Out-of-network (OON) denials are extremely common — and some of the most legally protected. The No Surprises Act (effective January 1, 2022) created sweeping new federal protections against surprise OON billing, particularly for emergency care. Understanding which protections apply to your situation is the key to a successful appeal.
Emergency Care: The Strongest Protections
Federal law provides the most robust protections for emergency care at out-of-network facilities. Under the No Surprises Act (26 U.S.C. §9816; 29 U.S.C. §1185e; 42 U.S.C. §300gg-111) and pre-existing ACA protections (42 U.S.C. §300gg-19b), your insurer:
- Cannot require prior authorization for emergency care at any facility, in-network or out-of-network
- Must cover emergency services at in-network cost-sharing levels regardless of the network status of the treating facility
- Must calculate your cost-sharing based on the "qualifying payment amount" (generally the plan's median in-network rate)
- Cannot balance bill you for amounts above the qualifying payment amount (for participating providers)
The Prudent Layperson Standard
For emergency care, the standard is the "prudent layperson standard" — not a medical determination made in hindsight. Coverage must be based on whether a prudent layperson with average knowledge of health and medicine would have reasonably concluded that the presenting circumstances required emergency care. The ultimate clinical outcome does not determine whether the situation was an emergency.
This means that if you went to an emergency room with symptoms that reasonably suggested a serious condition — even if it turned out to be less severe than feared — the insurer cannot retroactively deny the visit as non-emergency. Chest pain, severe abdominal pain, difficulty breathing, and similar symptoms qualify as emergencies under the prudent layperson standard.
No Surprises Act: Key Numbers
As of 2022, you cannot be balance billed by out-of-network providers at in-network facilities for emergency care, or by out-of-network providers at in-network facilities for non-emergency care (unless you consent in advance in writing). Violations can be reported to the No Surprises Help Desk at 1-800-985-3059.
Non-Emergency Out-of-Network Denials
Non-emergency OON denials are more complex because there is no blanket federal requirement to cover them at in-network rates. However, several arguments support an appeal:
1. Network Adequacy Failures
Under ACA §1311(c)(1)(B) and 45 CFR §156.235, health plans are required to maintain networks that provide adequate access to covered services. If an appropriate in-network provider with the required specialty was not reasonably accessible, you may be entitled to OON coverage at in-network rates. Document your failed attempts to find an in-network specialist.
2. Continuity of Care Protections
Many states have continuity of care laws that require plans to continue coverage at in-network rates when a provider leaves the network mid-treatment. If your provider recently left your plan's network, research your state's continuity of care requirements.
3. Inaccurate Provider Directory
If you chose a provider based on the plan's provider directory and the provider was subsequently out-of-network (directory error), the No Surprises Act and state laws often provide a remedy. Under 45 CFR §149.410, plans must maintain accurate provider directories, and patients who reasonably rely on a directory listing have protections.
4. Independent Dispute Resolution (IDR)
The No Surprises Act created an Independent Dispute Resolution (IDR) process for disputes between providers and insurers about OON payment amounts. This process is typically between the provider and insurer, but patients benefit from the resolution. You can request information about the IDR process if you're caught in an OON billing dispute.
The No Surprises Act in Detail
The No Surprises Act specifically prohibits surprise billing in these situations:
- Emergency services: OON emergency care must be covered at in-network cost-sharing, no prior authorization required
- Non-emergency at in-network facility: If you receive non-emergency care from an OON provider at an in-network facility, the OON provider cannot surprise bill you (with some exceptions for certain ancillary providers with patient consent)
- Air ambulance services: OON air ambulance from participating insurers is covered at in-network cost-sharing
How to Appeal an OON Denial
- Determine whether this was emergency or non-emergency care
- For emergency care: cite the No Surprises Act and the prudent layperson standard in your appeal
- For non-emergency care: document your attempts to find in-network care, check your state's network adequacy requirements, and verify whether a provider directory error occurred
- Use our Letter Generator — scenarios 5 (OON Emergency) and 6 (OON Non-Emergency)
- File a complaint with the No Surprises Help Desk (1-800-985-3059) if the insurer violated the No Surprises Act
State-Specific OON Protections
Many states have enacted additional protections beyond the No Surprises Act. California, New York, Texas, Florida, New Jersey, and Illinois have particularly strong surprise billing laws. Check with your State Insurance Commissioner for state-specific protections that may apply to your situation.