No Surprises Act 

We want to call your attention to a new federal regulation that went in to effect January 1, 2022. This rule will require psychiatrists and other health care providers to give a “good faith estimate” (GFE) to a patient of what their services will cost and how long they may last.  While this policy is part of most informed consent forms, signed by the patient already, it is prudent to review what the GFE is more formally requesting psychiatrists include in their information to the patient about the course of their treatment. The main difference about past practices and the GFE is that it applies to private pay patients as well as insured patients and uninsured patients.

This new requirement was finalized in regulations issued October 7, 2021. The regulations implement part of the “No Surprises Act,” enacted in December 2020, as part of a broad package of COVID- and spending-related legislation. The act aims to reduce the likelihood that patients may receive a “surprise” medical bill by requiring that providers inform patients of an expected charge for a service before the service is provided. These protections not only address emergency care but include disclosure requirements for all uninsured or self-pay services and will, at some point in the future, also include patients with insurance. These regulations formalize some of what psychiatrists/providers already do when communicating fees to patients seeking care or for whom psychiatrists/providers are providing care.  

One other surprise billing provision that goes into effect in January is that insurers will be held accountable to paying for care delivered by an out-of-network provider, when the insurer’s provider directory incorrectly noted the provider as being in network.  NCPA members may already be noticing that insurers are requesting professionals to update their practice demographic information more often. Psychiatrists may want to document their updates to insurers.

Educational materials have also been created and circulated to APA members to assist with the implementation of the Good Faith Estimate requirements put in place as part of the administrative interpretation of the legislation. Click here to read more ».

This APA document provides answers to questions received through the APA’s Practice Management Helpline. 


Q: What is the No Surprises Act?   

A: The No Surprises Act (Title 45, section 149.610 of the Code of Federal Regulations) is intended to provide financial protections to patients from unexpected medical bills. This law was crafted as a response to patients receiving unanticipated medical bills from emergency care situations with out-of-network physicians. The aim of the law is to protect patients from these types of surprise bills. However, the No Surprises Act will apply to psychiatrists in certain circumstances.

Q: How does this impact psychiatrists working in hospitals? 

A: Psychiatrists working in group practices or larger organizational settings and facilities will likely receive direction from their compliance department or lawyers on how to satisfy these new requirements. The following information is geared toward solo/small group practices.

Q: So, what about private practice psychiatrists? 

A: This new legislation focuses on emergency services and out-of-network providers at in-network facilities.  However, there are sections that apply to ALL healthcare providers. The most significant change for psychiatrists providing care in the outpatient setting is a new requirement to provide a good faith estimate (GFE). Beginning January 1, 2022, psychiatrists will be required to give new and established patients who are uninsured, self-pay, or patients who are shopping for care a good faith estimate of costs for services that they provide.

Q: Do I have to provide a Good Faith Estimate to all of my patients?

A: At the present time, the requirement for a good faith estimate applies to these categories of patients:

  1. Patients who do NOT have health insurance of any kind ( i.e., commercial insurance, HMOs, union health plans, or government health plans.)
  2. Patients who DO have health insurance that would pay for all or part of your treatment but who DECLINE to use their insurance for the cost of your treatment.
  3. Patients who are shopping for care.

For now, federal law requires that you provide ONLY these patients (in these three categories) with a written notice regarding the cost of expected services. 

Q: What is expected of me if my patient has insurance, but I do not accept their insurance payment?

A: You will be expected to provide the patient with a good faith estimate. This patient would be considered "self-pay" and, therefore, qualifies to receive a GFE starting January 1, 2022. 

Q: In my office agreement, I say that I don’t accept insurance. Does this suffice to cover the law or do I need a separate document?

A: You need an individualized document for each patient. There is no requirement that the patient sign the form.

Q: What information is required in a good faith estimate?

A: The good faith estimate is a notification of expected charges for a scheduled or requested service. The “expected charge” for a service is either:

  • the cash pay rate or rate established by a provider for an uninsured (or self-pay) patient, reflecting any discounts for such individuals; or
  • the amount the provider would expect to charge if the provider intended to bill a health care plan directly for such service.

The estimate can be a range. The Centers for Medicare and Medicaid Services (CMS) have provided instructions and a sample good faith estimate template.

Q: Can the Good Faith Estimate and Informed Consent Document be combined into one document?

A: No, the law requires that these documents be drafted separately.  

Q: For new patients, the form asks you to customize per patient primary diagnosis, which I would not have prior to the initial appointment?

A: In those instances where a diagnosis has not been established, we recommend coming up with some standard language (i.e., TBD pending evaluation for MH/SUD.)

Q: Do I need to provide a good faith estimate to my current patients? 

A: Yes. The rule requires you to provide the estimate to both future and current patients.

Q: For established patients, it asks you the date of visit, but I do not know all their future appointment dates for the year. How do you suggest customizing and completing the form for existing patients?

A: You can use terms such as weekly, semi-monthly, monthly, or every six months rather than specific dates of service. However, you will still need to calculate an estimated cost or range of costs.

Q: Is it acceptable for me to only provide a good faith estimate upon request by my patient?  

A: No. Psychiatrists must provide a Good Faith Estimate, whether the patient asks for one or not. 

Q: When do I need to begin providing these estimates to my patients? 

A: You should provide this estimate to all of your current patients (uninsured, self-pay, or patients who are shopping for care) on (or about) January 1, 2022. You can use email on the 1st of the year. Otherwise, we suggest mailing the notice to all uninsured, self-pay, or shopping-for-care patients.  

The law also requires you to provide notice to all new patients (uninsured, self-pay, or patients who are shopping for care) when they start treatment on or about January 1, 2022. The law also requires that all of these patients (in the three categories) receive a new notice every year or if their fees change. We suggest, for the sake of simplicity and to avoid confusion, that you provide all patients (in the three categories) with a notice on (or about) January 1st of each year (or to coincide with any scheduled rate increase), including new patients who started treatment during the past year. 

We suggest listing the cost per session, an estimated number of sessions and then calculating what that would be for the defined period (full or partial year).

Q: Is the Good Faith Estimate binding?

A: The information provided in the good faith estimate is only an estimate, and a patient's final bill may differ from what is included in the good faith estimate. There is no penalty if you overestimate the costs. The APA recommends that if in doubt, you should overestimate expected charges. There does not appear to be a penalty for overestimating. 

A new patient-provider dispute resolution process allows uninsured or self-pay patients to challenge a bill from a provider if the billed charges substantially exceed the expected charges in the good faith estimate. Substantially exceeds means an amount that is at least $400 more than the expected charges listed on the good faith estimate for a specific provider. We believe the $400 difference is based on the entire estimate for ongoing services (not on a single date of service/single invoice). 

No Surprises Act Advocacy Continues 

On February 23, 2022, the U.S. District Court in the Eastern District of Texas found in favor of the Texas Medical Association’s lawsuit challenging rule provisions implementing the No Surprises Act. In short summary, the Court concluded that (1) the plaintiffs had standing to challenge the interim final rule, (2) the rule improperly conflicts with the No Surprises Act and must be set aside, and (3) the Departments improperly bypassed notice and comment when implementing the challenged portions of the rule. The full opinion is available hereThe full impact of the Court’s decision is still developing, but this is a positive step toward better alignment of Congress’ intent when passing the No Surprise Act.

In late January 2022, CMS invited APA and the other signatories to a listening session to gain a better understanding of how the GFE requirements impact the delivery of MH/SUD care. CMS anticipates hosting more sessions with the behavioral health community.

This February 3, 2022 article in Kaiser Health News is a good summary of the concerns for psychiatrists. 

The APA signed a January 25 letter to the Department of Health and Human Services, seeking an exemption from the “good faith” estimates for routine mental and behavioral health services. The letter was signed by a coalition of 11 other medical associations, including the American Psychological Association, expressing similar concerns. The coalition points out that psychiatrists/therapists have a longstanding practice of reviewing costs of care with patients upfront, as required by their professional ethics, and are requesting an exemption.

On December 9, 2021, two North Carolina physicians, along with the American Medical Association and the American Hospital Association, filed a complaint and motion to stay against the federal government over the implementation of the federal surprise billing law, the No Surprise Act (NSA). The lawsuit challenges a narrow but impactful provision of a rule issued by the U.S. Department of Health and Human Services (HHS) and other agencies related to the dispute resolution process described in the NSA. You can read more about the lawsuit here

APA wrote to CMS on December 6, 2021, regarding the second set of regulations issued to implement the No Surprises Act and expressed concern that the independent dispute resolution protocol laid out in the regulations does not reflect the statutory language. 

APA submitted comments to CMS on September 2, 2021, regarding the first set of regulations issued to implement the No Surprises Act and expressed concern that the law could have unintended results

If you have any questions or concerns, please contact us at [email protected]