No Surprise Act: Impact on Healthcare Consumer Notice and Consent; Part 6

Notice and Consent Exception

As an exception to the balance billing prohibition for OON providers furnishing services at in-network facilities, some OON facility-based providers will be permitted to balance bill if they notify the patient that they are out-of-network and of the fees they will charge prior to treatment and the patient then signs a written consent to be balance billed. Requirements for a valid notification and consent will be prescribed in the regulations. Importantly, however, the notice and consent exception expressly excludes most facility-based providers from using it, as follows:

  • Services of physician and non-physician practitioners of emergency medicine, anesthesiology, pathology, radiology and neonatology services;
  • Services of assistant surgeons, hospitalists, and intensivists;
  • Diagnostic services including radiology and laboratory services;
  • Other specialty provider services specified by regulation, and
  • The services of an OON specialty provider when there is no in-network provider at the facility who can furnish the same services for the patient.
  • Requiring out-of-network providers to provide potential patients with notice that they are outside of the patient’s health plan’s network is a large part of the No Surprises Act’s purpose. Essentially, patients can waive paying out-of-network prices for non-emergency services so long as they consent, something that is not permitted in emergency situations or for certain ancillary services (i.e., anesthesia) under the Act.[4]
  • First, providers and/or health facilities are expected to have a standard noticethat can be given to out-of-network patients when they seek services, which must be given to patients within seventy-hoursof the scheduled appointment or service (or three hours for same-day-services). These notices should include the following:
  • A statement that the provider (or facility) is out-of-network;
  • An estimate of the cost of services (which must be calculated in good faith); and
  • Information on prior authorization/utilization management limitations.[5]
  • This document must be given to the patient separate from any other documents given to them, and must be available in fifteen (15) of the most common languages where the provider is located (in addition to adherence to language requirements as required by state and federal law).[6]
  • Additionally, if the notice is given for post-stabilization services, the notice must also include a list of in-network providers that can provide the needed services, and a statement that the patient will be referred to an in-network provider at the patient’s discretion.[7]
  • Lastly, there is a requirement which states that out-of-network providers must notify health plans when they provide a patient services, and they must certify that they have met the required notice and consent requirements. These records must be kept for a minimum ofseven yearseither by the provider or the health facility.[8]
  • Ensuring that health care providers and facilities, in non-emergency situations, provide plain-language consumer notices informing patients of their out-of-network status and obtain their consent before treating them or sending a bill.
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