No Surprises Act

12/20/2022 Update

The following documents were shared in the 12/14/22 webinar. 

Good Faith Estimate Template (simple)

Good Faith Estimate Template (complex)

Good Faith Estimate Notice Template

Good Faith Estimate Notice Maryland Specific Language - For Maryland offices, you can print and post 

Tracking Spreadsheet

3/31/2022 Update

Thank you to everyone who attended the 2/1/22 NSA webinar with Paul and Richard. Below is the recording. 

February 1 webinar: https://www.youtube.com/watch?v=0Xv-9MsFVHE

 

SUMMARY CHECKLIST  

Determine if the patient is uninsured or self-pay – must be done at the time of initial contact.

Question: “Are you enrolled in an insurance/health care plan.”

If no -->  considered self-pay and must follow NSA

 

If yes --> “Do you plan on submitting the claims for these services to your insurance plan.”

            If no -->    considered self-pay and must follow NSA

            If yes -->  do not need to follow NSA

 

IF THE CLIENT IS SELF-PAY, THEN THE PRACTITIONER MUST FOLLOW NSA

1.     GOOD FAITH ESTIMATE:

a. Must inform self-pay patients at the time of initial contact that they have a right to obtain a Good Faith Estimate of Treatment Costs

b. Must provide them with a Good Faith Estimate of Treatment Costs within the specified time frame, with the required data elements, and ensure that the estimate is complete and accurate.

If the appointment is scheduled...

  • At least 3 business days before the appointment date, then estimate must be provided:
    • No later than 1 business day after scheduling
    • At least 10 business days before the appointment date, then estimate must be provided:
      • no later than 3 business days after scheduling

If the estimate is requested without a specific appointment, then the estimate must be provided:

--> no later than 3 business days after request and a new GFE must be provided within the required time frame if the patient schedules an appointment

GOOD FAITH ESTIMATE must include the following:

  • The patient’s name and date of birth
  • A description of the primary item or service being furnished to the patient (and if applicable, the date the primary item or service is scheduled)
  • An itemized list of items or services that are “reasonably expected” to be furnished
  • Applicable diagnosis codes, expected service codes, and expected charges associated with each listed item or service
  • The name, National Provider Identifier, and Tax Identification Number (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. (APA recommends using a business TIN rather than your SSN)
  • A list of items or services that the provider or convening facility (the provider or facility that handles the scheduling of the service) 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

If you anticipate changes that will affect the estimate, then must issue a new good faith estimate no later than 1 business day before the items or services are scheduled to be provided.

 

 2.  NSA Notice Requirement

Must display NSA Notice Requirement. The Notice provides information to patients about their rights under the NSA (and posting the notice is considered a good faith effort to comply with the NSA Notice requirements)

 

  • Must post the Notice as-is in the office (in readable font and on one or two pages)

 

  • Must post the Notice on their website with a clear identifying link to the Notice on the website

 

 3. Update the GFE as appropriate (patient has the right to dispute if the bill exceeds the estimate by $400) 

  • Patient has the right to dispute if the bill exceeds the GFE by more than $400
  • If patient chooses to use the dispute resolution process, it must be started within 120 days of the date on the original bill
  • GFE is good for 12 months
  • Can be revised at any time

 

New! Instructions for Good Faith Estimate template

You can modify this form to be the Good Faith Estimate (GFE) form for your practice if you are not required to, or will not be, including estimates for providers outside of your practice (FAQs on the No Surprises Act and good faith estimates).

This is designed for situations where only one provider in your practice is expected to provide services to a particular patient. But you can modify it to add the names, NPI, and TIN of multiple providers in your practice to the section on psychologist providing services.

Important notes about dispute resolution:

This form provides a slightly simplified version of the disclaimer language in the much longer CMS template. We think that language may be confusing to patients because it suggests that a patient could initiate the dispute resolution process if your billing exceeds your current GFE by any amount. However, the GFE regulations make it clear that dispute resolution is only available if it is $400 higher.

As explained in Understanding the No Surprises Act, it is important to track your billing vs. GFEs to avoid reaching the point where your billing is $400 over the GFE. If you nonetheless find yourself in that position, we recommend that (in addition to promptly updating your GFE), you talk to your patient. We expect that most patients will understand, particularly while the GFE requirements are new.

If, however, your patient is upset or angry and wants to pursue dispute resolution, you should consider whether making a patient go through that process, like taking collection action against a patient, is worth the risk of triggering a board complaint or negative online review.

Simple Good Faith Estimate

 

 

1/18/22 Update: Q&A from Paul Berman

MPA members can reach out to Paul with your questions about the No Surprises Act. We will post Q&As below as they are received. 

 

Question: Are we to make GFEs for all our patients or only for only those who are self-pay or OON and not planning to submit for reimbursement? What about new patients?  When I schedule a new person do I provide a GFE regardless or only for self-pay and OONs not seeking reimbursement?

ANSWER: (Note: Answers may change in the future since regulations are still being written.)

  1. GFEs are currently required only for patients who are self-pay for one of two reasons:
    1. They do not have insurance
    2. They have insurance but have decided they will not be submitting to insurance.

The requirement to provide a GFE to insured and self-pay patients is applicable beginning January 1, 2022. However, no one expects any regulatory agency to require compliance immediately.

 

Thus, there are two recommended questions at the time the initial appointment is being scheduled:

  1. Do you have insurance? (If no, then a GFE is required.)
  2. If you do have insurance, are you planning on submitting the bill to your insurance company? (If no, then GFE is required.)

 

Question: Does the Good Faith Estimate requirement apply to new patients or does it also include current patients?

ANSWER: The No Surprises Act does not make any distinction between new patients and current patients. All information I have seen says that the GFE should be provided to both current and new patients if they meet criteria:

  1. They do not have insurance
  2. They have insurance but will not be submitting to their insurance for reimbursement.

 

1/14/22 - Updated guidance from APA

APA has released updated guidance on the No Surprises Act. Continue to watch this space for updates.

 

 

Overview

Many of you may have heard of the federal law passed in the fall 2021, which took effect Jan 1, 2022. Attached is a brief summary of the law from APA. Below is also a letter from APA. MPA will be summarizing the law in the next few weeks.

The law contains consumer protections which went into effect on January 1, 2022. But the feds have stated that there will be minimal, if any, enforcement over the next year (essentially, 2022 will be considered a grace period). So, the next year will be the learning curve year, possibly even with some changes in the law and regulations. But over the next few months, we are going to need to be familiar with the law and begin to provide clients with the necessary forms and informed consent.

In essence, the law was written in response to a number of specific situations where people with insurance received health care services, thought they were covered services, and ended up with huge "surprise" bills. This occurred, for example, when folks were admitted to a hospital in their network, went to an Emergency Room in their network, or needed ambulance services and then were given huge unexpected bills.

This law is intended to provide consumers with advanced knowledge of expected billing practices and given them an opportunity to provide informed consent for treatment.

Lawyers and other experts are still working to understand the law. One issue in contention is whether the law only applies to clients who have no insurance or are choosing to self-pay, or also includes folks with insurance who are seeing out-of-network practitioners. I will address these issues over the next few weeks.

This law applies to all health care practitioners and all facilities.

 

So, please read below, and this article from APA. And, please be on the look-out for additional information from MPA about the law.

 

Below is an email from Jared Skillings (Chief, Professional Practice, APA) and Katherine McGuire (Chief Advocacy Officer, APA) which addresses some of the issues related to the law. And, at the end of Jared's letter is some additional information from attorneys at Epstein, Becker, Green about the law:

 

Dear colleagues,

Thank you for the robust dialogue and rapid feedback about the federal No Surprises Act (NSA).  I appreciate and empathize with the concerns that have been raised about this legislation.  I share many of them.  The most prominent issues that have been raised are: (a) why did the NSA feel like a surprise to psychologists?, (b) are psychologists are included in this legislation?, (c) what are the expected next steps for my practice?, and (d) what APA/APA Services (APASI) regulatory and legislative advocacy is needed?  I will respond to all of these issues in this email below.  I hope to offer some clarity and perhaps a bit of relief.   

First, the NSA is voluminous and complicated.  Katherine McGuire, APA’s Chief Advocacy Officer, and I have personally continued to scrutinize the thousands of pages of NSA provisions even during the holidays.  I am VERY pleased to say that we discovered a one-year period of “enforcement discretion” buried in the text, and we now believe that 2022 will be a grace period.  Here is the language from the rule itself:

HHS [Health and Human Services Department] understands that it may take time for providers and facilities to develop systems and processes for providing and receiving the required information from others. Therefore, for good faith estimates provided to uninsured (or self-pay) individuals from January 1, 2022, through December 31, 2022, HHS will exercise its enforcement discretion in situations where a good faith estimate provided to an uninsured (or self-pay) individual does not include expected charges from other providers and facilities that are involved in the individual’s care.

 

Q1: Why did the NSA feel like a surprise to psychologists?

The NSA was passed by Congress in December 2020 (one year ago) during the Trump administration.  Its original purpose was to shield patients from surprise bills and establish an arbitration process to resolve billing disputes for out-of-network health services.  Per standard protocol, the NSA legislation went through a rule-making process through the Health & Human Services (HHS) Department, whose strategies and staff were significantly modified and reshaped when the Biden administration took the reins in January 2021.  APASI tracked this legislation and the rule-making progress and supported its general principles.  However, once the rule-making was final in October 2021, the NSA regulations looked very different than the intent of the bill that passed Congress.  Everyone was shocked by how different it was.  In fact, in November 2021 (one month after the rule-making was finished) at the prompting of APA and a large coalition of medical associations and stakeholders, a bipartisan group of 152 U.S. Representatives – both Democrats and Republicans – wrote a formal letter identifying these problems and calling for the Biden Administration to reconsider its implementation of the NSA.   

APASI has already joined efforts with medical associations and provider groups pressing Congress to engage on the point that the proposed interim final rule favors health insurance plans and deviates from the intent of the law as it was envisioned by Congress.  It has long been an ethical standard of psychologists to be transparent about billing and compensation.  The new version of the NSA misrepresents the principles of transparency and integrity that were originally intended by Congress and that APASI supported.  There is no evidence that psychologists are part of the problem of surprise billing, and we are offended by this wrongheaded insinuation that is not supported by data. 

 

Q2: Are psychologists included in the NSA legislation? 

Yes, all licensed “providers” are included – that means all licensed psychologists.  Those with a limited or provisional license are also likely included; more information is needed regarding trainees.  In addition to APASI’s own legal and policy review of the NSA, we took the extra step of soliciting an external policy review about whether psychologists are included in these regulations.  That review was conducted by Lesley Yeung, an attorney at Epstein Becker Green who specializes in these matters.  Her review is below in blue text, including yellow highlights she added to draw attention to key points.  In summary = a number of the NSA provisions do not include psychologists such as air ambulance, etc.  The good-faith estimate (GFE) provision does include all healthcare “providers,” including psychologists, as defined in regulations.  The GFE provision applies to all providers, not only to those who furnish services in a facility.  As such, independent practitioners are included.  See more details below.          

 

Q3: Since psychologists are included in the NSA, what are the expected next steps for my practice?

Again, we believe there is an “enforcement discretion” grace period for 2022.  APASI will continue our advocacy and engagement with policymakers and coalition partners to turn back the whole Act or work to eliminate or minimize any problematic impact for psychologists, including those in private practice.  We will keep psychologists up-to-date about our advocacy strategies so that you can join this effort. 

At the same time as we will be advocating to eliminate or change the NSA, APASI has a simultaneous duty to psychologists to offer guidance about how to manage the NSA as it currently stands.  APASI’s initial guidance was developed for that purpose, and it can be found online here: https://www.apaservices.org/practice/legal/managed/billing-disclosure-requirements.  An FAQ is being developed and is expected early next week.  APA will develop additional guidance and concrete resources by the end of the first quarter (i.e. March 2022) about steps psychologists can take in your practice.  The guidance and resources will be shared freely.    

 

Q4: What APA/APASI regulatory and legislative advocacy is needed?

APASI shares the serious concerns about the NSA as expressed in the U.S. Representatives’ letter, “…This approach [reflected in the NSA regulations] is contrary to statute and could incentivize insurance companies to set artificially low payment rates, which would narrow provider networks and jeopardize patient access to care – the exact opposite of the goal of the law.  It could also have a broad impact on reimbursement for in-network services, which could exacerbate existing health disparities and patient access issues in rural and urban underserved communities.” 

When Congress returns in January, APASI will turn our attention to elements of concern with the NSA that impact psychologists, including reporting requirements and discerning the interplay between the new federal law and established state regulations and laws.  We estimate that 33 states have some form of relevant legislation/regulation.     

In conclusion, we sincerely thank you for your significant engagement on division or SPTA listservs and directly with us.  We will continue to fight for the profession of psychology and for the communities we serve.  We will be in touch on these matters again soon.  Until then, I hope the newly discovered grace period offers some solace.  Have a restful and healthy New Year!

 

Best Regards,

 

Jared L. Skillings, PhD, ABPP

Chief of Professional Practice, American Psychological Association Services

 

Katherine B. McGuire

Chief Advocacy Officer, American Psychological Association Services