Surprise Billing and No Surprises Act Implementation

Background

As passed by Congress in 2020, the No Surprises Act (NSA) is a law that exempts patients from surprise medical bills for certain out-of-network services they received and creates an equitable independent dispute resolution (IDR) process to resolve payment disputes between healthcare providers and insurers.

The initial regulations issued by federal agencies to implement the NSA were problematic because they ignored the law’s intent in establishing the IDR process. The process was to use a qualified payment amount (QPA) and median in-network rate determined by payers that were equally weighted. However, the regulations made the QPA the primary factor, creating a benchmark payment that is set by insurers. This has been shown to result in narrower provider networks, drastic imaging reimbursement cuts regardless of network status and reduced patient access to care. Other challenges implementing the NSA include high IDR administrative fees and strict batching rules for IDR claims.

Efforts to improve the implementation of the NSA are ongoing and continue at the judicial, regulatory and legislative levels.

Legal Challenges

The ��®, American College of Emergency Physicians and American Society of Anesthesiologists sued the federal agencies to block parts of the regulations implementing the NSA.

�� joined the Texas Medical Association (TMA) as a friend of the court in additional lawsuits TMA filed challenging the QPA methodology; a cost-prohibitive increase in the fee to participate in the IDR process; and unreasonable regulations related a provider batching together similar claims in the IDR process.

The No Surprises Act

�� members who provide out-of-network patient care and/or care to uninsured or self-pay patients must be aware of their obligations under the No Surprises Act as implemented.

Key Provisions

Bans balance billing for out-of-network emergency care until the patient can consent and safely be moved to an in-network facility.

Bans balance billing for scheduled out-of-network services at an in-network facility when the patient has not been notified or provided consent.

Prohibits insurers from assigning higher deductibles (and other cost sharing) to patients for out-of-network care than they do for in-network care without patient notification and consent.

Requires providers to give patients a good-faith estimate of the cost of services provided to uninsured and self-pay patients in advance of the patient’s appointment.

What Does This Meanfor Radiologists?

When out-of-network care is rendered in in-network facilities:

Radiologists can only charge for patient cost sharing, calculated based on the median in-network qualified payment amount for similar plans and services in that geographic area.
Balance billing of the patient for any other cost is prohibited.

The law does not specify amount the insurer must pay. The plan pays what it believes is the correct amount.
If the physician disagrees with the payment, he/she can dispute the amount following a 30-day open negotiation period.

IDR is an arbitration process in which an outside entity determines a fair payment. This is a “baseball-style” process, like an arbitrator getting competing offers and deciding the salary an athlete will earn.

Radiologist submits payment claim
Radiologist submits claim to patient’s insurer. Patient pays only for costs of (as if it were) in-network care and exits payment process.
Insurer underpays radiologist
Physician/group can dispute the amount during a 30-day open negotiation period.
Radiologist takes insurer to IDR
If no resolution during the open negotiation period, either party can use an online portal to start the IDR process and select an arbiter from a pre-vetted list of entities. Both parties must pay an administrative fee and the IDR entity fee up front ($200–500 for one claim; $268–670 for batched claims of similar services with the same insurer).
IDR submission
Each party submits an offer of reasonable payment within 10 days. Offer must include:
- Calculated QPA (provided by the insurer).
- Size of physician practice.
- Physician/practice specialty.
The offer may also include:
- Physician training and experience.
- Complexity of procedure or medical decision making.
- Patient's acuity.
- Market share of health plan and physician/group.
- Whether care was provided at a teaching facility.
- Scope of services.
- Any good faith efforts to agree on payment amount.
- Contracted rates from the prior year.
Independent review
Arbiter evaluates both submissions and chooses one of the two payment amounts within 30 business days. No third payment option is allowed.
IDR loser pays fees
The losing party must make the other side whole and pay for the IDR fee within 30 calendar days. The winner’s filing fee is refunded within 30 business days. This federal IDR process outlined above only governs disputes for which no specified state law applies (see section below).

Key �� Wins

February 2022

The TMA won its NSA lawsuit against the government over the IDR rules. As a result, ��, ASA and ACEP withdrew original lawsuit and supported TMA efforts in subsequent suits.

February 2023

The court ruled for TMA, and the medical community in “TMA II” case, stating that the IDR rules still violated the NSA.

August 2023

A decision for “TMA IV” was issued, and the court held that the IDR administrative fee increase and batching rules violated federal law. Shortly after, CMS announced the repeal of the 600% IDR administrative fee increase and the $350 fee was reduced back down to $50.

August 2023

A decision was reached in the TMA II appeal — the court upheld the district court’s decision for TMA (and ��), ruling that the government’s revised IDR regulations still — and improperly — put a “thumb on the scale” for the QPA. The federal government appeals process continues in TMA III (a challenge on QPA methodology) and the tri-agencies of HHS, Labor and Treasury plan to issue a final rule on claim batching guidelines.

Late 2023

CMS proposed new IDR fee and batching rules in late 2023 — some positives but will continue to be problematic for some radiologists. The updated batching guidelines have yet to be finalized.

December 2023

CMS finalized to set IDR administrative fee to $115 per party for disputes started on or after Jan. 22, 2024. There were no proposed increases to the fees for 2025.

2024

Legislation to strengthen compliance with provisions of the NSA was introduced in 2024 by Congressman Greg Murphy, MD (R-NC-03), Congressman Raul Ruiz, MD (D-CA-25), Congressman John Joyce, MD (R-PA-13), Congresswoman Kim Schrier, MD (D-WA-08) and Congressman Jimmy Panetta (D-CA-19). The No Surprises Enforcement Act (HR 9572) would financially penalize health insurance companies that fail to pay physicians within 30 days of the conclusion of the IDR process.

State Balance Billing Laws

For patients insured by a state-regulated insurance plan,(such as employer-sponsored commercial plans:

If the state has a balance billing law deemed by the federal government as meeting certain criteria, the state law will govern the out-of-network payment amount and IDR process (if any exists in that state).
If a state does not have a qualifying law the federal law’s initial payment and IDR process will apply.

For federally regulated insurance plans (such as ERISA/employer self-funded or federal marketplace plans under the Affordable Care Act), the federal law’s initial payment and IDR process applies. Note: In some states, ERISA plans are allowed to opt into the state law.

The federal government has designated many states as having a qualifying law.

Physician Disclosure Requirements

Physicians/groups eligible under the No Surprises Act must inform patients of new balance billing protections in three ways:

Display prominently at facility.
As a fact sheet given to patient in person, or via mail, or email — the fact sheet can be created using a (see last page at link).
On a public website.

For emergency care, your hospital can take responsibility for the first two requirements if your practice/group and your hospital have a written agreement in place. It is recommended that the sheet be provided to the patient at the place and time of care.

If your hospital does not assume this responsibility, you must provide the disclosure fact sheet to the patient at or before you collect cost-sharing payment from them, or before filing a claim with the patient’s insurer.

Note: Your group is responsible for the third requirement and the disclosure notice must be posted on your group’s website, if your group has one.

Good Faith Estimates

The No Surprises Act requires clinicians providing non-emergency care to provide good faith estimates of services when care is scheduled at least 72 hours in advance or upon request from individuals who are uninsured or self-pay. You do not need to issue a good faith estimate for emergency radiologic care.

For more provider-specific guidance,

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