The primary patient protections of the No Surprises Act apply to:
- Certain post-stabilization services
- Non-emergency care received from out-of-network providers at in-network facilities
In these circumstances, there are Notice and Consent provisions that would allow the patient to agree to receive treatment from an out-of-network provider at an in-network facility. The Notice and Consent effectively waives the balance billing protections in the No Surprises Act.
Notice and Consent requirements include (but are not limited to):
- Use of standardized notice and consent documents
- Provision of standard documents at least 72 hours in advance. Note: if services are scheduled in a shorter time, then no later than 3 hours before service is furnished.
- Good faith estimates for physicians only applies to an estimate of charges they intend to submit for remuneration to the insurance plan.
- Waiver of balance billing protections cannot be used for emergency, unforeseen, or urgent services or "ancillary services" or assistants-at-surgery.
- Waiver of balance billing protections also cannot be used for non-emergency items and services provided by nonparticipating surgeons IF there is no participating provider who can furnish that item or service at the facility.
Standard Notice and Consent forms are required (unless a similar state-approved document meets the federal specifications). The standard form and additional instructions can be found here:
https://www.cms.gov/files/document/standard-notice-consent-forms-nonparticipating-providers-emergency-facilities-regarding-consumer.pdf
Note: There are certain services for which a patient may not waive billing protections. These include:
- Emergency services (except for post-stabilization services in certain instances)
- Non-emergency "ancillary services" including emergency medicine, anesthesiology, pathology, radiology, and neonatology
- Non-emergency items and services provided by assistant surgeons, hospitalists, and intensivists
- Non-emergency diagnostic services, including radiology and lab services
- Non-emergency items and services provided by a nonparticipating provider if there is no participating provider who can furnish such item or service at such facility
- Items or services furnished as a result of unforeseen, urgent medical needs that arise at the time an item or service is furnished for which a nonparticipating provider satisfied the notice and consent criteria
