In December 2020, Congress passed the Consolidated Appropriations Act, 2021, which included the No Surprises Act, banning patient “surprise bills” for emergency and certain non-emergency services. Throughout 2021, the Department of Health and Human Services (HHS) along with the Departments of Labor and Treasury (“the Departments”) engaged in rulemaking implementing the provisions of the No Surprises Act for these statutory requirements that were set to be effective by January 1, 2022. Individuals with insurance through group (employer) health plans, federal and state-based ACA Marketplaces, and federal employees are covered by these provisions. However, these provisions do not apply to individuals with coverage through programs such as Medicare, Medicaid, the Indian Health Service, Veterans Affairs Health Care, or TRICARE. These federal programs already protect beneficiaries against surprise billing.

While much attention has been dedicated to the requirements that seek to protect patients from surprise bills for emergency services and ancillary services (e.g. anesthesiology, radiology, pathology, assistants-at-surgery, etc.) as well as for non-emergency services furnished by out-of-network providers furnished at in-network facilities (see here for more information on how such changes could affect physiatrists), it is important for AAPM&R members to be aware of additional No Surprises Act requirements for cost transparency, obligating physicians, including physiatrists, to provide patients with good faith estimates (GFE) for scheduled services and upon patient request in certain situations. 

Good Faith Estimates (GFEs) for Uninsured and Self-Pay Patients

As part of of the No Surprises Act, providers who schedule services for uninsured or self-pay patients at least 3 days in advance are required to provide patients GFEs for all reasonably expected charges associated with that service. Providers are also obligated to provide the GFE upon request from a patient, even if the service is not scheduled. To assess your potential obligations under these requirements, it is important to understand key terms created under the regulations:

• “Convening Provider” or “Convening Facility”: This is defined as “the provider or facility who receives the initial request for a good faith estimate from an uninsured (or self-pay) individual and who is or, in the case of a request, would be responsible for scheduling the primary item or service.”

• “Co-Provider” or “Co-Facility”: This is defined as “a provider or facility other than a convening provider or a convening facility that furnishes items or services that are customarily provided in conjunction with a primary item or service.”

Under the regulations, the “convening provider” (or facility) is responsible for providing the expected charges to the uninsured or self-pay patient, including the expected charges from “co-providers” or “co-facilities.” While its use not required, the Departments provided an example GFE form that physicians and facilities can utilize when complying with these requirements.

Because of the compliance burdens associated with these new requirements, the Departments have articulated that they will exercise enforcement authority that allows “convening providers” and “convening facilities” to provide GFEs without the expected charges for “co-providers” and “co-facilities,” pending the release of additional rulemaking. For the most recent extension of this enforcement authority, see the December 2, 2022 FAQ.

Understanding the timing, content, and other requirements for GFEs for uninsured and self-pay patients is critical for complying with obligations created under these regulations. For more information, you may find the additional resources helpful:

• Centers for Medicare and Medicaid Services (CMS) Uninsured/Self-Pay GFE Slides: Link here

• U.S. Department of Health and Human Services December 21, 2021 Uninsured/Self-Pay GFE Memorandum: Link here

• Uninsured/Self-Pay GFE FAQs Part 1 (December 1, 2021): Link here

• Uninsured/Self-Pay GFE FAQs Part 2 (April 5, 2022): Link here

• Uninsured/Self-Pay GFE FAQs Part 3 (December 2, 2022): Link here

• Uninsured/Self-Pay GFE FAQs Part 4 (December 27, 2022): Link here

To the extent that billed charges exceed the amounts included in the GFE by $400 or more per provider, patients may access a Patient-Provider Dispute Resolution Process to contest excess billed amounts. For more information on when this process applies, find additional information from the Centers for Medicare and Medicaid Services (CMS) here.

Good Faith Estimates (GFEs) for Insured Patients

The No Surprises Act establishes a new requirement for health care providers to submit a GFE of expected charges for services scheduled at least 3 days in advance for services to insured patients (or upon request by such patients) as well. This version of the GFE is not submitted to the patient, but rather, to the patient’s health plan in order for the health plan to generate an Advanced Explanation of Benefits (Advanced EOB). Advanced EOBs are furnished by health plans to their enrollees to help patients better understand their potential out-of-pocket expenses after what is covered and paid for by their health insurance coverage. 

While the No Surprises Act specified that this requirement take effect on January 1, 2022, the Departments have continued to delay provider and health plan compliance with these provisions because of the expected burden associated with meeting these requirements. The Departments have sought input on how they might leverage existing data to streamline the provision of this information to patients or otherwise reduce the compliance burden on providers and health plans.   While the eventual compliance date is unknown at the time of this publication, pending issuance of proposed and final rulemaking, it is important for PM&R physicians to know that this obligation is in statute and will be enforced at some point in the future. Please contact healthpolicy@aapmr.org with any questions.