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I just had a very annoying experience. I was turned away from a private urgent care facility (run by a very large chain) because I was enrolled in Medicare A and/or B (but not because of Medicare Advantage) even though I had standard health insurance through my employer (the regional Blue Cross provider) (and also even though I was willing and able to pay cash).

The reason given was that the facility (the entire chain) was not permitted to offer any services to Medicare patients, regardless of other insurance, by the government. (Probably Federal gov't., possibly State, not sure.)

And this did not just happen at the major urgent care provider. Amazon.com, which now offers telemedicine, has the same restriction. So I'm reasonably sure it isn't just a mistake of the person who was handling check-ins at the facility.

The question is two-fold:

  1. What is the law (or, more likely, agency regulation) that says that a Medicare patient cannot be served even if he has valid separate insurance (personal or, as in this case, employer provided)? (Possibly with the exception that waivers can be arranged by agreement between the health care provider and the government.

  2. What is the justification for this?

  • I will consider an good answer to part 1 to be a pointer to an actual law and/or regulation. In case of a negative answer (that there is no such rule) I'd expect a pointer to an actual law or regulation that says there is no restriction on serving a Medicare customer that has valid alternate insurance.

  • I will consider an good answer to part 2 to be be a statement by a Congressman (or more than one) or released by a Congressional office, or a ranking bureaucrat from an appropriate agency or a document from such an agency, explaining the reason for this rule. An acceptable answer to part 2 would be a pointer to some testimony before Congress that may have been used to justify the rule.

(Asking here because I have no idea how to do this research myself, and someone here might know.) (Also I believe this question more appropriate for this Politics stack than the Law stack, because I'm asking about the reason for this policy.)

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  • 17
    Is this a question better suited for Law?
    – ouflak
    Aug 30, 2023 at 8:23
  • 2
    Question 1 is better suited for Law.SE. Question 2 is better suited here. I would recommend splitting the two-fold question into two separate questions, one for each site
    – T Hummus
    Aug 30, 2023 at 15:26
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    w.r.t. this question being for Law.SE instead - now that I've seen the answer provided by Rick I'm more convinced it belongs here - as the law he cited turns out to be interesting for the policy it represents - that Medicare is intended to provide an upper limit to costs both for the gov't and for Medicare recipients. If that answer turns out to be the best it is the policy discussion there (and, currently, in the comments) that is the interesting part. (To me.)
    – davidbak
    Aug 30, 2023 at 17:39
  • The justification being "it's not profitable enough for us" is not really a P.SE kind of answer. Aug 30, 2023 at 22:12
  • The university hospital group I go to has an entire separate campus for services that are not covered by insurance or otherwise restricted. That includes plastic surgery, sports medicine, yoga and acupuncture. I believe but am not certain that the issue is overhead cost allocation: it causes issues with the government when common services like the power bill and parking lots are mixed. (They place has free espresso machines in the waiting rooms. If I got a cup of coffee while on Medicare-covered service, Medicare would be either indirectly billed for coffee, or not billed, both illegal.)
    – user71659
    Aug 31, 2023 at 2:12

2 Answers 2

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Caveat: This is just my understanding of how the system works. I will only address the law, at this time; but it is not that they cannot be served.

If one is enrolled in Medicare Part B (shown as emboldened below), the nonparticipating provider who treats a Medicare patient is subject to a "limiting charge" of (currently) 15%. For example, if the Medicare fee schedule for an item is $100, the provider can charge no more than $115. Any excess charge must be refunded.

If one pays cash or uses other insurance and a claim is sent to Medicare and Medicare finds the charge to be greater than $115, Medicare will order the provider to refund the excess. The provider, not wanting to be paid less than their normal fees, won't accept any Medicare patients regardless of other insurance.

42 U.S. Code § 1395w–4 - Payment for physicians’ services

(g) Limitation on beneficiary liability

(1) Limitation on actual charges

(A) In general

In the case of a nonparticipating physician or nonparticipating supplier or other person (as defined in section 1395u(i)(2) of this title) who does not accept payment on an assignment-related basis for a physician’s service furnished with respect to an individual enrolled under this part, the following rules apply:

(i) Application of limiting charge

No person may bill or collect an actual charge for the service in excess of the limiting charge described in paragraph (2) for such service.

(ii) No liability for excess charges

No person is liable for payment of any amounts billed for the service in excess of such limiting charge.

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    And I guess the idea is that it is not this provider that would bill Medicare - but your primary insurance might do it, knowing that you are covered by Medicare?
    – davidbak
    Aug 30, 2023 at 3:48
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    @davidbak - Yes. Your primary insurance carrier has an incentive to reduce costs and if they can recover funds from Medicare, they will do so.
    – Rick Smith
    Aug 30, 2023 at 7:52
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    But this doesn't sound like a legal restriction against providing a patient care. It sounds like simple economic reasoning why they would want to turn them away. To quote the OP, "...the facility (the entire chain) was not permitted to offer any services to Medicare patients, regardless of other insurance..." So from your answer, the facility certainly is legally permitted to offer medical services to the OP, it's just not in their financial/bureaucratic best interests to do so. Have I interpreted your answer correctly?
    – ouflak
    Aug 30, 2023 at 8:21
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    @akostadinov - Refunds aren't "requested" they are required. Medicare is a US government agency. When a person enrolls in Medicare, they are protected by law against what the government considers to be excess charges. The provider cares in order to avoid legal problems.
    – Rick Smith
    Aug 30, 2023 at 12:12
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    Answer is wrong. If the provider does not take Medicare, they can still bill the private insurer, and Medicare cannot come back and demand excess fees be paid out by the provider. I write medical software and have to deal with the billing rules.
    – Joshua
    Aug 31, 2023 at 3:56
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As for [political] justification. I'm only like 95% sure, but 1395w (or at least revisions thereof) appears to be more colloquially called the "No Surprises Act", which by its name alone should give you some idea why it limits the out-of-pocket expenses as detailed in Rick's answer at "(ii) No liability for excess charges". From my pre-2008 experience with some US hospitals and non-Medicare [i.e. private] insurance, the latter could easily pass on to you 2/3 of the hospital bill and only cover 1/3. And you'd have no idea how much the insurance would cover at service time. I guess the new laws under the "No Surprises Act" moniker are designed to make that impossible.

I did not have the patience to see if that no-liability provision particularly was introduced by this Act. Also, some of the comments under the other answer are correct in that "Urgent" medical care in the US may be categorized as being different from an emergency, IIRC. So they may or may have not given you a correct legal justification. According to a writeup about this Act: "The No Surprises Act “adopts a comprehensive approach to protecting consumers from surprise medical bills."" IANAL, but (g)(1)(A)(ii) doesn't seem limited [by its text] to emergency procedures though, although other parts of this No Surprises Act clearly are. The [excess] billing restriction appears to be unrestricted, so possibly applies to "urgent" care too. KFF seems to agree on this, somewhat:

Emergency Services – Surprise billing protections apply to most emergency services, including those provided in hospital emergency rooms, freestanding emergency departments, and urgent care centers that are licensed to provide emergency care. [...]

Post-emergency stabilization services [...]

Non-emergency services provided at in-network facilities – Finally, the NSA covers non-emergency services provided by out-of-network providers at in-network hospitals and other facilities. Often, the doctors who work in hospitals don’t work for the hospital; instead they bill independently and do not necessarily participate in the same health plan networks. The federal government estimates that 16% of 11.1 million (or about 1.8 million) in-network non-emergency facility stays for privately insured patients each year involve at least one out-of-network claim.

So yeah, the "comprehensive" NSA applies to some forms of non-emergency care too.

There is also this interesting bit that you cannot waive your rights under NSA for "urgent" care (which is probably more relevant to your case):

Notice and Consent Waiver Not Permitted for:

Emergency services

Unforeseen urgent medical needs arising when non-emergent care is furnished

Unfortunately, googling the last sentence in that quote, only turns up KFF's blog and some similar sources. So it might not be the exact wording used by the NSA. Actually I found the CFR where this is mentioned 149.420. It seems what's excluded from the [possibility of] waiver are only unforeseen urgent care that arises as a result of other care, so perhaps not applicable in your case.

Anyhow, I think the [political] gist is that [your healthcare provider thought] some kind of "No Surprises Act" might apply in your case. Whether they were correct or not... ask a lawyer. The earlier paper/writeup mentions that some 33 states have previously enacted some similar laws or regulations at state level, so it might even depend on your state.

The provision about Medicare was perhaps adopted previously, although I don't know under what Act/law name, but a gov't site [about the NSA] says:

What if I do not have insurance from an employer, a Marketplace, or an individual plan? Do these new protections apply to me?

[...] If you have coverage through Medicare, Medicaid, or TRICARE, or receive care through the Indian Health Services or Veterans Health Administration, you don’t need to worry because you’re already protected against surprise medical bills from providers and facilities that participate in these programs.

I was in fact not careful enough to read (in 1st link) that NSA amended mostly 1395w–3 but not 1395w–4 (except in one small inconsequential way "by striking ‘‘2020’’ and inserting ‘‘2023’"), so there's that from some prior Act which remained [99%] unchanged.

As for 1395w–4 (g)(1) it is in fact pretty old in spirit, some version of it existed in 1991 at least, but with a different wording as the Cornell website details on the notes page:

Subsec. (g)(1). Pub. L. 103–432, § 123(a)(1), amended heading and text of par. (1) generally. Prior to amendment, text read as follows: “If a nonparticipating physician or nonparticipating supplier or other person (as defined in section 1395u(i)(2) of this title) knowingly and willfully bills on a repeated basis for physicians’ services (including services which the Secretary excludes pursuant to subsection (j)(3) of this section, furnished with respect to an individual enrolled under this part on or after January 1, 1991) an actual charge in excess of the limiting charge described in paragraph (2) and for which payment is not made on an assignment-related basis under this part, the Secretary may apply sanctions against such physician, supplier, or other person in accordance with section 1395u(j)(2) of this title. In applying this subparagraph, any reference in such section to a physician is deemed also to include a reference to a supplier or other person under this subparagraph.”

Pub. L. 103–432 had a not very catchy name at its passing time of the "Social Security Act Amendments of 1994". Sec. 123 of it indeed is called "Extra-billing limits."

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  • If someone is curious about when the 1994 law passed, it was a few days before the D majority in both chambers was swept away in the midterm elections of that year... Aug 31, 2023 at 6:04

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