Surprise Billing - Out-Of-Network Provider Notice

The Consolidated Appropriations Act (CAA) of 2021 requires that patients be held responsible for only in-network cost sharing amounts, including deductibles, in emergency situations and certain non-emergency situations where patients do not have the ability to choose an in-network provider (including air ambulance providers) as of January 1, 2022. The provision also prohibits out-of-network providers from balance billing except in limited circumstances where the out-of-network (OON) provider has provided notice and obtained consent from the patient. 

OON providers/facilities are required to notify the plan/issuer when applicable notice and consent criteria are met along with a copy of the signed documents, so that the plan/issuer is aware of when balance billing and in-network (INN) cost-sharing protections do and do not apply to be able to process the claim correctly.

Examples of how to submit member consent are described below for both electronic and paper claim submissions:

Electronic (837) claims   

  • Set the Claim Line level valid value:
    • L2300 PWK01 (Member Consent Indicator) when value = ‘CK’
    • L2300 PWK02 (Attachment Transmission Code)
    • L2300 PWK06 (Attachment Control Number)

Paper claims

  • Consent must be attached to the claim itself

If this information is absent/not provided, the plan/issuer is required to assume the individual has not waived Surprise Billing act protections.

If an OON provider isn’t satisfied with a payment on items or services subject to Surprise Billing, they can first initiate a negotiation with the plan and, failing that, pursue binding independent dispute resolution (IDR). Through this process, the parties submit their respective offers and other required information, and the IDR entity selects one of the parties’ offers as the outcome, which determines whether any additional amount will be paid to the provider. Please see for more information.

Nothing in this notice shall constitute legal advice or be legally binding on the plan, issuer, or provider. Notice and Consent Exception requirements for providers/facilities outlined in detail in CMS-9909-IFC, p124-148, including details around timing, content, authorized representatives, and notification to plan/issuer.