No Surprises Act: HHS Further Delays Enforcement of Requirement to Incorporate Co-Provider and Co-Facility Estimates into Good Faith Estimates

HHS announced on December 2, 2022, that it is extending enforcement discretion of the No Surprises Act's requirement that good faith estimates (GFEs) for self-pay and uninsured patients include expected charges from co-providers and/or co-facilities. Further, rather than identify a deadline for compliance, HHS stated that it is delaying enforcement "pending future rulemaking."

The No Surprises Act requires that "convening" providers or facilities (those who receive an initial request from a self-pay or uninsured patient for scheduled healthcare items or services) provide self-pay and uninsured patients who seek scheduled services more than three business days in advance of the appointment a GFE that details the expected costs for the scheduled services. While the text of the No Surprises Act requires these GFEs to include cost estimates from co-providers and co-facilities (providers and facilities that furnish items or services customarily provided in conjunction with the primary item or service), HHS had initially delayed enforcement of that requirement until January 1, 2023.

Recognizing that providers and facilities need to develop the "technical infrastructure and business practices" necessary for convening providers and facilities to gather information from co-providers and co-facilities, HHS has now extended its enforcement discretion until additional rulemaking is issued. HHS did not state any timeline for when this rulemaking might be completed, but did note that rulemaking to implement the additional co-provider and co-facility GFE requirements will have a prospective applicability date.

In its announcement, HHS also stated its belief that providers and facilities must adopt a standards-based application program interface (API) to achieve interoperability for the exchange of GFE data among convening providers or convening facilities and co-providers and/or co-facilities. HHS pointed to Health Level 7 (HL7®) Fast Healthcare Interoperability Resources (FHIR®) standards as a potential source of support for interoperability.

The HHS announcement comes while the healthcare industry is anticipating the release of regulations related to the issuance of an advanced explanation of benefits ("AEOB"). The No Surprises Act requires that individuals covered by private health insurance receive an AEOB from their health plan, issuer, or carrier (hereinafter, "payer"). The AEOB will have to include a GFE from the covered individual's provider or facility, meaning that providers and facilities will also need to prepare GFEs for covered individuals and transmit the GFE to the applicable payer in time for the payer to issue the AEOB. Many providers have stated in comments during rulemaking that this will exponentially increase the number of GFEs providers and facilities are preparing, and that securely exchanging the data with payers will be a significant technological challenge. HHS issued a request for comments about the AEOB requirements, and the comment period closed November 15, 2022. HHS has not indicated a timeline for when it will issue rulemaking on the AEOB-related rules.

Regardless of future rulemaking, HHS's latest announcement gives providers and facilities additional time to concentrate on refining their systems for issuing GFEs for self-pay and uninsured patients.

Davis Wright Tremaine is collaborating with healthcare providers and systems to develop efficient and compliant processes to comply with the No Surprises Act. Contact John Barnes or Christine Parkins Johnson if you would like to learn more.