No Surprises Act: what it covers and what it doesn’t

What the No Surprises Act protects

The Act, passed as part of the Consolidated Appropriations Act of 2021 and effective January 1, 2022, targets the most predictable forms of surprise out-of-network billing. The core protections apply to three buckets of services:

1. Emergency services — at any emergency department (in-network or out), and including post-stabilization care under defined conditions. The insurer must apply in-network cost-sharing and the provider cannot balance-bill the patient.
2. Non-emergency services from out-of-network providers at in-network facilities — the classic surprise bill, where you go to an in-network hospital and find out later that the anesthesiologist, radiologist, pathologist, neonatologist, assistant surgeon, hospitalist, or intensivist was OON. These specialties are categorically protected and cannot be the subject of a notice-and-consent waiver.
3. Air ambulance services — both fixed-wing and rotary-wing air ambulance providers cannot balance-bill, and cost-sharing must be in-network.

“For services the Act covers, the patient’s cost-sharing is calculated as if the provider were in-network. The provider and the insurer can fight about the rest through Independent Dispute Resolution — the patient is not the party negotiating.”

What it doesn’t cover

Several gaps are worth understanding before you frame an appeal around the Act:

• Ground ambulance. Despite long-standing criticism, the federal Act does not protect against ground ambulance surprise bills in most situations. Some states have their own protections — California, New York, Illinois, and Florida all have varying ambulance-billing rules. Check the state guide for California, New York, Illinois, and Florida for the specifics.
• Knowingly chosen OON care. If you affirmatively choose an out-of-network provider for non-emergency, non-ancillary services and sign a valid notice-and-consent waiver at least 72 hours in advance, the Act’s protections can be waived for that specific service. Notice-and-consent waivers are usually a bad idea — see below.
• Uninsured / self-pay patients. The Act has separate good-faith-estimate rules for the uninsured, but the balance-billing protections described above are framed around insurance status.
• Medicare, Medicaid, IHS, VA, TRICARE. Each has its own protections; the federal No Surprises Act generally does not layer onto these programs.

Notice-and-consent waivers — read before signing

A notice-and-consent waiver is a form some OON providers offer patients in advance, asking them to waive the federal balance- billing protections for a specific service. The Act allows them only for non-emergency, non-ancillary services at in-network facilities. A few essentials:

• The provider must give you the form at least 72 hours before the service (or three hours if you scheduled within that window).
• The form must include a good-faith estimate of the OON charges.
• The provider must offer alternative in-network options where feasible.
• Emergency services, ancillary specialties (anesthesia, radiology, pathology, neonatology, assistant surgeons, intensivists), and diagnostic services can NEVER be waived, regardless of any signature.

Most patients should not sign one. If you did sign one and believe it was for a service that cannot legally be waived, that is an appeal argument worth raising.

Independent Dispute Resolution — the back-end fight

For protected services, the insurer’s payment to the out-of-network provider is determined either through negotiation or through Independent Dispute Resolution (IDR). IDR is a federal baseball-style arbitration administered by certified IDR entities. The patient is generally not a party.

The relevance for consumers is that IDR’s outcome does not change the patient’s in-network cost-sharing obligation — the patient pays the in-network share regardless of what providers and insurers ultimately settle. If you receive any billing or collection contact for a balance above the in-network share for a protected service, that is generally improper.

State surprise-billing laws often go further

Many states had their own surprise-billing protections before 2022 and continue to enforce them in parallel with the federal Act. For fully-insured plans subject to state law, the broader of the two protections generally applies. A few examples worth checking:

• California has long had AB-72 protections for non-emergency services and a hold-harmless approach to OON ancillary care that in places goes further than the federal Act.
• New York’s surprise-bill law covers ground ambulance and emergency services and has a separate IDR-style mechanism through the Department of Financial Services.
• Texas has its own surprise-billing law for fully-insured plans handled by TDI.
• Illinois and Florida have specific state protections covering different categories of services.

For self-funded ERISA plans, state law generally does not apply — only the federal Act does. The ERISA appeals guide covers how to tell which kind of plan you are on.

Using the No Surprises Act in an appeal

A clean appeal argument under the Act has four pieces:

1. Categorize the service. Was it emergency, OON ancillary at an in-network facility, or air ambulance? If yes, the Act’s cost-sharing and balance-billing protections apply.
2. Identify the violation. The insurer either calculated cost-sharing as OON, denied the claim as OON, or the provider sent a balance bill. Each is a distinct violation with a distinct fix.
3. Cite the regulation. The Act’s implementing regulations live at 45 CFR Parts 149 and 147 and 26 CFR Part 54. You do not need to over-cite — naming the federal No Surprises Act and the specific service category is usually enough for an internal appeal.
4. Request the correction. Ask the insurer to re-process the claim at the in-network cost-share. Ask the provider, in writing, to withdraw any balance bill. If either refuses, file a complaint with the federal No Surprises Help Desk (also called the No Surprises Act consumer helpline run by CMS) and your state insurance department.

Where this fits the broader appeal

Out-of-network denial appeals are a major category at InsureDefense. The Act gives you a strong floor for protected services; for non-protected OON situations the appeal still relies on standard arguments — in-network unavailability, continuity of care, emergency exceptions in plan language. The larger framework lives in the main appeals playbook.

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