C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER B—MEDICARE PROGRAM › PART 405—FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED › Subpart D—Private Contracts

42 C.F.R. § 405.405

General rules

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(a) A physician or practitioner may enter into one or more private contracts with Medicare beneficiaries for the purpose of furnishing items or services that would otherwise be covered by Medicare, provided the conditions of this subpart are met.

(b) A physician or practitioner who enters into at least one private contract with a Medicare beneficiary under the conditions of this subpart, and who submits one or more affidavits in accordance with this subpart, opts out of Medicare for the opt-out period described in § 405.400 unless the opt-out is terminated early according to § 405.445.

(c) Both the private contracts described in paragraph (a) of this section and the physician's or practitioner's opt-out described in paragraph (b) of this section are null and void if the physician or practitioner fails to properly opt-out in accordance with the conditions of this subpart.

(d) Both the private contracts described in paragraph (a) of this section and the physician's or practitioner's opt-out described in paragraph (b) of this section are null and void for the remainder of the opt-out period if the physician or practitioner fails to remain in compliance with the conditions of this subpart during the opt-out period.

(e) Services furnished under private contracts meeting the requirements of this subpart are not covered services under Medicare, and no Medicare payment will be made for such services either directly or indirectly, except as permitted in accordance with § 405.435(c).

[63 FR 58901, Nov. 2, 1998, as amended at 80 FR 71370, Nov. 16, 2015]
Notes of Decisions
Cited in 16 cases, 1981–2018 · leading case: Ass'n of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19 (D.D.C. 2012).
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Ass'n of Am. Physicians & Surgeons, Inc. v. Sebelius, 901 F. Supp. 2d 19 (D.D.C. 2012). “§ 1395a(b); 42 C.F.R. § 405.405 . This latter option allows the physician to circumvent Medicare fee limitations.”
BAYLOR Univ. Med. Ctr., Plaintiff-Appellee, v. Margaret M. HECKLER, Sec'y of Health & Human Servs., Defendant-Appellant, 758 F.2d 1052 (5th Cir. 1985). “42 C.F.R. §§ 405.405 , .406 (1984). Fiscal intermediaries are usually private insurance companies that contract with the Secretary as her agent for purposes of reviewing claims and awarding reimbursement.”
Forfar v. Walmart, 2018 COA 125 (Colo. Ct. App. 2018). “§ 1395a(b)(2)(B)(i)-(v) (2012); 42 C.F.R. § 405.405 (c) (2017); 42 C.F.R.”
United States v. Hughes House Nursing Home, Inc., 710 F.2d 891 (1st Cir. 1983). “42 C.F.R. §§ 405.405 , 405.454. At the end of each year, the provider is to give the intermediary a statement of its actual costs, 42 C.”
Portland Adventist Med. Ctr. v. Heckler, 561 F. Supp. 1092 (D.D.C. 1983). · cites it 2× “§ 1395g; 42 C.F.R. 405.405. A final determination of the amount of the provider’s reimbursable costs under Medicare is made after the close of the hospital’s fiscal year, based upon its cost report.”
Adams House Health Care v. Heckler, 604 F. Supp. 110 (N.D. Cal. 1984). “42 C.F.R. § 405.405 . At the end of the provider’s fiscal year, it submits a cost report to the intermediary.”
Andrews v. Blue Cross & Blue Shield of Michigan (In Re Clawson Med., Rehab. & Pain Care Ctr., P.C.), 9 B.R. 644 (Bankr. E.D. Mich. 1981). “§ 1395f(b), (g), and 42 C.F.R. §§ 405.405 , 405.454. 4 . Such delegation by H.”
HCA Health Servs. of Midwest, Inc. v. Bowen, 869 F.2d 1179 (9th Cir. 1989). · cites it 2× “The Secretary refused reimbursement 2 on the ground that under “generally accepted accounting principles” (which the Secretary is mandated to apply where an issue has not been covered by agency regulations, 42 C.F.R. § 405.405 ), there were no reasonable costs incurred.”
Athens Cmty. Hosp., Inc. v. Schweiker, 743 F.2d 1 (D.C. Cir. 1984). “§ 1395g (1982); 42 C.F.R. §§ 405.405 , 405.454 (1983). This is done in order to avoid cash flow problems for providers.”
Washington Hosp. Ctr. v. Bowen, 795 F.2d 139 (D.C. Cir. 1986). “42 C.F.R. §§ 405.405 , 405.454 (1985). At the end of a cost reporting year the hospital submits a cost report to the intermediary, which audits the report to determine which costs are reimbursable.”
Mercy Hosp. of Laredo v. Heckler, 777 F.2d 1028 (5th Cir. 1985). “See 42 C.F.R. § 405.405 ; see also 42 U.S.C. §§ 1395f(b), 1395g(a).”
Home Health Servs. of Greater Philadelphia, Inc. v. Harris, 530 F. Supp. 1236 (E.D. Pa. 1982). “§ 1395g, § 1395 x(v)(l)(A)(ii); 42 CFR § 405.405 . A final determination as to reimbursable costs is made after the close of the provider’s fiscal year, based upon a cost report which the provider is required to file.”
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