108th CONGRESS

2d Session

To amend title XVIII of the Social Security Act to clarify the right of Medicare beneficiaries to enter into private contracts with physicians and other health care professionals for the provision of health services for which no payment is sought under the Medicare Program.


IN THE HOUSE OF REPRESENTATIVES

July 13, 2004
Mr. JACK DANIELS of Tennessee (for himself) (And Mr. MacGyver (DNC)) introduced the following bill


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A BILL
To amend title XVIII of the Social Security Act to clarify the right of Medicare beneficiaries to enter into private contracts with physicians and other health care professionals for the provision of health services for which no payment is sought under the Medicare Program.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Medicare Beneficiary Freedom To Contract Act of 2004'.

SEC. 2. USE OF PRIVATE CONTRACTS BY MEDICARE BENEFICIARIES FOR PROFESSIONAL SERVICES.

(a) IN GENERAL- Section 1802(B) of the Social Security Act (42 U.S.C. 1395a) is amended to read as follows:

`(B) CLARIFICATION OF USE OF PRIVATE CONTRACTS BY MEDICARE BENEFICIARIES FOR PROFESSIONAL SERVICES-

`(1) IN GENERAL- Nothing in this title shall prohibit a medicare beneficiary from entering into a private contract with a physician or health care practitioner for the provision of medicare covered professional services (as defined in paragraph (5)�) if--

`(A) the services are covered under a private contract that is between the beneficiary and the physician or practitioner and meets the requirements of paragraph (2);

`(B) under the private contract no claim for payment for services covered under the contract is to be submitted (and no payment made) under part A or B, under a contract under section 1876, or under a MA plan (other than an MSA plan); and

`�(i) the Secretary has been provided with the minimum information necessary to avoid any payment under part A or B for services covered under the contract, or

`(ii) in the case of an individual enrolled under a contract under section 1876 or a MA plan (other than an MSA plan) under part C, the eligible organization under the contract or the MA organization offering the plan has been provided the minimum information necessary to avoid any payment under such contract or plan for services covered under the contract.

`(2) REQUIREMENTS FOR PRIVATE CONTRACTS- The requirements in this paragraph for a private contract between a medicare beneficiary and a physician or health care practitioner are as follows:

`(A) GENERAL FORM OF CONTRACT- The contract is in writing and is signed by the medicare beneficiary.

`(B) NO CLAIMS TO BE SUBMITTED FOR COVERED SERVICES- The contract provides that no party to the contract (and no entity on behalf of any party to the contract) shall submit any claim for (or request) payment for services covered under the contract under part A or B, under a contract under section 1876, or under a MA plan (other than an MSA plan).

`� SCOPE OF SERVICES- The contract identifies the medicare covered professional services and the period (if any) to be covered under the contract, but does not cover any services furnished--

`(i) before the contract is entered into; or

`(ii) for the treatment of an emergency medical condition (as defined in section 1867(e)(1)(A)), unless the contract was entered into before the onset of the emergency medical condition.

`(D) CLEAR DISCLOSURE OF TERMS- The contract clearly indicates that by signing the contract the medicare beneficiary--

`(i) agrees not to submit a claim (or to request that anyone submit a claim) under part A or B (or under section 1876 or under a MA plan, other than an MSA plan) for services covered under the contract;

`(ii) agrees to be responsible, whether through insurance or otherwise, for payment for such services and understands that no reimbursement will be provided under such part, contract, or plan for such services;

`(iii) acknowledges that no limits under this title (including limits under paragraph (1) and (3) of section 1848(g)) will apply to amounts that may be charged for such services;

`(iv) acknowledges that medicare supplemental policies under section 1882 do not, and other supplemental health plans and policies may elect not to, make payments for such services because payment is not made under this title; and

`(v) acknowledges that the beneficiary has the right to have such services provided by (or under the supervision of) other physicians or health care practitioners for whom payment would be made under such part, contract, or plan.

Such contract shall also clearly indicate whether the physician or practitioner involved is excluded from participation under this title.

`(3) MODIFICATIONS- The parties to a private contract may mutually agree at any time to modify or terminate the contract on a prospective basis, consistent with the provisions of paragraphs (1) and (2).

`(4) NO REQUIREMENTS FOR SERVICES FURNISHED TO MSA PLAN ENROLLEES- The requirements of paragraphs (1) and (2) do not apply to any contract or arrangement for the provision of services to a medicare beneficiary enrolled in an MA plan under part C.

`(5) DEFINITIONS- In this subsection:

`(A) HEALTH CARE PRACTITIONER- The term `health care practitioner' means a practitioner described in section 1842(B)(18)�.

`(B) MEDICARE BENEFICIARY- The term `medicare beneficiary' means an individual who is enrolled under part B.

`� MEDICARE COVERED PROFESSIONAL SERVICES- The term `medicare covered professional services' means--

`(i) physicians' services (as defined in section 1861(q), and including services described in section 1861(s)(2)(A)), and

`(ii) professional services of health care practitioners, including services described in section 1842(B)(18)(D),

for which payment may be made under part A or B, under a contract under section 1876, or under a Medicare +Choice plan but for the provisions of a private contract that meets the requirements of paragraph (2).

`(D) MA PLAN; MSA PLAN- The terms `MA plan' and `MSA plan' have the meanings given such terms in section 1859.

`(E) PHYSICIAN- The term `physician' has the meaning given such term in section 1861�.'.

(B) CONFORMING AMENDMENTS CLARIFYING EXEMPTION FROM LIMITING CHARGE AND FROM REQUIREMENT FOR SUBMISSION OF CLAIMS- Section 1848(g) of the Social Security Act (42 U.S.C. 1395w-4(g)) is amended--

(1) in paragraph (1)(A), by striking `In' and inserting `Subject to paragraph (8), in';

(2) in paragraph (3)(A), by striking `Payment' and inserting `Subject to paragraph (8), payment';

(3) in paragraph (4)(A), by striking `For' and inserting `Subject to paragraph (8), for'; and

(4) by adding at the end the following new paragraph:

`(8) EXEMPTION FROM REQUIREMENTS FOR SERVICES FURNISHED UNDER PRIVATE CONTRACTS-

`(A) IN GENERAL- Pursuant to section 1802(B)(1), paragraphs (1), (3), and (4) do not apply with respect to physicians' services (and services described in section 1861(s)(2)(A)) furnished to an individual by (or under the supervision of) a physician if the conditions described in section 1802(B)(1) are met with respect to the services.

`(B) NO RESTRICTIONS FOR ENROLLEES IN MSA PLANS- Such paragraphs do not apply with respect to services furnished to individuals enrolled with MSA plans under part C, without regard to whether the conditions described in subparagraphs (A) through � of section 1802(B)(1) are met.

`� APPLICATION TO ENROLLEES IN OTHER PLANS- Subject to subparagraph (B) and section 1852(k)(2), the provisions of subparagraph (A) shall apply in the case of an individual enrolled under a contract under section 1876 or under a MA plan (other than an MSA plan) under part C, in the same manner as they apply to individuals not enrolled under such a contract or plan.'.

� CONFORMING AMENDMENTS- (1) Section 1842(B)(18) of the Social Security Act (42 U.S.C. 1395u(B)(18)) is amended by adding at the end the following:

`(E) The provisions of section 1848(g)(8) shall apply with respect to exemption from limitations on charges and from billing requirements for services of health care practitioners described in this paragraph in the same manner as such provisions apply to exemption from the requirements referred to in section 1848(g)(8)(A) for physicians' services.'.

(2) Section 1866(a)(1)(O) of such Act (42 U.S.C. 1395cc(a)(1)(O)) is amended by striking `enrolled with a Medicare +Choice organization under part C' and inserting `enrolled with a MA organization under part C (other than under an MSA plan)'.

(d) EFFECTIVE DATE- The amendments made by this section shall take effect on the date that is 6 months after the date of the enactment of this Act and apply to contracts entered into on or after that date.