Three Questions You Should Be Asking to Determine if the No Surprises Act Applies to You

How do the billing protections established under the No Surprises Act impact my group?

This is what everyone is asking. It’s a very complex question that isn’t answered with a simple yes or no. However, listed below are three questions you should ask to determine if any of your services are impacted by the No Surprise Act legislation.*

Is the patient uninsured?

A good faith estimate should be provided to the uninsured.

If the patient is self-pay, then there are parts of the Act that apply to all providers in both emergency and non-emergency situations. Under the Act, a good faith estimate of services must be provided to an uninsured patient at least three (3) business days before a scheduled service.

The good faith estimate must include expected charges for all services that are reasonably expected to be provided in conjunction with the primary item or services.

This section of the Act defines services in terms of primary services and co-services or co-facilities. In situations where multiple providers (primary and co-) are providing care, the primary provider is responsible for providing the good faith estimate but that good faith estimate should include items or services reasonably expected to be furnished by both primary and co-provider.

Example: If a self-pay patient is having a procedure at a surgery center and as part of the procedure will require preoperative diagnostics services, those diagnostics services should be included in the good faith estimate provided to the patient.

 there state legislation addressing balance billing?

18 states have legislation prohibiting balance billing for all services.

Prior to the national legislation, several states have implemented legislation at the state level to address surprise billing. The No Surprises Act does not overrule state law. Some states may have additional requirements in addition to the national legislation. Currently, 18 states have comprehensive balance billing legislation in place that prohibits balance billing in both emergency and non-emergency situations. 










New Hampshire

New Jersey

New Mexico

New York






Example: If a patient located in Georgia receives services as part of an out-of-network physician's office visit, those services would be subject to balance billing prohibitions because Georgia is a state with comprehensive balance billing legislation.

was the primary service received?

All emergency services are impacted.

The Act prohibits balance billing for any services provided during or provided in conjunction with an emergency visit to a hospital emergency room, freestanding emergency department, or urgent care center that is licensed to provide emergency care. Emergency post-stabilization services are also subject to the protections under the legislation.

Example: If a patient seeks emergency care from an out-of-network provider or facility, those services are subject to the balance billing prohibitions under the No Surprises Act.

Non-emergency services provided at a hospital or surgery center are impacted.

Non-emergency services provided by nonparticipating providers at certain participating healthcare facilities, without consent, are subject to balance billing prohibitions under the No Surprises Act.

The Act defines healthcare facilities as hospitals, hospital outpatient departments, critical access hospitals and ambulatory surgery centers. Visits and services under the Act are not limited based on if the provider is physically located at the facility.

Example: If a patient goes to a participating hospital or surgery center for a non-emergency procedure and as part of the procedure services are sent to a non-participating diagnostic provider not physically located at the hospital or surgery center, those diagnostic services are still covered under this legislation.

Non-emergency services provided at urgent care centers or in physician offices are not impacted.

There has been confusion surrounding how the No Surprises Act applies to non-emergency services performed at other healthcare facilities not defined in the legislation, such as urgent care centers and physician offices. However, on April 6, 2022, CMS released a Frequently Asked Questions for Providers About the No Surprises Rule, which clarifies the issue.

In the FAQ, CMS stated that for purposes of these protections, healthcare facilities include: hospitals, hospital outpatient departments, critical access hospitals, and ambulatory surgical centers; these protections do not apply to other types of healthcare facilities, such as urgent care centers.

The legislation does say CMS will continue to monitor the prevalence of surprise billing at various facilities and may expand the definition of healthcare facilities in future rulemaking.

Example: If a patient received non-emergency services from an out-of-network provider at an in-network or out-of-network urgent care center, these services would not be included under the No Surprises Act protections.

*Providers should seek legal counsel to determine if the No Surprises Act applies to their unique billing scenarios.

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