When Doctors Can Still Bill Patients Under the No Surprises Act: New York and New Jersey Provider Guidance

One of the most common and costly misunderstandings among healthcare providers is the belief that the Federal No Surprises Act completely eliminates the ability to bill patients for out-of-network care. While the law dramatically restricts patient billing, it does not eliminate it entirely. Instead, it creates narrow, highly regulated exceptions that apply only in specific circumstances.

For providers practicing in New York and New Jersey, understanding when patient billing is permitted — and when it is strictly prohibited — is critical to avoiding compliance violations, repayment demands, and civil penalties.

The General Rule: Balance Billing Is Prohibited

As a baseline, the No Surprises Act prohibits balance billing for covered services. When the Act applies, providers may only collect the patient’s in-network cost-sharing amount, regardless of the provider’s network status.

This prohibition applies broadly to emergency services, non-emergency services performed at in-network facilities, and air ambulance services. In these situations, providers must seek reimbursement from insurers rather than patients.

Any deviation from this rule must fall squarely within a legally recognized exception.

The Limited Exception: Valid Notice and Consent

The primary circumstance under which a provider may bill a patient beyond in-network cost-sharing is when the patient voluntarily consents to receive out-of-network care after receiving proper notice. This exception is narrow, highly procedural, and frequently misapplied.

Providers must understand that consent is not presumed. It must be obtained through a formal process that complies with detailed federal requirements related to timing, content, and format.

Strict Requirements for Valid Patient Consent

For consent to be valid under the No Surprises Act, providers must meet several mandatory conditions. The patient must receive advance written notice that clearly explains the provider’s out-of-network status, a good-faith estimate of charges, and available in-network alternatives. The notice must be delivered within a specific time window before the service is rendered.

The patient’s consent must be voluntary, informed, and documented. Blanket consent forms, rushed signatures, or post-service acknowledgments do not satisfy the law. If any element of the notice-and-consent process is defective, the provider loses the ability to bill the patient beyond in-network amounts.

Services That Are Never Eligible for Consent

Even with perfect notice and consent, certain services can never be balance billed under the Act. These include emergency services, post-stabilization services that do not meet strict transfer criteria, and services provided by certain hospital-based specialists such as anesthesiologists, radiologists, pathologists, neonatologists, and assistant surgeons at in-network facilities.

Providers frequently overlook these exclusions, mistakenly believing that consent alone authorizes billing. In reality, attempting to bill for these services is a direct violation of federal law.

Post-Stabilization Services: A High-Risk Area

Post-stabilization care represents one of the most misunderstood areas of the Act. While limited exceptions exist, they require providers to demonstrate that the patient was stable, informed, capable of consenting, and offered a genuine opportunity to transfer to an in-network provider or facility.

In practice, these requirements are difficult to satisfy, particularly in fast-moving clinical environments. Providers who rely on post-stabilization exceptions without careful legal review face significant enforcement risk.

Common Compliance Mistakes by Providers

Many No Surprises Act violations arise from operational failures rather than intentional misconduct. Common mistakes include using outdated consent forms, failing to deliver notice within the required timeframe, misclassifying services as consent-eligible, and assuming hospitals or billing vendors are handling compliance obligations.

Importantly, liability remains with the provider, even when billing or administrative functions are outsourced.

Enforcement Exposure and Financial Consequences

Improper patient billing under the No Surprises Act can result in denied claims, repayment obligations, civil monetary penalties, and regulatory investigation. Providers may also face contractual disputes with payors and reputational harm, particularly when patients file complaints.

Because billing violations are often documented and easily traceable, enforcement actions in this area are increasingly common.

Why Providers Should Seek Legal Review Before Billing Patients

Given the narrow scope of permitted patient billing, providers should treat any attempt to bill beyond in-network cost-sharing as a compliance event requiring careful review. Healthcare counsel can help assess whether consent was valid, whether the service was eligible, and whether billing is defensible under federal law.

Proactive legal guidance is far less costly than responding to enforcement actions after the fact.

Frequently Asked Questions for Providers

Can doctors ever bill patients under the No Surprises Act?
Yes, but only in limited situations where all notice and consent requirements are met.

Is a signed consent form always sufficient?
No. The form must meet strict timing, content, and service-eligibility requirements.

Can emergency services ever be billed out-of-network?
Generally no. Emergency services are broadly protected under the Act.

Are hospital-based specialists treated differently?
Yes. Many hospital-based services are categorically excluded from consent exceptions.

Who is responsible for compliance—the provider or the hospital?
Providers remain legally responsible for their own billing compliance.

Conclusion

While the Federal No Surprises Act does allow doctors to bill patients in limited circumstances, those circumstances are narrow, technical, and heavily regulated. For providers in New York and New Jersey, misunderstanding these exceptions can lead to serious compliance and financial consequences.

Providers that adopt cautious billing practices, maintain compliant consent procedures, and seek legal guidance when uncertainty exists are best positioned to reduce risk while preserving lawful reimbursement.

Mitchell C. Beinhaker, Esq. is a business lawyer and estates attorney who runs a solo legal & consulting practice representing business owners, entrepreneurs, executives, and professionals. Through his 30+ years of experience, Mitchell has handled business development, marketing, firm management, along with business transactional work for clients of the firm. He has extensive experience with corporate governance, commercial transactions, real estate, and risk analysis. Using his years of practical experience, he drafts contracts, negotiates purchases, and can manage outside counsel for any corporate situation. For business owners and executives, he creates and implements estate plans, along with succession plans to help companies continue for future generations.  

Mitchell is the co-author of 10 Ways to Get Sued by Anyone & Everyone:  the small business owners guide to staying out of court, available in paperback and kindle from Amazon.

He is also the host of The Accidental Entrepreneur Podcast, available on YouTube, Amazon, Spotify, Apple and most of the other podcast directories.  You can find audio episodes posted on mitchbeinhaker.com and even purchase merchandise to support the show.

If you need legal help with any of our services, contact our office for a free consultation.  You can email us at info@beinhakerlaw.com.  To learn more about Mitchell and his practice, visit beinhakerlaw.com.