Under the No Surprises Act (NSA), a non-participating or OON provider is prohibited from balance billing patients for scheduled non-emergent services at a participating or in-network (INN) facility unless they properly provide the patient with the standard notice and consent (N&C) developed by the U.S. Department of Health and Human Services (HHS). The patient must sign it to agree to be balance billed.
HHS considers use of their N&C to be “good faith” compliance with the notice and consent requirements of the NSA, provided all other requirements are met. The same applies for any state-developed versions of notice and consent documents so long as they otherwise meet NSA requirements.
- The OON clinician (or INN facility on behalf of the OON clinician) must provide the patient with written notice in paper or electronic form, as selected by the patient, at least 72 hours prior to the date of service.
An exception may be made if the appointment is made within 72 hours of the anticipated service. Then the patient must receive notice on the day the appointment is scheduled and no later than three hours prior to rendering services.
- Give a copy of the signed consent to the patient in-person, by mail or via email, as selected by the patient.
- Keep a copy of the N&C for seven years.
The notice must:
- State the provider is out-of-network and that consent to receive items and services from an OON provider is optional.
- Indicate signature and date from the patient is required as consent to be treated by the OON clinician before such items or services are furnished.
- Affirm the patient may instead seek care from an INN clinician provider where the applicable cost-sharing requirement would apply.
- Be made available in the 15 most common languages in the geographic region of the applicable facility.
- Notify of the “good faith estimated” amount that may be charged to the patient for the items or services along with a disclaimer that the estimated amount doesn’t form a contract around charges. (Note: The “good faith estimated” amount for the N&C is different from a Good Faith Estimate as it applies to self-pay or uninsured patients.)
- Detail whether prior authorization or other care management limitations may be required in advance of receiving scheduled services.
- In cases where the N&C is being provided for post-stabilization services by a OON provider within an INN emergency facility, the patient must also be provided a list of any INN providers at the facility offering the same services.
To learn more about complying with No Surprises Act operational requirements, read The Nuances of Operational Compliance Under the No Surprises Act.
These materials are for general informational purposes only. These materials do not, and are not intended to, constitute legal or compliance advice, and you should not act or refrain from acting based on any information provided in these materials. Neither Ensemble Health Partners, nor any of its employees, are your lawyers. Please consult with your own legal counsel or compliance professional in regard to specific legal or compliance questions you have.