No Surprises Act

Updated: Aug 5



Effective January 1, 2022, the No Surprises Act grants US healthcare consumers new billing protections when receiving emergency care, non-emergency care from out-of-network providers at in-network facilities, and air-ambulance services from out-of-network providers. While these new rules are designed to protect individuals and restrict excessive out-of-pocket costs by essentially eliminating balance billing, out-of-network providers must now adhere to these new guidelines in order to ensure maximum reimbursement for the medically necessary services they provide to their patients.


Second Interim Final Rule


Government agencies published a second Interim Final Rule in October 2021, explaining the procedures that out-of-network providers should follow in the event of a payment dispute with a health plan.


Open Negotiation Period


Upon the receipt of an initial underpayment for services or denial of service coverage from a health plan, an out-of-network provider may elect to file a notice of open negotiation period. This open negotiation period lasts for thirty (30) days, during which time the out-of-network provider and health plan may come to terms on a mutually acceptable out-of-network payment rate for the services at issue. Should the parties fail to come to terms during the open negotiation period, either the out-of-network provider or the health plan may begin the independent dispute resolution (“IDR”) process.


Qualifying Payment Amount (QPA)


Currently, the Department of Health and Human Services, the Department of Labor, and the Department of Treasury have certified eight (8) IDR entities to adjudicate out-of-network rate disputes (number of IDR entities subject to change upon rolling government certification). These IDR entities will enter the arbitration process presuming that the Qualifying Payment Amount (“QPA”) is the appropriate out-of-network rate for the service(s) in dispute. The QPA is calculated as the median of an insurer’s contracted rate in the same geographic region within the same insurance market.


Arbitration Procedure


The second Interim Final Rule calls for a “baseball-style” arbitration. This means that both the out-of-network provider and the health plan will present a figure during the arbitration proceeding that they believe is appropriate. The arbitrator must then select one of the proposed rates, in most cases the reimbursement amount closest to the QPA, to apply to the services in dispute. It is important to note that the Final Rule calls for the “loser” of the proceedings to pay for the administrative costs of the proceeding, and that the moving party will be unable to enter into arbitration with the same entity regarding the services at issue for ninety (90) days after the final IDR decision is entered.


For more information on how the No Surprises Act affects out-of-network provider reimbursement for services, or for representation in rate negotiations or arbitration proceedings, contact the experienced attorneys at Abril Law for a free consultation.


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