Professional Affairs Corner

February 2022
By Susan Rosenzweig, PsyD, OPA’s Director of Professional Affairs

I have been working hard these past few weeks compiling information for you on the federal No Surprises Act which went into effect on 1/2/2022.  This article includes information I emailed to all OPA members, along with updates as of 2/4/2022. 

If you are on any professional listservs (e.g., American Psychological Association [APA], OPA), you have no doubt seen a bushel of opinions flying around about whether psychologists have to comply with this set of regulations at all, and, if so, which parts of the regulations must be followed.  I have been talking to the APA attorneys in Legal & State Advocacy for weeks as they have drilled into this set of regulations that were put out with a very short timeline before the regulations went into effect.  If you are on the OPA listserv, you have read my posts over the past month as different attorneys weighed in about compliance with the regulations.  APA attorneys also participated in sessions with the Centers for Medicaid & Medicare Services (CMS) and with staffers on Capitol Hill regarding the problems in the regulations. 

Here's my news for you today: On 2/4/22, APA released several new resources related to Good Faith Estimates. I decided to forward these resources as I know some of you are not members of APA and therefore do not receive their announcements. Many of you do not like and are distressed by the rules surrounding the Good Faith Estimates. APA is spearheading a variety of efforts to reduce and/or change the impact on psychologists, especially those of us in small private practices with little to no administrative support. In the meantime, however, it is advised that you show a good faith effort in sending estimates to clients who are impacted by the new rules. 

Here are links to the new APA resources.  These links are available to all psychologists, including those who are not members of APA.

Understanding the No Surprises Act: How to Provide estimates for your services (This resource provides a link to a template created by APA)
FAQs on the No Surprises Act and good faith estimates
Seven basic steps for starting your good faith estimate compliance 

APA is working in coalition with other professional groups (e.g., American Psychiatric Association, National Association of Social Workers) to provide feedback to CMS about the administrative burden on small or solo practices, as well as to clarify or even amend parts of the regulations.  You can read the letter sent to the US Department of Health & Human Services (HHS) Secretary Xavier Becerra here: Coalition letter to HHS about No Surprises Act

In short, here are some highlights of compliance with the No Surprises Act:

1)     Does your patient have insurance and do they intend to use it? 

a.     If the patient answers NO to either of those questions, YOU MUST PROVIDE A GOOD FAITH ESTIMATE OF THE COST OF TREATMENT
b.     If the cost of treatment exceeds the Good Faith Estimate by $400 or more, the dispute resolution provisions kick in for patients.
c.      At this point, if the patient is using insurance (whether billed directly by you or by the patient using a superbill), you do not need to supply a Good Faith Estimate.
d.     Whether you are billing out of network is not the issue.
e.      You should be asking this question BEFORE the patient is in your office, as the No Surprises Act has some tight timelines about providing a Good Faith Estimate.
f.      Be prepared that the rule making process for this act is continuing, and there will likely be additional parts with which we will need to comply for insured patients.
g.     If YOU have opted out of Medicare, the patient is considered self-pay, so Good Faith Estimate rules apply.

2)     What if I haven’t yet seen the patient (and have no diagnosis yet)?

a.     You can leave the diagnosis as TBD, but once you have a diagnosis, you will need to issue a revised Good Faith Estimate.
b.     You can estimate what a “typical patient” in your practice does (e.g., “most patients in my practice are seen for 12 sessions”).
c.      You might consider wording along the lines of “I won’t know the cost until we meet; this is the cost of the intake evaluation.” You should then do a second Good Faith Estimate after you have done your evaluation and diagnosis.

3)     Various templates for the Good Faith Estimate are floating around the internet.

a.     The CMS template (and the APA template adapted from that) do not require a patient signature.
b.     You should document in the patient chart that you provided the Good Faith Estimate in writing, and you should store a copy of the Estimate in the patient chart.  The patient should also get a copy.

4)     If you work in a facility, the compliance department for the hospital/facility should be giving you guidance about compliance (as the rules for facilities are different). 

As your Director of Professional Affairs, I continue to track this information, answer questions on the listserv, and work frequently with other Directors of Professional Affairs (DPAs), APA’s Legal & Regulatory Affairs, and APA’s Health Care Finance Group. 

With warmest wishes, 

Susan Rosenzweig, PsyD
OPA Director of Professional Affairs
[email protected]
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November 2020 
By Susan Rosenzweig, PsyD, OPA’s Director of Professional Affairs

From where I sit, we’re in the lull between storms.

In March, just as I was returning from APA’s Practice Leadership Conference in Washington DC, the nation was about to enter into a new world (to many of us) of telepsychology.  Psychologists, physicians, patients, insurers, legislators all scrambled to figure out how to provide quality psychological healthcare, in ways we had never imagined.  As DPA, my weeks were a blur of getting information to all of you about the changing landscape of telepsychology, using technology safely & effectively, and getting paid for our work.  As a Medicare provider, I held my breath for the Centers for Medicare & Medicaid Services (CMS) to approve necessary but sweeping changes to how Medicare had traditionally viewed telehealth.  Like many of you, I was doing this while also guiding my teen through isolation, distance learning, and the election.  Thankfully, teens (even 9th graders) are relatively self-sufficient in many areas of technology, so once we got some of the bugs worked out, I could go to my corner home office and get to work, knowing my child was engaging (somewhat) in distance learning, although also keeping a parent’s eye on their fragile mental health.

Once we got through that storm, we had to navigate the waves of insurers making changes in their coding policies for telehealth, threatening end of telehealth services long before we were ready to open up, and getting temporary licensure in other states to continue to provide services to clients who might no longer be in state.  Many psychologists were also navigating what to do with their offices, waiting for guidance about how to perform testing and evaluation in ways that were safe and effective for psychologist and patients alike, or making decisions about returning to the office.  Students and early career psychologists were also navigating changes in licensing regulations, taking the EPPP safely, getting enough hours, and worrying about how practica and internships would survive this new reality.

Amidst telehealth, telepsychology, and COVID-19, our nation and especially our state found itself on the front lines of debates about racism and policing and a tumultuous and divisive election season.

The next wave was helping patients and psychologists alike make the transition from short-term crisis to long-haul management of this new reality, with no idea how long this long-haul would last.  In my practice, I work often with medical patients navigating chronic illness with significant impact on their previous way of life with no assurances of what the future holds.  That seems like a perfect analogy for our current situation.

Coming up next, I’ve been working with DPAs across the country and APA staff to ensure that psychologists continue to practice at the top of our licenses and get reimbursed fairly for the work we are doing.  I have worked with the OPA Legislative Committee and lobbyists to prepare for the upcoming Legislative session and likely budget cuts. 

I have begun a dialog with the Medical Director for Behavioral Health at Providence Health Plan, which is bringing their behavioral health services back to an in-house panel (they previously contracted with Optum/United Behavioral Health).  He has provided me with a contact at the health plan for providers who need assistance to continue seeing patients into the transition, and we also discussed “pain points” such as underpayment for 90837, and denials of payment for medical/psychologically overlapping conditions.

 OPA has transitioned to a new website design that will allow us to update the website frequently. I hope to find volunteers to help me build the Professional Affairs section of the website to be a dynamic resource of information.  If you’re not already on the OPA Listserv, please consider joining.  I do provide researched updates there, labeled with the subject PROF AFFAIRS so you can quickly find my posts. My goal is to provide well-researched and vetted information to help you practice ethically and in compliance with relevant laws, regulations, and guidelines, and advocate for you getting paid for your work.

Let’s keep in touch – I need to hear from you.

Billing Dos & Don’ts
By Susan Rosenzweig, PsyD, OPA’s Director of Professional Affairs

Let’s talk about billing & questionable practices when billing. I recently had a conversation with a professional regarding inflating one’s fee when billing insurance. In this case, the professional routinely charged one rate for clients paying by cash or check, but when submitting bills to insurance companies (out of network), inflated the rate to 3.5 x the routine rate. For illustration purposes, use these numbers:  cash rate for 90834  = $130, insurance rate = $450.

Yes, you read that right. And when asked about the insurance rate, the professional claimed that because she was out of network, she was not contractually bound to offer the same rate to insurers, and had been “assured” by others in the field that this was perfectly fine. Furthermore, she went on to state that she inflated her insurance fees “in order to make therapy more affordable to the people who need it.” The rationale is that if insurance only pays 50%, then 50% of $450 will cover completely the fee for therapy, so the client won’t be stuck with a $65 cost they cannot afford. Furthermore, for clients with large deductibles, the inflated billing “helps them reach their deductible faster” so insurance will start paying. Pressed even further, the professional claimed that by “hitting for the fence” (charging a very high fee), she was helping the entire field as it would drive insurance’s calculation of “Usual & Customary” fees higher.

So, is this perfectly okay?  Or not?

I propose to you that not only is it not okay, but also it is not okay on several different levels, including potential harm to patients.

First of all, let me state my opinion that while something might not be illegal, it can still be wrong. Secondly, this might involve illegal activity, perhaps even felony level insurance fraud, according to APA’s Legal & Regulatory attorneys.

Does your view of whether it is okay change if the patient requests the arrangement?  Would you feel comfortable if your patient asked you to change your billing amount on the bills submitted to the insurance?  I invite you to sit with that hypothetical for a few moments, and consider whether you would agree or feel comfortable agreeing. For many of us, it might touch off feelings of discomfort, or feeling recruited into a scheme. It might feel like a boundary-crossing.

So, if it were not okay when requested by a patient, why might it seem okay if initiated by the clinician?  It’s tempting to think that this price inflation is “victimless” or that the only party harmed would be the insurance companies, who we often view as profit-hungry or mean.

I would argue that first and foremost, the clinician’s integrity is harmed by agreeing to or offering such an arrangement. As a patient, alarm bells go off in my head if my clinician bends the rules or shows questionable integrity. I find myself asking, where else are they crossing boundaries?  Can I trust this professional?

Does this behavior (again, whether requested by the client or offered freely by the clinician) change the balance of power in the therapeutic relationship?  Could a client feel that they now “owe” the clinician for this act of lowering their financial cost of therapy?

Consider another scenario: the patient did not request the fee inflation, and the patient is a healthcare provider, perhaps in another discipline. The patient worries that if the inflated fees are discovered, the patient’s own contracts with the health insurer could be threatened, because they noticed the fee inflation but did not report it, thus making them feel complicit in fraudulent billing.

Professionally, I have spent much of my career in Oregon pushing back on a narrative that mental health costs are “out of control” and need to be “better managed” (which is usually borne on the backs of outpatient psychotherapy). Charging 3-4 times the going rate in town, even if presumably with the altruistic claim that it moves the needle on usual & customary rates (UCR), I believe, opens up a reason for insurers to push back against the mental health parity gains we fought so hard for in Oregon and on the federal level.

So, as OPA’s Director of Professional Affairs, what do I recommend?

  • Keep your billing consistent & clean.
  • Set your usual & customary rate according to what you need in income & what you believe your patients can afford.
  • Always bill your same rate(s) (different rates for different procedures, such as 90834, 90837 or intake is fine).
  • You can offer a cash discount, but keep it reasonable. Document the discount as a write off/write down. Have a written policy about discounted fees.
  • Read all your insurance contracts, if you take insurance. Make sure you know under what circumstances you may offer discounts to covered insured patients.
  • You can offer a discount or write down for financial hardship. You can’t routinely write off copays (see APA Good Practice article here:  APA Good Practice, 2009). You cannot make a blanket statement/plan to waive patients’ coinsurance. If an insurer with whom you are contracted has a 20% coinsurance fee and you were to waive the fee entirely, you are violating your contract (and the insurer might consider it fraud) because you are now accepting the 80% insurance payment as 100% of the fee. Don’t do this.
  • If you bill insurance on behalf of PUBLIC insurance (Medicare, Medicaid, Workers’ Compensation), you might be violating the laws of those programs.

As your OPA Director of Professional Affairs, I welcome emails or phone calls to discuss these kinds of issues.  If I don’t know the answer, I will research and reach out to APA colleagues.