Convening Provider vs. Co-Facility in the No Surprises Act

The No Surprises Act was passed as part of the Consolidated Appropriations Act 2021. It went into effect on January 1, 2022, protecting uninsured and self-pay patients from the worst kind of surprise: unexpectedly high medical bills. The No Surprises Act gives patients the right to receive a good faith estimate of what their provider charges before the services are rendered and spoils any chance of being surprised by the cost of medical services or procedures.

In a nutshell?

• The No Surprises Act applies to out-of-network providers who provide emergency and non-emergency services at in-network facilities. Under these conditions, facilities can't charge patients more than an in-network provider would have charged them.
• It also prevents out-of-network providers and facilities from balance billing or directly billing patients for the remaining balance after their insurance pays the covered amount in certain circumstances.
• Some facilities and providers must publicly disclose balance billing restrictions.
• The No Surprises Act limits the billed amount when a provider's network status changes in the middle of treatment or the provider directory information is inaccurate.
• Self-pay patients who receive a bill substantially more than the good faith estimate are entitled to a dispute resolution process.

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What Does a Convening Provider or Facility mean?

Your responsibilities under the No Surprises Act will differ based on whether you're considered a convening provider, a convening facility, a co-provider, or a co-facility. Suppose a patient schedules surgery and indicates that they are uninsured or self-pay. A convening facility or provider is the provider or facility responsible for scheduling the primary service or item, in this case, surgery. They will also receive the first request for a good faith estimate.

What's a Co-Provider or Co-Facility?

A co-provider or co-facility provides services or items alongside a primary item or service, such as anesthesia or lab work. For that patient scheduling surgery, a co-provider or co-facility might be responsible for providing a good faith estimate for the anesthesia.

Good Faith Estimates (GFE) Rules Under the No Surprises Act

The No Surprises Act stipulates that uninsured and self-pay patients are entitled to receive a good faith estimate before services are provided. The good faith estimate lists the expected charges for items and services by both convening providers and facilities and co-providers and co-facilities. In other words, you must disclose to the patient all fees before they incur them. Hence, "no surprises."

Individuals are considered uninsured if they are not covered under one of the following types of plans:

• A group health plan
• Group health insurance coverage offered by a health insurance provider
• A federal healthcare plan
• Federal Employees Health Benefits (FEHB) plans

Individuals enrolled in one of those plans who do not plan to submit a claim through it are considered self-pay.

GFE Requirements for Convening Providers

To meet the GFE requirements of the Department of Health and Human Services, your practice or facility must include all the information required in a GFE and follow notification procedures, timelines, and more.

What's In a GFE?

A good faith estimate from a convening provider must include:

• The name and date of birth of the patient
• An explanation of the primary service or item in clear and understandable language with the date it's scheduled to be provided
• An itemized list of the services and items provided as part of the primary service or item and those provided in conjunction with the primary service or item
• The diagnosis codes, expected service codes, and expected charges for each item or service
• The name, national provider identifier, Tax Identification Number, and the name of the state where the services will be provided
• Any services or items from other providers that will be scheduled separately, including a disclaimer above this list that a separate GFE will be issued upon request, that relevant information will be included in those GFEs, and information about how patients can obtain those GFEs
• A disclaimer that other services may be recommended that aren't included in this GFE and must be scheduled or requested separately
• A disclaimer that the GFE is an estimate only and that the actual charges may be different
• A disclaimer informing patients that they have a right to a patient-provider dispute resolution process if the billed charges are substantially higher than the estimate and how they can initiate the dispute process
• A disclaimer stating that the GFE isn't a legal contract and doesn't require the patient to receive services or items from any of the facilities or healthcare providers listed in the GFE
• A GFE must be maintained as part of a patient's medical record for at least six years. A copy of any previous GFE issued within the past six years must be provided to a patient upon request.

Convening Provider Responsibilities

In addition to providing a thorough GFE that meets the above requirements, the convening provider must follow set steps in the process.

Display the option for a GFE.

The convening provider must post a clear, easily readable, and prominently displayed notification that a GFE is available on their website, at their offices, and on-site, where questions about scheduling and costs are likely to be discussed. The notice has to be easily searchable from a public search engine. Information regarding the GFE must be available in formats the patient can access and should be available in the language spoken by the patient.

Ask about patient coverage.

Convening providers must also ask patients whether they're covered by health insurance and if they plan to use their health insurance for these services to determine whether the patient requires a GFE.

Provide a GFE when requested.

A patient can ask for a GFE before services are scheduled, and convening providers have to consider any questions about costs from a self-pay or uninsured individual as a request for a GFE. The convening provider has to provide the GFE when the service or item is scheduled, whether the request is formal or informal.

Gather GFEs from all parties.

The convening provider must request an estimate from co-providers and co-facilities within one business day of scheduling a service or item or receiving the GFE request. The GFE must be provided within one business day of scheduling a service or item if it's scheduled between three to nine business days before the date of the service or item. If the service or item is scheduled at least 10 business days in advance, a GFE has to be given to the patient within three business days of scheduling.

Meet GFE deadlines.

The GFE must be provided within one business day of scheduling a service or item if it's scheduled between three to nine business days before the date of the service or item. If the service or item is scheduled at least 10 business days in advance, a GFE has to be given to the patient within three business days of scheduling.

If a patient asks for a GFE before scheduling a service or item, the facility must provide it within three business days. After the service or item is scheduled, the patient should receive a new GFE. If a service or item will be provided in less than three business days, the convening provider doesn't have to issue a GFE.

Put it in writing.

The GFE has to be delivered to the patient in written form, either electronically or on paper, as per the patient's request. The patient must be able to save and print the GFE if it's delivered electronically. If a patient asks for a GFE orally, a written copy must also be provided on paper or electronically.

A GFE must be provided even if there is a set price for the service or item or if it's a recurring service or item. Facilities can provide one GFE  for recurring services updated annually if the following conditions are met:

• The GFE includes the anticipated scope of the recurring services or items in language understandable to the average patient.
• The time frame of the primary services or items does not exceed 12 months.

If you expect the provision of services or items to exceed 12 months, you must deliver a new GFE and communicate any changes to the patient.

GFE Requirements for Co-Providers

When a co-provider or co-facility receives a request from a convening provider or facility, they must submit their GFE information within one business day. They must submit an update if something changes in their scope of service. If the price changes are made less than one business day in advance of the scheduled date of the service or item, co-providers must accept the previously provided estimate of anticipated charges — no changing the price at the last minute.

However, if an actual error is discovered in the GFE, it must be corrected as soon as possible.

The co-provider or co-facility has to give the following information to the convening facility:

• The patient's name and date of birth
• An itemized list of the services or items the co-provider or co-facility expects to provide in conjunction with the primary service or item
• The diagnosis codes, expected service codes, and expected charges for each item or service
• The name, national provider identifier, Tax Identification Number, and the state where the services will be provided
• A disclaimer that the GFE isn't a contract and doesn't require the patient to obtain services or items from any of the providers or facilities listed in the GFE

A co-provider or co-facility will be considered a convening provider or facility for GFE rules if a patient directly contacts them to schedule a service or request an estimate. With the title change comes a change in responsibility. The co-provider or co-facility must then provide a GFE according to the guidelines for a convening provider.

Penalties for Convening Facilities That Omit Expected Charges for Co-Facilities in GFEs

If providers or facilities fail to deliver a GFE, they can face fines of up to $10,000 per violation. Because the HHS realizes that it may take convening facilities and providers time to establish procedures for receiving information from co-providers and co-facilities, it will use discretion when enforcing violations that pertain specifically to failing to include expected charges from co-providers and co-facilities from January 1, 2022, through December 31, 2022. If a co-facility or co-provider provides items and services that aren’t included on a GFE, or they're only included as a range of charges, they aren't eligible for the dispute resolution process until after December 31, 2022.

Patients can seek a GFE directly from the co-provider or co-facility, too. If they receive a request from a patient, providers and facilities are required to provide a GFE for their services or items.

The new federal laws aim to set a standard in place of state laws, which may differ. If a provider or facility follows state rules to issue a GFE that falls short of the federal GFE requirements, they have failed to comply. They are no longer "in good faith" with the federal government or their patient. However, if a provider or facility makes an error or omission in the GFE despite doing their due diligence, they will not have failed to comply with the GFE requirements as long as they correct the error or omission as soon as possible.

Dispute Resolution Process

If, for some reason, uninsured and self-pay patients receive a bill that exceeds the expected charge listed in the GFE by more than $400, they may dispute the bill. The patient can start the dispute resolution process by giving HHS an initiation notice through the federal IDR portal or sending it through the mail within 120 calendar days of receiving the bill.

Patients must include the following information in the initiation notice:

• Identifying information about the item or service charge that's being disputed, including the date or description
• A copy of the bill for the disputed items or services
• A copy of the GFE for the disputed items or services
• The state where the items or services were provided
• The patient's contact information, including name, address, email address, phone number, and communication preference

If a state has a provider-patient dispute resolution process, HHS will send the notice to the state. The provider or facility will then be notified if it finds the dispute meets the criteria for the dispute resolution process. Eligibility for the dispute resolution process is decided separately for each unique provider or facility named in the GSE.

After the provider or facility has been alerted that the dispute resolution process has begun, they must respond within 10 business days. They have to send a copy of the bill under dispute and the GFE along with any documentation that shows the discrepancy was a result of an item or service that was medically necessary and, despite due diligence, couldn't have been anticipated when the GFE was delivered.

While the dispute resolution process is ongoing, the provider or facility must not attempt to collect the unpaid bill or associated late fees. They can't take or threaten to take any retributive actions because the patient used the dispute resolution process. The provider or facility and the patient can settle the dispute among themselves at any point during the dispute resolution process. If this occurs, the provider or facility must notify HHS within three days of the agreement.