HHS says the co-provider requirement for good-faith estimates is being tabled indefinitely

The U.S. Department of Health and Human Services has given hospitals and other healthcare providers a break on enforcement of a looming requirement for co-providers to be included on good-faith estimates (GFEs) furnished to uninsured patients.

 HHS announced in an updated FAQ that it will continue to exercise “enforcement discretion” instead of potentially penalizing providers starting Jan. 1 for not adhering to the co-provider requirement, which was established as part of the No Surprises Act. The lack of enforcement will continue until future regulations are issued.

“HHS has received comments and feedback indicating that compliance with this provision is likely not possible by Jan. 1, 2023, given the complexities involved with developing the technical infrastructure and business practices necessary for convening providers and facilities to exchange GFE data with co-providers and co-facilities,” the FAQ states.

Since Jan. 1, 2022, providers have had to offer good-faith estimates of their own charges to uninsured and self-pay patients, but they have not been required to include estimates from other providers or facilities that are involved in a care episode.

That was supposed to change at the start of 2023, but HHS is backing off the expanded requirement for now.

“Stakeholders have requested that HHS further delay the enforcement of this provision until HHS has established a standard technology or transaction to automate the creation of comprehensive GFEs and given providers and facilities sufficient time to implement such standards,” the FAQ states.

In a recent hfm feature, health system representatives described why meeting the co-provider requirement would be daunting.

“We’ve got to get our systems basically lined up to do something they’ve never done before,” said Allison White, assistant director of revenue integrity with Cone Health in Greensboro, North Carolina. “How do I get a private surgery group’s charges on my estimate?”

Technical questions need to be addressed

In the new FAQ, HHS noted that advances in industrywide interoperability will be needed before the co-provider requirement can be implemented.

“The next step is for providers and facilities market-wide to adopt a standards-based application programming interface (API) for this purpose,” the FAQ states. “Pursuing API-based standards for the exchange of GFE data is part of a larger HHS strategy to encourage and support the adoption of health information technology to promote bi-directional data exchange to improve the quality of care and promote a more efficient healthcare system.”

The department considers the HL7 FHIR standard a mechanism “for supporting interoperability and enabling new entrants and competition throughout the healthcare industry,” and HHS “continues to support efforts towards developing such a standard.”

The FAQ states, “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 exchanging information.”

HHS assures that future rulemaking will provide ample lead time for providers to implement a new standard.

Two key postponements have taken place

The decision to defer enforcement of the co-provider requirement is the second recent instance in which HHS has put a potentially challenging aspect of the No Surprises Act on hold.

In September, the department announced it would not imminently enforce a requirement for providers to deliver good-faith estimates of charges to health insurers, which would have to include those estimates on an advanced explanation of benefits to be delivered to members.

Instead, HHS put out a request for information (which closed Nov. 15) on how best to implement the technical requirements of such transactions. The RFI indicates that the HL7 FHIR standard also could be used for provider-health plan information exchanges.