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Agencies Request for Comments on Issues Related to New Disclosures Under the No Surprises Act Indicate the Importance of Informing Marginalized Populations and Maintaining Privacy of Advance Health Care Information

by | Oct 25, 2022 |

By Roberta Casper Watson, Dannae Delano and Barry Salkin

It should come as no surprise that most Americans do not have the information available to them that is necessary to make informed decisions about their medical care that includes the cost of the considered procedure. The No Surprises Act requires providers and facilities to provide to the plan or issuer a good faith estimate (a “GFE”) of the expected charges for furnishing the scheduled item or service, as well as any items or services reasonably expected to be provided in conjunction with those items or services for individuals who desire a good faith estimate of likely deductibles, copayments and any other non-covered expenses in connection with a potential claim for covered items or services and who are enrolled in coverage.

This GFE from the providers and facilities, when given to the plan, will enable the plan to respond to similar requests from covered individuals. The Internal Revenue Code, ERISA and the Public Health Services Act require that group health plans and health insurance carriers offering group or individual health insurance coverage, upon receiving a GFE regarding an item or service, send to a covered individual, either through mail or electronically, as requested by the covered individual, an advanced explanation of benefits (an “AEOB”) in clear and understandable language.

The applicable Agency regulations of the Departments of Treasury, Labor, and Health and Human Services (the “Agencies”) specify the information that must be contained in the AEOB, and also indicate that the information provided is only an estimate based on the items and services reasonably expected to be provided at the time of scheduling, and is subject to change; and may also contain other information and disclaimers consistent with the information and disclosures required under the No Surprises Act.

In connection with these data transmission elements of the No Surprises Act, the three Agencies sought comments on a variety of issues associated with the implementation of these rules, as follows:

  • Underserved and Marginalized Communities—The Agencies requested comments on the steps that the Agencies should take to ensure that individuals from underserved and marginalized communities are aware of the opportunity to request GFES and AEOBs and are able to use that information to facilitate meaningful decision-making regarding their health care. Among the options that the Agencies requested comments on were providing oral language services, notices in non-English languages, and non-English statements in English versions of notices indicating how to access language services.
  • Privacy Concerns—The Agencies solicited comments on what privacy concerns were raised by the transfer of AEOB and GFE data, since these transfers would list an individual’s scheduled or requested item or service, including the expected billing and diagnosis code for the item or service. The agencies asked whether this type of data exchange creates any new or unique privacy concerns for individuals enrolled in a plan or coverage.
  • Applicable Standard—Under applicable law, while the transmittal of AEOBS and GFEs would be subject to HIPAA’s privacy and security rules, no law or regulation currently requires plans issuers, carriers, health care providers or facilities to use a specific transaction standard to exchange AEOB or GFE data. The Agencies noted that the favored approach was a standards-based Application Program Interface (“API”), a standard that was developed to facilitate the secure exchange of health care information. At the same time, the Agencies acknowledged that many providers and facilities continue to rely on manual or paper-based technologies, such as portals, fax machines, or call centers. In that connection, the Agencies solicited comments as to the burdens associated with applying the more high tech standard to small, rural, or certain other providers and facilities, such as those who are new and financially vulnerable, and/or operating solely in the individual and small group market, and whether there should be an exception or phased-in approach to adopting the standard API approach for such organizations.
  • Coordination with Consent and State Law Requirements—The information required to be provided to the requesting individual could be affected by a plan participant’s consent to waive the No Surprises Act’s balance billing and cost-sharing protections. The Agencies sought comments on such issues as whether a nonparticipating provider or facility should be required to inform a plan issuer or carrier if it has obtained the individual’s consent, if it will be seeking the individual’s consent, and whether the individual has declined to give consent. If so, should such communication be part of the GFE or transmitted in a separate communication? In a similar vein, if an individual has consented to the waiver of the No Surprises Act or applicable state law protections against balance billing and cost sharing protections, in what manner should the AEOB reflect that the otherwise applicable protective provisions do not apply? If so, should the AEOB take account of the possibility that the consent might be revoked and issue two sets of AEOBs, one reflecting the individual’s consent to waive the protections, and a second form assuming that the individual decides to revoke his or her consent after it has been waived and the No Surprises Act and state law protections are again applicable?
  • Coordination with Transparency in Coverage Requirements—The Agencies commented that the AEOB content requirements are similar to the Transparency in Coverage internet-based self-service tool requirements. The Agencies solicited comments on the extent to which coordination of the internet-based self-service tool requirements of the AEOB requirements helps minimize the burden on plan issuers and carriers in implementing both requirements.

Among the other issues on which the three Agencies sought comments were the following:

  • Whether a plan issuer or carrier should be required to provide a copy of the AEOB that was furnished to the individual to the provider or facility that provided the GFE to the plan, issuer, or carrier.
  • What burdens or barriers would be placed on plans, issuers, and carriers if they implemented a provision of the relevant laws permitting individuals to make a request for an AEOB directly to a plan, issuer, or carrier?
  • What approaches should be considered when proposing requirements for AEOBs and GFEs that take account of secondary and tertiary payers and unique benefit designs, such as account-based plans?
  • Whether a diagnosis code should be required for the calculation of the AEOB.
  • Whether the provider or facility should verify the individual’s enrollment status in a health plan or coverage for the scheduled (or requested) items or services.

A request by government agencies for comments on a particular issue or issues is not always the first step in the issuance of regulatory guidance, but the request does indicate the type of difficult implementation issues that the three Agencies, as well as the Office of Personnel Management, are presently interested in addressing in some fashion.  It will be interesting to see what comments the Agencies receive, and what regulations result from their inquiry. Regardless, it is clear that the Administration is prioritizing advance cost estimate disclosures so that all Americans can make informed decisions regarding health care, especially those in marginalized populations.