Practice Makes Perfect:
Practical Considerations for the No Surprise Act.
In December 2020, Congress passed the “No Surprises Act” as part of a larger appropriations bill. Despite passing over a year before going into effect, the No Surprises Act caught many in the healthcare world, including mental health practitioners, off-guard when it formally went into effect on January 1st of this year. The Act’s broader purpose is indicated in its name: protecting consumers from large, unexpected, or unforeseen medical bills. Previously, such instances could arise when a patient received healthcare services—emergency or scheduled— from a healthcare provider or facility considered out of network or non-participating by that patient’s insurance plan. However, a surprise healthcare bill is typically less common in private mental health practice due to practitioners being ethically required to present clients with an Informed Consent document that details the fees for mental health services in advance. Nonetheless, the Act is now a federal law that applies to all healthcare practitioners; thus, understanding what is expected of you and your practice and complying with the Act is essential to remaining a legally compliant practice.
Given the extensiveness of the No Surprises Act’s provisions and its parts (there are two Parts—Part I and Part II), it would be difficult for us to cover it in-depth in a limited space such as this blog. Instead, we will discuss several best practices for practitioners to consider regarding Part II of the Act only. For specific questions related to either part of the Act or how to best implement policies related to the No Surprise Act, it is strongly recommended to consult with legal counsel to get advice on how the Act affects your practice.
Let’s start with whom Part II applies to and when. Part II of the Act does not apply to clients using insurance to cover mental health services with an “in-network” practice. For the moment, a practice would bill the client’s insurance as they normally would. For those of you who have practiced (or work at a practice) that have clients paying out of pocket, then take note: Part II of the Act likely applies to you. Part II applies when there is a client (or prospective client) who either does not have insurance at all, has insurance you currently are not paneled with, or has private insurance but is choosing to pay out of pocket for mental health services with your practice. Under Part II of the Act, you are now required to present these clients with a Good Faith Estimate (“GFE”) for the mental health services they are to receive.
Ok, you say, so this GFE is something I must comply with. What does that mean, and how do I do that? Great question.
The GFE must be given to new clients before their first session. The Act sets a specific minimum number of days you must provide the GFE before the first scheduled appointment. And yes, both current and new clients must receive a GFE. So yes, if you have current clients, you must also provide a GFE to them too. One suggestion regarding current clients is to provide a GFE in writing before their next scheduled session. For new clients, the GFE essentially becomes another document that the clinician will review with the client during the initial consultation, along with the other intake and orientation forms completed by the new client. The Act also requires you to provide information on the GFE in writing and orally. A good way to handle this is to first send the client the GFE in writing and then, at their next appointment (or for new clients, at their first consultation), review the GFE with them during the appointment.
In addition, there is a difference in how a GFE should be provided depending on who the client is. For example, while you would provide a single GFE for an individual therapy client, for practices providing couples therapy, because you have two clients, they both should receive a copy of the GFE. So what should your GFE contain? In addition to the specific provisions required in the Act, we also recommend practices consider several additional ones. Here are all the ones required as well as additional ones to consider including in the GFE:
- The client’s name, date of birth, and address. Here, the Act specifies that the address provided should be where the health services shall be provided. One recommendation is to consider placing both the clients’ address and the practice’s address on the GFE to comply. This enables the GFE to cover both teletherapy and in-person therapy as needed.
- The name of the practice (or the practitioner) and the NPI number and TIN;
- The expected healthcare services to be provided, when they are to be provided, and the cost/fees. So, for example, if a client is going to be receiving weekly therapy, then the weekly therapy services and the fees for each session should be detailed;
- Any other health services that could be reasonably estimated to be provided, as well as the fees for them;
- The potential billing and diagnosis codes for all services. Here, it might be difficult to provide a diagnosis before starting mental health services with clients, so the suggestion is to pick the code that best fits, and you can always update it later (and then reissue the GFE with the updated diagnosis and code). Additionally, it may be helpful also to have language in your GFE stating that while the diagnosis may change, the fees will remain unchanged (unless your practice raises its fees for services);
- A statement that the GFE is not a contract and that it is an estimate only and may be subject to change or update;
- A statement regarding the client’s rights under the Act, the client-provider dispute resolution process, instructions for where the client can find information about how to initiate the dispute resolution process, and a statement that any dispute will not affect their healthcare services;
Practitioners often ask—Does the GFE need to be signed? Although the Act does not specify that the GFE needs to be signed, we suggest that you have the client(s) sign it for a few reasons.
First, you have your client(s) sign Informed Consent forms and other pertinent ones your practice uses, so why not be consistent with that policy? Regardless, per the Act, the GFE must also be made a part of the client’s file. By having the client(s) sign the GFE, you document the client’s acknowledgment and receipt; this is a great way to create more robust compliance documentation. It is important to note that a client may also always request a copy of a GFE already issued, making it imperative that a copy is in the chart. Clients can also request an updated GFE at any time, and you are obligated to provide them with one upon such a request.
Moreover, if for any reason you increase your fees, or the client begins additional services through your practice, a new GFE must be reissued. A dated signature will document in your chart that this update was provided.
Another area of significant concern regarding the GFE we often hear from practitioners is related to the client dispute provision of the Act. Under the Act, a client could have grounds to initiate the dispute resolution process when a bill is $400 or more than the GFE provided. However, the Act permits a practice/practitioner and a client to resolve a dispute independently, avoiding the dispute resolution process.
Thus practitioners who are diligent in their communication with clients can potentially head off a situation where a client may utilize the dispute resolution process simply by responding timely to clients’ concerns regarding a bill. One of the unique characteristics of the therapeutic relationship, opposed to relationships in other healthcare professions, is the close professional relationship between practitioner and client, allowing for communication regarding fee concerns, often making formal complaints unnecessary.
Additionally, as mental health services are typically billed per session (or they should be!) and not as a lump sum covering multiple services or sessions, the likelihood of a client getting an actual bill for more than the estimated amount detailed in GFE should be relatively low.
So, in sum:
While complying with Part II of the No Surprises Act may require additional documentation, paperwork, and effort by practices to be compliant with federal law, once practices have their GFE process in place, it should be straightforward and just one more of the practice’s procedures for completing mandatory paperwork. Once a system is in place for complying and issuing GFEs, practitioners may find themselves relieved of some of the stress and anxiety they may be feeling over the Act and the GFE.
For more information, other legal considerations regarding the No Surprises Act, or if you should need assistance with anything else related to your Practice, we welcome you to contact us at (443) 595-M-Law or by email at firstname.lastname@example.org.
This article is legal information and is not provided as a source for legal advice. It is made available by Mayer Law, LLC firm for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog, you understand that no attorney-client relationship is established between you and Mayer Law, LLC. This blog should not be used as a substitute for competent legal advice and you should consult with an attorney before you rely on this information.