[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3403 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 3403
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
December 5, 2023
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 professionals 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 of
2023''.
SEC. 2. GUARANTEEING FREEDOM OF CHOICE AND CONTRACTING FOR PATIENTS
UNDER MEDICARE.
(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 an eligible
professional (whether or not the professional is 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 with an eligible
professional shall be permitted to submit a claim for payment
under this title for services furnished by such professional,
and such payment shall be made in the amount that would
otherwise apply to such professional under this title except
that where such professional is considered to be non-
participating, payment shall be paid as if the professional
were participating. Payment made under this title for any item
or service provided under the contract shall not render the
professional a participating or non-participating physician or
practitioner, and as such, requirements of this title that may
otherwise apply to a participating or non-participating
physician or practitioner 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 eligible
professional, and establishes all terms of the
contract (including specific payment for items
and 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
an item or 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 eligible professional 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
eligible professional 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 eligible professional 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 eligible professional 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--
``(A) to prohibit any eligible professional 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; and
``(B) as changing the items and services for which
an eligible professional may bill under this title.
``(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) Eligible professional.--The term `eligible
professional' has the meaning given such term in
section 1848(k)(3)(B).
``(C) 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.
``(D) Participating; non-participating.--The terms
`participating' and `nonparticipating' have the
meanings given such terms under subsection (h) of
section 1842 for purposes of such section.
``(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 SERVICES BY AN
ELIGIBLE PROFESSIONAL.
(a) In General.--No State may impose a limit on the amount of
charges for services, furnished by an eligible professional (as defined
in subsection (k)(3)(B) of section 1848 of the Social Security Act, 42
U.S.C. 1395w-4), for which payment is made under such section, 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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