No Surprises Act regulations remain a moving target for compliance


Amid all the rules stemming from the No Surprises Act, a looming mandate for providers to send cost estimates to health plans looks like the biggest stress inducer.

Various regulations under the No Surprises Act have created strain for healthcare finance professionals since the initial rules were published in mid-2021, but one pending requirement is the consensus choice as the heaviest lift.

The obligation to provide an advanced explanation of benefits (AEoB) to insured patients will necessitate a level of interoperability between providers and health plans that doesn’t exist. How to make it happen is a vexing question for industry stakeholders.

It's uncertain “how anybody’s going to do that, because nobody has the tools yet to make it successful," said Sandy Lood, vice president of revenue cycle with Cottage Health in Santa Barbara, California.

The U.S. Departments of Health and Human Services, Labor and Treasury, which together oversee implementation of the No Surprises Act, seem to be sympathetic to such apprehensions.

Initially set to take effect at the beginning of this year, the AEoB requirement was tabled indefinitely in August 2021. As hfm went to press, the departments had given no further indication on when enforcement would begin.

Among providers, “There’s a hope — if not an expectation — that there will still be some more time to come before they have to comply with those requirements,” said Jeff Davis, JD, an attorney with Nashville-based Bass, Berry & Sims who advises healthcare organizations on regulatory issues.

Update: After the print edition of this article was published, the departments issued a request for information from industry stakeholders on implementing the AEoB-related requirements. Comments are due Nov. 15, meaning pertinent regulations wouldn't be issued until sometime in 2023 at the earliest. Enforcement will continue to be deferred until publication of additional rulemaking that spells out the appropriate data-transfer standards and the specific requirements for both providers and health plans.

A 'sea change' for the industry

For all patients with verified coverage, the provider will have to send the health plan a good-faith estimate of expected charges, including billing and diagnostic codes, for scheduled services — or, at the request of the patient, for prospective services. The health plan will use the estimate to generate the AEoB for delivery to the patient.

According to the original legislation, the AEoB must be a plain-language summary that conveys:

  • The network status of the provider or providers
  • The contracted rate (if applicable) for the service
  • The provider’s estimated charges
  • The patient’s cost-sharing responsibility
  • Guidance on the option to find an in-network provider if the original provider is out-of-network

“From a patient-experience perspective, it will be incredible — very, very helpful for patients in planning their healthcare,” said Amber Thomas, JD, vice president for regulatory compliance and audit at Murray, Utah-based R1 RCM. “But this is a sea change for how providers and health plans operate today.”

Issues with the technical apparatus

In August 2021 guidance, the departments said they would not enforce the legislation’s AEoB provisions before establishing data-transfer standards for the good-faith estimates.

The departments seemed to be saying, “We’re going to find, if possible, a file format that providers and health plans already have in use and are operating with, versus creating some de novo file format just for the good-faith estimate,” suggested Lori Fox Ward, regional president with Arlington, Virginia-based Evolent Health. “That would reduce the burden somewhat.”

A standards coalition, the CAQH Committee on Operating Rules for Information Exchange (officially known as CAQH CORE), formed an advisory group of more than 60 industry stakeholders to determine guidelines for establishing AEoB processes. The group released a report in late 2021 that called for use of the following messaging standards:

  • X12 837 Professional Pre-Determination X291
  • X12 837 Institutional Pre-Determination X292
  • HL7 FHIR (Fast Healthcare Interoperability Resources)

R1’s Thomas said it’s unclear whether the 837 transaction-sets “really cover or contemplate the type of communication exchange that’s going to be required.” She thinks a pending HIPAA rule update could lay the groundwork for the FHIR application programming interface to become more widely used.

Mike Simms, vice president of revenue cycle with Cone Health, headquartered in Greensboro, North Carolina, hopes a new payer platform being offered by the organization’s electronic health record vendor will make cost estimates easier to transmit. Cone Health is using the platform to improve its flow of information to Humana and soon will move on to other payers.

“We’re able to send the clinical information electronically for authorizations,” he said. “That pathway is going to be better, and that might help with the estimates.”

Future considerations

If there’s a comment period before implementation, providers should push for “a more defined set of services that would require the AEoB,” Ward said.

They should be “providing feedback on having more specificity around what types of services, or maybe it’s dollar thresholds, or maybe it is just upon member request,” she added.

There’s conceivably enough crossover between the new health plan price transparency rules, which went into effect July 1, and the AEoB requirement that the latter could be diluted or set aside.

“If I had a wish list, I would hope that they recognize there’s a lot of duplication,” Ward said. “And so maybe the advanced EOB is not necessary, or it is an upon-request situation.”

Even with all the concerns, most everyone says the goals are laudable.

“We want patients to be informed,” Lood said. “I think we agree that what [the departments] are trying to do is the right thing. It's the execution that everybody struggles with, and the timelines.”

Nick Hut

is a senior editor with HFMA, Downers Grove, Ill.

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