Providers who opt out must enter a private contract with each Medicare beneficiary before furnishing non-emergency services. A separate private contract must be completed for each Medicare beneficiary. Providers must keep each beneficiary's signed private contract on file for the full opt-out period and must be able to provide the contract to CMS upon request. A new private contract is required for each beneficiary and for each two-year opt-out period.

A suggested private contract template is available under the Enrollment Forms section of the Forms webpage. Providers may also create their own private contract, as long as it includes all required elements.

Requirements of a Private Contract

A private contract under this section must:

• Be in writing and in print sufficiently large to ensure that the beneficiary is able to read the contract;
• Clearly state whether the physician/practitioner is excluded from Medicare under §1128, 1156 or 1892 of the Act;
• State that the beneficiary or the beneficiary's legal representative accepts full responsibility for payment of the physician's or practitioner's charge for all services furnished by the physician/practitioner;
• State that the beneficiary or the beneficiary's legal representative understands that Medicare limits do not apply to what the physician/practitioner may charge for items or services furnished by the physician/practitioner;
• State that the beneficiary or the beneficiary's legal representative agrees not to submit a claim to Medicare or to ask the physician/practitioner to submit a claim to Medicare;
• State that the beneficiary or the beneficiary's legal representative understands that Medicare payment will not be made for any items or services furnished by the physician/practitioner that would have otherwise been covered by Medicare if there was no private contract and a proper Medicare claim had been submitted;
• State that the beneficiary or the beneficiary's legal representative enters into the contract with the knowledge that the beneficiary has the right to obtain Medicare-covered items and services from physicians and practitioners who have not opted out of Medicare, and that the beneficiary is not compelled to enter into private contracts that apply to other Medicare-covered services furnished by other physicians or practitioners who have not opted out;
• State the expected or known effective date and the expected or known expiration date of the current 2-year opt-out period;
• State that the beneficiary or the beneficiary's legal representative understands that Medigap plans do not, and that other supplemental plans may elect not to, make payments for items and services not paid for by Medicare;
• Be signed by the beneficiary or the beneficiary's legal representative and by the physician/practitioner;
• Not be entered into by the beneficiary or by the beneficiary's legal representative during a time when the beneficiary requires emergency care services or urgent care services;
• Be provided (a photocopy is permissible) to the beneficiary or to the beneficiary's legal representative before items or services are furnished to the beneficiary under the terms of the contract;
• Be retained (original signatures of both parties required) by the physician/practitioner for the duration of the current 2-year opt-out period;
• Be made available to CMS upon request; and
• Be entered into for each 2-year opt-out period.