Sorting out the confusion: When the No Surprises Act does—and doesn’t—apply

The No Surprises Act (NSA) took effect January 1, 2022, yet there’s still a lot of confusion in the healthcare industry around whether and when the NSA applies. In this article, we’ll answer some common questions and provide guidance on this complex topic.

Q: To which types of providers does the NSA apply and under which circumstances?

A: Generally, physicians, facilities, and providers of air ambulance services must comply with NSA requirements when they provide items or services to individuals enrolled in group health plans, individual coverage, and Federal Employee Health Benefits plans.

What does this mean exactly? Under certain limited circumstances—and when these providers are considered out of the patient’s network—they must give advanced notice of their out-of-network status and obtain consent to balance bill. Individuals may consent to waive NSA balance billing protections related to post-stabilization emergency services as well as non-ancillary, non-emergency services provided by out-of-network providers in in-network facilities.

In addition, each physician, hospital, and ASC must publicly provide a model notice regarding patient protections against balance billing. These entities must provide this same notice individually to each patient enrolled in commercial health coverage, including those in the Federal Employees Health Benefits Program.

The challenge? Time is of the essence. Providers and facilities must issue the disclosure notice no later than the date and time on which they request payment from the individual (including requests for copayment or coinsurance made at the time of a visit to the provider or facility). If the provider or facility doesn’t request payment from the individual, the notice must be provided no later than the date on which the provider or facility submits a claim for payment to the plan or issuer. Note that although physicians must publicly provide a model notice, they don’t need to notify patients individually when they provide care in conjunction with a visit to a hospital or ASC. In these cases, the hospital or ASC will notify the patient directly.

There are additional NSA requirements for uninsured or self-pay patients—namely, the requirement to provide a good faith estimate in advance of scheduled services (or upon request) and to follow a patient-provider dispute resolution process. More to come on that in future blog posts, so stay tuned.

Q: Are there any scenarios where providers can never balance bill a patient?

A: Yes. The NSA prohibits balance billing in three major scenarios:

1. A person gets covered emergency care from an out-of-network provider or out-of-network emergency facility
2. A person gets covered non-emergency care from an out-of-network provider as part of a visit to an in-network health care facility
3. A person gets covered air ambulance services by an out-of-network air ambulance provider

In these circumstances, out-of-network providers must collect the in-network cost-sharing amount.

Q: When are NSA requirements not applicable?

A: NSA requirements do not apply to beneficiaries or enrollees in federal programs, including Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE.

Additional questions to consider

Here are some questions to consider when determining whether the NSA applies:

1. Does the patient have insurance coverage, and do they plan to use it—or are they uninsured/self-pay? If they plan to use their health insurance coverage, what is that coverage specifically?
2. What is the item or service rendered?
3. By whom is the item or service rendered and in what setting (i.e., in-network vs. out-of-network)?

It behooves healthcare organizations to set up workflows to identify patients to whom the NSA applies so staff can take proactive steps to ensure compliance.

Still have questions? Take a look at these FAQs that HHS published on December 22, 2021. Also, contact us at Rivet Health Law for more detailed guidance and check out our NSA-related blog posts.