Little Health Law Blog
Our healthcare and business law firm advises many medical practices, including telemedicine and cash-only practices, on regulatory compliance. A question we frequently receive is whether the No Surprises Act applies to a practice that does not participate in any insurance network. The answer is not always straightforward—the No Surprises Act has several distinct components, and whether a particular requirement applies depends on what type of entity or provider is involved. This post explains the structure of the Act, discusses the Good Faith Estimate (“GFE”) requirement and which providers it reaches, and outlines practical compliance steps. If you would like to discuss No Surprises Act compliance for your practice or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.
(1) The No Surprises Act Has Multiple Components
The No Surprises Act was enacted as part of the Consolidated Appropriations Act of 2021 and created a suite of consumer protections against unexpected medical bills. It is important to understand that not all of those protections apply to the same entities. Some provisions—particularly those addressing surprise billing for emergency services and certain non-emergency services—are tied specifically to “health care facilities,” a defined term that encompasses hospitals, hospital outpatient departments, critical access hospitals, and ambulatory surgical centers. Those facility-specific provisions are primarily designed for the insured-patient context, where a patient receives care at an in-network facility but is unknowingly treated by an out-of-network provider. A cash-only outpatient clinic or telemedicine practice is unlikely to fall within those facility-specific provisions.
The GFE requirement, however, is different. It is codified at Section 2799B-6 of the Public Health Service Act and implemented through 45 C.F.R. § 149.610. The statutory text imposes the GFE obligation on “health care providers” and “health care facilities”—but the operative language of the GFE requirement, and the implementing regulations, appear to attach primarily to licensed providers rather than to facility status. This distinction matters for practices that are not enumerated facilities but whose clinicians hold professional licenses.
(2) The GFE Requirement Arguably Follows the Provider’s License, Not Facility Status
Under the implementing regulations at 45 C.F.R. § 149.610, the GFE obligation applies to “convening providers” and “convening facilities”—terms defined to include any provider or facility that schedules a service or receives a request for a GFE. A “convening provider” is defined broadly as a health care provider who schedules an item or service for an individual. Because the definition references the provider’s status as a licensed health care provider—rather than whether the provider operates within an enumerated facility type—the GFE requirement appears to apply to any licensed clinician who schedules services for self-pay or uninsured patients.
The precise reach of the GFE requirement to every practice setting has not been conclusively resolved, and the regulatory framework has continued to evolve since the Act’s enactment. Practices should consult with a healthcare attorney to evaluate their specific facts. Because the No Surprises Act is predominantly structured around the insured-patient context and surprise billing in network-based care, there is a reasonable statutory interpretation question about whether the GFE obligation was intended to reach providers who have no relationship with any insurer or government payer and transact entirely in cash. CMS’s implementing guidance does not draw that distinction, however, and until the question is resolved through rulemaking or litigation, licensed providers scheduling services for self-pay patients should treat the GFE requirement as applicable. That said, the CMS guidance on the GFE requirement is framed broadly and addresses independent practitioners, group practices, and other provider settings without limiting the obligation to hospital-based or enumerated facility providers. The safer and more defensible compliance position for any licensed provider—including a solo or small-group telemedicine practice—is likely to treat the GFE requirement as applicable, but we recommend discussing your specific practice and services with your healthcare counsel.
(3) What Happens If the Actual Bill Exceeds the Estimate?
If a patient is billed an amount that exceeds the GFE by $400.00 or more, the patient has the right to initiate a patient-provider dispute resolution process administered through CMS. A certified dispute resolution entity reviews the charges and can determine the appropriate payment amount. The $400.00 threshold is not a buffer or safe harbor—it is the trigger for the dispute process, which can result in the provider being required to accept a lower payment. Providers should treat the GFE as a meaningful commitment and keep their fee schedules current and documented.
(4) Practical Compliance Steps for Cash-Only and Telemedicine Practices
For a cash-only or telemedicine practice whose clinicians hold professional licenses, GFE compliance generally requires the following:
- Establish and document a current fee schedule for all services offered, identified by CPT or HCPCS code where applicable.
- Create a GFE form or workflow that captures the patient’s name, date of birth, date of estimate, the scheduled service, anticipated diagnosis or reason for visit, and estimated cost of care for the period ahead.
- Provide the written GFE to the patient automatically—without waiting for the patient to request it—within the timeframe required: at least one business day before the appointment if scheduled three or more days in advance, or at least three business days before the appointment if scheduled ten or more days in advance.
- Retain a copy of each GFE provided, as CMS may request documentation of compliance.
- Update the GFE promptly if the expected services or charges change materially before the scheduled appointment.
CMS has published guidance and model GFE forms that practices may use as a starting point. Cash-only and telemedicine practices that do not yet have a GFE process in place should treat this as a priority compliance item, particularly given that the obligation runs with the provider’s license and attaches to every scheduled self-pay encounter. If you would like to discuss No Surprises Act compliance or GFE requirements for your practice, or would like to discuss this blog post, you may contact our healthcare and business law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.