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March 1, 2010
URGENT NOTICE
TO ALL HNS PROVIDERS
To all network providers,
We understand that the NC BOE Declaratory Ruling issued several months ago as well as the “Election To Not File Health Insurance” form included in a recent email from the NCCA has resulted in some confusion for our network providers. In particular, we have received many questions regarding a network provider’s contractual obligation to file claims for covered services and also regarding the use of the NC BOE’s “Election To Not File Health Insurance” form.
After consultation with health care attorneys and consultation between these attorneys and the NC Dept. of Insurance (NC DOI), we are providing this letter in an effort to clarify the legal and contractual responsibilities of HNS providers regarding this issue. This letter includes references to the specific laws and contracts that define certain HNS provider responsibilities.
As a network provider, you have executed a Practitioner’s Participation Agreement with HNS. This agreement requires that you adhere to all HNS and payor policies including the terms of HNS agreements with contracted health care plans, consistent with state and federal laws.
Unfortunately, the proposed NC BOE “Election To Not File Health Insurance” contains a number of legal inaccuracies and if used, would result in a violation of the HIPAA Privacy Rule, 45 CFR § 164.522(a) (2). Additionally, if this “Election To Not File Health Insurance” form were used by HNS network providers, it would result in serious violations of the terms of the HNS Practitioners’ Participation Agreement.
A new federal law, the HITECH Act, became effective
February 17, 2010, and this new law impacts network providers differently than it does physicians who are not in our network.
It is imperative that you understand your obligations under the HNS Practitioner’s Participation Agreement with respect to this new federal law.
First, what is Protected Health Information (PHI)?
The short answer is that PHI is "individually identifiable health information" including demographic data, which relates to:
- the individual’s past, present, or future physical or mental health condition,
- the provision of health care to the individual, or
- the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. Individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number)
What is this new law?
Last year, Congress adopted new provisions commonly known as the HITECH Act. This notice to HNS providers deals primarily with the provision of the HITECH Act that was designed to strengthen the privacy and security of individuals’ PHI, specifically the HITECH Act, supra, at § 13405, as well as the HIPAA Privacy Rule, 45 CFR § 164.522(a) (2).
The HITECH Act includes significant changes to privacy and security obligations of health care providers and organizations such as HNS, who perform functions on behalf of providers that involve the use or disclosure of PHI.
One of the most relevant HITECH Act provisions that became effective on February 17, 2010, requires health care providers to comply with a patient’s request to restrict the disclosure of PHI - if and only if, “the protected health information pertains solely to a service for which the health care provider involved has been paid out of pocket in full.” (Source: (HITECH Act, supra, at § 13405(a), HNS Practitioner’s Participation Agreement, § 3.6; HNS Practice Protection Plan, Claim Filing Policy, p. 54))
What does this new law mean to me?
It is important to understand that the right to restrict the release of PHI (i.e., a request not to file a claim) is the right of the patient, not the provider and as such, HNS network providers cannot suggest or encourage a patient not to file a claim. This new provision does not authorize health care providers to steer patients away from filing claims with their health plans in order to further the provider’s own business interests.
This new provision DOES mean that if a patient with an insurance plan that contracts with HNS asks you not to file a claim to their health care plan, AND if you have been paid out of pocket in full at the time of service, you must comply with the patient’s request not to file the claim. If, however, a patient with an insurance plan that contracts with HNS asks that you not file a claim - but has not paid in full at the time of service, then you MUST file the claim to the HNS contracted health care plan. (Source: (HITECH Act, supra, at § 13405(a), HNS Practitioner’s Participation Agreement, § 3.6; HNS Practice Protection Plan, Claim Filing Policy, p. 54))
What does “paid out of pocket in full” mean?
Network providers treating patients with an insurance plan that contracts with HNS cannot collect more than the HNS contracted allowable for any covered service provided. As such, for HNS providers, “paid out of pocket in full” refers to the HNS contracted allowable amount for all covered services provided. This means that if the patient has health insurance that processes through HNS, and the patient asks you not to file a claim to their health care plan AND if the patient has paid the HNS contracted allowable out of pocket in full, on the date of service, for all covered services provided, then you must comply with the patient’s request not to file a claim.
If, however, you have NOT been paid “out of pocket in full”, then you are contractually required to file the claim to the HNS contracted payor. (Source: HNS Practitioner’s Participation Agreement, § 3.6; 4.6). Please see the EXAMPLE below:
| Your normal Charge |
HNS Allowable
(with $50 co-payment) |
| 99202 $50.00 |
99202 $41.00 |
| 72100 $45.00 |
72100 $37.29 |
| $95.00 |
$78.29 |
The example above assumes the patient has insurance with a health care plan that contracts with HNS. If this patient asks you not to file a claim to their health care plan for these services, then the provider can comply with this request only IF he/she has been paid the $78.29 on the date of service (has been paid “out of pocket in full”).
Using the same example, if the patient does NOT request a restriction to their PHI, then the provider would collect the $50.00 co-payment and file the claim through HNS.
What if the above patient is a PI case? May I collect my normal fees?
Network providers cannot collect more than the HNS contracted allowable from any third party payor or other source. If you collect the $78.29 from the patient, then you have already been paid in full for the covered services provided and cannot collect additional payment from any other source. If the above “HNS” patient is a PI case, unless you have received the “out of pocket in full” amount of $78.29 at the time of service, you are contractually required to file the claim to the health care plan.
So...does this new law mean that I no longer have to file claims for all covered services?
NO. Your HNS Practitioner’s Participation Agreement requires that you file claims for all covered services provided unless the patient requests that you not file the claim AND unless the patient has paid out of pocket in full at the time of service.
(Source: (HITECH Act, supra, at §13405(a), HNS Practitioner’s Participation Agreement, § 3.6; HNS Practice Protection Plan, Claim Filing Policy, p. 54))
Can the patient change their mind about filing claims to their insurance company and am I required to file their claim if they ask me to?
Absolutely. HIPAA specifically allows a patient to terminate their request to restrict disclosure of the PHI (i.e., a request not to file claims) at any time and the provider must agree to their request. This provision gives the patient the right to ask you not to file claims at any time, (provided the provider has been paid in full at the time of service), and ALSO gives the patient the right to terminate that request at any time and the provider must adhere to all such requests. The law allows the patient to terminate the restriction to their PHI either orally (if documented) or in writing.
(Source: (HIPAA Privacy Rule, 45 CFR § 164.522(a) (2)).
It is important to note that the implementation guides for the HITECH Act are still being developed by the federal government. As these are finalized and released, after consultation with attorneys, the NC DOI and HNS contracted payors, HNS will inform you if there are any changes that impact our network providers.
Please remember that complete compliance to the terms of your HNS Practitioner’s Participation Agreement as well as to all applicable federal and state laws is required for continued participation with our network. We want to assure that all network providers have accurate information so there are no misunderstandings concerning a network provider’s legal and contractual obligations regarding this issue.
I hope this letter has clarified this issue for you. However, if you have any questions, please contact me directly at (704) 906 1332 or via email at pbinder@healthnetworksolutions.net.
Parker Binder
Parker Binder
Chief Executive Officer
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