To help ADA members understand the opt-out rules, the ADA has prepared this article and the accompanying model Private Contract and Affidavit, as a member-only service. For more complete information about opting out of Medicare, contact your state's Medicare contractor and see Chapter 40 of the Medicare Benefits Policy Manual (PDF).
What Dental Services Are Covered Under Medicare?
Medicare does not cover most routine dental services and the program will not pay for non-covered services. In fact, the Medicare law expressly excludes "…services in connection with the care, treatment, filling, removal, or replacement of teeth or structures directly supporting teeth, except that payment may be made under part A in the case of inpatient hospital services in connection with the provision of such dental services if the individual, because of his underlying medical condition and clinical status or because of the severity of the dental procedure, requires hospitalization in connection with the provision of such services."1 Medicare Part A provides benefits for certain in-hospital services and Part B provides benefits for certain doctors' services, hospital outpatient services and home health care.
With regard to covered procedures or services, the Centers for Medicare & Medicaid Services (CMS), the federal agency with Medicare jurisdiction, indicates that:
- In general, Medicare-covered services that are within the scope of practice (as defined by the states) for a physician as well as a dentist are covered when provided by a dentist.
- Medicare will pay for dental services that are an integral part of a covered procedure (e.g., reconstruction of the jaw following accidental injury).2
- Extractions of teeth are covered under Part B if such extractions are necessary to prepare the jaw for radiation treatment of cancer.3
- Inpatient oral exams, but not treatment, are covered under Part A prior to renal transplant surgery.4
- The brush biopsy used for oral cancer screening may be covered under Part B.
What are the Medicare Claim and Reimbursement Requirements if I perform Part B covered services and don't opt out?
Dentists who provided Part B covered items or services to patients who are Medicare beneficiaries have obligations under the Medicare program, even if the dentist is not enrolled as a Medicare provider or does not wish to submit Medicare claims.
If you have not opted out of Medicare and you provide an item or service that may be covered by Medicare Part B, you must submit a claim on behalf of the Medicare beneficiary and you are not allowed to charge the beneficiary more than the applicable Medicare limits on charges. The only situation in which a dentist who has not opted out does not need to submit a claim to Medicare for covered services is where a beneficiary (or a beneficiary's legal representative) refuses, of his or her own free will, to authorize the submission of a bill to Medicare; however, the limits on what the dentist may collect from the beneficiary continue to apply to charges for the covered service.
If a dentist who has not opted out fails to submit a claim to Medicare for a covered service within one year of providing the service, or knowingly and willfully charges a beneficiary more than the applicable charge limits on a repeated basis, the dentist may be subject to civil monetary penalties. Dentists and Medicare beneficiaries cannot negotiate these requirements. If a dentist and a Medicare beneficiary agree to waive the requirements for filing claims, charge limitations, or any other Medicare requirements, the agreement has no legal force and effect. The state Medicare contractor will refer such cases to the Office of Inspector General of the U.S. Department of Health and Human Services and the dentist could be subject to penalties and possible exclusion from Medicare and Medicaid.
Is Opting Out Right for Me?
The decision to choose this option is one that each dentist must make on his or her own. By opting out and using Private Contracts, a dentist may charge his or her usual, or otherwise agreed upon, rate for Part B covered services—even if it exceeds what would have been reimbursed by Medicare. It is important to understand that if a dentist elects to privately contract and opt-out of Medicare, the dentist can receive no Medicare payments (including Medicare Advantage reimbursement) during the opt period and neither the dentist nor the patient can submit a claim to Medicare (there is an exception in situations where an opted-out dentist provides emergency or urgent care treatment to a Medicare beneficiary who has not signed a Private Contract). The dentist must privately contract with all Medicare-eligible patients for all Medicare Part B-covered services during the opt out period. A dentist, physician, or other opt-out practitioner cannot opt-out for only certain services or patients.
The opt out period lasts two years and cannot be terminated early unless the dentist is opting out for the very first time and terminates the affidavit no later than 90 days after the effective date of the dentist's first opt out period. Opt-out affidavits automatically renew every two years unless the dentist cancels by notifying all Medicare contractors with which he or she filed an affidavit in writing at least 30 days prior to the start of the next two year opt-out period.
There is paperwork related to the opt-out that should be weighed against the paperwork associated with Medicare enrollment.
Opting-out requires the dentist to notify the carrier(s) handling Medicare claims in his or her state that the dentist intends to privately contract with Medicare patients. This is done by filing an Affidavit in which the dentist attests to certain specific terms. Affidavits must be filed within 10 days of entering the first Private Contract, and are valid for two years. Opt-out affidavits signed on or after June 16, 2015, will automatically renew every 2 years. Dentists wanting to opt-out must obtain and use a National Provider Identifier (NPI). To apply for an NPI, visit the National Provider System.
Dentist-Patient Private Contract
Each Medicare-eligible patient must be given notice of the opt out before services are delivered. This is accomplished by having the patient sign the Private Contract. This need be done only once for each covered patient for the opt-out period covered by an Affidavit. In the Private Contract, the patient agrees to give up Medicare payment for services by the dentist and agrees to pay the dentist without regard to any Medicare payment limits. The Private Contract must contain certain specified items, and be written in print "sufficiently large" to ensure the patient is able to read it. A dentist who opts out must retain all signed original Private Contracts for the duration of the opt-out period and make them available to CMS upon request.
Exception for Emergency or Urgent Care
It is important to note that dentists will not be allowed to privately contract with patients who have not previously signed a Private Contract and require emergency or urgent care. In other words, the private contract relationship must be established before the patient seeks emergency or urgent care.
To further clarify —
What is the procedure for a dentist who has filed an opt-out Affidavit with the Medicare carrier and who has already executed Private Contracts with all of his/her patients who are Medicare beneficiaries when:
- A patient with whom the dentist has privately contracted needs emergency or urgent care? The dentist may provide those services only via the Private Contract.
- A new patient who is a Medicare beneficiary (and who has not signed a Private Contract) presents in need of emergency or urgent care? This is the exception to the opt-out. If it's a Medicare Part B-covered service, the dentist must file the claim with Medicare even if he or she has opted out.5
This form is based on the Medicare statute and CMS regulations and guidelines, which are fairly strict regarding the content of the Affidavit. Within ten days after the first Private Contract is executed, the dentist should complete, sign, and submit an original Affidavit to each carrier having jurisdiction over Medicare claims the dentist would otherwise file with Medicare. The dentist should retain a copy of each Affidavit that he or she submits.
- Sample Affidavit Form (PDF)
This form is based on the Medicare statute and CMS regulations and guidelines, which are fairly strict regarding the content of the Private Contract. The Private Contract must be printed in a print of sufficient size to allow the patient to read it. A dentist who opts out must enter into a Private Contract with each Medicare beneficiary to whom he or she furnishes items or services that are or may be covered by Medicare (even where Medicare payment would be on a capitated basis or where Medicare would pay an organization for the practitioner's services to the beneficiary), with the exception of emergency or urgent care (see above). Both the Private Contracts and the opt-out are null and void if the dentist fails to properly opt out, or if the dentist fails to remain in compliance with Medicare's opt-out conditions and requirements during the opt-out period.
The Private Contract(s) need not be filed with the Medicare carrier. Rather, the dentist must retain the originals. A copy of the Private Contract must be given to the patient before items or services are furnished to the patient under the terms of the Private Contract.
Sample Letter To Patients
Dentists may wish to provide an explanation to their patients when providing the Private Contract. Of course, how this is presented to patients will depend on a number of factors. One approach to consider is:
To My Medicare Eligible Patients:
This is to let you know that under a law passed by Congress in 2003, I have decided not to participate in the Medicare system. I believe this decision will allow me to provide the best possible care to you, at fees we agree upon. This also permits us to proceed with your treatment without worrying about Medicare limitations or red tape. Very little dental care is covered by Medicare Part B, and it's unfortunately very difficult for my office to handle all of the paperwork and red tape of this complex governmental structure. My non-participation in Medicare means that you will pay me directly for services covered by Medicare Part B. For this to happen, the law requires us to enter into a contract containing very specific terms.
If you agree that this approach will work for your needs as well, please sign and date the attached contract. I certainly will understand if you decide that you do not wish to sign the contract. Please simply note that this would mean I regrettably would be unable to perform any Medicare Part B-covered procedures for you.
Thank you for your understanding. I value you as a patient and value our professional relationship and hope this letter helps you understand the situation.
For More Information
For more information about opting out of Medicare, including information regarding the effects of opting out, failure to properly opt out, failure to maintain opt out, submitting claims to Medicare for emergency and urgent care services, renewal and early termination of opt out, and how opting out applies to Medicare Advantage plans, see Subpart D ("Private Contracts") of Title 42 of the Code of Federal Regulations,6 Section 40 "Effect of Beneficiary Agreements Not to Use Medicare Coverage") of Chapter 15 of the Medicare Benefit Policy Manual,7 and the CMS website, Ordering & Certifying.8
The material in this article first appeared in Private Contracting for Medicare-Covered Services: Dentists have the right to Opt-Out of the Medicare Program, ADA Legal Advisor, March 2004, by Mark S. Rubin, J.D., Associate General Counsel, Division of Legal Affairs, and Thomas J. Spangler, Jr., J.D., Director, Legislative and Regulatory Policy, Council on Government Affairs.
1 Section 1862 (a)(12) of the Social Security Act.
2 See CMS, Medicare Dental Coverage: Overview, at http://www.cms.gov/MedicareDentalCoverage/.
5 For more information, see Section 40.28 ("Emergency and Urgent Care Situations") of Chapter 15 of the Medicare Benefit
Policy Manual, available at http://www.cms.gov/manuals/Downloads/bp102c15.pdf.
6 42 CFR Subpart D is available at http://ecfr.gpoaccess.gov
7 Chapter 15 ("Covered Medical and Other Health Services") of the Medicare Benefit Policy Manual is available at http://www.cms.gov/manuals/Downloads/bp102c15.pdf.
8 See CMS, Ordering & Certifying at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/Ordering-and-Certifying.
Rev. February 3, 2020
© 2010, 2013, 2015 American Dental Association. All rights reserved. Reproduction of this material by member dentists and their staff for use in the dental office is permitted. Any other use, duplication or distribution by any other party requires the prior written approval of the American Dental Association.
© 2020 American Dental Association. All rights reserved. Reproduction of this material by member dentists and their staff for use in the dental office is permitted. Any other use, duplication or distribution by any other party requires the prior written approval of the American Dental Association.