Top Issues for No Surprises Act Compliant Health Care Billing Practices | Manatt, Phelps & Phillips, LLP


The federal No Surprises Act (NSA), which went into effect January 1, 2022, represents a huge shift in the financial practices of healthcare patients. At the heart of the NSA is a ban on offline providers from charging commercially insured patients more than networked cost sharing in three surprise medical billing situations: emergency services at an independent hospital emergency department (ED) or independent ED; some offline non-emergency services in a networked hospital or outpatient surgery center (ASC); and air ambulances.

When NSA is activated, the patient is charged for internal network cost sharing, and if the off-network provider is not satisfied with the plan payment amount, the provider can arbitrate the payment amount in a new independent resolution dispute resolution (IDR) procedure, if state law does not establish an offline reimbursement methodology. Below are three main areas that suppliers and facilities need to know.1

1. Good Faith Estimates for Uninsured and Self-Paying Patients

According to the NSA, providers’ responsibilities for a good faith estimate (GFE) for uninsured and self-paying patients vary depending on whether they serve as a “summoning” provider or a “joint health care provider.” A summoning healthcare worker (or facility) is one who receives an initial request for a GFE or who is responsible for scheduling the primary service. A health care co-provider (or facility) is one, other than the calling provider or facility, who provides items or services in conjunction with the primary service.2

Within one business day of scheduling a service or requesting an GFE, the convened provider or facility is required to request estimates from each co-provider or co-facility that is expected to provide services in relation to the convened provider’s or facility’s services. . An uninsured or self-paid patient can dispute any invoice that exceeds the amount listed for the provider or facility in the GFE by more than $ 400.3 Once the arbitrator has notified the supplier of the dispute resolution process, the supplier or facility has ten business days to provide a copy of the disputed GFE and invoice and any documentation that the difference was based on an item or service medically necessary that could not reasonably have been foreseen when the GFE was provided.

2. Patient Consent for Offline Billing

Sometimes an offline bill doesn’t come as a surprise. The NSA recognizes this and establishes rules that allow providers outside the network to obtain patient consent to waive the protections of the NSA.

The NSA ban on balance billing applies only to services rendered in an independent independent hospital, ED, or ASC. The NSA provides no balance billing protection for services in other settings or for no emergency services in off the net structures.

In situations where a patient has a real choice to use a network provider or an off-network provider in an internal-network hospital or ASC, an off-network provider may obtain patient consent to waive NSA protections and accept the full amount charged. This is also the case for post-stabilization services following emergency services.

The Department of Health and Human Services (HHS) has developed a standard notice and consent form that non-participating providers must use to obtain account balance consent, unless a state has developed its own form that satisfies federal requirements.4

3. IDR of the Offline Reimbursement Health Plan

Providers who are subject to the NSA’s ban on balance billing (and do not obtain patient consent to waive NSA protections) have the opportunity to arbitrate offline reimbursement of the health plan in the new IDR process. The federal IDR process only applies when state law does not stipulate the offline reimbursement rate and the payer and provider have not agreed on a rate.

The NSA requires “baseball style” arbitration: the IDR entity must select one of the bids presented by the health plan or provider; he cannot split the difference and create his own payout rate. The IDR entity must consider the Qualified Payment Amount (QPA) and the credible information presented regarding the supplier’s level of training, experience, quality and outcome measures, a party’s market share, all ” Patient acuity or complexity of care, teaching status, case mix, scope of services of the nonparticipating facility, and the history of contracts between the plan and the provider.

The final interim rule establishing the IDR process differed from that standard in that it specified that “the IDR entity must begin with the presumption that the QPA is the appropriate off-grid rate” and “must select the offer closest to the QPA unless the IDR certified entity determines that credible information submitted by either party clearly demonstrates that the QPA differs materially from the appropriate offline rate.5 The Texas Medical Association and several other supplier organizations have filed litigation contesting this aspect of the interim final rules. On February 23, 2022, the first judge to rule on these cases found this aspect of the rules (1) to conflict with the terms of the NSA and (2) to be improperly promulgated under the Administrative Procedure Act. The district court overturned provisions requiring IDR entities to select the offer closest to the QPA unless credible information was presented clearly demonstrating that the QPA differs materially from the appropriate rate.6 On February 28, HHS and the Department of Labor said they would withdraw guidance documents that are based on or relate to invalidated parts of the rules, republish the guidance documents, and provide training to IDR bodies on the revised guide.7 However, the government has challenged the district court’s decision in the United States Court of Appeals, Fifth Circuit, and also said it intends to issue a final rule on the IDR trial shortly.

So, despite all the diligence required to abide by these rules, they may be in the process of changing again.


1 Among other client engagements on the NSA, I have written NSA medical guides for the American Medical Association, which, in part, address similar topics such as this article: American Medical Association Toolkit for Physicians: Preparing for Implementation of the No Surprises Act (2022) and American Medical Association Toolkit for Physicians: Disputing Out-of-Network Payments Using the No Surprises Act Independent Dispute Resolution Process (2022).

2 45 CFR § 149.610 (a) (2) (ii), (iii).

3 45 CFR § 149.620.

4 45 CFR § 149.420 (c), (d), (e). The standard form is available here: https://www.cms.gov/files/document/standard-notice-consent-forms-nonparticipating-providers-emergency-facilities-regarding-consumer.pdf.

5 Requirements relating to surprise billing; Part II, 86 Fed. Reg. 55980, 55984 (October 7, 2021).

6 Texas Med. Ass’n v. United States Department of Health and Human Services, No. 6: 21-cv-425 (ED Tex. 23 February 2022).

7 Centers for Medicare and Medicaid Services, Memorandum on Continuing Protections for Surprise Billing for Consumers (2022).

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