Could the below HHS regulation be a potential tool to help patients do an end run around MACRA privacy intrusions and rationing guidelines? Medicare patients CAN refuse to authorize the filing of a Medicare claim and pay cash as outlined below.
In 2013 HHS updated HIPAA regulations giving cash-paying patients greater ability to restrict the disclosure of health information. Here’s what the final rule states about Medicarepatients’ ability to assert this right:
With respect to Medicare, it is our understanding that when a physician or supplier furnishes a service that is covered by Medicare, then it is subject to the mandatory claim submission provisions of section 1848(g)(4) of the Social Security Act (the Act), which requires that if a physician or supplier charges or attempts to charge a beneficiary any remuneration for a service that is covered by Medicare, then the physician or supplier must submit a claim to Medicare. However, there is an exception to this rule where a beneficiary (or the beneficiary’s legal representative) refuses, of his/her own free will, to authorize the submission of a bill to Medicare. In such cases, a Medicare provider is not required to submit a claim to Medicare for the covered service and may accept an out of pocket payment for the service from the beneficiary. The limits on what the provider may collect from the beneficiary continue to apply to charges for the covered service, notwithstanding the absence of a claim to Medicare. See the Medicare Benefit Policy Manual, Internet only Manual pub. 100–2, ch.15, sect. 40, available athttp://www.cms.gov/manuals/Downloads/bp102c15.pdf. Thus, if a Medicare beneficiary requests a restriction on the disclosure of protected health information to Medicare for a covered service and pays out of pocket for the service (i.e., refuses to authorize the submission of a bill to Medicare for the service), the provider must restrict the disclosure of protected health information regarding the service to Medicare in accordance with § 164.522(a)(1)(vi).
According to the above regulation, Medicare patients can pay cash for medical care as long as the patient refuses to authorize the submission of a claim. And if the patient pays cash then the related medical information can remain outside of the “certified EHR” open to too many prying eyes.