Zon,
(responding to your comment below)
It is not clear that it would be all that difficult to get legal sign-off to
support an important business partner who is not ready if it were possible
to know the liability for fines.
This, in turn, depends on the definition of a requirement within the
transaction regulation, since the legislation caps the fines on a
per-requirement basis:
"SEC. 1176. (a) GENERAL PENALTY.--
"(1) IN GENERAL.--Except as provided in subsection (b), the
Secretary shall impose on any person who violates a provision
of this part a penalty of not more than $100 for each such
violation, except that the total amount imposed on the person
for all violations of an identical requirement or prohibition
during a calendar year may not exceed $25,000.
The final regulation appears to equate a standard with a specified
implementation specification, although arguably the code sets may represent
separate standards. The question is, does a "standard" equate to a
"requirement"? (One point of view would say that an implementation
specification is a compilation of thousands of requirements.)
Has HHS been asked? If so, has it answered?
A second question is how will the fines arise? Will the Department wait for
complaints as is the case with the Privacy regulation?
Has HHS commented on this issue?
Thanks.
Wes Rishel
Research Director
Gartner Research, Healthcare
Alameda, CA
510 522 8135
[EMAIL PROTECTED]
For client Inquiries: 203 316 1288
[EMAIL PROTECTED]
-----Original Message-----
From: Zon Owen [mailto:[EMAIL PROTECTED]]
Sent: Saturday, November 02, 2002 11:25 AM
To: [EMAIL PROTECTED]
Subject: New HHS FAQs as of 11/02/2001
...
11/2/2001 Question 4: If a health care provider electronically conducts a
non-compliant transaction (transmits an old National Standard Format or a
proprietary format) directly to a health plan after the transaction
regulation compliance date, and the health plan accepts and processes the
non-compliant transaction, who is in violation of the regulation? Is it the
health care provider or the health plan?
Does the acceptance and processing of a non-compliant transaction by a
health plan from a health care provider constitute a violative trading
partner agreement between the health plan and the health care provider?
11/2/2001 Answer 4: If a health care provider electronically conducts a
non-standard transaction with a health plan after the transaction regulation
compliance date, the health care provider and the health plan are both out
of compliance. Section 162.923(a) of the rule requires a covered entity
conducting an electronic transaction for which a standard has been adopted
with another covered entity to conduct it as a standard transaction.
If the health plan by agreement required the health care provider to conduct
non-standard electronic transactions, such agreement would not by its terms
violate section 162.915. However, if either party were to abide by the
agreement, they would be out of compliance with section 162.923(a), for the
reason stated above.
...
<< End HHS 11/02/2001FAQ Quotes >>
The most interesting of these from my perspective is item number 4. This
answer clarifies that the submission and acceptance of a non-compliant
electronic transaction format is a violation for both the sending and
receiving parties, and not just the submitting party. I have previously
noted that the transaction rule becomes self-enforcing under this
interpretation, since you would need legal signoffs by all associated
trading partners to use an alternate format, which wouldn't generally be
practical to achieve.
- Zon Owen -
(808)597-8493
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