In 2020, Congress passed the No Surprises Act (NSA) in an attempt to protect uninsured patients from surprise billing. Some sections of the NSA became effective on January 1, 2022, while other sections are on hold until regulations are released. 

This series answers frequently asked questions about the No Surprises Act including:

• Scope, effectiveness, and patient notice
• Good Faith Estimates (GFE) applicability
• GFE timing and logistics
• GFE content, distribution, and implementation
• GFE dispute resolution
• Balance billing applicability

This article covers how the No Surprises Act approaches balance billing and non-emergency services.

Balance Billing Limitations- Non-Emergency Services

Can I balance bill patients for non-emergency services if they agree to it?

Maybe. Unlike emergency services, which can never be balance billed to the patient, an out-of-network provider performing non-emergency services at an in-network facility may balance bill the patient by following the NSA’s waiver and informed consent process as long as the provider is not an ancillary provider prohibited by the NSA from using the waiver and informed consent process.

Which providers are considered ancillary providers prohibited from using the waiver and informed consent process?

The following out-of-network providers are not allowed to use the waiver and informed consent process and therefore are prevented from balance billing patients for their services:

• Anesthesia
• Diagnostic services such as radiology and laboratory
• Neonatology
• Assistant surgeons
• Hospitalists/intensivists
• No in-network provider is available at the in-network facility
• Urgent unforeseen needs, including if the waiver/consent process was used and the patient agreed to balance billing for the non-emergency services

How does an out-of-network provider use the waiver and consent process?

If you are an out-of-network provider of non-emergency services and not an ancillary provider prohibited from using the waiver/consent process, you are allowed to balance bill the patient if the patient ultimately consents.

For the consent to be valid, the provider must provide the notice and consent form in a separate document at least 72 hours before the scheduled service. If the service is scheduled less than 72 hours before the appointment, the notice and consent must be provided on the same day the appointment is made but not later than three hours prior to furnishing the item or service.

HHS has a specific consent form providers are required to use which includes a good faith estimate of the amount the provider may charge for the contemplated items and services and includes all items and services reasonably expected to be provided. Each out-of-network provider must obtain its own consent and out-of-network providers cannot combine notices and consents or delegate these requirements to another provider. Additionally, CMS has commented that when completing the form, the individual provider of the service must be identified, not simply the group or his/her employer.

Do the balance billing restrictions apply to non-emergency services not covered by the plan?

No. The NSA’s balance billing restrictions apply only to covered services. They do not apply to services that are not covered by the patient’s health plan. The NSA’s good faith estimate requirements for self-pay patients are potentially applicable given the patient will be considered as self-pay for the item/service being scheduled.

Related Resource

CMS Standard Notice and Consent Forms

Health care providers who would like to submit a question for inclusion in a future FAQ installment should email susan.freed@dentons.com