Insights

Published November 2, 2021

No Surprises Act Implementation Guide:  Good Faith Estimate Requirements

No Surprises Act Implementation Guide

This is the second installment of PYA’s No Surprises Act Implementation Guide. Subsequent installments will address medical staff communications and claims submission.

As part of the September 30, 2021, Interim Final Rule, the Department of Health and Human Services (HHS) promulgated regulations implementing the No Surprises Act’s (NSA) requirement that providers furnish certain notices and good faith estimates (GFEs) to self-pay patients in specified circumstances. Unlike the NSA’s provisions prohibiting surprise billing for certain services furnished in specified facilities (i.e., hospitals, freestanding emergency departments, and ambulatory surgery centers), the GFE requirements apply to a much broader category of providers furnishing items or services for self-pay patients.

Specifically, these requirements apply to (1) “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, including a provider of air ambulance services;” and (2) “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 licensing of such an institution. . . . ” These individuals and entities are collectively referred to as “providers” herein.

Effective January 1, 2022, a provider must furnish a self-pay patient with the notice and GFE prior to all scheduled services or by request if the patient is shopping for care (and not yet at the point of scheduling). This includes, but is not limited to, office visits, therapy, diagnostic tests, infusions, and surgeries.

Who qualifies as a self-pay patient?

A provider’s duty to provide notice and a GFE applies to self-pay patients, i.e., an individual who (1) does 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, federal healthcare program, or a health benefits plan; or (2) chooses not to use his or her coverage benefit for the item or service.

Individuals enrolled in short-term, limited-duration health plans or other types of products not regulated as health insurance coverage (e.g., health-sharing ministries) are considered self-pay patients.

If an individual’s plan or coverage provides no benefit for out-of-network services, the individual would be a self-pay patient for any out-of-network provider. If, however, the plan or coverage provides a limited benefit (e.g., higher co-insurance items or services furnished by out-of-network providers), the individual would not be a self-pay patient (unless the individual chose not to use such coverage benefit for the item or service).

What triggers a provider’s duty to provide the required notice and a GFE?

A “convening provider”—i.e., the provider that (1) is responsible for scheduling the primary item or service (defined as “the initial reason for the visit”),  or (2) receives a request from an individual shopping for an item or service)—must determine at the time an item or service is scheduled or when a patient is shopping for care whether the patient is a self-pay patient, as defined above. This includes inquiring as to whether an individual with a plan or coverage intends “to have a claim submitted for the primary item or service with such plan or coverage.”

The regulations require providers to “consider any discussion or inquiry regarding the potential costs of items or services under consideration” as an individual shopping for such items or services.

Generally speaking, a provider will be the convening provider for those items and services the provider schedules to be performed at the provider’s physical location (e.g., an office visit at a physician practice, test to be performed at an imaging center). Things become more complicated when the provider schedules an item or service to be performed at another location with the provider’s involvement (e.g., a physician scheduling a surgery to be performed in an ambulatory surgery center). For these cases, the involved providers (e.g., the physician practice and the surgery center) should discuss and decide their respective responsibilities.

Typically, a “co-provider” (i.e., a provider other than the convening healthcare provider that provides care in conjunction with the primary item or services [e.g., radiologist, clinical laboratory]), would not be required to make such determination, unless the individual separately schedules an item or services with, or makes a request to, such co-provider. In such a case, the co-provider would be subject to the same requirements as the convening provider.

What notice must be provided?

A convening provider is responsible for orally informing all self-pay patients of the availability of a GFE of expected charges when the scheduling of an item or service occurs, or when questions about the cost of items or services arise.

Additionally, any provider (including both convening providers and co-providers) must prominently display a notice “written in a clear and understandable manner” on its “website, in the office, and on-site where scheduling or questions about the cost of items or services occur.”  Such written notice must be made available in accessible formats in compliance with nondiscrimination laws. HHS “anticipates providing a model notice” for this purpose, although its use will not be mandated.

The Centers for Medicare and Medicaid Services (CMS) has published a model notice for this purpose, available here (included in the ZIP file as Appendix 1).  The use of this model notice is not mandated, but CMS will consider its use good faith compliance with the notice requirement.      

What information must be included in the GFE?

Upon request from a self-pay patient, the convening provider must transmit a GFE to the individual in written form, either on paper or electronically, based on the individual’s preference. Even if the patient requests the GFE be furnished by phone or orally in person, the convening provider still must issue the GFE in written form.

Each GFE must include the following:

  • Patient’s name and date of birth
  • Description of the primary item or service
  • Itemized list of other items or services reasonably expected to be provided with the primary item or service during the period of care (i.e., the time during which the primary service and all related items and services that would not be scheduled separately are provided) grouped by the convening provider and each co-provider (see following section regarding co-providers’ duties to furnish specified information)
  • Applicable diagnosis and expected service codes, with expected charges listed for each item or service
  • Name, National Provider Identifier (NPI), and Taxpayer Identification Number (TIN) of each provider included in the good faith estimate, and the state and location where the items/services are expected to be furnished
  • List of items/services the convening provider anticipates will require separate scheduling, before or after the primary service, with a disclaimer directly above the list stating that separate good faith estimates will be issued to the patient upon scheduling or request.
  • Required disclaimers:   
    • There may be additional items or services the convening provider recommends as part of the course of care that must be scheduled or requested separately and are not included in the GFE.
    • The information provided in the GFE at the time it is given to the individual is only an estimate regarding items or services reasonably expected to be furnished, and actual items, services, or charges may differ.
    • The individual has the right to initiate the patient-provider dispute resolution process if the actual billed charges are substantially in excess of the expected charges included in the GFE. The disclaimer must include instructions for learning more about the process along with a statement that initiation of the process will not adversely impact the quality of care furnished to the individual.
    • The GFE is not a contract and does not require an individual to obtain the item or services from any of the providers listed in the GFE.

CMS has published a standard form for providers to use in providing GFEs and an explanation of the specific data elements to be included in the estimate, available here (included in the ZIP file as Appendices 2 and 11). Again, use of the standard form is not mandated, but CMS will consider its use good faith compliance with the requirement to inform an individual of expected charges. 

What are the duties of co-providers?

Within one business day of scheduling or receiving a request, the convening provider must contact all co-providers who are reasonably expected to provide items or services in conjunction with and in support of the primary item or service, requesting submission of the information necessary for the convening provider to complete the GFE. The request must include the date by which the information must be received by the convening provider (see the following section).

The regulations require a co-provider to deliver the following information to the convening provider no later than one business day following receipt of the request:

  • Patient’s name and date of birth
  • Itemized list of items or services reasonably expected to be furnished by the co-provider in conjunction with the primary item or service as part of the period of care
  • Applicable diagnosis codes, expected services codes, and expected charges associated with each listed item or service
  • Name, NPI, and TIN of the co-provider and the state and office or facility location where the items or services are expected to be furnished by the co-provider
  • Disclaimer that the GFE is not a contract and does not require the self-pay patient to obtain items or services from any of the co-providers listed in the GFE

A co-provider must notify and provide updated information to a convening provider if the co-provider anticipates any changes to the information previously submitted to the convening provider. This may include “changes to expected charges, items, services, frequency, recurrence, providers, or facilities.”

If there is any change in the expected co-providers listed in the GFE less than one business day before the item or service is scheduled to be furnished (e.g., an anesthesiologist from a different practice is scheduled to participate), the replacement co-provider must accept the expected charges furnished by the original co-provider. 

With the publication of the September 30 Interim Final Rule, HHS announced that for the period January 1, 2022, to December 31, 2022, the agency will exercise its enforcement discretion in cases in which the GFE provided to a self-pay patient does not include expected charges from co-providers. In doing so, HHS acknowledged “that it may take time for providers and facilities to develop systems and processes for providing and receiving the required information from others.” As a practical matter, therefore, a convening provider is not required to request, and a co-provider is not required to provide, information for inclusion in the GFE until 2023.

What is the timing for delivering the GFE?

  • When a GFE is requested by a self-pay patient (i.e., nothing has yet been scheduled), the convening provider must furnish the GFE to the patient no later than three business days after the date of the request.
  • If the primary item or service is scheduled at least 10 business days before such item or service is scheduled to be furnished, the convening provider must furnish the GFE to the patient no later than three business days after the date of scheduling.
  • If the primary item or service is scheduled between three and nine business days before such item or service is scheduled to be furnished, the convening provider must furnish the GFE to the patient no later than one business day after the date of scheduling.
  • If the primary item or service is scheduled less than three days before such item or service is scheduled to be furnished, the convening provider is not required to deliver a GFE.

What if something changes between the delivery of the GFE and the scheduled event? 

A convening provider must provide a new GFE if the convening provider anticipates or is notified of any changes to the scope of the GFE previously furnished to a self-pay patient. The new GFE must be issued to the patient no later than one business day before the items or services are scheduled to be furnished. 

A GFE issued to a self-pay patient who was shopping for an item or service must be updated once the item or service is scheduled within the time frame listed in the previous section. 

Do the notice and GFE have to be provided every single time an item or service is scheduled?

The regulations permit a convening provider to issue a single GFE for recurring primary items or services for a period not to exceed 12 months. Such GFEs must include, in a clear and understandable manner, the expected scope of the recurring items or services (e.g., time frame, frequency, total number of recurrences). After 12 months, the convening provider must issue an updated GFE and communicate the changes to the self-pay patient.

What are the consequences of not providing the notice and/or the GFE when required to do so?

The proposed rule addressing NSA enforcement was published September 16, 2021. It specifies the investigatory process and the imposition of civil money penalties of up to $10,000 per violation. Comments on the proposed rule were due October 18. The final rule should be published within the next few months.

What are the consequences of providing inaccurate information in the GFE? 

If the actual billed charges received by the self-pay patient are at least $400 more than the total amount of expected charges listed on the GFE, the self-pay patient may initiate the patient-provider dispute resolution process by submitting a notification to HHS. The matter is then presented to a Selected Dispute Resolution (SDR) entity. If the SDR entity determines the provider should have known the information provided was not accurate, it will adjust the billed charges accordingly (including requiring no payment for any service not properly listed on the GFE). 

Will providers eventually be required to provide GFEs to patients enrolled in a health plan or coverage?

In an August 20, 2021, guidance document, HHS advised  as follows: 

[G]iven the complexities of developing the technical infrastructure for transmission of the necessary data from providers and facilities to plans and issuers, HHS recognizes that compliance with this section related to individuals who are enrolled in a health plan or coverage and are seeking to have a claim for the scheduled items or services submitted to the plan or coverage is likely not possible by January 1, 2022. Accordingly, until rulemaking to fully implement this requirement to provide such a good faith estimate to an individual’s plan or coverage under is adopted and applicable, HHS will defer enforcement of the requirement that providers and facilities provide good faith estimate information for individuals enrolled in a health plan or coverage and seeking to submit a claim for scheduled items or services to their plan or coverage.

So now what? 

With these new requirements effective January 1, 2022, providers need to move quickly to ensure compliance with the GFE requirements.  We recommend the following:

  1. All providers should post the required notice for self-pay patients on their websites and at their physical locations (similar to the HIPAA Notice of Privacy Practices). At the same time, a provider should post the separate required notice regarding surprise billing for out-of-network services. (HHS has posted a model notice regarding surprise billing for providers’ use. The first installment of our NSA Implementation Guide addressing the surprise billing notice requirements is available here.)
  2. Any provider that may qualify as a convening provider should evaluate and revise its registration processes as needed to identify and provide the required notice to self-pay patients.
    At the same time, a provider should revise its processes to ensure delivery of the surprise billing notice to those patients identified as participants, beneficiaries, or enrollees of a group health plan or group or individual health insurance coverage offered by a health insurance issuer (other than federal health program beneficiaries). Keep in mind some patients will receive both notices (i.e., a patient with coverage who elects not to use that coverage for a specific item or service).
  1. Such provider should establish a process for queuing GFEs for completion and delivery following the scheduling of an item or service for a self-pay patient or the receipt of a request from a self-pay patient shopping for an item or service.
  2. Such provider should generate a standard form to use in providing a good faith estimate of its expected charges. We assume providers will take advantage of the delayed enforcement of co-provider requirements, and thus only the convening provider’s expected charges would be included in 2022.
  3. Such providers should assign an appropriate individual the responsibility for receipt of requests for, and generation and delivery of, GFEs in compliance with regulatory requirements. The processes this individual must follow should be captured in a formal policy and procedure.
  4. If appropriate, such provider should develop “standard” GFEs for more common items and services furnished by the provider to self-pay patients.

Additional work will be required over time, such as establishing procedures related to the SDR process. And, by January 1, 2023, providers will need to be prepared to submit and respond to requests for co-provider information.

For assistance with NSA compliance, contact a PYA executive below at (800) 270-9629.

Executive Contacts

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