The Good Faith Estimate Requirement Under the No Surprises Act

Effective January 1, 2022, healthcare providers and facilities will be subject to the No Surprises Act (NSA), which establishes federal protections against surprise medical bills. While there are several parts of the NSA that impact some but not all healthcare providers or facilities (e.g., balance billing prohibitions), the requirement to provide good faith estimates (GFEs) to uninsured and self-pay patients applies across the board to virtually all healthcare providers and facilities.  The GFE provisions are the focus of this Client Alert.

To comply with the GFE requirement, providers and facilities must determine if a patient meets the definition of an uninsured or self-pay patient. If so, the patient must be provided with a “good faith estimate” when the patient schedules a service or upon request.

Who is subject to this new obligation?

The GFE provisions of the NSA broadly define both a healthcare provider and a facility.  A healthcare provider means “a physician or other healthcare 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.”  A healthcare facility means “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) in any State in which State or applicable local law” licenses the facility.

What changes are necessary to ensure compliance?

Healthcare providers and facilities will need to implement processes to identify patients entitled to a GFE and to timely calculate and provide such GFE. Below are the GFE obligations under the NSA:

  • Determine the patient’s insurance status. The GFE requirements apply only to uninsured or self-pay patients. Patients who are not enrolled in a health plan, not covered by private health insurance coverage or a federal healthcare program, or not seeking to file a claim with their insurance for care are considered uninsured or self-pay patients.
  • If the patient is uninsured or self-pay, the healthcare provider or facility must inform the patient, both orally and in writing, of the availability of a GFE at the time of scheduling or upon a patient’s request.
    • Healthcare providers and facilities must consider all discussions or inquiries regarding the potential cost of items or services under consideration as a request for a GFE.
  • The format of the GFE should follow the attached sample from the Department of Health and Human Services (HHS). If the patient uses the patient portal, delivery to the portal is acceptable unless the patient requests another format (e.g., mail, email, in-person).
  • The written GFE must be provided timely:
    • If the appointment is scheduled at least three business days in advance, then the GFE must be provided no later than one business day after the date of scheduling;
    • If the appointment is scheduled at least ten business days in advance, then the GFE must be provided no later than three business days after the date of scheduling; or
    • If the patient requests a good faith estimate (without scheduling the service), then the GFE must be provided no later than three business days after the date of the request.
  • If the service includes multiple providers, the provider or facility that originates the service is responsible for coordinating with other providers to compile and send a consolidated, and accurate, GFE.
    • The provider that schedules the service or receives the initial request for a GFE must reach out to the other providers that may also be providing a service to the patient within one business day to request GFE information. Those other providers must send the initiating provider a GFE form by the date requested by the initiating provider.
  • Healthcare providers and facilities must also provide information regarding the availability of GFEs on their website, and physical locations where scheduling occurs (including any on-line scheduling portal page). This notice must be prominently displayed and written in clear and understandable language. A sample notice, based on a model notice from HHS, is attached here.
  • The GFE rules provide patients with a dispute process if the service costs more than $400 over the GFE amount. For this reason, it is important that the healthcare providers and facilities include the cost of all reasonably foreseeable services.  Of course, it is not possible to estimate the cost of unanticipated services that arise due to complications or emergencies.
  • HHS will defer enforcement of the GFE requirement for insured patients that are seeking to submit a claim to their insurance for care.
    • This delay is due to the complexities of developing technical infrastructures for providers and facilities to transmit good faith estimates to an insurer, which must then be included in the advanced explanation of benefits.

With the effective date approaching, healthcare providers and facilities should be working on developing operational processes to ensure all GFE requirements are met.

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