COMMON CLINICAL CONUNDRUMS

Some food for thought … I hear these same issues in consultations over and over. No simple answers. Balancing risk versus benefit, which is why consultations are sometimes necessary.

Here is one for this month – feel free to email me with ideas and I will share them in the next newsletter.

February’s Conundrum: FEDERAL NO SURPRISES ACT

Federal Rule to Prevent Surprise Health Care Billing – Guidance from National NASW 12.21.21

(emphasis below by Deb)

Under a new federal rule to protect consumers from surprise health care bills, clinical social workers (CSW) and other health care provider types must, effective January 1, 2022, provide a good faith estimate (GFE) of expected charges that may be billed for items and services to individuals who are uninsured (e.g., not enrolled in any health plan or coverage) or who are self-pay (e.g., not seeking to file a claim with their plan or coverage). The GFE must be provided both orally and in writing, upon request or at the time of scheduling health care items and services, and within specific timeframes.

The rule applies to both current and future patients who are uninsured or self-pay. However, GFEs do not need to be provided to patients who are enrolled in federal health insurance plans (e.g., Medicare, Medicaid, TRICARE, Indian Health Service or the Veterans Affairs health system).

Providing a GFE to patients is not new to CSWs who, as part of best clinical practice, routinely discuss services and fees before or during the initial interview with new patients.

Federal Rule Background and Definitions

On October 7, 2021, an interim final rule was issued by the U.S. Department of Health and Human Services and several other federal agencies, the Requirements Related to Surprise Billing; Part II.

Below are definitions of a several key terms in the rule as they apply to CSWs:

“Convening provider” or facility: That who receives the initial request for a good faith estimate and who is responsible for scheduling the primary item/service in question.

• 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 item or service.

“Items and services”:  All encounters, procedures, medical tests provided or assessed in connection with the provision of health care. Services related to mental health substance use disorders are specifically included.

“Provider”: Any health care provider who is acting within the scope of the provider’s license or certification under applicable state law. CSWs meet that definition.

Compliance Steps

To comply with the new federal rule, CSWs should take the following steps:

• Ask patients if they have any health insurance coverage and ascertain if they are uninsured or self-pay. If a patient is insured, make a copy of the insurance card for your files and ask the patient if they plan to submit a claim for the services they will receive.
• Inform all uninsured and self-pay patients of their right to a GFE. Written notice must be provided in clear language that the individual can understand in an accessible format, prominently displayed in the office and on the provider/facility’s website and must be easily searchable from a public search engine. Written notices should account for any vision, hearing or language limitations, including individuals with limited English proficiency or other literacy needs. It may be provided on paper or electronically, depending on the individual’s preference. The written notice should also state that information will be orally provided when the service is scheduled or when the patient asks about costs, and available in accessible formats, in the language(s) spoken by the patient.
• Provide all uninsured or self-pay patients with a GFE. This must include:
  • Patient name and date of birth.
  • a clear description of each item/service with diagnosis codes, expected service codes and expected charges associated with each listed item or service (and date of service if scheduled).
  • an itemized list of items/services reasonably expected to be furnished in conjunction with the primary item/service grouped by provider/facility along with the NPI/TIN and location of each.
  • provider’s name, National Provider Identification (NPI) number, and Tax Identification Number (TIN) and office (s) where the items or services are expected to be furnished.
  • a disclaimer that the GFE is only an estimate of items/services reasonably expected to be furnished at the time and final items, services or charges may differ. (For recurring services, see “GFEs for Recurring Services”, below).
  • a disclaimer that additional recommended items or services may be part of the course of care but are not reflected in the GFE along with a separate list of items/services that require separate scheduling and for which separate GFEs would need to be requested.
  • a disclaimer informing the patient of their right to initiate the patient-provider dispute resolution (PPDR) process if the actual billed charges are substantially greater than the estimated charges along with instructions of where to find more information and written assurance that initiating such process will not adversely affect the quality of services rendered. (See “Disputes”, below).
  • a disclaimer that the estimate is not a contract and does not require the individual to obtain the items or services from any of the providers or facilities identified.
• Explain the GFE to the patient over the phone or in-person if the patient requests it, and follow-up with a paper or electronic GFE.
• Document the GFE in the clinical record.

CSWs who are employed by group practices and other types of health care facilities should contact their compliance officers for guidance.

Timeframes

Information regarding scheduled items and services must be furnished within one (1) business day of scheduling an item or service to be provided in three (3) business days; and within three (3) business days of scheduling an item or service to be provided in at least 10 business days. A new GFE must be provided, within the specified timeframes if the patient reschedules the requested item or service. If any information provided in the estimate changes, a new GFE must be provided no later than 1 business day before the scheduled care. Also, if there is a change in the expected provider less than one business day before the scheduled care, the replacement provider must accept the original GFE as their expected charges.

GFEs for Recurring Services

If you expect to provide a recurring service to the uninsured or self-pay patient, you may submit a single GFE to that patient for those services, so long as the GFE includes, in a clear and understandable manner, the “expected scope of the recurring primary items or services (such as timeframes, frequency, and total number of recurring items or services)”.  The GFE can only include recurring services that are expected to be provided within the next 12 months. For additional recurrences beyond 12 months, the provider must provide a new GFE and communicate any changes between the initial and the new estimates.

For example, if you have a patient whom you expect will need continuing services throughout the year, the GFE could say: “I expect that my care of you will require continued weekly therapy sessions continuing through the end of the year, at $X per session for a total of 50 weeks, accounting for vacations and holidays for an estimated total of AMOUNT.”

If the future course of treatment is less certain, the GFE could say: “Depending on the progress we make this year, I expect that you will need 10–20 more sessions this year. At $X per session the estimated total cost would be AMOUNT.”

Templates and Resources

Find Centers for Medicare and Medicaid Services (CMS) resources, including templates that can be used to prepare good faith estimates and model language for informing patients of their rights to GFE.

NOTE from Deb: Here’s the link for templates provided by CMS.

Enforcement

GFEs are considered part of a patient’s medical record and must be maintained in the same manner. Accordingly, convening providers/facilities must be able to provide a copy of any estimates within the last six (6) years. Providers will not be considered non-compliant if they act in good faith and with reasonable due diligence and correct any inaccuracies as soon as practicable. HHS will exercise enforcement discretion in scenarios where convening providers and facilities are relying on the accuracy of expected charges for items or services for which they do not bill from co-providers or co-facilities, provided that they did not know or reasonably should have known, that the information was incomplete or inaccurate, and that they attempt to correct any inaccuracies as soon as possible. Providers/facilities who experience others’ failures to comply with these requirements may file a complaint for enforcement investigation.

Disputes

Although the information provided in the GFE is only an estimate, and the actual items, services, or charges may differ from what is included in it, uninsured or self-pay individuals may challenge a bill from a provider through a new patient-provider dispute resolution (PPDR) process if the billed charges substantially exceed the expected charges in the GFE. “Substantially exceeds” means an amount that is at least $400 more than the expected charges listed on the GFE.

Future Action

The federal government will also soon issue regulations requiring CSWs and other health providers to provide GFEs to commercial or government insurers when the patient has insurance and plans to use it.

NASW will continue to monitor policy developments pertaining to surprise billing and update members as new information is made available.

~ ~ ~

Colorado NO SURPRISES ACT

[By MEG WINGERTER | [email protected] | The Denver Post, PUBLISHED: January 20, 2022 at 11:45 a.m.] 

How is the Colorado law different?

Colorado’s surprise billing law, which took effect in 2020, limits the circumstances in which providers can ask you to waive your protections. One concern about the federal law is that, though providers are supposed to get patients’ consent to waive protections 72 hours before planned procedures, patients may still feel ambushed at the last minute and that they have no choice but to sign if they want care, Fox said.

“That is one of the key differences” between the laws, he said.

The state law also protects you if you’re transported by a privately-owned ground ambulance company. You’re not protected if a county emergency medical services department that isn’t in-network with your insurance transports you, though.

“At the federal level that is very much a gap,” Fox said. “At the state level, we still have a bit of a gap.”

Another important difference is what can happen once you’ve been stabilized after an emergency. Under Colorado law, if you went to an out-of-network hospital for something like a heart attack, you can’t be charged out-of-network rates until you’re well enough to decide if you want to stay in place and pay them, or be transferred to an in-network hospital.

Federal regulations related to the No Surprises Act put additional limits on when you could be charged out-of-network rates following an emergency, said Megan Axelrod, regulatory policy manager at the Colorado Hospital Association.

Under those rules, you must be well enough that the transfer doesn’t require an ambulance, and there must be an in-network hospital within a reasonable traveling distance. So, for example, if your heart attack took place on vacation in a part of the country where your insurance company doesn’t contract with any hospitals, you can’t be charged out-of-network rates, since it’s not feasible for you to drive for hours while still recovering.

“The goal is the same, but (the Centers for Medicare and Medicaid Services’ guidance) is way more specific and in the weeds,” she said.

Which Law Applies to Colorado Therapists

If your insurance card has “DOI” printed on it, your plan is regulated by the state, and the Colorado protections apply to you. That includes all plans sold on the individual marketplace, as well as a few large employer plans.

If your plan isn’t state-regulated, you only get the federal protections. This is most likely going to be the case if you’re covered by a large-group plan.

Hospitals are still trying to clarify what to do if it’s not clear what insurance a patient has and which laws govern it, Axelrod said. She said they hope to see the state and federal laws brought into alignment as much as possible, to prevent confusion.

“There are certain things that are just different,” she said.

NOTE from Deb: most of the above differences involve medical situations, as opposed to psychotherapy.

GROWING MY EMAIL LISTS … Offer Still Open YOUR CHANCE TO RECEIVE … A DISCOUNTED WEBINAR OR LEGAL CONSULTATION!

I started this offer last year and plan to continue it because I want to reach as many clinicians in Louisiana and Colorado as possible to let them know about upcoming training and regular mental health information that might be helpful to clinical practice. That is, IF they want to be reached!! So, I think this approach is the most ethical I can think of to build my email lists. The best referral source, in my opinion, is from someone who has worked with me and/or attended my trainings and then refers me to their colleagues. So, if any of you know my and my work, please feel free to have the referred person mention your name.

In sum, please feel free to refer colleagues to me who wish to be on my mailing list for this mental health newsletter and emails regarding upcoming webinars. Here is what I stated in last years’ newsletters:

I would like to reach as many clinicians in Louisiana and Colorado as possible to invite them to webinars and to send them my Mental Health Newsletters. If you refer another clinician to me who requests inclusion on my mental health email lists (CO or LA), and that referred person emails me, asks to join the email list for her/his state, and gives your name as the referring clinician, YOU WILL BE ENTITLED TO 20% OFF A WEBINAR FEE OR 10% OFF A CONSULTATION FEE to be used any time within a year of the referral.

For those who refer MORE THAN ONE CLINICIAN TO MY EMAIL LISTS, YOUR DISCOUNT WILL BE 30% OFF WEBINAR FEE AND 15% OFF A CONSULTATION.

One more caveat: the referred person must be a NEW addition to my email list. My web guy will check it out for us; Brian is the keeper/manager of the lists.

UPCOMING WEBINARS IN 2022

I always ponder a bit in the new year about what topic to choose for this year’s Ethics training. I thought about the context of many of my recent defense cases and consultations, and arrived at this topic:

Additional Presentations by Deb this Spring:

• February 17th for Dr. Reo Leslie’s AAMFT Colorado Team (Zoom): “Ethical Management of High-Risk Clinical Situations & Handling Lawyers!!”
• March 11th for University of Colorado at Colorado Springs School of Social Work (Zoom): “Self-Protective Handling of Ethical Dilemmas That Arise Around Imminent Risk Cases In Social Work”
• March 22nd for Southern University at New Orleans School of Social Work (Zoom): “Self-Protective, Ethical Management of High-Risk Cases in Private and Community/Agency Practice”

NOTE: If your agency, clinic, university, or consultation group would like a custom training, I am happy to tailor such to your needs. Together we can plan the substance of the training, case examples, length of training, etc.

PREVIOUS ETHICS WEBINARS

[NOTE: these topics/presentations are available for consultation groups, agencies, or university custom trainings – contact Deb for more information or to schedule.]

2020

March – there were about 30 mental health professionals in the Zoom webinar offered to both Louisiana and Colorado clinicians – Walking the Clinical High Wire with Couples, Families and Legal Involvement: Ethical Management of Risk.

One participant who had sent a couple scenarios to me in advance agreed to present them in our meeting. We had a robust discussion of ideas for her that morphed into other issues and analyses. Quite a fun, engaged, and productive 3 hours.

2021 (see agenda and description below)

June, September, November – a topic that will either intrigue or depress you: The Professional Will. Why would it depress you? Because most of us prefer to avoid the inevitable knowledge that one day we will no longer be around. This topic has been requested by some folks over the years but arises primarily from my several consultations with mental health professionals who had to “pick up the pieces” after a beloved colleague suddenly passed away.

In all my consultations, the mental health provider died, but some situations present a slightly different twist: the therapist suffers a stroke or other type of sudden, debilitating medical event. Poof! Clinical practice is OVER. Suddenly. Without the therapist’s ability to terminate or even email or text her/his clients. How will clients of the suddenly gone therapist be notified that their therapist will no longer be able to see them for their scheduled appointments this coming week?

These experiences that I have been involved with peripherally caused great angst in the mental health professionals who met with me to figure out what to do and how to do it ethically. They were torn between wanting to notify the deceased therapist’s clients but worrying about entering forbidden territory: CONFIDENTIAL MATERIAL IN CLIENTS’ CASE FILES.

This is the type of dilemma that a Professional Will seeks to avoid. Similar to a personal estate Last Will and Testament, the Professional Will involves planning for an untoward event where the therapist himself/herself has suddenly departed. Moreover, because therapist’s clients are notified ahead of time, the concerns about breach of confidentiality are eliminated; the client has given advance consent – and those of you who have attended my trainings in Self-Protective High-Risk Clinical Practice know I am keen on advance consents in your Intake paperwork because client’s agreement in advance protects you from breach of confidentiality Complaints/Grievances.

Additionally, as you have heard me say frequently in Beyond Ethics, LLC seminars, self-protective practice is not at odds with caring for our clients’ wellbeing, but rather ensures excellence in clinical practice. This is a great example. If you are self and colleague protective by creating a Professional Will, it also serves to give clients notice not only pertaining to the individual who would handle your caseload wrap-up, but also demonstrates to the client that you care for them enough to plan ahead to protect their confidentiality and continuation of care should something happen to you.

Anyway, for more on why we need Professional Wills, how to create them, how to advise our clients of their existence, how to prepare our practices and assemble a team of trusted others who will be ready to jump in … and lots more: Advance Ethical Planning for Therapist’s Unexpected Departure: The Professional Will!!

DEB IS AVAILABLE FOR LEGAL/CLINICAL CONSULTATION and/or TRAINING

I am available to provide legal consultations for your high-risk clients or situations. I offer consultations to individual therapists or clinical group (e.g., clinical consultation groups, suite mates, etc.). I often schedule therapist consultations via telephone but can also schedule via Zoom if you prefer.

Additionally, I also can work with you to design custom training for your agencies, academic mental health programs, and small group practices. The trainings I have provided in the past have included a focus on: (1) ethically managing high-risk clinical situations and legal involvement of the therapist, (2) helping therapists prepare for deposition or trial testimony, and (3) responding to a subpoena request for clinical records or therapist testimony at deposition or trial.

If interested or need additional information, please email me: [email protected].