February 26, 1998

The Honorable Nancy-Ann Min DeParle
Health Care Financing Administration
Department of Health and Human Services
200 Independence Ave. SW
Washington, DC 20201

Dear Ms. DeParle:

This letter is in reference to a communication entitled "Program Memorandum Carriers," transmittal number B-97-17, dated January 1998, change request #193, on the subject "Private Contracts Between Beneficiaries and Physicians/Practitioners."

On p. 5, there is a "Notice to Beneficiaries" that reads as follows: "Use the following message when the claim is submitted by the "opt out" physician or practitioner (whichever notice is appropriate for your system):

"EOMB #21.29-"The provider decided to drop out of Medicare. No payment can be made for this service. You are responsible for this charge. Under Federal law your doctor cannot charge you more than the limiting charge amount."

"MSN#21.19-...[wording the same as above]"

These statements appear to contradict the plain language of the statute, which specifically provides that physicians who are not a part of the Medicare system are NOT bound by the Medicare system's price controls. Section 4507 of the Balanced Budget Act reads as follows: "(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)."

Please explain the wording in your communication. If it is in fact erroneous, how do you plan to correct it?

Sincerely,

Jane M. Orient, MD
Executive Director

[No answer as of 6/4/98]