§ 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—
(2)
Beneficiary protections
(A)
In general
Paragraph (1) shall not apply to any contract unless—
(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
(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—
(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.
(C)
Practitioner
The term “practitioner” has the meaning given such term by section
1395u
(b)(18)(C) of this title.