No Surprises Act Update: HHS Extends Enforcement Discretion for Co-Provider Good Faith Estimates

December 6, 2022
Firm Publication

On December 2, the Department of Health and Human Services (HHS) announced it would not begin enforcement of a key requirement under the No Surprises Act (NSA) starting January 1, 2023, as previously scheduled. The enforcement delay relates to a portion of the NSA requirement for facilities and providers to furnish a good faith estimate (GFE) of expected charges to uninsured and self-pay individuals. HHS indicated in new FAQs that, until the agency fully implements the requirement through future rulemaking, HHS will continue using its enforcement discretion in cases where a GFE does not include expected charges for certain external providers, referred to as “co-providers” or “co-facilities.”

The announcement is welcome news for providers, given the confusion over whether enforcement would begin in the new year related to the co-provider requirements. However, the GFE requirement continues to be enforced for facilities and providers that schedule a patient’s visit (referred to as the “convening” facility or provider). All facilities and providers should take steps to ensure they comply with the GFE rules.

Background on GFE Requirement for Uninsured and Self-Pay Patients

Enacted in December 2020, the NSA includes consumer protections for patients, several of which place compliance obligations on healthcare providers and facilities. Much of the focus has been on the ban on balance billing and the independent dispute resolution (IDR) process to address out-of-network payment disputes. However, the NSA also includes protections for uninsured and self-pay patients. Effective January 1, 2022, the NSA required facilities and providers to notify uninsured and self-pay patients of their right to request a GFE of expected charges for services scheduled in advance and to furnish a GFE upon scheduling or request. The GFE must include all services anticipated for the visit in a written form of the patient’s choosing—either on paper or electronically. Patients can dispute their bill if the charges are $400 or more above the GFE.

Interim final rules issued in October 2021 included separate GFE requirements for the “convening” facility or provider who schedules the primary service that is the reason for the visit and any “co-providers” or “co-facilities” that are expected to provide services in conjunction with the visit. To prepare the GFE, the convening facility or provider must contact any co-providers and request that they prepare estimated charges for services they will bill related to the visit. Co-providers must share the information with the convening facility or provider to be included in the GFE.

Enforcement Discretion for Co-Provider GFE Requirement

Because HHS recognized it would take time to set up systems for co-providers to share GFE information with convening facilities/providers, the agency said it would use its enforcement discretion through December 31, 2022, in cases where a GFE did not include expected charges for co-providers. During this period, HHS encouraged facilities and providers to have in their GFEs a range of expected charges for co-provider services. This enforcement discretion was scheduled to end this year, in which case convening facilities and providers would have been required to provide GFEs with information for co-providers starting January 1, 2023.

In its announcement extending enforcement discretion, HHS noted concerns shared by stakeholders that compliance with this provision is likely not possible by January 1, 2023, given the technical challenges related to setting up systems for co-providers to share GFE information with convening facilities and providers. HHS suggested the next step will be for providers and facilities to adopt a market-wide, standards-based application programming interface (API) to allow for compliance with this requirement. The agency indicated enforcement discretion would continue until HHS issues rulemaking to implement these requirements fully, and there would be a prospective applicability date to give providers and facilities enough time to comply with any new requirements.

Separate GFE Requirement for Commercially Insured Patients

The NSA also includes a GFE requirement for commercially-insured patients. Under this provision, facilities and providers must share a GFE with the payer, and the payer must include the GFE in an advanced explanation of benefits to be sent to the patient. Although this GFE requirement also went into effect on January 1, 2022, HHS previously indicated the agency would defer enforcement of the requirement for facilities and providers until HHS issues implementing regulations. On September 16, 2022, the federal departments tasked with implementing the GFE requirements for commercially-insured patients issued a request for information seeking recommendations on how facilities and providers can transfer GFE information to payers to implement the GFE requirement.

Implications for Facilities and Providers and Next Steps

In light of the announcement that HHS will continue enforcement discretion related to the co-provider GFE requirements, facilities and providers will not need to implement new systems before January 1, 2023, to collect GFE information from co-providers who are expected to provide services during a visit. While enforcement discretion continues, HHS guidance continues to encourage facilities and providers to include in their GFEs a range of expected charges for co-provider services.

Importantly, the GFE requirement continues to be in effect and enforced as it relates to the convening facility or provider who schedules an uninsured or self-pay patient’s visit. Facilities and providers should provide uninsured and self-pay patients a GFE that includes expected charges for services furnished by the convening facility/provider, even if the GFE does not include expected charges for co-provider services. Facilities and providers should review their policies to ensure they comply with the GFE requirements. Facilities and providers should also monitor future rulemaking to implement the GFE requirement for uninsured and self-pay patients related to co-providers, and separate rulemaking to implement the GFE requirement for commercially insured patients.

We will continue to monitor developments related to the implementation of the NSA. Please contact the authors if you have any questions.