Question:

I’ve heard the No Surprises Act will apply to me, but I’m a mental healthcare provider in a non-emergency setting. Is that true?

Answer:

Contrary to what the name would suggest, the “No Surprises Act” of 2021 is, indeed, full of surprises for Mental Healthcare Providers. This law is separated into multiple sections, and while most of these sections apply to emergency services (such as ambulance services) or in-network facilities that employee out-of-network providers (often seen in hospital settings), some changes do apply to mental healthcare providers in private practice settings that are providing non-emergency services.

What is the No Surprises Act?

This act is a consumer protection law, and per the Federal Trade Commission, this law “seeks to protect consumers from surprise medical bills arising out of certain out-of-network emergency care.” This act is part of an even larger act, which was signed into law on December 27, 2020, called the Consolidated Appropriations Act. It created new federal code sections, amended previous laws, and did all kinds of wacky things. So if you’re confused, that makes sense, there’s a lot going on.

Because of this, we are monitoring changes that could be applicable to our clients that are mental health providers in the private practice setting. However, because we are not a dedicated healthcare law practice, if you believe that additional portions of this act may apply to you (or simply if you want a second opinion!) we highly encourage you to speak to a healthcare attorney as soon as possible, as this law has already gone into effect.

Part I of the No Surprises Act

Part I of the No Surprises Act is, by and large, not applicable for many of our clients. Part I only applies to therapists working at in-network facilities but that do not personally participate in the client’s health insurance plan. An example of this would be an out-of-network therapist that works at an in-network hospital. Because of this, we’ll spare you the details in this Blawg entry.

Good Faith Estimates

Instead, as of January 1, 2022, the most important part of this law for private practice providers is Part II.  This section of the law requires all healthcare providers and health care facilities licensed, certified or approved by the state, to provide “Good Faith Estimates” of expected charges for services and items offered to clients. This estimate must be provided to both current and prospective clients, based on the client’s preferred method of communication, and if it is provided digitally, the format must be one that would allow the client to save and print.

Please note that if a client is insured and you are able to bill directly to their insurance, then you will still need to create a Good Faith Estimate, but instead, it will be submitted to the client’s plan or issuer of such coverage to inform the advanced explanation of benefits that plans and issuers are required to provide to covered individuals.

Clients must be notified, both orally and in writing, of their ability to receive a Good Faith Estimate. Additionally, ​​information regarding the availability of a “Good Faith Estimate” must be prominently displayed on the facility’s and/or provider’s website, as well as in the office and on-site where scheduling or questions about the cost of health care occur. The U.S. Department of Health & Human Services has stated that this information must be posted in at least two prominent locations on-site.

Timeframe for Notice

Providers and facilities must meet the following deadlines for providing Good Faith Estimates:

• • If the item or service is scheduled at least ten (10) business days in advance, the Good Faith Estimate must be provided within three business days.
  • If the item or service is scheduled at least three (3) business days in advance, the Good Faith Estimate must be provided within one (1) business day.
  • If the individual requests such information, the Good Faith Estimate must be provided with three (3) business days.
    No estimate is required if a service is scheduled less than three (3) business days before the appointment.

Here’s an example of how these timelines work in practice: If a client schedules an appointment on Monday, January 3 for services to be provided on Thursday, January 6, you must provide the Good Faith Estimate no later than Tuesday, January 4. If scheduling occurs on Monday, January 3 for services provided on Thursday, January 13, you must provide the estimate no later than Thursday, January 6. And if a client requests an estimate on Monday, January 3 for services that have not been scheduled, you must provide the estimate no later than Thursday, January 6.

If any information provided in the estimate changes (for example, if there will be a fee increase), a new Good Faith Estimate must be provided no later than one (1) business day before the scheduled care. Also, if there is a change in the expected provider less than one (1) business day before the scheduled care, the replacement provider must accept the Good Faith Estimate as the expected charges.

Providers and facilities that anticipate treating a client throughout the year, may provide a single Good Faith Estimate to that client for those services as long as the estimate includes the expected scope of the recurring primary services (i.e. timeframes, frequency, and total number of recurring services).

The Good Faith Estimate can only include recurring services that are expected to be provided within twelve (12) months. The provider or facility must offer a new estimate for additional services beyond twelve (12) months and discuss any changes between the initial and new estimate. While this seems like a pain in the neck, take this as an opportunity to ensure that you are raising your rates appropriately based on your increasing experience, client caseload, and any other relevant factors!

Record Keeping

Along with providing these estimates, the provider must also retain these estimates in their records. A copy of the estimate must be available to the client up to six (6) years after it was provided. Existing California law requires psychotherapists to keep client records for a minimum of seven (7) of years from the termination of services date, you can streamline your record keeping process by keeping these estimates for seven (7) years instead.

As with all business records, you should also speak to a CPA to ensure you are meeting all requirements related to IRS protocols or other important guidelines!

Disputes

Part II also establishes a process for consumers to dispute provider charges that “substantially exceed” a Good Faith Estimate. If an uninsured or cash-based client is billed for an amount that exceeds the good-faith estimate they were provided, the client can use a new client/provider dispute resolution process under this law to determine a payment amount.

In order to use this process, clients must have a good-faith estimate, been billed within the last 120 calendar days, and the difference between the good-faith estimate and the bill must be at least $400. So in practice, this means they basically have a four (4) month statute of limitations to initiate a dispute on any particular bill.

Pro-tip: make sure when you’re filling out the estimate, that you include the actual amount you’re planning on charging for each service or item. Here’s a direct quote from the Overview of the Interim Final Rules for this act: “the expected charges included in the Good Faith Estimate should reflect what the provider or facility expects to bill or charge the payer….”

Dispute resolution through this law is not handled in a “judge and jury” trial setting. Instead, a third-party arbitrator reviews the good-faith estimate, the bill, and information submitted by the provider or facility to determine if the additional charges are allowed or if the provider or facility can only charge less than the billed charge.

Wrapping Things Up

We hope that this primer served as a helpful resource for you. If you have questions about any of the information above, you should send an email to bertie@inbetterwetrust.com with “No Surprises Act Article” in the subject line, so that we can field your questions appropriately!