New HIPAA rule gives patient the right to “refuse” to use insurance, receive PHI electronically

November 18th, 2013 - Scott Kraft
Categories:   HIPAA|PHI  
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The HIPAA Omnibus Final Rule, known in the industry as the HIPAA mega rule, affords patients two key rights that your practice needs to be prepared to implement. Patients now have the right to request and receive their own protected health information (PHI) from your practice electronically and they also have the right to decline to use available health insurance and opt to pay out of pocket instead.

The mega rule was finalized in January, but key provisions took effect on Sept. 23, 2013.As you know, patients have long had the right to have access to a copy of their own medical records. Now, patients have the right to request and receive this information electronically. The only exception your practice has for not providing PHI electronically is if it is unable to do so because the records are not available electronically. When this is the case, your practice is still obligated to furnish records in a mutually agreed upon format, including paper or an alternative online format, such as a Microsoft word document or a PDF file with the information. As was the case before, you are permitted to charge a fee for furnishing the information. Make sure to check with applicable state or local laws on these charges.Patients now clearly have the right under HIPAA to request that your practice not file a claim with any insurance available to the patient for services rendered. Patients may have a variety of reasons for not wanting an insurance claim to be filed – the patient is under no obligation to specify a reason, but you are obligated to comply with the request.

When a patient opts to not use insurance coverage for a service, the terms of the insurance contract will not apply to the service. As a result, you are allowed to charge the patient your usual charge for the service – you’re not obligated to charge the allowed charge set by the patient’s insurance.

If the patient requests that a claim not be filed with insurance, but then fails to pay the bill for the services rendered, your practice is permitted to disregard the patient’s request and file a claim with the insurance company for payment after a reasonable amount of time and failed efforts to collect.

As with many regulations, CMS is not specific in the HIPAA mega rule on what constitutes a reasonable amount of time before a claim is filed. Your practice’s best bet is to institute an upfront policy in these situations. When a patient requests no insurance claim be filed, inform the patient upfront that the patient has a specified amount of time to pay for the services before a claim is filed and that you will send a specified number of requests for payment during that time.

Have the patient sign an agreement signifying that he or she understands the terms.

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