The federal No Surprises Act and interim final rules implementing the Act went into effect on January 1, 2022. Part I is aimed at reducing “surprise bills” to patients in the context of services provided at hospitals and ambulatory surgical centers. A “surprise bill” is one that a patient receives for services from a provider who the patient was not aware was out-of-network with the patient’s insurer and often follows an emergency service or procedure.

Part II requires that “providers” give uninsured and self-pay patients a good faith estimate of charges before certain procedures and services are provided. The definition of “provider” in Part II is very broad and includes “health care facilities.” A health care facility is further defined to include any facility required to be licensed under state law. Skilled nursing and other long term care facilities are not specifically mentioned as examples in Part II, so many thought that long term care providers were not included. However, a CMS FAQ states that “No specific specialties, facility types, or sites of service are exempt from this requirement.”

Specifically, Part II requires any licensed facility that schedules a non-emergency service for an uninsured or self-pay patient to provide a Good Faith Estimate (GFE) to the uninsured and self-pay patient. Uninsured means a patient who does not have certain types of health insurance, and self-pay means a patient who does not plan to use available health insurance to pay for health care items or services.

Providers must inform all uninsured and self-pay patients of the availability of a GFE in a clear and understandable manner when scheduling a service or upon request.

• A notice also must be prominently displayed on-site at the provider where scheduling or questions about the cost of items or services occur.
• A notice also must be published on an easily searchable part of the provider’s website.

The GFE must outline an uninsured/self-pay patient’s expected charges for a scheduled or requested item or service. It also includes items or services reasonably expected to be provided along with the primary item(s) or service(s), even if the patient will receive the items and services from another provider or another facility. The GFE must be provided:

• no later than 1 business day after the date of scheduling when a primary item or service is scheduled at least 3 business days in advance.
• no later than 3 business days after the date of scheduling when a primary item or service is scheduled at least 10 business days in advance.
• no later than 3 business days after a GFE is requested.

Enforcement

Enforcement is still a work in progress. States will be the primary enforcers of the rules as to health care providers, with federal enforcement as back up. Many states are still determining which agency will be responsible, with likely candidates being the state Attorney General’s offices or Health and Human Services agencies. It appears that enforcement will be mostly complaint driven, but the U.S. Department of Health and Human Services plans to conduct random and targeted investigations each month.

What Should Licensed LTC Providers Do?

• Develop and post notice on website using CMS’s sample forms and notices and also determine where to post a notice in your facility.
• Assess what non-emergency procedures or services are provided in your setting for which a GFE may be required.
• When scheduling a non-emergency procedure or service, determine if the resident is uninsured or self-pay.
• Download the GFE notice form from the CMS website and provide a GFE when requested by a resident or required by the regulation.
• Designate a contact person to coordinate with other providers that are preparing GFEs for patients. Other providers may need to include in their GFE costs related to rehab services that your facility provides.

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