Can Physicians Limit the Number of #Medicare Patients They See?

Given the comprehensive health care reform law recently enacted and the status of Medicare provider reimbursement today, it is not unreasonable to wonder if physicians and other health care providers can somehow limit the number of Medicare patients they see. In short, the answer depends on what type of “provider” you are. The Medicare body of regulations and laws seems fairly clear that institutional providers, (e.g. hospitals, skilled nursing facilities, home health agencies, hospices and certain clinics offering Medicare reimbursed outpatient therapy services), would be in jeopardy of having their Medicare provider agreements terminated for discriminating against Medicare patients. Individual physicians are not subject to the same restrictions.

Institutional providers enrolled in Medicare as a “provider of services”, as part of their provider agreement with Medicare, are subject to the rules and regulations governing reimbursement by Medicare. According to Medicare laws applicable to institutional providers, CMS can terminate a provider agreement for a number of reasons, including situations where a provider “places restrictions on the persons it will accept for treatment and it fails either to exempt Medicare beneficiaries from those restrictions or to apply them to Medicare beneficiaries the same as to all other persons seeking care”. (42 C.F.R. 489.53) Similar language specifically applicable to skilled nursing facilities can be found in the Medicare State Operations Manual, Chapter 3, Section 3005D-Cause for Termination. Further guidance can also be found in the Medicare General Information, Eligibility, and Entitlement Manual, Chapter 5, Section 10.2 which acknowledges that Medicare Part A providers may have restrictions on the types of services, the treatment of certain health conditions, and other criteria for admission of person, but that these restrictions must not be applied to Medicare beneficiaries as a class. Doing so would be a basis for terminating such provider’s Medicare provider agreement.

These same Medicare laws and regulations do not apply to physicians enrolled in Medicare. Physicians who have entered into a participating provider agreement with CMS have agreed to accept Medicare’s fee schedule rate (including the applicable patient copayment) as full reimbursement, and would be prohibited from billing the patient for additional monies. While participating physicians agree to accept Medicare’s fee schedule for patients they choose to treat, the Medicare laws and regulations do not specify that participating physicians are required to treat every Medicare patient that seeks an appointment. Physicians can choose to close the door to new Medicare patients. However, if physicians choose to stop seeing already existing Medicare patients, such physicians must follow the applicable physician-patient protocol. Physicians who are non-participating Medicare providers, while not subject to the same rules on reimbursement and balance billing, would also be able to choose whether to accept new Medicare patients. Finally, physician’s electing to opt-out of Medicare, which can be done each calendar quarter, would agree not to bill Medicare for a two (2) year period and would instead enter into a private contract with the Medicare beneficiary for payment by the Medicare beneficiary directly. Opt-out procedures and private contracting are subject to specific rules and regulations and should be adhered to stringently to maintain the physician’s opt-out status. No matter which Medicare status physicians choose, physicians remains in control of their practices and the patients they elect to treat, unlike institutional Medicare providers who must comply with the applicable Medicare provisions regarding non-discrimination of Medicare patients.

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