No Surprises Act Regulations 2022

Frequently Asked Questions: Good Faith Estimates

These FAQs are intended to clarify the requirement in a new federal rule implementing the No Surprises Act that health providers (including clinical social workers) provide good faith estimates (GFEs) to current and new patients who are self-pay or uninsured.(Providers do not need to furnish estimates to those who plan to use their health insurance.) The rule went into effect on January 1, 2022. Here is an overview of this rule and other parts of the rule that apply in a more limited way to CSWs. This document pertains specifically to clinical social workers in solo/small group practices. If you are employed in a larger group, system/facility, please seek customized guidance from your compliance office. NASW is advocating to address concerns with the rule and awaiting further guidance from federal regulators on the rule’s provisions. Unlike some laws, the GFE requirement does not currently appear to carry any direct monetary penalties or fines for noncompliance. However, a potential consequence of failing to provide an accurate estimate is becoming subject to a billing dispute resolution process.These FAQs are being updated regularly to reflect new information.

1. I thought that the No Surprises Act only applied to providers who worked in facilities that furnish emergency services. Do these new regulations apply to me?
Yes. The definition of provider broadly includes all health care providers (including CSWs) and health care facilities licensed, certified or approved by the state. While much of the No Surprises Act focuses on emergency and inpatient care, patient protections have been put into place for care provided in outpatient settings as well. Providing good faith estimates (GFEs) is one of those protections, and CSWs meeting the above definition must provide them.

2. My state already has a law requiring estimates of healthcare costs. Can I continue to follow that process?
No. If the state process does not meet the entirety of the standards applied in this federal rulemaking, simply following the state requirement would not be considered compliant with the federal rule. If your state already has a law requiring similar cost estimates, you should provide qualifying clients with a GFE that meets both state and the new federal standards.

3. Do I need to inform new and current patients that they are entitled to GFEs?
Yes. Notice of the availability of the GFE must be posted on the provider’s or facility’s website and at the office. The current version of HHS’s model notice is available here.

4. Do I need to provide GFEs to patients who are planning to file a claim with their health insurance?
Not in 2022. You only need to provide to patients who are self-pay or uninsured. However, starting in 2023, all providers will need to provide GFEs to insured patients as well. This requirement is not yet in place for patients who pay for services through their insurance. Federal agencies will soon issue rules specifying the form, timing, and manner by which good faith estimates must be transmitted to health insurers. NASW will provide further updates when these rules are issued.

5. Does this requirement apply to new patients or is it also for existing patients?
Both.

6. I already have a consent form where patients acknowledge that I do not accept any insurances and I provide my fee schedule in my intake paperwork. Do I still need to provide GFEs?
Yes. It is likely that you just need to modify your existing forms to capture some additional information. Once in place this is something that can be done annually (such as in January) and timed with any future changes in rates and services.

7. Do the GFEs have to be provided by certain timeframes?
Yes. See this resource for the timeframes.

8. Do I have to use the template that the US Department of Health and Human Services has provided as a model?
No, but you must include in the GFE the required elements outlined in the regulations. Here is a model template developed by NASW for clinical social workers.

9. Can we just provide GFEs orally? as a model?
No. GFEs must be provided in writing, via either on paper or electronically (for example, electronic transmission of the GFE through the provider’s patient portal or electronic mail), pursuant to the patient’s requested method of delivery. GFEs transmitted electronically must be provided in a manner that the patient can both save and print and must be provided and written using clear and understandable language and calculated to be understood by the average uninsured (or self-pay) individual. If a patient requests that the GFE information is provided in a format that is not paper or electronic delivery, such as orally over the phone or in person, the provider/facility may provide the GFE information orally but must follow-up with a written paper or electronic copy in order to meet the regulatory requirements.

10. How do patients without internet access or a permanent address receive a GFE?
A copy of the GFE can be mailed to an address specified by the patient. For patients without a permanent address, the GFE can be provided electronically or in person. For patients who may be housing insecure and have limited or no internet access, a paper GFE can be provided in person.

11. Why must a GFE be provided in writing?
A paper or printable electronic copy of the GFE is integral as it is a required input for the patient-provider dispute resolution (PPDR) process that the patient can use if the actual billed charges exceed the GFE by at least $400. When initiating the PPDR, the patient must submit a copy of the GFE.

12. How does the rule apply for a patient who has entered into a Medicare private contract with a provider who has opted out of Medicare (neither the provider nor the patient will seek reimbursement)?
Until we have further clarification, we suggest treating these individuals as you would any self-pay patient who does not submit a claim.

13. Are providers expected to provide a GFE if they are seeing a patient within less than three (3) days, such as for a crisis?
No GFE is required if a service is scheduled less than three business days before the appointment.

14. What are the GFE requirements if multiple providers are furnishing care to the patient in conjunction with a primary item or service?
These requirements do not apply to most independent clinical social workers in private practice as they are typically not responsible for scheduling the services of other providers who might be involved with the patient’s therapy (e.g., a psychiatrist or primary care provider who prescribes the patient’s medicine). Further, enforcement discretion is being applied in 2022 for this requirement, so enforcement action will not be taken against providers who are convening providers who should have, but did not include estimates from co-providers in GFEs.

In these instances, the “convening provider or facility” must provide a GFE to the patient, which includes items or services reasonably expected to be furnished by the convening provider or facility, as well as those reasonably expected to be furnished by co-providers or co-facilities. The convening provider or facility is the provider or facility that is responsible for scheduling the primary items or services. Other providers or facilities that furnish items or services in conjunction with the primary item or service furnished by the convening provider or facility are considered “co-providers” and “co-facilities.”

No later than one business day after scheduling the primary item or service or receiving a request for a GFE, the convening provider or facility must contact all co-providers and/or co-facilities that will provide items or services in conjunction with the primary items or services and request GFE information including the expected charges for these items or services expected to be provided by the co-provider or co-facility. These entities are required to submit GFE information to the requesting convening provider or facility, which must include, among other things, the expected charges for items or services that are reasonably expected to be provided in conjunction with the primary item or service. These expected charges must be sent to the convening provider or facility no later the 1 business day after receiving the request. In addition, co-providers and co-facilities must notify and provide new GFE information to a convening provider or convening facility if the co-provider or co-facility anticipates any changes to the scope of GFE information previously submitted to a convening provider or convening facility (such as anticipated changes to the expected charges, items, services, frequency, recurrences, duration, providers, or facilities). In the event that the patient separately schedules or requests a GFE from a provider or facility that would otherwise be a co-provider or co-facility, that provider or facility is considered a convening provider or convening facility for such item or service and must meet all requirements of convening providers and facilities for issuing a GFE to the patient.

Since it may take time for providers and facilities to develop systems and processes for receiving and providing the required information from co-providers and co-facilities, HHS will for CY 2022 exercise its enforcement discretion in situations where a GFE provided to patients does not include expected charges from co-providers or co-facilities.

Nothing prohibits a co-provider or co-facility from furnishing the GFE information to the convening provider or facility in CY 2022, and nothing would prevent the patient from separately requesting a GFE directly from the co-provider or co-facility, in which case they would be required to provide the GFE for such items or services. Otherwise, during this period, HHS encourages convening providers and facilities to include a range of expected charges anticipated to be provided and billed by co-providers and co-facilities.

15. I provide services in a setting offering multiple kinds of services to the same patient (i.e., a federally qualified health center, rural health clinic, hospital), and I do not separately schedule appointments or bill for my services. Does this rule apply to me?
It depends. The regulation describes slightly different obligations for a “convening provider or convening facility,” which is a provider or facility who receives the patient’s request for a GFE of costs and is responsible for scheduling the primary service.

Depending on how appointment requests are received and scheduled in your setting, you may not be responsible for compiling or providing the GFE, but you are expected to contribute any information that may be relevant to the estimate. If you are in such a setting, you should consult with your facility or clinic’s compliance officer or attorney about your personal obligations under this new regulation.

16. How am I to provide a patient primary diagnosis if I have not yet seen and assessed them?
In those instances where a diagnosis has not been established, we recommend that providers reasonably attempt to include expected service codes and expected charges associated with the service (e.g., TBD, pending evaluation). We are awaiting further clarification from HHS on this and will update our guidance as needed.

17. Can clients waive their right to a Good Faith Estimate?
No. While some clients will either be unaware of their right to a GFE or feel comfortable not receiving such an estimate, there are no provisions allowing clients waiving their right to it.

18. How specific does a client request for a GFE need to be?
The regulation stipulates that any discussion or inquiry about the costs of treatment should be considered a request for a GFE Clients do not need to use the exact phrase.

19. Can I include the Good Faith Estimate with my usual client intake paperwork?
Yes. Depending on the nature and scope of the services you provide, it may make sense to include GFE as part of your standard intake paperwork. If you do so, bear in mind that the estimate must relate to the specific services to be provided to that client, and the estimate must be made available to new clients in a specific time frame once services are scheduled, as listed above. Specifically including the GFE in a treatment contract may confuse patients, as the GFE requires a disclaimer specifically telling patients that the estimate is not a contract and does not create an obligation to receive services from that provider. So the GFE may make more sense to patients when put into a separate document. However, the required notice about the client’s right to receive GFE may fit well into a treatment contract.

20. When estimating costs, particularly for new clients, can I use a range?
Yes. Suggested language is in our model GFE : Depending on [list applicable factors], you may need between 12 and 30 psychotherapy sessions of 50 minutes each this year. At [rate per session] the estimated total costs are between [12 x rate per session and 30 x rate per session].

21. How can I estimate costs or services for clients I haven’t met?
You may revise the estimate based on information gathered from the patient at an initial meeting. For example, prior to meeting a patient, you may not have enough information to include diagnostic codes or to provide anything more than a broad range of potential costs. Once you have met with the client and have a better sense of their symptoms, likely diagnoses, and severity, you may be able to offer more specific guidance.

22. What if my estimate turns out to be inaccurate?
GFEs do not need to include charges for unanticipated items or services that are not reasonably expected and that could occur due to unforeseen events. If a clients’ needs are ultimately different from what was expected, a provider can update the GFE to address the new information or events. It is especially important to update your estimate if it goes up and creates the risk of exceeding your original estimate.

If the services have not yet been provided to the patient, you should provide a corrected GFE to the patient as soon as practicable. If the services have already been provided, you should provide the patient with an updated GFE as soon as practicable, at least prior to their next appointment. A patient may still initiate the dispute resolution process in the No Surprises Act if the total amount you charge the patient (per provider) is at least $400 more than the charges listed in the GFE.

We recommend that you develop a system for tracking your GFEs against actual patient billing to reduce issues with patients complaining that you exceeded your GFE You will want to avoid reaching the $400 threshold, which the rule defines as fees “substantially in excess” of the GFE.

23. If I am seeing someone weekly, do I put the cost for each session or the total for the year?
We suggest listing the cost per session, an estimated number of sessions and then calculating what that would be for the defined period (full or partial year).

24. I do not know all of the future appointment dates for my established patients for the coming year. How would I handle this in the GFE?
You can use terms such as weekly, semi-monthly, monthly, every six months rather than specific dates of service. However, you will still need to calculate out an estimated cost or range of costs. NASW’s model GFE shows options for this.

25. If a patient believes they have been charged “substantially more” ($400+) than the GFE they received, is this figure based on a single date of service (single invoice/superbill) or the 12 month estimate for ongoing services?
We have sought clarification from the government but believe it is based on the entire estimate.

26. Is there a risk if overestimating in a GFE?
No, based on the information we have been provided, it does not appear that there is a penalty for overestimating.

New Frequently Asked Questions on the No Surprises Act

April 2022

The Centers for Medicare and Medicaid Services (CMS) has released clarifying information about Part 2 of the No Surprise Act, Good Faith Estimates (GFEs). The frequently asked questions (FAQs) answer many of the questions that social workers asked when the No Surprise Act was implemented in January 2022. Part 2 focuses on services provided to the uninsured or self-pay patients who receive services provided by clinical social workers in independent practice. Social workers employed as salaried employees in hospitals, nursing homes, primary care, and other health settings should contact their administration for information regarding the use of GFEs in their setting.

1. If a diagnostic code has not been determined at the time of scheduling, what code should the social worker use on the GFE?
   In the absence of a diagnostic code, the expected charge and service code for the service should be furnished. An example of a service code would be a Current Procedural Terminology (CPT) code.
2. Where is the GFE maintained?
   The GFE is part of the patient’s medical record and must be maintained in the same manner as a patient’s medical record. See the HIPAA Privacy Rule
3. Are social workers required to provide a GFE for expected charges for future visits in the initial visit?
   A social worker is not required to include a GFE for future services in an initial visit, however, following an initial visit, upon scheduling of additional services, a social worker must provide a new GFE that includes expected charges for the services expected to be furnished. In addition, a social worker may, but is not required to, issue a single GFE for recurring services.
4. Does a GFE need to be provided for each instance of a recurring service?
   In circumstances where a social worker expects to furnish recurring services, such as psychotherapy services, a social worker may issue a GFE for those recurring services, rather than a GFE for each instance.
   A GFE issued for recurring services must be written in clear and simple language the expected scope of the recurring services, including time frames, frequency, and total number of recurring services. The scope of such GFE must not exceed 12 months. If additional recurrences of such recurring services are beyond 12 months, a new GFE must be provided if the social worker expects changes to the scope of a GFE such as expected changes in services, frequency, recurrences, and duration.
   A new GFE must also be issued to a patient no later than 1 business day before the services are scheduled to be furnished. The social worker must also communicate these changes to the patient upon delivery of a new GFE to help the patient understand what was changed between the initial GFE and the new GFE.
5. How does a social worker address situations where unforeseen items or services that were not scheduled in advance are furnished during a visit?
   Charges for services that could not have been reasonably expected do not require a GFE. A GFE provided to a patient must include an itemized list of services that are reasonably expected to be furnished during the known period of care.
6. Is a social worker required to provide a GFE to patients upon scheduling same-day or walk-in services?
   The requirement to provide a GFE to a patient is not triggered upon scheduling a service if the service is being scheduled less than 3 business days before the date the service is expected to be furnished.
7. In situations where the social worker does not provide a patient with a GFE when scheduling a service because they had health insurance, but upon arrival, it is discovered that the patient is now uninsured or self-pay. Should the social worker provide a GFE to the patient prior to providing service, even if it means rescheduling the service for a later date?
   No. When a patient schedules an appointment, the social worker must inquire if the patient is uninsured or self-pay. If the patient is uninsured or self-pay at that time, the social worker must provide a GFE. In situations where a social worker has previously determined that a patient has insurance and becomes aware that a patient is uninsured or self-pay less than three business days in advance of the scheduled service, nothing in the GFE regulations requires that the social worker provide a GFE to the patient or reschedule an appointment to allow for the provision of a GFE.

Additional information is available at the CMS website. Social workers should also review their state regulations for guidance regarding state-specific requirements for GFEs. NASW will keep its members informed as new information becomes available regarding the usage of GFEs.