Out-of-Network Audits:  FAQs and Protective Actions You Can Take NOW

By Barbara Griswold, LMFT (August 31, 2024)

After reading my recent article about out-of-network records requests from insurance plans (if you missed that article, click here), many readers responded with versions of “do I HAVE to deal with records requests?  I didn’t join this insurance plan!”  They expressed outrage, but also concern that their notes were not legible, were only readable to them, or just would not meet insurance plan criteria.

The most frequently asked questions were:

• “Can I refuse to turn over my records, if they are requested?”
• “Can I just send a treatment summary?”
• “Can I just refuse to give superbills to clients who have certain health plans, if I know the plan audits a lot?”
• “Can I put in my informed consent that I won’t give out ANY superbills, so I don’t open the door to audits, and don’t have to worry about all this?”

Great questions! Let’s take them one at a time:

• “Can I refuse to turn over my records, if they are requested?” There is something that stands out in this question: The phrase “MY records.”  As you’ve likely heard me say before, it is important to remember that they aren’t YOUR records.  Think of yourself merely as the custodian of a client’s medical record.  That means that the client is the only one who can choose whether to release them.  So, refusing isn’t really an option if your client wants them released.  Also, many professional ethics codes require us to assist clients seeking third party reimbursement.  No matter what your personal feelings are about insurance or records release, this is a time where you need to remain neutral and help your clients make their own decisions.

• “I’m not comfortable sending my notes.  Can I send a treatment summary?” This can be a very bad idea.  Unlike risk adjustment audits, most claim-related records requests require that you provide the actual notes, not a treatment summary. Since your client’s claims may be rejected if you send a summary, don’t send one unless the health plan tells you can.

 

• “Can I give superbills to most clients, but refuse to give them to clients who have the health plans that do audits?”  This, I think is a non-starter.  First of all, any health plan could do a record request.  And as soon as you give one client a benefit (in this case a superbill) that you wouldn’t give another client, you are likely in unethical territory.  In this case, I’d say you were discriminating against a client based on their insurance plan, which I’d consider unethical.  They’d have a strong basis for a complaint.

 

• “Well, can I put in my informed consent that I won’t give superbills to ANY client, so I don’t have to worry about all this?”   According to an attorney I consulted, sure, you can do this.  But you might lose clients who need reimbursement.  Or perhaps they will stop coming if therapy gets too expensive.  And overall, I just think this is a sad path. In doing so, we take a further step toward making therapy available only to clients with higher incomes. Nearly half of all American workers have PPO plans with out of network benefits, and we would be blocking their ability to seek reimbursement.

Why would we consider such extreme actions?  Are we outraged that the insurance plan can ask for these notes?  Do we have concerns about confidentiality? Sure.  But these are issues for the client to consider alongside their desire (or need) to be reimbursed. They must come to their own conclusions.  Are WE afraid of losing money?  Hopefully our clients have paid us in full for each session, so there is no risk of our money loss if notes are audited.  And our clients have already paid us, so they won’t lose money if the notes don’t pass. They just won’t get desired reimbursement.

But keep in mind that the chance of audit overall really is quite low, and you would be keeping clients from getting potentially thousands of dollars of reimbursement due to a fear that they may not get reimbursed for some sessions. That is, you would be prematurely denying them reimbursement out of fear they would be denied.  So the only realistic fear I see is that you submit your notes, the plan finds them deficient, and the client is mad at you when they don’t get reimbursed.

But I have a few tips to help prevent this without going to the extremes of refusing to give clients a superbill:

• In your informed consent for out-of-network clients, add this paragraph (or something like it):

“I understand that I am responsible for payment in full at the time of the session.  I understand I may ask for an invoice (superbill) from my therapist to submit to my health plan to seek reimbursement.  The health plan could ask to review my care or ask for my therapist’s session notes.  I have the right to refuse the treatment review or the release of notes, but I understand if I do refuse the insurance plan may not reimburse for those sessions.  My therapist is not a provider for my health plan, and thus does not guarantee reimbursement or that the documentation kept will meet health plan requirements.”  Then have them sign this.  In this way, you both educate clients, and remove responsibility if your notes don’t pass.

• Take a course on documentation.  Maybe one reason this upsets us so much is that we are embarrassed by the state of our notes. And If you don’t work with insurance you may not feel you need to take training in documentation and treatment plans.  But all therapists need to have good notes to meet legal, ethical, and insurance, requirements, as well as to protect yourself in a complaint, and document symptoms for a client’s disability.  Also, clients have the right to ask for their records at any time, which they are doing more often.  So, check out my on-demand documentation courses — click here.
• Join me at my upcoming Live Audits and Records Requests webinar on September 21, 2024.  We’ll arm you with more information to help you understand what plans are looking for.  Or if you are reading this after that date, purchase the same course at www.theinsurancemaze.com/store.