Q&A: Documenting notice and consent under the No Surprises Act

Q: Under the No Surprises Act, how do we document that a patient has been informed that a provider is out of network and still wishes to receive that provider’s services?

A: In instances where patients may wish to obtain services from an out-of-network provider despite the cost, providers and facilities will be required to use the HHS notice and consent forms to be excepted from the provisions of the act. Providers and facilities that properly issue and submit these notice and consent forms within the requirements of the No Surprises Act will be deemed to be in compliance.

The interim final rule (IFR) clarifies that the notice and consent must be given together. The forms cannot be embedded within other documents provided to patients. A single consent can be used for multiple providers; however, each individual provider must be listed along with the good faith estimate of their services.

The notice and consent must be given no later than 72 hours before a scheduled appointment; if the appointment is scheduled sooner, the notice and consent must be provided as soon as possible. If the appointment is scheduled on the same day, the notice and consent must be provided no later than three hours prior to rendering the item or service.

The notice and consent must be issued to the patient via the patient’s preferred method, including an option for a paper copy.

The disclosure notice must be displayed prominently on a sign at the provider or facility’s location, and it also must be posted on their website if there is one. The rule does not expect providers or facilities to create a website if one currently does not exist.

The operational requirements around the No Surprises Act are substantial for providers and payers. Departments handling patient financial services, registration, and claims are largely impacted by the IFR, and are strongly advised to read the rule in full.

Editor’s note: For more information, see “Take the surprise out of the No Surprises Act,” by Joe Rivet, Esq., CCS-P, CPC, CEMC, CPMA, CICA, CHRC, CHC, CHPC, CHEP, CAC, CACO, in the October 2021 issue of the NAHRI Journal. Find more NAHRI resources on the No Surprises Act and surprise billing here.