Article | January 16, 2023

No Surprises Act: Clearing up Some of the Common Confusions

For those who haven’t heard of it, the No Surprises Act (NSA) is legislation born of the Consolidated Appropriations Act (CAA) of 2021. I have been following the NSA regulations closely since November 2021. The CAA established protections for consumers related to surprise billing and price transparency. On January 1, 2022, the NSA rules governing Balance Billing for insured consumers and the Good Faith Estimate (GFE) for uninsured individuals went into effect. To say there was some confusion about this legislation would be an understatement.

Are there different rules for different types of providers and different protections for different consumers? YES. Is it easy to figure out which rules apply to which scenarios? NO.

There are many healthcare representatives who have been following the regulations as they’ve unfolded and been updated and been challenged and changed over the past year. I have provided many informational webinars on the topics and I always attend every webinar I can find – from CMS, healthcare finance and advocacy associations, attorneys, anybody who knows anything and is willing to share! I read every article that comes across my desk and have schooled my personal providers as well as clients and friends in the industry on all things NSA. Do I know everything? NO… but I do try to keep abreast of all developments and am constantly seeking information from any and every resource.

Last week, I paid to virtually attend a webinar presented by a National healthcare finance organization. The presentation was fast-paced and full of great information on implementation of the NSA requirements. There was a Q&A session at the end and many participants asked thoughtful questions that pertained to their specific situations. This legislation can be very confusing as there are many moving parts — some only apply to certain providers and consumers. Therefore, it’s easy to mix things up and we look to the presenter to keep everything straight.

For example, the balance billing rules protect individuals with private or commercial health plans from balance billing and out-of-network cost-sharing with respect to emergency services, non-emergency services furnished by out-of-network (OON) providers at in-network facilities, and air ambulance services. The distinguishing factor is whether or not the facility/provider is in the plan’s network or OON. Bottom line: if an insured patient seeks emergency services (and some non-emergency ancillary services) at an in-network facility, that patient will only be required to pay their in-network cost-sharing portion of the medical bill. If an out-of-network provider treats the patient at an in-network facility, they may not balance bill the patient for the portion of their bill that is not covered. There are other factors at play here, but I’m going to stay at a high-level for this post or we’ll be here all day!

The Good Faith Estimate (GFE) requirements of the NSA currently only apply to uninsured (or self-pay) patients. An important note: a patient is considered “uninsured” under the NSA when seeking a service which is not covered by their health plan. In- and out-of-network designations do not apply in these situations. If the service is never covered (e.g., cosmetic procedures), the patient is self-pay for the service and a claim is not filed with the health plan.

Back to the webinar I attended. Right from the start, I was thrown off by the speaker’s explanation of the agenda! The speaker explained that they were going to discuss NSA responsibilities including “providing Good Faith Estimates to patients whose insurance is out-of-network.” As stated, that is NOT a provider responsibility under the NSA and, in my opinion, it plants the seed for further misinterpretation of the regulations.

During the presentation, the speaker stated that the GFE must be signed by the patient. That is news to me! In fact, during the Q&A session, I asked when the Departments stipulated this requirement as it was not part of the initial rules. The answer I was given was, “in October.” I still haven’t been able to find this information… anywhere… and the speaker did not provide the needed citation.

Another participant asked, “Self-pay patients in the ER [absolutely no insurance] – are we allowed to bill?” The speaker replied, “With no insurance, you have to give them a Good Faith Estimate. And they have to sign the notice and consent form.” This response is completely incorrect! GFEs are only required for services that are scheduled at least three days in advance (or upon request). ER visits by definition are not scheduled! The Notice and Consent form applies to balance billing scenarios under the NSA – for insured patients!

Don’t get me wrong – the speaker provided vital information and answered most questions correctly. No matter how well you understand the rules, it can get jumbled in your head, especially during the Q&A session where there’s no structure to the conversation. I know this from experience. This is the kind of bad information that perpetuates the confusion that many providers and facilities have with the NSA regulations. I am left shaking my head and yelling at my computer!

On December 2nd, I presented a quick NSA overview and moderated a panel discussion for a local healthcare finance association chapter. We mostly discussed the all-inclusive GFE requirement that was set to be “enforced” as of January 1, 2023. Later that day, the Departments issued guidance extending their enforcement discretion in situations where GFEs do not include expected charges from co-providers/facilities…pending further rulemaking. This is great news for providers and facilities struggling to operationalize this requirement.

Even though there was no way for me to know this was going to be announced, I sent an email to all registered participants describing the update with a link to the official notification. I do not like to leave misinformation out there!   That means that reading our free monthly newsletter and our weekly Top Five can help you stay up to date. Sign up for both at  Hoping to hear from you!