Providers and Facilities Subject to the Good Faith Estimate Requirements
Under the IFR, healthcare providers and facilities are broadly subject to the good faith estimate requirements for uninsured and self-pay patients. The terms “facility” and “provider” are each defined expansively by reference to state licensing and certification laws. The IFR specifically identifies hospitals, hospital outpatient departments, critical access hospitals (CAHs), ambulatory surgery centers (ASCs), rural health centers (RHCs), federally qualified health centers (FQHCs), laboratories, and imaging centers as healthcare facilities potentially subject to the regulation, but other institutions that are either licensed or approved as meeting the standards established for licensing may also be considered facilities under 45 C.F.R. § 149.610(a)(2)(vii). Likewise, the definition of “provider” extends beyond physicians to cover those providers licensed or certified under applicable state law, including a provider of air ambulance services. The IFR does not identify any providers or facilities that are categorically exempt from the good faith estimate requirements, and in response to frequently asked questions, HHS has stated that “[n]o specific specialties, facility types, or sites of service are exempt from this requirement.”
The scope of a provider’s or facility’s good faith estimate obligation is largely determined by whether or not the provider or facility is considered to be a “convening” provider or facility or a “co-provider/facility.” (For simplicity, this article refers to all providers and facilities as “providers.”) Convening providers are responsible for determining which individuals are uninsured or self-pay patients, providing notice of the availability of a good faith estimate, contacting co-providers to collect good faith estimate information, and preparing and providing the good faith estimate. Co-providers, on the other hand, must respond to the convening provider’s request for estimate information. Recognizing that it may take time for providers to develop systems and processes for receiving and providing the required information, however, HHS is exercising enforcement discretion in calendar year 2022 where a good faith estimate does not include expected charges from co-providers.
A convening provider is defined as the provider who receives the initial request for a good faith estimate from an uninsured or self-paying patient and who is or would be responsible for scheduling the item or service that is the initial reason for the visit. The IFR, however, does not define scheduling or offer guidance on determining which provider is responsible for scheduling, creating some uncertainty. A provider that is not a convening provider would be a co-provider if it furnishes items or services customarily provided in conjunction with a primary item or service. A co-provider, however, may still be considered a convening provider if an uninsured or self-pay individual “separately schedules or requests a good faith estimate” from the provider.
Identifying and Providing Notice to Uninsured and Self-Pay Individuals
Convening providers are required to determine if an individual is uninsured or proceeding on a self-pay basis and to inform all uninsured and self-pay individuals of the availability of a good faith estimate upon scheduling or request. An individual is uninsured if s/he does not have coverage for an item or service under commercial healthcare coverage (a group health plan or group or individual health insurance coverage offered by a health insurance issuer), a federal employee health benefits program (FEHBP) plan, or a federal healthcare program (e.g., Medicare or Medicaid). An individual with commercial healthcare coverage or a FEHBP plan may nonetheless be considered self-pay if he or she does not seek to have a claim for the item or service submitted to such plan or coverage.
The convening provider must inquire if an individual is uninsured or enrolled in coverage, and if the individual is enrolled in commercial or FEHBP coverage, the convening provider must also determine if the individual is proceeding on a self-pay basis by inquiring whether the individual is seeking to have a claim submitted for the primary item or service with the payor.
In addition, the convening provider must provide notice regarding the availability of a good faith estimate of expected charges. This notice must be prominently displayed on the convening provider’s website, in the office, and on-site where scheduling or questions about the cost of items or service occur. The convening provider must also provide this notice orally and in writing to uninsured and self-pay individuals. This notice must be written in a clear and understandable manner and made available in accessible formats and in the language(s) spoken by individual(s) considering or scheduling items or services with the provider. HHS provides an optional model notice and considers use of the model notice to be good faith compliance with this requirement.
Triggering Events and Timing for Good Faith Estimates
A convening provider must provide a good faith estimate (1) upon a request from an uninsured or self-pay individual and (2) when scheduling a primary item or service for an uninsured or self-pay patient. As noted above, the IFR does not define what constitutes the scheduling of an item or service, creating some potential uncertainty for providers. The regulations, however, do broadly construe what constitutes a “request” for a good faith estimate, explaining that “any discussion or inquiry regarding the potential costs of items or services under consideration” must be considered as such a request.
Once an item or service has been scheduled or a request for a good faith estimate has been received, the good faith estimate must be provided within three business days of the request or scheduling if it is scheduled at least 10 business days in advance. But if the item or service is scheduled at least three but less than 10 business days in advance, the good faith estimate must be provided within just one business day. The convening provider must provide the good faith estimate in written form in clear and understandable language and delivered either on paper or electronically (in a format the individual can both save and print) pursuant to the individual’s requested method of delivery. A good faith estimate may also be provided orally if requested, but it must also be provided in written form. The good faith estimate is considered part of the patient’s medical record.As part of the preparation of the good faith estimate, the convening provider must, within one business day, contact each co-provider that is reasonably expected to provide items or services in conjunction with and in support of the primary item or service and request the submission of good faith estimate information. The co-provider must respond to the convening provider’s request within one business day.
Content and Delivery of the Good Faith Estimate
The good faith estimate provided to uninsured and self-pay patients must contain a number of data fields, including an itemized list of items and services along with associated codes and expected charges. Notably, the good faith estimate must cover both the primary item or service that is the initial reason for the visit, as well as other items or services that are reasonably expected to be furnished in conjunction with the primary item or service. Although the regulation and statute require that the good faith estimate include information on items and services reasonably expected to be furnished by co-providers, as previously noted, HHS is exercising enforcement discretion through December 31, 2022 where good faith estimates fail to include co-provider charges.
The full list of information that must be included in the good faith estimate is as follows:
- The patient’s name and date of birth;
- A description of the primary item or service and, if applicable, the scheduled date;
- An itemized list of items or services reasonably expected to be furnished for or in conjunction with the primary item or service during the period of care, grouped by the convening provider or facility and each co-provider or co-facility;
- Applicable diagnosis and expected service codes, with expected charges listed for each item or service;
- The name, National Provider Identifier (NPI), and Taxpayer Identification Number (TIN) of each provider and facility included in the good faith estimate, and the state(s) and location(s) where the items or services are expected to be furnished;
- A list of items or services the convening provider anticipates will require separate scheduling before or after the primary service, along with prescribed information about the issuance of separate good faith estimates for these items or services; and
- Disclaimers informing the individual (1) that there may be additional recommended items or services that must be scheduled and requested separately, (2) that the information is only an estimate and actual items, services, or charges may differ; (3) of the individual’s right to initiate the patient-provider dispute resolution process; and (4) that the good faith estimate is not a contract and does not require the individual to obtain the items and services from the identified providers or facilities.
HHS has provided an optional, model form that convening providers may use to prepare the good faith estimate. The IFR also contemplates the preparation of a good faith estimate for recurring services across a period of 12 months or less, requiring that such a good faith estimate include the expected scope of the recurring primary items or services (e.g., timeframes, frequency, and total number of recurring items or services).
Co-providers are required to submit good faith estimate information to the convening provider that the latter will use to create the good faith estimate. This information must include:
- The patient’s name and date of birth;
- An itemized list of items and services the co-provider reasonably expects to furnish in conjunction with the primary item or service as part of the period of care;
- Applicable diagnosis codes, expected services codes, and expected charges for each listed item or service;
- The co-provider’s name, NPI, and TIN and the state and location(s) where the items or services are expected to be furnished; and
- A disclaimer that the good faith estimate is not a contract.
Corrections and Changes to the Good Faith Estimate
Between the preparation of the good faith estimate and the date of service, there may be changes impacting the good faith estimate, including the expected charges, items, services, frequency, recurrences, duration, or providers. If a co-provider anticipates any changes, it must notify the convening provider with new good faith estimate information. And if the convening provider anticipates or is notified of any changes, it must provide a new good faith estimate to the individual no later than one business day before the items or services are scheduled to be furnished. If changes in expected providers occur less than one business day before the item or service is scheduled to be furnished, the new provider must accept the good faith estimate information for the replaced provider as its own.[xv]
In circumstances where a provider becomes aware of an error or omission in a good faith estimate, the provider is obligated to correct the information as soon as practicable. Insofar as the provider was acting in good faith and with reasonable due diligence and corrected the information, the provider will not fail to comply with the good faith estimate regulation. But, if the services are furnished before the information is corrected, the patient may nonetheless be able to reduce his or her payment obligation through the patient-provider dispute resolution process.
Some errors or omissions may arise because a provider’s good faith estimate information is developed in reliance on inaccurate or incomplete information from another entity or individual. In these cases, the provider will nonetheless be compliant as long as it relied in good faith on the information and did not know and should not reasonably have known that the information was incomplete or inaccurate. As with other errors or omissions, corrected information must be provided to the patient as soon as practicable after the provider learns that the information is incomplete or inaccurate. If items or services are furnished before the error is addressed and billed charges exceed the good faith estimate by more than $400, the provider may be subject to the patient-provider dispute resolution process.
Enforcement of the Good Faith Estimate Requirements
Providers that fail to comply with the good faith estimate requirements may be subject to state regulatory enforcement actions or, if the Centers for Medicare & Medicaid Services (CMS) determines that the state is not substantially enforcing providers’ obligations under the No Surprises Act, federal civil monetary penalties. At this time, the federal civil monetary penalty rule under the No Surprises Act has not been finalized, but, in its September 15, 2021 proposed rule, HHS proposed adopting a maximum civil monetary penalty of $10,000 for each violation of the No Surprises Act by a provider. HHS has also established a complaint process, under which HHS may receive complaints of provider non-compliance with the No Surprises Act and take action, including referring the complainant to a state regulatory authority or referring the provider for investigation and civil monetary penalties.
In addition, if a provider bills an uninsured or self-pay patient charges that exceed that provider’s good faith estimate by more than $400, the patient may initiate the patient-provider dispute resolution process under 45 C.F.R. § 149.620. Patient-provider disputes are handled by a selected dispute resolution entity (SDR entity), which will compare the estimates for each item or service against the charges for each and evaluate credible information from the provider explaining the difference.[xx] If the provider’s billed charges exceed its estimated charges or if an item or service was not included in the good faith estimate, the SDR entity will determine whether the difference (1) reflects the costs of a medically necessary item or service and (2) is based on unforeseen circumstances that could not have reasonably been anticipated by the provider when the good faith estimate was provided. If both of these criteria are met, the SDR entity will set the patient’s payment obligation at the lesser of billed charges or the median in-network amount paid by plans or issuers based on an independent database. But, if either requirement is not met, the patient will not owe anything more than the good faith estimate amount for that item or service (or will not have any payment obligation for the item or service that was not included in the good faith estimate).
The comment period for the good faith estimate IFR closed on December 6, 2021, and it remains to be seen whether HHS will propose any amendments or clarifications to the IFR in light of stakeholder feedback. In the meantime, providers are subject to the requirements set forth at 45 C.F.R. § 149.610, with the caveat that HHS will exercise enforcement discretion where a good faith estimate does not include expected charges for co-providers. This enforcement discretion, however, currently only applies through December 31, 2022, and providers will need to develop operational workflows and data exchange processes that will allow the inclusion of good faith estimate information for all co-providers by January 1, 2023.