Federal Surprise Billing Round 2 – Good Faith Estimate for Uninsured/Self-Pay Patients & Patient‑Provider Dispute Process

On September 30, 2021, the Departments of Health and Human Services (“HHS”), Labor, and Treasury and the Office of Personnel Management (collectively, the “Departments”) published the second interim final rule implementing certain provisions of the No Surprises Act (“Part II of the IFR”). Part II of the IFR addresses key aspects of the No Surprises Act (the “Act”) not addressed in the Departments’ first interim final rule (“Part I of the IFR”), including the independent dispute resolution process, patient-provider dispute process and the good faith estimate requirements for uninsured and self-pay patients. The requirements outlined in Part II of the IFR will go into effect on January 1, 2022. Comments are due by December 6, 2021. For additional information on Part I of the IFR, please refer to our previous article available here. Please refer to our article available here to learn more about the independent dispute resolution (“IDR”) process.

Good Faith Estimate Requirements for Self-Pay and Uninsured Individuals

Part II of the IFR, addresses the requirement under the Act that providers and facilities furnish a good faith estimate (“GFE”) of expected charges to uninsured and self-pay individuals upon their request and at the time of scheduling the health care item or service. Importantly, Part II of the IFR does not address the process by which providers/facilities must furnish a GFE for patients enrolled in a health plan and are seeking to submit a claim to the plan for such items and services. The Departments announced via frequently asked question guidance on August 20, 2021, that they will defer enforcement of this requirement and investigate whether additional interim solutions are feasible. Please refer to our previous article for additional details.

Compliance with the GFE requirement for uninsured and self-pay patients is effective January 1, 2022, however, the Departments will exercise enforcement discretion with respect to co-providers and co-facilities as further discussed below.

Key Definitions

For purposes of complying with the GFE requirements for uninsured and self-pay individuals, Part II of IFR defines uninsured (or self-pay) individuals as individuals who:

• Do 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 or a federal or state health care program or the Federal Employee Health Benefits Program (“FEHB”);
• Do have benefits for an item or service under a group health plan, or individual or group health insurance coverage offered by a health insurance issuer, but do not seek to submit a claim for such item or service; or
• Are enrolled in short-term, limited-duration insurance, but are not also enrolled in a group health plan, group or individual health insurance coverage offered by a health insurance issuer, federal or state health care program, or the FEHB.

Note, the Act’s GFE requirements apply to a significantly broader group of providers and facilities as compared to the balance billing protections. Per Part II of the IFR, the following types of health care entities and providers are subject to the GFE requirements:

• A “health care facility” or “facility” including 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) licensed in any state in which state or applicable local law provides for the licensing of such an institution, or approved by the agency of such state or locality responsible for licensing such institution as meeting the standards established for such licensing; and
• A “health care provider” or “provider” including a physician or other health care provider acting within the scope of practice of that provider’s license or certification under applicable State law, including a provider of air ambulance services.

GFE Requirements for Providers and Facilities for Uninsured and Self-Pay Patients

In order to determine whether the uninsured/self-pay GFE requirements are triggered, convening providers/facilities must determine whether the patient is a covered individual, and if so, whether he/she intends to submit a claim for the item or service at issue. Under Part II of the IFR, a convening provider/facility is the provider or facility that receives the initial request for a GFE from an uninsured or self-pay individual and is or, in the case of a request, would be responsible for scheduling the primary item or service. In contrast, a co-provider or facility 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 or facility.

If the individual is uninsured or plans to self-pay for the items or services, the convening provider/facility must advise the individual, both orally and in writing, that a GFE of expected charges will be provided upon scheduling or request. CMS has developed a Standard Notice: “Right to Receive a Good Faith Estimate of Expected Charges” that can be used to fulfill the written notice requirement. Notice of the GFE must be: (i) made available in accessible formats and languages; and (ii) prominently displayed on the convening provider/facility’s website, in the office, and on-site where scheduling or questions about the cost of items/services typically occurs.

Convening providers/facilities must consider any discussion regarding the potential cost of items/services under consideration to be a request for a GFE. Therefore, the duty to provide a GFE can be triggered, by: (i) a request to schedule a service or item; (ii) a request for a GFE; or (iii) an inquiry as to the potential cost of a service or item.

GFE Timing Requirements

Within one (1) business day of the GFE trigger date, the convening provider/facility must ask any and all co-providers/facilities reasonably expected to provide items or services in conjunction with the primary service to provide their own GFE of “expected charges” to the convening provider. The Departments define “expected charges” as the cash pay rate for an uninsured (or self-pay) individual, reflecting any available discounts or other relevant adjustments available to the individual patient. Upon receiving such a request from the convening provider/facility, a co-provider/facility has only one (1) business day to comply. If either the expected provider/facility or co-provider/co-facility is changed less than one (1) business day before the service in question is scheduled to be furnished, the replacement provider/facility or co‑provider/co-facility must accept the original GFE provided as its own GFE. This may complicate last-minute transfers between facilities if any significant price differences are present.

The “convening provider/facility” must, in turn, provide a GFE of “expected charges” for all items and services expected to be provided in conjunction with the scheduled or requested items or services (including items and services reasonably expected to be provided by any co-providers/facilities) to an uninsured (or self-pay) individual in accordance with the following timeframes:

• If a service is scheduled at least three (3) days in advance, the GFE must be provided not later than one (1) business day after the date of scheduling;
• If a service is scheduled at least ten (10) days in advance, the GFE must be provided not later than three (3) business days after the date of scheduling;
• If the GFE is otherwise requested by an uninsured or self-pay individual, the GFE must be provided not later than three (3) business days after the request.

Providers/facilities must also provide updated GFEs if any changes are made to the scope of the original GFE, and this update must be provided at least one (1) business day before the services are scheduled to be provided. If a provider/facility provided a GFE to an individual upon request, the provider/facility must provide a new GFE at the time the services are scheduled, regardless of whether or not the information has changed.

If recurring services are involved, a single GFE will suffice only if the GFE includes clear language that explains the scope of the services (including timeframes, frequency, etc.) and an updated GFE is provided every twelve (12) months, should the recurring services exceed this length of time.

Although providers and facilities may provide a verbal GFE to the patient, in order to comply with the IFR’s requirements, they must provide a completed GFE by hard copy, email or mobile app, based on the patient’s preference. Any GFE provided electronically must be in a manner that allows the patient to both save and print it. The GFE is considered part of the patient’s medical record maintained in the same manner as the patient’s medical record. Upon the request of an uninsured of self-pay individual, convening providers and convening facilities must provide a copy of any previously issued GFE furnished within the last six (6) years to such uninsured or self-pay individual.

Content and Format of Good Faith Estimates

The specific content of the GFE will vary based on whether the provider or facility is considered to be a convening health care provider/facility or a co-provider/facility.

The GFE issued by a convening provider/facility must include the following:

• Patient’s name and date of birth;
• A clear description of the primary item or service 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 provided 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:
  • Those items or services are reasonably expected to be furnished by the convening provider or convening facility, and
  • Those items or services expected to be furnished by co-providers or co-facilities;
• Applicable diagnosis codes, expected service codes and expected charges associated with each listed item or service;
• Name, NPI and TIN 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;
• Disclaimers that there may be additional items or services the convening provider/facility recommends that must be scheduled or requested separately;
• The information provided in the GFE is only an estimate of items or services reasonably expected to be furnished at the time the GFE is and that actual charges may differ;
• That the patient has the 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 GFE; and
• That the GFE 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 GFE.

Co-providers/co-facilities must provide the following information to the convening provider/facility:

• Patient name and date of birth;
• An itemized list of items or services expected to be provided by the co-provider or co-facility that are reasonably expected to be furnished in conjunction with the primary item or service as part of the period of care;
• Applicable diagnosis codes, expected service codes and expected charges associated with each listed item or service;
• Name, NPI and TIN of the co-provider or co-facility, and the state(s) and office or facility location(s) where the items or services are expected to be furnished by the co-provider or co‑facility; and
• A disclaimer that the GFE is not a contract and does not require the individual to obtain the items or services from any of the providers or facilities identified in the GFE.

Applicability and Enforcement

The GFE requirements for uninsured or self-pay individuals will go into effect for services scheduled on or after January 1, 2022. However, HHS has acknowledged that it will take time for providers and facilities to develop systems and processes for the exchange of required information between convening providers/facilities and co-providers/co-facilities. Therefore, between January 1, 2022 through December 31, 2022, HHS will exercise its enforcement discretion in situations where a GFE provided by a convening provider to an uninsured or self-pay individual does not include the expected charges of co-providers or co‑facilities. During this period, an uninsured or self-pay may not initiate the dispute resolution process against a co-provider or co-facility as long as the items and services to be provided by the co‑provider/facility appear on the GFE, even if they do not include an estimate of charges or a range of expected charges. However, a co-provider or co-facility is required to provide a GFE directly to an uninsured or self-pay individual who requests one.

Patient-Provider Dispute Resolution Process

Additionally, Part II of the IFR directs HHS to create a patient-provider dispute resolution process (the “Process”) for uninsured (or self-pay) patients to dispute charges for items of services substantially in excess of a GFE. HHS intends to create an online portal (the “Federal IDR portal”) and paper format for patients to initiate and implement this Process prior to the effective date of January 1, 2022.

Initiation and Timeline of the Process

After an individual receives a GFE and a bill that is “substantially in excess” (i.e., at least $400 more than the total amount of expected charges listed in the GFE), the individual may then seek a determination from a selected dispute resolution (“SDR”) entity to determine the amount to be paid by the individual to the provider or facility for such item(s) or service(s).

To initiate this Process, an individual may submit a notification (the “Initiation Notice”) through the Federal IDR portal or on paper, to the Secretary of HHS within one hundred twenty (120) days of receiving the bill containing charges at least $400 more than the GFE. A template of this Initiation Notice, along with other documents related to the Process, may be found here. In addition to an administrative fee as determined by the Secretary of HHS (no more than $25), the Initiation Notice must include the following information:

• Information to identify and describe the items or services under dispute, including the date of when the item or service was provided;
• A copy of the bill for the items or services;
• A copy of the GFE;
• The contact information of the parties involved, including contact information;
• The state where the items or services were furnished; and
• The uninsured (or self-pay) individual’s communication preference.

Upon receiving the Initiation Notice, the SDR entity will notify the patient and the provider or facility that a patient-provider dispute resolution request has been received and is under review. If the Initiation Notice is incomplete or ineligible for the Process, the patient will have twenty‑one (21) calendar days to submit supplemental information. The SDR entity will then notify the patient and the provider/facility when an item/service is deemed eligible for dispute resolution. Thereafter, within ten (10) business days after receipt of the notice from the SDR entity initiating the Process, the provider or facility must submit the following information to the SDR entity:

• A GFE provided to the uninsured (or self-pay) patient for the item or service under dispute;
• A copy of the billed charges provided to the patient; and
• Documentation demonstrating that the difference of the billed charges and expected charges in the GFE reflects the costs of the medically necessary item or service and is based on unforeseen circumstances that could not have been reasonably been anticipated by the provider or facility when the GFE was provided to the patient.

Fees

In the event the patient prevails in the Process, the administrative fee is deducted from the amount the patient may ultimately pay. Additionally, patients are protected from collections while the Process is pending.

Payment Determinations

The SDR entity will make a determination of the payment amount within thirty (30) business days. In making its determination, it will evaluate each unique item or service separately as follows:

For items and services included on the GFE:

• If the billed charge is equal to or less than the expected charge, the payment amount is the billed charge;
• If the billed charge is greater than the expected charge and the difference is not based on the cost of unforeseen, but medically necessary items/services, the payment amount is the expected charge;
• If the billed charge is greater than the expected charge and the difference is based on items/services determined to be medically necessary and unforeseen, the payment amount is the lesser of:
  • The billed charge; or
  • The median payment amount for the same or similar item/service, by the same or similar provider in the geographic area where the item/service was provided according to an independent database. However, if the amount determined by an independent database is less than the expected charge for the item or service listed on the GFE, the amount payable will equal the expected charge.

For items and services not included on the GFE (i.e., new items or services):

• If the billed charge does not satisfy the criteria for costs/unforeseen circumstances, the amount paid is $0; and
• If the billed charge does satisfy the criteria for costs and unforeseen circumstances, the payment amount is the lesser of:
  • The billed charge; or
  • The median payment amount for the same or similar item/service by a same or similar provider in the geographic area where the item/service was provided according to an independent database.

Settlements

Providers and facilities subject to a pending Process may settle the payment amount between themselves and the patient at any time prior to the date of determination by the SDR entity by an offer of financial assistance, negotiation of a lower payment amount or agreement to pay the billed charges in full. The provider/facility must notify the SDR entity within three (3) business days of the agreement.

Deference to State Law

To the extent a state law provides a process for resolving disputes between uninsured/self-pay individuals and providers/facilities that meet/exceed the standards set forth in Part II of the IFR, HHS will defer to the state process.

Practical Takeaways

• Comments to Part II of the IFR are due by December 6, 2021. We encourage stakeholders to consider providing thoughts and outstanding concerns related to any of the requirements contained within Part II.
• Providers/facilities should ensure that their websites contain the required standard notice of the “Right to Receive a Good Faith Estimate of Expected Charges” prior to January 1, 2022.
• Providers/facilities should also ensure the required standard notice of the “Right to Receive a Good Faith Estimate of Expected Charges” is prominently displayed on their websites, in the office setting and on-site where scheduling or questions about health care occur by January 1, 2022.
• Providers/facilities should begin preparing standard forms to provide a GFE to uninsured/self-pay patients. HHS has developed a model GFE form available here. Note, HHS considers use of the model form as good faith compliance with the GFE requirement, though use of this exact form is not required.
• Providers should quickly begin working on developing/implementing operational processes to ensure all GFE notice requirements are met.
• Providers/facilities should continue to comply with any applicable state laws requirements related to the provision of a GFE. The Departments’ decision to defer enforcement of the federal requirement for insured patients does not necessarily alleviate a state law requirement to furnish a GFE to patients enrolled in a health plan.
• Finally, these regulations only address federal GFEs for uninsured patients. Providers should be on the lookout for additional regulations that will address GFEs for insured patients, which will likely be after January 1, 2022.

For more information on surprise billing, please contact:

• Lisa Lucido at (248) 457-7812 or llucido@wp.hallrender.com;
• Angela Smith at (317) 977-1448 or asmith@wp.hallrender.com;
• Laetitia Cheltenham at (919) 447-4968 or lcheltenham@wp.hallrender.com;
• Julie Mitchell at (317) 429-3643 or jmitchell@wp.hallrender.com;
• Kaitlin Nucci at (248) 457-7838 or knucci@wp.hallrender.com; or
• Your primary Hall Render contact.

Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.