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Opted-Out Moonlighting

Opted-Out Moonlighting

How do I “moonlight” if I have decided to opt out?  The short answer is “with great difficulty.”  There are many potential avenues, but in each case you must be able to convince the other health care entity that it is worth taking the trouble to set things up to meet your needs.  The simplest environment is a pure occupational medicine or correctional medicine setting, where no Medicare, Medicaid, or traditional insurance companies are billed.  If you need to know the mechanics of opting out, we have that covered as well.

These opportunities are less frequently available compared to emergency departments (ED) or urgent cares.  In the ED or urgent care, your employer would need to be willing to 1) bill all Medicare claims using the GJ code described below, 2) be willing to only assign Medicare patients to you only when a Medicare accepting provider is not available, 3) allow you to also screen out your own privately contracted (DPC) patients (you would not be allowed to bill them using the GJ code since you have privately contracted with them outside of the ED), 4) be willing to allow you to customize any third party insurance contracts so that you could continue to see your DPC patients in the privately contracted manner you prefer, and 5) you would likely need to enroll in Medicaid (probably not a problem, but legal opinions do differ slightly and this is a rapidly evolving issue).

Dr. Eskew is actively attempting to establish relationships with many entities that would be willing to hire “opted out” DPC physicians on a part time (or full time if that is your desire) basis.  Please contact Dr. Eskew (phil@dpcfrontier.com) if you would like him to help you locate an opportunity in your area.

Occupational Medicine – state based workers’ compensation insurance plans are administered in an entirely independent fashion from other standard third party health insurance operations.

Correctional Medicine – Inmates have an 8th Amendment right to medical care.  DPC physicians can seek employment in prisons or jails, whether operated at the federal or state level, without needing to worry about ever billing Medicare or any private insurance. Whether you are employed directly by the state, or by a private entity that has contracted with the state to provide care to inmates (this is the case in about half of the states), this is a great option as you grow your practice.

Addiction Medicine – these programs are often offered on a cash pay basis.  Organizations like “Groups” do not take Medicare, and thus also represent moonlighting options for DPC physicians.  Since you would routinely be prescribing suboxone you would need to obtain a DEA(X) number and you would need to be “signed up” with Medicaid so that your prescriptions are filled.

Urgent Care / Emergency Care exception – opted out providers that treat Medicare patients in the urgent care or emergency setting may still bill Medicare patients.  This is described in the Medicare Benefit Policy Manual, Chapter 15, Chapters 40.6 and 40.28.   “Payment may be made to a [Medicare] beneficiary for services of an opt out physician/practitioner” if “the services are emergency or urgent care services furnished by an opt-out physician/practitioner to a beneficiary with whom he/she has not previously entered into a private contract.”  If you would like to work on a part time basis in a hospital emergency department or urgent care, you should mention this rule and ask the hospital/urgent care to permit you to treat patients at their facility in this manner – you must be careful not bill for any of your membership patients that you treat in this setting.  An opted‐out provider can see and bill Medicare patients for the only if no other provider (that has not opted‐out of Medicare) is available to treat the Medicare beneficiary, and in those instances the opted-out provider could bill using GJ=Opt‐out Physician/practitioner EMERGENCY OR URGENT SERVICES modifier on claims submitted to Medicare for these services.  These claims will be reimbursed at the Medicare “nonparticipating” physician rate (typically 95% of the regular rate), but the office would be permitted to balance bill an additional charge if desired (see this helpful AAFP summary).

Administrative Hospice exception – While Hospice programs often work with Medicare for payment of provider services, if you are the hospice medical director and your role is 100% administrative, then it should be safe for you to “opt out”  of Medicare.  For those looking for more information about this exception, more detail can be found on this Medicare contractor FAQs pageand also on this page which covers the billing of Hospice provider services.  Note the discussion under “administrative.”

TRICARE (but ONLY with a customized contract) –

If the physician has taken the step of actively signing up with TRICARE, then she has agreed to follow Tricare’s rules, and those default rules are problematic.  Under section 3D “Provider Responsibilities” of the standard TRICARE contract the physician indeed must be participating in Medicare.  “Provider shall participate in Medicare (accept assignment) and submit claims on behalf of all TRICARE and Medicare beneficiaries.”

Even more problematic, under section standard contract section 3B “Provider may not bill TRICARE Beneficiares for any service that is non-covered or disallowed.  Provider shall not routinely waive Copayments.  Except for Copayments, Provider agrees that in no event (including, but not limited to, nonpayment or breach of this Agreement by TriWest or TriWest’s insolvency) shall Provider bill or collect for Covered Services from a TRICARE beneficiary.”

Theoretically the terms of section 3B and 3D of the TRICARE contract can be modified.  If we look at the language of 32 CFR 199.17 (p)(4) it implies that changes to the default contract regarding Medicare are possible, and it offers no stern prohibitions on the provider’s ability to privately contract with a TRICARE patient.

“(iv) All preferred network providers must be Medicare participating providers, unless this requirement is waived based on extraordinary circumstances. This requirement that a provider be a Medicare participating provider does not apply to providers not eligible to be participating providers under Medicare.”

I think it is unlikely TRICARE would allow modifications to their standard contract terms, but it does not hurt to start these conversations.  In summary:

May a physician that has signed up with TRICARE (under the standard contract) see TRICARE patients under a private DPC contract (for either covered or noncovered services)?  No

May a physician that has NOT signed up with TRICARE see TRICARE patients in a DPC manner? Yes

May a physician that has opted out of Medicare still sign a customized agreement to accept TRICARE in one setting, but privately contract with TRICARE patients in another (DPC) setting? Theoretically yes – this is a private contract scenario where customization is possible.

Here are examples of options that DO NOT COUNT as “opt out” exceptions:

Indian Health Services (IHS) – Yes this is a separate government payor program independent of Medicare, but they still bill Medicare on a secondary basis.  It would be an option only if the facility were large enough to not send you any Medicare patients, and most would be unwilling to cohort patients in this manner.

Veterans Administration (VA) – Yes this is a separate government payor program independent of Medicare, but they still bill Medicare on a secondary basis.  It would be an option only if the facility were large enough to not send you any Medicare patients, and most would be unwilling to cohort patients in this manner.

Locum Tenans – This is a source of confusion due to some misleading (though not inaccurate) advice on some Medicare contractor websites.  “Question 1: Does a locum tenens physician need to enroll with Medicare prior to acting as a locum tenens physician?  Answer 1: Currently, a locum tenens physician does not have to enroll in the Medicare program to see patients. He/she must, however, have a National Provider Identifier (NPI) and possess an unrestricted license in the state in which he/she is practicing.”

I highlighted the word “enrolled” for a reason.  Not formally enrolled (for whatever unlikely reason) is NOT the same thing as “opted out.”  Since “opting out” is the only legal way to obtain the right to privately contract with Medicare patients for covered services, our moonlighting dilemma remains unchanged without another exception.

The Medicare contractor article linked above also contains a citation to a Medicare Claims Processing Manual, and in that document section 30.2.2(c) has the following language:

“When a physician or non-physician practitioner opts out of the Medicare program and is a
member of a group practice or otherwise reassigns his or her right to bill and receive Medicare payment to an organization, the organization may no longer bill Medicare or receive Medicare paymentfor the services that the opt out physician or non-physician practitioner furnishes to Medicare beneficiaries.”

I would admit that a literal reading of this law leaves your issue open.  Technically the locum physician is NOT billing Medicare.  Medicare is being billed by the original company in the name of the original physician.  So I see what you are getting at, but what about this language under section 40.5 of the Medicare Benefit Policy Manual:

“When a physician/practitioner opts out of Medicare, Medicare covers no services provided by that individual and no Medicare payment can be made to that physician or practitioner directly or on a capitated basis. Additionally, no Medicare payment may be made to a beneficiary for items or services provided directly by a physician or practitioner who has opted out of the program.”

More importantly, what about this language under section 40.23 of the Medicare Benefit Policy Manual:

Where a physician or practitioner opts out and is a member of a group practice or otherwise reassigns his or her rights to Medicare payment to an organization, the organization may no longer bill Medicare or be paid by Medicare for services that the physician or practitioner furnishes to Medicare beneficiaries.However, if the physician or practitioner continues to grant the organization the right to bill and be paid for the services the physician or practitioner furnishes to patients, the organization may bill and
be paid by the beneficiary for the services that are provided under the private contract. The decision of a physician or practitioner to opt out of Medicare does not affect the ability of the group practice or organization to bill Medicare for the services of physicians and practitioners who have not opted out of Medicare.  Corporations, partnerships, or other organizations that bill and are paid by Medicare for the services of physicians or practitioners who are employees, partners, or have other arrangements that meet the Medicare reassignment-of-payment rules cannot opt out because they are neither physicians nor practitioners. Of course, if every physician and practitioner within a corporation, partnership, or other organization opts out, then such corporation, partnership, or other organization would have, in effect, opted out.”

In the locums example I expect the government would win on the argument that the locum physician has “reassigned his rights” to bill Medicare to the original company/physician, and that pursuant to the language above this original (locums) company would then not be permitted to bill Medicare due to the “opted out” status of the locum physician, where the government would argue the physician had no actual rights to reassign.  If the physician were merely “not enrolled” due to laziness or troglodyte personality, etc. then it might be a different story, but as “opted out” DPC physicians we remain blocked from a locums exception.  If you do decide to pursue locums work, why not ditch the traditional locums middleman and use Lucidity?