Compliance Corner

Federal Updates

Department Issues Request for Information on the Implementation of No Surprises Act Requirements

September 27, 2022

On September 16, 2022, the Office of Personnel Management, IRS, EBSA and HHS (the agencies) released a request for information regarding the transfer of data from providers and facilities to plans, issuers and carriers; other policy approaches; and the economic impacts of implementing these requirements. The request is part of a rulemaking process for the advanced explanation of benefits (AEOB) and good faith estimate (GFE) requirements of the No Surprises Act (NSA).

Under the NSA, healthcare providers must provide a GFE of the expected charges for providing an item or service, along with the expected billing and diagnostic codes for these items or services to the plan, issuer, or carrier that covers a person seeking that item or service. The GFE must also include any items or services that the provider reasonably expects to provide in conjunction with the requested items or services, including those provided by another provider or facility. If a plan, issuer or carrier does not cover the person seeking the item or service, then the provider delivers the GFE directly to that person.

In addition, the NSA requires group health plans and health insurance issuers that receive a GFE to send to the covered person seeking an item or service an AEOB in clear and understandable language upon that person’s request. The plan or carrier must provide an AEOB to the covered individual (either electronically or by mail) no later than one business day after the plan or carrier receives the GFE. However, the plan or carrier must provide an AEOB to the covered individual within three business days after the date on which the plan, issuer or carrier receives the GFE or request if such item or service was scheduled at least 10 business days before such item or service is to be furnished. The AEOB must include the following information:

  1. The network status of the provider or facility.
  2. The contracted rate for the item or service, or if the provider or facility is not a participating provider or facility, a description of how the covered individual can obtain information on providers and facilities that are participating.
  3. The GFE received from the provider or facility.
  4. A GFE of the amount the plan or coverage is responsible for paying.
  5. The amount of any cost-sharing that the covered individual would be responsible for paying with respect to the GFE received from the provider or facility.
  6. A GFE of the amount that the covered individual has incurred towards meeting the limit of the financial responsibility (including with respect to deductibles and out-of-pocket maximums) under the plan or coverage as of the date of the AEOB.
  7. Disclaimers indicating whether coverage is subject to any medical management techniques (including concurrent review, prior authorization and step-therapy, or fail-first protocols).

The agencies’ request for information encompasses a wide variety of subjects, with a focus on the standard for exchanging the required data and the costs for implementing the standard. The agencies have not established regulatory standards for the exchange of GFE and AEOB data from providers and facilities to plans, issuers and carriers. The request seeks input regarding the use of a standard that supports interoperability and securely facilitates the exchange of healthcare information between systems, including the development of implementation guides and application programming interfaces that follow that standard. The agencies also want input regarding the costs of implementing a standard, such as the costs for verifying whether the person seeking the item or service is enrolled in a health plan and verifying the coverage for each item or service at issue in the GFE or AEOB. The agencies also seek information on the potential impact of implementing a regulatory standard on small, rural, or other providers, facilities, plans, issuers and carriers, and any barrier those small or rural providers, plans and carriers may encounter when implementing a standard.

Among other issues, the agencies request input regarding any privacy concerns for the transfer of PHI that would be part of the GFE and AEOB data exchanged between providers, plans and carriers. The agencies also seek input regarding whether information concerning the waiver of the NSA’s surprise billing protections (in cases where that is permitted) should be included in the AEOB or GFE and whether the plans or carriers should provide the AEOB to the provider as well as to the person seeking the item or service.

Employers, particularly those with self-insured health plans, should be aware of this request for information. The deadline to submit information to the agencies pursuant to this request is November 15, 2022.

Request for Information: Advanced Explanation of Benefits and Good Faith Estimate for Covered Individuals »