The No-Surprises Act and Good Faith Estimates:  What ALL Therapists Need to Know

 By Barbara Griswold, LMFT (Jan. 26, 2022)

My inbox has been lighting up with questions about the No Surprises Act for the last few weeks.

If you DON’T know anything about the Act, please take a moment to read this — it’s important.  If you’ve heard of it, chances are you have read a lot of conflicting information or just plain misinformation.  I know I certainly have.  I have re-written this article countless times over the last two weeks as I’ve gotten new information.

While I’m not an attorney, In this article I’ve compiled the best information and advice I could get from two attorneys, six professional associations, (NASW, CSWA, CAMFT, AAMFT, American Psychological Assn. and American Psychiatric Assn), the federal government’s website, two malpractice carriers (The Trust Insurance and CPH & Associates Insurance) multiple articles and training videos (see reference list below), and from reading the Act itself.

What is the No Surprises Act?   The No Surprises Act (Title 45, section 149.610 of the Code of Federal Regulations) was enacted with the primary goal of protecting clients from unexpected medical bills. These surprise bills often occurred when a client received emergency care at an in-network hospital or clinic, but an out-of-network physician provided the service and billed the client separately.

So, what does this have to do with private therapy practitioners?  It is true that most of the Act focuses on emergency services and out-of-network providers at in-network facilities.  However, there are sections that apply to ALL healthcare providers.

One section of the Act states that as of January 1, 2022, all healthcare providers need to offer “Good Faith Estimates” of anticipated therapy costs to private-pay clients at the start of treatment, or upon request. And there are a lot of rules about these Estimates.

Compliance Steps

To comply with the new federal rule, therapists should:

1. Ask clients about their insurance: At this point, we are only required to offer Good Faith Estimates to “self-pay clients” — those who don’t have insurance or who are not seeking insurance reimbursement. This means you DON’T give Estimates to clients submitting superbills to their insurance.  So, ask each client whether they have insurance and whether they intend to use it. If the answer to either question is no, they need a Good Faith Estimate.  Estimates do not need to be provided to clients who are enrolled in federal health insurance plans (e.g., Medicare, Medicaid, TRICARE, Indian Health Service or Veterans Affairs), because according to The Trust Insurance — these plans already have regulations that forbid balance-billing.
2. Notify all self-pay clients of the availability of a Good Faith Estimate. This notification should be given to clients both verbally and in writing before scheduling an initial session, and on request. It may be provided on paper or electronically, depending on client’s preference. It should also be posted on an easily searchable page of your website, and at your office, if you have these (links to Sample Notices are below).
3. Give all self-pay clients a Good Faith Estimate of Charges. The Estimate must be furnished within one business day of scheduling a service to be provided in three business days, or within three business days of scheduling a service to be provided in at least 10 business days. The Estimate must be provided on paper or electronically (client’s preference) in understandable language, and in at least 12-point font. If the client requests an oral Estimate, the provider must also give the Estimate in writing or electronically.

I recommend that you download an existing Good Faith Estimate template (see links below).  But if you create your own, according to the law, the Estimate must include

• • client name and date of birth
  • a list, description, and codes of the services to be provided and expected charges.  For recurring charges, the Estimate cannot exceed 12 months. A new Estimate must be given if treatment continues beyond 12 months, or if anticipated costs change
  • Diagnosis codes, if known (if you haven’t met with the client yet, “unknown’ seems OK).
  • Provider name, NPI and Tax ID (if the provider has these), service location
  • Disclaimers informing clients that
    • the provider may recommend additional services that are not in the Estimate
    • the Estimate is only an estimate — actual services or charges may differ
    • the client may initiate a dispute resolution process if billed charges are $400 more than the Estimate (directions should be given about where to get more information about this process), and assurance that initiating such a process will not adversely affect the quality of services rendered
    • the Estimate does not obligate the client to obtain listed services

4. You must document giving the Estimate to the client. Include the date and method of delivery.  A copy of the Estimate must be included in the client’s medical record.  While the CMS/HHS forms have a place for client signature, many other templates I looked at didn’t require this.

Your Frequently Asked Questions

“How can I know in advance what therapy will cost?”  I know, it may seem a bit nuts.  But remember, the Estimate can be a range — Check out my sample templates below.  You can even say “depending on the progress we make this year, I expect that you will need 10–20 more sessions this year. At $X per session the estimated total cost would be $X.”  Remember that if you are offering the client a discounted rate, that rate should be the one in your Estimate. 

“Can I just roll the Notice and Estimate into my Informed Consent, to save paperwork?” No. According to one expert I consulted, the law states that these need to be separate documents.

“Can I just notify a client that an Estimate is available, and only give it if asked?”  No. The law requires a therapist to inform the client of the availability of an Estimate and to provide an Estimate.  So, you’ll need to give one, even if the client doesn’t ask for one.

“What about clients using insurance?”  Good Faith Estimates for INSURED clients have been postponed — for now.  That will likely come soon.  Stay tuned.  (If you are not already subscribed to my e-newsletter, click here to subscribe and get updates).

“Do I have to provide Estimates to current clients, or just new clients?” Both. 

“What forms are you going to use, Barbara?”  Again, I’m not an attorney.  The federal government forms are the official ones, but they are written in somewhat harsh language and don’t seem as applicable for private practice clinicians.

I have adapted the forms provided by the legal staff at the California Association of Marriage and Family Therapists and some other professional associations.  These forms, applicable nationwide, were designed to meet the requirements of this Act, but have softer and more appropriate language, in my opinion than the federal forms.  But I’ve provided links to both below.

• I have added my version of these forms to the Practice Forms Packet I sell on my website. You can purchase the entire packet of 20 Essential practice forms here
• If you have purchased my Practice Forms Packet in the past, I have added these forms for free.  If you need us to resend the link to the page with all the form links, contact us at orders@theinsurancemaze.com.
• If you just want my No Surprises Act forms for free, just click here and enter your email, and you’ll immediately be redirected to a page with these forms

 Here are the sample Notices/Estimate Templates from the federal government:

1. 1. Model Disclosure Notice Regarding Patient Protections Against Surprise Billing This is just an outline of client rights, and seems to be more applicable to hospitals and facilities where emergency services might be provided.
   2. Standard Notice and Consent Documents under the No-Surprises Act. This version includes the Notification of Good Faith Estimate availability and the Estimate template.  It appears to be latest version as of this writing, with expiration date 3/2022, but remove expiration date from yours.

“I’m getting so much conflicting advice.  How do I know how to proceed, and what to believe?”  I know, it is difficult.  Many of us are choosing not to comply at this time, until things are clearer, especially since the government has hinted that enforcement is unlikely to happen right away.  Also, many healthcare organizations are challenging the Act, so requirements could change severely.  My advice is if you do try to comply now, just do your best.  I’ll have updates as they come, so if you aren’t already on my email list, sign up now.

“Is there any way to fight this?” Talk to your professional association and your representatives.  There is also a Change.org petition being circulated requesting that Congress amend this Act for private practitioners.  Click here for more information 

For more information, see the helpful references below.

References and Resources:

New Billing Disclosure Requirements Take Effect in 2022, American Psychological Association, Dec 10, 2021. https://www.apaservices.org/practice/legal/managed/billing-disclosure-requirements

Overview of rules and fact sheet, Centers for Medicare and Medicaid Services, CMS.gov,  https://www.cms.gov/nosurprises/Policies-and-Resources/Overview-of-rules-fact-sheets

No Surprises Act Implementation, American Psychiatric Association, https://www.psychiatry.org/psychiatrists/practice/practice-management/no-surprises-act-implementation

Kristin Roscoe JD and Sara Jaspar, JD.  The No Surprises Act:  What MFTs Need to Know.  California Association of Marriage and Family Therapists, Dec. 22, 2021.  https://www.camft.org/Resources/Legal-Articles/Chronological-Article-List/the-no-surprises-act-what-mfts-need-to-know

Dr. Ben Caldwell, No Surprises Act Q&A: What Good Faith Estimates Mean for Your Practice, SimplePractice, Dec 29, 2021, https://www.simplepractice.com/blog/no-surprises-act-good-faith-Estimates/?fbclid=IwAR0qV-S3Xg9SEpJHnMqq6jO-L0z-YHfuC-tDDSNfCOnbnX5KOZhzjpk9Z6g

Requirements Related to Surprise Billing, Part II, National Archives, Oct 7, 2021, https://www.federalregister.gov/documents/2021/10/07/2021-21441/requirements-related-to-surprise-billing-part-ii

The No Surprises Act: How to Legally and Ethically Implement This Requirement (video), TheKnowledgeTree.org, https://www.theknowledgetree.org/p/ethics-the-no-surprises-act-online

What You Need to Know About the Biden-Harris Administration’s Actions to Prevent Surprise Billing, CMS.gov, Sept 30, 2021, https://www.cms.gov/newsroom/fact-sheets/what-you-need-know-about-biden-harris-administrations-actions-prevent-surprise-billing-september

No Surprises Act: Expert Answers to your FAQ, Experian Health, Nov 22, 2021, https://www.experian.com/blogs/healthcare/2021/11/no-surprises-act-compliance-expert-answers-faq/

Good Faith Estimates. Clinical Social Work Association, December 14, 2021.https://www.clinicalsocialworkassociation.org/Announcements/12193411

No Surprises Act: New Billing Disclosures Going into Effect in 2022, AAMFT, Dec 21, 2021, https://blog.aamft.org/2021/12/no-surprises-act-new-billing-disclosures-going-into- effect-in-2022.html

Federal Rule to Prevent Surprise Health Care Billing, National Assn. of Social Workers, December 2021, http://www.socialworkblog.org/practice-and-professional-development/practice/2021/12/federal-rule-to-prevent-surprise-health-care-billing/

FAQ – No Surprises Act | January 7, 2022, The Trust, https://www.trustinsurance.com/Resources/Articles/faq-no-surprises-act-january-7-2022

Atkins, Todd,  No Surprises Act.  January 4, 2022. CPH & Associates Insurance, https://www.cphins.com/no-surprises-act/