NSA Update: HHS Indefinitely Delays Co-Provider, Co-Facility Requirements for Good Faith Estimates - McDermott Will & Emery

NSA Update: HHS Indefinitely Delays Co-Provider, Co-Facility Requirements for Good Faith Estimates


On December 2, 2022, the US Department of Health and Human Services (HHS) issued an FAQ announcing that it will not enforce the requirement for convening providers and convening facilities to include expected charges for co-providers and co-facilities in good faith estimates (GFEs) furnished to uninsured (or self-pay) individuals as required under the No Surprises Act (NSA) until future rulemaking has occurred. This delay extends a prior exercise of enforcement discretion that was slated to end on January 1, 2023.

In Depth

On December 27, 2020, the Consolidated Appropriations Act, 2021, was signed into law and included, among other provisions, the NSA. In October 2021, HHS issued its second interim final rule (IFR Part II) implementing the NSA requirements for convening providers and convening facilities to provide GFEs of expected charges to uninsured (or self-pay) individuals prior to a scheduled appointment or upon request. Among other requirements, a GFE must include pricing information from the convening provider or convening facility, as well as “co-providers” or “co-facilities,” defined as other providers or facilities that are reasonably expected to furnish items or services in conjunction with and in support of the primary item or service (e.g., laboratory, pathology and anesthesiology services).

The FAQ addresses a single question regarding implementation of the GFE requirements related to co-providers and co-facilities. In response, HHS stated that it is extending its exercise of enforcement discretion beyond the January 1, 2023, deadline as provided in IFR Part II. The further exercise of enforcement discretion under the FAQ is indefinite “pending future rulemaking.” The FAQ also notes that any future rulemaking will include a prospective applicability date in order to give providers and facilities a reasonable amount of time to comply with any new requirements.

Originally, HHS determined that an exercise of enforcement discretion was necessary for calendar year 2022 to allow time for providers and facilities to develop mechanisms for convening providers and convening facilities to request, and for co-providers and co-facilities to provide, complete and accurate pricing information for the convening provider or convening facility to incorporate into the GFE for uninsured (or self-pay) individuals. In the most recent FAQ, HHS cited additional stakeholder feedback as the basis for its further exercise of discretion. The FAQ states that given the complexities involved in exchanging GFE data among convening providers, convening facilities, co-providers and co-facilities, stakeholders have requested that HHS establish a standard technology to automate the creation of comprehensive GFEs and give providers and facilities sufficient time to implement such standard.

HHS further stated in the FAQ that in order to achieve industry-wide interoperability for the transmission of GFE data between convening providers and convening facilities and co-providers and co-facilities, providers and facilities will need to adopt a standards-based application programming interface. The FAQ notes that this is part of a larger HHS strategy to encourage and support the adoption of health information technology to promote data exchange to improve the quality of care and promote a more efficient healthcare system. The FAQ also notes that HHS has indicated that the Health Level 7 Fast Healthcare Interoperability Resources standard holds potential for supporting interoperability and enabling new entrants and competition throughout the healthcare industry, and that HHS continues to support efforts towards developing such a standard. By extending this exercise of enforcement discretion, HHS aims to promote further interoperability across the healthcare industry and encourage providers, facilities and other industry members to focus resources towards adopting interoperable processes for exchange of information.

Finally, the FAQ states that HHS is encouraging states that are primary enforcers of the GFE requirements to take a similar approach. According to the FAQ, HHS will not consider a state to be failing to substantially enforce the GFE requirements if it takes such an approach during HHS’s further exercise of enforcement discretion.

This announcement likely comes as welcome news to the healthcare industry, which has struggled to operationalize the burdensome GFE requirements. Convening providers and convening facilities should continue to provide GFEs to uninsured (and self-pay) individuals inclusive of their own estimated charges while awaiting further rulemaking from HHS regarding the co-provider and co-facility requirements.