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OP-ED: Don't Be Surprised by the No Surprises Act


November 10, 2021

In January 2022, federal legislation takes effect limiting surprise medical billing for out-of-network healthcare.

Passed with bipartisan support in Congress and signed by President Donald Trump, the No Surprises Act (NSA) is the most sweeping healthcare legislation since the Affordable Care Act in 2010. Surprise billing occurs when a patient has no knowledge or opportunity to choose care from a provider inside of the patient's health plan network.

What is the No Surprises Act?

Most health plans require or prefer customers to use in-network providers. In-network providers are healthcare providers and facilities that contract with health insurance plans to provide lower priced services in exchange for being part of the health plans' networks.

The NSA makes it illegal for providers to bill patients higher rates than in-network cost-sharing under their health plans in certain circumstances.

This includes air ambulance transport but notably excludes ground ambulance. Often, patients receiving surprise bills are left financially strapped or forced to declare bankruptcy because they cannot afford the tens or even hundreds of thousands of dollars in unanticipated medical bills.

According to the American Journal of Public Health, nearly 67% of bankruptcies filed in the United States are tied to medical expenses.

The NSA limits the amount patients must pay, out-of-pocket, for healthcare services rendered by out-of-network providers.

Surprise Billing

Surprise billing typically occurs in one of two circumstances.

The first is during an emergency where the person is incapable of choosing an in-network provider without risking their health or life.

The second is when a patient unknowingly receives planned care from an out-of-network provider. For example, a patient receives treatment from an in-network provider and later learns a provider who was involved in their treatment, such as an anesthesiologist or other specialist, does not participate in the health plan's network.

Protecting Consumers

The NSA fixes many of these problems by barring out-of-network providers from billing patients more than an in-network provider.

The patient is also removed from disputes between the insurance company and healthcare provider. The NSA provides rules to expedite disputes between the two parties with limited options for the losing party to lengthen or complicate the payment process.

Opting Out of NSA Protections

Patients still have the option to see out-of-network providers and can opt out of the NSA protections.

But, there are caveats.

In some cases, patients may purposefully decide to receive healthcare services from an out-of-network provider for non-emergency care. This can happen under various circumstances.

The most common reason is for specialized procedures and visits. The NSA requires healthcare providers and facilities to notify the patient of the protections waived and receive written consent.

This notice, provided at least 72 hours before services, must include a good faith estimate of costs, whether any in-network providers at the facility offer the same services, and a detailed list of the specific protections the patient is waiving.

Uninsured and Self-Pay Patients

Patients without insurance or who do not want to submit a claim to their insurance company — often called "self-pay" — are also provided some NSA protections.

Self-pay patients are entitled to receive a good faith estimate for the cost of services and procedures. If a self-pay or uninsured patient is charged substantially more than the estimate, the NSA provides a dispute resolution process with a neutral arbiter.

What's Next?

The NSA is a 200-page bill with 100 additional pages of rules already published.

Patients need to be aware of the new protections afforded to them under this legislation; specifically, the information healthcare providers must provide when asking patients to waive the protections against balance billing.

The Office of the Montana Commissioner of Securities and Insurance is charged with ensuring commercially insured health plans and insurance companies comply with this law.

For up-to-date information and questions about the No Surprises Act, go to

Troy Downing is the Commissioner of Securities and Insurance, Montana State Auditor. Commissioner Downing is a two-tour combat veteran, businessman and entrepreneur.


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