Medicare Patient Empowerment Act of 2021

II 117TH CONGRESS 1ST SESSION S. 826 To amend title XVIII of the Social Security Act to establish a Medicare payment option for patients and eligible professionals to freely contract, without penalty, for Medicare fee-for-service items and services, while allowing Medicare beneficiaries to use their Medicare benefits. IN THE SENATE OF THE UNITED STATES MARCH 18, 2021 Mr. PAUL (for himself and Ms. MURKOWSKI) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend title XVIII of the Social Security Act to establish a Medicare payment option for patients and eligible pro- fessionals to freely contract, without penalty, for Medi- care fee-for-service items and services, while allowing Medicare beneficiaries to use their Medicare benefits. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Medicare Patient Em- 4 powerment Act of 2021’’. 5 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 826 IS SEC. 2. GUARANTEEING FREEDOM OF CHOICE AND CON- 1 TRACTING FOR PATIENTS UNDER MEDICARE. 2 (a) IN GENERAL.—Section 1802 of the Social Secu- 3 rity Act (42 U.S.C. 1395a) is amended to read as follows: 4 ‘‘FREEDOM OF CHOICE AND CONTRACTING BY PATIENT 5 GUARANTEED 6 ‘‘SEC. 1802. (a) BASIC FREEDOM OF CHOICE.—Any 7 individual entitled to insurance benefits under this title 8 may obtain health services from any institution, agency, 9 or person qualified to participate under this title if such 10 institution, agency, or person undertakes to provide that 11 individual such services. 12 ‘‘(b) FREEDOM TO CONTRACT BY MEDICARE BENE- 13 FICIARIES.— 14 ‘‘(1) IN GENERAL.—Subject to the provisions of 15 this subsection, nothing in this title shall prohibit a 16 Medicare beneficiary from entering into a contract 17 with an eligible professional (whether or not the pro- 18 fessional is a participating or non-participating phy- 19 sician or practitioner) for any item or service cov- 20 ered under this title. 21 ‘‘(2) SUBMISSION OF CLAIMS.—Any Medicare 22 beneficiary that enters into a contract under this 23 section with an eligible professional shall be per- 24 mitted to submit a claim for payment under this 25 title for services furnished by such professional, and 26 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 826 IS such payment shall be made in the amount that 1 would otherwise apply to such professional under 2 this title except that where such professional is con- 3 sidered to be non-participating, payment shall be 4 paid as if the professional were participating. Pay- 5 ment made under this title for any item or service 6 provided under the contract shall not render the pro- 7 fessional a participating or non-participating physi- 8 cian or practitioner, and as such, requirements of 9 this title that may otherwise apply to a participating 10 or non-participating physician or practitioner would 11 not apply with respect to any items or services fur- 12 nished under the contract. 13 ‘‘(3) BENEFICIARY PROTECTIONS.— 14 ‘‘(A) IN GENERAL.—Paragraph (1) shall 15 not apply to any contract unless— 16 ‘‘(i) the contract is in writing, is 17 signed by the Medicare beneficiary and the 18 eligible professional, and establishes all 19 terms of the contract (including specific 20 payment for items and services covered by 21 the contract) before any item or service is 22 provided pursuant to the contract, and the 23 beneficiary shall be held harmless for any 24 subsequent payment charged for an item 25 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 826 IS or service in excess of the amount estab- 1 lished under the contract during the period 2 the contract is in effect; 3 ‘‘(ii) the contract contains the items 4 described in subparagraph (B); and 5 ‘‘(iii) the contract is not entered into 6 at a time when the Medicare beneficiary is 7 facing an emergency medical condition or 8 urgent health care situation. 9 ‘‘(B) ITEMS REQUIRED TO BE INCLUDED 10 IN CONTRACT.—Any contract to provide items 11 and services to which paragraph (1) applies 12 shall clearly indicate to the Medicare beneficiary 13 that by signing such contract the beneficiary— 14 ‘‘(i) agrees to be responsible for pay- 15 ment to such eligible professional for such 16 items or services under the terms of and 17 amounts established under the contract; 18 ‘‘(ii) agrees to be responsible for sub- 19 mitting claims under this title to the Sec- 20 retary, and to any other supplemental in- 21 surance plan that may provide supple- 22 mental insurance, for such items or serv- 23 ices furnished under the contract if such 24 items or services are covered by this title, 25 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 826 IS unless otherwise provided in the contract 1 under subparagraph (C)(i); and 2 ‘‘(iii) acknowledges that no limits or 3 other payment incentives that may other- 4 wise apply under this title (such as the 5 limits under subsection (g) of section 1848 6 or incentives under subsection (a)(5), (m), 7 (q), and (p) of such section) shall apply to 8 amounts that may be charged, or paid to 9 a beneficiary for, such items or services. 10 Such contract shall also clearly indicate whether 11 the eligible professional is excluded from par- 12 ticipation under the Medicare program under 13 section 1128. 14 ‘‘(C) BENEFICIARY ELECTIONS UNDER 15 THE CONTRACT.—Any Medicare beneficiary 16 that enters into a contract under this section 17 may elect to negotiate, as a term of the con- 18 tract, a provision under which— 19 ‘‘(i) the eligible professional shall file 20 claims on behalf of the beneficiary with the 21 Secretary and any supplemental insurance 22 plan for items or services furnished under 23 the contract if such items or services are 24 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 826 IS covered under this title or under the plan; 1 and 2 ‘‘(ii) the beneficiary assigns payment 3 to the eligible professional for any claims 4 filed by, or on behalf of, the beneficiary 5 with the Secretary and any supplemental 6 insurance plan for items or services fur- 7 nished under the contract. 8 ‘‘(D) EXCLUSION OF DUAL ELIGIBLE INDI- 9 VIDUALS.—Paragraph (1) shall not apply to 10 any contract if a beneficiary who is eligible for 11 medical assistance under title XIX is a party to 12 the contract. 13 ‘‘(4) LIMITATION ON ACTUAL CHARGE AND 14 CLAIM SUBMISSION REQUIREMENT NOT APPLICA- 15 BLE.—Section 1848(g) shall not apply with respect 16 to any item or service provided to a Medicare bene- 17 ficiary under a contract described in paragraph (1). 18 ‘‘(5) CONSTRUCTION.—Nothing in this section 19 shall be construed— 20 ‘‘(A) to prohibit any eligible professional 21 from maintaining an election and acting as a 22 participating or non-participating physician or 23 practitioner with respect to any patient not cov- 24 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 826 IS ered under a contract established under this 1 section; and 2 ‘‘(B) as changing the items and services 3 for which an eligible professional may bill under 4 this title. 5 ‘‘(6) DEFINITIONS.—In this subsection: 6 ‘‘(A) MEDICARE BENEFICIARY.—The term 7 ‘Medicare beneficiary’ means an individual who 8 is entitled to benefits under part A or enrolled 9 under part B. 10 ‘‘(B) ELIGIBLE PROFESSIONAL.—The term 11 ‘eligible professional’ has the meaning given 12 such term in section 1848(k)(3)(B). 13 ‘‘(C) EMERGENCY MEDICAL CONDITION.— 14 The term ‘emergency medical condition’ means 15 a medical condition manifesting itself by acute 16 symptoms of sufficient severity (including se- 17 vere pain) such that a prudent layperson, with 18 an average knowledge of health and medicine, 19 could reasonably expect the absence of imme- 20 diate medical attention to result in— 21 ‘‘(i) serious jeopardy to the health of 22 the individual or, in the case of a pregnant 23 woman, the health of the woman or her 24 unborn child; 25 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 826 IS ‘‘(ii) serious impairment to bodily 1 functions; or 2 ‘‘(iii) serious dysfunction of any bodily 3 organ or part. 4 ‘‘(D) PARTICIPATING; NON-PARTICI- 5 PATING.—The terms ‘participating’ and ‘non- 6 participating’ have the meanings given such 7 terms under subsection (h) of section 1842 for 8 purposes of such section. 9 ‘‘(E) URGENT HEALTH CARE SITUA- 10 TION.—The term ‘urgent health care situation’ 11 means services furnished to an individual who 12 requires services to be furnished within 12 13 hours in order to avoid the likely onset of an 14 emergency medical condition.’’. 15 SEC. 3. PREEMPTION OF STATE LAWS LIMITING CHARGES 16 FOR SERVICES BY AN ELIGIBLE PROFES- 17 SIONAL. 18 (a) IN GENERAL.—No State may impose a limit on 19 the amount of charges for services, furnished by an eligible 20 professional (as defined in subsection (k)(3)(B) of section 21 1848 of the Social Security Act, 42 U.S.C. 1395w–4), for 22 which payment is made under such section, and any such 23 limit is hereby preempted. 24 VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 826 IS (b) STATE.—In this section, the term ‘‘State’’ in- 1 cludes the District of Columbia, Puerto Rico, the Virgin 2 Islands, Guam, and American Samoa. 3 Æ VerDate Sep 11 2014 20:38 Apr 10, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S826.IS S826 pamtmann on DSKBC07HB2PROD with BILLS