On December 2nd, the Centers for Medicare and Medicaid Services (CMS) released guidance delaying Phase II of the Good Faith Estimate (GFE) policy indefinitely. Prior to this announcement, Phase II was scheduled to begin on January 1st, 2023.
Mandated by Congress in the No Surprises Act, Phase II of the GFE policy would have required the “convening provider” to not only include their own charges in any good faith estimate, but it would also require the convening provider to include any charges “reasonably expected” to be provided by “co-providers or co-facilities” on the GFE. Phase II (as it is unofficially called) is also sometimes called the “connected care” portion of the Good Faith Estimate policy.
In our context, advancing to Phase II would have meant that primary care providers and other referring providers would need to include charges from our imaging centers on their own good faith estimates. Furthermore, imaging centers themselves may have been required to included charges from other providers and facilities depending on how CMS defined what care would be “reasonably expected” to be furnished “in connection to” our imaging services.
Specifically, with regards to the delayed enforcement, CMS wrote:
Q1: Will CMS enforce the requirement that GFEs for uninsured (or self-pay) individuals include cost estimates from co-providers and co-facilities beginning on January 1, 2023?
A1: No. HHS is extending enforcement discretion, pending future rulemaking, for situations where GFEs for uninsured (or self-pay) individuals do not include expected charges from co-providers or co-facilities.
Earlier this year, CMS declined to issue rules on another aspect of the good faith estimate policy known as the Advanced Explanation of Benefits (AEoB). Instead, CMS issued a request for information from the industry as to how they could feasibly implement this aspect of the No Surprises Act. The AEoB provisions, should they go into effect as written, would require that all commercially insured patients receive an “advanced explanation of benefits” when scheduling any patient care. While the current GFE policy, applies to a relatively small subset of patients, the Advanced Explanation of Benefits policy would greatly expand the frequency with which either a GFE or AEoB is required.
CMS notes that they are delaying Phase II of the GFE policy in part due to “stakeholder feedback” which highlights the importance of the healthcare industry staying engaged and providing comments to CMS. This delay will reduce administrative burden associated with the good faith estimate policy but several of the long-term concerns with the underlying policy remain. Many have criticized the concept of the GFE policy as infeasible because it requires non-clinical schedulers to diagnose and estimate patient care treatment based solely on information discussed during a scheduling call. When you combine the operational barriers with the healthcare industry’s resistance towards both Phase II of the GFE policy and the AEoB policy, it would not be unprecedented if CMS delayed expanded implementation of the No Surprises Act for several years, even though the legislation calls for these policies to be implemented now.
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