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Health Law Monitor

New Year, New Delays for the No Surprises Act

December 16, 2022

By: Miranda D. Click

In December 2020, Congress passed what is known as the No Surprises Act (NSA) in an effort to protect patients from surprise billing or unexpected fees. The Act prohibits out-of-network providers from “balance billing” patients for charges above the rates paid by their health plan if the provider is providing emergency services or is providing non-emergency services at an in-network facility. Some sections of the NSA became effective on January 1, 2022, and continue to be applied, while other sections are on hold until additional regulations and guidance are released. One controversial portion of the Act that was scheduled to be enforced beginning January 1, 2023, is now on hold. On December 2, 2022, Health and Human Services issued guidance regarding implementation of the NSA and that guidance delays the requirement that convening providers (the provider who is scheduling the patient) include co-provider charges in their good faith estimates (GFEs) for self-pay patients.

Good faith estimates, in this context, are price estimates for any item or service that is reasonably expected to occur during a scheduled procedure or requested item or service. The NSA provides that these estimates are meant to include items or services that may involve providers or facilities outside of the one scheduling the service, known as co-providers (also referred to as co-facilities in the regulation). According to the NSA, as drafted, the co-providers must submit GFE information within one business day of a convening provider’s request. The convening provider must provide the entire GFE (including the co-providers’ estimates) to the patient within 3 days after the service is scheduled or the individual requests an estimate. It is important that the estimate be as close to the actual charge as possible. If a self-pay patient receives a bill from a provider that is $400.00 or more above the GFE, the patient may dispute the bill with the US Department of Health and Human Services.

This requirement received some push back as enforcement was looming for January 1, 2023. Many industry groups expressed concern about getting GFEs to patients within the statutory timeframe. A survey conducted by WEDI (Workgroup for Electronic Data Interchange) earlier this year found that 92% of providers thought it would be difficult or very difficult to collect GFE information from co-providers for a specific medical service in time to meet the requirements.  There are also concerns about data exchange limitations and the administrative burden of meeting this requirement. When asked about the new guidance delaying this requirement, Charles Stellar, President and CEO of WEDI stated, “The industry continues to make progress in developing data interchange standards to support the requirements of the No Surprises Act.”

What Does This Mean for Convening Providers?

The guidance released provides that CMS will not begin enforcing the No Surprises Act requirement that healthcare providers deliver good faith estimates to uninsured and self-pay individuals when there are co-providers or co-facilities. This does not mean that the requirement is ending entirely. Instead, HHS is delaying the enforcement to allow time for future rulemaking. The guidance states, “By extending this exercise of enforcement discretion, HHS aims to promote further interoperability across the industry and encourage providers, facilities, and other industry members to focus resources towards adopting interoperable processes for exchanging information.”

The guidance goes on to explain that HHS intends to establish standards for an Application Programming Interface (API) for providers and facilities to adopt to automate the creation of GFEs when multiple providers are involved in the scheduled service. A new date for compliance will reportedly be announced after said standards have been published.

It is important to note that the new guidance delays only the requirement for a convening provider to include co-provider charges in the good faith estimate. Providers MUST still provide self-pay patients with a good faith estimate regarding their expected charges within the time frames and upon request.

Jackson Kelly attorneys are ready to serve as trusted advisors to help you navigate the potential impacts of this guidance and to help you meet all your health care compliance goals.


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