Page 36 - Medicare Benefit Policy Manual

C. Violation not discovered by the Medicare contractor during the current 2-year
period.

• In situations where a violation of paragraph (A) of this section is not discovered
by the Medicare contractor during the 2-year period when the violation actually
occurred, the requirements of paragraphs (B)(1) through (B)(8) of this section are
applicable from the date that the first violation of paragraph (A) of this section
occurred until the end of the 2-year period during which the violation occurred
(unless the physician or practitioner takes good faith efforts, within 45 days of
any notice from the Medicare contractor that the physician or practitioner failed
to maintain opt-out, or within 45 days of the physician’s or practitioner’s
discovery of the failure to maintain opt-out, whichever is earlier, to correct his or
her violations of paragraph (A) of this section. Good faith efforts include, but are
not necessarily limited to, refunding any amounts collected in excess of the
charge limits from beneficiaries with whom he or she did not sign a private
contract).

40.12 - Actions to Take in Cases of Failure to Maintain Opt-Out
(Rev. 222, Issued: 05-13-16, Effective: 08-15-16, Implementation; 08-15-16)

If the Medicare contractor becomes aware that the physician/practitioner has failed to
maintain opt-out as indicated in §40.11, it must send the physician/practitioner a letter
advising the physician/practitioner that it has received a claim and believes that the
physician/ practitioner may have inadvertently failed to maintain opt-out. It must
describe the situation in §40.11 that it believes exists and its basis for its belief. It must
ask the physician or practitioner to provide it with an explanation of what happened and
how, within 45 days, the physician or practitioner will resolve it. (See Pub. 100-04,
Medicare Claims Processing Manual, Chapter 1, “General Billing Requirements,” §70.6).

If the Medicare contractor received a claim from the opt-out physician/practitioner, it
must ask the physician/practitioner if the received claim was: (a) an emergency or urgent
situation, with missing documentation, or (b) filed in error. When the reason for the
letter is that the physician/practitioner filed a claim that the physician/practitioner did not
identify as an emergency or urgent care service, the Medicare contractor must request
that the physician/practitioner submit the following information with the
physician’s/practitioner’s response:

• Emergency/urgent care documentation if the claim was for a service furnished in
an emergency or urgent situation but included no documentation to that effect;
and/or

• If the claim was filed in error, the Medicare contractor must ask the
physician/practitioner to explain whether the filing was an isolated incident or a
systematic problem affecting a number of claims.