Advisories

No Surprises Act: HHS Requests Comments About Good Faith Estimates for Insured Individuals

By Christine Parkins Johnson

09.20.22

The federal government has issued a request for comments about the No Surprises Act's requirement that providers and facilities provide Good Faith Estimates for all covered individuals. This request gives providers and facilities an opportunity to help the government craft reasonable regulations for one of the No Surprises Act's most labor-intensive requirements. The request for information was published in the Federal Register. Comments are due by November 15, 2022.

NSA Background

The No Surprises Act (the NSA) is a federal law that became effective on January 1, 2022, and was enacted to protect individuals from unanticipated medical bills. The Departments of Labor, the Treasury, and Health and Human Services (collectively the Departments) are charged with issuing NSA-related regulations. One of the NSA's most sweeping requirements is the provision of a Good Faith Estimate (GFE) that lays out the expected costs for scheduled items or services. The GFE is intended to arm individuals with information allowing them to determine whether they can afford the item or service and to plan for the expense.

GFEs for Self-Pay and Uninsured Individuals

Self-pay or uninsured patients receive the GFE directly from the healthcare provider or facility with which they schedule the item or service. The Departments issued regulations implementing the GFE for self-pay and uninsured patients in an interim final rulemaking that was published and effective on October 7, 2021. However, the Departments deferred enforcement of the NSA requirements related to GFEs for covered individuals, stating that notice and comment rulemaking would occur at a later date.

GFEs for Covered Individuals

Covered individuals will receive an advanced explanation of benefits (AEOB) from their health plan, issuer, or carrier (hereinafter, payer). The AEOB includes a GFE provided by the individual's health care provider or facility. The practical result of this piece of the NSA is that providers and facilities will need to issue GFEs—whether directly to uninsured/self-pay individuals or to covered individuals' payers—for every single individual who schedules an item or service at least three business days before their appointment.

Already providers and facilities have found issuing GFEs for self-pay and uninsured individuals to be a significant undertaking. Providers and facilities have had to aggregate substantial amounts of data to create the GFEs, create policies guiding the creation of GFEs, and build systems to issue the GFEs. Creating systems to also issue GFEs for covered patients and securely exchange the data with payers is a Herculean task.

Departments' Request for Information and Recommendations

Although the Departments cannot overturn the GFE requirement, they can issue rules (within the constraints of the NSA's requirements) that are less burdensome for providers and facilities and take into account differences in resources and technological capability. The Departments have requested comments from health care providers and facilities on a large variety of topics related to the GFEs for covered individuals. A sampling of the questions for providers and facilities is below.

Policy Considerations

What additional burden would be created by requiring providers and facilities to conduct: (1) verification to determine whether an individual is uninsured, self-pay, or enrolled in a health plan; (2) verification of coverage for each item or service expected to be included in an AEOB or GFE; or (3) verification of coverage from multiple payers? Do providers and facilities already perform these types of verifications in the regular course of business, such that minimal additional burden would be imposed?
When seeking consent to waive balance billing protections is permissible, should the provider or facility be required to inform a payer of the individual’s consent, as part of or concurrently with providing the GFE?
Are there reasons why the Departments should or should not propose a requirement that payers provide a copy of the AEOB to the provider or facility, as opposed to allowing such a transfer but not requiring it?

Economic Impacts

What are estimates of the time and cost burdens on providers and facilities for building and maintaining a standards-based Application Programming Interfaces (“API”) for the real-time exchange of AEOB and GFE data or using a third-party vendor? How do these costs compare to alternative methods of exchanging AEOB and GFE data, such as through an internet portal or by fax?
Comment on the extent to which providers, facilities, plans, issuers, and carriers are building and maintaining standards-based APIs for multiple purposes, or already have standards-based APIs in place that they can leverage to implement AEOB and GFE requirements.

Transferring Data From Providers and Facilities to Plans, Issuers, and Carriers

CMS has supported the use of the Health Level 7 (HL7®) Fast Healthcare Interoperability Resources (FHIR®). What issues should the Departments consider as they weigh policies to encourage the use of a HL7 FHIR for the real-time exchange of AEOB and GFE data?
Are there any approaches that the Departments should consider, or flexibility that should be provided (such as an exception or a phased-in approach to requiring providers and payers to adopt a standards-based API to exchange AEOB and GFE data), to account for small, rural, or other providers, facilities, plans, issuers, and carriers?
What privacy concerns does the transfer of AEOB and GFE data raise, considering these transfers would list the individual’s scheduled (or requested) item or service, including the expected billing and diagnostic codes for that item or service?

Please contact Christine Parkins Johnson at christinejohnson@dwt.com if you would like to discuss submitting a comment.