Disclaimer: Insurance administration and dental billing recommendations, as well as interpretations of the CDT codes, represent the opinions of our experts. For the latest CDT codes and official interpretations, contact the American Dental Association or visit ADA.org. You are responsible for your own use of the CDT Codes, insurance administration, and dental billing. Laws and individual situations may vary; consult with a licensed healthcare attorney for legal counsel and advice on compliance with state and federal laws.

The HITECH Waiver: A Potential High-Stakes Gamble for Your Practice

In today’s economic climate, dental practices are feeling a significant squeeze. With the rising cost of specialized materials and lab fees—which, for complex procedures like All-on-X or zirconia bridges, can actually exceed the maximum allowable fee under a PPO contract—many practitioners are searching for a way to stay profitable. The question often arises: “Can we simply have patients sign a form promising not to use their insurance for a specific code so we can charge our full office fee?”

A strategy frequently discussed in the industry involves the use of a HITECH Waiver. 

While it sounds like a convenient loophole to bypass low reimbursement rates, the reality is far more dangerous. Implementing this as a standard business practice doesn’t just risk your insurance credentials. To understand why this strategy is so perilous, we must look at its source. The HITECH Act of 2009 expanded upon HIPAA, specifically strengthening a patient’s right to control their Protected Health Information (PHI).

Under 45 CFR § 164.522, a patient has the right to request that a covered entity restrict the disclosure of their PHI. Specifically, if a patient pays for a service out-of-pocket and in full, they can request that the provider not send that information to their health plan.

The original intent of this law was patient privacy, not practice profitability. It was designed for patients who might be seeking treatment for a sensitive condition and do not want their employer to see the details on an Explanation of Benefits (EOB). When a dentist reframes this privacy right as a mandatory billing strategy, they move from the realm of compliance into the territory of potential fraud.

Patients have the right to restrict the disclosure of PHI, but providers do not have the right to mandate them to use it.

If a practice decides to move forward with a HITECH waiver strategy by requesting a patient sign this form, they face two primary legal threats:

• Breach of Fiduciary Duty: As a dentist, you are a fiduciary for your patient, legally obligated to act in their best interest. If a patient discovers months later that they could have received the same treatment for significantly less had they used the insurance benefits they pay for, and that you steered them away for your own financial gain, you may be liable.
• Allegations of Fraud: Fraudulent inducement occurs when a dentist intentionally withholds or misrepresents information that influences a patient’s financial decision. 

Under HIPAA, a patient has the right to rescind a restriction at any time, even after treatment has been rendered.

Even ignoring the legal risks, the administrative burden is staggering. Federal law requires that if a patient restricts disclosure, the restricted treatment cannot appear in any data stream sent to the insurance company.

In an era of integrated Practice Management Software (PMS), this is incredibly difficult. If you submit a full-mouth series of radiographs to a payor that happens to show a restricted bridge from a previous visit, you have just committed a HIPAA violation and could be held liable. To stay compliant, you would effectively need to keep restricted records physically and digitally separate from the patient’s original clinical record.

Instead of risking your office’s reputation in the community on a HITECH loophole, consider these legitimate ways to handle low-reimbursement codes:

• Verify Coding Accuracy: Ensure you are coding with the highest level of specificity. 
• Utilize Optional Services: Many plans offer elective pathways for patients seeking treatment beyond the “least expensive alternative.” If the plan allows it and the patient consents, you may be able to charge the difference for upgraded services.
• Negotiate Your Fee Schedule: Use your production data to demand higher rates. If a lab fee is truly higher than the reimbursement, present that data to your provider relations representative.
• Drop Underperforming Plans: If a specific PPO is no longer viable, it is better to drop the plan entirely than to use risky workarounds while remaining in-network. Note that this is a 6-12 month process when done well.

The HITECH Waiver was never intended to be a revenue management tool. In the world of dental compliance, if a strategy feels like a loophole, it is probably a trap. Before implementing any waiver policy, always consult with a licensed healthcare attorney to ensure your practice remains on solid ground.

You can read more on the HITECH Waiver in the March/April 2026 edition of the Insurance Solutions Newsletter and in the “HIPAA” chapter of our 2026 Dental Administration with Confidence Publication.

Source:

Practice Booster (2026). Dental Administration with Confidence (pp. 325-329). 2025 eAssist Publishing, LLC.