Enrolling in Medicare to Submit or Not Submit a Claim

The Code of Federal Regulations (CFR) title 42, part 424, section 500 indicates a provider or supplier treating a Medicare beneficiary and wishing to receive payment will stay in compliance with the law by enrolling in Medicare and filing claims. Part A facilities are allowed to be non-participating in Medicare or Part B professionals can opt out of Medicare and enter into a private contract with the beneficiary. To receive a Medicare payment for covered items or services – whether directly from Medicare or from the beneficiary who, in turn, is reimbursed by Medicare – a provider or supplier must be enrolled in the Medicare program.

During enrollment, a facility chooses to be participating or nonparticipating. If facilities agree to participate with Medicare, you agree to accept payment from Medicare and to the Medicare allowed amount as payment in full. If you choose not to participate with Medicare, you will not be eligible for Medicare payments. Nonparticipating facilities choose not to submit claims. Instead, patients will submit claims for informational purposes only.

During enrollment, a professional chooses to be participating or nonparticipating. If you agree to participate with Medicare, you agree always to accept assignment for all Medicare-covered services. If you choose not to participate with Medicare, you will be a nonparticipating provider. Nonparticipating providers choose whether to accept assignment on a claim-by-claim basis. When a nonparticipating physician does not accept assignment, Medicare pays the beneficiary who may be billed up to the limiting charge amount.

Violation of Federal Regulations

Unless a doctor or non-physician practitioner opts out of Medicare or a facility is non-participating, when furnishing a Medicare covered service, the provider is subject to the mandatory claim submission provisions of section 1848(g)(4) of the Act. A provider accepting assignment cannot charge or attempt to charge a beneficiary any reimbursement for a service that is covered by Medicare until a claim is submitted to Medicare. Violators of mandatory claim submission may receive a fine of up to $2,000 per the Social Security Act Section 1848 (g) (4) (B). Additionally, pursuant to CMS IOM Publication 100-02, Medicare Policy Benefit Manual, Chapter 15 Section 40, providers “…are not allowed to charge beneficiaries in excess of the limits on charges that apply to the item or service being furnished”. The requirement applies even when a claim is or is not submitted to Medicare but contains a covered service. Providers violating Medicare’s limiting charge are subject to being excluded from the Medicare Program for up to five years or subject to a civil monetary penalty of not more than $10,000 per the Social Security Act Section 1848 (g)(1)(B)

Professionals who did not opt out and are not enrolled in Medicare and asking beneficiaries to submit claims on their own, using the form CMS-1490S, violate the Medicare law. Unenrolled providers engaging in this practice are subject to the penalties referenced above.

Non-covered Medicare Services

Non-covered services do not have to be billed to Medicare but can be billed for denials or informational purposes.

Part A Facilities

Facilities enrolling in Medicare are known as participating facilities. The facility is required to bill for Medicare-covered services and accept the Medicare allowed amount as payment in full on all claims. Facilities are required to bill the patient or supplemental insurance for any co-pays, co-insurance, and deductible remaining after Medicare pays. Facilities will be eligible to bill Medicare once its enrollment is complete.

Facilities not enrolling in Medicare are known as non-participating facilities. Medicare beneficiaries have the right to choose a non-participating facility, but Medicare will not pay for services in this facility. The facility bills the patient or another insurance directly for the services. The patient is responsible for submitting a claim on the form CMS-1490S to Medicare for informational purposes only.

Part B Providers

Can a physician or supplier have a beneficiary submit claims on their own using the CMS-1490S form versus enrolling into Medicare? No. To comply with Medicare law, a provider who treats a Medicare beneficiary for Medicare-covered services must complete one of the following.

Enroll in Medicare and submit claims
Opt-out of Medicare, if eligible, and enter into a private contract with the beneficiary for those services
Furnish for free Medicare covered services

Enrolling in Medicare

Part B providers (physicians, non-physician practitioners, and suppliers) enroll with each MAC covering the state in which services are provided in the MACs jurisdiction. The enrollment is done electronically through Internet-Based PECOS or on paper. An effective date for services to begin will be set during the enrollment process.

Opt Out

Under Section 1802(b) of the Social Security Act, a physician or practitioner may opt out of Medicare and enter into private contracts with Medicare beneficiaries. When a provider opts out of Medicare, no services provided by that individual are covered by Medicare and no payment can be made to the physician or practitioner or to beneficiaries except for services provided in an emergency/urgent care situation (see guidelines below). Only individual providers may opt out of Medicare. Group practices and organizations may not opt out.

Note that a provider cannot choose to opt out of Medicare for some Medicare beneficiaries but not others, or for some services but not others. Opt out status applies to all items and services the provider furnishes to Medicare beneficiaries regardless of the location where they are furnished.

Opt Out List

To view the Medicare Opt Out listing, please visit the CMS list of practitioners who have elected to Opt Out of Medicare at the CMS National Opt Out listing

Once on the Data.CMS.gov site:

Select ‘View Data’ tab in the upper right side
Choose the ‘Filter’ tab at the top of the file.
Select "Add a New Filter Condition"
To search for an NPI, change the Filter - (First Name) to NPI
Begin your search

This site will give you a national listing of all approved opt out practitioners. There are several filter options available to search for individuals on this site.

Private Contracts

A private contract is a contract between a Medicare beneficiary and a provider who has opted out of Medicare for all covered items and services furnished to Medicare beneficiaries. The beneficiary agrees to give up Medicare payment for services furnished by the provider and to pay the provider without regard to any limits that would otherwise apply to what the provider could charge.

The private contract must:

Be in writing and in print sufficiently large to ensure that the beneficiary is able to read the contract.
Clearly state whether the physician/practitioner is excluded from Medicare under Sections 1128, 1156, or 1892 of the Social Security Act..
State that the beneficiary or the beneficiary's legal representative accepts full responsibility for payment of the physician's or practitioner's charge for all services furnished by the physician/practitioner.
State that the beneficiary or his/her legal representative understands that Medicare limits do not apply to what the physician/practitioner may charge for items or services furnished by the physician/practitioner.
State that the beneficiary or his/her legal representative agrees not to submit a claim to Medicare or to ask the physician/practitioner to submit a claim to Medicare.
State that the beneficiary or his/her legal representative understands 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 the beneficiary or legal representative enters into the contract with the knowledge that he or she has the right to obtain Medicare-covered items and services from physicians and practitioners who have not opted out of Medicare, and that the beneficiary is not compelled to enter into private contracts apply to Medicare-covered services furnished 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. Note: Effective with affidavits signed after June 16, 2015, opt out providers will automatically renew every two-year period.
State that the beneficiary or his/her legal representative understands 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 the beneficiary or his/her legal representative and by the physician/practitioner prior to any services provided under the contract's terms.
Not be entered into by the beneficiary or by the beneficiary's legal representative during a time when the beneficiary requires emergency care services or urgent care services.
Be provided (a photocopy is permissible) to the beneficiary or to his/her legal representative before items or services are furnished to the beneficiary 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 (CMS) upon request.
Be entered into for each opt out period.

The provider should not submit a copy of the private contract to WPS GHA; the provider is responsible for keeping this information on file.

Medicare will pay for covered, medically necessary services ordered by an opt out provider, but only if the provider has a National Provider Identifier (NPI) and if the services are furnished by a provider who has not opted out. For example, if an opt out provider admits a beneficiary to a hospital, Medicare will reimburse the hospital for medically necessary care. Similarly, if an opt out provider orders diagnostic tests to be performed by another provider, who has not opted out, that provider may submit a claim to the Medicare program for those services.

Opt Out Affidavits

In order to opt out of Medicare, a provider must file a valid opt out affidavit with the WPS GHA Provider Enrollment no later than ten days after the first private contract is entered into with a Medicare beneficiary. WPS GHA has created an Opt Out Affidavit form. If a provider chooses to create their own opt out affidavit it must include the information listed below.

A valid opt out affidavit must:

Be in writing and be signed by the physician/practitioner.
Contain the physician's or practitioner's full name, address, telephone number, specialty, National Provider Identifier (NPI), Medicare Provider Transaction Access Number(s) (PTAN), if assigned, and Social Security Number (required if the provider does not have an NPI).
State that except for emergency or urgent care services the physician/practitioner will provide services to Medicare beneficiaries during the opt out period only through private contracts that meet the criteria for private contracts, for services that would have been Medicare-covered services but for their provision under a private contract.
State that the physician/practitioner will not submit a claim to Medicare for any service furnished to a Medicare beneficiary during the opt out period, nor will the physician/practitioner permit any entity acting on his/her behalf to submit a claim to Medicare for services furnished to a Medicare beneficiary, except for emergency and urgent care services provided to a Medicare beneficiary with whom he or she has not signed a private contract.
State that, during the opt out period, the physician/practitioner understands that he/she may receive no direct or indirect Medicare payment for services that he/she furnishes to Medicare beneficiaries with whom he/she has privately contracted, whether as an individual, an employee of an organization, a partner in a partnership, under a reassignment of benefits, or as payment for a service furnished to a Medicare beneficiary under a Medicare Advatage plan.
State that a physician/practitioner who opts out of Medicare acknowledges that, during the opt out period, his/her services are not covered under Medicare and that no Medicare payment may be made to any entity for his/her services, directly or on a capitated basis.
State a promise by the physician/practitioner to the effect that, during the opt out period, the physician/practitioner agrees to be bound by the terms of both the affidavit and the private contracts that he/she has entered into.
Acknowledge that the physician/practitioner recognizes that the terms of the affidavit apply to all Medicare-covered items and services furnished to Medicare beneficiaries by the physician/practitioner during the opt out period (except for emergency or urgent care services furnished to the beneficiaries with whom he/she has not previously privately contracted) without regard to any payment arrangements the physician/practitioner may make.
With respect to a physician/practitioner who has signed a Part B participation agreement, acknowledge that such agreement terminates on the effective date of the affidavit.
Acknowledge that the physician/practitioner understands that a beneficiary who has not entered into a private contract and who requires emergency or urgent care services may not be asked to enter into a private contract with respect to receiving such services and that the rules for emergency and urgent care apply if the physician/practitioner furnishes such services.
Identify the physician/practitioner sufficiently so that the Medicare contractor can ensure that no payment is made to the physician/practitioner during the opt out period.
Be filed with all Medicare Administrative Contractors who have jurisdiction over claims the physician/practitioner would otherwise file with Medicare and be filed no later than 10 days after the first private contract to which the affidavit applies is entered into.

Opt Out Timeframes

Effective Date of Opt Out for Non-Participating Providers

Non-participating providers can opt out at any time by filing a valid Opt Out Affidavit. The effective date of the opt out period will be the date specified in the affidavit but cannot be retroactive to a date prior to the date the affidavit is signed; if there is no designated effective date, it the effective date will be the date the affidavit was signed.

Effective Date of Opt Out for Participating Providers

Participating providers can opt out if they file a valid Opt Out Affidavit that is received by the WPS GHA Provider Enrollment Department at least 30 days before the first day of the next calendar quarter. The effective date of the opt out period is the first day in that quarter (1/1, 4/1, 7/1, or 10/1). Opt out providers may not provide services under private contracts with beneficiaries earlier than the effective date of the affidavit.

Participating providers who opt out of Medicare also terminate their Medicare participation agreement on the effective date of opt out, since they no longer agree to accept assignment on claims for all services furnished to Medicare beneficiaries. They will be considered non-participating for any emergency/urgent care services that are paid during the opt out period.

Renewal of Opt Out

The private contracting/opt out law at Section 1802(b) of the Social Security Act (the Act), Section 106(a) of the Medicare Access and CHIP Reauthorization Action of 2015 (MACRA) (Public Law No. 114-10) indicates that valid opt out affidavits signed on or after June 16, 2015, automatically renew every two years.

Cancelation of Opt Out

Physicians and practitioners who file valid Opt Out Affidavits effective on or after June 16, 2015, and do not wish to extend their opt out status at the end of a two year opt out period, may cancel by notifying all Medicare contractors with which they filed an affidavit in writing, at least 30 days prior to the start of the next two year opt out period.

Early Termination of Opt Out

After an Opt Out Affidavit has been approved, the provider's opt out status may be terminated within 90 days of the effective date of the affidavit if the provider meets the following criteria. The provider must:

Not have previously opted out of Medicare.
Notify all Medicare contractors, with which an affidavit was filed, of the termination no later than 90 days after the effective date of the opt out period.
Refund to each beneficiary, with whom there is a private contract, all payment collected in excess the Medicare limiting charge (in the case of physicians) or the deductible and coinsurance (in the case of practitioners).
Notify all beneficiaries with whom there is a private contract of the decision to terminate opt out and of the beneficiaries' right to have claims filed with Medicare for services furnished between the effective date of the opt out and effective date of the termination of the opt out period.

Opt Out Provider Specialties

Specialties That May Opt Out of Medicare

Doctors of medicine
Doctors of osteopathy
Doctors of dental surgery or dental medicine
Doctors of podiatric medicine
Doctors of optometry
Physician assistants
Nurse practitioners
Clinical nurse specialists
Certified registered nurse anesthetists
Certified nurse midwives
Clinical psychologists
Clinical social workers
Registered dieticians and nutrition professionals

Specialties That May Not Opt Out of Medicare

Chiropractors
Physical therapists in private practice
Occupational therapists in private practice
Speech language pathologists in private practice
Anesthesiologist assistants
Independent, non-clinical psychologists

Effect of Reassignment When a Provider Opts Out of Medicare

When a provider opts out of the Medicare program and is a member of a group practice or otherwise reassigns his or her right to bill and receive Medicare payment to an organization, the organization may no longer bill Medicare or receive Medicare payment for the services that the provider furnishes to Medicare beneficiaries. However, if the provider continues to grant the organization the right to bill and receive payment for the services he or she furnishes to patients, the organization may bill and be paid by the beneficiary for the services that are provided under the private contract. In addition, the decision of a provider to opt out of Medicare does not affect the ability of the group practice or organization to bill Medicare for the services of other providers who have not opted out of Medicare.

Emergency/Urgent Care Situations

In an emergency or urgent care situation, a provider may treat a Medicare beneficiary with whom he or she does not have a private contract and bill Medicare for such treatment. The provider may not charge the beneficiary more than the limiting charge and must submit a claim to Medicare on the beneficiary's behalf. Medicare payment will be made to the beneficiary for covered services in this situation if the claim is unassigned. In order to submit an assigned claim and be paid directly by Medicare for such services, the opt out provider would need to complete a CMS-855 enrollment form to apply for enrollment in the Medicare program. (This would not affect the provider's opt out status for purposes of other services.)

Opt out providers use Modifier GJ with the procedure code to identify services that were emergency or urgent when there was no private contract in effect with the beneficiary at the time the services were performed.

Furnish for Free Medicare Covered Services

Part B providers not completing either of the above options, enrolling or opting out of Medicare, are not eligible to bill Medicare nor the patient for any Medicare-covered services. The provider will also be in violation of federal laws and could be subject to legal action.

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