Good Faith Estimate Interim Final Rule Tells Us About Future of Healthcare Regulation

The No Surprises Act of the 2021 Consolidated Appropriations Act greatly expanded patient protections through upfront cost transparency in the form of Good Faith Estimates (“GFE”).  Specifically, the law requires each health care provider and facility to furnish a GFE to either an insured individual’s health plan or directly to the patient if they are uninsured or self-pay.  Currently, health care providers and facilities across the U.S. are struggling to implement the requirements to furnish the GFE directly to patients, while further Centers for Medicare & Medicaid Services (“CMS”) rulemaking for insured patients looms large.  Although Congress gave CMS very little room in the statutory text for interpretative discretion, we should not be surprised at the seismic shift that these regulations create on patient registration operations.  If anything, we should prepare for more.

Understanding the Role of Good Faith Estimates for Advanced EOBs

To date, the biggest challenge faced by health care organizations is how to comply with the requirement that a GFE include any item or service by “another health care provider or health care facility” known under the Interim Final Rule as “co-providers” and “co-facilities.” Specifically, GFEs must include detailed information on expected charges including CPT/HCPCS codes, diagnosis codes, and services reasonably expected to be furnished by co-providers and co-facilities.  While CMS has delayed GFE rulemaking for insured individuals, the GFE requirements for self-pay patients are the current reference point for what facilities and providers will likely need to furnish to insurers.

Under the law, health plans are required to deliver an Advanced Explanation of Benefits (“Advanced EOB”) to their members.  However, the requirement for health plans to deliver an Advanced EOB is triggered by receiving a GFE under Sec. 2799B—6 of the No Surprises Act.   Currently, neither the law nor the regulations specify the format that providers and facilities must utilize to transmit GFE information to health plans, which we believe will require CMS to define a new standard transaction or an application program interface (“API”) equivalent for such communication.  It is worth noting that health plans may also create their own rules for when providers submit GFEs (to the extent allowed under existing law), potentially creating added complexity.

To the extent health care organizations are grappling with how to deliver compliant GFEs to a relatively small number of uninsured or self-pay individuals, it is difficult to imagine having to engage in this exercise for nearly every scheduled patient appointment. 

CMS’s Strategic Refresh: How Accountable Care Intersects with Good Faith Estimates

The Center for Medicare and Medicaid Innovation (“CMS Innovation Center”) was established in 2010 as part of the Affordable Care Act with the goal of transitioning the health system to value-based care by developing, testing, and evaluating new payment and service delivery models in Medicare, Medicaid, and the Children’s Health Insurance Program (“CHIP”).  In October 2021, the CMS Innovation Center published a strategy refresh whitepaper announcing its vision of the health system of the future.  The strategy is organized around five strategic objectives, with the first objective to drive accountable care.  As outlined in the whitepaper, “[t]he key feature of accountable care is to give all participating providers the incentives and tools to deliver high-quality, coordinated, team-based care that promotes health, thereby reducing fragmentation and costs for people and the health system.”  A related article further explains that “we are working across CMS to enhance the movement towards value-based, high-quality care and to ensure that we are all rowing in the same direction so that 100 percent of people with Original Medicare will be in a care relationship with accountability for quality and total cost of care by 2030.”

While health care providers and facilities may see the co-provider and co-facility GFE requirements under the No Surprises Act as unduly burdensome and disruptive to industry standard patient access operations, that may have been the point.  CMS is openly driving the U.S. healthcare system to value-based, accountable care models that support person-centered care.  Requiring providers and facilities to coordinate and communicate with each other about patient care, including items, services and costs in advance of scheduled services, lays a critical foundation needed for the future of accountable care.  Interestingly, the idea of a “convening” provider, facility or organization traces back to early CMS Innovation Center models; specifically, the Bundled Payment for Care Improvement Initiative. 

All this to say, health care providers and facilities hoping CMS will soften the GFE requirements in future rulemaking may be disappointed.  Although we see a policy path where CMS could possibly allow co-providers and co-facilities to submit independent GFEs to health plans, we do not necessarily believe it is one the agency will take.  Instead, health care providers and facilities may be well-advised to embrace innovative front-end patient access solutions that support changing regulations. 

Key Takeaways:

• Providers and facilities should expect the Advanced EOB process for insured patients to be at least as complex and resource-intensive as—if not more than—the current GFE process for uninsured patients.
• Providers and facilities should develop and refine necessary infrastructure to deliver GFEs at scale during 2022, including proactively engaging key stakeholders, such as co-providers and co-facilities, to develop comprehensive estimates with as many required data elements as possible. See R1’s Regulatory Resource Page for additional details on what should be included on a GFE.

Disclaimer: This blog is for educational purposes only, and is current as of March 21, 2022. Not intended to be used as, or constitute legal or medical advice. Our statements are on behalf of R1 only and, in turn, are not intended to reflect or otherwise represent the viewpoints or positions held by R1 customers. This newsletter contains predictions on future trends in healthcare, including on regulations not yet published. Readers are cautioned not to place undue reliance on such predictions.