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. § 405.415

Requirements of the private contract

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A private contract under this subpart must:

(a) Be in writing and in print sufficiently large to ensure that the beneficiary is able to read the contract.

(b) Clearly state whether the physician or practitioner is excluded from Medicare under sections 1128, 1156, or 1892 or any other section of the Social Security Act.

(c) State that the beneficiary or his or her legal representative accepts full responsibility for payment of the physician's or practitioner's charge for all services furnished by the physician or practitioner.

(d) State that the beneficiary or his or her legal representative understands that Medicare limits do not apply to what the physician or practitioner may charge for items or services furnished by the physician or practitioner.

(e) State that the beneficiary or his or her legal representative agrees not to submit a claim to Medicare or to ask the physician or practitioner to submit a claim to Medicare.

(f) State that the beneficiary or his or her legal representative understands that Medicare payment will not be made for any items or services furnished by the physician or practitioner that would have otherwise been covered by Medicare if there was no private contract and a proper Medicare claim had been submitted.

(g) State that the beneficiary or his or her legal representative enters into this contract with the knowledge that he or she has the right to obtain Medicare-covered items and services from physicians and practitioners who have not opted-out of Medicare, and that the beneficiary is not compelled to enter into private contracts that apply to other Medicare-covered services furnished by other physicians or practitioners who have not opted-out.

(h) State the expected or known effective date and the expected or known expiration date of the current 2-year opt-out period.

(i) State that the beneficiary or his or her legal representative understands that Medigap plans do not, and that other supplemental plans may elect not to, make payments for items and services not paid for by Medicare.

(j) Be signed by the beneficiary or his or her legal representative and by the physician or practitioner.

(k) Not be entered into by the beneficiary or by the beneficiary's legal representative during a time when the beneficiary requires emergency care services or urgent care services. (However, a physician or practitioner may furnish emergency or urgent care services to a Medicare beneficiary in accordance with § 405.440.)

(l) Be provided (a photocopy is permissible) to the beneficiary or to his or her legal representative before items or services are furnished to the beneficiary under the terms of the contract.

(m) Be retained (original signatures of both parties required) by the physician or practitioner for the duration of the current 2-year opt-out period.

(n) Be made available to CMS upon request.

(o) Be entered into for each 2-year opt-out period.

[63 FR 58901, Nov. 2, 1998, as amended at 80 FR 71370, Nov. 16, 2015]
Notes of Decisions
Cited in 78 cases, 1978–2010 · leading case: Homan & Crimen, Inc. v. Patricia Roberts Harris, Sec'y of Health & Human Servs., Defendant, 626 F.2d 1201 (5th Cir. 1980).
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Homan & Crimen, Inc. v. Patricia Roberts Harris, Sec'y of Health & Human Servs., Defendant, 626 F.2d 1201 (5th Cir. 1980). · cites it 5× “The allowability of reimbursement for depreciation is determined by 42 C.F.R. § 405.415 . Section 405.415(a) 5 establishes three requirements before depreciation can be considered an allowable cost: (1) it must be identifiable and recorded in the provider’s accounting records;…”
Whitecliff, Inc. v. Donna E. Shalala, in Her Off. Capacity as Sec'y of the U.S. Dep't of Health & Human Servs., 20 F.3d 488 (D.C. Cir. 1994). · cites it 8× “, 42 C.F.R. § 405.415 (1982). One such regulation states that “depreciation on buildings and equipment used in the provision of patient care is an allowable cost.”
Am. Med. Intern., Inc. v. SEC. of HEW, 466 F. Supp. 605 (D.D.C. 1979). · cites it 13× “[15] This was done on the assumption that Chanco's purchase of plaintiff hospitals' stock constituted purchases of an ongoing facility within the meaning of 42 C.F.R. § 405.415 (g). Similarly, these nine used this higher valuation of their assets in computing their return on…”
26 soc.sec.rep.ser. 284, Medicare&medicaid Gu 37,957 Hoodkroft Convalescent Ctr., Inc. v. State of New Hampshire, Div. of Human Servs., 879 F.2d 968 (1st Cir. 1989). · cites it 8× “42 C.F.R. § 405.415 (a) (corresponding federal Medicare regulation) (now renumbered § 413.”
Pac. Coast Med. Enter. v. Harris, 633 F.2d 123 (9th Cir. 1980). · cites it 9× “Such actual costs include appropriate allowances for depreciation on buildings and equipment, 42 C.F.R. § 405.415 (a) (1978), and a reasonable return on equity capital, 42 U.”
Am. Med. Int'l, Inc. v. Sec'y of Health, Educ. & Welfare, 466 F. Supp. 605 (D.D.C. 1979). · cites it 12× “15 This was done on the assumption that Chanco’s purchase of plaintiff hospitals’ stock constituted purchases of an ongoing facility within the meaning of 42 C.F.R. § 405.415 (g). Similarly, these nine used this higher valuation of their assets in computing their return on…”
Shaker Med. Ctr. Hosp. v. Sec'y of Health & Human Servs., 686 F.2d 1203 (6th Cir. 1982). · cites it 6× “42 C.F.R. § 405.415 (a) provides that “appropriate allowance for depreciation on buildings and equipment used in the provision of patient care is an allowable cost.”
Faulkner Hosp. Corp. v. Schweiker, 537 F. Supp. 1058 (D. Mass. 1982). · cites it 10× “At the PRRB hearing, Faulkner took the position that the total amount of its unrecovered advances to FHCC was an element of the cost of constructing its new facility for which it was entitled to a depreciation allowance under 42 C.F.R. § 405.415 . Specifically, it contended that…”
Adventist Living Centers, Inc. v. Bowen, 686 F. Supp. 680 (N.D. Ill. 1988). · cites it 12× “42 C.F.R. § 405.415 (1984). 1 At the end of each fiscal year, each Medicare provider files a Cost Report with its fiscal intermediary.”
Pasadena Hosp. Ass'n v. United States, 223 Ct. Cl. 72 (Ct. Cl. 1980). · cites it 3× “” *85 Plaintiff next claims there is a conflict with regulations 42 C.F.R. §§ 405.415 and 405.419, which plaintiff claims make exceptions from the related organization rules for transactions between related parties which predate the Medicare program.”
Richey Manor, Inc., D/B/A Richey Manor Nursing Home v. Richard Schweiker, Sec'y of Health & Human Servs., 684 F.2d 130 (D.C. Cir. 1982). · cites it 3× “42 C.F.R. §§ 405.415 (a), (b)(3), and (b)(7) (1981).”
Chateau Gardens, Inc. v. Harris, 497 F. Supp. 133 (E.D. Mich. 1980). · cites it 7× “This policy is now expressed in 42 CFR 405.415 which did not go into effect until February, 1979.”
Show all 78 citing cases →
— 42 C.F.R. § 405.415(1) — 1 case
Chateau Gardens, Inc. v. Harris, 497 F. Supp. 133 (E.D. Mich. 1980). “This policy is now expressed in 42 CFR 405.415 which did not go into effect until February, 1979.”
— 42 C.F.R. § 405.415(a) — 2 cases
LEXINGTON Cnty. Hosp., Appellant, v. Richard S. SCHWEIKER, Sec'y of Health & Human Servs., Appellee, 740 F.2d 287 (4th Cir. 1984).
Chateau Gardens, Inc. v. Harris, 497 F. Supp. 133 (E.D. Mich. 1980). “This policy is now expressed in 42 CFR 405.415 which did not go into effect until February, 1979.”
— 42 C.F.R. § 405.415(b) — 1 case
Chateau Gardens, Inc. v. Harris, 497 F. Supp. 133 (E.D. Mich. 1980). “This policy is now expressed in 42 CFR 405.415 which did not go into effect until February, 1979.”
— 42 C.F.R. § 405.415(b)(2) — 1 case
St. Luke's Hosp. v. Sebelius, 611 F.3d 900 (D.C. Cir. 2010).
— 42 C.F.R. § 405.415(f) — 6 cases
Hillhaven Corp. v. Schweiker, 570 F. Supp. 248 (M.D. La. 1983).
Chateau Gardens, Inc. v. Harris, 497 F. Supp. 133 (E.D. Mich. 1980). “This policy is now expressed in 42 CFR 405.415 which did not go into effect until February, 1979.”
MERCY Cmty. Hosp., Plaintiff-Appellant, v. Margaret HECKLER, Sec'y, Dep't of Health & Human Servs., Defendant-Appellee, 781 F.2d 1552 (11th Cir. 1986).
Provincial House, Inc v. Dep't of Soc. Servs., 422 N.W.2d 241 (Mich. Ct. App. 1988).
Sewickley Valley Hosp. v. Commonwealth, Dep't of Pub. Welfare, 474 A.2d 51 (Pa. Commw. Ct. 1984).
— 42 C.F.R. § 405.415(g) — 1 case
Chateau Gardens, Inc. v. Harris, 497 F. Supp. 133 (E.D. Mich. 1980). “This policy is now expressed in 42 CFR 405.415 which did not go into effect until February, 1979.”
— 42 C.F.R. § 405.415(l)(2)(ii) — 1 case
Manor Health Care Corp. v. Commonwealth, 551 A.2d 628 (Pa. Commw. Ct. 1988).
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