In 2020, Congress passed the No Surprises Act (NSA) in an attempt to protect patients from surprise billing. Some sections of the NSA became effective January 1, 2022, while other sections are on hold until regulations are released. See this post for a general NSA overview.

This new weekly series will provide answers to frequently asked questions regarding the NSA. The first FAQ installment answers general questions and focuses on the requirement to notify patients of their NSA protections.  

Health care providers who would like to submit a question for inclusion in a future FAQ installment should email susan.freed@dentons.com

Scope & Effective Dates

1. What types of providers and health plans are required to comply with the No Surprises Act (NSA)?

The applicability of the NSA’s provisions varies depending on the requirement but generally speaking, all licensed health care providers will have to comply with some portions of the NSA.  Health insurance issuers and group health plans, including those sponsored by public and private employers, are also subject to certain NSA provisions applicable to health insurers.  Medicare, Medicare Advantage, Medicaid, Medicaid managed care, and other government health benefits are not subject to the NSA.

2. When does compliance with the NSA start?

Some of the NSA provisions went into effect on January 1, 2022, including public disclosure of NSA protections, good faith estimates of self-pay payments, limitations on certain out-of-network provider charges, continuity of care after a change in provider network status, and improved accuracy of provider directories.  Other provisions of the NSA, such as the good faith estimates for insured patients and Advanced Explanation of Benefits (EOB) requirements will not be effective until after regulations implementing the requirements are issued.

3. I have heard that insured patients will need to receive an Advanced Explanation of Benefits (“EOB”) prior to receiving services. When do those requirements start?

Originally the Advanced EOB requirements were to be effective on January 1, 2022; however, the regulatory agencies postponed the compliance date until they release regulations implementing the new requirement. To date, regulations have not been released; therefore, the current compliance deadline is unknown. 

Patient Notice of NSA Protections

4. Who must provide patients with notice of the NSA’s protections?

Hospitals, ambulatory surgery centers (“ASCs”), critical access hospitals (“CAHs”), and hospital and CAH outpatient departments (including provider based RHCs), as well as individual providers who provide services within such facilities, must provide certain patients with notice of the NSA protections and publish the notice on their websites and at areas where patients come for services.

5. Which patients are entitled to an NSA notice?

Patients who have commercial insurance either through an individual policy or through a group health plan sponsored by a private or public employer must receive a copy of the NSA notice before being billed for services.

Uninsured patients and patients covered solely by government health care programs such as Medicare, Medicaid, TRICARE, and SCHIP, including Medicare Advantage and Medicaid managed care organizations are not required to receive a notice.

6. What must be included in the NSA notice?

The NSA notice is required to be a short and plain summary of the NSA protections.  It is to be one page (front and back).  The easiest way for providers to comply is to use the model notice provided by CMS.

The model NSA notice instructs the drafter to summarize applicable state laws relating to balance billing and provide contact information for more information regarding the patient’s rights under federal and state laws. 

The applicable contact information for federal law inquiries that should be inserted is: “https://www.cms.gov/nosurprises/consumers or by calling 1-800-985-3059. Visit https://www.cms.gov/nosurprises/consumers for more information about your rights under federal law.”

Providers will need to work with their legal counsel in the states in which the notice is being used to complete the state-specific sections.  For Iowa providers, we populated the draft model notice with the requisite Iowa-specific information.

7. Must I offer the NSA notice in multiple languages?

Yes. Providers and facilities are required to make the NSA notice (as well as the other notice and consent documents required by other NSA provisions) available in the 15 most common languages in the geographic region in which the applicable facility is located. Providers and facilities will need to translate their model notice and make it available in applicable 15 languages. Lists of the 15 most common languages in each state are published by HHS.

8. When must the NSA notice be provided?

The NSA notice must be provided to covered patients no later than the date and time the provider requests payment from the patient, including payment of any co-payment. If no payment is requested from the patient, the notice must be provided no later than the date the provider submits the claim to the patient’s payer. 

For most providers, this means the NSA notice will need to be given to the patient at the time of service.  For providers who do not collect a payment from the patient at the time of service, they will need to develop a process to ensure the patient receives the notice before billing the patient’s payer for the service (such as at admission or discharge).

9. How often must the NSA notice be provided?

Under the interim final regulations, a separate NSA notice appears to be required for each item/service provided to the patient and it currently does not appear the notice is satisfied by providing it one time or once per year. 

However, several trade groups and other stakeholders have urged the regulators to adopt guidance minimizing the number of times providers must provide this notice to patients.  Until additional guidance is issued either clarifying or revising the notice requirements, health care facilities and providers practicing at health care facilities should provide the NSA notice with each service.

10. I am an independent physician who performs outpatient surgical services at the local hospital and ASC. The hospital and ASC both provide patients with an NSA notice when they check-in for services. Must I also provide patients with an NSA notice before or immediately after surgery?

The NSA regulations allow providers who perform services at health care facilities to contract with the health care facilities to provide the NSA notice for them to avoid duplication. In this case, the independent physician would not be required to also give the patient an NSA notice as long as the health care facility has agreed to provide the notice for the physician and the NSA notice is actually provided and complies with the regulation’s requirements.  

Physicians and other providers wanting to rely on a health care facility’s NSA notice should amend any current agreement with the facility to include the NSA notice provision or enter into a simple agreement relating to the NSA notice provisions.  Physicians and other providers performing services at health care facilities should still post NSA notices on their websites.

Related Resources:

• Draft Model Disclosure Notice Regarding Patient Protections Against Surprise Billing - This is the government template with Iowa information included.
• No Surprises Act Limits Out-of-Network Charges