Regulations Released on No Surprises Act, Including Waiver Requirement

The No Surprises Act, which was included in the omnibus Consolidated Appropriations Act in late 2020, aims to protect consumers from surprise medical bills beginning in January 2022. The Act applies to out-of-network emergency services—including air ambulance but excluding ground ambulance services—along with services provided by an out-of-network provider at a network facility. Generally, the legislation limits a patient’s out-of-pocket costs to what they would have paid had the service been provided within the network, requires health plans to pay out-of-network providers a certain amount for services, and prohibits balance billing.

The Departments of Labor, Health and Human Services, and Treasury released the first interim final rule (IFR) focusing on certain aspects of the law. One aspect the IFR addresses is the provision of the law that allows patients to waive some protections of the No Surprises Act if they receive services from an out-of-network provider at a network facility. For example, if a patient wants to use a particular out-of-network obstetrician for a scheduled delivery at a network hospital, the patient can consent to be balance billed for those services.

The law allows this arrangement only under certain conditions. First, a waiver can only apply in non-emergency situations. Additionally, the waiver is not permitted if (1) the services are the result of unforeseen, urgent medical needs, (2) there is no participating provider at the facility, or (3) the services are ancillary services that a patient typically would not select. “Ancillary services” include emergency medicine, anesthesiology, pathology, radiology, and neonatology; services provided by assistant surgeons, hospitalists, and intensivists; and diagnostic services like radiology and laboratory services.

Generally, a notice regarding the provider’s non-network status and its impacts on costs and billing must be provided to the patient at least 72 hours before scheduled appointments, or at least 3 hours before same-day appointments. The notice must provide a good faith estimate of the costs and clearly state that the patient is not required to consent.