In 2020, Congress passed the No Surprises Act (NSA) in an attempt to protect patients from surprise billing. Some sections of the NSA became effective January 1, 2022, while other sections are on hold until regulations are released. See this post for a general NSA overview.

This weekly series provides answers to frequently asked questions regarding the NSA. The first FAQ installment answered general questions and focused on the requirement to notify patients of their NSA protections.

The second and third installments focused on good faith estimates (GFE) applicability, timing, and logistics. This article covers the GFE content, distribution, and implementation issues.

Health care providers who would like to submit a question for inclusion in a future FAQ installment should email susan.freed@dentons.com

No Surprises Act and Good Faith Estimates - Content & Distribution

What must be included in the GFE?

Each GFE must include the following:

• Patient name and date of birth;
• A description of the primary item or service in an understandable language;
• Itemized list of items or services- grouped by provider or facility- reasonably expected to be furnished for the primary item or service scheduled for the period of care;
• Applicable diagnosis codes, expected service codes, and expected charges associated with each listed item and service;
• Name, NPI, and TIN of each provider represented in the GFE and the state(s) and office/facility locations where the items and services are expected to be furnished by the provider;
• A list of items/services that require separate scheduling and are expected to occur before or following the primary item/service with a disclaimer that separate good faith estimates will be issued upon scheduling or upon request;
• A disclaimer:
  • Informing the patient there may be additional items or services recommended as part of the course of care that must be scheduled or requested separately and are not reflected in the GFE;
  • Informing the patient the information provided in the GFE is only an estimate of services reasonably expected to be furnished at the time it is issued and actual items and services provided may vary;
  • Explaining the patient’s right to initiate the dispute resolution process if actual billed charges are substantially in excess of the expected charges included in the GFE and instructions on where to find information about the process; and
  • Including that GFE is not a contract and does not require patients to obtain the items and services from any of the providers identified in the GFE.

In what form must the GFE be provided?

The GFE must be provided in writing, either electronically or on paper, pursuant to the patient’s requested method of delivery. If the patient requests it electronically, the format must be such that the patient can save and print it. 

What if the patient requests the GFE verbally, must I still provide it in writing?

Yes. The regulations require the GFE in writing even if you read the GFE verbally to the patient.

What if the patient won’t provide information for us to provide the GFE electronically?

Patients can request the GFE electronically or in paper form. If you would prefer to provide the GFE electronically but the patient does not provide you with the information necessary to receive it electronically, you would want to mail the GFE to the patient.

What if the patient does not have an address with us on file and gives us no way for us to give them the GFE?

We suggest you document the patient’s refusal to provide you with the information necessary to provide the GFE and then hand them a copy of the GFE when they present for the service. Because the GFE has specific timing requirements, this situation does pose some risk to the provider if the patient disputes the charges. Therefore, documentation of the refusal and the lack of available information to provide the GFE is critical.

Good Faith Estimate - Implementation Issues

Is the GFE subject to HIPAA?

Yes. The GFE and the correspondence between the provider and co-providers as well as between the patient and provider relating to the GFE is protected health information and is required to be kept confidential and protected by the providers’ privacy and security policies.

Must I keep a copy of the GFE?

Yes. All GFEs are required to be part of the patient’s medical record and must be retained in accordance with the provider’s record retention requirements and applicable legal requirements, such as HIPAA, which requires providers to retain medical records for at least six years.

Can any patients, even those who are insured, request a GFE?

The current regulations apply only to self-pay and uninsured patients. While later regulations and requirements will apply similar requirements to insured patients, for now, providers are only required to provide a GFE upon the request of a self-pay or uninsured patient.

Can I charge patients for providing a GFE?

No. GFEs for self-pay and uninsured patients must be provided free of charge.

I am not the convening provider, if a patient requests a GFE, can I simply refer her to the convening provider?

No. All providers, including co-providers, are required to provide self-pay and uninsured patients with a GFE upon request within three business days of the date of the patient’s request.