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Federal Register / Vol. 86, No. 131 / Tuesday, July 13, 2021 / Rules and Regulations
beneficiary, or enrollee is able to travel using nonmedical transportation or nonemergency medical transportation to an available participating provider or facility located within a reasonable travel distance, taking into account the individuals medical condition. The attending emergency physicians or treating providers determination is binding on the facility for purposes of this requirement.
2 The provider or facility furnishing such additional items and services satisfies the notice and consent criteria of 149.420c through g with respect to such items and services, provided that the written notice additionally satisfies paragraphs b2i and ii of this section, as applicable. In applying this paragraph b2, a reference in 149.420 to a nonparticipating provider is deemed to include a nonparticipating emergency facility.
i In the case of a participating emergency facility and a nonparticipating provider, the written notice must also include a list of any participating providers at the facility who are able to furnish such items and services involved and notification that the participant, beneficiary, or enrollee may be referred, at their option, to such a participating provider.
ii In the case of a nonparticipating emergency facility, the written notice must include the good faith estimated amount that the participant, beneficiary, or enrollee may be charged for items or services furnished by the nonparticipating emergency facility or by nonparticipating providers with respect to the visit at such facility including any item or service that is reasonably expected to be furnished by the nonparticipating emergency facility or nonparticipating providers in conjunction with such items or services.
3 The participant, beneficiary, or enrollee or an authorized representative of such individual is in a condition to receive the information described in 149.420, as determined by the attending emergency physician or treating provider using appropriate medical judgment, and to provide informed consent under such section, in accordance with applicable State law.
For purposes of this section and 149.420, an authorized representative is an individual authorized under State law to provide consent on behalf of the participant, beneficiary, or enrollee, provided that the individual is not a provider affiliated with the facility or an employee of the facility, unless such provider or employee is a family member of the participant, beneficiary, or enrollee.

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4 The provider or facility satisfies any additional requirements or prohibitions as may be imposed under State law.
c Inapplicability of notice and consent exception to certain items and services. A nonparticipating provider or nonparticipating facility specified in paragraph a of this section will always be subject to the prohibitions in paragraph a of this section, with respect to items or services furnished as a result of unforeseen, urgent medical needs that arise at the time an item or service is furnished, regardless of whether the nonparticipating provider or nonparticipating emergency facility satisfied the notice and consent criteria in 149.420c through g.
d Retention of certain documents. A
nonparticipating emergency facility with respect to such facility or any nonparticipating provider at such facility that obtains from a participant, beneficiary, or enrollee of a group health plan or group or individual health insurance coverage or an authorized representative of such an individual a written consent in accordance with 149.420e, with respect to furnishing an item or service to such an individual, must retain the written notice and consent for at least a 7-year period after the date on which the item or service is so furnished. If a nonparticipating provider obtains a signed consent from a participant, beneficiary, or enrollee, or such individuals authorized representative, the provider may either coordinate with the facility to retain the written notice and consent for a 7-year period, or the provider must retain the written notice and consent for a 7-year period.
e Notification to plan or issuer. In the case of a participant, beneficiary, or enrollee who is stabilized and furnished additional items and services described in 149.110c2ii, a nonparticipating provider or nonparticipating emergency facility must notify the plan or issuer, respectively, when transmitting the bill for such items and services, either on the bill or in a separate document, as to whether all of the conditions described in paragraph b of this section are met with respect to each of the items and services for which the bill is submitted, and if applicable, provide to the plan or issuer a copy of the signed written notice and consent document described in paragraph b2 of this section.
f Applicability date. The provisions of this section are applicable with respect to emergency services furnished during a plan year in the individual market, policy year beginning on or after January 1, 2022.

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149.420 Balance billing in cases of nonemergency services performed by nonparticipating providers at certain participating health care facilities.

a In general. A nonparticipating provider of a group health plan or group or individual health insurance coverage who provides items or services other than emergency services for which benefits are provided under the plan or coverage at a participating health care facility must not bill, and must not hold liable, a participant, beneficiary, or enrollee of such plan or coverage for a payment amount for such an item or service furnished by such provider with respect to a visit at the facility that exceeds the cost-sharing requirement for such item or service as determined in accordance with 26 CFR 54.9816
5Tc1 and 2, 29 CFR 2590.717
1c1 and 2, and 149.120c1 and 2, as applicable, unless the provider or the participating health care facility on behalf of the provider satisfies the notice and consent criteria of paragraph c of this section.
b Inapplicability of notice and consent exception to certain items and services. The notice and consent criteria in paragraphs c through i of this section do not apply, and a nonparticipating provider specified in paragraph a of this section will always be subject to the prohibitions in paragraph a of this section, with respect to the following services:
1 Ancillary services, meaning i Items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, whether provided by a physician or non-physician practitioner;
ii Items and services provided by assistant surgeons, hospitalists, and intensivists;
iii Diagnostic services, including radiology and laboratory services; and iv Items and services provided by a nonparticipating provider if there is no participating provider who can furnish such item or service at such facility.
2 Items or services furnished as a result of unforeseen, urgent medical needs that arise at the time an item or service is furnished, regardless of whether the nonparticipating provider satisfied the notice and consent criteria in paragraph c of this section.
c Notice and consent to be treated by a nonparticipating provider. Subject to paragraph f of this section, and unless prohibited by State law, a nonparticipating provider satisfies the notice and consent criteria of this paragraph c with respect to items or services furnished by the provider to a participant, beneficiary, or enrollee of a group health plan or group or individual
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