How to Opt Out of Medicare as a Provider: Affidavit and Contracts

To opt out of Medicare as a provider, you file a signed affidavit with every Medicare Administrative Contractor that processes your claims, and from that point on you treat Medicare beneficiaries only under written private contracts you sign with each patient before providing services. The opt-out runs for two years, renews automatically, and carries steep penalties if you miss a filing deadline, use a defective contract, or accidentally submit a claim to Medicare during the period.

Confirm Your Profession Is Eligible

Federal law limits opt-out to two categories: “physicians” and “practitioners,” each defined by specific statutory cross-references.¹ If your profession is not on either list, any affidavit you file is invalid from the start.

The physician category covers four groups: doctors of medicine and osteopathy, doctors of dental surgery or dental medicine, doctors of podiatric medicine, and doctors of optometry.² Chiropractors sit in a fifth paragraph of the same definition, but the opt-out provision references only paragraphs one through four, so chiropractors cannot opt out.

The practitioner category is broader:³ physician assistants, nurse practitioners, and clinical nurse specialists; certified registered nurse anesthetists; certified nurse-midwives; clinical social workers; clinical psychologists; registered dietitians and nutrition professionals; marriage and family therapists; and mental health counselors.

Physical therapists, occupational therapists, audiologists, speech-language pathologists, and anesthesiology assistants are among the provider types that are ineligible. They have to stay inside the Medicare billing system for covered services.

Know When Your Opt-Out Actually Starts

The effective date depends on your current Medicare enrollment status, and the rules are not the same.

If You Are Nonparticipating

You can opt out at any time. The two-year period begins on the date you sign the affidavit, provided you file it with your MAC within 10 days of signing your first private contract with a Medicare beneficiary.⁴ Miss the 10-day window and the clock doesn’t start until the MAC actually receives the affidavit. Services you delivered under a private contract before that filing date fall under standard Medicare rules, meaning you were billing outside the system without authorization.

If You Are Participating

Your opt-out can only begin at the start of a calendar quarter, and you must submit the affidavit to your MAC at least 30 days before that quarter begins.⁴ Any private contract you sign before the quarter starts doesn’t take effect until the opt-out does. Services you provide to Medicare patients during the wait are subject to normal Medicare billing rules.

Draft and File the Affidavit

The affidavit is the document that formally takes you out of Medicare. CMS does not hand you a fillable form; you draft it, and every required element must appear or the filing fails. The regulations spell out more than a dozen specific statements.⁵

At a minimum, include your full name, address, phone number, and National Provider Identifier. If you have not been assigned an NPI, use your tax identification number. Beyond identifying information, the affidavit must contain statements confirming that you will not submit claims to Medicare for any beneficiary (except for emergency or urgent care), that you will not receive Medicare payment directly or indirectly during the opt-out period, and that you will provide services to Medicare beneficiaries only through valid private contracts.

The affidavit must also acknowledge that no Medicare payment may be made to any entity for your services, whether on a fee-for-service or capitated basis, and that you will not receive payment through a Medicare Advantage plan.⁵ If you currently hold a Part B participation agreement, the affidavit must state that the agreement terminates on the effective date of your opt-out. CMS sample language uses the phrase “being duly sworn,” which suggests execution under oath, though the regulation does not explicitly require notarization.

Send the signed affidavit to every MAC that would otherwise process your claims. If you practice in multiple regions covered by different contractors, each one needs its own copy. Most contractors accept certified mail, and some offer secure electronic portals. After processing, you should receive a confirmation notice with the start and end dates of your opt-out period; keep it on file permanently, because it is your proof if a billing dispute or supplemental-insurer question comes up later.

Use a Compliant Private Contract for Every Patient

Before you provide any service to a Medicare beneficiary during your opt-out, you need a signed private contract with that patient. It is not optional, and it cannot be backfilled after the visit. The contract must be signed before services are rendered.⁶

The regulations prescribe 15 elements. The contract has to be in print large enough for the patient to read, disclose whether you have been excluded from Medicare under any provision of the Social Security Act, assign full financial responsibility to the patient or their legal representative, state that Medicare fee limits do not apply to your charges, and include the patient’s agreement not to submit a claim to Medicare or ask you to. It must also explain that Medicare will not pay for any services you provide that would otherwise have been covered, inform the patient of the right to see providers who have not opted out, state the expected effective and expiration dates of your current two-year opt-out period, and explain that Medigap plans will not pay for your services and that other supplemental plans may also decline coverage.

You and the patient both sign. Give the patient a copy before providing services, and keep the original with both signatures on file for the entire two-year period, available to CMS on request. A new contract is required for each two-year cycle.⁶

One restriction catches providers off guard: you cannot ask a patient to sign a private contract while they need emergency or urgent care.

Emergency and Urgent Care

Opting out does not mean you turn away Medicare patients in emergencies. If a beneficiary needs emergency or urgent care and has not previously signed a private contract with you, you may treat them without a contract and without jeopardizing your opt-out.⁷ In that case, you submit a claim to Medicare for the emergency or urgent services under normal billing rules. Physicians cannot collect more than the Medicare limiting charge; practitioners are limited to the applicable deductible and coinsurance.

If the patient already had a private contract with you before the emergency, the emergency services fall under that contract, and you bill the patient directly.⁷

What You Can Still Order for Your Patients

A common concern before opting out is whether your patients will lose Medicare coverage for lab work, imaging, durable medical equipment, or home health services you order. They will not. Medicare still covers clinical laboratory services, imaging, DME, and home health services ordered by an opted-out provider.⁸

You do not need a separate Medicare enrollment application to order or certify these services. Your existing NPI is sufficient for ordering purposes while your opt-out is active, and your patients can still get bloodwork processed through Medicare-covered labs and fill prescriptions under Part D.

What Happens If You Break the Rules

This is where most providers underestimate the stakes. Failing to maintain opt-out includes submitting a claim to Medicare during the period, treating a Medicare beneficiary without a valid private contract, or using contracts that don’t meet all the regulatory requirements. When any of these violations occurs, the consequences for the rest of the two-year period are severe:⁹

All your private contracts become void, not just the one that triggered the problem.
Your opt-out itself is nullified, pulling you back into Medicare’s billing system involuntarily.
You must submit claims to Medicare for all covered services provided to beneficiaries.
Neither you nor the patient will receive Medicare payment on those claims for the rest of the two-year period, except in narrow circumstances.
Physicians become subject to the limiting charge rules; practitioners may collect only the deductible and coinsurance from the patient.
You cannot re-opt out until the current two-year period expires.

Read that again. Your opt-out is voided, you must bill Medicare, and Medicare will not pay you. You are locked into a system that will not reimburse you, and you cannot charge patients freely because the private contracts are gone.

There is a limited safe harbor. If you demonstrate good-faith efforts to maintain opt-out and refund any excess charges to patients within 45 days of receiving a violation notice, the penalties may not apply.⁹ Get the private contracts right from the start, every time, for every patient.

Renewal, Cancellation, and Early Termination

Since 2015, opt-out affidavits renew automatically every two years. If you want to stay opted out, you do nothing.¹⁰

To return to Medicare when your current cycle ends, send written notice to every MAC where you filed an affidavit at least 30 days before the two-year period expires. Miss that deadline and your opt-out extends for another two years automatically.¹⁰

If this is your first time opting out and you change your mind quickly, you have a 90-day window from the effective date to terminate early. To terminate properly, you must notify every MAC where you filed an affidavit within 90 days, refund excess payments to every patient you saw under a private contract (for physicians, anything above the Medicare limiting charge; for practitioners, anything above the deductible and coinsurance), and notify all patients with whom you signed private contracts that you are terminating your opt-out and that they can have claims submitted to Medicare for services received during the opt-out period.¹⁰ Complete those steps and Medicare reinstates you as though the opt-out never happened. Providers who have opted out before do not get this option; their only path back is canceling at the end of the two-year cycle.

If your Medicare enrollment was deactivated during the opt-out, plan reactivation before the period ends. Medicare will not reimburse you for services provided while your billing privileges are inactive, and a gap leaves you unable to bill Medicare or collect through private contracts.¹¹

1
Office of the Law Revision Counsel. 42 USC 1395a – Free Choice by Patient Guaranteed
2
Office of the Law Revision Counsel. 42 USC 1395x – Definitions
3
Office of the Law Revision Counsel. 42 USC 1395u – Provisions Relating to the Administration of Part B
4
eCFR. 42 CFR 405.410 – Conditions for Properly Opting-Out of Medicare
5
eCFR. 42 CFR 405.420 – Requirements of the Opt-Out Affidavit
6
GovInfo. 42 CFR 405.415 – Requirements of the Private Contract
7
eCFR. 42 CFR 405.440 – Emergency and Urgent Care Services
8
Centers for Medicare & Medicaid Services. Ordering and Certifying
9
eCFR. 42 CFR 405.435 – Failure to Maintain Opt-Out
10
eCFR. 42 CFR 405.445 – Cancellation of Opt-Out and Early Termination of Opt-Out
11
Centers for Medicare & Medicaid Services. Revalidations (Renewing Your Enrollment)