Answers / Notice and consent
Notice and consent under the No Surprises Act: when balance billing is still legal
An out-of-network provider at an in-network facility can balance bill a protected patient only if the patient signs the standard notice-and-consent form at least 72 hours before a scheduled service, or at least 3 hours before a same-day service. Consent is never valid for emergency services or for ancillary specialties like anesthesiology, pathology, radiology, neonatology, assistant surgeons, hospitalists, and intensivists.
What the exception is for
The No Surprises Act leaves one legal path to balance billing at an in-network facility: the patient knowingly chooses an out-of-network provider and signs away the protection in advance. Think of the surgeon a patient specifically wants despite network status. The law treats that as a real choice only when it is informed, early, and documented on the government's standard form.
The timing rule
Notice must be given, and consent signed, at least 72 hours before the appointment. If the patient schedules the service within 72 hours of when it happens, the notice must come at least 3 hours before the service. Consent obtained in the gown, on the gurney, or after the fact is void. The notice must include a good faith estimate of the charges, name the in-network alternatives where they exist, and state that consent is optional and care cannot be conditioned on signing.
Who can never use it
Consent is impossible in two situations. Emergency services before stabilization: the law does not let a patient waive those protections at all. And the ancillary specialties at in-network facilities, the clinicians a patient never chooses: anesthesiology, pathology, radiology, neonatology, assistant surgeons, hospitalists, intensivists, and diagnostic services including lab and imaging. For these, a signed form changes nothing, and billing the patient anyway is a violation carrying penalties up to $10,000.
Consent is also invalid for unforeseen or urgent services that arise during a consented visit, and at facilities with no in-network alternative, because the choice the form is supposed to represent never existed.
Paperwork and retention
Use the standard notice-and-consent document issued by HHS, meet the language access requirements, give the patient a copy, and retain the signed consent for at least 7 years. A consent you cannot produce is a consent that does not exist.
What this means for revenue
For the never-waivable specialties, the patient can never owe more than in-network cost sharing. Revenue on protected claims is decided between you and the plan, and when the plan underpays, the No Surprises Act's arbitration process is the recourse. The published record runs 85.8 percent in providers' favor, so losing the patient as a payment source has cost far less than most groups feared, provided someone actually files the disputes.
Protected claims still get paid
When consent is off the table, underpayment disputes go to federal arbitration. Lido IDR runs them for a flat fee per arbitration. Talk to an IDR specialist.