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January 5, 2022

Update on No Surprises Act 2022


As a result of the 2021 Consolidated Appropriations Act, several No Surprises Billing Act regulations went into effect on January 1, 2022, for providers, facilities and air ambulance services. The information below is not legal or consulting advice, but is provided as education and offers links to additional resources.

Starting January 1, 2022, the No Surprises Act protects people covered under group and individual health plans from receiving surprise medical bills when they receive most emergency services, non-emergency services from out-of-network providers at in-network facilities, and services from out-of-network air ambulance service providers.

This article is a follow up to the August 17, 2021, Sending “Surprise” Medical Bills to Patients? Think Again blog post related to the January 1, 2022, implementation of the Interim Final Rule (IFR) of the No Surprises Act. The new law provides consumers with federal protection from unexpected out-of-network medical bills.

Out-of-network charges are common in emergency care, where consumers don’t necessarily have a choice in where they go or who provides their care. These charges can also arise during non-emergency hospitalizations, where multiple providers may be involved in care. Even if a hospital participates in a patient’s insurance plan, specific providers, such as anesthesiologists or radiologists, may not. Consumers may have no idea that they’re getting care from out-of-network providers and no say in it either.

A news release from November 22, 2021, entitled New HHS Report Highlights How the No Surprises Act Will Prevent Surprise Medical Bills Faced by Millions of Americans highlights that millions of Americans with private health insurance experience some kind of surprise medical billing. The report states that surprise medical bills are relatively common among privately-insured patients and can average more than $1,200 for services provided by anesthesiologists, $2,600 for surgical assistants, and $750 for childbirth-related care.

The No Surprises Act establishes an independent dispute resolution process for payment disputes between plans and providers, and provides new dispute resolution opportunities for uninsured and self-pay individuals when they receive a medical bill that is substantially greater than the good faith estimate they got from the provider. These don’t apply to people with coverage through programs like Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, or TRICARE. These programs have other protections against high medical bills.

Well, 2022 is here and it is time for EMS, hospitals and other emergency service departments to comply with the No Surprises Act. This can get complicated when meshing this Act with the Emergency Medical Treatment and Labor Act (EMTALA) imposing restrictions on obtaining patient financial or insurance status. The question – how can providers best manage EMTALA, Crisis Standards of Care (CSC), the pandemic and adhere to the new No Surprises Act?

First, it is important to have providers and other staff involved in patient care understand some of the more critical aspects of EMTALA. EMTALA requires Medicare-participating hospitals with emergency departments to screen and treat the emergency medical conditions of patients in a non-discriminatory manner to anyone, regardless of their ability to pay, insurance status, national origin, race, creed or color.

EMTALA is triggered whenever a patient presents to the hospital campus, not just the physical space of the ED but within 250 yards of the hospital. Patients who present to a hospital parking lot, sidewalks, and adjacent medical buildings are mandated to undergo EMTALA screening and stabilization. The provisions of EMTALA apply to all individuals (not just Medicare beneficiaries) who attempt to gain access to a hospital for emergency care.

The Centers for Medicare and Medicaid Services (CMS) defines a dedicated emergency department as “a specially equipped and staffed area of the hospital used a significant portion of the time for initial evaluation and treatment of outpatients for emergency medical conditions.”

EMTALA requires hospitals with emergency departments to provide a medical screening examination to any individual who comes to the emergency department and requests such an examination, and prohibits hospitals with emergency departments from refusing to examine or treat individuals with an emergency medical condition. The term “hospital” includes critical access hospitals.

This means, for example, that hospital-based outpatient clinics not equipped to handle medical emergencies are not obligated under EMTALA and can simply refer patients to a nearby emergency department for care. Typically, outpatient physician offices that do not have resources to stabilize critically ill patients are not required to perform a medical screening examination or stabilization before transferring the patient to an ED. In other words, patients who are part of an outpatient encounter are exempt from these EMTALA regulations. However, the No Surprises Act can still apply to services rendered by your provider.

When a patient has a health insurance Marketplace or individual health plan, the new Act applies as follows (this is a summary):

  • Bans surprise bills for most emergency services, even if rendered out-of-network and without approval beforehand (prior authorization);
  • Bans out-of-network cost-sharing (like out-of-network coinsurance or copayments) for most emergency and some non-emergency services. Patients can’t be charged more than in-network cost-sharing for these services;
  • Bans out-of-network charges and balance bills for certain additional services (like anesthesiology or radiology) furnished by out-of-network providers as part of a patient’s visit to an in-network facility; and
  • Requires that health care providers and facilities give patients an easy-to-understand notice explaining the applicable billing protections, who to contact for concerns that a provider or facility has violated the protections, and that patient consent is required to waive billing protections (i.e., patient must receive notice of and consent to being balance billed by an out-of-network provider).

Patient has no insurance? In most cases, a good faith estimate of how much the care will cost needs to be provided to the self-pay patient prior to rendering such care.

State Billing Laws Still Apply

The No Surprises Act supplements state surprise billing laws; it does not supersede them.

This new Act instead creates a “floor” for consumer protections against surprise bills from out-of-network providers and related higher cost-sharing responsibility for patients. So as a general matter, as long as a state’s surprise billing law provides at least the same level of consumer protections against surprise bills and higher cost-sharing as does the No Surprises Act and its implementing regulations, the state law generally will apply.

For example, if your state operates its own patient-provider dispute resolution process that determines appropriate payment rates for self-pay consumers and Health and Human Services (HHS) has determined that the state’s process meets or exceeds the minimum requirements under the federal patient-provider dispute resolution process, then HHS will defer to the state process and would not accept such disputes into the federal process.

Is Your Organization Prepared?

A violation of the No Surprises Act may result in a state enforcement action or federal civil monetary penalties of up to $10,000 per violation.

Know the plans your organization is in-network with – create a “grid” or listing for reference and keep it updated.

Know your state laws and when Federal laws supersede state rules. Contact your risk attorney through your malpractice insurance company for guidance which is obtained through no additional cost (part of the service you get when paying the insurance premium).

Identify eligible cases. The Act applies to post-stabilization care at out-of-network facilities until a patient can be safely transferred to an in-network facility. Nonparticipating providers and facilities may balance bill for post stabilization services only if all of the following conditions have been met, such as when the attending emergency physician or treating provider determines that the beneficiary, enrollee or participant:

  1. Can travel using non-medical or non-emergency medical transportation to an available participating provider or facility located within a reasonable travel distance, taking into account the individual’s medical condition; and
  2. Is in a condition to receive notice and provide informed consent.
  3. The nonparticipating provider or facility provides the beneficiary, enrollee or participant with a written notice and obtains consent that includes certain content and within a specific timeframe and format outlined in regulation and guidance.
  4. The provider or facility satisfies any additional state law requirements

Make sure revenue cycle workforce members understand EMTALA compliance and can identify out-of-network situations or when the patient is self-pay. 

Implement an efficient and compliant method of providing a good faith estimate. The good faith estimate must include expected charges for the items or services that are reasonably expected to be provided in conjunction with the primary item or service, including items or services that may be provided by other providers and facilities.

  • From January 1, 2022, through December 31, 2022, HHS will exercise its enforcement discretion in situations where a good faith estimate provided to an uninsured (or self-pay) individual does not include expected charges from other providers and facilities that are involved in the individual’s care.

Download the CMS Model Notice and Consent forms.

Your revenue cycle department should have someone already trained to negotiate with out-of-network payers. The first step is to actively negotiate with insurance the highest reimbursement possible since you can no longer balance bill the patient. Are you utilizing Advanced Explanation of Benefits in plain language to provide good faith estimates? Track results – are your processes working? 

Identifying No Balance Billing for Out-of-Network Emergency Service Definitions

Emergency services

With respect to an emergency medical condition, appropriate medical screening including ancillary services, medical examination and treatment required to stabilize the patient, and certain post-stabilization services associated with the emergency medical condition that are covered under the plan or coverage, unless certain notice and consent and other criteria are met.

Emergency medical condition

A medical condition, including a mental health condition or substance use disorder, manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in a condition that places the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ.

Nonparticipating emergency facility

An emergency department of a hospital or an independent freestanding emergency department (or a hospital with respect to post stabilization services) that does not have a contractual relationship directly or indirectly with a group health plan or group or individual health insurance coverage, with respect to the furnishing of an item or service under the plan or coverage.

Nonparticipating provider

Any physician or other health care provider who does not have a contractual relationship directly or indirectly with a group health plan or group or individual health insurance coverage, with respect to the furnishing of an item or service under the plan or coverage.

Participating health care facility

Any health care facility that has a contractual relationship directly or indirectly with a group health plan or health insurance issuer offering group or individual health insurance coverage, with respect to the furnishing of an item or service under the plan or coverage.

Definitions Related to Continuity of Care When Provider Network Status Changes

Continuing care patient - an individual who:

  1. is undergoing a course of treatment for a serious and complex condition from the provider or facility;
  2. is undergoing a course of institutional or inpatient care from the provider or facility;
  3. is scheduled to undergo non-elective surgery from the provider, including receipt of postoperative care with respect to such surgery;
  4. is pregnant and undergoing a course of treatment for the pregnancy from the provider or facility; or
  5. was determined to be terminally ill and is receiving treatment for such illness from the provider or facility.

Serious and complex condition definition:

  1. in the case of an acute illness, a condition that is serious enough to require specialized medical treatment to avoid the reasonable possibility of death or permanent harm; or
  2. in the case of a chronic illness or condition, a condition that

a) is life-threatening, degenerative, potentially disabling or congenital; and

b) requires specialized medical treatment over a prolonged period of time.


Send any questions about the provider requirements and provider enforcement to:




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