This article is not intended to be legal advice nor is the author a licensed attorney. For a legal interpretation of what's reported in this article, please consult with a healthcare attorney. 

In an age where dental insurance reimbursement is increasingly restrictive, more dentists are offering private-pay options for services insurance won’t cover—like veneers, whitening, cosmetic procedures, or even upgraded materials. But what happens when a patient wants to pay out-of-pocket and requests that no claim be sent to their insurance?

This is where the HITECH Act may offer helpful legal support.

Let’s break down what the HITECH Act is, how it applies in your dental practice, and how you can use it to protect both your practice and your patient in these situations.

What Is the HITECH Act?

The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted in 2009, was primarily designed to:

• Encourage the adoption of electronic health records (EHRs)

• Strengthen privacy and security protections under HIPAA

• Give patients more control over their protected health information (PHI)

One key provision allows patients to request that certain information not be disclosed to their insurance company—as long as certain conditions are met.

The Key Provision: 42 USC § 17935(a)

Under this rule, if a patient:

1. Pays in full out-of-pocket for a specific service, AND

2. Requests in writing that the provider not disclose information related to that service to their health plan,

Then the provider must honor the request and not submit a claim or share the information with the insurer.

In plain English:
If your patient agrees to pay 100% out-of-pocket and asks you not to bill their insurance or send them any related records, you’re legally obligated to comply.

How This Protects You in a Dental Setting

Let’s say a patient wants to:

• Get a cosmetic procedure (veneers, whitening, etc.)

• Use upgraded materials (ceramic instead of metal crown)

• Keep certain treatment private from their insurance

• Avoid triggering denials that might limit future coverage

As long as they:

• Understand the cost,

• Agree to pay in full,

• Sign a written request not to bill or disclose to insurance,
  You’re covered under the HITECH Act.

This protects you from any claim that you “should have billed insurance” or “violated plan terms.”

How to Apply This in Your Office

Here’s a step-by-step process to stay compliant:

1. Have a Clear Financial Agreement

Ensure the patient knows:

• The full cost of treatment

• That no insurance claim will be filed

• That they’re opting to pay 100% out-of-pocket

2. Get a Written Request Not to File

Have the patient sign a HITECH Opt-Out Form that includes:

• The specific service(s) they’re paying for

• A clear statement requesting that you not share PHI related to the service with any health plan

• Confirmation that they’re paying in full and understand their insurance won’t be involved

Keep this in the patient’s chart.

3. Do Not File or Communicate with Insurance

Do not send pre-auths, claims, or SOAP notes to the insurer. If your system auto-exports to insurance, be sure the service is flagged appropriately.

4. Document Everything

In your clinical notes, document that the patient:

• Understood their insurance benefits

• Elected to pay privately

• Made the request for non-disclosure in accordance with HITECH

This creates a defensible paper trail in case of any audit or dispute.

Important Limitations and Reminders

• This only applies when the patient pays 100% out-of-pocket. If any portion is billed to insurance, the opt-out does not apply.

• It must be a specific service, not a general opt-out of all communications with the health plan.

• HITECH does not prevent a patient from later requesting records that they initially restricted—they still own their records.

The Bottom Line

The HITECH Act gives your patients the right to keep specific services off the radar of their insurance—and gives you legal cover to honor those requests.

In a world where many dental services fall outside the scope of insurance coverage, this law can be an excellent tool for:

• Improving case acceptance for elective treatments

• Protecting patient privacy

• Staying compliant when patients choose to bypass insurance

Benjamin Tuinei

Founder - Veritas Dental Resources, LLC
Phone: 888-808-4513

Services:
PPO Fee Negotiators | PPO Fee Negotiating | Insurance Fee Negotiating
Insurance Credentialing | Insurance Verifications

Websites:
www.VeritasDentalResources.com | www.VerusDental.com