No Surprises Act: Frequently Asked Questions – Volume 2 | Dentons

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In 2020, Congress passed the No Surprises Act (NSA) in an attempt to protect patients from surprise billing. Some sections of the NSA became effective January 1, 2022, while other sections are on hold until regulations are released. See this post for a general NSA overview.

This weekly series will provide answers to frequently asked questions regarding the NSA. The first FAQ installment answered general questions and focused on the requirement to notify patients of their NSA protections.

The second installment focuses on the applicability of good faith estimates. Check back in next week for the timing and logistics of good faith estimates.

Health care providers who would like to submit a question for inclusion in a future FAQ installment should email susan.freed@dentons.com

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Good Faith Estimates- Applicability

Which patients are entitled to a Good Faith Estimate?

Effective January 1, 2022, any self-pay or uninsured patient who schedules an item or service three or more business days in advance must be provided with a Good Faith Estimate (“GFE”).  This includes insured patients who are either receiving non-covered services for which a claim will not be billed to insurance or who have requested a claim not be billed to insurance and are requesting to personally pay for the service instead of insurance.

How do I know whether the patient is self-pay or uninsured?

At the time of scheduling, providers have an obligation to inquire with the patient to whether the patient is uninsured or is scheduling a service that will not be billed by the provider to the patient’s insurer. The provider must inform all uninsured and self-pay patients of the availability of the GFE upon scheduling or request.       To determine if a patient is uninsured or self-pay the provider must ask if the patient is enrolled in a group health plan, commercial or individual health insurance, government health care program such as Medicare or Medicaid, or benefits under the Federal Employee Health Benefits program.

In addition, schedulers should inquire with the patient regarding whether they are wanting the service being scheduled to be billed to the patient’s insurer. If the answer to either question is “no,” the patient should be considered subject to the GFE requirements.

If the provider is out-of-network with the patient’s insurer, is the patient considered self-pay for purposes of the GFE requirement?

In this scenario, the patient has insurance coverage; however, the provider is an out-of-network provider. Based on the interim final rule, as long as the patient is not requesting to pay the claim directly without having it billed to insurance, we do not view this patient as self-pay entitling them to a GFE.  Note, however, that other NSA protections may apply, such as the prohibition on balance billing patients for out-of-network services provided at in-network facilities without their notice and consent.

What providers are required to provide a GFE to self-pay/uninsured patients?

All health care providers and facilities must provide self-pay or uninsured patients with a good faith estimate if the patient schedules the service three or more business days in advance.  This includes not just health care facilities, such as hospitals, ASCs, and critical access hospitals, but also other providers such as medical practices, behavioral and mental health providers, rural health clinics, and federally qualified health care centers.

What if multiple independent providers are involved in the service being scheduled? Must the GFE include the charges for all providers involved in the service?

Yes, however, for 2022, only the scheduling provider (referred to as the “convening provider”) may include only its charges in the GFE.  The patient is, however, entitled to a GFE from the other providers (referred to as “co-providers”) if the patient contacts them and specifically requests one.  Starting on January 1, 2023, the convening provider will be required to include the charges of all co-providers for the item/service being scheduled in its GFE so that the patient receives one GFE listing all providers involved in the item/service.

Are any services, such as cosmetic or mental health services, exempt from the GFE requirements?

No. The GFE is required for any health care item or service scheduled for a self-pay patient three or more business days in advance. There is currently no exclusion for services that are not medically necessary or specifically excluded from the patient’s insurance coverage, such as cosmetic services.

Must urgent care centers and walk-in clinics provide GFEs?

GFEs are only required for items/services scheduled three or more business days in advance by the self-pay/uninsured patient. Urgent care and walk-in clinics rarely book appointments three or more business days in advance; therefore, it is unlikely the GFE requirement will apply very often in this context. However, if the urgent care or walk-in clinic treats an uninsured patient and recommends the patient schedule a follow-up appointment with them in one week, the GFE would apply to the follow-up appointment since it is scheduled three or more business days in advance.

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