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No Surprises Act – HHS Delays Enforcement of Co-Facility and Co-Provider Good Faith Estimate Requirements

on Monday, 19 December 2022 in Health Law Alert: Erin E. Busch, Editor

On December 2, 2022, the Department of Health and Human Services (“HHS”) issued an FAQ stating that it will delay enforcement of the requirement that Good Faith Estimates (“GFEs”) for uninsured (or self-pay) individuals include cost estimates from co-providers and co-facilities and will not begin enforcing that requirement beginning January 1, 2023.  HHS had received comments indicating that compliance with this requirement was not possible by January 1, 2023, given the complexities of developing technical infrastructure and business processes necessary for convening providers and convening facilities to exchange GFE data with co-providers and co-facilities.  Commenters requested further delay until HHS is able to establish a standard technology or transaction to automate the creation of comprehensive GFEs and to allow sufficient implementation time.  HHS plans to issue additional rulemaking that will adopt a standards-based application programming interface (“API”) to achieve industry-wide interoperability for the transmission of GFE data.  HHS indicates that any rulemaking to fully implement the other requirements of the No Surprises Act related to uninsured (or self-pay) individuals will include a prospective applicability date to give providers and facilities a reasonable amount of time to comply with new requirements.

HHS did not delay enforcement of any other No Surprises Act requirements.  Enforcement will begin on January 1, 2023.  Facilities and providers should be prepared for enforcement of the balance billing requirements for insured patients and the requirements for a convening provider or convening facility to provide uninsured (or self-pay) patients with a GFE including expected charges for items and services reasonably expected to be provided in conjunction with the scheduled or requested item/service (without the now delayed requirement to include expected charges for items/services performed by co-providers or co-facilities).

We have received several questions from clients related to the determination of whether an individual is uninsured (or self-pay) for purposes of the GFE.  To determine whether it is necessary to provide a GFE, facilities and providers can be expected to ask generally whether the individual has health insurance, but must engage with the individual sufficiently to distinguish insurance imitators from “insurance”, as defined by the No Surprises Act.  Insurance is defined as including “a group health plan; group or individual health insurance coverage offered by a health insurance issuer; a Federal health care program; or a health benefits plan under a Federal Employees Health Benefits (FEHB) Program.”  Some individuals may mention health sharing programs and present member ID cards for health sharing programs, such as Solidarity HealthShare.  These may appear to be health insurance, but they are not.  Since health sharing arrangements are not insurance, these individuals should be considered uninsured for purposes of the GFE.  Providers and facilities would be well-advised to identify all insurance plans and insurance imitators in the local market and train staff to recognize the difference. 

Further, even if the individual is insured, the provider and facility must ask the individual if he or she plans to have a claim submitted for the items or services to such plan or coverage.  If the individual indicates that no insurance claim will be submitted, the individual is self-pay for purposes of the No Surprises Act GFE.

Please join the Compliance Network Webinar at noon on January 10, 2023, for a discussion of other potential pitfalls when determining whether a GFE is required pursuant to the No Surprises Act.  Contact Leesha Murphy at for more information on the Webinar, or to join the Compliance Network.

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