March 2022

 

Practice Makes Perfect:

Practical Considerations for the No Surprise Act.

Photo 163995791 © Josepalbert13 | Dreamstime.com

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 contact_us@danielmayerlaw.com.

DISCLAIMER:

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.

 

 

 

The development of the Covid-19 vaccine and its release has heralded the return of some semblance of normalcy for Americans (or at least as much as can be expected given the times). For many clients of mental health practices, this means they are now finally willing (and able) to resume in-person therapy appointments. And, as practitioners begin to consider how to reopen their practices for in-person appointments, one of the hottest topics has been the vaccination of clients and what practitioners’ options are regarding providing services to clients who may be unvaccinated. However, before making any decisions, practitioners looking to reopen (or who already have) must be aware of a number of important considerations regarding clients and Covid-19 vaccinations.

So, let’s start with perhaps the biggest question first:  Can practitioners require their clients to get the Covid-19 vaccination?  While it might be legally permissible to require clients to be vaccinated to receive services, it really will depend on your state and jurisdiction. As of the time of this blog, we feel that the legal answer has not yet been firmly established.  Thus, generally, we are of the opinion that practitioners should not be requiring existing clients to be vaccinated in order to continue to receive clinical mental health services.  This is because of the potential for claims of client abandonment otherwise, and because an individual’s decision to be vaccinated is still a personal healthcare decision. A client may also have medical, personal, or religious reasons for why they may decline to get the vaccine, none of which you, as the practitioner, may have any knowledge about, and for privacy reasons, shouldn’t be asking about. If a client volunteers this information on their own, though, that is up to the client.

Another consideration being widely discussed among practitioners is also the source of a major misconception: Can practitioners ask about a client’s vaccination status, and does HIPAA (and its related updates) prohibit practitioners from asking?  So, let’s start with the simple answer: no, HIPAA, which is federal law, does not prevent a practitioner from asking about a client’s vaccination status. As a reminder, HIPAA provides requirements regarding the storage, safeguarding, and access to a client’s protected health information (PHI); a state could potentially create additional laws prohibiting asking about proof of vaccinations without violating federal law.

HIPAA also does not prevent you from asking for and making a copy of a client’s vaccination card to verify their receipt of the vaccine.  In our own law practice, for example, we do recommend that our practitioner-clients get a copy of their clients’ vaccination cards and put them in their clients’ files. However, while HIPAA does not prevent asking for a copy of the vaccine card, HIPAA does require you to protect that information, including the card’s image, once you receive it.  Thus, it is extremely important to know and understand the current rules and regulations in your specific state or local jurisdiction before implementing any policy related to vaccines.  If you are unsure what these are, it is very important that you consider consulting with an attorney. 

So, what are some protocols and procedures practitioners should be considering then? One point to know is that reopening your office does not mean you have to discontinue the use of teletherapy.  Where clinically appropriate and based on client preference, you likely will have some clients who wish to continue with teletherapy.  For those clients who wish to return to in-person therapy, though, you must ensure you are not discriminating against them or refusing to provide services to clients simply because of their vaccination status.  The one thing you should avoid is having one standard or set of services for vaccinated clients and another set for unvaccinated ones.  For example, you want to avoid providing in-office clinical services to vaccinated clients only while allowing unvaccinated clients  to only receive clinical services via teletherapy; that likely could raise a potential claim of discrimination, and thus that type of differential treatment should be avoided. If you offer services in the office to vaccinated clients, you should be also making them available to your unvaccinated clients as well.   

However, what you can do is make use of facemasks to help address possible concerns over health and safety if you do have clients coming into the office who are potentially unvaccinated. Here again, you will be governed by what your state or local rules are if any are in place currently.  As of now, many states, including Maryland, have lifted their mask mandates.  So long as your local or state rules do not require masks, as a private business owner, you have the right to decide what is the right option for your practice when it comes to facemasks.  So some use of facemasks can be very helpful and it does not need to be fully required for everyone. For instance, you may consider allowing vaccinated clients into your office without facemasks while requiring unvaccinated clients to wear masks. A policy like this is not likely going to raise claims of discrimination because you still provide the same services to both vaccinated and unvaccinated clients. The justification here is that your practice is implementing procedures (such as facemasks) to prevent the spread of a communicable virus for health and safety reasons; you are not denying service to anyone, or abandoning clients simply because they are not vaccinated.

          Another point for practitioners to consider is how to handle minor clients.  As of this blog’s publishing, the Covid-19 vaccine is not available to children under the age of 12.  So, suppose you have unvaccinated adult clients coming into your physical office space along with minor clients (particularly under the age of 12 and/or any who are not vaccinated themselves). In that case, you may want to consider requiring masks for all minor clients under the age of 12 (or minor clients who are not vaccinated) to prevent the spread of Covid-19 to your minor clients.  Ultimately, each practice will need to determine what is the right approach when it comes to facemasks and their office. A warning  for practitioners to be aware of regarding the termination of unvaccinated clients, though. You want to be very careful regarding discontinuing services to existing clients simply because they are not vaccinated; this is very risky due to the potential for claims of abandonment .  We strongly recommend you consult with an attorney before making any drastic decisions related to terminating clinical services for unvaccinated clients of your practice if there are issues due to their vaccination status.

          Finally, it is also important to note that everything we discuss in this blog is potentially subject to change.  What are accurate or reasonable suggestions now may be irrelevant or not applicable in the coming months or the following year.  Depending on how the Fall and Winter of 2021 go, there may be a resurgence of Covid-19 or new variants that emerge that pose new risks or which potentially can be spread among vaccinated populations (the Delta variant is an example of this risk).  Local municipalities and states may reenact mask laws or renew other restrictions depending on whether there is a resurgence of Covid-19.  Renewed regulations could impact efforts by practices to reopen or the policies and procedures they implement.  Thus, it is supremely important that you stay aware of your current local and state regulations and consult with an attorney if you are unsure or need guidance. 

In conclusion, by considering the points we have discussed in this blog, practitioners can begin to consider policies they may want to implement regarding clients as they start to reopen their physical office.  As always, these should be done carefully, and if you are unsure, you need to be consulting with an attorney or other compliance-related individual or entity (such as your liability insurance company) to determine how to best implement policies.

For more information, to set up a consult, to get help with determining policies for your own office as you start to re-open, or for other legal considerations regarding your practice, please contact Mayer Law, LLC today at (443) 595-M-Law or by email at contact_us@danielmayerlaw.com.

 

DISCLAIMER:

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 there is no attorney-client relationship 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.

December 2020:

 

PRACTICING PRECAUTION:

RE-OPENING YOUR OFFICE IN A PANDEMIC.

 

 

“If one thing has become clear, the need for mental health services has increased during this time….”

 

“….In the event you are planning on re-opening your office, precautions must be taken.”

If one thing has perhaps defined 2020 more than anything (yes, even more than the Presidential election), it is Covid-19. In the span of eight months, the world changed in ways that could not possibly be imagined before March of 2020. The world of healthcare and mental health, far from being immune to the impact, have been indelibly reshaped in the face of this global pandemic. One of the largest impacts that Covid-19 has had on mental health and healthcare practices is how to continue to operate a business safely while providing critical and much-needed services to the community.

 

If one thing has become clear, the need for mental health services has increased during this time. (Epidemic within the pandemic:’ Mental health problems increase during COVID ). And though a vaccine may now be on the horizon, the pandemic is only getting worse. Thus, it is imperative that mental health and health care practices ensure that they have implemented strategies and policies that will enable them to operate safely. Most importantly, take precautions and steps necessary in the event that a client or staff member is exposed to or contracts Covid-19.

 

While most mental health practices have transitioned to providing services via telehealth only, those who have begun to open for in-person sessions may want to consider having a COVID-19 waiver for clients to sign outlining the preventative measures taken by the office and its limits. Clients must understand that receiving services in-person, even with the best precautions taken, holds inherent risk. By signing this waiver, the practice can ask the client to waive liability for the practice should the client contract Covid-19 despite the practice’s best efforts.

 

Before clients return to the office, it is crucial to inform the client of self-screening guidelines and the importance of not coming to the office if they are symptomatic or exposed to someone with Covid-19. The client can be asked qualifying questions to ensure that the client is not infectious or exposed to anyone with Covid-19 symptoms. Offices can also take client temperatures upon arrival. You might also instruct clients on who to contact if they should become symptomatic or test positive in the days after an appointment. In the form we draft for our practices, we emphasize to clients the importance of considering teletherapy when it’s an option.

 

When developing plans to reopen, practices must check their local and state ordinances regarding reopening. As Covid-19 cases have begun spiking across the country, many locales have increased their regulations regarding Covid-19. In Maryland, for example, masks are required to be worn indoors at all times; thus, practitioners, their staff, and their clients are required to wear masks during in-person therapy sessions and any other parts of the office, including any common areas.

 

Additional precautions might include prohibiting anyone other than clients with a scheduled appointment in the office. Waiting room procedures can also be adjusted as a precaution, such as having clients wait in their car before sessions and having anyone accompanying them remaining in their car or outside the building. In Maryland and many other states, there is a limit on the number of people allowed inside an office at any one time.

 

When scheduling clients, you should consider scheduling extra time between sessions to provide clients time to arrive and leave and encourage social distancing. Extra time will also provide your therapists time to wipe down surfaces in their office and sanitize. Sanitation procedures may include a system for cleaning pens or items used during the office visit. Consider having a “dirty bin” where items that need to be sanitized can be placed.

 

Of course, none of these procedures will be useful if your office staff does not know them and is not following them. Therefore, it is crucial to educate your staff in writing and have them sign their understanding. Holding staff accountable is critical; set the expectation that these are mandatory to follow or risk discipline.

 

Right now, Covid-19 cases are skyrocketing. Experts predict the worse is still to come this winter. As such, teletherapy is still recommended for therapy for clients when possible, and this is something that you may want to communicate with clients, that it is the Practice’s preference to do teletherapy whenever possible.

 

However, in the event you are planning on re-opening your office, precautions must be taken. The suggestions made in this article, when implemented, may help you so you can do so safely in this unprecedented time.

For more information or  to set up a consult or get help with policies and procedures for your  own office, or for other legal considerations regarding your practice, please contact Mayer Law, LLC today at (443) 595-M-Law or by email at contact_us@danielmayerlaw.com.

 

 

 

 

 

DISCLAIMER:

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 there is no attorney-client relationship 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.