The Good Faith Estimate Requirement of the No Surprises Act – Part Two

As we discussed in Part One, the No Surprises Act requires that health providers and facilities provide a Good Faith Estimate to patients/clients who are uninsured or who are willing to self-pay even if the patient/client has insurance. The US Centers for Medicare and Medicaid Services (CMS)  provides guidance on the implementation of the Good Faith Estimate requirement and the dispute resolution process known as Patient-Provider Dispute Resolution (PPDR). As a reminder, PPDR disputes will be handled by third parties certified by the US Department of Health and Human Services (HHS). The disputes will resolve the correct bill in a range between the estimate and the final bill.

A patient/client is generally considered an uninsured or self-pay individual – if the person either does not have insurance or does not intend to seek coverage even though the patient/client does have insurance. The Good Faith Estimate will include an itemized list of the items and services the “scheduling provider or facility” reasonably expects to provide the client/patient for a specific period of medical care.

Some of the questions and answers provided by CMS follow.

Does the PPDR process apply to people with health insurance?

The PPDR process will be used for:

• Clients and patients who do not have health insurance or who self-pay for part or all of their care – even though there is insurance coverage.

People with health insurance include those with:

• “A group health plan (a plan through their employer or union)
• Group or individual health insurance coverage offered by a health insurance issuer,
• A federal health care program (such as Medicaid, Medicare or TRICARE)
• A health benefits plan under a Federal Employees Health Benefits (FEHB) Program.”

Patients who are enrolled in a federal health care program are not entitled to a Good Faith Estimate – because those programs have protections against surprise billings.

Where can someone who is uninsured or self-pays obtain Good Faith Estimate information?

Providers and healthcare facilities should post information about the Good Faith Estimate requirement on their website or the physical site where the items or services are scheduled. The provider or facility should provide information about the costs of the medical care (items and service) in writing and orally if asked. The information should be accessible and should be understandable in the customer’s language.

Is the good faith estimate a bill?

The Good Faith Estimate is an estimate only. The estimate is not a bill. The amount of the charges can increase if complications or unexpected circumstances happen.

How will the patients (clients) identify the items or services on the Good Faith Estimate?

The Good Faith Estimate document should group the information by each provider and each facility. The information should include the diagnosis codes, expected service codes, and expected charges for each item or service – “for the primary provider or facility (the main provider or facility you are scheduling with.” “Any expected charges associated with each listed item or service for the co-providers or co-facilities (the other providers or facilities who will also be a part of your care and bill you separately).”

The Good Faith Estimate will not necessarily, in 2022, include the expected costs for items and services from co-providers or co-facilities. For example, CMS tells patients – in 2022, “if you schedule a knee replacement surgery with a particular surgeon, your surgeon’s good faith estimate may not include the expected charges from your anesthesiologist. You may however request a Good Faith Estimate directly from the anesthesiologist.”

Starting in 2022, the Good Faith Estimate must include the expected costs from the co-providers and co-facilities.

An example of a Disclaimer that healthcare providers can use, according to CMS:

CMS provides the following example of a disclaimer on the Good Faith Estimate document:

“This Good Faith Estimate shows the costs of items and services that are reasonably expected for your health care needs for an item or service. The estimate is based on information known at the time the estimate was created. The Good Faith Estimate does not include any unknown or unexpected costs that may arise during treatment. You could be charged more if complications or special circumstances occur. If this happens, federal law allows you [the client or patient] to dispute (appeal) the bill.”

The Patient-Provider Dispute Resolution (PPDR) Process

Health providers and facilities should understand that patients who received a Good Faith Estimate can dispute the actual bill if the bill differs from the estimate. The patient can ask you to:

• Change the bill to the amount of the Good Faith Estimate
• Negotiate the bill
• Ask about financial assistance to pay the bill.
• Dispute the bill using the Dispute Resolution Process – provided the patient starts the dispute process within 120 days of the original billing date. The patient must pay a $25 fee to dispute the bill.  According to CMS, the variance between the two bills (the amount in dispute) must be $400 or more. If the agency (third party) that reviews the bills agrees with the patient that the Good Faith Estimate applies, then the healthcare provider or facility must accept the amount on the Good Faith Estimate. The third party may also agree that the higher bill should apply or that some intermediate amount should apply. The third party is called a “Selected Dispute Resolution” (SDR) entity.

Eligibility for the dispute process “is determined separately for each specific provider or facility listed on the good faith estimate.”

As a practical matter, there will be administrative expenses on the part of the health provider and facility. Contesting many Good Faith Estimates can be expensive.

In 2022:

• Items or services the co-provider or co-provider charges that are not on the Good Faith Estimate (this is not a requirement for 2022 but is for 2023) are not eligible for PPRR. Providers and facilities can include a “range of expected costs for items or services to be provided by a co-provider or co-facility, but these items or services will not be eligible for the PPDR process because they are a range of costs rather than a single cost.”
• Patients and clients can directly ask the co-provider or co-facility for their own Good Faith Estimate – and the co-provider or co-facility must then provide the estimate. The items and services on the co-provider or co-facility’s estimate are eligible for PDDR if the final bill is $400 or more than the Good Faith Estimate.

In 2023, providers and facilities must include the co-providers or co-facility’s charges for items and services on their own Good Faith Estimate document.

CMS has a form on page 8 (and subsequent pages) that details the PDDR process and eligibility for the process.

How can an uninsured (or self-pay) individual start the PPDR process for an item or service?

A patient, or an authorized representative, starts the PDDR process by “submitting an initiation notice to HHS through the online federal IDR portal, electronically, or by mail.” The notice must be submitted within 120 days from receipt of the initial bill. “HHS strongly recommends that the initiation notice be submitted through the online federal IDR portal to help ensure efficient processing.” HHS provides other information for mailing notices on their website – at cms.gov/nosurprises/consumers.

What are the odds that the law will be suspended or blocked?

According to Simple Practice, many healthcare provider groups have indicated their dissatisfaction with both the law and its implementation. The American Hospital Association has filed a lawsuit against the federal government regarding the dispute resolution process. Unless there is a court ruling or a change by Congress, healthcare providers should start compliances of the Good Faith Estimate beginning on January 1, 2022.

Templates for the Good Faith Estimate

Physicians and medical malpractices will need to develop templates for the notice requirement (the right to ask for a Good Faith Estimate) and for the Good Faith Estimate itself. An experienced healthcare compliance lawyer can help you prepare the correct templates for both the notice and the Estimate. APA Services has released the CMS template for a Good Faith Estimate. This template will need to be modified for your particular practice and client base.

Simple Practice specifically states:

“Of course, as this is ultimately an issue of legal compliance for providers, it’s a good idea to consult with an attorney or your professional liability insurance provider for guidance on how to apply the law within your specific practice.”

Should healthcare providers and facilities continue to follow any current state healthcare estimate laws?

According to Simple Practice, compliance with the state requirements is not considered compliance with this new federal law. This means healthcare providers and facilities must meet BOTH the federal Good Faith Estimate requirement AND the state law requirements.

What other health compliance issues are set forth in the No Surprises Act?

According to the National Law Review and Simple Practice, the No Surprises Act (NSA) has other provisions the healthcare providers need to review with their compliance lawyers:

Balance billing restrictions. This part of the NSA mostly applies to “services provided by out-of-network healthcare providers at in-network facilities.” Balance billing is the difference between what the insurance company pays and the out-of-network provider’s rate.

The law Act prohibits balance billing for emergency care. For non-emergency care, billing of the balance is only permissible if the patient/client “has been given notice and provided specific consent.” Simple Practice states that the balance billing provisions normally won’t apply to “outpatient, private-practice care providers, but for those who work in group practice, hospital, clinic, or other institutional settings.”

“Insurers are required to notify patients when the in-network status of a treating provider changes. The patient will have the option to continue with that treating provider for up to 90 days under the same payment terms that existed under the provider’s in-network contract, with some exceptions.”

The NSA has other rules for

• Cost-sharing and payment methodologies
• Patient cost-sharing responsibilities
• Out-of-network provider payment
• Notice and consent exception

The No Surprises Act’s Good Faith Estimate requirements provide that medical practices and facilities, effective January 1, 2022, must give uninsured clients and self-paying clients notice that the clients are entitled to a Good Faith Estimate. The Good Faith Estimate must list the items and services that will be provided and identify the cost of the services. There are specific requirements (a Patient-Provider Dispute Resolution (PPDR) process) for complying with the Good Faith Estimate and contesting disputed final bills that differ from the Good Faith Estimate by $400 or more.

Doctors, medical practices, facilities, and all healthcare providers should contact Cohen Healthcare Law Group, PC to review the new Good Faith Estimate requirements of the No Surprises Act. Our experienced healthcare attorneys help health providers understand their compliance issues including compliance with numerous federal regulations.