A Medicare opt-out affidavit is a written, signed statement you file with your Medicare Administrative Contractor (MAC) to leave the Medicare payment system for two years and bill Medicare patients directly under private contracts instead. To be valid, it must contain the specific statements listed in 42 C.F.R. § 405.420, carry your identifying information, and reach the right MAC on the right timeline for your enrollment status.
Who Is Eligible to File
Only two groups can file. Physicians (doctors of medicine, osteopathy, dental surgery or dental medicine, podiatric medicine, and optometry) who are licensed and practicing within the scope of that license, and a defined list of non-physician practitioners: physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, certified nurse midwives, clinical psychologists, clinical social workers, marriage and family therapists, mental health counselors, and registered dietitians or nutrition professionals.
Several provider types cannot opt out at all, and filing an affidavit will not produce a valid opt-out for them: anesthesiologist assistants, chiropractors, independent non-clinical psychologists, and occupational therapists, physical therapists, or speech-language pathologists in private practice.
What the Affidavit Must Contain
The document must be in writing and personally signed. It must show your full name, address, telephone number, and National Provider Identifier. If no NPI has been assigned, use your tax identification number or Social Security number in its place.
Beyond identifiers, six statements are mandatory under 42 C.F.R. § 405.420. Leaving any one out can get the affidavit rejected:
- You will not submit claims to Medicare for any service furnished to a Medicare beneficiary during the opt-out period, and will not let anyone acting on your behalf do so, except for emergency or urgent care.
- You understand you may receive no direct or indirect Medicare payment for services furnished to beneficiaries with whom you have privately contracted, whether as an individual, employee, partner, or through reassignment of benefits.
- You acknowledge that during the opt-out period your services are not covered under Medicare, and no Medicare payment may be made to any entity for them.
- You agree to be bound by the terms of the affidavit and of all private contracts entered into during the opt-out period.
- You recognize the opt-out applies to all Medicare-covered items and services you furnish, regardless of payment arrangements.
- If you have a Part B participation agreement, it terminates on the effective date of the affidavit.
You don’t have to draft the document from scratch. Most MACs post a downloadable affidavit on their website. You can also write your own, but it has to satisfy the criteria in the CMS Medicare Program Integrity Manual, Chapter 10, Section 10.6.12.B.5.
Where and When to File
The affidavit goes to your MAC, and the timeline depends on how you’re currently enrolled.
Nonparticipating or Not Enrolled
You can opt out at any time. The two-year opt-out period starts on the date you sign the affidavit, provided you file it with the MAC within 10 days of signing your first private contract with a Medicare beneficiary. Miss that 10-day window and the clock instead starts on the date the last required affidavit is actually filed. Any private contracts you signed earlier only become effective on that later date, and services furnished before proper filing follow standard Medicare rules.
Participating
The timeline is stricter. Your opt-out can only begin at the start of a calendar quarter (January 1, April 1, July 1, or October 1), and the MAC must have the affidavit at least 30 days before the quarter begins. For a July 1 effective date, the affidavit needs to reach the MAC by June 1. Private contracts signed before the quarter starts don’t take effect until the quarter begins, and services before that date are billed under standard Medicare rules.
Multiple MACs
If you practice in areas covered by more than one MAC, file the affidavit with every MAC that has jurisdiction over claims you would otherwise submit. Filing with one when you practice across several leaves gaps in your opt-out.
The Private Contracts You Also Need
Filing the affidavit does not, by itself, let you bill patients privately. Before you furnish services under opt-out status, you need a signed private contract with each Medicare beneficiary, drafted to the requirements of 42 C.F.R. § 405.415.
Each contract must state clearly that the beneficiary, by signing:
- Gives up Medicare payment for items and services you furnish.
- Understands no claim will be submitted to Medicare and no Medicare payment will be made.
- Understands Medicare fee limits do not apply to what you may charge.
- Accepts financial responsibility for payment, whether through other insurance or out of pocket.
- Acknowledges that Medigap plans do not pay for services Medicare doesn’t cover, and other supplemental plans may also decline.
The contract has to be in writing, signed by both you and the beneficiary (or their legal representative), and given to the beneficiary before services begin. Keep the original signed contract on file for the full two-year period and make it available to CMS on request. Two timing rules: the contract cannot be signed while the beneficiary is facing an emergency or urgent condition, and a new contract must be executed for each two-year cycle. Old contracts do not roll over.
Automatic Renewal and How to Cancel
Under the Medicare Access and CHIP Reauthorization Act, affidavits filed on or after June 16, 2015 renew automatically every two years. You don’t need to refile at the end of each cycle. The opt-out continues indefinitely unless you cancel it.
To cancel, submit written notice to each MAC with which you would file claims if you were not opted out. That notice has to arrive no later than 30 days before the end of your current two-year period. Miss the 30-day window and your opt-out renews for another two years, and you can’t undo it until the next cycle approaches. Once cancellation takes effect at the end of the current period, you can re-enroll and start submitting claims again.
Ending an Opt-Out Early
Early termination is narrower than cancellation and available only if you have never previously opted out. To use it, notify all MACs with which you filed an affidavit no later than 90 days after the effective date of your initial two-year period.
You also take on financial obligations. You must refund each beneficiary any amount collected above the Medicare limiting charge (for physicians) or above the deductible and coinsurance (for practitioners). And you must notify every beneficiary with whom you privately contracted that you are terminating and that they have the right to have claims filed with Medicare for services furnished between the start of the opt-out and the effective date of the termination. When you complete these steps properly, you are reinstated as if the opt-out had never happened.
What Breaks a Valid Opt-Out
You are considered to have failed to maintain opt-out if you knowingly and willfully submit a claim to Medicare outside the emergency-care exception, receive direct or indirect Medicare payment for covered services, fail to use valid private contracts, fail to follow emergency billing rules, or fail to retain private contracts for the full two years.
When that happens, the consequences run through the rest of the opt-out period: every private contract you signed with Medicare beneficiaries is voided, the opt-out itself is nullified, you must submit claims to Medicare for all covered services furnished to beneficiaries, and no Medicare payment will be made on those claims. You lose both payment paths at once. Keeping clean private contracts on file and never submitting a non-emergency Medicare claim are the two simplest ways to keep the opt-out intact.