The 2022 law promised relief, but hospitals and insurers have found loopholes that keep surprise charges alive.
The No Surprises Act was heralded as a “landmark achievement” that would finally shield patients from unexpected balance bills when they go to the emergency department (ED) — yet the reality on the ground tells a different story. The statute bans out‑of‑network (OON) providers from sending a surprise balance bill for emergency treatment and for OON care rendered at an in‑network hospital. The No Surprises Act definition clarifies this ban, but the law’s language stops short of covering ancillary services billed separately. The 2023 CMS guidance still allows patients to be stuck with facility fees, OON anesthesiologists, radiologists, or consent‑to‑treat waivers they never saw. Because these gaps were left unaddressed, hospitals and insurers have built workarounds that defeat the act’s core promise. Stronger enforcement and an explicit ban on any ancillary OON billing in emergency settings are overdue.
What does the No Surprises Act actually prohibit?
Understanding the statute’s scope is the first step in exposing its loopholes. The act protects anyone with a group or individual health plan from receiving a surprise bill when they receive most emergency services or non‑emergency services from an OON provider at an in‑network facility. CMS fact sheet on patient rights explains that an OON emergency physician cannot bill a patient more than the in‑network cost‑sharing amount, and an OON provider cannot send a balance bill for emergency treatment performed at an in‑network hospital. HealthInsurance.org’s glossary repeats this protection. However, the act explicitly does not extend these protections to non‑emergency services delivered at an OON facility. Department of Labor guidance on surprise expenses leaves room for separate facility fees that are not classified as “provider” charges. These carve‑outs are the legal footholds hospitals now exploit.
How do separate facility fees undermine the promise of “no surprise bills”?
When an ER visit occurs at an in‑network hospital, the hospital itself can still bill a facility fee that is distinct from the physician’s professional fee. Because the No Surprises Act’s ban applies only to “out‑of‑network providers,” the hospital’s facility charge slips through the statutory net. Patients therefore receive a bill that looks like a surprise balance bill, even though the hospital is technically an in‑network entity. Before the act, insurers often failed to cover any portion of OON costs, leaving patients with the full bill. CMS fact sheet on surprise billing shows how the new law fixed provider charges but left the facility‑fee loophole untouched, allowing hospitals to recoup revenue by billing the patient’s deductible or coinsurance on a line item the patient never saw coming.
Why do out‑of‑network anesthesiologists and radiologists still appear in “in‑network” ER visits?
Even when the ED physician is in‑network, hospitals can contract with OON specialists—most commonly anesthesiologists and radiologists—who render services that are bundled into the overall encounter. Because the No Surprises Act only bars OON providers from sending balance bills for emergency treatment, it does not forbid a hospital from using OON specialists and then passing their professional fees to the patient as a separate charge. Department of Labor guidance makes clear that the act’s protections do not cover non‑emergency services provided by an OON provider at an OON facility, and the same logic can be stretched to ancillary services that are technically “non‑emergency” even though they occur during an emergency encounter. Third Way’s analysis of non‑emergency surgeries shows that the law limits OON billing only when the service is clearly non‑emergency. An ER scan or procedural sedation is rarely classified as “non‑emergency” in the regulatory language, leaving a gray zone that hospitals exploit to slip OON specialist fees onto the patient’s statement.
What role do “consent‑to‑treat” waivers play in the loophole game?
Many hospitals require patients to sign a generic “consent to treat” form upon admission to the ED. These waivers often contain fine‑print stating that the patient acknowledges the possibility of receiving services from OON providers and agrees to be billed accordingly. Because the signature is interpreted as informed consent, insurers and hospitals argue that the No Surprises Act’s ban does not apply—the patient “agreed” to the arrangement. The CMS fact sheet emphasizes that surprise billing occurs when patients are unaware of OON involvement. Department of Labor guidance shows how the consent waiver shifts the burden of awareness onto the patient, undermining the consumer‑protective intent of the law. No existing guidance directly addresses this consent loophole, which is why it has proliferated unchecked.
What enforcement actions and legislative fixes are needed?
Closing these gaps requires a two‑pronged approach: stricter enforcement of the existing ban and an explicit amendment that bans any ancillary OON billing in emergency settings. First, CMS should expand its 2023 guidance to treat facility fees as “provider charges” for the purposes of the No Surprises Act, thereby extending the balance‑bill prohibition to any line item a patient cannot separate from the professional service. Second, regulators must issue a rule that disallows hospitals from inserting OON anesthesiologists, radiologists, or other ancillary specialists into an emergency encounter without prior patient consent that is clearly disclosed and separately billed. Third, consent‑to‑treat forms should require a plain‑language statement that any OON services will be covered under the act’s protections, giving patients a real choice to decline such services without jeopardizing emergency care. Finally, a statutory amendment—mirroring proposals from consumer‑advocacy groups—should outlaw any balance bill for all charges associated with an emergency department visit, including facility fees, regardless of who renders the service. Only with these concrete steps can the No Surprises Act fulfill its promise and stop patients from being blindsided by hidden ER bills.
If you’ve recently received an unexpected ER balance, share your story below. Do you think the current law is enough, or is a stricter ban on ancillary billing the only solution?