Does the No Surprises Act affect dermatologists?

By Allyn Rosenberger, JD, MPH, and Robert M. Portman, JD, MPP, May 1, 2023

Every month, DermWorld covers legal issues in “Legally Speaking.” This month’s authors are health care attorneys with Powers Pyles Sutter & Verville in Washington, D.C. Portman is also general counsel for the AAD and AADA.

Dermatology practices may think the No Surprises Act, which most notably bans surprise medical bills, does not apply to their practices because they do not provide hospital emergency services. In fact, while dermatologists may not be subject to that aspect of the law, a lesser-known provision requiring them to provide good faith estimates certainly applies.

In addition to outlawing surprise medical bills, the No Surprises Act requires those who provide care to an uninsured or self-pay patient — including dermatologists — to provide a comprehensive estimate of the charges that the patient can expect to incur. Patients must also be notified they are entitled to such an estimate. This article provides an overview of this requirement; we encourage all Academy members to familiarize themselves with this provision to ensure ongoing compliance.

The No Surprises Act

The No Surprises Act (NSA), which took effect on Jan. 1, 2022, introduced new requirements for physicians, facilities, and air ambulance services providers to protect patients from surprise medical bills. Congress passed the NSA in December 2020 as part of its fourth COVID-19 relief package, The Coronavirus Response and Relief Supplemental Appropriations Act.

The NSA is best known for its signature achievement of protecting patients from out-of-network bills in emergencies. It also shields patients if they go to an in-network facility for a procedure, but an out-of-network physician unknowingly furnishes them services as part of the visit (like anesthesiology or radiology). These surprise medical bills from out-of-network physicians are also referred to as “balance bills.” Prior to the NSA, unless banned by state law, an out-of-network physician or facility could bill a patient for the difference between the billed charge and the amount the patient’s health plan paid for an emergency and certain other out-of-network procedures (“Covered Procedures”), a practice known as “balance billing.”

Because the NSA bans balance billing for Covered Procedures, a health plan must determine the amount it will pay out-of-network physicians for these procedures, and out-of-network physicians may only charge patients up to the patient’s in-network cost sharing amount. When a physician disputes the health plan’s out-of-network rate, the NSA requires resolution through the independent dispute resolution (IDR) process, except in states that specify an out-of-network rate in state law.

During the IDR process, the physician and health plan both submit offers for payment and the certified IDR entity chooses one, considering enumerated statutory considerations, including the qualifying payment amount (QPA), which is generally the health plan’s median contract rate for the item or service in the geographic area. This process has been the subject of numerous ongoing lawsuits.

While these provisions are unlikely to affect most dermatology practices, a lesser-known requirement of the law — the good faith estimate (GFE) — affects a much broader range of physicians, including dermatologists. It is important for dermatology practices to understand these requirements and ensure compliance with them.

The No Surprises Act and dermatology: The good faith estimate

In addition to prohibiting balance billing in certain circumstances, the NSA requires physicians and facilities to provide GFEs of charges for care to uninsured and self-pay patients upon scheduling care or on request. Practices must also alert patients they are entitled to such GFEs. Uninsured and self-pay patients who receive a bill substantially more than the GFE’s expected charges may go through a new “patient-provider dispute resolution” (PPDR) process.

On Oct. 7, 2021, HHS published interim final rules titled, Requirements Related to Surprise Billing; Part II, implementing various provisions of the NSA, including the GFEs and the PPDR process.

Physicians, other health care providers who are acting within their scope of practice under applicable state law, air ambulance providers, and health care institutions licensed under applicable state or local law as health care facilities all must act in accordance with the NSA’s GFE and PPDR requirements.

How to comply with the good faith estimate requirements

Dermatology practices should take the following steps to ensure their organizations comply with the NSA:

1. Prominently display information regarding the availability of GFEs for uninsured and self-pay patients in a clear and understandable manner. Such information should be on the practice’s website (and easily searchable from a public search engine), in the office, and on-site where scheduling or questions about the cost of items or services occur. Practices may use the CMS Standard Notice.

2. Determine whether a patient is uninsured or self-pay when that patient seeks care. To do so, ask whether the patient is enrolled in: (1) a group health plan, (2) group health insurance offered by a health insurance issuer, (3) a federal health care program, or (4) a health benefits plan under a Federal Employees Health Benefits (FEHB) Program. If a patient is not enrolled in any of these, they are considered uninsured for the purposes of the GFE. If a patient is enrolled in one of these but does not intend to have a claim submitted through their plan, the patient is considered self-pay for the purposes of the GFE.

3. Inform uninsured and self-pay patients orally and in writing that they have the right to obtain a GFE when service is scheduled or when the patient asks about cost.

4. Provide the required written GFE to the self-pay patient within the time required by the regulation (45 CFR § 149.610(b)(1)).

   1. The comprehensive GFE must include expected charges for: (1) the primary item or service that will be furnished and (2) all items and services that are reasonably expected to be provided in conjunction with the primary item or service during a defined period of care. These items and services include encounters, procedures, medical tests, supplies, prescription drugs, durable medical equipment, and fees (including facility fees). CMS has provided a helpful template (PDF).

Visit CMS for a complete overview of the GFE requirement (PDF).

This article is provided for informational and educational purposes and is not intended to provide legal advice and should not be relied upon as such. Readers should consult with their personal attorneys for legal advice regarding the subject matter of this article.

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