What the No Surprises Act actually protects you from

The No Surprises Act is a federal law that took effect on January 1, 2022. CMS describes it as protecting people from unexpected out-of-network medical bills in three situations: emergency room visits, non-emergency care related to a visit to an in-network hospital, hospital outpatient department, or ambulatory surgical center, and air ambulance services.

The implementing regulations put the obligation on the provider rather than on you. For emergency services at a hospital emergency department or an independent freestanding emergency department, a nonparticipating facility and a nonparticipating provider "must not bill, and must not hold liable" the patient for an amount that exceeds the in-network cost-sharing requirement. The same wording appears for non-emergency items and services furnished by an out-of-network provider at an in-network facility, and for air ambulance services furnished by an out-of-network air ambulance provider.

The practical effect is that your share is capped at what you would have owed in network. Amounts above that cap are worked out between the provider and the plan, first through a 30-business-day open negotiation period and then, if that fails, through a separate federal independent dispute resolution process, not billed to you. These provisions apply to services furnished during a plan year beginning on or after January 1, 2022.

The balance-billing rules are written for group health plans and for health insurance issuers offering group or individual health insurance coverage. Grandfathered health plans are included. CMS summarizes this for consumers as applying to "most types of health insurance."

The regulation also names coverage it does not reach. The requirements do not apply to excepted benefits, to short-term limited-duration insurance, or to health reimbursement arrangements and other account-based group health plans. If your coverage is one of those, the balance-billing protections described above are not the ones that apply to you.

A separate set of rules covers people who are uninsured or who choose not to use their insurance for a particular service. Those are described in the last section.

The regulation lists the coverage it excludes, but it does not mention the government programs, because the balance-billing rules are written to reach group health plans and health insurance issuers in the first place. CMS addresses this separately in its consumer material, where it groups Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, and TRICARE together and says these plans "already protect you from some unexpected out-of-network bills."

That protection comes from each program's own rules rather than from the No Surprises Act. In Medicare, for example, a provider that has a provider agreement with the program agrees not to charge a beneficiary for services the beneficiary is entitled to have Medicare pay for, subject to the exceptions in the regulation. The practical point for a reader is that a bill under one of these programs is not usually a No Surprises Act question, and the rules and complaint routes described on this page are not the ones that apply. CMS says "some" rather than all, so the coverage is not identical to what the No Surprises Act provides, and we have not tried to map program by program where the two differ.

The protections attach to items and services for which benefits are provided under your plan or coverage. Cost sharing is defined to exclude the cost of items or services that a plan does not cover at all, so a service your plan excludes outright is a different problem than a surprise out-of-network bill.

For non-emergency care, the "participating health care facility" the rule protects you at is a defined list: a hospital, a hospital outpatient department, a critical access hospital, and an ambulatory surgical center. Care delivered somewhere outside that list is not covered by this particular provision. Ground ambulance transport is also not among the categories the balance-billing sections address — the regulation covers air ambulance, defined as transport by rotary wing or fixed wing air ambulance.

There is also a way to sign the protection away. An out-of-network provider at an in-network facility may ask you to sign a written notice and consent form agreeing to be balance billed, and if the notice-and-consent criteria are met the billing prohibition no longer applies. The notice must state that consenting is optional and that you may instead seek care from an available in-network provider, and the timing depends on when the appointment was made: if it was scheduled at least 72 hours before the service, the notice is due no later than 72 hours before the service, and if it was scheduled less than 72 hours out, the notice is due on the date it was scheduled — or, if that date is the same day as the service, no later than 3 hours before the service.

That waiver cannot be used for everything. The regulation lists services for which consent may never be obtained and the provider remains bound: ancillary services, meaning items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology; services from assistant surgeons, hospitalists, and intensivists; diagnostic services including radiology and laboratory services; services from an out-of-network provider where no in-network provider at that facility can furnish them; and anything furnished as a result of unforeseen, urgent medical needs arising at the time. For emergency care, notice and consent is only available for certain post-stabilization services, and only after the attending emergency physician or treating provider determines you are able to travel to an available in-network provider.

A different rule applies if you have no coverage for the service, or if you have coverage but do not seek to have a claim submitted for it. In that case the provider or facility scheduling your care generally must give you a good faith estimate of expected charges, either when you schedule or when you ask. CMS states the estimate is owed if you request one or schedule services at least 3 business days in advance.

The regulation sets the timing. When a service is scheduled at least 3 business days out, the estimate is due no later than 1 business day after scheduling; when it is scheduled at least 10 business days out, no later than 3 business days after scheduling; and when you simply request an estimate, no later than 3 business days after the request.

If the bill comes in well above the estimate, there is a federal patient-provider dispute resolution process. A billed item or service is eligible when the total billed charges from that provider or facility are "substantially in excess" of the total expected charges listed for it on the good faith estimate, which the regulation defines as at least $400 more. You initiate by submitting a notice to HHS postmarked within 120 calendar days of receiving the initial bill, along with the bill, the good faith estimate, and an administrative fee.