James Geiger MD – Physician, Author and Wellness Specialist

Dear Dr. Geiger,

As you know, last week, the Senate failed to pass a series of extensions that included a temporary halt to the 21.2 percent cut in Medicare physician payments. As a result, the cut went into effect on March 1st.  It does appear that Congress will extend current rates — hopefully this week — but we expect the extension to only provide temporary relief.  This pattern of short-term patches has created a crisis that will have negative and far-reaching impact on providers, patients and the health care delivery system and violates one of the College’s core principles — access to care, enabled by an adequate surgical workforce. We share your concerns about the long-term viability of your practices and your ability to continue providing quality surgical care to patients.

The American College of Surgeons has always maintained that access to medical care is essential.  We also recognize that the instability and uncertainty of the Medicare payment system will make it impossible for some of our fellows to provide the quality of care that our patients deserve.  With that in mind, we feel it is important we inform Fellows with factual information on your available options as a practicing surgeon.

We hope the information below serves as a useful tool for you and your practice. We urge you to carefully digest and consider the information about the available options and proceed thoughtfully when selecting your Medicare participation status.  In the coming days and weeks, the College is committed to providing all Fellows with the most up-to-date information on Medicare physician payments so that you can make an informed decision about your participation with the Medicare program.

Sincerely,

Brent Eastman MD, FACS, Chair of the ACS Board of Regents
LaMar McGinnis, MD, FACS, President of the American College of Surgeons
Andrew Warshaw, MD, FACS, Chair of the ACS Health Policy and Advocacy Group
Michael Zinner, MD, FACS, Chair of the ACS Board of Governors
David Hoyt, MD, FACS, ACS Executive Director
Christian Shalgian, Director, Division of Advocacy and Health Policy

Medicare Participation Status Information

Physicians have until March 17 to change their Medicare participation or nonparticipation status for this year. Fellows wishing to change their participation status can do so by supplying written notification to their Medicare contractor. The decision will be retroactive to January 1, 2010 and is binding through the calendar year, unless CMS reopens the enrollment period or the physician qualifies for an exception such as relocation to a different geographic area or to a different group practice.

Below is a brief overview of Medicare contractual options available for physicians. The College is not recommending or offering legal advice on any of the three options discussed below and we recommend that Fellows consult with an attorney to ensure full compliance prior to making a status change decision.

There are three Medicare contractual options for physicians: participating (PAR), non-participating (non-PAR) and private contracting.  Physicians considering a change in status should review any current contractual agreements with hospitals, health plans or other entities that require them to be PAR physicians.  In addition, some states have laws prohibiting physicians from balance billing patients.  Please click here for an example of how the Medicare fee schedule breaks down under each option.

Medicare Participating (PAR) Physician

PAR physicians agree to accept assignment on all Medicare claims, which means that they must accept Medicare’s approved amount (80 percent paid by Medicare plus the 20 percent patient copayment), as payment in full for all covered services for the duration of the calendar year. The patient or the patient’s secondary insurer is still responsible for the 20 percent copayment, but the physician cannot bill the patient for amounts in excess of the Medicare allowance. While participating physicians must accept assignment on all Medicare claims, Medicare participation agreements do not require physicians to accept every Medicare patient who seeks treatment from them or their practice.

Medicare Non-Participating (non-PAR) Physician

Physicians may elect to be a non-participating (Non-PAR) physician, which permits them to make assignment decisions on a case-by-case basis and to bill patients for more than the Medicare allowance for unassigned claims.  Non-participating physicians agree to accept 95 percent of the Medicare approved amounts for services provided.  Non-participating physicians may charge more than the Medicare approved amount, but are limited to 115 percent of the Medicare approved amount for non-participating physicians.  Since approved amounts for non-participating physicians are 95 percent of the rates for participating physicians, the 15 percent limiting charge is effectively 9.25 percent above the participating approved amount for services provided

Private Contracting

Physicians may privately contract for health care services, agreeing to bill patients directly and forego any payments from Medicare to their patients or themselves.  However, private contracting decisions may not be made on a patient-by-patient basis. To become a “private contracting physician,” a physician must first opt-out of the Medicare program.  Once a physician has opted out of Medicare, they cannot submit claims to Medicare for services provided to any Medicare patients for a two-year period.  To privately contract with a Medicare beneficiary, a physician must enter into a private contract that meets specific requirements and file an affidavit that also meet certain requirements.  There is a 90-day period after the effective date of the first opt-out affidavit during which physicians may revoke the opt-out and return to Medicare as if they had never opted out of the Medicare program.

Even if a physician has opted out of Medicare, as long as the physician has not been excluded from participation in Medicare by the Office of Counsel to the Inspector General (OIG) based on convictions for program-related fraud and abuse, licensing board actions, or defaults on Health Education Assistance Loans he/she may order, certify the need for, or refer a beneficiary for Medicare-covered items and services, provided the physician is not paid, directly or indirectly, for such services (except for emergency and urgent care services). For example, if a physician who has opted out of Medicare refers a beneficiary for medically necessary services, such as laboratory, DMEPOS or inpatient hospitalization, those services would be covered by Medicare. For more information about exclusions: http://oig.hhs.gov/fraud/exclusions/authorities.asp.

Emergency Services Furnished by a Privately Contracting Physician

Physicians who have opted-out of Medicare under the Medicare private contract provisions may furnish emergency care services or urgent care services to a Medicare beneficiary with whom the physician has previously entered into a private contract so long as the physician and beneficiary entered into the private contract before the onset of the emergency medical condition or urgent medical condition. These services would be furnished under the terms of the private contract.

Physicians who have opted-out of Medicare under the Medicare private contract provisions may continue to furnish emergency or urgent care services to a Medicare beneficiary with whom the physician has not previously entered into a private contract, provided the physician submits a claim to Medicare in accordance with both 42 C.F.R. part 424 (relating to conditions for Medicare payment) and Medicare instructions (including but not limited to complying with proper coding of emergency or urgent care services furnished by physicians and practitioners who have opted-out of Medicare) and collects no more than the Medicare limiting charge, in the case of a physician (or the deductible and coinsurance, in the case of a practitioner). A physician who has been excluded from Medicare must comply with Medicare regulations relating to scope and effect of the exclusion (42 C.F.R. § 1001.1901) when the physician furnishes emergency services to beneficiaries, and the physician may not bill and be paid for urgent care services.