Client Alerts
April 01, 2022

Surprise! The No Surprises Act Applies to All Cash-Pay Medical Services

Stites & Harbison Client Alert, April 1, 2022

The federal No Surprises Act (the “NSA”) requires all healthcare service providers to provide accurate and reliable cost estimates (Good Faith Estimates) to patients paying cash for services. The NSA’s Good Faith Estimate requirement has not received the media or industry press enjoyed by the balance billing prohibitions applicable to out-of-network (“OON”) emergency services providers, OON ancillary service providers at in-network facilities, and OON air ambulance providers, but may actually be the biggest surprise in the NSA.

Specifically, the Good Faith Estimate provision requires all health care providers and health care facilities to provide Good Faith Estimates “of expected charges for uninsured (or self-pay) individuals” and notify patients of the availability of Good Faith Estimates upon scheduling a cash-pay or uninsured service, or upon a patient’s request for cost information. 45 CFR 149.610(a)(1); 45 CFR 149.610(b)(1)(iii). The NSA defines an “uninsured or self-pay individual” as (1) “an individual who does not have benefits for an item or service” under a health benefit plan; or (2) “an individual who has benefits for such item or service . . . but who does not seek to have a claim for such item or service submitted to such plan or coverage.” 45 CFR 149.610(a)(2)(xiii). The provision also requires the primary service provider to obtain and submit to the patient, estimates of all “co-provider” charges for services that are “customarily provided in conjunction with a primary item or service.” 45 CFR 149.610(b)(2); 45 CFR 149.610(a)(2)(iii).

Further, the related Patient-Provider Dispute Resolution provisions establish a patient-enforceable accountability mechanism regarding Good Faith Estimates. The Patient-Provider Dispute Resolution process permits a patient to submit a request for independent resolution of a patient-provider payment dispute, if the final charges for items and services are $400 more than the amount identified on the Good Faith Estimate. 45 CFR 149.620(b)(1). If the provider neglects to include an item or service on the Good Faith Estimate, the independent dispute resolution entity could order that the patient owes $0 for the omitted items or services. 45 CFR 149.620(f)(3)(iii)(B)(1). The provider must prove that any item or service underestimated in or omitted from the Good Faith Estimate “reflects the costs of a medically necessary item or service and is based on unforeseen circumstances that could not have reasonably been anticipated by the provider or facility when the good faith estimate was provided.” 45 CFR 149.620(f)(2)(i)(C). If the provider fails to submit such credible evidence, the independent dispute resolution entity is bound by regulation to order payment at either the Good Faith Estimate amount, the median payment amount paid by health benefit plans for the same or similar service provided in the geographic area as reflected in an independent database, or $0, depending on the circumstances. 45 CFR 149.620(f)(3)(iii). Further, the practice cannot commence or continue collection efforts and must suspend the accrual of any late fees on unpaid bill amounts, until conclusion of the dispute resolution process. 45 CFR 149.620(d)(5).

Most significantly, the Good Faith Estimate and Patient-Provider Dispute Resolution provisions apply to ALL healthcare service providers. This includes specialties that do not typically accept insurance or operate predominately on a cash-pay basis, including cosmetic surgery practices, behavioral health practices, weight loss surgeons, fertility clinics, and many others. For more information on the NSA and how it impacts your practice, please contact Dustyn B. Jones, Esq.

Related Capabilities
Health Care Health Care - Regulatory & Compliance Health Insurance & Managed Care Health Care - Business Transactions & Finance Health Care - Litigation & Investigations Insurance Coverage, Bad Faith & Regulatory Litigation Insurance Regulatory