No Surprises Act: Billing Disclosures Requirements

The No Surprises Act established new protections and disclosure requirements against surprise medical billing went into effect on January 1, 2022. In the final days of 2020, Congress enacted and the President signed into law the No Surprises Act as part of the omnibus pandemic spending relief bill. Federal agencies published Part I and Part II final interim rules and a third interim proposed rule. The new law requires healthcare providers and facilities to provide Good Faith Estimates to uninsured, out-of-network, or self-paying clients for services offered when scheduling care or when the client requests an estimate.

What providers and covered services concerning Good Faith Estimates does the No Surprise Billing Act apply to? 

Marriage and Family Therapists meet the definition for provider. The Interim Final Rules define the term ‘‘health care provider’’ to mean a physician or other health care provider who is acting within the scope of practice of that provider’s license or certification under applicable state law. Items and services for which the good faith estimate must be given must include all encounters, procedures, medical tests, substance use disorder, mental health, and fees (including facility fees), provided or assessed in connection with the provision of health care.

What are my requirements under the Act?

Larger group practices and facilities will need to consult from their compliancy department as complex rules will apply to billing practice when an in-network group or facility provides emergency services or ancillary services to out of network insured clients. MFTs must discuss fees with clients before treatment. The Interim Final Rule Part II requires providers and facilities to furnish a good faith estimate of expected charges to uninsured and self-pay individuals upon their request and at the time of scheduling the health care services. To comply with the Good Faith Estimate requirements, all non-insured or self-paying individuals must be provided with a Good Faith Estimate. Non-insured or self-paying individuals are defined as clients who:

• Do not have benefits for an item or service under a group health plan, group or individual health insurance coverage offered by a health insurance issuer or a federal or state health care program or the Federal Employee Health Benefits Program;
• Do have benefits for an item or service under a group health plan, or individual or group health insurance coverage offered by a health insurance issuer, but do not seek to submit a claim for such item or service; or
• Are enrolled in short-term, limited-duration insurance, but are not also enrolled in a group health plan, group or individual health insurance coverage offered by a health insurance issuer, federal or state health care program, or the Federal Employee Health Benefits Program.

Please note: As of December 2023, the Interim Rules does not address whether a Good Faith Estimate must be provided to a client who is insured in a health plan and does intent to submit a claim to insurance. The Department may enact future rules to address this issue at a later time.

What are my next steps? 

Marriage and Family therapist should follow these steps for their uninsured or self-pay clients:

1. Ask the client whether they have any health insurance coverage including government insurance programs e.g. Tricare, Medicaid, Medicare etc. If yes, ask the client whether the client intends to submit a claim to insurance for the service.

2. If a client is not insured or does not intent to submit a claim to insurance, you must furnish a Good Faith Estimate to the client.

3. If a Good Faith Estimate is required to be furnished, the MFT must notify the client both orally and in writing that a Good Faith Estimate will be provided upon scheduling or request. This requires the provider to:
a. Inform the client in a clear and concise written document notice of the right to receive a Good Faith Estimate (MFTs may use the Standard Notice form) ;
b. orally provide notice of the Good Faith Estimate when service is scheduled or when the patient asks about cost;
c. Make the notice available in accessible formats and languages; and
d. Prominently display the notice on the convening provider’s or facility’s website, in the office, and on-site where scheduling or questions about the cost of items and/or services typically occurs

The Centers for Medicare and Medicaid Services (CMS) has published a Standard Notice : “Right to Receive a Good Faith Estimate of Expected Charges” that can be used to fulfill the written right to notice requirement.

4. Provide the Good Faith Estimate to the covered client for a requested or scheduled service.

Do I have to publish or display the Right to Receive a Notice a Good Faith Estimate? 

Yes, all providers must prominently display the notice on the convening provider’s or facility’s website, in the office, and on-site where scheduling or questions about the cost of items and/or services typically occurs. You may use the CMS standard notice to satisfy this requirement.

You may use the CMS standard notice to satisfy this requirement.

What information must be included in the Good Faith Estimate?

The Good Faith Estimate must include the following information:

1. Client’s name and date of birth;
2. A clear description of the primary item or service and, if applicable, the date the primary item or service is scheduled;
3. Itemized list of items or services, grouped by each provider or facility, reasonably expected to be provided for the primary item or service, and items or services reasonably expected to be furnished in conjunction with the primary item or service, for that period of care;
4. Applicable diagnosis codes, expected service codes and expected charges associated with each listed item or service;
5. Name, NPI and TIN 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;
6. List of items or services that the convening provider or convening 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;
7. Disclaimers that there may be additional items or services the convening provider/facility recommends that must be scheduled or requested separately;
8. Must state that the information provided in the Good Faith Estimate is only an estimate of items or services reasonably expected to be furnished at the time the Good Faith Estimate is and that actual charges may differ;
9. Must state that the client has the right to initiate the client-provider dispute resolution process if the actual billed charges are substantially in excess of the expected charges included in the Good Faith Estimate; and
10. Must state 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.

CMS has published a standard Good Faith Estimate template that provider may use. Please see Appendix 2 titled Good Faith Estimate Template.

What is the timeframe for providing the Good Faith Estimate?

The Good Faith Estimate must be provided within:

1. If a service is scheduled at least three (3) days in advance, the Good Faith Estimate must be provided not later than one (1) business day after the date of scheduling;
2. If a service is scheduled at least ten (10) days in advance, the Good Faith Estimate must be provided not later than three (3) business days after the date of scheduling;
3. If the Good Faith Estimate is otherwise requested by an uninsured or self-pay individual, the Good Faith Estimate must be provided not later than three (3) business days after the request.

MFTs must also provide updated a Good Faith Estimate if any changes are made to the scope of the original Good Faith Estimate. The updated Good Faith Estimate must be provided at least one (1) business day before the services are scheduled to be provided. If a provider and/or facility provided a Good Faith Estimate to an individual upon request, the provider and/or facility must provide a new Good Faith Estimate at the time the services are scheduled, regardless of whether or not the information has changed. If either the expected provider or facility is changed less than one (1) business day before the service is scheduled to be furnished, the replacement provider or facility must accept the original Good Faith Estimate provided as its own Good Faith Estimate.

How does this apply to my current clients before enacting of this act? 

The Interim Final Rules do not distinguish between current and pre-established clients. Therefore, it is presumed that the regulations also apply to pre-established current clients.

Do the notice and the Good Faith Estimate need to be provided each session or may it be used continuously? 

The Interim Final Rules permit a convening provider to issue a single notice and Good Faith Estimate for recurring services and items not to exceed 12 months. The Good Faith Estimate must include the scope of the reoccurring services such as frequency, time length, or recurrences etc.). After the 12 months period, the provider must reissue an updated Good Faith Estimate to the client. Examples of statements on the Good Faith estimates that may satisfy the recurring 12 months exceptions include the following:

• I expect treatment/care will be required for continued weekly sessions from (DATE) to (DATE), at $X per session for a total of (X WEEKS) excluding holidays, vacations, and unanticipated/unforeseen cancellations., or
• Depending on treatment progress, I expect there to be a total of 10 to 20 sessions this year, at $X per session for a total of (Amount total per 10 to 20 sessions).

What are the penalties for non-compliance?

MFTs who fail to comply with the No Surprises Act may be subject to penalties and repayment requirements by the Department for Health and Human Services (HHS) .” Enforcement includes civil monetary penalties up to $10,000.

Are the Good Faith Estimates binding?

Good Faith Estimates are only estimates for services or items provided and actual charges may differ from the Good Faith Estimate. However, if a bill is “substantially in excess” of the Good Faith Estimate (at least $400 more than the total amount of expected charges listed in the Good Faith Estimate), the covered individual may then seek a determination from a selected dispute resolution entity to determine the amount to be paid by the individual to the provider or facility for such items or services.

I heard that the No Surprises Act also restricts balance billing. Can you explain this to me? 

The No Surprises Act contains many provisions. Under this new law, most out-of-network providers will no longer be able to balance bill clients for emergency services or out-of-network care during a visit to an in-network facility. This particular restriction will likely only impact MFTs working in larger group practices and facilities. MFTs working in those settings should consult with their legal or compliance department pertaining to this complex rule.

List of Sample Forms Developed by the Federal Government

How can I learn more about the requirements for providers under the No Surprise Act? 

For additional information, please visit these websites:

Government

• Centers for Medicare and Medicaid Services: https://www.cms.gov/nosurprises
• U.S. Department of Labor: https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/nosurprises-act

Other

• Center on Health Insurance Reforms at Georgetown University: https://www.cms.gov/nosurprises
• Kaiser Family Foundation: https://www.kff.org/health-reform/issue-brief/no-surprises-act-implementation-what-to-expect-in-2022/