By the Division of Professional Licensure


Date: February 3, 2010

The Massachusetts Board of Registration of Chiropractors (Board) has today voted to adopt the following Policy Guideline. This policy guideline is intended as a recommended protocol for the profession to follow. The guideline set forth below does not have the force or effect of law, as would a Massachusetts General Law or a Board rule or regulation. However, the Board utilizes this and other guidelines as an internal management tool in formulating decisions that relate to issues of chiropractic practice.

Purpose:

Over several years, the Board has received numerous requests for clarification regarding payment options for chiropractic services. As the Board is responsible for licensing Doctors of Chiropractic and ensuring that our licensees follow appropriate standards and protocols in all aspects of the delivery of chiropractic services to the citizens of the Commonwealth, the Board wanted to make the following information available to all interested parties. This guideline focuses on avoiding potential conflict with the Board's rules and regulations.

It is important to remember that nothing in this guideline requires a licensed chiropractor to offer fee discounts to patients or insurance organizations. Also, nothing in this guideline supersedes Massachusetts or federal statutes or regulations. Various external references have been included for additional information, but do not represent a policy of the Board.

Policy:

I. Definitions and Limitations

1) Discount plans do not relieve a licensed chiropractor from his or her duty to provide competent, necessary care in a timely and affordable manner.

2) A discount plan allows the public a cost saving on some of the services from a chiropractor. Discount plans do not pay anything toward chiropractic services. Instead, they allow the patient to get a discount off of some of your chiropractic charges.

3) A discount plan is not health insurance and does not meet the Massachusetts "individual mandate" requirement for health insurance coverage. The Massachusetts Attorney General's office has promulgated regulations pertaining to Discount Health Plans and licensed chiropractors should consult these regulations. (940 CMR 26.00: Discount Health Plans and Discount Health Plan Organizations)

4) A patient has the right to forgo available insurance benefits for chiropractor services in favor of a self-pay process. Documentation of the patient's decision, if known, should be maintained in the patient record. Such documentation should include:

a) Patient's name and date of birth;

b) Insurance company name and card (identification) number;

c) The licensee's name and practice address;

d) The patient's decision to forgo available third party pay benefits in favor of a self-pay process;

e) The patient's signature; and

f) The date it was signed.

5) This guideline does not release a licensed chiropractor from any contractual obligation that he or she has with an insurer or other entity. (233 CMR 4.11: False Health Care Claims Prohibited)

6) All care recommended and rendered must be clinically justified and appropriately documented. (233 CMR 4.08: Overutilization of Practice)

7) Discounts and payment plans should not include any improper solicitations or inducements for any good, service or item for which payment is or may be made in whole or in part by a health care insurer. (MGL c.175H §3: False Health Care Claims, and 233 CMR 4.12: Improper Solicitations, Inducements or Referrals)

8) Fee discounts and discount payment plans fall into four general categories:

a) Time of Service Discounts

b) Membership Discounts

c) Hardship Discounts

d) Pre-payments (pre-payment discounts and concierge plans)

II. Financial arrangements between a licensed chiropractor and his or her patient must be in compliance with 233 CMR 4.00: Standards of Practice and Professional Conduct.

1) The Board is concerned with protecting the public from misrepresentation, deceit, fraud, improper solicitation, overutilization and unprofessional conduct, as it applies to fee discounts and discount payment plans.

2) Licensees should use clarity in describing financial responsibilities, payment choices and discount plan options, and should be particularly mindful of the following:

a) A licensee who is contracted with an insurance carrier should adhere to the terms of their provider contract in regards to the collection of co-pays, co-insurance, and applied deductibles. The contractual obligation of an "in-network" provider will typically differ from that of an "out-of-network" provider;

b) Many insurance plans do not cover maintenance or wellness/preventative care;

c) Any co-payment, co-insurance or applied deductable collected in advance should be promptly refunded if the patient recovers before those fees would apply;

d) Some insurance carriers may specifically prohibit the collecting of co-payments, co-insurance and applied deductibles in advance;

e) A poorly worded pre-pay plan could inadvertently result in 'Balance Billing' which is a violation of Board policy. (233 CMR 4.09: Improper Charges) Balance Billing is the practice of charging full fees in excess of covered amounts and billing the patient for the balance that the insurance carrier does not pay when the provider has a contractual obligation to write-off this balance. On the other hand, collecting co-payments, deductibles or fees for non-covered services is not Balance Billing;

f) Discounting co-payments, co-insurance, and/or applied deductible s amounts without first determining in good faith that the individual is in financial need or that reasonable collection efforts have failed, could be considered an improper solicitation or inducement. (OIG Advisory Opinion: Hospital Discounts Offered To Patients Who Cannot Afford To Pay Their Hospital Bills, appendix 2 and 3); and

g) While types of prepayment and concierge plans share some similarities, they can vary widely in their structure, payment requirements, and form of operation. In addition to this policy guideline the Board recommends that licensees consult with a knowledgeable health care attorney to ensure that any plan they offer does not violate Massachusetts or federal statutes or regulations; or any insurance or contractual obligation by which the licensee may be bound.

III. Time of Service Discounts

1) A Time of Service (TOS) discount is a discount offered to patients who pay in full at the time of service to reduce the costs of collection.

2) The TOS discount, if utilized, should be offered to all patients on a non-discriminatory basis. The TOS discount is most often not publicly advertised, but may be offered to patients during the course of discussions about payments and fees.

3) The discount price must be clearly noted on all bills, receipts and account statements. Thus, patients wishing to submit an insurance claim should be given a receipt that reflects the discounted price that was actually paid.

4) The amount of the discount should bear a reasonable relationship to the amount of avoided collection costs.

5) Time of Service Discounts should comply with all applicable laws and regulations.

(OIG Advisory Opinion: 08-03, regarding prompt payment discount, appendix 1)

IV. Hardship Discounts

1) Discounts based on financial hardship (waivers) are acceptable provided:

a) The waiver is not offered as part of any advertisement or solicitation;

b) The licensee offering the waiver does not routinely waive coinsurance or deductible amounts;

c) The licensee waives the coinsurance and deductible amount after determining in good faith that the individual is in financial need; and

d) Documentation of financial need is created concurrent with or prior to the discount being given and maintained. (233 CMR 4.05: Chiropractic Record-keeping)

2) The Board recognizes that what constitutes good faith determination of "financial need" may vary depending on the individual patient's circumstances and that a licensee should have flexibility to take into account relevant variables. These factors may include for example:

a) The regional cost of living;

b) A patient's income, assets, and expenses;

c) A patient's family size;

d) The scope and extent of a patient's chiropractic/medical bills; and

e) Whether the patient has already been approved by a government agency as qualifying for state or federal financial support.

3) A licensee should use a reasonable set of financial need guidelines that are based on objective criteria and appropriate for the applicable locality. The guidelines should be applied uniformly in all cases.

4) Hardship discount plans should comply with all applicable laws and regulations.

(OIG Advisory Opinion: Hospital Discounts Offered To Patients Who Cannot Afford To Pay Their Hospital Bills, appendix 2 and 3.)

V. Membership Discounts

1) Membership discount plans offer members a discount off some of the incurred charges from a participating chiropractic provider.

2) Membership plans are typically created and maintained by an organization with statewide or national scope. A membership plan comprised of just a small or limited number of chiropractors could be considered simply a change in these chiropractors' usual and customary fee rather than a true membership discount plan.

3) In addition to the disclosures required under 940 CMR 26.04 where applicable, membership discount plans should describe in writing:

a) A description of eligible services, and the time frame that the plan covers;

b) How the patient will pay for the eligible chiropractic services;

c) The handling of any insurance related matter arising within the membership period, including the understanding that any alternative insurance benefit would fall outside of the membership discount arrangement; and

d) A clear exit provision.

4) Membership discount plans should comply with all applicable laws and regulations.

VI. Pre-payments (prepayment discounts and concierge plans)

1) In a pre-payment discount plan the subscriber purchases a package of services that cost less than if the services were purchased individually.

2) The business model, known as Concierge Care is a relationship between a patient and a licensee in which the patient pays an annual or monthly fee out of pocket. This may or may not be in addition to other charges. In exchange for this retainer the licensee provides a defined set of services and amenities during the coverage period.

3) In addition to the disclosures required under 940 CMR 26.04 where applicable, pre-payment discount plans and concierge plans should describe in writing:

a) The total cost to the patient as well as the method and timing of payment;

b) A description of what chiropractic services are included and excluded;

c) A description of the time frame which the plan covers;

d) How special circumstances, such as extended absence, new injury or new illness will be handled;

e) The handling of any insurance related matter arising within the prepayment/concierge period;

f) A statement to the effect that the chiropractor makes no claim or representation that a particular treatment, procedure or service, or any combination of treatments, procedures or services, is guaranteed to result in a particular clinical outcome. (233 CMR 4.10: Misrepresentation or Deceit); and

g) A clear exit provision describing under which conditions the agreement can be terminated and how the remaining balance will be accounted including the method and timing of reimbursement if necessary.

4) Early termination

a) The patient should have the right to terminate the pre-payment or concierge plan at any time;

b) The licensee may terminate the prepayment or concierge plan at any time, for good and sufficient cause, except the licensee must ensure that patient abandonment does not occur;

c) It is expected that a licensee will maintain sufficient funds to cover potential refunds of unused repayments. An escrow or similar accounting system should be considered on plans that exceed $600;

d) In event of early termination of a prepayment discount plan by the patient, the maximum fee charged cannot exceed the chiropractor's usual and customary fee for the services rendered;

e) In event of early termination of a prepayment discount plan by the licensee, the discount should be prorated when determining the amount of repayment; and

f) In event of early termination of a concierge plan, the fee for the unused portion should be returned with no penalty.

5) Prepayment plans should comply with all applicable laws and regulations.

References

a) 233 CMR 4.00: Standards of Practice and Professional Conduct

b) 233 CMR 4.08: Overutilization of Practice

c) 233 CMR 4.09: Improper Charges

d) 233 CMR 4.10: Misrepresentation or Deceit

e) 233 CMR 4.11: False Health Care Claims Prohibited

f) 233 CMR 4.12: Improper Solicitations, Inducements or Referrals

g) 940 CMR 26.00: Discount Health Plans and Discount Health Plan Organizations

h) MGL c.175H §3: False Health Care Claims

i) OIG Advisory Opinion: 08-03 regarding prompt pay discounts (Appendix 1)

j) OIG Advisory Opinion: Hospital Discounts Offered To Patients Who Cannot Afford To Pay Their Hospital Bills (Appendix 2)

k) OIG Advisory Opinion: Addendum to Hospital Discounts Offered To Patients Who Cannot Afford To Pay Their Hospital Bills (Appendix 3)