Beginning in 2022, the No Surprises Act imposed a variety of new requirements on healthcare providers, facilities, plans and insurers designed to keep patients from receiving “surprise” medical bills. Through a series of interim final rules with comment period issued in 2021, the U.S. Departments of Health and Human Services (HHS), Labor and the Treasury implemented various regulatory requirements stemming from the No Surprises Act. While not all requirements will apply to ACOFP members, there are important requirements to know.
Surprise Billing Protections
The protections limit cost-sharing for out-of-network services to in-network levels in three situations:
- Emergency services
- Non-emergency services at an in-network facility, unless notice is given and consent obtained (Note: The notice and consent exception is not available for certain ancillary services.)
- Air ambulance services
In other words, the surprise billing protections apply only to items and services rendered at or in connection with applicable facility types and air ambulances, and only to participants, beneficiaries and enrollees of a group health plan or with coverage offered by a health insurance issuer.
As a facility-based requirement, office-based or physician practices are not subjected to the general surprise billing prohibition. Individual physicians with privileges at another facility subjected to these requirements, however, would be subject to the surprise billing requirements.
Good Faith Estimates for Uninsured and Self-Pay Individuals
In contrast to the surprise billing requirements, the requirement to provide a good faith estimate of expected charges applies to all healthcare providers and all healthcare facilities, without apparent limitation. Further, unlike other surprise billing regulations that only apply to patients with health plan coverage, the good faith estimate requirement extends to uninsured and self-pay individuals as well. While there are regulations regarding the uninsured and self-pay patients, good faith estimate rules for patients who plan to submit health insurance claims have not been finalized. Thus, ACOFP’s private practice members will have to comply with the good faith estimate requirements as they apply to the uninsured and self-pay individuals and may be subjected to additional requirements related to insured individuals.
Estimate Requests and Requirements
Timeframes
Under the requirements for the uninsured and self-pay patients, any healthcare provider or healthcare facility subject to state licensure, upon scheduling an item or service or upon request, must provide a good faith estimate of expected charges within the following timeframes:
- If the item or service is scheduled at least 10 business days in advance, no later than three business days after the date of scheduling
- If the item or service is scheduled at least three business days in advance, no later than one business day after the date of scheduling
- If the individual requests such information, no later than three business days after the date of the request
- If the item or service is scheduled fewer than three business days in advance, an individual may still request an estimate but no requirement is triggered
Communication Methods
The good faith estimate must be provided in either paper or electronic form as requested. If provided electronically, the format must be such that the patient can both save and print. Good faith estimates are considered part of the patient’s medical record and must be maintained in the same manner.
A notification of estimate availability must be prominently displayed on the website of the provider/facility responsible for scheduling the item or service (and easily searchable from a public search engine), in the office and on-site where scheduling or questions about the cost of items or services occur. Additionally, such notice must be provided orally during scheduling or when discussing costs of items and services. Notice of the good faith estimate must be made available in accessible formats and languages. The providers/facilities responsible for scheduling are required to consider any discussion or inquiry about the potential costs of items or services under consideration as a request for a good faith estimate.
Scope Expectations and Changes
Changes in expected scope of services represented in a good faith estimate must be communicated to the patient through a new good faith estimate provided to the patient no later than one business day before the scheduled services. If any changes in expected providers/facilities represented in a good faith estimate occur less than one business day before the item or service is scheduled to be furnished, the replacement provider/facility must accept as its good faith estimate that of the replaced provider/facility. If a good faith estimate was provided to an uninsured or self-pay individual upon request, a new good faith estimate must be provided upon subsequent scheduling. A convening provider/facility may issue a single good faith estimate for recurring primary items or services if certain requirements are met.
The good faith estimate must include expected charges from all providers/facilities that are reasonably expected to furnish the items or services that would be billed to the uninsured or self-pay individual. However, between January 1, 2022 and December 31, 2022, this requirement will not be enforced, in recognition that more time may be necessary to establish systems and processes for coordination.
Patient Disputes
Finally, there is a process for patients to dispute provider charges that substantially exceed a good faith estimate. “Substantially in excess” is defined as the billed amount being at least $400 more than the total amount of expected charges. HHS plans to create an online portal for patients to initiate this process but will also provide paper formats. Under this patient dispute resolution process, a selected dispute resolution entity assigned by HHS will review any documentation submitted by the patient and provider or facility and will make a separate determination for each unique item or service charged. The parties may also agree to settle the payment amount during the dispute resolution process before the payment determination is made. Furthermore, the HHS secretary may determine that a state law dispute resolution process meets or exceeds the requirements for dispute resolution and defer to the state process.
Key Action Steps and Resources
ACOFP members should first determine whether they are subject to the balance billing requirements, remembering that these requirements generally do not apply to office-based physicians. In addition, physicians should be prepared to comply with the good faith estimate requirements, including the various notice and disclosure requirements, and in situations where the good faith estimate amount changes between the time it was initially provided and upon scheduling.
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