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Surprise Billing for Outpatient Office and ASC Providers


HHS 2022 Surprise Billing

If you're lost on how to comply with the new Surprise Billing requirements, you're not alone. Though they went into effect on January 1, 2022, many are still confused about what they need to do. In this post we will give you a high-level overview of the new rules as they apply to outpatient offices and ambulatory surgical centers (ASCs).

What is Surprise Billing?

Surprise medical bills occur when an insured person inadvertently receives care from an out-of-network provider for any type of care (emergent or planned). For example, a patient could go to an in-network facility (e.g., a hospital or ambulatory surgery center), but later find out that a provider treating them (e.g., an anesthesiologist or radiologist) does not participate in their health plan’s network. In either situation, the patient is not in a position to choose the provider or to determine that provider’s insurance network status.

In these situations, in addition to any out-of-network cost sharing the patient might owe, the out-of-network provider or facility could bill for the difference between the billed charge and the amount the patient's health plan paid, unless banned by state law. This is called “balance billing.” An unexpected balance bill from an out-of-network provider is also called a surprise medical bill.

Who Do the Surprise Billing Regulations Apply To?

The regulation has different components that apply to different types of providers. The two major components are a prohibition on balanced billing and a good faith estimate (GFE) requirement. Both of these are subject to a federal independent dispute resolution process when issues arise. Please note that some states have more restrictive regulations. For the federal regulation, these are the applicable providers for the two main regulatory components:

  • Prohibition on balanced billing
    • Nonemergency care provided by out-of-network providers at an in-network hospital or ASC, unless the patient has consented to be treated by an out-of-network provider and agrees to be balance billed.
    • Out-of-network emergency services provided at a hospital emergency department, or independent freestanding emergency department, or by air (not ground) ambulance.
  • Good Faith Estimate (GFE)
    • All healthcare providers.

What Does the Prohibition on Balanced Billing Mean for Nonemergency Care?

For nonemergency care provided by an out-of-network provider at an in-network hospital outpatient department or ASC, the provider may only collect the in-network cost-sharing from the patient and may not balance bill.

Are There Exceptions?

Yes. The exception is when the out-of-network provider has furnished advance notice to the patient and obtained the patient's written consent to balance bill using this form, unless your state has developed its own form that satisfies the federal requirements.

When you submit a claim to a health plan, you, as an out-of-network provider, must indicate that the service was rendered during a visit to  an in-network facility and, if applicable, provide a copy of the signed consent to bill at their out-of-network rate. If you bill the patient directly, you should include a copy of the signed consent with the bill.

Circumstances in Which the Exception Does Not Apply

There are certain situations in which the provider is prohibited from seeking consent to balance bill:

  • Diagnostic services, including radiology and laboratory services.
  • Items and services provided by a nonparticipating provider, if there is no participating provider who can furnish such item or service at the facility.
  • Items and services provided as a result of unforeseen, urgent medical needs that arise at the time that an item or services is furnished, regardless of whether the provider previously obtained consent to balance bill.
  • For items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology.
  • Items and services provided by assistance surgeons, hospitalists, and intensivists.

What are the Good Faith Estimate Compliance Requirements?

All healthcare providers must provide a Good Faith Estimate (GFE) to uninsured patients and to commercially insured patients who choose not to use their benefits (self-pay patients) before scheduled services. Specifically, the rule requires you to:

  1. If the patient is uninsured or does not intend to use their coverage, you must inform the patient of the availability of a GFE. The rule specifically requires you to ask the patient the following questions:
    1. Ask each patient whether they are covered by commercial insurance, Medicaid, Medicare, or the Federal Employees Health Benefits Program (FEHBP)
    2. If the patient is covered under commercial insurance of FEHBP, you must ask if the patient intends to use that coverage.
  2. The notice of the availability of the GFE must be posted on the the provider's or the facility's website, at the office, and on-site where scheduling or cost questions arise. HHS has provided a model notice in Appendix 1.
  3. You are obligated to provide a GFE under the following circumstances:
    1. A patient requests a GFE
    2. If you are a "convening provider" (a provider or facility that receives an initial request for a GFE or that is responsible for scheduling the primary service): When an uninsured patient discusses or inquires about costs, whether or not a GFE is specifically requested.
    3. When a service is scheduled by an uninsured or self-pay patient.
  4. The GFE must be provided either in writing or electronically, per patient request. An electronic GFE must be provided in such a way that the patient can both save and print the GFE.

Timeline for Providing a GFE

How quickly you are required to give the patient the GFE depends on how far in advance the service is scheduled.

  • Service scheduled at least 10 business days in advance
    • GFE must be given to patient within 3 business days
  • Service scheduled at least 3 business days in advance
    • GFE must be given to patient within 1 business day
  • Patient requests GFE before service is scheduled
    • GFE must be provided to patient within 3 business days
    • Once the service is scheduled, you must provide the patient with a new GFE using the timelines above.

What if the GFE Elements Change Before the Service?

The convening provider or facility must update the GFE at least one business day before the service if it learns of or anticipates any changes to the scope of the prior GFE. If any providers represented in the GFE change within one business day prior to the scheduled service, the replacement providers must accept the GFE as their own GFE.

What About Recurring Services?

You may provide a single GFE for recurring services, as long as the GFE is updated at least every 12 months.

Resources

CMS released a zip drive of resources to help providers comply with the new good faith estimate requirements. These include, among other resources:

  • Appendix 1: Standard Notice: “Right to Receive a Good Faith Estimate of Expected Charges” Under the No Surprises Act
  • Appendix 2: Standard Form: “Good Faith Estimate for Health Care Items and Services” Under the No Surprises Act
  • Appendix 11: Good Faith Estimates: Data Elements

What Happens if the GFE is Wrong?

If the bill exceeds the amount listed for the provider or facility in the GFE by more than $400, the uninsured or self-pay patient may dispute the bill. Once HHS receives a dispute, it will either begin the dispute resolution process or, if the state has adopted its own process, refer it to the state. HHS or the state (if referred to the state) will notify the provider or facility if it determines the dispute is eligible for dispute resolution.

Once notified, the provider or facility will have 10 business days to provide a copy of the disputed GFE, bill, and any documentation showing that the difference was based on a medically necessary item or service that could not have been reasonably anticipated when the GFE was provided. Providers and facilities must suspend collections and late fees on unpaid amounts while the dispute resolution process is pending. 

If the patient and provider agree to settle the dispute prior to the resolution, the provider must notify the dispute resolution entity (HHS or state) within 3 business days.

How to Make Providing a GFE Easier

Consider using a patient experience platform like Promptly to automate these requirements. Their platform calculates out-of-pocket costs while taking into account payer allowable, remaining deductible, co-pays, and more. The Good Faith Estimate can be sent to the patient electronically along with a payment link to save time and increase timely collections. 

Disclosure: MarsdenAdvisors may receive compensation for purchasing products or services by using links in this article.

Jessica Peterson

Written by Jessica Peterson

Jessica Peterson, MD, MPH is the Vice President of Health Policy at the consulting firm MarsdenAdvisors.

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