The No Surprises Act of the 2021 Consolidated Appropriations Act (“NSA”) established requirements for healthcare providers to deliver Good Faith Estimates (“GFEs”) for scheduled services or upon patient request.
Hospital patient access, revenue cycle, product, and technology departments released a collective sigh of relief when the Department of Health & Human Services (“HHS”), Centers for Medicare & Medicaid Services (“CMS”) announced on December 2, 2022, that it would extend its enforcement discretion for GFEs for uninsured (or self-pay) individuals that do not include expected charges from co-providers or co-facilities.i
Sliding Fee Discounts and GFEs
While all providers have struggled to implement the GFE requirements, providers and facilities that offer sliding-fee discounts based on an individual’s income and family size have faced additional, unique challenges. Since GFE regulations specify that the expected charges must reflect any discounts, HHS considers providers and facilities that offer sliding-fee discounts based on an individual’s income and family size to be in compliance with GFE requirements for uninsured (or self-pay) individuals under the following conditions:
Abbreviated GFEs for Non-billed Services
HHS will consider providers that know in advance that they do not expect to bill an uninsured (or self-pay) individual for items and services to be in compliance with GFE requirements if:
It turns out that National Provider Identifiers and Tax Identification Numbers are not particularly helpful to patients or Selected Dispute Resolution Entities (“SRDEs”) attempting to notify a provider that a patient has initiated the Patient–Provider Dispute Resolution (“PPDR”) process. HHS is now “strongly” encouraging providers to also include an email address and phone number for department(s) with the authority to represent the organization in a billing dispute. As it turns out, communication sent to a physical mailing address has not been as efficient as HHS thought when it rushed to finalize the GFE regulations.
Sign Up For Our Webinar!
The R1 Regulatory Affairs and Regulatory Compliance group will be hosting a webinar on the future of Good Faith Estimates on Wednesday, February 1, at 12:00pm CST.
Advanced Explanation of Benefits
For self-pay or uninsured, the GFEs are delivered directly to the patient. For insured patients, covered health plans are required to furnish an Advanced Explanation of Benefits (“AEOB”) to its member. However, a health plan’s obligation to prepare and deliver the AEOB is triggered by the receipt of a GFE from a provider or facility.
Although GFE requirements for self-pay or uninsured patients went into effect January 1, 2022, the U.S. Departments of HHS, Labor and the Treasury (“the Departments”) delayed rulemaking and enforcement for AEOBs. The Departments believed the industry needed time to evaluate standards for data transfer from providers and facilities to health plans and build the infrastructure necessary to support the transfers. On September 16, 2022, the government published a Request for Information (“RFI”) soliciting industry comments on AEOB requirements in preparation for rulemaking.
Speaking to the National Association of Insurance Commissioners in December, Ellen Montz, CMS Deputy Administrator and Director at the Center for Consumer Information and Insurance Oversight, affirmed the agency would move forward with additional GFE regulations stating that the agency is now reviewing responses to its September request for information on GFEs for insured, statutorily defined as an AEOB. In the interim, Montz encouraged plans and providers to participate in the work toward interoperability standards to support AEOBs.
R1 provided a formal response (summarized below) to the Departments’ request for information.
|Issue||Department's Request||R1's Perspective|
|AEOB Copy to Provider or Facility||
Should payers be required to send a copy of the AEOB to the provider or facility?
Yes. Payers should be required to send a copy of the AEOB to the provider or facility for the following reasons:
Coverage Verification. Requiring payers to send copies of the AEOB allows the provider and facility to confirm coverage without incurring additional eligibility inquiry fees and burden.
Should verifying the individual’s coverage eligibility be required prior
to sending the GFE to the health plan?
No. Rampant payer noncompliance with 271 eligibility response rules has already created significant provider burden and we further oppose this suggestion for the following reasons:
Delayed Care. We are concerned an eligibility verification prerequisite could create a “backdoor” prior authorization process.
Redundancy and Costs. As clearinghouses and health plans are raising costs for eligibility inquiries, it would be a redundant administrative burden as providers and facilities receiving a copy of the AEOB would serve as eligibility verification.
|Application Program Interfaces ("APIs") vs Payer Portals||
How do APIs compare to other methods of exchanging AEOB and
GFE data, such as through an internet portal or by fax?
APIs are superior to manual and direct data entry processes.
Standard Transaction. The Departments should adopt a new standard transaction and operating rules for GFE and AEOB data. The standard should support API and/or ASC x12 based data exchanges.
No Cost Data Transfer. The Departments should also require the transaction to exchange AEOB data to be available at no cost, including a prohibition on hidden costs, to enhance interoperability and reduce burdens on small and/or rural providers.
|Coordination of Benefits||
Should the AEOB and GFE account for secondary and tertiary payers?
No. COB is a complicated and time-consuming process that often depends on the primary payer’s reimbursement in order to initiate billing secondary or tertiary payers. It’s unlikely such a process could be completed in 1 to 3 business days. We worry such a requirement could delay care.
Are there other considerations that should be taken into account when developing AEOB and GFE requirements?
Co-Providers and Co-Facilities. The AEOB and GFE process should not require a provider or facility to compile GFEs from co-providers or co-facilities until provider-provider data transfer infrastructure and standards have been created. In the current self-pay GFE process, the lack of infrastructure and standards has impeded convening providers and facilities from timely collecting data from co-providers and co-facilities.
Payer Failure to Deliver AEOBs. Payers should be held accountable for failing to provide timely AEOBs to its members and their care providers. Data requirements for GFEs on providers should be clearly outlined to avoid blame shifting.
The R1 Regulatory Team provides a wealth of information about the No Surprises Act. Read on for more expert information.
i FAQs About Consolidated Appropriations Act, 2021 Implementation – Good Faith Estimates (GFEs) For Uninsured (or Self-Pay) Individuals – Part 3, CMS (Dec. 2, 2022), https://www.cms.gov/files/document/good-faith-estimate-uninsured-self-pay-part-3.pdf.
ii FAQs About Consolidated Appropriations Act, 2021 Implementation – Good Faith Estimates (GFEs) For Uninsured (or Self-Pay) Individuals – Part 4, CMS (Dec. 27, 2022), https://www.cms.gov/files/document/faqs-good-faith-estimate-uninsured-self-pay-part-4.pdf.
iii Amy Lotven, CCIIO Focuses on PHE Unwinding, No Surprises Act, Improper Marketing, INSIDER HEALTH POLICY (Dec. 30, 2022), https://insidehealthpolicy.com/daily-news/cciio-focuses-phe-unwinding-no-surprises-act-improper-marketing.
Content Written by R1's Regulatory Team