Should I Sign a Private Contract With My Doctor?

It’s a difficult choice to receive the services of a physician or practitioner who does not participate in the Medicare program or to choose one that does.

If your doctor has chosen to ‘opt-out’ of the Medicare program and you want to receive or continue to receive services from him or her, the doctor must ask you to sign a ‘private contract’ for services that would otherwise be covered by Medicare. Once you sign the contract, Medicare will not pay for any services provided by that physician/practitioner. In addition, no Medicare payment may be made to you for items or services provided directly by a physician or practitioner who has opted out of the program.

In a private contract, you agree to give up Medicare payment for services furnished by the physician/practitioner and to pay the physician/practitioner without regard to any limits that would otherwise apply to what they could charge.

The only exception is in an emergency or urgent care situation. Payment can be made for Medicare covered items or services furnished in emergency or urgent situations if you have not signed a private contract with that physician/practitioner.

How Long Does Opt-Out Last
When a provider opts out, he or she agrees not to participate in the Medicare program for two years, unless the opt-out is terminated early or he/she fails to maintain opt-out.

After the two years are over, he or she could elect to return to Medicare or to opt out again. If you sign a private contract with a physician/practitioner, you still may receive services from other physicians and practitioners who have not opted out of Medicare.

What Kind of Physicians or Practitioners can Opt-Out
‘Physician’ means doctors of medicine, doctors of osteopathy, doctors of dental surgery, doctors of dental medicine, doctors of podiatric medicine and doctors of optometry who are legally authorized to practice dentistry, podiatry, optometry, medicine or surgery. No other physicians may opt out.

'Practitioner' means any of the following to the extent that the individual is legally authorized to practice by the state and otherwise meets Medicare requirements:

• Physician assistant
• Nurse practitioner
• Clinical nurse specialist
• Certified Registered Nurse Anesthetist
• Certified Nurse Midwife
• Clinical psychologist
• Clinical social worker
• Registered dietitian
• Nutrition professional

The opt-out law does not define 'physician' to include chiropractors, which means they may not opt out of Medicare and provide services under private contract. Also, physical therapists and occupational therapists in independent practices cannot opt out because they are not included in the opt-out law’s definition of either a physician or practitioner.

What does the Private Contract Look Like and Say
A private contract must:

• Be in writing and in print that is large enough so that you can read the contract
• Clearly state whether the physician/practitioner is excluded from Medicare
• State that you or your legal representative accept full responsibility for payment of charges for all services provided by the physician/practitioner
• State that you or your legal representative understand that Medicare limits do not apply to what the physician/practitioner may charge for items or services provided by the physician/practitioner
• State that you or your legal representative agree not to submit a claim to Medicare or to ask the physician/practitioner to submit a claim to Medicare
• State that you or your legal representative understand that Medicare payment will not be made for any items or services furnished by the physician/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 you or your legal representative enter into the contract with the knowledge that you have the right to obtain Medicare-covered items and services from physicians and practitioners who have not opted out of Medicare. It must also say that you are not compelled to enter into private contracts that apply to other Medicare-covered services provided by other physicians or practitioners 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 you or your legal representative understand 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 you or your legal representative and by the physician/practitioner
• Not be entered into by you or your legal representative during a time when you require emergency care services or urgent care services
• Be provided (a photocopy is acceptable) to you or your legal representative before items or services are furnished to you under the terms of the contract
• Be retained (original signatures of both parties required) by the physician/practitioner for the duration of the opt-out period
• Be made available to the Centers for Medicare & Medicaid Services upon request
• Be entered into for each opt-out period