- What is the No Surprises Act (NSA)?
The NSA was signed into law in December 2020 and was primarily intended to protect patients/clients from unexpected out-of-network bills for healthcare. The classic example is the person who obtains needed surgery at an in-network hospital, but gets a separate and unexpected (surprise) $25,000 bill from the anesthesiologist after the procedure because the provider was not in-network.
- When do the Act and the CMS/DHHS implementing regulations go into effect?
January 1, 2022
- Does it apply to psychologists? Even those who engage in private practice?
Sections of the NSA apply to facilities and sections apply to all healthcare providers acting within the scope of their state licensure or certification (including psychologists). Thus, licensed psychologists in private practice are subject to its provisions.
- Does it apply to all patients/clients, with or without insurance?
Currently, the requirements apply clearly to two categories of patients/clients:
- Those who are uninsured (i.e., have no insurance at all)
- Those who are “self-pay.” Self-pay patients/clients are defined in the law as including those individuals with insurance who inform the provider that they do not wish to submit a claim for the provider’s services to their insurance plan.
These rules do not apply to people with coverage through programs like Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE because these programs already have patient/client protections in place against unexpected, high medical bills.
- If I am an in-network provider, does this apply to patients/clients for whom I am submitting claims for in-network reimbursement?
Not at present. (See above.)
- What if I am out-of-network and my patient/client wants to submit to their insurance company for out of-network reimbursement? Do the NSA requirements apply in this situation? In other words, would such a patient/client be considered self-pay?
The law is not clear. As a result, until further clarity or guidance emerges, we currently advise that psychologists regard these patients/clients (who have health insurance and intend to submit an out-of-network claim) as falling under the definition of ‘self-pay’ and comply with requirements to provide the NSA notice and good faith estimates to these patients/clients.
- Is there a grace period during 2022 that allows psychologists to forego compliance with the NSA?
No, there is no grace period for the provision of the NSA Notice and Good Faith Estimates. It is possible that it will take some time for CMS/DHHS to ramp up their enforcement processes. Nonetheless, psychologists who fail to comply may take the risk of becoming subject to penalties and repayment requirements.
- How do I comply with the law?
Essentially, there are two steps.
- First, the law has a “notice” requirement regarding the patient’s/client’s right to get an oral and written good faith estimate of the cost of their healthcare. This notice must be posted on the professional’s website (if they have one), posted in their physical office, and provided directly to the patient/client.
- The second step is providing this good faith estimate (GFE) to the patient/client.
CMS has model forms for each of these documents. There are different forms for facilities vs. healthcare providers, so one can encounter different scenarios and there has been some confusion about which forms to use. For facilities, we recommend using the CMS forms without modification (except as indicated in brackets or as may be necessary to reflect applicable state law), rather than creating your own. For healthcare providers, we recommend you use the CMS form for the “Notice” (again, except as indicated in brackets or to reflect state law), but you can use the CMS model or create your own GFE form so long as you include all of the information required by CMS. You can find more clarification about the content and process of providing notice and GFEs, as well as links to the CMS model forms, in our detailed guidance (Guidance on the No Surprises Act (NSA)). The links are also listed below.
The facility model (scenario #1) forms are here:
The provider model (scenario #2) forms are here:
- Can the GFE be included with my general informed consent?
No, it must be physically separate from and not attached to or incorporated into any other documents. The document must not be hidden or included among other forms.
- What are the time frames in which a GFE must be given?
- The psychologist is required to provide the GFE within certain timelines, depending on how far in advance the appointment is made, and whether they are in private practice or associated with a facility. Please see the guidance document: Guidance on the No Surprises Act (NSA) (p. 11, “Scenario #2 Good Faith Estimate Timeframes,” for private practice provider timeframes, and page 7, “Good Faith Estimate Time Frames,” for facility based services).
- What do I put for the diagnosis?
- For continuing patients, we recommend using the diagnosis previously assigned to the patient.
- For new patients, we recommend stating, “To Be Determined” (TBD) or “R69” (ICD-10-CM code for ‘unspecified illness’).
- Do I have to list the exact number of sessions and total cost? What if I don’t know how many sessions will be needed?
- Note your ongoing session fee and indicate that the ultimate total fee for treatment services will be the number of sessions multiplied by the ongoing session fee.
- Include a statement indicating the number of total sessions in the treatment is unknown at the outset and is based on the patient’s needs, preferences, and progress made in the treatment.
- If the total number of sessions can reasonably be predicted (e.g., when a provider furnishes a set number of sessions as part of a standardized time-limited treatment), then the provider should base the GFE on that predicted number of sessions.
- Can I issue a GFE for recurring services (such as ongoing psychotherapy)?
- Yes, a provider or facility may issue a single GFE for recurring primary items or services, but only if the services do not exceed 12 months, and the provider clearly describes the expected scope of those services (such as timeframes, frequency, and total number of recurring services).
- If additional recurring services are expected beyond 12 months, you must provide a new GFE, and communicate the changes when presenting the new GFE.
- What about other services that a patient/client may request during treatment (e.g., letter writing, testimony or court-related work, IEP meetings)?
You would need to provide a GFE for these additional services.
- What if a patient/client changes services during the course of a treatment? Do I need to issue a new GFE?
Yes. Additionally, when you update a GFE you should issue a new form, rather than simply an addendum.
- Can an uninsured or self-pay patient decide not to receive a GFE?
No. If a patient/client refuses the GFE, the provider should, in a non-emergency situation, consider declining to provide services to the patient.
- Does the patient/client have to sign the GFE?
There is a signature requirement for the facility Notice/GFE (Scenario #1 in our preliminary guidance document). There is no specific signature requirement for the documents in Scenario #2. We recommend either:
- Documenting that the patient/client read the relevant NSA documents, had any questions answered, and agreed to their contents; or
- Adding a signature and date line to the GFE.
- Must I put the GFE in the patient’s/client’s record?
Yes. A copy should be placed in the patient’s/client’s chart.
- What if my state has its own law on this issue? Which one do I follow, the state law or the federal law (NSA)?
Some states have their own rules about providing patients with good faith estimates. Where a state’s rules require less than is required by the No Surprises Act, those state rules are pre-empted, and the NSA takes precedence. If you are not sure, consult a local mental health attorney.
- Am I at risk if an insurance company lists inaccurate information about me in their provider directory?
- Yes, if an in-network provider gives, or fails to correct, erroneous information about their in-network/out-of-network status, and a patient relies on this mistaken information, the provider must refund all monies paid by the patient that exceed the in-network amount.
- So, if you leave an in-network insurance panel, be sure the insurance company deletes you from their list of ‘in-network’ providers and document your request to be deleted. Similarly, make sure that all of your materials correctly identify your in-network or out-of-network status for any particular insurance plan.
- If I have more questions about the NSA, what resources are available to me through The Trust?
- You can find our detailed guidance here: Guidance on the No Surprises Act (NSA).
- As a policy holder you are always welcome to call our Risk Management Consultants at 800-477-1200 to schedule a free consultation.