Dr. R. A. Foxworth, FICC, MCS-P
We receive calls from providers across the country wanting to know if patients can opt out of using their insurance, and the answer is yes – in most cases. In 2013, the Department of Health and Human Services issued updates to HIPAA privacy regulations. Those updates gave patients more control over who has access to their PHI, including their own insurance companies.
Be Compliant.
As a provider, you cannot ask or require a patient to opt out of using their insurance, but you should advise them of their options for payment in your practice. If a patient chooses to opt out, they must pay their doctor in full. It is critical that the provider does not bill the insurance (even if the services are covered) when a patient has selected this option. Doing so would be disclosing PHI and considered a breach of HIPAA compliance. The provider could be subject to substantial penalties. If your patient chooses to opt out of using their insurance, you should have a signed document from the patient authorizing that request.
Existing Provider Contracts.
Many provider contracts may still contain language that states that providers are required to disclose all health information on insured patients. However, HITECH prevents the provider from filing a claim because it can’t be done without violating a federal law. Additionally, contractual agreements that require you to violate a law are unenforceable.
Medicare patients CANNOT opt out of using Medicare. If a doctor of chiropractic performs a spinal manipulation to a Medicare beneficiary, Medicare must be billed for the service. Period. This includes both participating and non-participating doctors, and it includes both active (acute/chronic) and maintenance care. Be sure and follow Medicares’ ABN guidelines for services that may not meet the definition “active treatment” or medically necessary to determine if those claims need to be submitted.
We encourage our providers to be good corporate citizens. Review your agreements and contact each third-party payor, in writing, requesting their policy on patients CHOOSING to opt out of filing their insurance.
Should the insurance company respond back that it is a contract violation for you not to file a claim for insured patients, we recommend sending the following:
On Feb. 18, 2010, the HITECH Act regulated that a health care provider is required to honor a patient’s request to restrict disclosure of PHI to a health plan for purposes other than carrying out treatment (specifically, payment or health care operations) if the patient pays the health care provider out of pocket in full. [Section 13405 of Subtitle D of the HITECH Act (42 USC 17935)]. This means that if a patient does not wish to use their health insurance, they can request that the insurance not be billed.
Full act here.
SEC. 13405. RESTRICTIONS ON CERTAIN DISCLOSURES AND SALES OF HEALTH INFORMATION; ACCOUNTING OF CERTAIN PROTECTED HEALTH INFORMATION DISCLOSURES; ACCESS TO CERTAIN INFORMATION IN ELECTRONIC FORMAT.
(a) REQUESTED RESTRICTIONS ON CERTAIN DISCLOSURES OF HEALTH INFORMATION.-In the case that an individual requests under paragraph (a)(1)(i)(A) of section 164.522 of title 45, Code of Federal Regulations, that a covered entity restrict the disclosure of the protected health information of the individual, notwithstanding paragraph (a)(1)(ii) of such section, the covered entity must comply with the requested restriction if-
(1) except as otherwise required by law, the disclosure is to a health plan for purposes of carrying out payment or health care operations (and is not for purposes of carrying out treatment); and
(2) the protected health information pertains solely to a health care item or service for which the health care provider involved has been paid out of pocket in full.
Keep copies of all correspondence in your HIPAA compliance manual.
What Do You Charge?
Now that you have verified, in writing, the terms of your provider agreement and the patient has chosen to opt out, what do you charge? You charge your actual fee. Part of being compliant means establishing a single fee schedule in your office that applies to all patients. Discounts should only be extended to patients if they are by contractual agreement (you participate in their health plan or DMPO), mandated fee schedule (Medicare, Medicaid – could also include Workers Comp and PI in some states), or documented hardship.
When patients choose to opt-out of filing their insurance, they are now agreeing to pay your actual fee OR, if they are part of a DMPO, their fees under that agreement. ChiroHealthUSA is a DMPO (discount medical plan organization), that allows providers to set their own levels of discounts for their patients’ non-covered services. This allows the provider to help their patients access affordable healthcare when they have no insurance (cash or opted out of insurance), high deductibles, high co-payments, limited benefits, and your Medicare patients for all non-covered services. Additionally, it encourages your patients to take advantage of affordable family plans if you choose to implement this option in your ChiroHealthUSA fee schedule.
Helping your patients is the right thing to do, and utilizing a discount medical plan (like ChiroHealthUSA) in your office is a Simple, Compliant, and Profitable way to help you and your patients. Learn how easy it is to use ChiroHealthUSA in your office by visiting https://www.chirohealthusa.com/chusa101/.
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Why is the Discount Challenge prize amount $15,024? Because that is the average “per-occurrence” fine for Medicare inducements. That’s not $15,024 per patient, that’s not per provider, that’s PER VISIT. Stinks, doesn’t it? To us, the prize amount is worth the investment if we can help our profession better understand proper discounting.