02/15/2022

New Federal “No Surprise Billing” Provisions Your Office NEEDS to Know!

Members Only Infographic Now Available!

• The federal No Surprises Act has some provisions that are more stringent than the Michigan law, which was passed in 2020.

• Both laws will need to be followed by ALL health care providers in our state.

• The MAC has created resources members can download to ensure compliance with both laws.

Disclaimer: The interpretation of this information is based on the best information currently available. Some of these requirements could change due to future updates to the rule or based on court rulings. Nonetheless, these requirements are in place and active beginning January 1, 2022. Patients will be fully aware of these rights since the requirements will be in place for all healthcare providers. As the MAC receives more information, we will update this article and inform our members of the changes, if any.

To see Dr. Scott Munsterman's presentation on the No Surprises Act from the February 2022 MAC All-District Meeting, click here.

Click the infographic above for a pdf copy for your office.

What Is Surprise Billing?

“Surprise medical billing” occurs when a patient is hit with a surprise bill for a portion of care that occurred outside his or her insurance network. One common example: A patient undergoing surgery might find out only upon getting a bill weeks after the surgery that the anesthesiologist was out-of-network – and insurance covers none of the bill!

Michigan Surprise Billing Law

In 2020, Governor Whitmer signed into law legislation that would add surprise billing protections to Michigan’s Public Health Code, stopping the potential for surprisingly high out-of-network charges for health care procedures. Under the Michigan law, providers must inform patients in advance of a scheduled procedure that their health insurer may not cover all their medical services and that they can request care from an in-network provider.

New Federal Law Effective January 1, 2022

Among other things, the federal No Surprises Act, which became effective January 1^st, protects people covered under group and individual health plans from receiving surprise medical bills in certain instances. The law is comprised of two major parts:

• Part I – “Requirements Related to Air Ambulance Services, Agent and Broker Disclosures, and Provider Enforcement” – applies specifically to certain Medicare-defined “facilities” (hospital, hospital outpatient, critical access hospital, ambulatory surgical center, rural health center, federally qualified health center, laboratory, or imaging center), so it does not pertain to chiropractors working in an office setting.
• Part II – “Requirements Related to Surprise Billing; Part II” – is much broader and includes chiropractors working in an office setting. The primary purpose of this provision is to better inform patients regarding the cost of care and require a “Good Faith Estimate” in certain situations.

About “Good Faith Estimates”

To ensure that bills are not higher than the patient anticipates, patients should be made aware in advance of the cost of services being provided. Under the law, this goes further than just requiring a price list of services offered in the practice. Instead, providers must provide during scheduling (or before scheduling, if the patient requests) a clear list of services (with prices) anticipated for the specific patient. These “Good Faith Estimates” (GFEs) must include:

• A list of all reasonably expected services for the scheduled visit with all prices
• CPT codes and ICD-10 codes
• Patient and provider identifying information
• Appointment date (if scheduled)
• Several disclaimers

Providers must present the GFE in writing, but they can also present it orally. The written requirement can be satisfied through electronic means, such as email (if requested) or a patient portal. However, the patient MUST have the ability to “both save and print” the GFE.

Who Must Get a GFE?

ALL patients are included in the law, but, at this time, only uninsured or self-pay patients are entitled to a GFE under the federal law. In Michigan, there are additional requirements for non-participating providers (see “Important Notes” below).

An uninsured or self-pay individual means an individual who does not have benefits for an item or service through their health insurance. In short, a “self-pay” individual:

• Does not have health insurance, OR
• Has health insurance, but is not billing the services being considered, OR
• Has health insurance but does NOT have coverage for the services being considered (e., has Medicare, but needs an exam, x-rays, modalities, etc.). This will only apply if providers know the person does not have coverage for the services and items being considered.

Important Notes:

• Medicare: Since the requirement includes “an individual who does not have benefits for an item or service under a” health insurance plan (including Medicare), the MAC believes providers will have to provide a GFE to Medicare patients for exams, modalities, and therapies.
• Michigan Non-Participating Providers: The Michigan law requires any non-participating provider who is providing a health care service to a nonemergency patient to provide a disclosure statement to the nonemergency patient. This must state that:
  • Your health benefit plan may or may not provide coverage for all the health care services you are scheduled to receive. Your health benefit plan may or may not reimburse a provider for all services provided if the provider is not in your health benefit plan network. You may be responsible for the costs of the services that are not covered by your health benefit plan.
  • A nonparticipating provider must provide good faith estimates of the cost of the health care services to be provided. A good-faith estimate does not take into account unforeseen circumstances, which may affect the cost of the health care services provided.
  • You also have a right to request that the health care services be performed by a provider who participates with your health benefit plan network. You also may contact your carrier to arrange for those services to be provided at what may be a lower cost and to receive information on in-network providers who can perform the health care services that you need.
  • The disclosure statement must be provided at the earliest of the following:
    • At the time of the nonparticipating provider’s first contact with the nonemergency patient regarding the health care service.
    • At a scheduling or intake call for the health care service.

Notice to Patients About GFEs

Providers are required to inform patients of their right to a GFE in three, specific, clear, and understandable ways:

1. A notice prominently displayed in the office where patients can see the posting (DOWNLOAD). HHS considers use of the model notice to be good faith compliance with the good faith estimate requirements to inform an individual of their rights to receive such a notice.
2. A notice prominently displayed (and easily searchable from a public search engine) on your website (DOWNLOAD). To ensure the “easily searchable from a public search engine” requirement is met, make sure the language is in html format.
3. Orally when a patient schedules an item or service or when questions about costs occurs

The Michigan law requiring disclosure requires that:

• The notice be in not less than 12-point type and in substantially the form prescribed by the law.
• The statement must be signed by the patient (or the patient’s representative) acknowledging that the nonemergency patient (or that patient’s representative) has received, has read, and understands the disclosure.
• A nonparticipating provider shall provide the nonemergency patient or that patient’s representative with a good faith estimate of the cost of the health care services to be provided to the nonemergency patient.
• A copy of the disclosure must be kept on file for not less than seven (7) years after the nonemergency treatment.

The MAC has created a form that we believe satisfies both the federal and State of Michigan requirements for a good faith estimate and/or disclosure document. MAC members can download this form.

How Will This Affect My Practice?

Besides the notice requirements outlined above (notice prominently displayed in office, website notice), the biggest difference chiropractic offices will notice under the new requirements is that they will have to alter patient intake procedures.

It will be necessary for the clinic staff person making appointments to inquire about all the information in the bullet points above (patient have health insurance, billing the services, etc.?), and – if the patient is uninsured or self-pay – notify them about the good faith estimate.

Example 1: When a patient calls to schedule an appointment for a new injury and no treatment plan is yet in place (i.e., no Good Faith Estimate already exists), the staff member taking the appointment must take specific steps at the time the appointment is being made:

• Ask patients if they have health insurance and for the name of their insurance carrier/plan.
  1. If patients have health insurance, then ask if they intend to bill health insurance for the services.
• If the patient does not have insurance, does not intend to bill insurance, or does not have coverage for the intended item or service (i.e., examination and therapies for a Medicare patient), then the patient should be notified that they have the right to receive a Good Faith Estimate (see Required GFE Notifications section above).
• Best Practice – Notify the patient on the phone, using the verbiage on the MAC-created Federal/State GFE form, of the expected charges for their appointment. This will satisfy the oral requirements of the law. For example, if you typically perform an exam, x-rays, and adjustment on the first visit, then tell the patient, “Since this is a new injury, the doctor will perform an examination, may also need to take x-rays, and may perform an adjustment to treat your problem. That means that your first visit will cost between [exam cost] to [exam, x-rays, and adjustment cost]. We have this information in writing available to you, and you can pick it up anytime, including on the day of your visit.”
• Complete the GFE form and place it in the patient’s file. When the patient arrives and requests a copy, simply make and provide a copy of the GFE form already in their file.

Example 2: After the doctor determines a treatment plan to patient:

When the doctor determines the proper course of treatment and presents the plan to the patient (i.e., report of findings), this is the appropriate time to also present the patient with a Good Faith Estimate.

Although many of our doctors already require patients to sign a financial policy and other forms when patients are presented with treatment plans, for self-pay and uninsured patients, doctors will also have to present a form with the required GFE elements.

Federal GFE Deadlines

The federal law outlines deadlines for giving a patient the GFE based on when the patient makes a request, or schedules an appointment, as follows:

• 10 Days in Advance – Provide GFE 3 business days after the date of scheduling, or
• 3 – 9 Days in Advance – Provide GFE 1 business day after the date of scheduling, or
• Under 3 Days in Advance – GFE is required if requested, or
• No appointment scheduled – Provide GFE 3 business days after the date the patient requests the GFE.

Keep in mind, though, Michigan’s state law has different requirements for non-participating providers (see above).

The MAC Insurance Relations team recommends that the best way to stay in compliance with both the state and federal laws is to provide the GFE at the time of the first contact with the patient regarding health care services, or at a scheduling/intake call for the health care service, for an existing patient with a treatment plan.

Other Services Provided by Outside Entities (Lab Work, Radiology)

Interestingly, the rule requires that providers initiating the appointment gather fee information from other potential providers (called “co-providers”) that will bill patients directly. Although this requirement will most impact providers in hospital settings, the requirement applies to chiropractic physician offices, as well.

The most common types of co-providers situations in chiropractic physician offices would be labs (such as for nutritional counseling) and radiologist readings. Physicians will need to use their professional judgment to make the best determination regarding what types of potential co-providers might be needed for a particular patient.

The rules require that the “provider or facility contact all applicable co-providers and co-facilities no later than 1 business day after the request for the good faith estimate is received or after the primary item or service is scheduled, and request submission of expected charges for items or services that meet the requirements for co-providers and co-facilities. [emphases added].” This means that you are required to contact co-providers quickly to determine their potential charges, and co-provider amounts are required to be included in the Good Faith Estimate statement to the patient.

Example: If you utilize nutritional approaches in your practice and your typical patients require lab work that is billed by the lab, then the anticipated lab charges should be included in your Good Faith Estimate for the patient.

Please Note: HHS has exercised its discretion not to enforce co-provider rules during calendar year 2022. Beginning in 2023, however, the GFE must include estimates from co-providers, so the MAC Insurance Relations team recommends beginning to add co-provider costs to your good faith estimates as soon as possible.

Other Considerations

• A GFE is considered part of the patient’s medical record and must be maintained in the same manner as a patient’s medical record (see here for Michigan rules on medical record keeping). Under the federal law, providers must provide a copy of any previously issued GFE furnished within the last 6 years to an uninsured (or self-pay) individual upon the request of the individual.
• There is risk if you do not follow this new requirement. Like HIPAA, providers found to be in violation of GFE regulations can be fined.
• If in doubt, it is better to overestimate expected charges than underestimate.
• Be sure to update your procedure manuals, standard operating procedures, and provider agreements to ensure compliance with the Michigan and federal laws.
• Check with your malpractice insurer to see if violations of the GFE regulations is covered under the errors and omissions portion of your coverage.

Additional State of Michigan Considerations

A nonparticipating provider who fails to provide the disclosure as required under this section shall submit a claim to the nonemergency patient’s carrier within 60 days after the date of the health care service and shall accept from the nonemergency patient’s carrier, as payment in full, the greater of the following:

• The median amount negotiated by the nonemergency patient’s carrier for the region and provider specialty, excluding any in-network coinsurance, copayments, or deductibles. The nonemergency patient’s carrier shall determine the region and provider specialty.
• One hundred and fifty (150) percent of the Medicare fee for service fee schedule for the health care service provided, excluding any in-network coinsurance, copayments, or deductibles.

A nonemergency patient’s carrier shall pay this amount to the nonparticipating provider within 60 days after receiving the claim from the nonparticipating provider. The nonparticipating provider shall not collect or attempt to collect from the nonemergency patient any amount other than the applicable in-network coinsurance, copayment, or deductible.

Stay tuned for additional resources for MAC members on this critical topic!