No Surprises Act: The big Lift that Affects All Providers

The Good Faith Estimate appears to be troublesome.

Let’s dive back into our old friend, the No Surprises Act, and talk about a little-known requirement in the Act that applies to ALL providers. The provision is called the Good Faith Estimate, and it is sure to provide difficulties for physicians and hospitals on its compliance date of Jan. 1, 2022.

In the most recent No Surprises Act regulations published at the beginning of October, the government requires that all providers – in-network, out-of-network, in hospitals, ambulatory surgery centers (ASCs), private practices, all providers – provide a good-faith estimate of any possible costs associated with any and all scheduled healthcare services to uninsured and self-paying customers.

Let me say that again: on Jan. 1, 2022, every time a healthcare service is scheduled for an uninsured or self-pay patient, providers must give the patient an estimate of the total costs of the service.

A number of things to point out here:

First is the broad scope of the requirement. While this Good Faith Estimate is only required for patients who are uninsured or self-paying, the requirement applies to all providers for all healthcare items and services, from annual checkups to the most complex of planned procedures; the regulations also imply that this includes dental, vision, and behavioral health.

Second, the requirement mandates very quick turnaround times. If the patient schedules the service further out than two weeks, the provider has three days to provide this estimate. If the patient schedules the service within two weeks of the appointment, then the provider has one day to provide the estimate.

In some cases, this may be somewhat simple, generating an estimate for what the government has called “shoppable” services, wherein the general price of a healthcare item or procedure might be easily estimated. But things get more difficult, of course, for any procedure that is even slightly complicated, and it will certainly be difficult for procedures that involve multiple physicians working for different business entities.  

The regulation gives specific requirements to what it calls a “convening provider or facility:” this is the entity that schedules the procedure and is ultimately responsible for delivering the estimate. 

The regulation also calls out “co-providers or co-facilities,” that would include any other providers or facilities that may be involved in the procedure. Those co-providers or co-facilities are responsible for getting their own estimates for their parts of the procedure to the convening provider, so that the convening provider can pull all of the estimates together and give the uninsured or self-pay patient a single estimate.

That estimate needs to also include the costs of any possible healthcare items or services that may be required before or after the scheduled service.

You see the difficulty.

Fortunately, the No Surprises Act regulation also included an enforcement discretion period for this good-faith estimate requirement, until December of next year. However, it appears that this discretion may only apply to the co-providers and co-facilities supplying their estimates, and that the so-called convening provider will still be expected to give some kind of estimate to self-pay and uninsured patients starting this coming Jan. 1.

The good-faith estimate requirement is just the first stage in a broader No Surprises Act provision that will require providers to send good-faith estimates for insured patients – patients with commercial insurance – to the patient’s health plans. The government has postponed that broader requirement until further rule-making.

What’s surprising is the fact that this requirement is getting so little notice in the industry press. We know that the standard development organization HL7 is thinking through how to facilitate communications between convening and co-providers and facilities, but otherwise it feels like crickets out there.

Programming Note: Listen to Matthew Albright and the Monitor Mondays Legislative Update, sponsored by Zelis, Mondays at 10 Eastern.