Trapping Patient & Physicians in Medicare

1. By Accident or By Design? Trapping Patient & Physicians in Medicare

2. Medicare Part A • Every American is entitled to Part A Medicare at age 65 if paid into system • Medicare Part B and D are optional • SSA Program Operations Manual System (POMS) • Allows individuals to decline Part A benefits • Surprise is that SS benefits will no longer be paid and previous benefits received must be repaid

3. Medicare Traps Patients Hall et al v Sebelius 2002 • Suit began when Hall wanted to use private health insurance instead of Medicare • Informed he would have to give back SS benefits and forfeit future benefits • Fund for Personal Liberty (Martha DeForest) • Shoestring budget • Dick Armey was co-plaintiff

4. Hall et al v Sebelius • Heard in DC District Court • Government stipulated rulemaking ignored • Court was incredulous but ruled against • Case failed at Appeals Court Level • Supreme Court did not take the case • Cato Institute wrote amicus • https://www.cato.org/publications/legal-briefs/hall-v-sebelius

5. Permit Patient Choice • Propose statute to separate Part A Medicare from Social Security benefits to preserve Congress' intent • Save money for Medicare system • Allow patients to use coverage of their own choice • Private health insurance • Health savings accounts • Insurance from municipalities / states • Private funding

6. Medicare Physician Disenrollment Why: Save millions of dollars as government is unable to keep up with cost of practice Patient freedom to select providers Allows patients and physicians to take the time they both want for evaluations Patient and physician mutually agree on pricing Allow patients to use their paid-for benefits

7. Medicare Disenrollment-How does it work today? • Physician is not on Medicare's rolls • Physician has no relationship with Medicare • Patient has relationship with Medicare • Patient requests payment and MAC provides reimbursement to patient

8. Medicare Disenrollment • Governement regulations state • Physician must be enrolled in Medicare to see a Medicare patient. • Unenrolled physicians prevalent in FL, NY, CA, TX • Patient uses CMS 1490-S & gets reimbursed • Doctors receive threatening letter

10. HHS Position

11. HHS Position “ In order to stay in compliance with Medicare law, a physician who treats a Medicare beneficiary for a Medicare-covered service must either 1.) enroll in Medicare and submit a claim on that beneficiary’s behalf for those services; 2.) opt out of Medicare and enter into a private contract with the beneficiary for those services; or 3.) furnish the Medicare-covered services for free.” Letter from CMS to the AMA c. December 2011

12. HHS Position

13. HHS Position

14. HHS Position

15. CMS Manual System-50 Violators • Required to keep list of top 50 violators • Poor record keeping-one request was obviously crafted in response to the FOIA request • Few, if any excluded from Medicare under 1848 • Anyone fined for “violating” 1848 • Government worried about challenge under 5th 13th or 14th Amendments?

16. CMS Manual System-50 Violators

17. Social Security Act § 1848 (g) (4) (4) Physician submission of claims.— (A) In general.—For services furnished on or after September 1, 1990, within 1 year after the date of providing a service for which payment is made under this part on a reasonable charge or fee schedule basis, a physician, supplier, or other person (or an employer or facility in the cases described in section 1842(b)(6)(A))— (i) shall complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of a beneficiary, and (ii) may not impose any charge relating to completing and submitting such a form. (B) Penalty.— (i) With respect to an assigned claim wherever a physician, provider, supplier or other person (or an employer or facility in the cases described in section 1842(b)(6)(A)) fails to submit such a claim as required in subparagraph (A), the Secretary shall reduce by 10 percent the amount that would otherwise be paid for such claim under this part. (ii) If a physician, supplier, or other person (or an employer or facility in the cases described in section 1842(b)(6)(A)) fails to submit a claim required to be submitted under subparagraph (A) or imposes a charge in violation of such subparagraph, the Secretary shall apply the sanction with respect to such a violation in the same manner as a sanction may be imposed under section 1842(p)(3) for a violation of section 1842(p)(1).

18. 42 CFR 424.505 § 424.505 Basic enrollment requirement. To receive payment for covered Medicare items or services from either Medicare (in the case of an assigned claim) or a Medicarebeneficiary (in the case of an unassigned claim), a provider or supplier must be enrolled in the Medicare program. Except for those suppliers that complete the CMS-855O form or CMS-identified equivalent, successor form or process for the sole purpose of obtaining eligibility to order or certify Medicare-covered items and services; once enrolled the provider or supplier receives billing privileges and is issued a valid billing number effective for the date a claim was submitted for an item that was furnished or a service that was rendered. (See 45 CFR part 162 for information on the National Provider Identifier and its use as the Medicare billing number.) Deleting this regulation or even better, passing a new statute that allows physicians to see patients outside of Medicare entirely is what is needed. Preserving the ability of patients to get reimbursement is paramount.