BLOG: Update to the No Surprises Act good faith estimate requirements for co-providers
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On Friday, Dec. 2, 2022, the government snuck out an FAQ delaying implementation of the requirement that good faith estimates under the No Surprises Act must include information from co-providers.
Originally, the government suggested that as of Jan. 1, 2023, all good faith estimates (GFEs) would need to include fee data from all of the parties to a procedure. The hospital, surgeon, anesthesiologist and others would need to coordinate to get the information on one sheet. However, the date for compliance is being postponed because the government is appreciating the logistical challenges involved. The delay is indefinite and “pending further rulemaking,” according to the FAQ, which can be found here: https://www.cms.gov/files/document/good-faith-estimate-uninsured-self-pay-part-3.pdf
The wording of the FAQ may seem confusing. The FAQ explains “HHS is extending enforcement discretion, pending future rulemaking, for situations where GFEs for uninsured (or self-pay) individuals do not include expected charges from co-providers or co-facilities.” In plain English, I think it is clear that they are saying you do not need to include charges from a co-provider. However, the precise wording, which mentions that they won’t penalize you when a GFE does not include information about a co-provider, raises the question of whether they would “exercise discretion authority” if you opt to include co-provider information, but that information proves to be inaccurate. It seems that if you don’t need to include the information, it would be weird for the government to attack you for including more than required, but there is definitely an argument that including misleading information is worse than having no information.
In other words, if you don’t have 100% confidence that you have a great system for including co-provider information, the smart play may be to omit the information for now, until it is required. They are offering leniency if you can’t get the information to patients, but it isn’t clear that they are promising you a pass if you get the information wrong.
It is easy to forget (or at least it is easy for me to forget) that the states are the primary enforcers of this rule, with the federal government stepping in only when the states fail to do so. That leaves us with this rather alarming sentence at the end of the bulletin: “HHS encourages states that are primary enforcers of these requirements to take a similar approach and will not consider a state to be failing to substantially enforce these requirements if it takes such an approach while HHS is exercising enforcement discretion.”
The obvious implication is that the federal government holds that if they wanted to, the states could disregard this FAQ and choose to penalize organizations that do not include information from co-providers. Hopefully they won’t, but that is a caution to consider. I haven’t heard much about state enforcement, but that is something to keep in the back of your mind.
The good news is that at least for now, the urgency of coordinating GFEs with the facility and care team seems to have relaxed.
Reference:
https://www.cms.gov/files/document/good-faith-estimate-uninsured-self-pay-part-3.pdf
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