On August 20, 2021, the Departments of Labor, Treasury, and Health and Human Services (HHS) (together, the “Departments”) released the latest in a long-running set of Frequently Asked Questions (FAQ) guidance about the requirements of the Affordable Care Act and now, the new No Surprises Act.
The most notable development for providers is a partial delay in the Good Faith Estimate requirement (which was enacted as part of the No Surprises Act last December) – but only as it applies to insured patients.
The requirement still goes into effect January 1, 2022 for uninsured patients and for patients who have coverage but who decide for some reason not to submit a claim to their health plan. Further regulations on the Good Faith Estimate are still due before the end of the year.
Overview of the Good Faith Estimate Requirement
Starting January 1, 2021, providers are required to provide patients with a good faith estimate of “the expected charges” for procedures that are scheduled in advance (such as elective procedures). See Public Health Service Act Section 2799B-6, codified at 42 U.S.C. § 300gg-136. If the procedure is scheduled at least 10 business days before it is to occur, the good faith estimate must be provided no later than 3 business days after scheduling. (A shorter 1-day turnaround is required, however, if the procedure is scheduled at least 3 business days in advance but less than 10). Providers must also issue a good faith estimate no later than 3 business days after requested by a patient.
If the patient has health insurance, the good faith estimate must be sent to his or her insurer, who in turn must generate an Advanced Explanation of Benefits (Advanced EOB) based on this information. See Public Health Service Act § 2799A-1(f), codified at 42 U.S.C. § 300gg-111(f). If the patient is uninsured, the Good Faith Estimate goes directly to the patient. Interesting twist: the statute also contemplates that a patient with health coverage may choose not to have a claim submitted to his or her health plan – in which case the patient will be treated as an uninsured patient for the purposes of the Good Faith Estimate requirement. 42 U.S.C. § 300gg-136(1), (2)(A).
Critically, the provider must issue a good faith estimate of all charges that are “reasonably expected to be provided in conjunction with” the scheduled procedure – even for services “to be provided by another health care provider or health care facility.” Id.; accord FAQ, Part 49 at p.5. So if a patient asks a hospital for a Good Faith Estimate for chemotherapy infusion services, this obligates the hospital to estimate the associated professional charges as well the facility charge.
If an uninsured patient later believes that the actual charges were “substantially in excess of such estimate,” they are then entitled to avail themselves of a dispute resolution process to determine how much they should actually be required to pay. See 42 U.S.C. § 300gg-137. HHS is required to establish this “patient-provider dispute resolution process” by January 1, 2022. Id. (Note: this is separate and distinct from the Independent Dispute Resolution (IDR) process for payors and providers, which also goes into effect on the same date.)
The FAQ Delays Implementation for Insured Patients for Whom a Claim Will Be Submitted
Per the FAQ, HHS will not be enforcing the Good Faith Estimate requirement for the time being with respect to insured patients. (FAQ Part 49, Q.5.) There are two reasons for this. First, HHS recognizes that significant coordination will be required between providers and insurers in order to generate Advanced EOBs, and standards will have to be developed for the electronic transmission of the information contained in the Good Faith Estimate. HHS also views insured patients as having inherently greater recourse by nature of “the internal claims and appeals” processes available under their existing health coverage. However, the Good Faith Estimate requirement will still go into effect for uninsured patients (and patients for whom a claim is not submitted to insurance) on January 1, 2022.
Quick Detour: The September 16, 2021 Proposed Rule re No Surprises Act Enforcement
HHS plans to promulgate further regulations on how to implement the Good Faith Estimate requirement for uninsured patients prior to January 1. It did not do so, however, in the second round of proposed regulations implementing the No Surprises Act that were published for comment last week. Rather, the September 16, 2021 Proposed Rule focuses on the Departments’ vision for enforcement of the No Surprises Act against providers, in particular. States have primary responsibility for enforcement of the Act. Only where states have announced they will not enforce it – as Missouri, Oklahoma, Texas, and Wyoming have done so far – will the federal government step in.
The September 16 Proposed Rule also fleshes out how CMS intends to investigate instances of prohibited balance billing; the formal notice and hearing process for imposing Civil Monetary Penalties under the Act of up to $10,000 per violation; and factors that could mitigate such penalties. Such hearings would be conducted before the Departmental Appeals Board (DAB) within HHS.
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If your organization has not yet implemented the Good Faith Estimate or Notice & Consent requirements of the No Surprises Act, now is the time. Providers need to implement new procedures, workflows, and potentially new software in order to meet the January 1, 2022 effective date of the Act. For questions on these requirements and how to comply, please contact Eric Chan at (310) 913-4013 or eric@athenelaw.com.