No Surprises Act: HHS Extends Enforcement Moratorium on Co-Provider & Co-Facility Good Faith Estimates

To the relief of many providers and facilities and with just three weeks to go until the implementation date, the U.S. Department of Health & Humans Services (HHS) announced that it is extending its policy of not enforcing the requirement under the No Surprises Act (NSA) that a good faith estimate (GFE) given to an uninsured or self-pay patient include estimated costs for the services of co-providers and co-facilities.

Specifically, through a “Frequently Asked Questions” guidance document (the “FAQ Part 3”), HHS stated that it would continue to delay enforcement of the requirement that a GFE include the estimated costs of all co-provider and co-facility services until the agency can conduct further rulemaking.[1] The FAQ Part 3 does not specify how long the GFE enforcement moratorium on the co-provider and co-facility provisions of the NSA will be extended.

The GFE requirement for uninsured and self-pay patients went into effect on January 1, 2022, along with other major provisions and supporting regulations. However, HHS announced that it would delay until January 1, 2023, its enforcement of the requirement that the GFE include estimated costs for co-provider and co-facility services. (Co-providers and co-facilities are providers and facilities reasonably expected to provide items or services in conjunction with, and in support of, the scheduled item or service.[2]) Absent the announced delay in enforcement, come January 1, 2023, providers and facilities would have been required to include in their GFEs the expected charges, expected billing codes, and diagnostic codes of items and services reasonably expected to be furnished, not just by the lead or “convening” provider or facility but also by all other providers or facilities whose services would be expected to be provided in conjunction with the scheduled services for the period of care.[3] For example, a surgeon would be required to provide an uninsured or self-pay patient with an estimate of the costs for the surgeon’s services as well as the services of the anesthesiologist and the ambulatory surgical center in which the procedure was done. 

What Is the GFE Requirement?

Enacted as part of the NSA, the often overlooked and underestimated GFE requirement compels all providers and facilities to provide a GFE to uninsured and self-pay patients upon request or for those who schedule services more than three days in advance.  Providers and facilities must also ensure compliance with particular requirements to provide uninsured and self-pay patients with notice of their right to a GFE, timing requirements to provide the GFE, and other content requirements when providing uninsured and self-pay patients with a GFE.

Compliance with the NSA’s GFE requirement has been the focus of significant compliance efforts and concerns in the health care industry, as uninsured and self-pay patients may initiate the NSA’s patient-provider dispute resolution (PPDR) process if the total billed charges from a particular provider or facility exceeds the total expected charges listed on the GFE for that specific provider or facility by $400.[4] Once the co-provider and co-facility estimates are required to be included in the GFE, those aspects of the estimate will similarly be subject to challenge through the PPDR process.

What Should Providers and Facilities Do Now?

In the FAQ Part 3, HHS confirmed that future rulemaking for the GFE’s co-provider and co-facility requirement would “include a prospective applicability date” to give “providers and facilities a reasonable amount of time to comply with any new requirements.”[5] Therefore, in addition to tracking for updates relating to the GFE requirement and enforcement of the NSA, providers and facilities should use the delay of the requirement that the GFE include estimates of co-provider and co-facility charges to continue working towards full compliance with NSA provisions that went into effect on January 1, 2022. Specifically, providers and facilities should take steps to ensure that forms, processes, and procedures satisfy the GFE requirement and enable the providers and facilities to adequately prepare for, respond to, and manage the PPDR process.

* * *

This Insight was authored by Alexis Boaz, Helaine I. Fingold, and Robert R. Hearn. For additional information about the issues discussed in this Insight, please contact one of the authors or the Epstein Becker Green attorney who regularly handles your legal matters.

ENDNOTES

[1] Ctrs. for Medicare & Medicaid Srvcs., FAQs About Consolidated Appropriations Act, 2021 Implementation – Good Faith Estimates (GFEs) for Uninsured or Self-Pay) Individuals – Part 3, (Dec. 2 2022), https://www.cms.gov/files/document/good-faith-estimate-uninsured-self-pay-part-3.pdf.

[2] 45 CFR § 149.610.

[3] The scope of the “period of care” includes the day or multiple days during which the scheduled or requested services are furnished or are anticipated to be furnished—including the time period when certain services that would not be scheduled separately by the individual are furnished. Id.

[4] 45 CFR § 149.610.

[5] Ctrs. for Medicare & Medicaid Srvcs., FAQs About Consolidated Appropriations Act, 2021 Implementation – Good Faith Estimates (GFEs) for Uninsured or Self-Pay) Individuals – Part 3, (Dec. 2, 2022).