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

The No Surprises Act

The No Surprises Act (NSA) was enacted in 2021 to protect consumers from receiving medical bills the consumers didn’t expect. For example, consumers/patients might go to a healthcare facility that is in their in-network insurance – and then receives services at the facility from an out-of-network provider. The patient is then reasonably upset when he/she discovers that there are some expenses that the insurance company doesn’t cover – costing the consumer thousands in unexpected bills.

The Good Faith Estimate requirement of the No Surprises Act was enacted to provide predictability to the charges for healthcare services – prior to the patient’s appointment.

A summary of the basic Good Faith Estimate Requirement for healthcare providers

According to Simple Practice, as of January 1, 2022, a state-licensed or certified healthcare provider or facility must provide a Good Faith Estimate of the expected charges – to new patients and continuing patients – who either don’t have insurance or are not planning to submit a claim for payment to their insurance carrier. The No Surprise Act has specific rules for what information the estimate must provide and the timeline for providing the estimate. Healthcare providers must provide self-insured patients and self-pay patients of their “right” to receive the Good Faith Estimate.

In short, a physician or any other healthcare provider or facility must ask their patients if the patients have or intend to use health insurance to pay for the services. If the patient says no – then the provider must provide the patient with a Good Faith Estimate. Providers include air ambulance services.

According to the Centers for Medicare and Medicaid (CMS), people with insurance can ask for an estimate too – which will normally be provided to the requestor’s insurance plan.

If the uninsured or self-pay client is then billed at an amount $400 or more above the estimate, the client then may be entitled to file a “Patient-Provider Dispute Resolution (PPDR) process” by filing a request to Health and Human Services (HHS) for a small administrative fee. The disputed claim will be handled by a third-party company certified by HHS. This third-party will determine the correct amount of payment – the estimated amount, the final bill, or some other amount between these two amounts.

There are specific Good Faith Estimate and PPDR requirements. There are templates that CMS recommends that health providers use so that the process becomes similar to the HIPAA Notice of Privacy Practices process. HHS has a sample notice that can be customized to give the facility’s or the provider’s clients.

Which medical providers are coved by the No Surprises Act and the Good Faith

The No Surprises Act applies, according to Simple Practice, to “all healthcare providers and facilities operating under the scope of a state-issued license or certification.” There are no known exemptions for any specialties, facilities, or types of services. Some practices such as dentistry have proportionally more uninsured clients than other practices.

Which people are entitled to receive a Good Faith Estimate?

Clients who do not have insurance or who are insured but indicate they don’t want to submit their medical bill to their insurance company are entitled to a Good Faith Estimate. The CMS guidelines indicates insured patients can ask for a Good Faith Estimate which will be shared with their insurance plan.

The Good Faith Estimate requirements do NOT apply if the client using Medicare, Medicaid, or another federal healthcare program (such as TRICARE). A Good Faith Estimate is not required for emergency services – which, by definition, cannot be scheduled in advance.

What information must be set forth in the Good Faith Estimate?

The Good Faith Estimate must, according to the Federal Register, include:

• The name of the client.
• The clients’ date of birth.
• A description of the services, in an understandable language, that will be provided.
• An “itemized list of goods or services reasonably expected to be provided in connection with the scheduled services.”
• The “diagnostic codes, service codes, and expected charges associated with each of those goods or services.”
• The name of the provider, the provider’s NPI, and the provider’s tax ID number.
• The office location where the provider will perform the services.

A few key notes/disclaimers:

• The provider has the right to recommend additional services or items (not part of the treatment), that are not reflected in the Good Faith Estimate – provided these added items are scheduled separately.
• The key word is “estimate.” There is an understanding that the services, charges, or items provided may change based on the treatment.
• The client can pursue the PPDR dispute resolution process.
• The receipt of the Good Faith Estimate does obligate the client to obtain the services listed on the estimate from the provider.

“The list of services to be provided should differentiate between those services that the provider will be offering, and those offered through what the law defines as co-providers and co-facilities: Others who will be providing services related to the treatment being sought.”

What are the time requirements for providing the Good Faith Estimate?

The NSA requires that the Good Faith Estimate be provided according to the following deadlines:

• When services are required at least 10 business days in advance, the Good Faith Estimate must be given to the client within 3 business days of the scheduling of the services – not the appointment date.
• When a service is scheduled at least 3 days in advance, the Good Faith Estimate must be given to the client – within 1 business day of scheduling.
• When a service is scheduled less than 3 business days in advance, no Good Faith Estimate is required.

In general, facilities and physicians should be ready to have the Good Faith Estimate ready within no more than 3 days from the request.

The Good Faith Estimate must be in writing. If the Good Faith Estimate is delivered electronically, the estimate must be in a format that the patient/client can save and print if desired. If the client asks about costs, the Good Faith Estimate should be provided verbally – followed up by the written compliance. A verbal response alone will not be considered compliant.

Clients who receive long-term or ongoing services – should receive the Good Faith Estimate “every 12 months, to cover the next 12 months of planned or potential services.”

The Good Faith Estimate, according to Simple Practice, “must be included in the client’s medical record, including the date and method of delivery.” The records should be properly secured according to current medical record standards. The client should be able to receive a copy of the estimate for up to six years after the initial time the estimate was provided to the client.

Can a client waive the right to a Good Faith Estimate?

There is no current way for a client to waive his/her right to Good Faith Estimate. The client can waive some of the “protections related to balance billing,” but the facility or health provider must provide the Good Faith Estimate.

How precise does the request by the client for a Good Faith Estimate need to be?

Essentially, any discussion, inquiry, or conversation about the costs of medical care – is a request for a Good Faith Estimate. The exact words “Good Faith Estimate,” are not required. Facilities and providers should generally presume that the Good Faith Estimate is required.

Can a facility or healthcare provider include the Good Faith Estimate with the standard client intake information?

The answer depends on the type and scope of the treatments you will be providing. Generally, including a Good Faith Estimate with the standard intake paperwork should be acceptable – provided the estimate does relate to the specific services the client will receive and the estimate “must be made available to new clients in a specific time frame once services are scheduled, as listed above. “

Facilities and healthcare providers need to think through what paperwork may cause confusion. If the estimate is for a treatment contract, this may confuse the patient. It may make more sense to start with the right to receive a Good Faith Estimate in the initial paperwork – and then follow up with the Good Faith Estimate document within the required time limits.

Can healthcare providers and facilities use a “range” when completing the Good Faith Estimate?

In some practice areas, such as psychological care, the healthcare provider may not know how much treatment is necessary for new clients. A range of costs may be acceptable. If a range is used, the factors that can result in the lower or higher range should be identified. For example, a psychiatrist may state that between 10 and 25 50-minute sessions are needed each year. Given a charge of $x per session, the possible costs range between 10x and 25x.

How does a healthcare provider or facility estimate the charges for new clients?

The key word is “estimate.” Providers and facilities can only estimate the costs the providers and facilities known at the time of the estimate. The Good Faith Estimate can be revised after the initial session with a new client. Once a provider understands the patient’s symptoms, diagnosis, and the severity of their disorders – the provider should be able to include more information such as diagnostic codes. The key aim of the NSA is to provide the patient with the necessary information to make pricing decisions.

What happens if the estimate is not correct?

The Good Faith Estimate rules specifically “do not require the good faith estimate to include charges for unanticipated items or services that are not reasonably expected and that could occur due to unforeseen events.” The Good Faith Estimate should be updated to include this new information.

What are the consequences for noncompliance with the Good Faith Estimate rule?

Providers can be fined for noncompliance. According to Simple Practice:

“HHS has said it is deferring enforcement and doing some additional rulemaking for in-network services, but that it is not deferring enforcement of the requirement to provide Good Faith Estimates for uninsured or cash-pay clients. As with HIPAA, providers found to be violating the regulations can be fined.”

Any medical practice that requires licensing or certification and any hospital or facility that requires licensing or certification must, as of January 1, 2022, comply with the Good Faith Estimate Rule of the No Surprises Act. Generally, the providers and facilities must give uninsured clients and self-paying clients prompt notice that the clients are entitled to a Good Faith Estimate. The Good Faith Estimate must set forth the expected costs for items, services, and treatments within specific short time-frames.

Physicians, facilities, and all healthcare providers should contact Cohen Healthcare Law Group, PC to discuss 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.