No Surprises Act Compliance for Chiropractors

By:  Ashley Watson, Esq., Brennan, Manna & Diamond LLC

abwatson@bmdllc.com; 614-246-7518

As of January 1, 2022, chiropractors and all other licensed healthcare providers will need to comply with the No Surprises Act (“NSA”), designed to protect patients form unexpected medical bills.

Part I of the NSA was released on July 1, 2021 and applies to emergency services and out-of-network nonemergency services provided in a facility including a hospital, ambulatory surgical center, or critical access hospital. This Part limits cost-sharing patients are required to pay for these services, prohibits balance billing with some exceptions, and requires facilities to notify patients of their rights and protections against surprise medical bills. Because Part I is only applicable in certain facilities, except for chiropractors who may provide out-of-network services in a hospital or ambulatory surgical center, most chiropractors will not need to worry about Part I.

Conversely, Part II of the NSA, released on September 30, 2021, institutes requirements for a much larger range of healthcare providers. Part II requires state licensed or certified health care providers, including chiropractors, to provide a Good Faith Estimate (“GFE”) of the cost of a patient’s healthcare services to every patient who is uninsured or is not planning on submitting a claim to their insurance for their services. Below is a breakdown of the important aspects of the GFE requirement that took effect on January 1, 2022:

• Which patients are required to be given a GFE?
  • Providers must inquire about the insurance status of every patient. If the patient is uninsured or does not wish to have their claims submitted to insurance, then the GFE requirement applies.
• How are patients made aware of the availability of a GFE?
  • Providers must post a notice in their office and on their website regarding the availability of a GFE and the patient’s right to receive a GFE. A template notice can be found on the Centers for Medicaid and Medicare Services (“CMS”) website under Form CMS-10791 (1. Right to Receive a Good Faith Estimate of Expected Charges).
• What must a GFE include?
  • Patient name and date of birth.
  • Description/date of the primary item or service in clear, understandable language.
  • Itemized list of items or services reasonably expected to be provided in connection with the scheduled services. This includes services provided by other practitioners but integral to the primary service (e.g., a diagnostic test necessary for the primary service).
  • Expected diagnosis codes, service codes, and charges associated with each listed item or service.
  • Name, NPI, and TIN of each provider/facility represented in the GFE.
  • Office locations where services will be provided.
  • Disclaimers including a list of services that are not reflected in the GFE and must be scheduled separately, a statement that the GFE is only an estimate and actual charges may differ, a notice that the patient may engage in a dispute resolution process in some circumstances, and a notice that the GFE does not obligate or require the client to obtain any of the services in the GFE from the provider.

A GFE template can be found on the CMS website under Form CMS-10791 (2. Good Faith Estimate Template).

• When must a GFE be provided?
  • If a service is scheduled at least 10 business days in advance, the GFE must be provided within 3 business days of the scheduling.
  • If a service is scheduled at least 3 business days in advance, the GFE must be provided within 1 business day of scheduling.
  • If a service is scheduled less than 3 business days in advance, a Good Faith Estimate is not required.
  • If an individual requests a Good Faith Estimate, it must be provided within 3 business days of the request.
• How can a provider estimate costs for new patients?
  • GFEs are meant to be an estimate and may be revised if additional information is found. The point of the NSA is to be more transparent with pricing, so revising a GFE once more information is known is appropriate. Additionally, Part II does not require the GFE to include charges for unanticipated items or services that are not reasonably expected.
• Where should providers store copies of GFEs?
  • GFEs should be maintained in the patient’s medical record and the date and method of delivery should be noted for at least six years.

In addition to the GFE requirements, Part II also established a patient-provider dispute resolution process for patients who are billed substantially in excess of their GFE. In order to participate, a patient must have received a GFE, been billed for at least $400 more than the GFE, and must submit the dispute to the Department of Health and Human Services (“HHS”) within 120 days of the date on the bill. HHS will notify a provider when a patient has disputed the bill and the provider will have ten days to respond with evidence to support the higher bill. If no support is provided, the provider will receive no payment for the additional charges.

CMS has developed a website for providers and patients to use for NSA information and dispute resolution: https://www.cms.gov/nosurprises. Implementing the GFE notification process may seem daunting to providers at first. However, once a process for identifying services is in place it should not be any more burdensome than other notices required to be provided to patients, like HIPAA Notices of Privacy Practices. Remember, starting January 1, 2022, the GFE requirement applies for patients who are uninsured or are not submitting claims to insurance. However, HHS and CMS have indicated that future rulemaking will extend the GFE requirement to insured patients so watch out for forthcoming guidance.

Please consult a healthcare attorney with any questions about the No Surprises Act and how it applies to your practice.

This article does not constitute legal advice.