A tremendous amount of confusion abounds from numerous sources and blogs regarding the application of the “No Surprises Act” with optometric practice.  This confusion stems from:

  • The late changes made to the initial No Surprises Act under Presidential Order 14036
  • The significant complexity of the law
  • The manner in which the law has been rushed to implementation with an abbreviated public comment period


The No Surprise Act was passed in December 2020.  It focused on the elimination of balance billing and unexpected charges issued by hospitals, surgery centers, ambulance services, laboratories and imaging centers.  It contained NO provisions that apply to any private practicing health care practitioner.  NOTE:  Balance billing is already illegal in Federal payer programs (Medicare, Medicaid, federally funded health care plans).

By Presidential Order 14036, HHS was charged with extending “patient protections” to essentially all healthcare providers.  Health care providers are defined as “a physician or other health care provider acting within the scope of practice of that provider’s license”.  Obviously, this includes optometrists.  The entire 480-page amendment called the Transparency in Coverage Act may be found here:  https://www.federalregister.gov/documents/2021/10/07/2021-21441/requirements-related-to-surprise-billing-part-ii

What is required under the Transparency in Coverage Act?

The Transparency in Coverage Act included the following requirements

  1. Insurers must provide enrollees with price comparisons for 500 specific services – this requirement does not go into effect until January 2023 and likely to be modified extensively before implementation. In any case it places no requirements on individual providers.
  2. A Good Faith Estimate (GFE) for services to be rendered to the patient is issued to the patient’s insurer.
  3. A Good Faith Estimate (GFE) for services to be rendered to the patient if the patient is either uninsured or elects to pay for services outside their insurance plan.
  4. Establishment of an “Independent Dispute Resolution (IDR)” process for fee dispute resolution between providers and patients where the ultimate fees exceed the GFE.

As of this date, the following information is accurate regarding each requirement.

  1. Insurer price comparisons. This requirement does not impact health care providers and does not go into effect until January 2023. It is likely to be modified extensively before implementation.
  2. A Good Faith Estimate from providers to insurers. The complexity of implementation was quickly recognized and this requirement is currently not in force and under review by the HHS.  HHS is charged with creating a “seamless” procedure for accomplishing this requirement.  Good luck to HHS – stay tuned for developments sometime in 2022.
  3. A Good Faith Estimate from providers to self-pay patients. This requirement goes into effect on January 1, 2022, and is detailed in the next section.
  4. Independent Dispute Resolution. This process applies only if the ultimate charges to the patient requested from the provider exceed the GFE by more than $400. The IDR process is incredibly complex with, in PCS’s opinion, little application to optometric care. The IDR requirements are likely to change and will be covered in a subsequent PCS article sometime in 2022.

Good Faith Estimate Requirements to Self-Pay Patients

So, we are down to the only real application of these complex laws to the day-to-day practice of optometry.

Before we get too frantic about all this, HHS has stated that they recognize the complexity of this requirement and the short time frame for requested implementation.  Therefore. they have stated that despite going ahead with implementation on January 1, 2022, there will be “discretionary enforcement” of the requirement through December 31, 2022.  PCS encourages clients to start building your office protocols now and use 2022 as a time to fine tune the process.  PCS will continue to investigate ways to streamline this process.

The Act requires each covered entity to develop a GFE process that includes:

  • Notice posted on the provider’s website and prominently displayed in the office where scheduling or questions about the cost of items or services typically occurs. HHS has a Standard Notice – “Right to Receive a Good Faith Estimate of Expected Charges” – you can access at https://www.cms.gov/regulations-and-guidancelegislationpaperworkreductionactof1995pra-listing/cms-10791.  This exact form is not required and PCS has developed a customized format client can access in the Documents section of the Fraud and Abuse/General Compliance dashboard.
  • Both oral and written explanations of charges for services that will be provided. A format by HHS for a GFE can be found at CMS-10791 – 2. Good Faith Estimate Template.pdf.  The exact form is not required and PCS has developed a customizable form that clients can access in the Resource Documents section of the Fraud and Abuse/General Compliance dashboard.  The GFE must be provided to the applicable patient within three (3) business days of the time the appointment for the service is made.

Frequently Asked Questions:

  • Do I have to provide a GFE for all my patient encounters?
    No.  At this time, GFEs are required only for patients who are uninsured or have private insurance plans and do not wish to utilize the benefits in those plans for the planned service (self-pay).
  • Do the requirements of the Transparency in Coverage apply to vision plans?
    In PCS opinion, the law does not specify the GFE includes anything but medical care. Further clarification could change that and others may have different opinions. Check back here for updates.
  • It states I must provide a GFE within three days of the time the appointment is scheduled – what about emergency care?
    There is currently no guidance related to this question so PCS will apply logic.  If the encounter applies to the GFE requirement and the service is of an emergent nature, the GFE should be provided, if possible, prior to the actual service.  This will obviously not be possible in all emergency encounters so the GFE should be obtained as soon as possible.
  • Do I have to provide a GFE to the patient for expected services at the time they make an appointment over the phone?
    Only if the patient requests it and you still have the three-day time frame to supply it.  You also must supply an applicable patient with a GFE for future services within three days of their request at any time in the future prior to the visit.
  • I have no idea what office visit will be applicable as I will not know the real reason for the visit until the day of the encounter. How do I make a Good Faith Estimate of what the visit will cost?
    Excellent question and a strong argument used against implementation of the GFE process – which all failed.  Two comments.  First, this is an ESTIMATE.  You could provide a range of potential charges for an office encounter based on the nature of the reason the patient states they need to be seen.  Second, the patient has no grounds to dispute any difference between the estimate and the actual charges unless those fees differ by more than $400 – a highly unlikely situation.
  • After my examination I decide diagnostic procedures are required.  How do the GFE rules apply?
    Again, there is no guidance so back to common sense.  If the additional services are being scheduled, the GFE can be provided at the time they are scheduled.  If the additional services are deemed medically necessary at the time of the initial encounter, the GFE can be provided prior the services being conducted.  This is actually no different than what providers are obligated to do already – the only difference is instead of just a verbal explanation and consent from the patient, the written GFE is required.
  • Does the GFE replace the need for an Advanced Beneficiary Notice (ABN)?
    ABNs are used in cases where insurance is being utilized.  The GFE requirement only relates to encounters where no insurance is being billed therefore there is no reason or need for use of an ABN.