[Code of Federal Regulations]

[Title 42, Volume 2]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR405.435]



[Page 104-105]

 

                         TITLE 42--PUBLIC HEALTH

 

                    CHAPTER IV--CENTERS FOR MEDICARE

                          & MEDICAID SERVICES,

                        DEPARTMENT OF HEALTH AND

                             HUMAN SERVICES

 

PART 405_FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED--Table of 

Contents

 

                       Subpart D_Private Contracts

 

Sec. 405.435  Failure to maintain opt-out.



    (a) A physician or practitioner fails to maintain opt-out under this 

subpart if, during the opt-out period--

    (1) He or she knowingly and willfully--

    (i) Submits a claim for Medicare payment (except as provided in 

Sec. 405.440); or

    (ii) Receives Medicare payment directly or indirectly for Medicare-

covered services furnished to a Medicare beneficiary (except as provided 

in Sec. 405.440).

    (2) He or she fails to enter into private contracts with Medicare 

beneficiaries for the purpose of furnishing items and services that 

would otherwise be covered by Medicare, or enters into contracts that 

fail to meet the specifications of Sec. 405.415; or

    (3) He or she fails to comply with the provisions of Sec. 405.440 

regarding billing for emergency care services or urgent care services; 

or

    (4) He or she fails to retain a copy of each private contract that 

he or she has entered into for the duration of the opt-out period for 

which the contracts are applicable or fails to permit CMS to inspect 

them upon request.

    (b) If a physician or practitioner fails to maintain opt-out in 

accordance with paragraph (a) of this section, and fails to demonstrate, 

within 45 days of a notice from the carrier of a violation of paragraph 

(a) of this section, that he or she has taken good faith efforts to 

maintain opt-out (including by refunding amounts in excess of the charge 

limits to beneficiaries with whom he or she did not sign a private 

contract), the following results obtain, effective 46 days after the 

date of the notice, but only for the remainder of the opt-out period:

    (1) All of the private contracts between the physician or 

practitioner and Medicare beneficiaries are deemed null and void.



[[Page 105]]



    (2) The physician's or practitioner's opt-out of Medicare is 

nullified.

    (3) The physician or practitioner must submit claims to Medicare for 

all Medicare-covered items and services furnished to Medicare 

beneficiaries.

    (4) The physician or practitioner or beneficiary will not receive 

Medicare payment on Medicare claims for the remainder of the opt-out 

period, except as provided in paragraph (c) of this section.

    (5) The physician is subject to the limiting charge provisions of 

Sec. 414.48 of this chapter.

    (6) The practitioner may not reassign any claim except as provided 

in Sec. 424.80 of this chapter.

    (7) The practitioner may neither bill nor collect any amount from 

the beneficiary except for applicable deductible and coinsurance 

amounts.

    (8) The physician or practitioner may not attempt to once more meet 

the criteria for properly opting-out until the 2-year opt-out period 

expires.

    (c) Medicare payment may be made for the claims submitted by a 

beneficiary for the services of an opt-out physician or practitioner 

when the physician or 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 carrier that the physician or practitioner has 

opted-out of Medicare.