Providers who wish to opt-out of Medicare must submit an affidavit to their Medicare contractor (MAC) stating that they wish to opt-out. CMS does not provide an opt-out form; however, some MACs supply opt-out affidavit templates.
The opt-out affidavit must contain specific statements to which the provider agrees. The statements are generally a restatement of the opt-out rules to ensure that the Provider understands the effect of a Medicare opt-out.
The affidavit must be filed with all MACs who have jurisdiction over the provider’s claims which would otherwise be filed with Medicare. The affidavit must be filed no later than 10 days after entering into the first private contract with a Medicare beneficiary.
In addition to filing an opt-out affidavit, opt-out providers must execute a private contract with all Medicare beneficiaries in which they provide services or items and privately bill. However, Medicare beneficiaries that seek treatment for emergency or urgent services cannot contract with providers.
Opt-out providers who provide emergency or urgent care services to beneficiaries can submit claims to Medicare. (Contact our attorneys for information on different opt-out requirements for emergency and urgent care providers.)
Private contracts must contain specific statements as required by Medicare rules. The contract ensures that beneficiaries understand that they have a right to obtain services from a provider who has not opted-out; that they are fully responsible for payment to the provider; and that they agree not to submit a claim to Medicare.
Private contracts do not need to be submitted to Medicare. However, providers must retain a copy of all private contracts for the duration of the opt-out period. Providers must also give all beneficiaries a copy of the private contract.
Private contracts are only valid for the opt-out period in which they are executed. Therefore, when a two-year opt-out period ends, the provider must enter into a new private contract with each beneficiary they treat during the new two-year opt-out period.
Providers are not required to obtain a private contract for services that are definitely not covered by Medicare. However, opt-out providers must have a valid private contract for services that may be covered by Medicare.
Contracts are only valid if a valid affidavit is properly filed. Services provided before the effective date of the affidavit are subject to Medicare limits, regardless of whether there is a private contract.