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Updated FAQs for the No Surprises Act - Good Faith Estimates

Client Alert

The No Surprises Act (“NSA”) became effective January 1, 2022. Meant to protect consumers from surprise medical bills, the new law is good for consumers, but vexatious for health care providers and facilities. One particular source of frustration is the operationalization of the Good Faith Estimate (“GFE”) requirement, governed by Part II of the regulations that implement the NSA. The GFE requirements apply broadly to all healthcare providers and facilities that practice within the scope of their state-issued license.

Much of the information in the newest set of FAQs reinforces what we already know about the GFE requirements, but HHS does provide some important updates. If you are a health care provider or facility and you provide services to uninsured or self-pay patients, these are the highlights you need to know:Part II of the NSA requires health care providers and facilities to provide to uninsured and self-pay patients a good faith estimate of the cost of any reasonably expected items or services. The U. S. Department of Health and Human Services (“HHS”) released in December 2021 its first set of FAQs regarding the GFE requirements. With a few months of implementation under its belt, HHS released on April 5, 2022, a second set of GFE-related FAQs.

  1. A GFE does not have to include a diagnosis code if one does not apply. If a provider or facility is unable to provide a diagnosis code at the time of scheduling (e.g., the patient is a new patient with no available history), then a GFE does not have to include a diagnosis code. However, the provider or facility must still include the expected charges and service codes for the items and services to be furnished during that visit, even when no diagnosis code is available. Also remember that when the provider is able to add a diagnosis code, they are required to do so for future GFEs.
  2. The GFE is considered part of a patient’s medical record and must be maintained in the same manner as the patient’s medical record.
  3. A GFE must only include items or services reasonably expected to be furnished in conjunction with the primary item or service. Providers do not have to include charges beyond those that are reasonably expected to be scheduled with the primary item or service.
  4. For recurring items or services, a GFE must include in a clear and understandable manner the expected scope of the recurring items or services (e.g., timeframes, frequency, and total number of recurring items or services). If the provider identifies any new items or services between the date of scheduling and the date of the appointment, the provider must issue to the uninsured (or self-pay) individual a new GFE no later than one business day before the items or services are scheduled to be furnished.
  5. The requirement to provide a GFE is not triggered upon scheduling if an item or service is being scheduled fewer than three business days before the date the item or service is expected to be furnished.
  6. If the patient loses their insurance coverage or decides to become self-pay between the date of scheduling and the date of the appointment, and if the patient informs the practice/provider at least three business days prior to the appointment date, then the GFE requirements will apply to that patient. If the patient does not tell the practice/provider about their new uninsured/self-pay status until the day of the appointment (or anytime less than three business days before the appointment), then the GFE requirements do not apply.

More information on the NSA can be found in previously released client alerts regarding Part I and Part II as well as the recent litigation concerning the NSA. CMS has also developed a website for providers and patients to use for NSA information and dispute resolution.

If you have any questions about the No Surprises Act and how it applies to your practice, or would like help developing GFE templates for your practice,  please contact BMD Healthcare and Hospital Law Members Ashley Watson (abwatson@bmdllc.com) or Daphne Kackloudis (dlkackloudis@bmdllc.com).

This article does not constitute legal advice.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.