It must notify the beneficiary that the physician/practitioner who has opted out must privately

contract with the beneficiary or the beneficiary’s legal representative for services the physician/practitioner

furnished and that no further payment will be made to the beneficiary for services furnished by the opt-out

physician/practitioner after 15 days from the postmark of the notice.