QUESTION:
This past weekend, a patient presented to the emergency room with an injury that required immediate surgery.  Our hospital was out of the patient’s network, so when it was determined that the patient was stable, we offered them the option to be safely transferred by ambulance (per doctor’s orders) to a hospital that is down the street and in-network.  However, the patient declined this offer and chose to remain at our hospital for the duration of their care.  Can we give the patient a written notice and get them to consent to waive their protection under the No Surprises Act, which would allow us to balance bill them for any subsequent post-stabilization services during their stay?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
At this point, the answer is no.  Under the No Surprises Act (“NSA”), the hospital is prohibited from balance billing patients for emergency services even if the patient signs a consent waiving their protections under the NSA for such services.  Generally, post-stabilization services are also considered emergency services under these new rules.

However, in certain circumstances, an out-of-network provider or facility may provide notice to and get written consent from a patient that would waive their balance billing protections for post-stabilization services.  For this to occur, the following requirements must be met:

(1)        the patient is stable enough to travel using nonemergency medical transport to an available in-network provider/facility and that provider/facility is within reasonable traveling distance considering the patient’s condition;

(2)        the patient or their representative is in a condition where they can receive information and provide informed consent;

(3)        the hospital provides written notice and obtains written consent from the patient to waive their balance billing protections; and

(4)        the hospital is in compliance with all relevant state laws.

At this point, the patient requires medical transportation via ambulance in order to travel.  As such, the patient cannot receive notice or give consent to waive their balance billing protections under the NSA.  The hospital is prohibited from balance billing the patient for any post-stabilization services provided to the patient during their stay so long as that requirement is not met.  If, however, there comes a time when the patient can be safely transferred to another hospital through means other than medical transport, but the patient wishes to remain at your hospital, then you may consider providing notice and getting written consent from the patient to waive their protections so long all other notice and consent requirements mentioned above are met.