Don’t Be Surprised by The No Surprises Act

December 27, 2021
 / 
Rick Gawenda
 / 

The Centers for Medicare and Medicaid Services (CMS) has released a new Frequently Asked Question (FAQ) document on providing good faith estimates to uninsured and self-pay patients.

Disclaimer: The information below and the answers to each question are accurate as of the posting of this article (December 27, 2021). As of this posting, we have been told that Subpart G – Protection of Uninsured or Self-Pay Individuals, does apply to outpatient physical, occupational and speech therapy services provided in all settings, including private practices. The Private Practice Section (PPS) of the American Physical Therapy Association (APTA) is seeking further clarification from the Department of Health and Human Services and if any information should be changed and/or clarified, this article will be updated.

The No Surprises Act was enacted as part of the Consolidated Appropriations Act, 2021, which became law on December 27, 2020. On July 13, 2021, 4 Agencies, including the Centers for Medicare and Medicaid Services (CMS), Department of Health and Human Services published an interim final rule titled Requirements Related to Surprise Billing; Part 1 in the Federal Register. On October 7, 2021, 4 Agencies, including CMS published an interim final rule titled Requirements Related to Surprise Billing; Part 2 in the Federal Register. The 2 rules combined totals 277 pages. In this article, I will provide answers to the following questions regarding Subpart G – Protection of Uninsured or Self-Pay Individuals:

Let’s Begin!

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  1. Thank you for this summary–I know there is a clarification coming about whether PT/OT/SLP are affected. As the regulation reads now I agree that it would seem like PT/OT/SLP would be included. Do you have any thoughts about the time frames addressed are limited to 3-10 days and more than 3 days? If this turns out to be required–is the consideration that a GFE is not required if a patient is scheduled in less than 3 days or just that it should be provided within 3 days–even if it is after services have started?

    1. Read the answer to Question #21 and click on that resource. Read the answer to the last question on page 1.

  2. Hi Rick, Am I understanding you correctly in Answer #9 that we do NOT need to supply a good faith estimate to patients through a Federal health care program (Medicare, Medicaid etc) since they can not choose to not use their insurance? Thanks so much!

    1. Please go to Q&A #22 and click on the CMS reference I provided. Once open, go to page 3 and read the Q&A put out by CMS that will confirm my answer to question #9.

  3. Hello Rick,

    When the information was first released, I reviewed the information and concluded that it did not apply to outpatient OT, PT, SLP – based on the following information:
    CMS defines a health care facility as “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 the licensing of such an institution…. Thank you for clarifying further!
    In summary, the “No Surprise Act” means that (any) uninsured (or self-pay) individual choosing not to use their insurance must be provided (in writing) a good-faith estimate of what OT, PT or SLP services will cost per visit – as a cash pay patient? (not a Federal Insured plan)
    Does that sound accurate>?
    Melinda

    1. Please read the answer to question #9 as well as the resource document provided in the answer to question #22.

  4. Would the definition of uninsured include individuals who have benefits for such item or service under a group health plan, or individual or group health insurance coverage offered by a health insurance issuer, but whose therapy benefits have been exhausted? Thank you

  5. The biggest concern I have heard is from pediatric therapists. Children often receive services for years. Treatment is reduced and increased based on progress. Im thinking a good faith estimate with each plan of care. I also noticed no longer than 12 months so that may be what we do is a calendar year. We already do form with costs and out of pocket expenses for everyone, we just have to tweak to meet these new guidelines.

  6. Just to clarify, a patient who is paying me up front for out of network services but then submitting a superbill to their insurance would not need a good faith estimate at this time since they are using their insurance?

        1. Per the regulation: Expected charge means, for an item or service, the cash pay rate or rate established by a provider or facility for an uninsured (or self-pay) individual, reflecting any discounts for such individuals, where the good faith estimate is being provided to an uninsured (or self-pay) individual; or the amount the provider or facility would expect to charge if the provider or facility intended to bill a plan or issuer directly for such item or service when the good faith estimate is being furnished to a plan or issuer.

  7. I have read your article and the CMS FAQ document page 3 but still not certain if a patient enrolled in a federal health care plan has the option to file claims or not.

  8. Hi Rick,

    2 questions

    1. For an uncovered service (ex: dry needling) that was not a covered benefit from their insurance, but was unaware at the time of the scheduled evaluation that the service would be needed… What is our timeline for a good faith estimate for that cash service?

    2. For a patient that is submitting their bill to a third party auto carrier, and therefore has asked for an itemized billing vs our discounted cash rates would we be required to provide a good faith estimate as they are indeed submitting the bill to an insurance carrier?

    Thank you for all you do!

    1. 1. Please read § 149.610(f)(3) of the resource provided in the article.

      2. If they are paying you cash, my opinion only is yes.

  9. What do we need to do for patients who have and are using their insurance, have a deductible that has not yet been met? We have them sign an insurance agreement form with the details (4000k deductible, 5000k out of pocket max, etc), however with this do we need to try to figure out their responsibility per visit (which is generally set by the insurance but can vary)?
    Also, if a patient has a co-insurance percentage responsibility (say, 20% per visit) and are using their insurance do we need to try to estimate how much they will owe per visit?
    Or if a patient is insured and going through his/her insurance does this not apply?

    1. If submitting a claim to an insurance carrier, then a GFE is not required since the patient is not uninsured or self-pay. However, a patient can still ask you for a GFE.

      1. Thank you….for patients that have out of network benefits (and we submit it to their insurance as out of network) do we need to do a GFE?

  10. 1. Can a PT practice that accepts a mixture of out-of-network insurances and self-pay, has 2 different sets of
    charges; one for all insurance-based services and another one for self-paying individuals?
    2. How do we treat insurance deductibles will we consider them as a self-pay or as insurance-based service?

    Thank you!

    1. 1. Due to liability reasons, not a question I answer in this type of forum.
      2. If submitting a claim to an insurance carrier, this would not be considered uninsured or self-pay. Even if submitting a claim, a patient can still ask for a GFE.

  11. 1. Can you confirm that the No Surprises Act, along with the good faith estimate requirements, apply to patients that are either in network or out of network with the practice?
    2. Can you confirm that the GFE needs to include a ‘Total Estimate’ on the written form that is being presented to the patient?

    1. Please read the answer to question #9 to see when a GFE is required and the answer to #12 for estimated charges.

  12. with regard to recurring services and providing an estimate for each visit vs. a period of time…

    Part I of the NSA addresses notice/consent to balance bill an insured patient for out of network services. It does not contain the similar language as noted on Question #16 (Part II) for recurring services for self-pay or uninsured patients. Are you interpreting the requirement differently between these two groups of patients? So the self-pay/uninsured could be 12 months if we follow the criteria as listed vs. the insured/out of network would have to be each visit?

    1. This article is focused solely on Subpart G § 149.610 Requirements for provision of good faith estimates of expected charges for uninsured (or self-pay) individuals.

      1. Ok, thank you, is there an article about the NSA cost estimates for the insured patients for out of network services?

        1. If you are talking about outpatient therapy services and being OON, you will want to read § 149.610 regarding the GFE requirements.

  13. Am I understanding correctly that a GFE only needs to be provided if asked for by the patient?

  14. For Medicare do we now need to give a GFE and an ABN? For example if a pt is receiving ionto or opts to continue therapy when not deemed medically necessary.

    1. From CMSs “High Level overview of NSA provider requirements”

      These requirements do not apply to beneficiaries or enrollees in federal programs such as Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. These programs have other protections against high medical bills.

  15. Thank you Rick for the great information.
    Do you have any sample display which we can use to meet the requirement as mentioned in question #10
    Thanks

  16. If the patient pays cash day of visit do we need to still complete a good Faith estimate?

    If there is one CPT code that is non covered, for example dry needling or ionto. Do we need to give a good faith estimate if all other procedures are covered? Often we do not know how many times we need to complete as it is based on patient response to modality.

    Thanks

    1. It would depend on how many days in advance you schedule the patient and the service as to whether a GFE is required or not.