
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC1395a]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                       CHAPTER 7--SOCIAL SECURITY
 
        SUBCHAPTER XVIII--HEALTH INSURANCE FOR AGED AND DISABLED
 
Sec. 1395a. Free choice by patient guaranteed


(a) Basic freedom of choice

    Any individual entitled to insurance benefits under this subchapter 
may obtain health services from any institution, agency, or person 
qualified to participate under this subchapter if such institution, 
agency, or person undertakes to provide him such services.

(b) Use of private contracts by medicare beneficiaries

                           (1) In general

        Subject to the provisions of this subsection, nothing in this 
    subchapter shall prohibit a physician or practitioner from entering 
    into a private contract with a medicare beneficiary for any item or 
    service--
            (A) for which no claim for payment is to be submitted under 
        this subchapter, and
            (B) for which the physician or practitioner receives--
                (i) no reimbursement under this subchapter directly or 
            on a capitated basis, and
                (ii) receives no amount for such item or service from an 
            organization which receives reimbursement for such item or 
            service under this subchapter directly or on a capitated 
            basis.

                     (2) Beneficiary protections

        (A) In general

            Paragraph (1) shall not apply to any contract unless--
                (i) the contract is in writing and is signed by the 
            medicare beneficiary before any item or service is provided 
            pursuant to the contract;
                (ii) the contract contains the items described in 
            subparagraph (B); and
                (iii) the contract is not entered into at a time when 
            the medicare beneficiary is facing an emergency or urgent 
            health care situation.

        (B) Items required to be included in contract

            Any contract to provide items and services to which 
        paragraph (1) applies shall clearly indicate to the medicare 
        beneficiary that by signing such contract the beneficiary--
                (i) agrees not to submit a claim (or to request that the 
            physician or practitioner submit a claim) under this 
            subchapter for such items or services even if such items or 
            services are otherwise covered by this subchapter;
                (ii) agrees to be responsible, whether through insurance 
            or otherwise, for payment of such items or services and 
            understands that no reimbursement will be provided under 
            this subchapter for such items or services;
                (iii) acknowledges that no limits under this subchapter 
            (including the limits under section 1395w-4(g) of this 
            title) apply to amounts that may be charged for such items 
            or services;
                (iv) acknowledges that Medigap plans under section 
            1395ss of this title do not, and other supplemental 
            insurance plans may elect not to, make payments for such 
            items and services because payment is not made under this 
            subchapter; and
                (v) acknowledges that the medicare beneficiary has the 
            right to have such items or services provided by other 
            physicians or practitioners for whom payment would be made 
            under this subchapter.

        Such contract shall also clearly indicate whether the physician 
        or practitioner is excluded from participation under the 
        medicare program under section 1320a-7 of this title.

             (3) Physician or practitioner requirements

        (A) In general

            Paragraph (1) shall not apply to any contract entered into 
        by a physician or practitioner unless an affidavit described in 
        subparagraph (B) is in effect during the period any item or 
        service is to be provided pursuant to the contract.

        (B) Affidavit

            An affidavit is described in this subparagraph if--
                (i) the affidavit identifies the physician or 
            practitioner and is in writing and is signed by the 
            physician or practitioner;
                (ii) the affidavit provides that the physician or 
            practitioner will not submit any claim under this subchapter 
            for any item or service provided to any medicare beneficiary 
            (and will not receive any reimbursement or amount described 
            in paragraph (1)(B) for any such item or service) during the 
            2-year period beginning on the date the affidavit is signed; 
            and
                (iii) a copy of the affidavit is filed with the 
            Secretary no later than 10 days after the first contract to 
            which such affidavit applies is entered into.

        (C) Enforcement

            If a physician or practitioner signing an affidavit under 
        subparagraph (B) knowingly and willfully submits a claim under 
        this subchapter for any item or service provided during the 2-
        year period described in subparagraph (B)(ii) (or receives any 
        reimbursement or amount described in paragraph (1)(B) for any 
        such item or service) with respect to such affidavit--
                (i) this subsection shall not apply with respect to any 
            items and services provided by the physician or practitioner 
            pursuant to any contract on and after the date of such 
            submission and before the end of such period; and
                (ii) no payment shall be made under this subchapter for 
            any item or service furnished by the physician or 
            practitioner during the period described in clause (i) (and 
            no reimbursement or payment of any amount described in 
            paragraph (1)(B) shall be made for any such item or 
            service).

        (4) Limitation on actual charge and claim submission 
                         requirement not applicable

        Section 1395w-4(g) of this title shall not apply with respect to 
    any item or service provided to a medicare beneficiary under a 
    contract described in paragraph (1).

                           (5) Definitions

        In this subsection:

        (A) Medicare beneficiary

            The term ``medicare beneficiary'' means an individual who is 
        entitled to benefits under part A of this subchapter or enrolled 
        under part B of this subchapter.

        (B) Physician

            The term ``physician'' has the meaning given such term by 
        section 1395x(r)(1) of this title.

        (C) Practitioner

            The term ``practitioner'' has the meaning given such term by 
        section 1395u(b)(18)(C) of this title.

(Aug. 14, 1935, ch. 531, title XVIII, Sec. 1802, as added Pub. L. 89-97, 
title I, Sec. 102(a), July 30, 1965, 79 Stat. 291; amended Pub. L. 105-
33, title IV, Sec. 4507(a)(1), (2)(A), Aug. 5, 1997, 111 Stat. 439, 
441.)

                       References in Text

    Parts A and B of this subchapter, referred to in subsec. (b)(5)(A), 
are classified to sections 1395c et seq. and 1395j et seq., 
respectively, of this title.


                               Amendments

    1997--Pub. L. 105-33 designated existing provisions as subsec. (a), 
inserted heading, and added subsec. (b).


                    Effective Date of 1997 Amendment

    Section 4507(c) of Pub. L. 105-33 provided that: ``The amendment 
made by subsection (a) [amending this section and section 1395y of this 
title] shall apply with respect to contracts entered into on and after 
January 1, 1998.''


            Report to Congress on Effect of Private Contracts

    Section 4507(b) of title IV of Pub. L. 105-33 provided that: ``Not 
later than October 1, 2001, the Secretary of Health and Human Services 
shall submit a report to Congress on the effect on the program under 
this title [see Tables for classification] of private contracts entered 
into under the amendment made by subsection (a) [amending this section 
and section 1395y of this title]. Such report shall include--
        ``(1) analyses regarding--
            ``(A) the fiscal impact of such contracts on total Federal 
        expenditures under title XVIII of the Social Security Act [this 
        subchapter] and on out-of-pocket expenditures by medicare 
        beneficiaries for health services under such title; and
            ``(B) the quality of the health services provided under such 
        contracts; and
        ``(2) recommendations as to whether medicare beneficiaries 
    should continue to be able to enter private contracts under section 
    1802(b) of such Act [subsec. (b) of this section] (as added by 
    subsection (a)) and if so, what legislative changes, if any should 
    be made to improve such contracts.''

                  Section Referred to in Other Sections

    This section is referred to in sections 1395x, 1395y of this title.
