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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

January 20, 2022

The No Surprises Act: What Does It Mean for Covered Providers?

Effective January 1, 2022, federal law establishes certain consumer protections aimed at preventing “surprise” medical bills. The new federal protections apply to most bills for emergency care in hospitals as well as for nonemergency services provided at in-network facilities, including hospitals, outpatient departments, and ambulatory surgery centers. These new protections are in addition to those established in New York State’s Out-of-Network Consumer Protection Law, which took effect in 2015 and protects New Yorkers from financial exposure from surprise bills and emergency services.

The No Surprises Act (NSA) aims to protect consumers against unanticipated medical bills by requiring all non-excepted group health plans and issuers that cover emergency room services to cover emergency and nonemergency services without imposing any prior authorization or limitation on coverage regardless of whether the provider is a participating provider or emergency facility. The law covers most emergency services, including those provided in emergency departments, hospital emergency rooms, and urgent care centers that are licensed to provide emergency care. In essence, all emergency services must be covered in the same manner regardless of whether they are provided by an in-network or out-of-network provider or facility. The law also prohibits doctors, hospitals, and other covered providers from billing patients more than in-network cost sharing for emergency medical bills. Additionally, while the law does not apply to emergency ground transportation, it does apply to emergency and nonemergency air ambulance transportation. 

Nonemergency services provided by out-of-network providers at in-network facilities are also covered, because oftentimes physicians who work in hospitals are not employed by the hospital and therefore independently bill for their services.

As a result of the enactment of this law, health care facilities and providers must notify patients regarding the NSA’s protections against surprise billing. By January 1, 2022, in order to comply, providers must post the NSA notice at their physical locations, post a link to the notice on the searchable homepage of the provider’s website, and deliver the notice to all insured patients (except Medicare and Medicaid beneficiaries) regardless of network status. These notice requirements apply to all facilities and providers that furnish emergency services in facilities or in connection with facility visits (e.g., physicians and entities providing diagnostic services).

Under certain circumstances, the NSA also requires that all health care providers (including private practices and facilities) give patients a “good-faith estimate” for the expected cost of nonemergency items or services. The good-faith estimate must be given in writing at least one business day before medical services are provided, unless the appointment is scheduled less than three days in advance. Patients may also request an estimate prior to scheduling a service. If the final bill is at least $400 more than the good-faith estimate, patients may dispute the amount through the US Department of Health & Human Services. 

If a provider seeks to have a patient waive the NSA’s protections, the provider must give the patient a detailed, written consent form at least 72 hours prior to a scheduled appointment, or three hours before a same-day appointment. The consent form must be provided to the patient separate from other forms. It must also specify the following: (1) whether pre-authorization is required, (2) what in-network providers are available, and (3) the good-faith estimate for the total cost of the proposed out-of-network care.

Providers that bill patients in violation of the NSA are subject to civil monetary penalties of up to $10,000. In determining a penalty, CMS may consider a variety of factors, including the degree of culpability, history and frequency of prior violations, the impact on affected individuals, the gravity of the violation, and whether any violations have been corrected. However, these penalties do not apply if the provider does not knowingly violate the law, should not have reasonably known that it violated the law, withdraws the bill within 30 days, and reimburses any payments received plus interest.

We recommend that health care providers covered under the NSA update their policies and procedures with respect to billing for emergency services, including the provision of a good-faith estimate to the patient. Attorneys on Barclay Damon’s Health Care Controversies and Health & Human Services Providers Teams are available to assist health care providers with compliance efforts under the NSA and will continue to monitor any developments and best practices.  

If you have any questions about the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at; Melissa Zambri or Margaret Surowka, Health & Human Services Providers Team co-leaders, at and, respectively; Mary Connolly, associate, at; Jen Cruz, associate, at; or another member of the firm’s Health Care Controversies or Health & Human Services Providers Teams. 

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