Attorney Articles | The No Surprises Act : What MFTs Need to Know

Articles by Legal Department Staff

The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.

The No Surprises Act : What MFTs Need to Know

The No Surprises Act includes new requirements for health care providers, facilities, health plans and insurers, and is intended to prevent consumers (a.k.a. patients) from receiving unanticipated medical bills. Be sure to view CAMFT’s exclusive webinar, No Surprises Act: What MFTs Need to Know, for more information.

Sara Jasper, JD, Staff Attorney
Kristin Roscoe, JD, Staff Attorney
The Therapist
January/February 2022

The No Surprises Act (H.R. 133) went into effect January 1, 2022. The law includes new requirements for health care providers, facilities, health plans, and insurers that are intended to prevent consumers (aka patients) from receiving unanticipated medical bills. The Act makes changes to the Public Health Service Act[i] that also apply to health care providers and facilities. In anticipation of the new laws, the federal government recently published accompanying regulations for compliance. Part I of these regulations, published in July 2021, protects consumers with health plan coverage from receiving surprise bills from out-of-network MFT providers under limited circumstances related to emergency and nonemergency services at in-network facilities. This portion of the no-surprise-billing regulations, which we discuss in the last half of this article, will have minimal impact on MFTs.

Good Faith Estimates
Part II of the no-surprise-billing regulations is much broader in scope and applicability to MFTs. Published in October, this portion requires all health care providers and health care facilities licensed, certified, or approved by the state to provide good faith estimates of expected charges for services and items offered to uninsured and self-pay consumers. This means as of January 1, 2022, any health care provider or health care facility subject to state licensure must provide current and future patients with a good faith estimate of expected charges for services and items within specific time frames. By setting specific requirements for what these good faith estimates must contain, the new regulations add to MFT providers’ recordkeeping responsibilities. Part II also establishes a process for consumers to dispute provider charges that “substantially exceed” the good faith estimate.

Since these new regulatory requirements represent a shift in how MFTs are expected to practice, CAMFT is offering the following information about how to comply with the Act.

 How the Good Faith Estimate Rules Apply to MFTs
In accordance with the Public Health Services Act[ii], health care providers and health care facilities are required to inform uninsured and self-pay individuals[iii] both orally and in writing of their right to receive a good faith estimate of expected charges, either upon request or at the time a service is scheduled.iv

The term “health care provider” as set forth in Part II of the no-surprise-billing regulations means a physician or other health care provider who is acting within the scope of practice of their license or certification under applicable state law.[v] This broad definition encompasses psychotherapists, including MFTs. Furthermore, the definition of “items and services” for which good faith estimates must be provided includes “all encounters, procedures … and fees, provided or assessed in connection with a provision of health care.”[vi]

Good Faith Estimate Defined
A good faith estimate is a notification of expected charges for a scheduled or requested item or service, including items or services that are reasonably expected to be provided in conjunction with such scheduled or requested item or service.[vii] The expected charge for an item or service is the cash pay rate or the rate established by a provider for an uninsured or self-pay patient, reflecting any discounts for those individuals.[viii]

Providers and health care facilities must furnish a good faith estimate of expected charges for items or services provided on or after January 1, 2022, ensuring that uninsured and self-pay individuals have information about health care pricing before receiving care. The purpose of the good faith estimate requirement is to give individuals an opportunity to evaluate their health care options, manage care costs, and prevent surprise billing.

Good Faith Estimate Content Requirements
The good faith estimate provided by the convening provider or facility[ix] must contain the following information:

  • Patient name and date of birth
  • Description of the primary item or service in clear and understandable language as well as the date of service, if applicable (e.g., 50-minute individual psychotherapy session; DOS)
  • Itemized list of items or services (e.g., 50-minute individual psychotherapy session, weekly until otherwise indicated)

Applicable diagnosis codes, expected service codes, and expected charges associated with each listed item or service[x] (Note: Providers may not yet have a diagnosis for prospective/new patients but should reasonably attempt to include expected service codes and expected charges associated with the service(s).)

  • Name, National Provider Identifier (NPI), and Tax Identification Number (TIN) of each provider/facility represented in the good faith estimate[xi] as well as the states and offices/facility locations where the items or services are expected to be furnished (Note: Some providers do not have an NPI or a TIN and so may use their social security number (SSN) as their business tax ID. CAMFT recommends that providers obtain a TIN/EIN to avoid publicly disclosing their SSN.)
  • List of items or services that the provider/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 (Note: This may not apply to MFT services, particularly in private practice.)
  • Disclaimers establishing that additional recommended items or services must be scheduled or requested separately, that the good faith estimate is only an estimate and actual charges may differ, that the patient has the right to initiate the patient-provider dispute resolution process if the actual bill charges substantially exceed the expected charges in the good faith estimate, and that the good faith estimate is not a contract and does not obligate the patient to obtain the items or services from any of the providers identified.[xii]

Note: If any information provided in the estimate changes (e.g., a provider raises fees or the agreement for the frequency or type of services changes), a new good faith estimate must be provided no later than one business day before the scheduled care. Also, if there is a change in the expected provider less than one business day before the scheduled care, the replacement provider must accept the good faith estimate as the expected charges.

How to Comply With the Act
MFTs are ethically obligated to discuss fees with patients and most provide this information in their Informed Consent and/or Disclosure of Services documentation, and/or in a separate financial agreement. Under the new rules, MFTs must also do the following for current and future patients[1]:

  1. Ask if the patient has any kind of health insurance coverage, including government insurance programs such as Medicare, Medicaid (Medi-Cal), or Tricare, and whether the patient intends to submit a claim for the service.[xiii]
  2. Create a written document for all uninsured and self-pay patients stating that a good faith estimate of expected charges is available. (Note: Information regarding the availability of a good faith estimate must be prominently displayed on the provider’s website or the facility’s website as well as in the office or on the site where scheduling and questions about the cost of health care occur. The notice must be made available in either paper or electronic format and in the language spoken by the patient.[xiv]  CAMFT has created a sample Notice to help members comply with this requirement, The U.S. Department of Health and Human Services has created a model notice for providers and facilities to use called Standard Notice: “Right to Receive a Good Faith Estimate of Expected Charges” Under the No Surprises Act. The provider or facility must fill in the blanks with the appropriate information. While use of the HHS model notice is not required, HHS considers its use good faith compliance with the good faith estimate requirements.
  3. Orally provide the notice regarding the availability of the good faith estimates when scheduling services or when patients have questions about cost.[xv]
  4. Offer in written form the good faith estimate of expected charges for a scheduled or requested service, either on paper or electronically according to the individual’s requested method of delivery and within the time frames discussed below.[xvi] If provided electronically, the format must be one that would allow the patient to save and print.  CAMFT has created a sample Good Faith Estimate Template for use by our members. HHS has made a sample template available called Standard Form: “Good Faith Estimate for Health Care Items and Services” Under the No Surprises Act.

Time Frames for Providing Good Faith Estimates
Providers and facilities must meet the following deadlines for providing good faith estimates:

  • If the item or service is scheduled at least 10 business days in advance, the good faith estimate must be provided within three business days.
  • If the item or service is scheduled at least three business days in advance, the good faith estimate must be provided within one business day.
  • If the individual requests such information, the good faith estimate must be provided within three business days.[xvii]

Note: No good faith estimate is required if a service is scheduled less than three business days before the appointment.

Good Faith Estimates for Regular and Recurring Services
Most, if not all, psychotherapy patients will receive regular and recurring services. Providers and facilities that anticipate treating a patient throughout the year may provide a single good faith estimate to that patient for those services as long as the estimate includes the expected scope of the recurring services (i.e., time frame, frequency, and total number or recurring services).

The good faith estimate can only include expected recurring services to be provided within 12 months. The provider or facility must offer a new estimate for additional services beyond 12 months and discuss any changes between the initial estimate and the new one.

Examples of Acceptable Good Faith Estimates for Psychotherapy Patients
For a psychotherapy patient who requires long-term therapy, a provider may state the following:

I anticipate your treatment will require weekly 50-minute psychotherapy sessions throughout the next 12 months at [fee per session] for a total of [number of weeks], taking into consideration vacations, holidays, emergencies, and sick time, for an estimated total of [fee per session x number of weeks].

In situations where it is harder to determine the course of treatment, a provider may want to give a range for the number of sessions and a range for the total cost. Under these circumstances, a provider may offer the following explanation:

Depending on [insert applicable factors], you may need between 15 and 30 more sessions this year. At [fee per session], the estimated total cost is between [15 x fee per session] and [30 x fee per session].

Good Faith Estimate Record Keeping Requirements
Good faith estimates are considered part of the patient’s medical record and must be maintained in the same manner.[xviii] A copy of the estimate must be available to the patient up to six years after it was provided.[xix] Since California law requires psychotherapists to keep patient records for a minimum of seven years from the date services were terminated (or if the patient is a minor, seven years from termination of services or until the minor reaches the age of 25, whichever is greater), CAMFT recommends keeping the good faith estimates for the same period of time.

Process for Resolving Charge Disputes Between Consumers (Patients) and Providers
Starting in January 2022, if an uninsured or self-pay consumer is billed for an amount that exceeds the good faith estimate they were provided, they can use a new patient-provider dispute resolution process to determine a payment amount.[xx] Consumers are eligible to use this process if they have a good faith estimate, they have a bill within the previous 120 calendar days, and the difference between the good faith estimate and the bill is at least $400.

Through this process, consumers can request a third-party arbitrator to review the good faith estimate, the bill, and the information submitted by the provider or facility to determine whether the additional charges are allowed. HHS intends to establish an online portal and offer documents that patients who are initiating a dispute resolution process can submit as hard copy.

More About Requirements for MFTs Subject to the Rules Under Part I of the No Surprise Billing Regulations
Part I of the regulations to prevent surprise billing applies specifically to:

  • MFTs who are out-of-network providers but work at in-network facilities. (Such a situation may arise if a patient at an in-network emergency facility such as a hospital receives emergency care from an MFT who is out-of-network with the patient’s insurance plan.)
  • MFTs who work at an in-network facility and provide nonemergency care but who do not participate in the patient’s health plan.

Emergency Providers at In-Network Facilities
MFTs who work in settings that provide emergency care where the facility is in-network but who are out-of-network for a patient’s health plan will not be permitted to balance bill patients beyond in-network cost-sharing amounts. For example, if an MFT provided emergency care to a patient and the MFT is out-of-network with the patient’s health plan, the MFT cannot bill for charges above and beyond what the patient’s portion is under their plan. The law additionally places the burden on the out-of-network provider to determine the patient’s health insurance status and the applicable in-network cost-sharing amount.

Non-emergency Providers at In-Network Facilities
MFTs who are out-of-network but provide nonemergency care to patients at in-network facilities cannot balance bill patients above the cost-sharing amount permitted by the patient’s insurance. However, there is an exception for nonemergency care provided by out-of-network MFTs if they take steps to allow patients the opportunity to receive notice and provide consent before rendering care. MFTs can meet the notice and consent requirements if they:

  • Provide the patient with written notice and consent 72 hours in advance of their appointment; and
  • Provide the patient with a list of in-network providers at the facility and information regarding medical care management such as prior authorization.

The notice must:

  • Alert the patient that the provider does not participate in-network;
  • Provide an estimate of the out-of-network charges; and
  • List other providers at the facility who do participate in the patient’s health plan as additional options.

The penalty for billing a patient more than the cost-sharing amount can be up to $10,000. The Secretary of Health and Human Services may permit a hardship exemption or waiver if the law was violated unknowingly and the provider takes appropriate corrective action with interest paid to the patient within 30 days of the violation.

Patient Continuity of Care
Health plans will be required to notify patients of any changes to the in-network status of current treating providers and to ensure continuity of care. If a provider contract is terminated, a patient can elect to continue with that provider for 90 days after the date the contract was terminated or the date when no longer a continuing patient, whichever is earliest[JF1] . The provider is required to continue the provision of services under the same terms and conditions as the in-network contract unless the provider was terminated for cause (such as failing to meet quality standards). This provision allows patients time to transition their care to an in-network provider so that there is not an abrupt termination of services.

For MFTs, this continuity-of-care provision applies to treatment for serious or complex conditions and institutional or inpatient care. A serious and complex condition is defined as a condition “serious enough to require specialized medical treatment to avoid the reasonable possibility of death or permanent harm” or a chronic condition that is “life-threatening, degenerative, potentially disabling, or congenital; and requires specialized medical care over a prolonged period of time.”

Updating Provider Directories
The law requires that by 2022 health plans must verify and update their provider directories at least every 90 days. In-network providers must notify health plans whenever:

  • The provider begins a network agreement with a plan;
  • The provider terminates an agreement;
  • There are any material changes to the content of the provider’s directory information; and
  • The Secretary of Health and Human Services determines that it’s appropriate.

CAMFT will continue to provide updates on our understanding of these new laws as additional regulations are published.

[1] The regulations that require good faith estimates do not distinguish between existing and future patients. Since there is no indication that the obligation to furnish estimates of expected charges for services varies depending on the status of the patient, CAMFT recommends that psychotherapists provide good faith estimates to both existing and future patients.

[i] The No Surprises Act added a Part E to Title XXVII of the Public Health Service Act establishing requirements that are applicable to providers and facilities.

[ii] Public Health Service Act §2799B-6

[iii] Uninsured individuals are those who are not enrolled in a plan of coverage or a federal health care program; self-pay individuals are those who are not seeking to file a claim with their plan or health coverage.

[iv] Public Health Service Act §2799B-6(2)(B) and the interim final rules at 45 C.F.R. §149.610

[v] 45 C.F.R. §149.610(a)(2)(viii)

[vi] 45 C.F.R. §147.210(a)(2)(xiii)

[vii] 45 C.F.R. §149.610(a)(2)(vi)

[viii] 45 C.F.R. §149.610(a)(2)(v)

[ix] Convening provider or health care facility means the provider or facility that receives the initial request for a good faith estimate from an uninsured or self-pay individual and that is, or, in the case of a request, would be, responsible for scheduling the primary item or service.

[x] A provider is expected to provide a diagnosis for a current client who was given one, but the provider is not expected to include a diagnosis for a consumer they’ve not yet had an opportunity to assess and evaluate.

[xi] Providers without an NPI or TIN would just leave those portions of the good faith estimate blank.

[xii] 45 C.F.R. §149.610(c)

[xiii] 45 C.F.R. §149.610(b)(1)

[xiv] 45 C.F.R. §149.610(b)(1)(iii)

[xv] 45 C.F.R. §149.610(b)(1)(iii)(B)

[xvi] 45 C.F.R. §149.610(e)(1)

[xvii] 45 C.F.R. §149.610(b)(1)(vi)

[xviii] 45 C.F.R. §149.610(f)(1)

[xix] Id.

[xx] No Surprises Act §112 also adds Public Health Service Act §2799B-7 as added by the interim final rules at 45 C.F.R. §149.620.