Does Medicare Illegally Coerce and Conscript Physicians?

Is the federal government illegally forcing physicians to enroll in Medicare?

If a physician wants to be paid directly from Medicare, he or she must enroll with Medicare and be either a participating or non-participating physician. Physicians also can choose to be “opted out” of Medicare, which means both the physician and his or her patients receive no reimbursement from Medicare.

But what if a physician’s choice is “none of the above?”

That’s the question asked by Susan Hansen, a neurologist in California, who in the latest issue of the Journal of American Physicians and Surgeons compares the Medicare enrollment process akin to military conscription. She calls those physicians who select nothing “nonenrolled.” According to Hansen, “Medicare tries to coerce physicians to enroll. Medicare’s current interpretation of Social Security Act (SSA) Section 1848 is that a nonenrolled physician must provide medical care free of charge.”

That is, a doctor who is nonenrolled cannot bill Medicare, nor can his or her patient bill Medicare, and furthermore, according to an e-mail from a federal employee that the American Medical Association received on the subject, “[A] physician who treats a Medicare beneficiary…must either…enroll in Medicare…or…furnish the Medicare-covered services for free.”

Should a nonenrolled physician treat a patient who later submits a claim to Medicare, that physician may receive a letter from the Center for Medicare and Medicaid Services (CMS) that states, “[CMS] monitors compliance with the mandatory claim filing requirement. Failure to follow this requirement may result in sanctions being imposed, as outlined in section 1848(g)(4) of the Act. Violators of the requirement may be subject to a civil monetary penalty of up to $2,000 for each violation and/or Medicare program exclusion…Sincerely, C51″

Hansen believes such action is unconstitutional and says physicians should consider nonenrollment or, if already enrolled, unenrolling from Medicare. Before doing so they should consult a legal professional, she says. And such action is not without risk:

In addition to inordinate fines, a nonenrolled physician risks exclusion from the Medicare program, which might affect hospital privileges and eligibility for participation in some private insurance plans. Medicare has promulgated a regulation whereby hospitals are directed not to grant medical staff privileges to any physician who is excluded from a government program (e.g. Medicare or Medicaid). Exclusion from these programs is reportable to the National Practitioner Data Bank (NPDB). This type of Adverse Action Report in the NPDB could ruin a physician. A hospital would also be legally obligated to report a physician who was not granted privileges to the state medical board within 15 days. Liability insurers may decline to provide insurance to a sanctioned physician.