The federal No Surprises Act, effective January 1, 2022, established new requirements for healthcare providers, facilities, and providers of air ambulance services to protect consumers from “surprise” medical bills. These requirements are in addition to applicable state laws regulating balance billing and surprise bills.

If a consumer receives care from an out-of-network provider, the patient’s health plan will typically not cover the entire out-of-network cost. This occurs frequently in emergency situations, where consumers will likely be unable to choose a provider. Further, an in-network hospital may provide care from out-of-network providers. Previously, an out-of-network provider could bill a consumer for the difference between the charges the provider billed and the amount paid by the patient’s health plan. This is known as balance billing, and an unexpected balance bill is called a surprise bill.

Under the No Surprises Act, nonparticipating emergency facilities and nonparticipating providers cannot bill insured consumers who receive emergency services at a hospital or an independent free-standing emergency department for a payment amount greater than the patient’s in-network cost-sharing requirement for such services. Similarly, nonparticipating providers operating at a participating health care facility who provide non-emergency services to insured consumers cannot bill the patients an amount greater than the in-network cost-sharing requirement for such services, unless the provider has obtained a signed written consent from the patient.  Providers are not permitted to request consents to balance bill patients for the following list of ancillary services:

  • Items and services related to emergency medicine, anesthesiology, pathology, radiology and neonatology;
  • Items and services provided by assistant surgeons, hospitalists, and intensivists;
  • Diagnostic services, including radiology and laboratory services; and
  • Items and services provided by a nonparticipating provider if there is no participating provider who can provide such item or service at such facility.

Each provider and facility must disclose to consumers certain information regarding balance billing protections and how to report violations. Providers and facilities must post this information prominently at the location of the facility, post it on a public website, and provide it to the beneficiary before the service is provided. Providers and facilities must also provide uninsured or self-pay patients in advance of scheduled services, or upon request, a good-faith estimate of expected charges, expected services, and diagnostic codes of scheduled services.

Many provisions of the No Surprises Act, including those described above, are not clearly written. The Centers for Medicare & Medicaid Services’ Center for Consumer Information and Insurance Oversight has already issued guidance on some aspects of the law, but certain provisions will need further clarification. Those with questions about the applicability of the No Surprises Act to their businesses, or regarding compliance with the Act, should contact their healthcare attorney.

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