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No Surprises Act: Discretionary Enforcement of Good Faith Estimate Rules Continued


On December 2, 2022, the Department of Health and Human Services (HHS) issued new guidance, in the form of FAQs, outlining the enforcement policy for certain Good Faith Estimate (GFE) requirements under the No Surprises Act. In the guidance, HHS announced that the Centers for Medicare and Medicaid Services (CMS)—the agency responsible for enforcing the Act—will continue to invoke its discretionary authority to forgo enforcement of the GFE requirements related to the exchange of information between health care providers and facilities.

Since the Act went into effect on January 1, 2022, health care providers and facilities have been required to provide uninsured and self-pay individuals with a GFE of expected charges. As part of the GFE, “convening” providers and facilities are required to contact any co-providers and co-facilities within one business day in order to obtain their expected charges so that those charges can be included within the GFE. In turn, those co-providers and co-facilities are required to furnish such information to the “convening” provider/facility within one business day after receiving the request. A “convening” provider or facility is the one that receives the patient’s request for a GFE or is responsible for scheduling the primary item or service for the patient.

Nevertheless, CMS has been applying its discretionary authority to forgo enforcement of the requirement to include all co-providers’ and co-facilities’ expected charges as part of the GFE until January 1, 2023. Now, according to HHS’ latest guidance, enforcement of those requirements is being postponed indefinitely, “pending further rulemaking.”

HHS has received comments and feedback indicating that compliance with this provision is likely not possible by January 1, 2023, given the complexities involved with developing the technical infrastructure and business practices necessary for convening providers and facilities to exchange GFE data with co-providers and co-facilities. Stakeholders have requested that HHS further delay the enforcement of this provision until HHS has established a standard technology or transaction to automate the creation of comprehensive GFEs and give providers and facilities sufficient time to implement such standards.

HHS goes on to explain that the next step in achieving “industry-wide interoperability for the transmission of GFE data” is the nationwide adoption of a “standards-based application programming interface (API)” for the purpose of exchanging GFE data. HHS noted that any rulemaking to fully implement these GFE requirements will include a prospective applicability date in order to give providers and facilities a reasonable amount of time to comply with any new requirements. Furthermore, HHS encouraged those states that are primary enforcers of these requirements to take a similar approach as indicated in the guidance.

In the meantime, despite the present and ongoing lack of enforcement, providers and facilities should still take note of the following:

  • Providers and facilities can still voluntarily comply with the GFE requirements discussed above.
  • Nothing prohibits a co-provider or co-facility from furnishing expected charges if requested by a convening provider or facility.
  • Convening providers and facilities are encouraged to include a range of expected charges in their GFEs for items or services reasonably anticipated to be provided and billed by co-providers and co-facilities.
  • If an uninsured or self-pay individual requests a GFE from a provider or facility that would be considered a co-provider or co-facility, that provider or facility is still required to furnish a GFE to the individual, regardless of whether it received a request from the convening provider or facility with respect to such individual.

The new guidance published on December 2 can be found here. If you have any questions regarding the topics in this article or the No Surprises Act generally, please contact any member of the Koley Jessen Health Law Practice Group.

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