HEALTH LAW SUPPLEMENT Spring 2021

The new federal prohibition on “information blocking.” Beginning April 5, 2021, a portion of the federal “21st Century Cures Act,” Section 4004, called “Interoperability, Information Blocking and ONC Health IT Certification,” will require that health care providers, including private practitioners who maintain electronic health records (EHR) provide access electronically to patients to all of their healthcare information. The law applies only to EHR, not to paper records or to practitioners who maintain only paper records. Previously, patients who wanted access to their EHR records had to request a copy in writing and then wait 10 days (the time limit set by New York State’s access law, Section 18 of the Public Health Law) to 30 days (the time limit set by federal HIPAA regulation). Now, patients must be granted immediate electronic access to all of their records with certain exceptions. Thus the new law modifies HIPAA regulations regarding access.

“Psychotherapy Notes,” a defined term under HIPAA for notes kept in addition to and separate from progress notes are excepted (these notes are more aptly characterized as “Personal Notes and Observations” under NYS PHL, Section 18). Likewise excepted are records that might cause harm to the patient or others, though it seems that practitioners will now need to pre-determine whether that is the case, and file such records separately from those that will not cause harm; the new law places the burden on the practitioner to justify denying access. The Office of National Coordinator for Health Information Technology has stated that psychological distress does not meet the criterion for harm that would justify denying access. Another exception is due to “infeasibility” in providing access, for example if a practitioner’s EHR system does not have the capacity to allow instant patient access. In such cases, the practitioner must provide a written response to the requestor within 10 business days of receipt of the request with the reason why the request is infeasible. The infeasibility exception does not permit practitioners to disable an existing capability in their EHR systems that allows for patient access. Some EHR vendors who currently lack such capability will likely update their systems to facilitate direct patient access in order to comply with the new Health IT Certification requirements, but some vendors will probably not make changes. There is no requirement to switch EHR vendors to ones that have direct access capability. There are other exceptions less likely to be applicable to private practices, see https://www.epic-care.com/wp-content/uploads/2020/10/ONC-Information-Blocking-Exceptions.pdf

For practitioners with EHR, writing progress notes clearly, succinctly and sensitively will become more important than ever. As of yet, there are no penalties imposed on practitioners for non-compliance with the prohibition, but only on health IT developers and health information exchange networks.

Incident to billing (billing under a supervisor’s license/NPI). According to the National Council for Behavioral Health, “For behavioral health providers, “incident to” is an attractive option because it increases patient access to services since practitioners without a Medicare
billing number (or who are not themselves credentialed with a commercial insurer), or who are not recognized by Medicare (or a commercial insurer), but also not excluded, can provide care and bill under the supervising (provider). The organization is then reimbursed at 100% of the (provider) fee schedule, as long as the guidelines are followed.” Incident to billing is allowed by Medicare in accordance with federal regulations. Some, not all, private insurance carriers also allow it. Empire Blue Cross Blue Shield and Cigna have recently begun to allow it if certain conditions are met. Criteria imposed by Medicare (commercial criteria may differ) for delivery of incident to services whereby a supervisor bills as rendering provider are as follows:
1. The services must be provided by an employee or contractor (supervisee) of the supervisor and the supervisor must be a physician, psychologist or nurse practitioner (some private insurers allow LCSW’s, LMHC’s, LMFT’s and LCAT’s to supervise too);
2. The supervisee must be licensed by or, possibly, be a permit holder from the State and services provided by the supervisee must be within the scope of the license, or permit if permittees are allowed, of the supervisee (usually, supervisees cannot be graduate students on externship or internship or candidates in LQ programs, i.e., anyone without an NPI, although sometimes commercial group provider contracts with licensed clinics and institutes may allow it);
3. The services may only be provided to established patients, that is, to patients personally evaluated by the supervisor for whom the supervisor has established a treatment plan. Thus incident to billing cannot be used for a patient’s first visit. If an established patient presents with a new problem, the supervisor must see the patient and establish a treatment plan for the new problem (some commercial insurers have less stringent requirements regarding the involvement of the supervisor than those of Medicare);
4. The services must be provided in the supervisor’s office and must be incidental to the supervisor’s own services, that is, the supervisor must him or herself provide personal services to the patient of appropriate frequency to indicate active involvement in the patient’s care;
5. The supervisor must be in the office suite and immediately available when the supervisee renders services; and
6. The supervisor must directly supervise the supervisee on the care of the patient and must sign the supervisee’s notes as such to indicate that the care provided was appropriate. A record of supervision should also be maintained.
Some insurers allow a supervisor to supervise no more than 4 or 5 supervisees at any one time.
In network providers should not use incident to billing unless it is explicitly permitted by their contract with the insurer or they have otherwise been given written approval for the procedure. If a provider is out of network but accepts assignment (i.e., the insurer pays the provider directly rather than reimbursing the patient who has already paid in full), they also should not use incident to billing unless the insurer has given permission to do so in writing. (Providers who accept assignment are expected to observe limitations on reimbursement set by insurers in the same manner as in-network providers.)
Out of network providers who do not accept assignment (i.e., insurance companies only reimburse patients who have already paid in full), still should check with commercial insurers about their acceptance of incident to billing for patients who have out of network benefits and wish to submit claims for those benefits. In such cases, while there is no specific prohibition on incident to billing, neither is there any allowance of it, and if an audit occurs, reimbursement may be sought by the insurer if their policies disallow incident to billing.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING THE SPECIFICS OF YOUR SITUATION.

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