No Surprises Act Update: Good Faith Estimates for Uninsured & Self-Pay Individuals and Industry Opposition to Balance Billing Provisions

“Surprise billing” aka “The No Surprises Act” (NSA), became law as of January 1st, 2022.  The intent of the legislation is to protect patients from unexpected medical bills.  While much of the legislation is focused on out-of-network and emergency care for insured patients, there are also new protections for the uninsured or self-pay patients.

Although there have not been any major updates or changes to the law since the last Interim Final Rule (IFR), it is important to understand the basics of the ‘Good Faith Estimate’ (GFE) requirements of the newly implemented law.

A summary of the most recent NSA rule making is available HERE.

Good Faith Estimates for Uninsured:

In the September 30, 2021, rulemaking, The Department of Health and Human Services (HHS) outlined requirements for Good Faith Estimates (GFE) that must be furnished to uninsured or self-pay patients upon their request and at the time of scheduling the health care item or service. This set of rules reaches a much broader scope of providers than the balance billing portion of the Act which is limited to “facilities” (hospitals, hospital outpatient departments, critical access hospitals, or ambulatory surgery centers). The GFE rule applies to both facilities and any other “health care providers,” defined as “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.”

There are two types of providers/facilities for the purpose of this rule. First the “convening provider” is the provider or facility that receives the initial request for a GFE from an uninsured or self-pay individual when scheduling a primary item or service (such as the hospital.) The second class of provider is the “co-provider.” The co-provider is another provider or facility that is reasonably expected to provide an item or service in conjunction with the item or service scheduled by the convening provider.

When the GFE requirement is triggered by an uninsured or self-pay patient request, the convening provider must provide a GFE of “expected charges” for all items and services expected to be provided in conjunction with the scheduled primary item or service. This includes services expected to be provided by a co-provider in addition to the convening provider’s items and services. Co-providers must provide the convening provider with information needed to accurately include the co-providers expected services and charges. Co-providers whose estimate appears as part of the convening provider’s GFE do not need to provide a separate GFE. For a full list of required elements, see the GFE Templates below.

HHS has acknowledged that it will take time for providers and facilities to develop a process to exchange the necessary information between co-providers and convening providers. Therefore, HHS will exercise enforcement discretion until January 1, 2023, in situations where a GFE provided by a convening provider to an uninsured or self-pay patient does not include the expected charges of co-providers as long as the expected items and services are present even without the estimate of the charges. However, a co-provider is still required to provide a GFE directly to an uninsured or self-pay patient if the individual requests one directly form the co-provider.

Patient-Provider Dispute Resolution for Uninsured:

In a situation where an uninsured or self-pay individual receives a GFE and then is billed for an amount substantially in excess of the GFE, HHS establishes in the rule a patient-provider dispute resolution process to determine a payment amount.

A patient’s bill will be determined eligible for the patient-provider dispute resolution process if the patient received a GFE, if the process is initiated within 120 calendar days of the patient receiving the bill, and if the bill is substantially in excess of the good faith estimate. HHS has defined “substantially in excess” as the billed charges being at least $400 more than the estimate for any provider or facility listed on the good faith estimate.

Co-providers will have protection from a portion of potential dispute resolution cases until January 1, 2023, as outlined above in HHS statement that they will use enforcement discretion to allow convening and co-providers time to set up processes to fulfill requirements.

Industry Opposition to the Balance Billing Portion of The Act

Under balance billing portion of The Act, payers, and providers (including hospitals, facilities, individual practitioners, and air ambulance providers) are prohibited from billing patients more than in-network cost-sharing amounts in certain circumstances. The prohibition applies to both emergency care and certain non-emergency situations where patients do not have the ability to choose an in-network provider. The Act created a rate calculation for insurances to determine payment amounts in these scenarios known as the Qualifying Payment Amount (QPA). The QPA is generally the plan’s median contracted rate for the same or similar service in a specific geographic area.

Industry organizations have expressed concerns that the methodology for calculating the QPA and its weight in the Independent Dispute Resolution (IDR) entity’s determination will lead to negotiation leverage greatly tilting in favor of the insurance companies. These organizations have stated support for the goal of protecting patients but oppose the final methodology as a clear deviation of congressional intent.

The American College of Emergency Physicians (ACEP), the American College of Radiology (ACR), and the American Society of Anesthesiologists (ASA) all jointly brought a lawsuit challenging provisions of the final rule relating to the Qualifying Payment Amount. This lawsuit is unlikely to affect the law as a whole, and it should remain in full effect with regard to patient protections.

The AMA and American Hospital Association (AHA) also filed a separate lawsuit on similar grounds.


Resources for the No Surprises Act Good Faith Estimate

As always, ADVOCATE will continue to keep you informed on the issues impacting medical groups as they develop.

Colton Zody, JD, CHC

Chief Compliance Officer