Good Faith Estimate and No Surprise Act

[TexasPhysician]

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In reading over the No Surprise Act, it appears that providing a good faith estimate may apply to all physicians providing out of network care. This would hit psychiatrists hard due to so many of us having cash practices.

The requirement is to provide a good faith estimate before the patient is seen for the year. It also wants a diagnosis on the good faith estimate we provide. We are expected to be psychic?

Taken a step further, some psychiatrists employ counselors, nutritionists, etc. A patient could utilize all or 1 of the services. An estimate for treating depression with psychiatric follow-ups, nutritionist follow-ups, and counseling could be vastly different than electing for q3 month med management visits.

Patients may start a government dispute if their total fees are $400 or more than the good faith estimate provided. This has punishments. If the patient wins, they pay no more than the total on the good faith estimate.

So in total, we are somehow expected to guess a diagnosis and guess the yearly cost of treatment accurately without being under by more than $400.

The only solution I see so far is to provide a “good” faith estimate that is beyond the cost of what any patient could utilize in a year. Essentially we provide a terrible faith estimate to prevent being punished. However if we give patients a “Good” faith estimate of $50,000, who would still come see us? Can it be a massive range instead?

I’m hoping that I’m misunderstanding this law. If I’m not, I could easily see overhead costs going up $20,000+ for staff to constantly generate these things.

 

[nexus73]

When is the legal challenge going to overturn this?

 

[liquidshadow22]

Does sound brutal.

Are you sure this applies to the outpatient setting? Could you provide the excerpt supporting that?

I thought this was mainly related to out of network providers in inpatient facilities or emergent care.

I doubt most patients would be knowledgable about this act as long as they know the cost of cash visits up front, I don't see them disputing your charges.

 

[Old&InTheWay]

In reading over the No Surprise Act, it appears that providing a good faith estimate may apply to all physicians providing out of network care. This would hit psychiatrists hard due to so many of us having cash practices.

The requirement is to provide a good faith estimate before the patient is seen for the year. It also wants a diagnosis on the good faith estimate we provide. We are expected to be psychic?

Taken a step further, some psychiatrists employ counselors, nutritionists, etc. A patient could utilize all or 1 of the services. An estimate for treating depression with psychiatric follow-ups, nutritionist follow-ups, and counseling could be vastly different than electing for q3 month med management visits.

Patients may start a government dispute if their total fees are $400 or more than the good faith estimate provided. This has punishments. If the patient wins, they pay no more than the total on the good faith estimate.

So in total, we are somehow expected to guess a diagnosis and guess the yearly cost of treatment accurately without being under by more than $400.

The only solution I see so far is to provide a “good” faith estimate that is beyond the cost of what any patient could utilize in a year. Essentially we provide a terrible faith estimate to prevent being punished. However if we give patients a “Good” faith estimate of $50,000, who would still come see us? Can it be a massive range instead?

I’m hoping that I’m misunderstanding this law. If I’m not, I could easily see overhead costs going up $20,000+ for staff to constantly generate these things.

I think you are definitely misunderstanding this law. It's designed to prevent absurd bills from emergency services and when patients unknowingly get care by OON providers at an in network facility. There is nothing here about estimating a total cost to treat a particular illness.

Also, how could a patient coming to a cash practice be surprised by their bill? "My rate is $300/hr" is an exact estimate of what they will be charged. They can stop coming/paying at any time.

 

[TexasPhysician]

I think you are definitely misunderstanding this law. It's designed to prevent absurd bills from emergency services and when patients unknowingly get care by OON providers at an in network facility. There is nothing here about estimating a total cost to treat a particular illness.

Also, how could a patient coming to a cash practice be surprised by their bill? "My rate is $300/hr" is an exact estimate of what they will be charged. They can stop coming/paying at any time.

I hope you are correct. The American Psychological Association has already released a statement on how it impacts all out of network therapists/psychologists.

New billing disclosure requirements take effect in 2022

Beginning January 1, 2022, psychologists and other health care providers will be required by law to give uninsured and self-pay patients a good faith estimate of costs for services that they offer.

www.apaservices.org

 

[Old&InTheWay]

I hope you are correct. The American Psychological Association has already released a statement on how it impacts all out of network therapists/psychologists.

New billing disclosure requirements take effect in 2022

Beginning January 1, 2022, psychologists and other health care providers will be required by law to give uninsured and self-pay patients a good faith estimate of costs for services that they offer.

www.apaservices.org

I know there can be unintended consequences, but it sounds pretty straightforward to me and doesn't sound like it's intended to be a "gotcha" for providers. I don't think the expectation is to provide a diagnosis and then give a cost estimate for treating the diagnosis in its entirety. It's more like "here's what I'm gonna do for you this visit and here's what you can expect it to cost you."

 

[TexasPhysician]

I know there can be unintended consequences, but it sounds pretty straightforward to me and doesn't sound like it's intended to be a "gotcha" for providers. I don't think the expectation is to provide a diagnosis and then give a cost estimate for treating the diagnosis in its entirety. It's more like "here's what I'm gonna do for you this visit and here's what you can expect it to cost you."

Saying it is based on providing a total for the year. Shouldn’t be under total charge by $400. Could over-estimate by my understanding.

 

[trophyhusband]

So reading through everything it does look like this is required for all self-pay (people with insurance who will not be seeking reimbursement) and uninsured individuals. I'm not sure they actually have the legal authority to do this but that will be decided at a later date.

You're supposed to ask everyone if they're using their their out of network benefits or if they are uninsured and basing it on that.

So here's what I'm thinking.... and one of the reasons why keeping things small and simple from a practice perspective might be beneficial in this one instance. We already have everyone sign a financial policy so maybe we just append this to that and have all current patients sign new ones and everyone else is required to sign one before they ever get scheduled anyway.

Thinking something like (from the required elements that I see):

Description of Primary Service: Medication Management

Initial Consultation - $XXX
One month follow up - $XXX per hour
Three month follow up - $XXX per hour
Six month follow up - $XXX per hour
Nine month follow up - $XXX per hour
Twelve Month follow up - $XXX per hour
Total Estimate for twelve months of service - $XXX
(Note: most follow ups are 1/2 hour but this estimate is created using one hour follow ups)

Diagnosis Code: Estimate rates are not dependent on diagnosis code

Name of Physician: X
NPI: X
TIN: X

Disclaimer: Physician my infrequently require monthly follow up in acute circumstances or patient may choose to follow up more frequently than estimated.

Disclaimer: Patient's right to initiate dispute resolution process... blah blah blah

Disclaimer: Good Faith Estimate does not constitute a contract... blah blah blah

*Required Patient signature and DOB

That gets you all of the elements and we're already requiring everyone to sign these anyway. We'll just have send out new ones at the start of every year. This is probably not what they intended or want but who cares as long as you're meeting the letter of the law. We'd add most of this to the website as well.

 

[liquidshadow22]

wouldnt it make sense to just over estimate the cost by a lot to avoid the patient actually being able to recoup any cost if you're > $400 difference?

Obvious downside would be scaring the patients away but you could just say that is worst case scenario.

 

[Old&InTheWay]

Where does it say you have to predict a years worth of care?

 

[TexasPhysician]

Where does it say you have to predict a years worth of care?

The alternative appears to be providing a good faith estimate prior to every appointment. That just seems burdensome and annoying.

 

[dl2dp2]

I already do this. However I only give clear written specification of fee schedule prior to scheduling, which my reading of this law seems enough. The rest of the law just says that the disclosure needs to be in a standardized format.

Frankly I thought all private cash psychiatrists did this, which is why I was always confused when docs in ER can just charge without telling you how much it is.

 

[TexasPhysician]

I already do this. However I only give clear written specification of fee schedule prior to scheduling, which my reading of this law seems enough. The rest of the law just says that the disclosure needs to be in a standardized format.

Frankly I thought all private cash psychiatrists did this, which is why I was always confused when docs in ER can just charge without telling you how much it is.

I think we are pretty clear about prices up front, but the specifics of this law really neglect us. My translation involves us either providing a written reminder upon scheduling every visit or a 12 month estimate that can’t under-estimate total cost. It’s frustrating that I need to provide such an estimate prior to the initial eval.

 

[Mass Effect]

I think we are pretty clear about prices up front, but the specifics of this law really neglect us. My translation involves us either providing a written reminder upon scheduling every visit or a 12 month estimate that can’t under-estimate total cost. It’s frustrating that I need to provide such an estimate prior to the initial eval.

But isn't it already part of what you're providing if you're clear about prices up front? I think you just need to tweak it.

I charge X/hr for initial and X/hr for follow up. Typical follow up schedule is as follows. If you come in between appts or if I need to see you due to side effects or med change, you get charged my f/u rate. If you call between appts, you get charged my phone rate. This is based on (insert diagnosis) diagnosis. Should other diagnoses be made, it may affect the number of appts or total appt time, which can affect cost.

 

[splik]

I think we are pretty clear about prices up front, but the specifics of this law really neglect us. My translation involves us either providing a written reminder upon scheduling every visit or a 12 month estimate that can’t under-estimate total cost. It’s frustrating that I need to provide such an estimate prior to the initial eval.

I don't where this myth that you have to do a 12 month estimate came from. If you read the guidance it says you can provide an estimate for UP TO 12 months of care. It could be done per month, quarterly, whatever, just not more than 12 months at a time. And if you just get payment at the time of the appt or before then there is no need to provide an estimate at all. I don't recommend providing a GFE for more than the initial encounter to begin with or you might create a doctor-patient relationship or expectation of ongoing care.

 

[TexasPhysician]

And if you just get payment at the time of the appt or before then there is no need to provide an estimate at all. .

Where are you seeing this? I agree that I’d rather not do a 12 month GFE, but teaching my staff to create and send 1 upon scheduling every appointment is a gigantic waste of time.

 

[trophyhusband]

I don't where this myth that you have to do a 12 month estimate came from. If you read the guidance it says you can provide an estimate for UP TO 12 months of care. It could be done per month, quarterly, whatever, just not more than 12 months at a time. And if you just get payment at the time of the appt or before then there is no need to provide an estimate at all. I don't recommend providing a GFE for more than the initial encounter to begin with or you might create a doctor-patient relationship or expectation of ongoing care.

I'm not seeing anywhere that charging at the time of service gets you out of this since the estimate is required to be sent before the appointment. Charging in full at the time of scheduling would probably work in most instances after the initial appointment but that won't fly in my wife's market.

I don't think that last part is an issue as long as your paperwork states that initial consultation is just that and a decision to move on to treatment will be made by both parties after the consultation. Just make sure to keep your wording consistent between your estimate and the the other documents that spell that out.

The 12 month thing is just an ease of use thing for small practices. It's actually not the worst thing in the world because it will force us to consider her fee schedule every year when we update the estimates and send them out to everyone. We currently have an inconsistency between the hourly rate (and intake rates) vs. the 1/2 hour rate that was inherited from another doctor who left practice right before she opened hers. So now we'll align the hourly rates with the higher 1/2 hour rate and blame it on the government requiring GFEs... easy scapegoats FTW.

 

[clausewitz2]

The 12 month thing is just an ease of use thing for small practices. It's actually not the worst thing in the world because it will force us to consider her fee schedule every year when we update the estimates and send them out to everyone. We currently have an inconsistency between the hourly rate (and intake rates) vs. the 1/2 hour rate that was inherited from another doctor who left practice right before she opened hers. So now we'll align the hourly rates with the higher 1/2 hour rate and blame it on the government requiring GFEs... easy scapegoats FTW.

Yeah, our practice will have to do this soon and I had been wondering about cover for a fee increase. This is fairly perfect.

 

[sighchiatry]

Yeah, our practice will have to do this soon and I had been wondering about cover for a fee increase. This is fairly perfect.

I am also considering using this as a chance to increase fees. But since this needs to be implemented next week, seems to be a little too early. I like to give my patients at least a month heads up of rate changes - ideally two months.

Here is what the APA says. Seems like it's going to be a pain.

No Surprises Act Implementation

Learn more about the implementation of the “No Surprises Act” (the Act), which allows for patient financial protections that impact health plans, physicians, and facilities, will apply to psychiatrists in certain circumstances.

www.psychiatry.org

 

[mistafab]

If I am not mistaken, just briefly reading these rules, if you just posted a paper on the wall of your clinic that said "300/hr" you would meet the criteria for this act.

 

[Candidate2017]

It seems the aim of the law is to reduce surprise bills. This works where a patient, for example, agrees to surgery with their doctor, then an out of network CRNA whom the patient has never seen shows up 10 minutes before surgery, and patient gets a surprise $2000 bill.

But there aren't any surprise bills from one's outpatient cash pay (or insurance) psychiatrist. And the odds of a cash pay psychiatry patient filing a complaint about this regulation is quite low. Probably much lower than getting sued.

If the cost of implementing this additional bureaucratic requirement exceeds the risk, it may be rational to decline implementing it. Just like many doctors choose to take the MIPS/MACRA penalty as another cost of doing business (we already have all kinds of people with their hands in our pockets, like CME, licenses, MOC, EMR, landlords, etc). Though, it appears a simple boilerplate template distributed at intakes and annually should suffice.

And if I make a template that doesn't neatly check every single bureaucratic box (but kills trees and wastes patients' toner), so what? Again, the likelihood of been taken to task over this is low. If an outpatient wants to pull this nonsense, then thank you for letting me know you would be better served by an NP. I'm sure all of us just going about our business are violating at least 10 obscure bureaucratic regulations on daily basis. I'm just going to focus on seeing and treating patients.

 

[TexasPhysician]

The more I look around, the more I think it doesn’t apply to all-cash practices. I think the biggest burden in psych will be those that take 1 insurance but still have a high percentage cash pay.

 

[trophyhusband]

The more I look around, the more I think it doesn’t apply to all-cash practices. I think the biggest burden in psych will be those that take 1 insurance but still have a high percentage cash pay.

What makes you say this? I was wondering about the folks who are "self-pay" as that seems more directed at folks who could use their benefits but are choosing not to do so. But I don't see a way around the requirement for uninsured folks. So I'm interested to know what you're seeing that's making you reassess.

On its face it does seem rather silly as the fees are listed on the website and every single patient signs a financial policy that lists all fees as well.

 

[TexasPhysician]

What makes you say this? I was wondering about the folks who are "self-pay" as that seems more directed at folks who could use their benefits but are choosing not to do so. But I don't see a way around the requirement for uninsured folks. So I'm interested to know what you're seeing that's making you reassess.

On its face it does seem rather silly as the fees are listed on the website and every single patient signs a financial policy that lists all fees as well.

The part about the Good Faith Estimate is listed as Part 2 of an Act. Part 1 doesn’t include all cash practices in the definition.

If I think about my contracts with other entities, language like “psychiatrist will perform evaluations….” exist. The language is generic, but because the initial part of the contract defined the included parties then it doesn’t matter. It seems really stupid to specify who the included parties are in Part I, and then Part II say forget what you read in part I, we are now taking about everyone.

 

[trophyhusband]

The part about the Good Faith Estimate is listed as Part 2 of an Act. Part 1 doesn’t include all cash practices in the definition.

If I think about my contracts with other entities, language like “psychiatrist will perform evaluations….” exist. The language is generic, but because the initial part of the contract defined the included parties then it doesn’t matter. It seems really stupid to specify who the included parties are in Part I, and then Part II say forget what you read in part I, we are now taking about everyone.

The overall act defines any provider acting under a state license. It's a pretty wide net.

I still question whether it's necessary at all if you have your rates listed on your website and you have everyone sign a financial policy before they schedule. But it's not that hard to implement other than making me keep track of making sure all of her existing patients sign their new form. So I think we're just going to go ahead and do it.

 

[TexasPhysician]

The overall act defines any provider acting under a state license. It's a pretty wide net.

I still question whether it's necessary at all if you have your rates listed on your website and you have everyone sign a financial policy before they schedule. But it's not that hard to implement other than making me keep track of making sure all of her existing patients sign their new form. So I think we're just going to go ahead and do it.

Part I never specifies all providers. The Good Faith Estimate part is almost the last aspect of Part II. If this was meant for all providers, they shouldn’t have narrowed the scope in Part I.

The biggest issues I have with this is that the definition of a Good Faith Estimate in their mind requires a Diagnosis upon scheduling and then we either provide this again at every appointment or we provide a 12 month “game plan” that can’t be under by $400.

 

[calvnandhobbs68]

It seems the aim of the law is to reduce surprise bills. This works where a patient, for example, agrees to surgery with their doctor, then an out of network CRNA whom the patient has never seen shows up 10 minutes before surgery, and patient gets a surprise $2000 bill.

But there aren't any surprise bills from one's outpatient cash pay (or insurance) psychiatrist. And the odds of a cash pay psychiatry patient filing a complaint about this regulation is quite low. Probably much lower than getting sued.

If the cost of implementing this additional bureaucratic requirement exceeds the risk, it may be rational to decline implementing it. Just like many doctors choose to take the MIPS/MACRA penalty as another cost of doing business (we already have all kinds of people with their hands in our pockets, like CME, licenses, MOC, EMR, landlords, etc). Though, it appears a simple boilerplate template distributed at intakes and annually should suffice.

And if I make a template that doesn't neatly check every single bureaucratic box (but kills trees and wastes patients' toner), so what? Again, the likelihood of been taken to task over this is low. If an outpatient wants to pull this nonsense, then thank you for letting me know you would be better served by an NP. I'm sure all of us just going about our business are violating at least 10 obscure bureaucratic regulations on daily basis. I'm just going to focus on seeing and treating patients.

Yeah I think this is the approach I might take. I mean the only penalty is that the patient can "dispute" the bill if it's more than a $400 difference from the estimate. there also doesn't seem to be any penalty anyway from CMS standpoint for not complying with this in general unless you're actually surprise balance billing someone.

I actually think the attached PDF might work for most outpatient practices for cash patients. Could just put on the last page times x occurences over 12 months as an estimate and make some note that the frequency of visits may change based on patient need for f/u visits and will be agreed to by provider and patient. Honestly, I see this being very little of an issue for outpatient psychiatry...if people are in your office they generally know how much of a pain it is to get in with psych anyway and the ones that are gonna pretend to be surprised for getting charged for their office visits you probably want to dump in any case.

 

[trophyhusband]

Part I never specifies all providers. The Good Faith Estimate part is almost the last aspect of Part II. If this was meant for all providers, they shouldn’t have narrowed the scope in Part I.

The biggest issues I have with this is that the definition of a Good Faith Estimate in their mind requires a Diagnosis upon scheduling and then we either provide this again at every appointment or we provide a 12 month “game plan” that can’t be under by $400.

https://www.federalregister.gov/documents/2021/07/13/2021-14379/requirements-related-to-surprise-billing-part-i

It's under the definitions portion:

"The Departments note that these interim final rules define the term “physician or health care provider” to mean a physician or other health care provider who is acting within the scope of practice of that provider's license or certification under applicable state law, but the definition specifically excludes providers of air ambulance services. "

 

[trophyhusband]

Yeah I think this is the approach I might take. I mean the only penalty is that the patient can "dispute" the bill if it's more than a $400 difference from the estimate. there also doesn't seem to be any penalty anyway from CMS standpoint for not complying with this in general unless you're actually surprise balance billing someone.

I actually think the attached PDF might work for most outpatient practices for cash patients. Could just put on the last page times x occurences over 12 months as an estimate and make some note that the frequency of visits may change based on patient need for f/u visits and will be agreed to by provider and patient. Honestly, I see this being very little of an issue for outpatient psychiatry...if people are in your office they generally know how much of a pain it is to get in with psych anyway and the ones that are gonna pretend to be surprised for getting charged for their office visits you probably want to dump in any case.

They had proposed a $10k penalty for each occurrence not providing a GFE but it looks like that was dropped. So yeah, it looks like no real penalty... I just finished putting it together but maybe we will just skip it. I have a real hard time seeing how anything would come of a complaint when patients have multiple ways of seeing the rates one of which they are required to sign before they ever become a patient.

 

[Sushirolls]

Wait, there isn't a penalty?

 

[TexasPhysician]

https://www.federalregister.gov/documents/2021/07/13/2021-14379/requirements-related-to-surprise-billing-part-i

It's under the definitions portion:

"The Departments note that these interim final rules define the term “physician or health care provider” to mean a physician or other health care provider who is acting within the scope of practice of that provider's license or certification under applicable state law, but the definition specifically excludes providers of air ambulance services. "

That same phrase/definition is in most contracts. It just defines what a physician is. That doesn’t mean it applies to all.

On your same link, read under -

B. Preventing Surprise Medical Bills​

1. SCOPE OF THE NEW SURPRISE BILLING PROTECTIONS​

I’m not seeing a category that includes all cash practices.

When I sign a contract, the first few paragraphs define who is involved in the contract and the purpose. Later in the contract, it may say “psychiatrist” instead of my name, but I know that relates to me.

The Good Faith Estimate in Part II of the Act is clarifying how those within the scope of the bill will comply with this Act.

Or maybe I don’t understand this well. Who does?

 

[TexasPhysician]

Wait, there isn't a penalty?

I saw the $10k penalty, but I’m not sure if that part passed. Even if it did, expect that to be the maximum after the agency works with you to correct the issue. This is a huge mess.

I’m submitted proof of HIPAA violations that come with penalties up to $25k. The penalty in every case was working with the agency to prevent it from happening again. 0 monetary penalties.

 

[Sushirolls]

Which is why I created a similar thread few weeks back trying to ascertain if outpatient insurance or cash psychiatrists were caught up in the bureaucratic mess.

The whole no surprise act is nothing more than a gift to the insurance companies and entities like UHC are going to milk this for every penny they can. "providers" will be on the losing end of this act, and only hastens the healthcare demise. I've already started telling young family to stay away from medicine.

 

[Sushirolls]

I saw the $10k penalty, but I’m not sure if that part passed. Even if it did, expect that to be the maximum after the agency works with you to correct the issue. This is a huge mess.

I’m submitted proof of HIPAA violations that come with penalties up to $25k. The penalty in every case was working with the agency to prevent it from happening again. 0 monetary penalties.

If there truly is no penalty I'm thinking I may ignore this, and do what I already do.
Patient asks for an estimate up front, we provide a range of codes and what their insurance contracted rate is, and if we are able some idea of what their out of pocket might be.

But because we are Psychiatry, we routinely get a wide range of processed claims. Some times we are specialist, some times a primary care. And then there are sub networks in insurance. I can't tell you how many times I swore from review of insurance sites a co-pay was $XYZ but ended up being $QRS after processed.

 

[calvnandhobbs68]

Yeah it's not clear there is a penalty looking at various sites about this or if there is a penalty, seems to be primarily directed towards "surprise" balance billing.

Honestly, I think what i'll recommend is we have patients sign the waiver at the end I attached above for any OOP patients (I only have like 1-2 anyway cause I'm in network with 5 insurance panels) and that can be that. It's basically exactly what it's made for:
"The Departments express the view that consent to waive NSA protections should be obtained only in limited circumstances – where the patient knowingly and purposefully seeks care from an out-of-network provider – and not to circumvent the law’s consumer protections"

No Surprises Act Implementation: What to Expect in 2022 | KFF

The “No Surprises Act,” which establishes new federal protections against most surprise out-of-network medical bills when a patient receives out-of-network services during an emergency visit or from a provider at an in-network hospital without advance notice, will take effect next month. A new...

www.kff.org

I know one of the exclusions are:

• Items and services provided by an out-of-network provider if there is not another in-network provider who can provide that service in that facility

But who the F cares, the probability this actually causes any problems on the outpatient side is crazy small and the bullet point above is obviously unreasonable for outpatient practices in general. Just have the same basic template for every person with the same "estimated cost" crap at the end and that'll be that, if you even want to do it.

 

[trophyhusband]

That same phrase/definition is in most contracts. It just defines what a physician is. That doesn’t mean it applies to all.

On your same link, read under -

B. Preventing Surprise Medical Bills​

1. SCOPE OF THE NEW SURPRISE BILLING PROTECTIONS​

I’m not seeing a category that includes all cash practices.

When I sign a contract, the first few paragraphs define who is involved in the contract and the purpose. Later in the contract, it may say “psychiatrist” instead of my name, but I know that relates to me.

The Good Faith Estimate in Part II of the Act is clarifying how those within the scope of the bill will comply with this Act.

Or maybe I don’t understand this well. Who does?

Federal regs aren't contracts when they put something in a definition they are literally saying every time we use this term anywhere they are referring to all of this class of individuals/organizations.

 

[TexasPhysician]

Federal regs aren't contracts when they put something in a definition they are literally saying every time we use this term anywhere they are referring to all of this class of individuals/organizations.

My attorney tried explaining this to me. His argument was that legally it is impossible to create a Part II of something that expands the scope beyond Part I. If it is meant for all physicians, the government should have rewritten Part I for all physicians. They didn’t. The mere presence of it being in part II negates the ability to include me. They can use whatever language they want in Part II, but Part II can only specify/clarify/relate to aspects of Part I.

I need to go to law school for this.

 

[trophyhusband]

My attorney tried explaining this to me. His argument was that legally it is impossible to create a Part II of something that expands the scope beyond Part I. If it is meant for all physicians, the government should have rewritten Part I for all physicians. They didn’t. The mere presence of it being in part II negates the ability to include me. They can use whatever language they want in Part II, but Part II can only specify/clarify/relate to aspects of Part I.

I need to go to law school for this.

I'm guessing your attorney doesn't deal with a ton of Federal regs. The APAs and others who are putting out guidance do and they're all saying the same thing. Your attorney might be right in that in the end this can be questioned on those grounds but you don't want to be the test case.

I also question the authority that they have to enforce any of this if you are licensed in one state and therefore only see patients in that one state and don't have any other entanglements that put you under the purview of Federal authority in these matters (don't take insurance which could cross state lines, don't accept Medicare, etc). But of course we don't want to be the test case for that either.

I've been looking for penalties in Part II and am still not seeing anything so we'll probably just ignore it and see what happens.

 

[TexasPhysician]

I'm guessing your attorney doesn't deal with a ton of Federal regs. The APAs and others who are putting out guidance do and they're all saying the same thing. Your attorney might be right in that in the end this can be questioned on those grounds but you don't want to be the test case.

I also question the authority that they have to enforce any of this if you are licensed in one state and therefore only see patients in that one state and don't have any other entanglements that put you under the purview of Federal authority in these matters (don't take insurance which could cross state lines, don't accept Medicare, etc). But of course we don't want to be the test case for that either.

I've been looking for penalties in Part II and am still not seeing anything so we'll probably just ignore it and see what happens.

Most of the organizations that I’m seeing are just repeating the language of Part II. I’ve yet to see any post something that is a unique intelligible thought on the matter. Most clinics this will apply to.

If I’m the test case then so be it. I expect that I’d talk to someone that says this does apply and I need to start doing it or risk fines. They’d want me to send a sample or something which might actually be helpful guidance. We certainly need it with this.

My current view is that actually providing a yearly estimate that avoids fines will actually do harm by scaring away people that need help.

 

[trophyhusband]

Most of the organizations that I’m seeing are just repeating the language of Part II. I’ve yet to see any post something that is a unique intelligible thought on the matter. Most clinics this will apply to.

If I’m the test case then so be it. I expect that I’d talk to someone that says this does apply and I need to start doing it or risk fines. They’d want me to send a sample or something which might actually be helpful guidance. We certainly need it with this.

My current view is that actually providing a yearly estimate that avoids fines will actually do harm by scaring away people that need help.

Here's the only one that I've found so far where a group provided guidance that wasn't just parroting Part II and seemed to put some thought into the difference between Part I and Part II: No Surprises Act Implementation Guide: Good Faith Estimate Requirements - PYA

 

[calvnandhobbs68]

Here's the only one that I've found so far where a group provided guidance that wasn't just parroting Part II and seemed to put some thought into the difference between Part I and Part II: No Surprises Act Implementation Guide: Good Faith Estimate Requirements - PYA

Interesting, it looks like based on this interpretation here you just have to tell patients a GFE exists and then it's on them to request it if they want it. Which means you don't necessarily have to push it out to everyone, just give an estimate to people who request it.

What notice must be provided?

A convening provider is responsible for orally informing all self-pay patients of the availability of a GFE of expected charges when the scheduling of an item or service occurs, or when questions about the cost of items or services arise.

Additionally, any provider (including both convening providers and co-providers) must prominently display a notice “written in a clear and understandable manner” on its “website, in the office, and on-site where scheduling or questions about the cost of items or services occur.” Such written notice must be made available in accessible formats in compliance with nondiscrimination laws. HHS “anticipates providing a model notice” for this purpose, although its use will not be mandated.

The Centers for Medicare and Medicaid Services (CMS) has published a model notice for this purpose, available here (included in the ZIP file as Appendix 1). The use of this model notice is not mandated, but CMS will consider its use good faith compliance with the notice requirement.

 

[trophyhusband]

Interesting, it looks like based on this interpretation here you just have to tell patients a GFE exists and then it's on them to request it if they want it. Which means you don't necessarily have to push it out to everyone, just give an estimate to people who request it.

What notice must be provided?

A convening provider is responsible for orally informing all self-pay patients of the availability of a GFE of expected charges when the scheduling of an item or service occurs, or when questions about the cost of items or services arise.

Additionally, any provider (including both convening providers and co-providers) must prominently display a notice “written in a clear and understandable manner” on its “website, in the office, and on-site where scheduling or questions about the cost of items or services occur.” Such written notice must be made available in accessible formats in compliance with nondiscrimination laws. HHS “anticipates providing a model notice” for this purpose, although its use will not be mandated.

The Centers for Medicare and Medicaid Services (CMS) has published a model notice for this purpose, available here (included in the ZIP file as Appendix 1). The use of this model notice is not mandated, but CMS will consider its use good faith compliance with the notice requirement.

Yeah, that's not what the act says though so I don't know how much to trust this group. Here's what the act actually says:

"The No Surprises Act adds PHS Act section 2799B-6(2), which requires health care providers and health care facilities, upon scheduling an item or service to be furnished to an individual or upon request of an individual, to inquire about such individual's health coverage status and to provide a notification (in clear and understandable language) of the good faith estimate of the expected charges for furnishing such item or service (including any item or service that is reasonably expected to be provided in conjunction with such scheduled or requested item or service and such item or service reasonably expected to be so provided by another provider or facility), with the expected billing and diagnostic codes for any such item or service.

In the case that the individual requesting a good faith estimate for an item or service or seeking to schedule an item or service to be furnished, is not enrolled in a certain type of plan or coverage or is not seeking to file a claim with such type of plan or coverage, PHS Act section 2799B-6(2)(B), and these interim final rules at 45 CFR 149.610, require providers and facilities to furnish the good faith estimate to the individual. These requirements under 45 CFR 149.610 apply only to good faith estimate notifications for uninsured (or self-pay) individuals as described in 45 CFR 149.610(a)(2)(xii) of these interim final rules. As discussed in section I.C of this preamble, these interim final rules do not include requirements implementing PHS Act section 2799B-6(2)(A), which requires providers and facilities to furnish good faith estimates to individuals' plans or issuers."

So it's has to be furnished upon scheduling or upon request. The upon request is for people who are comparing prices without actually signing up. This bit also ties back to the Part I definition of what "health care providers" means in the total act.

We're still debating whether to just do them for everyone or not. We have it ready to go but I still can't find any real penalties for not complying so I don't know if there's really a point to doing it.

 

[Old&InTheWay]

Per the APA:

Under the NSA, the definition of non-emergency care includes care provided in hospitals, hospital outpatient departments, critical-access hospitals and ambulatory surgical centers. Non-emergency care, for the purposes of this new law and corresponding regulations, does not include care provided in a physician’s office, such as the office of a psychiatrist.

No Surprises Act Implementation

Learn more about the implementation of the “No Surprises Act” (the Act), which allows for patient financial protections that impact health plans, physicians, and facilities, will apply to psychiatrists in certain circumstances.

www.psychiatry.org

 

[deleted941485]

I know there can be unintended consequences, but it sounds pretty straightforward to me and doesn't sound like it's intended to be a "gotcha" for providers. I don't think the expectation is to provide a diagnosis and then give a cost estimate for treating the diagnosis in its entirety. It's more like "here's what I'm gonna do for you this visit and here's what you can expect it to cost you."

They primarily target of this legislation was for OON hospital based specialties especially but not limited to anesthesia, radiology, and pathology. The AHA ASA and AMA have all put out statements regarding the legislation.

In no uncertain terms, the head of CMS/HHS is looking to hit physicians with this hard. At this point they are doing everything short of outright price controls to lower costs.

Anybody outside this sphere should have little to no issues.

 

[michaelrack]

I also question the authority that they have to enforce any of this if you are licensed in one state and therefore only see patients in that one state and don't have any other entanglements that put you under the purview of Federal authority in these matters (don't take insurance which could cross state lines, don't accept Medicare, etc). But of course we don't want to be the test case for that either.

Prescribe controlled substances/have a dea??? Also, plenty of patients cross state lines to see doctors ( though this would be more common in border areas such as Memphis, than in the central area of large states)

 

[trophyhusband]

Prescribe controlled substances/have a dea??? Also, plenty of patients cross state lines to see doctors ( though this would be more common in border areas such as Memphis, than in the central area of large states)

The DEA's role is specific and cannot be used as a backdoor way to increase Federal regulation in this way. The two are not connected, this regulation is separate and apart from the DEA regulations.

Even if the patient crosses state lines the service is fully performed in one state and is therefore not interstate commerce so the Commerce Clause does not apply (which is usually how they make these things work). If you're licensed in the other state and seeing the patient via tele that's a different story.

 

[Vandalia]

The DEA's role is specific and cannot be used as a backdoor way to increase Federal regulation in this way. The two are not connected, this regulation is separate and apart from the DEA regulations.

Even if the patient crosses state lines the service is fully performed in one state and is therefore not interstate commerce so the Commerce Clause does not apply (which is usually how they make these things work). If you're licensed in the other state and seeing the patient via tele that's a different story.

It is much more broad than that.

One of the seminal Supreme Court cases on the Commerce Clause held that Congress could regulate the production of wheat, even for a farmer who grew it on his farm and fed it to his cattle on his farm, because the fact he grew the wheat impacted the interstate market for wheat even if the wheat itself never left his farm.

Wickard v Filburn

In the same way, if a patient crosses state lines for an appointment, that has been held to be interstate commerce. Even though it is a criminal law, that is why the Mann Act is Constitutional. In the same way, if you use the mail, telephone or the internet as part of the patient care activity, that has been held to be interstate commerce. That is why almost every federal criminal prosecution involves wire or mail fraud. It does not matter if the communication itself crossed state lines, merely that it had the potential to do so. Finally, if you utilize the banking system, e.g., accept a check or credit card, or deposit cash in a bank, once again that means the patient appointment involved interstate commerce.

Now, the Supreme Court has pushed back very slightly in recent years, holding that prohibiting firearms near a school does not necessarily effect interstate commerce, (under the theory that guns near schools can effect students, and if students don't learn well that can effect business opportunities which effects interstate commerce), but for anything more direct they have held firm.

 

[trophyhusband]

It is much more broad than that.

One of the seminal Supreme Court cases on the Commerce Clause held that Congress could regulate the production of wheat, even for a farmer who grew it on his farm and fed it to his cattle on his farm, because the fact he grew the wheat impacted the interstate market for wheat even if the wheat itself never left his farm.

Wickard v Filburn

In the same way, if a patient crosses state lines for an appointment, that has been held to be interstate commerce. Even though it is a criminal law, that is why the Mann Act is Constitutional. In the same way, if you use the mail, telephone or the internet as part of the patient care activity, that has been held to be interstate commerce. That is why almost every federal criminal prosecution involves wire or mail fraud. It does not matter if the communication itself crossed state lines, merely that it had the potential to do so. Finally, if you utilize the banking system, e.g., accept a check or credit card, or deposit cash in a bank, once again that means the patient appointment involved interstate commerce.

Now, the Supreme Court has pushed back very slightly in recent years, holding that prohibiting firearms near a school does not necessarily effect interstate commerce, (under the theory that guns near schools can effect students, and if students don't learn well that can effect business opportunities which effects interstate commerce), but for anything more direct they have held firm.

The Wickard v Filburn one is interesting guess they could try to use the same rational here but I have a hard time seeing this SC agreeing with it.

We'll see at any rate, using the Federal banking system of course leads to have to follow Federal regs of course. But in the example I gave I have a very hard time seeing how they're going to be able to justify regulating a practice that has no entanglements with HHS who is the regulating body. If the practice only accepts cash and only sees patients within the borders of its own state not sure how they're going to justify HHS jurisdiction over them. But I also wouldn't want to be the test case that has to go to Federal court and spends the money to fight it.

 

[trophyhusband]

In news that may only be of interest to me we decided to go ahead and send out the GFEs. My wife is a part of several Psychiatrist Facebook groups and it seemed like there has been a lot of guidance from various organizations to send them out. I'd have to dig back through them but I think a NY Psychiatric society recommended it and a malpractice carrier for Psychologists (The Trust I think?) also recommended it amongst others. Several of the Psychiatrists tried calling their malpractice carriers but it seemed like they were all saying it's a billing issue and they weren't going to comment on those.

In good news after reading through as much as I could on the issue and looking at the Federal Register I think the $400 threshold applies per appointment/procedure and not to any yearly amount if you send one that covers 12 months. The requirement is that you send a GFE before each appointment so that's what the $400 applies to but you're allowed to send it out for a full year. It's impossible for there to be a $400 difference with the wife's hourly rate and we sent the GFE using the full hour versus the typical half hour appointment rate (we explained to the patients why we did this). So far we've got 80+ of the 170 or so we sent out back and no complaints so far.

 

[AcronymAllergy]

It may have already been mentioned, but I've been seeing comments that there's phrasing in the bill implying 2022 will be a bit of a grace period in terms of enforcement, although probably a good idea to just start doing it now (or modifying information you were already giving out).