[A]n act done in good faith, even if it causes harm, is not an offense. The concept of good faith is subjective and depends on the honest belief of the individual and their intention to act in the best interest of themselves or others. Good faith generally refers to acting honestly and without any intention to deceive or defraud others.
Again, it’s about having good intentions.
So, why are we going into all this? Well, it’s because many of our readers are (or will be) responsible for providing something called a “good faith estimate” (GFE) as required by multiple federal rules. There are at least two different occasions when you may be called on to provide a GFE. Let’s look at each of these in turn.
ABNs and Liability Waivers
When it comes to “straight Medicare” (not Medicare Advantage) beneficiaries, you are required to present an advance beneficiary notice (ABN) form to the patient or his/her representative when you believe the medical service or procedure in question will be denied for payment due to medical necessity issues. Before presenting the form, you will need to list thereon an estimated cost of the service being sought. That data should be entered into “Blank (F)” of the ABN. And, yes, the estimate should be based on the “good faith” doctrine. Here’s how the ABN instruction form puts it:
Blank (F) Estimated Cost: Notifiers must complete the column under Blank (F) to ensure the beneficiary has all available information to make an informed decision about whether or not to obtain potentially non-covered services. Notifiers must make a good faith effort to insert a reasonable estimate for all of the items or services listed under Blank (D). In general, we would expect that the estimate should be within $100 or 25% of the actual costs, whichever is greater; however, an estimate that exceeds the actual cost substantially would generally still be acceptable, since the beneficiary would not be harmed if the actual costs were less than predicted. [Emphasis added.]
So, the estimated cost is to be based on your good faith effort, which is another way of saying that you should do your best to be as factual and forthright as possible in the amount you list in Blank (F).
When it comes to health plans that don’t involve Medicare and that don’t have their own requirements/forms for likely denied services, you should provide the patient a generic “waiver of liability” form that, at the very least, lets the patient know up front that the service they seek will in all probability be denied and that the patient is responsible for full payment in such circumstances. This form should also contain a good faith estimate of charges for the service being sought.
Uninsured and Self-Pay
Under the federal No Surprises Act (NSA), there are two major sections. The first section deals with a prohibition on “balance-billing” a patient where the hospital and surgeon participate with the patient’s health plan but the anesthesiologist, for example, does not. The nonparticipating anesthesiologist in such cases would be limited to charging the patient the in-network copays/deductible. The second section deals with the provider’s requirement to provide the patient with a GFE in circumstances where the patient has no insurance or has insurance but chooses to pay out of pocket. It is this second section of the NSA that we want to focus on.
The NSA and its implementing regulations originally required not only the surgeon, i.e., the “convening” or “scheduling” practitioner, to provide a GFE to uninsured and self-pay patients, but “co-providers” (such as anesthesiologists and CRNAs) were to provide a GFE to such patients, as well. However, CMS later extended the deadline for co-providers having to meet this requirement. In a December 2, 2022 FAQ, CMS stated:
Q1: Will CMS enforce the requirement that GFEs for uninsured (or self-pay) individuals include cost estimates from co-providers and co-facilities beginning on January 1, 2023?
A1: No. HHS is extending enforcement discretion, pending future rulemaking, for situations where GFEs for uninsured (or self-pay) individuals do not include expected charges from co-providers or co-facilities. [Emphasis added.]
To our knowledge, no new deadline for co-providers has been set since this FAQ was published.
Well, that raises the question: what about chronic pain providers; are they required to provide a GFE to the uninsured and self-pay patient? The short answer is that the deadline extension that was given to anesthesia providers does not apply to chronic pain providers. CMS materials that flesh out the provisions of the NSA and its subsequent rules make it clear that providers in an office setting—place of service (POS) 11—do fall under the GFE requirements under the NSA. A chronic pain physician in a clinic (POS 11), then, is clearly bound by the GFE requirement as they would not be deemed a co-provider but rather a convening provider.
But what about a pain physician in the outpatient setting; would they be considered a co-provider? In those settings, the pain physician is injecting patients, putting in pain pumps and neurostimulators and, again, would seem to be acting as the “convening” (the scheduling) provider, not a co-provider. So, a pain physician is almost always going to be deemed as the “convening provider”—regardless of setting—and therefore would be required to provide a GFE to a patient who is uninsured or desires to pay out of pocket.
Pain providers should also note that, pursuant to a December 2021 circular from HHS, “Enrollees in Federal health care programs are not eligible to receive a good faith estimate as there are other surprise billing protections under these programs.” Accordingly, if someone with Medicare or Medicaid, for example, wants to pay out of pocket for a pain injection, you would not need to give them a GFE.
For more information on the NSA GFE requirements, including time frames for delivering the GFE to the patient, you can click on the following link: *HHS PPDR Providers Guidance (cms.gov). If you have further questions about this topic, please contact your account executive.