No Surprises Act: Good Faith Estimate Guidance for Physicians and Other Providers

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The No Surprises Act (the Act), enacted by Congress on December 27, 2020, as part of the Consolidated Appropriations Act of 2021, includes important new protections for self-pay patients that recently became effective on January 1, 2022. These protections, implemented under the Good Faith Estimate provision of the Act, are separate and apart from the Act’s requirements related to out-of-network items and services provided at in-network facilities and they apply to healthcare facilities and other providers much more broadly than the Act’s other provisions.

Under the Act’s newly-effective Good Faith Estimate regulations, 45 C.F.R. §§ 149.610 and 149.620 (the GFE Regulations), all state-licensed or state-certified health care providers and facilities (i.e., essentially all health care service providers and facilities, including physician practices, hospitals, ambulatory surgery centers, etc.) must provide a “good faith estimate” of expected charges for self-pay patients when scheduling an item or service or upon the patient’s requests. Critically, this includes physician practices and other non-facility-based providers who are generally not subject to many other requirements of the Act.

To determine whether a patient is a “self-pay” patient with respect to the items and services being scheduled or inquired about, providers and facilities must ask the patient in each case whether the patient has health insurance and, if so, whether the patient is seeking to have a claim submitted to their health insurance for the care they are seeking. The patient is considered “self-pay” for purposes of this guidance if the patient is uninsured or elects not to submit a claim to their health insurance for the items and services in question (the GFE Regulations specifically use the term “uninsured (or self-pay) individuals”). For all such self-pay patients, the provider or facility must provide a “good faith estimate” of expected charges in accordance with the detailed requirements of the GFE Regulations.

The GFE Regulations establish the following requirements for health care providers and facilities with respect to self-pay patients:

1. Notice. They must post written notice of a self-pay patient’s right to obtain a good faith estimate of expected charges in a clear and understandable manner prominently displayed and accessible on the provider’s or facility’s website, in the office, and on-site where scheduling or questions about the cost of items or services occur. HHS has made available a form notice that complies with applicable requirements: “Right to Receive a Good Faith Estimate of Expected Charges.”
2. Determine Whether a Patient is Self-Pay. They must ask persons seeking care from the provider or facility if they have health insurance and whether they are seeking to have a claim submitted to any applicable insurance for the items or services being scheduled or inquired about. The Good Faith Estimate requirements apply only to uninsured patients and patients who have insurance coverage but elect not to submit a claim (collectively referred to as self-pay for purposes of this guidance), and they do not currently apply to insured patients or government program beneficiaries who are seeking to submit claims to the applicable insurer/payor.
3. Inform Patient of Right to Good Faith Estimate. If a patient is self-pay, the provider or facility must inform the patient orally when scheduling an item or service, or when questions about the cost of items or services arise, that the patient has a right to obtain a good faith estimate of expected charges. The GFE Regulations expressly provide that any discussion or inquiry regarding the potential costs of items or services under consideration should be treated as a request for a good faith estimate.
4. Provide the Good Faith Estimate. Upon a request for a good faith estimate from a self-pay patient or upon scheduling a primary item or service to be furnished for a self-pay patient, the provider or facility must provide a written good faith estimate that complies with the GFE Regulations with respect to the form, content and timing of the good faith estimate.

The good faith estimate must be provided within the following regulatory timeframes:

1. Not later than one (1) business day after the date of scheduling, if the item or service is scheduled at least three (3) business days before the date the item or service is scheduled to be furnished;
2. Not later than three (3) business days after the date of scheduling, if the item or service is scheduled at least ten (10) business days before such item or service is scheduled to be furnished; or
3. Not later than three (3) business days after the date of the request, if a good faith estimate is requested by a self-pay patient, including any discussion or questions regarding costs.

If the item or service is scheduled for less than three (3) business days from the date of the scheduling or is not scheduled in advance (e.g., walk-in urgent care, emergency services, etc.), the provider or facility is not required to provide a good faith estimate.  

The good faith estimate should be prepared to include the elements and disclaimers required by the GFE Regulations at 45 C.F.R. § 149.610(c), including the following:

1. Patient name and DOB;
2. Description of the primary item or service in clear and understandable language (and if applicable, the date the primary item or service is scheduled);
3. Itemized list of items or services, grouped by provider or facility, reasonably expected to be provided;
4. Applicable diagnosis codes, expected service codes, and expected charges associated with each listed item or service;
5. Name, NPI, and TIN of each provider or facility represented in the good faith estimate;
6. List of items or services that the provider or facility anticipates will require separate scheduling and that are expected to occur before or after the expected period of care for the primary item or service
7. A disclaimer that there may be additional items or services if recommended as part of the course of care that must be scheduled or requested separately and are not reflected in the good faith estimate;
8. A disclaimer that the information provided is only an estimate of items or services reasonably expected to be furnished at the time the good faith estimate is issued and that the actual items, services, or charges may differ from the estimate;
9. A disclaimer that informs the individual of their right to initiate the patient-provider dispute resolution process provided for under the GFE Regulations if the actual billed charges are substantially in excess of the expected charges included in the good faith estimate. This disclaimer must provide instructions for where the individual can find information about the dispute process and that the initiation of such process will not adversely affect the quality of health care services provided; and
10. A disclaimer that the good faith estimate is not a contract and does not require the individual to obtain the items or services from any of the listed providers or facilities.

5. Update the Estimate as Necessary. If the provider or facility anticipates changes to the expected charges, items, services, providers, facilities, etc. that will affect the existing good faith estimate, they must issue a new good faith estimate no later than one (1) business day before the items or services are scheduled to be provided.

The foregoing Good Faith Estimate requirements apply to the “convening” provider or facility. The “convening provider” or “convening facility” is that which is responsible for scheduling the primary item or service (i.e., the initial reason for the visit) or which receives a request from a person seeking information regarding an item or service. A provider or facility will generally be the convening provider/facility with respect to items and services if they are scheduled to be performed at the provider’s or facility’s physical location. Where there are multiple providers or facilities involved at locations other than their own, the parties should coordinate and focus carefully on who has which obligations under the GFE Regulations. A “co-provider” or “co-facility” is a provider or facility other than the convening provider/facility that provides care in conjunction with and support of the primary items or services being provided by the convening provider/facility (e.g., a clinical lab providing diagnostic testing services or radiologists providing an x-ray interpretation). The GFE Regulations require that a convening provider/facility must contact all co-providers/facilities who are reasonably expected to provide items or services in conjunction with and in support of the primary item or service and request that the co-providers/facilities submit good faith estimate information for inclusion in the convening provider’s/facility’s good faith estimate; however, convening providers/facilities have been given until 2023 to develop and implement processes to comply with such co-provider requirements. A co-provider/facility becomes subject to the same requirements as a convening provider/facility if a patient separately schedules an item or service with or makes a request for a good faith estimate to such co-provider. In such a case, the co-provider would be subject to the same requirements as the convening provider.

Once the provider or facility provides services subject to a good faith estimate, if the actual charges are $400 or more than the charges listed in the good faith estimate, the patient may initiate the “Selected Dispute Resolution” (SDR) process to determine how much the patient must pay for the items and services pursuant to the process and requirements further prescribed in the GFE Regulations at 45 C.F.R. § 149.620. A self-pay patient can initiate the SDR process by submitting notice and an administrative fee within 120 days after receiving their disputed bill. The SDR determination is generally binding on the parties absent fraud.

While the SDR process and resulting determination of costs to be paid by a self-pay patient appears to be the primary enforcement mechanism for the Good Faith Estimate requirements, violations of the Act its implementing regulations, including the GFE Regulations, may subject the provider or facility to enforcement actions by state or federal agencies, including significant per-violation penalties.  Accordingly, now is the time for providers and facilities to ensure they are clear on and complying with the Good Faith Estimate requirements under the Act and GFE Regulations.  

For more information on the No Surprises Act:

Lawsuit Filed Challenging the No Surprises Act – December 10, 2021

New IDR Rules Under The No Surprises Act – November 12, 2021

Health care has been central to the work of Nexsen Pruet for more than 60 years. We represent numerous hospitals, several hundred physicians as well as major provider networks. For more information about how Nexsen Pruet can put our deep experience to work for you, please contact Chandler Martin at (803) 540-2161 or Matthew Roberts at (803) 253-8286.