Surprise! Are you ready for the No Surprises Act? What You Need to Know

For many years patients have complained about getting surprise bills when they receive treatment at an in-network facility but then find out that some of their providers were out of network. In response Congress passed the No Surprises Act as part of the Consolidated Appropriations Act of 2021. The Department of Health and Human Services (HHS) has issued regulations implementing the Act, which take effect on January 1, 2022.  These rules require that emergency services must be covered at in-network rates and ban balance billing and out-of-network cost sharing for emergency and some non-emergency services, and for charges by out-of-network providers at an in-network facility. The rules about billing for out-of-network emergency services are complex and controversial and have already prompted a federal court challenge.

If your practice does not provide emergency services, you may have thought you do not need to worry about the No Surprises Act. Surprise! You probably do – starting January 1, 2022. One part of the regulations issued under the No Surprises Act requires that a health care provider who schedules an uninsured or self-pay patient for any service must provide a good faith estimate of expected charges. Here is what you need to know:

Health care providers must ask if the patient is enrolled in a health plan, and if the patient is enrolled, if the patient seeks to have the claim submitted to insurance. If the patient is uninsured or does not wish to bill insurance for the service, the provider must inform the patient/representative that they can obtain a good faith estimate of expected charges. Information about the availability of an estimate must also be displayed on the provider’s website and in the office, in languages spoken by patients.

What the good faith estimate must include:

• Patient name and date of birth
• Description of the primary item or service, and date scheduled if applicable
• Itemized list of items or services furnished for or in conjunction with the primary item or service
• Diagnosis codes, service codes and expected charges
• Name, NPI and TIN of each provider or facility included in the estimate and location where the services will be provided
• List of items or services requiring separate scheduling before or following the primary service, with a disclaimer stating that separate estimates will be issued for these services upon scheduling or patient request
• Disclaimer stating that there may be additional services recommended as part of the course of care that are not reflected in the estimate
• Disclaimer stating that actual charges may differ from the estimate
• Disclaimer stating that the patient/representative may initiate a dispute resolution process if the actual billed charges are substantially in excess of the estimate, and instructions for where the patient/representative can find information about this process
• Disclaimer stating that the good faith estimate is not a contract and does not obligate the patient to obtain the services.

When the good faith estimate must be given:

• If the service is scheduled three business days in advance, the estimate must be given within one business day after scheduling
• If the service is scheduled 10 business days in advance, the estimate must be given within three business days after scheduling
• If the estimate is requested by a patient/representative, the estimate must be given within three business days.

Methods for providing the good faith estimate:

• In writing, on paper or electronically as requested by the patient/representative. If the patient/representative requests information orally, information can be provided orally if followed up by the written form. The notice must be included in the medical record.

Finally, the preparation of a good faith estimate is complicated because the provider scheduling the primary service must include the items or services furnished by other providers at the same time. As an example, the Department of Health & Human Services (HHS) explained that an orthopedic surgeon scheduling a knee surgery would need to include estimates from the facility, anesthesia, prescription drugs and durable medical equipment. Because providing this consolidated estimate is complicated, HHS has stated it will use discretion in enforcing this requirement for the first year.

For further information contact us.