Emergency and Urgent Care Situations

40.28 - Emergency and Urgent Care Situations (Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16) Payment may be made for services furnished by an opt-out physician or practitioner who has not signed a private contract with a Medicare beneficiary for emergency or urgent care items and services furnished to, or ordered or prescribed for, such beneficiary on or after the date the physician opted out. Where a physician or practitioner who has opted out of Medicare treats a beneficiary with whom the physician or practitioner does not have a private contract in an emergency or urgent care situation, the physician or practitioner may not charge the beneficiary more than the Medicare limiting charge for the service and must submit the claim to Medicare on behalf of the beneficiary for the emergency or urgent care. Medicare payment may be made to the beneficiary for the Medicare covered services furnished to the beneficiary. In other words, where the physician or practitioner provides emergency or urgent care services to the beneficiary, the physician or practitioner must submit a claim to Medicare, and may collect no more than the Medicare limiting charge in the case of a physician, or the deductible and coinsurance in the case of a practitioner. This implements §1802(b)(2)(A)(iii) of the Act, which specifies that the contract may not be entered into when the beneficiary is in need of emergency or urgent care. Because the services are excluded from coverage under §1862(a)(19) of the Act only if they are furnished under private contract, CMS concludes that they are not excluded in this case where there is no private contract, notwithstanding that they were furnished by an opt-out physician or practitioner. Hence, they are covered services furnished by a nonparticipating physician or practitioner, and the rules in effect absent the opt-out would apply in these cases. Specifically, the physician or practitioner may choose to take assignment (thereby agreeing to collect no more than the Medicare deductible and coinsurance based on the allowed amount from the beneficiary) or not to take assignment (and to collect no more than the Medicare limiting charge), but the practitioner must take assignment under §1842(b)(18) of the Act. Therefore, in this circumstance the physician or practitioner must submit a completed Medicare claim on behalf of the beneficiary with the appropriate HCPCS code and HCPCS modifier that indicates the services furnished to the Medicare beneficiary were emergency or urgent care services and the beneficiary does not have a private contract with the physician or practitioner. If the physician or practitioner did not submit the GJ national HCPCS modifier, then the Medicare contractor must deny the claim so that the beneficiary can appeal. GJ = Opt-out physician/practitioner EMERGENCY OR URGENT SERVICES This modifier must be used on claims for services rendered by an opt-out physician/ practitioner for an emergency/urgent care service. The use of this modifier indicates that the service was furnished by an opt- out physician/practitioner who has not signed a private contract with a Medicare beneficiary for emergency or urgent care items and services furnished to, or ordered or prescribed for, such beneficiary on or after the date the physician/practitioner opted out. The Medicare contractor must deny payment for emergency or urgent care items and services to both an opt- out physician or practitioner and the beneficiary if these parties have previously entered into a private contract, i.e., prior to the furnishing of the emergency or urgent care items or services but within the physician’s or practitioner’s current 2-year period. Under the emergency and urgent care situation where an opt-out physician or practitioner renders emergency or urgent service to a Medicare beneficiary (e.g., a fractured leg) who has not entered into a private agreement with the physician or practitioner, as stated above the physician or practitioner is required to submit a claim to Medicare with the appropriate modifier (GJ and 54 as discussed further below) and is subject to all the rules and regulations of Medicare, including the limiting charge. However, if the opt-out physician or practitioner asks the beneficiary, with whom the physician or practitioner has no private contract, to return for a follow up visit (e.g., return within 5 to 6 weeks to remove the cast and examine the leg) the physician or practitioner must ask the beneficiary to sign a private contract. In other words, once a beneficiary no longer needs emergency or urgent care (i.e., non-urgent follow up care), Medicare cannot pay for the follow up care and the physician or practitioner can and must, under the opt-out affidavit agreement, ask the beneficiary to sign a private contract as a condition of further treatment. The way this would work in the fractured leg example (see previous paragraph) is that the physician or practitioner would bill Medicare for the setting of the fractured leg with the emergency opt-out HCPCS modifier (GJ) and the surgical care only modifier (54) to ensure that Medicare does not pay the Evaluation and Management (E&M) that is in the global fee for the procedure. The physician or practitioner would then either have the beneficiary sign the private contract or refer the beneficiary to a Medicare physician or practitioner who would bill Medicare using the post op only modifier to be paid for the post op care in the global period. If the beneficiary continues to be in a condition that requires emergency or urgent care (i.e., unconscious or unstable after surgery for an aneurysm) follow up care would continue to be paid under emergency or urgent care until such time as the beneficiary no longer needed such care. In the absence of incontrovertible evidence, CMS recommends accepting what the physician or practitioner says via the modifiers and doing post-pay records review of frequent users of the opt-out modifier.