[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1042 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1042

To amend title XVIII of the Social Security Act to establish a Medicare 
 payment option for patients and physicians or practitioners 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

                              May 23, 2011

 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 physicians or practitioners to freely 
   contract, without penalty, for Medicare fee-for-service items and 
 services, while allowing Medicare beneficiaries to use their Medicare 
                               benefits.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Medicare Patient Empowerment Act''.

SEC. 2. GUARANTEEING FREEDOM OF CHOICE AND CONTRACTING FOR PATIENTS.

    (a) In General.--Section 1802 of the Social Security Act (42 U.S.C. 
1395a) is amended to read as follows:

       ``freedom of choice and contracting by patient guaranteed

    ``Sec. 1802.  (a) Basic Freedom of Choice.--Any individual entitled 
to insurance benefits under this title may obtain health services from 
any institution, agency, or person qualified to participate under this 
title if such institution, agency, or person undertakes to provide that 
individual such services.
    ``(b) Freedom To Contract by Medicare Beneficiaries.--
            ``(1) In general.--Subject to the provisions of this 
        subsection, nothing in this title shall prohibit a Medicare 
        beneficiary from entering into a contract with a participating 
        or non-participating physician or practitioner for any item or 
        service covered under this title.
            ``(2) Submission of claims.--Any Medicare beneficiary that 
        enters into a contract under this section shall be permitted to 
        submit a claim for payment under this title, and such payment 
        shall be made in the amount that would otherwise apply under 
        this title if such claim had been filed by a participating 
        physician or practitioner (as defined in section 1842(i)(2)) in 
        the payment area where the physician or practitioner covered by 
        the contract resides. Payment made under this title for any 
        item or service provided under the contract shall not render 
        the physician a participating or non-participating physician, 
        and as such, requirements of this title that may otherwise 
        apply to a participating or non-participating physician would 
        not apply with respect to any items or services furnished under 
        the contract.
            ``(3) Beneficiary protections.--
                    ``(A) In general.--Paragraph (1) shall not apply to 
                any contract unless--
                            ``(i) the contract is in writing, is signed 
                        by the Medicare beneficiary and the physician 
                        or practitioner, and establishes all terms of 
                        the contract (including specific payment for 
                        physicians' services covered by the contract) 
                        before any item or service is provided pursuant 
                        to the contract, and the beneficiary shall be 
                        held harmless for any subsequent payment 
                        charged for a service in excess of the amount 
                        established under the contract during the 
                        period the contract is in effect;
                            ``(ii) the contract contains the items 
                        described in subparagraph (B); and
                            ``(iii) the contract is not entered into at 
                        a time when the Medicare beneficiary is facing 
                        an emergency medical condition or urgent health 
                        care situation.
                    ``(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 to be responsible for payment 
                        to such physician or practitioner for such 
                        items or services under the terms of and 
                        amounts established under the contract;
                            ``(ii) agrees to be responsible for 
                        submitting claims under this title to the 
                        Secretary, and to any other supplemental 
                        insurance plan that may provide supplemental 
                        insurance, for such items or services furnished 
                        under the contract if such items or services 
                        are covered by this title, unless otherwise 
                        provided in the contract under subparagraph 
                        (C)(i); and
                            ``(iii) acknowledges that no limits or 
                        other payment incentives that may otherwise 
                        apply under this title (such as the limits 
                        under subsection (g) of section 1848 or 
                        incentives under subsection (a)(5), (m), (q), 
                        and (p) of such section) shall apply to amounts 
                        that may be charged, or paid to a beneficiary 
                        for, such items or services.
                Such contract shall also clearly indicate whether the 
                physician or practitioner is excluded from 
                participation under the Medicare program under section 
                1128.
                    ``(C) Beneficiary elections under the contract.--
                Any Medicare beneficiary that enters into a contract 
                under this section may elect to negotiate, as a term of 
                the contract, a provision under which--
                            ``(i) the physician or practitioner shall 
                        file claims on behalf of the beneficiary with 
                        the Secretary and any supplemental insurance 
                        plan for items or services furnished under the 
                        contract if such items or services are covered 
                        under this title or under the plan; and
                            ``(ii) the beneficiary assigns payment to 
                        the physician for any claims filed by, or on 
                        behalf of, the beneficiary with the Secretary 
                        and any supplemental insurance plan for items 
                        or services furnished under the contract.
                    ``(D) Exclusion of dual eligible individuals.--
                Paragraph (1) shall not apply to any contract if a 
                beneficiary who is eligible for medical assistance 
                under title XIX is a party to the contract.
            ``(4) Limitation on actual charge and claim submission 
        requirement not applicable.--Section 1848(g) shall not apply 
        with respect to any item or service provided to a Medicare 
        beneficiary under a contract described in paragraph (1).
            ``(5) Construction.--Nothing in this section shall be 
        construed to prohibit any physician or practitioner from 
        maintaining an election and acting as a participating or non-
        participating physician or practitioner with respect to any 
        patient not covered under a contract established under this 
        section.
            ``(6) Definitions.--In this subsection:
                    ``(A) Medicare beneficiary.--The term `Medicare 
                beneficiary' means an individual who is entitled to 
                benefits under part A or enrolled under part B.
                    ``(B) Physician.--The term `physician' has the 
                meaning given such term by paragraphs (1), (2), (3), 
                and (4) of section 1861(r).
                    ``(C) Practitioner.--The term `practitioner' means 
                a practitioner described in section 1842(b)(18)(C).
                    ``(D) Emergency medical condition.--The term 
                `emergency medical condition' means a medical condition 
                manifesting itself by acute symptoms of sufficient 
                severity (including severe pain) such that a prudent 
                layperson, with an average knowledge of health and 
                medicine, could reasonably expect the absence of 
                immediate medical attention to result in--
                            ``(i) serious jeopardy to the health of the 
                        individual or, in the case of a pregnant woman, 
                        the health of the woman or her unborn child;
                            ``(ii) serious impairment to bodily 
                        functions; or
                            ``(iii) serious dysfunction of any bodily 
                        organ or part.
                    ``(E) Urgent health care situation.--The term 
                `urgent health care situation' means services furnished 
                to an individual who requires services to be furnished 
                within 12 hours in order to avoid the likely onset of 
                an emergency medical condition.''.

SEC. 3. PREEMPTION OF STATE LAWS LIMITING CHARGES FOR PHYSICIAN AND 
              PRACTITIONER SERVICES.

    (a) In General.--No State may impose a limit on the amount of 
charges for services, furnished by a physician or practitioner, for 
which payment is made under section 1848 of the Social Security Act (42 
U.S.C. 1395w-4), and any such limit is hereby preempted.
    (b) State.--In this section, the term ``State'' includes the 
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and 
American Samoa.
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