Provisions Related to Surprise Medical Billing Become Effective in New Year
Come January 1, 2022, ASCs will have to abide by new requirements
BY KARA NEWBURY | DECEMBER 2021
On January 1, 2022, much of the No Surprises Act goes into effect, including provisions pertinent to ASCs, such as the requirement to provide a good faith estimate to uninsured and self-pay individuals.
This requirement, along with provisions related to the independent dispute resolution (IDR) process, the patient-provider dispute resolution process and expanded rights to external review, was included in an interim final rule with comment period jointly released by the US Department of Health & Human Services (HHS), the US Department of Labor (DOL) and the US Department of the Treasury, along with the US Office of Personnel Management, titled "Requirements Related to Surprise Billing; Part II" (Part II) released on September 30, 2021.
Good Faith Estimates for Uninsured or Self-pay Individuals – Requirements for Providers and Facilities
Starting January 1, 2022, information regarding the availability of a good faith estimate must be prominently displayed on the convening provider’s and convening facility’s website and in the office and on-site where scheduling or questions about the cost of healthcare occur.
When scheduling an item or service, providers and facilities are required to ask if the individual has health insurance, and if so, whether they want to have a claim submitted to their health insurance coverage for the item or service they are seeking. If the individual does not have insurance or does not plan on having the claim submitted to insurance, the provider or facility must then inform the individual both orally and in writing of their ability, upon request or at the time of scheduling healthcare items and services, to receive a good faith estimate of expected charges. The No Surprises Act also includes a requirement that the provider or facility provide a good faith estimate to a health insurance provider if an individual plans to use their insurance; however, rulemaking has not yet been promulgated for that requirement, so enforcement will be deferred. The only good faith estimate requirement that goes into effect January 1, 2022, is for uninsured or self-pay individuals.
The good faith estimate must include expected charges for the items or services that are reasonably expected to be provided together with the primary item or service, including items or services that may be provided by other providers and facilities. For example, for a surgery, the good faith estimate might include the cost of the surgery—both the facility and the physician fee—any labs or tests, and the anesthesia that might be used during the operation. Other items or services related to the surgery that might be scheduled separately, such as pre-surgery appointments or physical therapy in the weeks after the surgery, would not be included in the good faith estimate.
Convening Provider or Facility
To make it convenient for the individual requesting the good faith estimate, a convening healthcare provider or convening healthcare facility—convening provider or convening facility—will be responsible for collecting good faith estimates from the co-providers and co-facilities. The convening provider or facility is defined as “the provider or facility who receives the initial request for a good faith estimate from an uninsured (or self-pay) individual,” or in the case of a request from an individual who has not yet scheduled, it is the provider or facility that would be responsible for scheduling the primary item or service. In the case of services provided at an ASC, the convening provider or facility could be either the physician’s office or the ASC. It is important to remember that whichever provider or facility receives the initial request for a good faith estimate is deemed the convening provider, so that entity may be different for different patients.
Requirements for the Good Faith Estimate
The good faith estimate should use clear and understandable language and include an itemized list of each item or service, grouped by each provider or facility offering care. Each item or service must have specific details and the expected charge. The convening provider or facility must provide a paper or electronic copy of the good faith estimate based on the patient’s preference even if the provider also provides the good faith estimate information over the phone or verbally in person.
The Centers for Medicare & Medicaid Services (CMS) released a zip drive of resources to help providers comply with the new good faith estimate requirements. These include, among other resources:
- Appendix 1: Standard Notice: “Right to Receive a Good Faith Estimate of Expected Charges” Under the No Surprises Act
- Appendix 2: Standard Form: “Good Faith Estimate for Health Care Items and Services” Under the No Surprises Act
- Appendix 11: Good Faith Estimates: Data Elements
When using the model forms or notices, the provider or facility must fill in the blanks with the appropriate information. While a provider or facility does not have to use the models provided, the provider or facility must make sure that all the necessary elements are included.
Timeline for Good Faith Estimates
The convening provider or facility must provide a good faith estimate to an uninsured or self-pay individual:
- Within one business day after scheduling when the primary item or service is scheduled at least three business days in advance or no later than three business days after scheduling when the primary item or service is scheduled at least 10 business days in advance; or
- Within three business days after an uninsured or self-pay consumer who has not yet scheduled requests a good faith estimate.
In the Part II rulemaking, HHS notes it will take time for the convening provider or facility to get systems in place to receive information from co-providers and co-facilities. 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. It is important to note that you are still responsible for the good faith estimate of the ASC’s facility fee; just not the good faith estimates of co-providers.
Patient-Provider Dispute Resolution
If an uninsured or self-pay individual receives a good faith estimate and then is billed for an amount “substantially in excess” of the good faith estimate, the patient can initiate an IDR process to determine the payment amount. Patients are eligible for the IDR process if the total billed charge(s) for a particular provider or facility is at least $400 higher than the combined good faith estimates of charges for that provider or facility. While the convening provider is responsible for coordination and delivery of the estimates, each individual provider or facility is responsible for the accuracy of their own estimates.
The patient must initiate the IDR process within 120 calendar days of receiving the bill. The dispute will be reviewed by a Selected Dispute Resolution (SDR) entity contracted with HHS. SDR entities will make payment determinations as part of the patient-provider dispute resolution process. The patient-provider dispute resolution process has timelines for documentation submission and payment determination, and participating individuals will be charged an administrative fee ($25 for 2022).
Independent Dispute Resolution for Out-of-Network Providers
The Part II rule also establishes the IDR process that out-of-network (OON) providers and facilities and insurance companies may use to determine the OON rate for items or services. Not all items and services are eligible for the IDR process. This process applies only to those items and services for which balance billing was prohibited under the “Requirements Related to Surprise Billing; Part I” rule.
Before initiating the IDR process, disputing parties must initiate a 30-day “open negotiation” period to agree on a payment rate. If no agreement is reached, either party may initiate the IDR process. The parties may use a jointly selected certified IDR entity if they can agree; if not, HHS, DOL and the Treasury Department will select a certified IDR entity for them. After a certified IDR entity is selected, the parties each submit their offers for payment along with supporting documentation. The certified IDR entity will then pick one of the parties’ offers as the OON payment amount. This decision is binding. Both parties must pay an administrative fee of $50 each for 2022. The $50 fee is refunded to the prevailing party, and the non-prevailing party’s fee is retained as the certified IDR entity fee for the use of this process.
When making a payment determination, certified IDR entities begin with the presumption that the qualifying payment amount (QPA) is the appropriate OON amount. The QPA is defined in the rule as the plan or issuer’s median contracted rate. For the IDR entity to deviate from the offer closest to the QPA, information submitted must clearly demonstrate that the value of the item or service is materially different from the QPA.
CMS has developed a No Surprises Act page which includes resources for providers, those interested in being IDR entities and consumers.
Catch up on the "Requirements Related to Surprise Billing; Part I".
Read more about the No Surprises Act and its impact on ASCs.