No Surprise: The NSA Latest FAQ Raises Concern

The Good-Faith Estimates regarding co-workers pose a cautionary quandary.

On Friday, Dec. 2the federal government issued a FAQ delaying implementation of the requirement that Good-Faith Estimates (GFEs) under the No Surprises Act would need to include information from co-providers.

Originally, the government had indicated that after Jan. 1, 2023, the GFE would need to include the charges from the facility and all professionals, including surgeons, anesthesiologists, and the like. The delay is indefinite, “pending further rulemaking.” You can find the FAQ here.

The document is worded in a way that is a bit complicated. It explains that “HHS (the U.S. Department of Health and Human Services) is extending enforcement discretion, pending future rulemaking, for situations in which GFEs for uninsured (or self-pay) individuals do not include expected charges from co-providers or co-facilities.”

In plain English, I think it is pretty clear that they are saying “you do not need to include charges from a co-provider.” However, the precise wording, explaining that penalties will not be used when a GFE does not include information about a co-provider, raises the question of whether they would “exercise discretion authority” if you opt to include co-provider information – but that proves to be inaccurate. One may think that given that the government is suspending the need to include information from co-providers, it would be weird for the government to penalize you for including more than what’s required. But there is definitely an argument that including misleading information is worse than having no information. When there is no information, patients have the ability to ask for details. But inaccurate information misleads patients. In other words, if you don’t have 100-percent confidence that you have a system for including accurate information about co-providers, the smart play may be to omit the information for now, until it is required.

The government is offering leniency if you can’t get the right information to patients, but it isn’t clear that they are promising you a pass if the form is wrong.   

It is easy to forget (or at least it is easy for me to forget) that the states are actually the primary enforcers of this rule, with the feds stepping in only when the states fail to do so. That leaves us with this rather alarming sentence at the end of the bulletin:

“HHS encourages states that are primary enforcers of these requirements to take a similar approach and will not consider a state to be failing to substantially enforce these requirements if it takes such an approach while HHS is exercising enforcement discretion.”

The obvious implication is that the federal government believes that if they wanted to, the states could disregard this FAQ and choose to penalize organizations that do not include information from co-providers. Hopefully, they won’t, but that is a caution to consider. We haven’t heard much about state enforcement, but that is something to keep in the back of your head.

As I write this, fog is pouring off of Lake Superior. May the evaporating water be a metaphor for the evaporating stress of meeting the co-provider requirements before the new year!

Programming note: Listen to healthcare attorney David Glaser’s live “Risky Business” report every Monday on Monitor Mondays with Chuck Buck at 10 Eastern.