Preface to The Trust’s Preliminary Guidance on the No Surprises Act (NSA)
January 4, 2022*
While it is clear that most of us were “surprised” by the No Surprises Act (NSA), it’s not clear what those in independent practice settings should do to be in compliance. Many, including us, have opined various thoughts and recommendations, but, because the Act itself is not written clearly and because it does not address all situations which independent practitioners face, absolute and fact-based complete guidance cannot at this time be given. That’s frustrating. Even more so, it’s of great concern because it negatively impacts us and our clients in time-consuming, potentially needless work which can also have long-term consequences on our work as professionals. Because NSA went into effect before we could get additional information or even ask questions, we’re faced with having to make certain choices and changes now, not knowing if those changes will need to be changed again and not knowing how to protect our clients and profession best. That’s more than frustrating.
Our risk managers have reviewed the opinions of others, have met as a whole and individually, have debated almost every aspect of the Act, its forms and templates, and have ended up where we were in the beginning—how can we advise psychologists on what the Act requires when it is unclear? As we do in most situations, including guidance on clinical issues, we provide guidance to help you identify what the risks are and to facilitate your own determination of calculated risks you’re willing to take. And we encourage you to check trusted resources frequently for consultation and for updates and new information which can impact your personal risk assessment.
Our document is very long. We decided to walk you through the major aspects of the Act, hoping to provide as much understanding of it, a context, and a path for applying what is laid out. We acknowledge that what we are recommending currently about NSA is a conservative approach and that many of you will not agree with or want to follow that approach. But we’re confident that following this approach, while more labor intensive, will provide you the best protection based on what we know now. We know that’s what many of you want. We also will provide frequent updates and revisions as we find information which clarifies what is expected of psychologists.
We continue to pledge we will spend as much time as we need to provide you, our colleagues, with guidance on how to navigate risky situations. I think NSA would be a good Risk Management Roundtable presentation, don’t you?!
We’ll keep trying to help as best we can. I promise.
Jana and the Advocate Team
* This guidance reflects a change in previous guidance based on review of additional information. We anticipate further clarification, and, therefore, encourage continued diligence in checking trusted resources on a regular basis.
AMERICAN INSURANCE TRUST (“THE TRUST”)
Guidance on the No Surprises Act (NSA)—January 4, 2022*
Note: Given the ambiguity of the NSA, the following is preliminary guidance to comply with its provisions. This guidance does not constitute legal advice. To obtain a legal opinion, please consult a local mental health law attorney in your jurisdiction. Please continue to check back frequently for updates and changes to this guidance.
*This guidance reflects a change in previous guidance based on review of additional information. We anticipate further clarification, and, therefore, encourage continued diligence in checking trusted resources on a regular basis.
➢ The NSA went into effect on January 1, 2022
NSA NOTICE AND GOOD FAITH ESTIMATE PROVISIONS
Two of the primary purposes of the No Surprises Act are:
- To prohibit an out-of-network provider from charging, without that patient’s prior agreement, the out-of-network provider’s private (i.e., out-of-network) rate when the patient receives treatment at that patient’s otherwise-in-network healthcare facility. Prior to the NSA, such patients often received unexpected and very large bills from out-of-network providers who provided services to the patient without the patient’s agreement to pay these out-of-network providers at out-of-network rates;
- To require both healthcare facilities and individual healthcare providers to furnish uninsured/self-pay patients with a Good Faith Estimate (GFE) of the likely cost of a proposed treatment prior to the uninsured/self-pay patient’s receiving that service. Under the NSA, the uninsured/self-pay patient can decide whether to proceed with treatment based on the Good Faith Estimate of its cost. If the uninsured/self-pay patient agrees to proceed based on the Good Faith cost estimate, the patient has legal recourse if the actual cost of the treatment varies significantly, and without acceptable justification, from the GFE for that treatment.
With regard to these two primary purposes, the NSA has three main requirements:
- Notice: Healthcare facilities and individual healthcare providers must give all patients written notice of their rights under the No Surprises Act by posting a notice on their websites (if the facility/provider has one) and in the provider’s office, and, when treating patients remotely, by giving the notice directly to the patient;
- Good Faith Estimate (Scenario #1): Out-of-network providers must furnish a GFE, prior to the delivery of those services whenever possible, for their services to patients to whom they are providing out-of-network services at an in-network healthcare facility;
- Good Faith Estimate (Scenario #2): All healthcare facilities and individual providers must provide uninsured/self-pay patients with a GFE of the expected costs of their course of treatment, and must do so within specified time frames. This requirement applies both to facilities and to individual healthcare providers.
THE NSA DEFINITION OF A “HEALTHCARE FACILITY”
“A health care facility (facility) means an institution (such as a hospital or hospital outpatient department, critical access hospital, ambulatory surgical center, rural health center, federally qualified health center, laboratory, or imaging center) in any State in which State or applicable local law provides for the licensing of such an institution, that is licensed as such an institution pursuant to such law or is approved by the agency of such State or locality responsible for licensing such institution as meeting the standards established for such licensing.”
THE DEFINITION OF WHO CONSTITUTES AN “UNINSURED OR SELF-PAY” PATIENT
Step 1: To determine if an individual, for NSA purposes, is an uninsured (or self-pay) individual, the provider or facility must ask if the individual is enrolled in a:
- Group health plan;
- Group or individual health insurance coverage offered by a health insurance issuer;
- Federal health care program, or
- Health benefits plan under a Federal Employees Health Benefits (FEHB) Program.
Step 2: If the individual is enrolled in one of these plans, the healthcare facility or individual provider must ask if the individual is seeking to have a claim submitted for the items or services with such plan or coverage.
If a patient is:
- NOT enrolled in any of the above health insurance plans (Step #1); OR
- The patient IS enrolled in such a plan or has coverage through such a plan, BUT indicates to the provider that the patient does not intend to submit a claim for the provider’s services to their plan or coverage (Step #2);
Then, that patient, for NSA purposes, is defined as an “uninsured or self-pay patient.”
The following analysis will provide guidance on the NSA’s Notice and Good Faith Estimates procedures for two different scenarios:
- Scenario 1: A patient has healthcare insurance (as defined above), is seeking or obtaining services at an in-network healthcare facility, but will also receive services from an out-of-network provider at the in-network healthcare facility.
- Scenario 2: A patient is “uninsured or self-pay” (as defined above) and has requested or is obtaining services from a healthcare facility or an individual provider (including patients in private practice).
TRUST ADVICE ON THE SCENARIOS
- Note: The NSA does not clearly specify whether Scenario #2 applies to situations where a patient has health insurance, receives services from an out-of-network provider in a non-facility setting (e.g., independent practice setting/relationship), and expresses the intent to submit a claim to their insurer for out-of-network reimbursement.
- The Trust recommends that, until further guidance emerges, out-of-network providers, who treat patients that have health insurance and express the intent to the provider to submit a claim for these out-of-network services, regard these patients as falling under Scenario #2 and follow the process for notice and GFE.
THE NSA NOTICE REQUIREMENT
General Requirements for All NSA Notices (both Scenario #1 and Scenario #2)
- The NSA requires that both facilities and individual providers post and/or provide NSA Notices to patients who fall into either of these Scenarios.
- NSA Notices must be written in a clear and understandable manner, prominently displayed (and easily searchable from a public search engine) on the provider’s or facility’s website, in the facility’s or provider’s office, and on-site where scheduling or questions about the cost of items or services occur.
- Providers and facilities must provide NSA Notices in accessible formats, and in the language(s) spoken by individual(s) considering or scheduling items or services.
- Providers and facilities must provide the NSA Notice in-person, by mail, or via email, as selected by the individual. The disclosure notice must be limited to one-page (double-sided) and must use a font size of 12-points or larger.
- Health care providers, facilities, plans, and issuers are encouraged to use plain language in their NSA Notice and test the Notice for clarity and usability when possible.
- The NSA Notice should be posted as-is (i.e., providers should use the CMS/HHS created Notice template forms—see below), altering only bracketed areas as indicated, in readable font in a one- or two-page format, and with a clear identifying link to it when posted on a provider’s website. Doing so will cause CMS/HHS to treat the Notice as presumptive good-faith compliance with the NSA Notice requirement.
- TRUST ADVICE: The Trust recommends that providers post both Notices (i.e., Notices for Scenarios #1 and #2) on their website and in their office, but directly provide only the applicable Notice (i.e., the Scenario #1 or #2 Notice) to the patient.
The NSA Notice Requirement for Scenario #1:
- For both in-network healthcare facilities and for out-of-network individual healthcare providers who furnish services to patients at a patient’s otherwise-in-network facility, the NSA requires that the following Notice (or similar) must be posted and/or provided to the prospective or actual patients (available here):
Notice Document = CMS-10780 Appendix III - Model Disclosure Notice Regarding Patient Protections Against Surprise Billing Updated (Surprise Billing Protection Form):
This URL links to the relevant Notice document and provides both instructions and a template two-page form for use in posting and/or providing to patients.
- In general, providers and facilities must give the disclosure notice to individuals who are:
- Participants, beneficiaries, or enrollees of a group health plan or group or individual health insurance coverage offered by a health insurance issuer, including covered individuals in a health benefits plan under the Federal Employees Health Benefits Program, and
- To whom the provider or facility furnishes items or services, but only if such items or services are furnished at a health care facility, or in connection with a visit at a health care facility.
- Providers and facilities should not give these documents to an individual who has Medicare, Medicaid, or any form of coverage other than previously described, or to an individual who is uninsured.
NSA Notice Requirement for Scenario #2:
Reminder: Although current NSA guidance is unclear on this issue, The Trust recommends that, until further guidance emerges, out-of-network providers who treat patients who have health insurance and who express the intent to the provider to submit a claim for these out-of-network services to their insurer, classify these patients as falling within Scenario #2.
For both healthcare facilities and for out-of-network individual healthcare providers who furnish services to NSA-defined patients who are “uninsured or self-pay” patients, the NSA requires that the following Notice (or similar) must be posted and/or provided to the prospective or actual patients:
Scenario #2 Notice Document = CMS-10791 - 1. Right to Receive a Good Faith Estimate of Expected Charges Notice (available here):
This URL links to the relevant Notice document and provides both instructions and a template one-page form for use in posting and/or providing to patients.
- Under the law, health care providers need to give patients who don’t have insurance or who are not using insurance an estimate of the bill for medical items and services.
- You have the right to receive a Good Faith Estimate for the total expected cost of any non-emergency items or services. This includes related costs like medical tests, prescription drugs, equipment, and hospital fees.
- Make sure your health care provider gives you a Good Faith Estimate in writing at least 1 business day before your medical service or item. You can also ask your health care provider, and any other provider you choose, for a Good Faith Estimate before you schedule an item or service.
- If you receive a bill that is at least $400 more than your Good Faith Estimate, you can dispute the bill.
THE NSA GOOD FAITH ESTIMATE REQUIREMENT
General Requirements for All NSA Good Faith Estimates (both Scenario #1 and Scenario #2)
- The Good Faith Estimate document must be given physically separate from and not attached to or incorporated into any other documents. The document must not be hidden or included among other forms, and a representative of the provider or facility must be physically present or available by phone to explain the documents and estimates to the individual, and answer any questions, as necessary.
- The document must meet applicable language access requirements, as specified in 45 CFR 149.420. The provider or facility is responsible for translating the document or providing a qualified interpreter, as applicable, when necessary to meet those requirements.
- The Good Faith Estimate must be provided on paper, or, when feasible, electronically, if selected by the individual or authorized representative. The individual or authorized representative must be provided with a copy of the signed Good Faith Estimate document in-person, by mail or via email, as selected by the individual or authorized representative.
The NSA Good Faith Estimate (GFE) for Scenario #1
Reminder: In Scenario #1, a patient has healthcare insurance and is seeking or obtaining services at an in-network healthcare facility, but will also receive services from an out-of-network provider at the in-network healthcare facility.
Good Faith Estimate Document = CMS-10780 Appendix II - Standard Notice and Consent (Surprise Billing Protection Form):
This URL links to the relevant Good Faith Estimate document for Scenario #1 patients and provides both instructions and a template form for providing GFEs to them.
- HHS considers use of this GFE document in accordance with its instructions to be good faith compliance with the GFE requirements of section 2799B-2(d) of the PHS Act, provided that all other requirements are met.
- To the extent a state develops notice and consent documents that meet the statutory and regulatory requirements under section 2799B-2(d) of the PHS Act and 45 CFR 149.410 and 149.420, the state-developed documents will meet the Secretary’s specifications regarding the form and manner of the notice and consent documents.
- This document may not be modified by providers or facilities, except as indicated in brackets or as may be necessary to reflect applicable state law.
- To use this document properly, the nonparticipating provider or facility must fill in any blanks that appear in brackets with the appropriate information. Providers and facilities must fill out the GFE document completely and delete the bracketed italicized text before presenting the document to patients.
- In particular, providers and facilities must fill in the blanks in the “Estimate of what you may pay” section and the “More details about your estimate” section before presenting the documents to patients.
Good Faith Estimate Time Frames
- If an individual makes an appointment for the relevant items or services at least 72 hours before the date that the items and services are to be furnished, the Notice and GFE documents must be provided to the individual, or the individual’s authorized representative, at least 72 hours before the date that the items and services are to be furnished.
- If the individual makes an appointment for the relevant items or services within 72 hours of the date the items and services are to be furnished, the Notice and GFE documents must be provided to the individual, or the individual’s authorized representative, on the day the appointment is scheduled. In a situation where an individual is provided the Notice and GFE documents on the day the items or services are to be furnished, the documents must be provided no later than 3 hours prior to furnishing the relevant items or services.
- A patient can also ask their facility or health care provider for a GFE before scheduling an item or service.
- If a patient refuses to sign the GFE, the out-of-network provider should, in a non-emergency situation, consider declining to provide services to the patient.
The NSA Good Faith Estimate for Scenario #2:
Reminder: In Scenario #2, a patient is “uninsured or self-pay” (as defined above) and has requested or is obtaining services from a healthcare facility or an individual provider (including patients in private practice).
Good Faith Estimate Document = CMS-10791 - “‘Good Faith Estimate for Health Care Items and Services’ Under the No Surprises Act”
This URL links to the relevant GFE document for Scenario #2 patients and provides both instructions and a template form for providing GFEs to them.
A GFE issued to an uninsured (or self-pay) individual must include:
- Patient name and date of birth;
- Description of the primary item or service in clear and understandable language (and, if applicable, the date the primary item or service is scheduled);
- Itemized list of items or services, grouped by each provider or facility, reasonably expected to be furnished for the item or service;
- TRUST ADVICE:
- Until 01/01/2023, each provider is responsible only for providing their own GFE to the patient.
- Applicable diagnosis codes (a diagnosis code is a code that describes an individual’s disease, disorder, injury, or other related health conditions using the International Classification of Diseases (ICD) code set);
- TRUST ADVICE:
- For continuing patients, we recommend using the diagnosis previously assigned to the patient.
- For new patients, we recommend stating, “To Be Determined (TBD)” or using ICD-10-CM diagnosis code “R69” (“illness, unspecified”).
- Expected service codes (a service code is the code that identifies and describes an item or service using the Current Procedural Terminology (CPT), Healthcare Common Procedure Coding System (HCPCS), Diagnosis-Related Group (DRG) or National Drug Codes (NDC) code sets);
- Expected charges associated with each listed item or service (an expected charge means, for an item or service, the cash pay rate or rate established by a provider or facility for an uninsured/self-pay individual, reflecting any discounts for such individual);
- Name, National Provider Identifier, and Tax Identification Number of each provider or facility represented in the good faith estimate, and the state(s) and office or facility location(s) where the items or services are expected to be furnished by such provider or facility;
- TRUST ADVICE:
- Until 01/01/23, each provider is responsible only for providing their own identifying information (and not that of other providers furnishing services to the patient)
- List of items or services that the provider or facility anticipates will require separate scheduling and that are expected to occur before or following the expected period of care for the primary item or service;
- TRUST ADVICE:
- Providers may want to include in the GFE their charges for foreseeable additional services, such as writing clinical summaries, responding to legal demands (e.g., depositions and trial testimony), etc.
- A disclaimer that informs the uninsured (or self-pay) individual that there may be additional items or services the provider or facility recommends as part of the course of care that must be scheduled or requested separately and are not reflected in the good faith estimate;
- A disclaimer that informs the uninsured (or self-pay) individual that the information provided in the good faith estimate is only an estimate regarding items or services reasonably expected to be furnished at the time the good faith estimate is issued to the uninsured (or self-pay) individual and that actual items, services, or charges may differ from the good faith estimate;
- A disclaimer that informs the uninsured (or self-pay) individual of that individual’s right to initiate the specified dispute resolution process (i.e., PPDR) if the actual billed charges are substantially in excess of the expected charges included in the good faith estimate. This disclaimer must include instructions for where the individual can find information about how to initiate the dispute resolution process and state that the initiation of the dispute resolution (i.e., PPDR) process will not adversely affect the quality of health care services furnished to the individual by a provider or facility;
- TRUST ADVICE:
- Detailed information about the dispute resolution process (i.e., PPDR) can be found in Reference documents #2 and #3 (below)
- A disclaimer that the good faith estimate is not a contract and does not require the uninsured (or self-pay) individual to obtain the items or services from any of the providers or facilities identified in the good faith estimate.
- A good faith estimate issued to an uninsured (or self-pay) individual under this section is considered part of the patient’s medical record and must be maintained in the same manner as a patient’s medical record.
- Providers and facilities must provide a copy of any previously issued good faith estimate furnished within the last 6 years to an uninsured/self-pay individual upon the request of the individual.
- For all providers or facilities that issue good faith estimates following their state’s processes and rules, if those state processes and rules do not meet federal good faith estimate requirements, those providers and facilities have failed to comply with federal good faith estimate requirements.
- TRUST ADVICE:
- Some states have their own rules about providing patients with good faith estimates. Where a state’s rules require less than is required by the No Surprises Act, those state rules are pre-empted, and the NSA takes precedence.
- A provider or facility will not fail to comply with federal good faith estimate requirements solely because, despite acting in good faith and with reasonable due diligence, the provider or facility makes an error or omission in a required good faith estimate, provided that the provider or facility corrects the information as soon as practicable. If items or services are furnished before an error in a good faith estimate is addressed, the provider or facility may be subject to dispute resolution process (i.e., PPDR) if the actual billed charges are substantially in excess of the good faith estimate.
Changes to the scope of the Good Faith Estimate
- If a provider or facility anticipates or is notified of any changes to the scope of a good faith estimate (such as anticipated changes to the expected charges, items, services, frequency, recurrences, duration, providers, or facilities) previously furnished at the time of scheduling, the provider or facility must provide the individual with a new good faith estimate no later than 1 business day before the items or services are scheduled to be furnished.
Good Faith Estimate for Recurring Items or Services (such as for ongoing psychotherapy)
A provider or facility may issue a single GFE for recurring primary items or services if both of the following requirements are met:
- The GFE for recurring items or services includes, in a clear and understandable manner, the expected scope of the recurring primary items or services (such as timeframes, frequency, and total number of recurring items or services);
- The scope of a GFE for recurring primary items or services does not exceed 12 months. If additional recurrences of furnishing such items or services are expected beyond 12 months, a provider or facility must provide an uninsured (or self-pay) individual with a new GFE, and communicate such changes (such as timeframes, frequency, and total number of recurring items or services) upon delivery of the new GFE to help patients understand what has changed between the initial GFE and the new GFE.
Scenario #2 Good Faith Estimate Timeframes
Providers and facilities must provide a GFE to uninsured (or self-pay) individuals within the following timeframes:
- When a primary item or service is scheduled at least 3 business days before the date the item or service is scheduled to be furnished, the GFE must be provided no later than 1 business day after the date of scheduling.
- When a primary item or service is scheduled at least 10 business days before such item or service is scheduled to be furnished, the GFE must be provided no later than 3 business days after the date of scheduling.
- When a GFE is requested by an uninsured (or self-pay) individual, the good faith estimate must be provided no later than 3 business days after the date of the request.
TRUST ADVICE (GFE Scenario #2):
In completing the Scenario #2 GFE that will be given to the applicable patient, our advice is:
- To note your ongoing session fee and indicate that the ultimate total fee for treatment services will be the number of sessions multiplied by the ongoing session fee.
- Include a statement that notes that the number of total sessions in the treatment is unknown at the outset and is based on the patient’s needs, preferences, and the progress made in the treatment.
- If the total number of sessions can reasonably be predicted (e.g., when a provider furnishes a set number of sessions as part of a standardized time-limited treatment), then the provider should base the GFE on that predicted number of sessions.
- Document the patient’s agreement with and acceptance of the GFE
- A GFE is good for twelve months, unless circumstances change. At the end of twelve months, the provider should issue a new GFE for appropriate patients.
NSA NOTICE AND MAINTENANCE OF PROVIDER DIRECTORY LISTING
Provider Directory Listing: The NSA contains yet another provision that requires that in-network healthcare providers keep their insurance-company directory listing up-to-date.
Any health care provider or health care facility that has a contractual relationship with an insurance company (i.e., who is ‘in-network’ for that company’s insurance plans):
- An in-network provider must submit correct provider directory information to the health insurance company, at a minimum of the following times:
- At the beginning of the in-network agreement with the health insurance company;
- At the time of termination of an in-network agreement with a health insurance company;
- When there are material changes to the content of the provider’s directory information;
- Upon request by the plan or issuer, and
- At any other time determined appropriate by the provider or HHS.
- Any health care provider or health care facility that has or has had a contractual relationship with a plan or issuer to provide items or services under such plan or insurance coverage must reimburse in-network patients who relied on an incorrect provider directory and who paid a provider bill in excess of the in-network cost-sharing amount.
- This provision means that if a provider gives, or fails to correct, incorrect information about their in-network/out-of-network status, and a patient mistakenly relies, as a result, on this mistaken information, the provider must refund all monies paid by the patient in excess of the in-network amount. In other words, make sure that if you leave an in-network insurance panel, the insurance company deletes you from their list of ‘in-network’ providers and you document your request to be deleted. Similarly, make sure that all of your materials correctly identify your status (i.e., correctly specify whether you are in-network or out-of-network for any particular insurance plan).
USEFUL NSA REFERENCES
- 45 §149.610 Requirements for provision of good faith estimates of expected charges for uninsured (or self-pay) individuals.
- Guidance on Good Faith Estimates and the Patient-Provider Dispute Resolution (PPDR) Process for Providers and Facilities as Established in Surprise Billing, Part II; Interim Final Rule with Comment Period (CMS 9908-IFC).
- Learn more about the Good Faith Estimate and the Patient-Provider Dispute Resolution (PPDR) process for people without insurance or who plan to pay for the costs themselves.