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The No Surprises Act

The No Surprises Act (NSA) was signed into law on December 7, 2020, as part of the Consolidated Appropriations Act, 2021 (CAA). On July 13, 2021, the Departments of the Treasury and Labor, with the IRS (the “Departments”) along with the Personnel Management (OPM) published an interim final rule entitled “Requirements Related to Surprise Billing; Part I”, implementing certain provisions of the No Surprises Act. One of the provisions is the Restriction on Balance Billing by Out of Network Providers, which is to be interpreted as:

Out of network providers may not balance bill a patient under any circumstances for ancillary services at an in-network facility or for emergency services. For all other services at a participating health care facility, out of network providers may only balance bill the patient if they satisfy these “notice and consent” requirements:

  1. A good faith estimate for the charge for services is provided in writing, paper or electronic (as selected by the patient). It must be available in the 15 most common languages in the state or geographic region of the facility.
  2. A list of in-network providers at the facility who can perform the services and notification that the patient can be referred, at their option, to one of those in-network providers. The additional amount over the allowed amount cannot apply to an in-network provider.
  3. Information about any prior authorization or care management requirements must be provided.
  4. Consent must be signed by the patient with a copy provided to the patient through mail or email (as selected by the patient.)

This notice/consent must be provided 72 hours in advance of the appointment (or the day the appointment is made if made less than 72 hours in advance, but at least 3 hours before the appointment). These notice and consent requirements must be met for each provider and facility providing services. Finally, if these requirements cannot be met due to unforeseen, urgent medical needs that arise at the time services are rendered, then out-of-network providers are prevented from issuing a balance bill for those services.

In the instance that a member did receive a balance bill which the member thinks may violate the balance billing requirements set out in the NSA, a complaint can be filed with the federal Department of Health and Human Services. It will process the complaint and either make a determination on the complaint or refer it to a different federal or state agency for further investigation.