January 31, 2023

Volume XIII, Number 31

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January 30, 2023

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Q&A: The No Surprises Act’s Protections for Uninsured (or Self-Pay) Individuals

In our November 9, 2021, blog post on the No Surprises Act (“NSA”), we discussed new consumer protections against surprise out-of-network bills. In addition to protecting insured consumers from balance billing, the NSA protects uninsured (or self-pay) individuals from many unexpectedly high medical bills. Specifically, effective January 1, 2022, a provider must furnish a self-pay patient with notice and a good faith estimate (“GFE”) of the cost of care prior to all scheduled services. This includes, among other things, a GFE of the cost of office visits, therapies, diagnostic tests, infusions, surgeries and any services reasonably expected to be provided in conjunction with such scheduled services. On December 21, 2021, the Centers for Medicare & Medicaid Services (“CMS”) issued guidance on the Good Faith Estimate and the Patient-Provider Dispute Resolution (“PPDR”) process for people without insurance or who plan to pay the costs themselves.

To what providers does this apply?

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; 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.

Who qualifies as a self-pay patient?

A self-pay patient includes 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 health care program, or health benefits plan; or (2) who does not seek to have a claim for such item or service submitted to such plan or coverage.

Self-pay patients also include individuals enrolled in short-term, limited-duration plans or other types of products not regulated as health insurance coverage.

Under what circumstances must a provider provide notice and a GFE?

A “convening provider or facility” must determine at the time an item or service is scheduled or when a patient is shopping for care, whether the patient is self-pay. A “convening provider or facility” is the provider or facility who receives the initial request for a GFE from a self-pay individual or who is or, in the case of a request, would be responsible for scheduling the primary item or service.

The convening provider or facility is responsible for contacting all applicable “co-providers” to request submission of expected charges for items and services to be provided by the co-provider.  A “co-provider” is defined as a provider or facility other than a convening provider or convening facility that furnishes items or services that are customarily provided in conjunction with a primary item or service.

In certain circumstances a “co-provider” would be subject to the same requirements as the convening provider. A co-provider is required to determine whether a patient is self-pay if the patient separately schedules an item or service with, or makes a request to, such a co-provider.

How is notice provided / distributed?

A convening provider must orally inform 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.

All 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.”

CMS published a model notice, which you can find here.

Each GFE must include:

  • Patient name and date of birth;

  • Description of the primary item or service in clear understandable language (and if applicable, the date the primary item or service is scheduled);

  • Itemized list of items or services, grouped by each provider or facility, reasonably expected to be furnished 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, including:

    • Items or services reasonably expected to be furnished by the convening provider or convening facility for the period of care; and

    • Items or services reasonably expected to be furnished by the co-providers or co-facilities;

  • Applicable diagnosis codes, expected service codes, and “expected charges” associated with each listed item or service;

    • “Expected charges” should reflect what the provider or facility would bill the insurance company if the patient were insured.

    • The estimate of the expected charges must reflect the anticipated billed charges, including any expected discounts or other relevant adjustments that the provider or facility expects to apply to an uninsured (or self-pay) individual’s billed charges.

  • Name, National Provider Identifier, and Tax Identification Number of each provider or facility represented in the GFE, 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;

  • 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. The good faith estimate must include a disclaimer directly above this list that includes the following information: Separate good faith estimates will be issued to an uninsured (or self-pay) individual upon scheduling or upon request of the listed items or services; notification that for items or services included in this list, information such as diagnosis codes, service codes, expected charges and provider or facility identifiers do not need to be included as that information will be provided in separate good faith estimates upon scheduling or upon request of such items or services; and include instructions for how an uninsured (or self-pay) individual can obtain good faith estimates for such items or services;

  • A disclaimer that informs the uninsured (or self-pay) individual that there may be additional items or services the convening provider or convening facility recommends as part of the course of care that must be scheduled or requested separately and are not reflected in the good faith estimate;

  • A disclaimer that informs the uninsured (or self-pay) individual that the information provided in the good faith estimate is only an estimate regarding items or services reasonably expected to be furnished at the time the good faith estimate is issued to the uninsured (or self-pay) individual and that actual items, services, or charges may differ from the good faith estimate;

  • A disclaimer that informs the uninsured (or self-pay) individual of the uninsured (or self-pay) individual’s 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 good faith estimate; this disclaimer must include instructions for where an uninsured (or self-pay) individual can find information about how to initiate the patient-provider dispute resolution process and state that the initiation of the patient-provider dispute resolution process will not adversely affect the quality of health care services furnished to an uninsured (or self-pay) individual by a provider or facility; and

  • A disclaimer 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.

The GFE must be provided in written form either on paper or electronically.

Timing

  • If a GFE is requested by a self-pay patient (i.e., the item or service has not yet been scheduled), the convening provider must furnish the GFE to the patient no later than three (3) business days after the date of the request.

  • If the primary item or service is scheduled (the appointment for the service is made) at least ten (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 (3) business days after the date of scheduling.

  • If the primary item or service is scheduled between three (3) and nine (9) 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 (1) business day after the date of scheduling.

  • If the primary item or service is scheduled less than three (3) days before such item or service is scheduled to be furnished, the convening provider is not required to deliver a GFE.

  • Within one (1) business day after the request for a GFE is received or after the primary item or service is scheduled, the convening provider or facility must contact all co-providers and request submission of the co-provider’s expected charges. The convening provider or facility must indicate in the request, the date the good faith estimate of charges must be received from the co-provider.  The co-provider is responsible for providing timely information to the convening provider or facility.

What if recurring items or services are expected to be furnished?

The convening provider or facility may issue a single GFE for recurring primary items or services if certain requirements are met. The GFE must include in a clear and understandable manner the expected scope of the recurring items or services (such as: timeframes, frequency, and total number of recurring items or services). The scope of the GFE must not exceed 12 months.

Sample Scenario:

In the instance of a knee surgery, a GFE could include an itemized list of items or services in conjunction with and including the actual knee surgery (such as physician professional fees, assistant surgeon professional fees, anesthesiologist professional fees, facility fees, prescription drugs, and durable medical equipment fees) that occur during the period of care. An individual would not typically schedule days in the hospital post-procedure separately from scheduling the primary service of a knee surgery. CMS would therefore expect that all the items or services that are reasonably expected to be provided from admission through discharge as part of that scheduled knee surgery, from all physicians, facilities, or providers be included in the good faith estimate.

Additionally, in this illustrative example, a provider or facility would furnish separate good faith estimates upon scheduling or upon request for any items or services that are necessary prior to or following provision of the primary item or service beyond the period of care. Examples could include certain pre-operative or post-operative items or services that are not typically scheduled during the period of care for the knee surgery, such as certain laboratory tests or post-discharge physical therapy.

What is the recourse for a patient who gets a bill that is substantially in excess of the expected charges on the GFE?

Under the PPDR process, the uninsured (or self-pay) individual may seek a determination from a Selected Dispute Resolution (“SDR”) entity for the amount the individual has to pay. The PPDR process can apply to any item or service furnished by a convening provider, convening facility, co-provider, or co-facility to an uninsured (or self-pay) individual where the total billed charges are substantially in excess of the total expected charges in the GFE. When the billed charges for any provider or facility are in excess of the good faith estimate for that provider or facility by $400 or more, the item or service may be eligible for payment determination by a SDR entity through the PPDR process.

Importantly, CMS will exercise enforcement discretion through December 31, 2022 in situations where the GFE does not include expected charges for items and services from a co-provider or co-facility. Therefore, items or services to be provided by a co-provider or co-facility that appear on the GFE that do not include an estimate of expected charges or that appear as a range of expected charges would not be eligible for the PPDR process for the item or service provided by the co-provider or co-facility. However, if expected charges for a co-provider and co-facility do appear on the GFE, those items or services will be eligible for the PPDR process as normal.

What is a provider or facility’s responsibility once an individual initiates the PPDR process?

Once an individual initiates the PPDR process, a provider or facility cannot move the bill for the disputed item or service into collection or threaten to do so. If the bill has already moved into collection, the provider or facility must cease collection efforts. The provider or facility must also suspend the accrual of any late fees on an unpaid bill until after the PPDR process has concluded. Finally, the provider or facility must not take or threaten to take any retributive action against an uninsured (or self-pay) individual for utilizing the PPDR process.

How does the SDR entity make the determination?

The SDR entity determines how much the uninsured (or self-pay) individual must pay based on documentation submitted by the provider or facility; whether the provider or facility has provided credible information to demonstrate that the difference between the billed charge and the expected charge for the item or service in the good faith estimate reflects the costs of a medically necessary item or service and is based on unforeseen circumstances that could not have reasonably been anticipated by the provider or facility when the good faith estimate was provided. Information is credible if, upon critical analysis, the information is worthy of belief and trustworthy. The SDR entity will make this assessment separately for each unique billed item or service.

Copyright © 2023, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 48
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About this Author

Kenneth Yood Healthcare Attorney SheppardMullin
Partner

Ken is a partner in the Corporate practice group in the firm's Los Angeles office. Chambers USAranks him highly for Healthcare, where he was commended for his "broad-based ability in the regulatory area." Clients appreciate that "his explanations are clear, and he understands the business side of things," notes Chambers 2016.

Areas of Practice

Ken represents a wide range of healthcare providers and healthcare companies, including specialty and general acute hospitals (including local district, nonprofit and...

310-228-3708
Jarrod Brodsky Corporate Lawyer Sheppard Mullin Law Firm
Associate

Jarrod Brodsky is an associate in the Corporate Practice Group in Sheppard Mullin's Washington, D.C. office.

EDUCATION

J.D., Georgetown University Law Center, 2020

B.A., New York University, 2014, magna cum laude

ADMISSIONS

  • District of Columbia

LANGUAGES

  • Spanish
202.747.2180
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