Waive-ing goodbye: consenting to out-of-network care under the No Surprises Act

Patients can be asked to consent to out-of-network care from certain providers under the No Surprises Act. That could be an expensive decision.

Signing a consent form to out-of-network treatment could expose consumers to large costs.
Signing a consent form to out-of-network treatment could expose consumers to large costs.

Guest Author: Brian Atkins, George Washington University Law School, JD 2023 (Summer 2021 U.S. PIRG Health Care Campaigns Intern)

If you’ve ever been to the hospital, you’ve likely felt the weight of the stack of admissions forms heavier than The Lord of the Rings. The forms, injected with medical and legal jargon, require “consent” for everything from treatment to paying bills. Between confusion over the consent forms and the anxiety of whatever health condition brought you into the hospital, it’s not surprising you just want to swiftly sign the forms so you can move forward with your treatment. 

But consent forms are serious business. When someone consents, it means they are handing their own power over to someone else. This is why consumer advocates are carefully watching how consent is defined in the new federal No Surprises Act, which goes into effect in January, 2022. The law will protect patients from most surprise medical bills for unexpected out-of-network care at in-network medical facilities, or in emergencies. However, the law includes provisions which allow patients to waive those hard-won consumer protections. If the regulations are poorly written, the consent provisions could be abused and these protections will end up on the surgical suite floor.

Regulators should ensure that consent forms allowing out-of-network care will provide clear information about the surprise billing protections the patient will forfeit if they sign them. The consumer should know exactly which providers are offering the out-of-network treatments and the attached costs. In addition to clear, complete information, a reasonable time frame in which to consider that information should also be mandatory. Consent forms often aren’t provided until the day of surgery when the patient is already prepped and in a hospital gown. When possible, consent forms should be in the patient’s hands before they touch a hospital bed. Any other situation will often result in a quick glance and swift signature. We need to recognize consent as legally defined:  a voluntary agreement or acquiescence, by a person with mental capacity not under duress or coercion.  

That’s why PIRG is asking regulators to ensure the consent provisions in the No Surprises Act do not pressure patients to waive their surprise billing protections. 

As currently written in the No Surprises Act, certain out-of-network providers may ask patients to consent to out-of-network care, meaning the patient will be responsible for paying more than their usual in-network cost sharing amounts. The law stipulates that consent must be in writing, include a good-faith out-of-network cost estimate, and provide a list of alternative in-network providers. If a patient signs a consent waiver, the out-of-network provider is allowed to send a balance bill (the difference between what insurance paid and what the doctor charged). Patients are then financially liable for significantly more than if they had insisted on care by an in-network provider. Those additional costs include an increased co-insurance amount as well as the remaining out-of-network charge that the insurer has not paid.

The required good-faith estimate should concern patients and regulators alike. Because the law does not make this estimate a binding contract, patients could end up paying more than advertised. The regulations need to clearly define “good faith estimates” to ensure low-ball amounts don’t lure patients into signing away their rights. Consent forms must be clear enough that the patient fully understands the additional financial obligations could incur if they will be incurring if they choose to waive their surprise billing protections.

Congress recognized the potential for abuse of consent provisions when it wrote the No Surprises Act. That’s why certain providers, such as anesthesiologists, radiologists, and hospitalists, are prohibited from requesting patient consent at all. Lawmakers recognized that many patients, especially in emergencies, would sign any form if it means getting the testing or anesthesia their conditions require. The law still allows many other providers to ask patients to consent to out-of-network, non-emergency services at their in-network facility, however. Although patients are never required to consent in these situations, if they don’t, the patients will have to say “no” to the doctor in front of them and wait for however long until an absent in-network doctor can provide care. This system needs reconstructive surgery.

Regulators have the unenviable task of writing rules for the No Surprises Act in a way that allows consumers to choose and consent to out-of-network care for those rare instances when it makes sense— a previous relationship with the doctor, a highly-regarded practitioner, etc. But the consent provisions of the law open a potentially broad loophole for providers to get patients to agree to give up their surprise billing protections and open the door to an expensive out-of-network bill. Regulators must narrow that opening to ensure consumers benefit from the protections in No Surprises Act. 
Photo by Cytonn Photography on Unsplash


Patricia Kelmar

Senior Director, Health Care Campaigns, PIRG

Patricia directs the health care campaign work for U.S. PIRG and provides support to our state offices for state-based health initiatives. Her prior roles include senior policy advisor at NJ Health Care Quality Institute, associate state director at AARP New Jersey and consumer advocate at NJPIRG. She was appointed to the Ground Ambulance and Patient Billing Advisory Committee in 2022 and works with patient advocates across the U.S. Patricia enjoys walking along the Potomac River and sharing her love of books with friends and family around the world.