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.
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? When patients choose to opt out of filing their insurance, they are now agreeing to pay your actual fee OR, if they sign up for ChiroHealthUSA in your office, your CHUSA fee. If patients elect to opt out of their insurance you should have them sign an “election to self-pay” form. By signing the Election to Self-Pay, patients are stating that they have chosen to opt out of their insurance. By doing so, you will not be filing a claim with their insurance company, and if the patient were to file claims on their own, there is no guarantee it will apply towards their deductible since the patients chose not to use their insurance.
Should patients change their minds and would like to begin filing their insurance, (once the deductible is met, for example), you can have them sign the “Revocation of Election to Self-Pay” form. Both forms are available on the ChiroHealthUSA Resources page along with the scripted conversation you can use to discuss this option with your patients.