No Surprises Act Resource Center

All healthcare providers and health care services, both emergency and non-emergency, are impacted by NSA. NSA does not apply to Medicare and Medicaid programs because patients must use a contracted provider under these programs. 

This is predicated on how the explanation of benefits (EOB) is returned. Providers should not bill the patient if the EOB returns with a contractual obligation denial code (CO). If the EOB returns with a patient responsibility denial code (PR), providers can bill that amount. While out-of-network (OON) payors should return the EOB with a PR denial code, sometimes providers who are unable to secure direct contracts are contracted under a third-party administrator with the payor and could receive a CO denial prohibiting billing.

Providers are only required to obtain patient consent when balance-billing the patient the out-of-network rate, which is greater than the payor in-network allowable. Patient consent can only be obtained for non-emergency services. The consent exception does not apply to ancillary services.  

No, under the No Surprises Act, ancillary services, including pathology, laboratory, and radiology, which individuals typically have little control over, are always subject to balance billing prohibitions. 

Good faith estimate (GFE) should include items or services reasonably expected to be furnished by both primary and co-provider. For example, when getting surgery, a good faith estimate should consist of the cost of the surgery, any lab services or tests, and the anesthesia used during the operation. HHS has recognized that this may take some coordination between the primary and co-providers and therefore, will exercise enforcement discretion on GFE that do not include all services until December 31, 2022.

Patient eligibility and estimation tools, such as XiFin’s patient estimation tool, can be embedded into the provider’s website so the patient or referring provider can check fees upfront. This tool is predicated on having the correct fee schedules loaded. 

Initially, payors may not have the appropriate logic built into their system to provide the in-network patient responsibility rate on the EOB. Therefore, providers should update the billing process for out-of-network payors. Providers should work with payors proactively to establish an in-network rate, update fee schedules to ensure the in-network rate is billed for out-of-network charges, and review payment and/or denials from out-of-network payors.

Yes, providers may also want to post on their websites a list of insurance providers they are contracted with and encourage patients and referring providers to contact you directly to determine the status of a payor not listed on your website. Providers should also review payor websites to ensure they are listed appropriately on the payor website as an in-network provider. This will allow patients to quickly determine a provider’s contracted status with an insurance provider. 

In the XiFin RPM billing platform, fee schedules are assigned by Payor ID. Non-Contracted is a payor group that houses any Payor ID that is out-of-network, and each payor ID can have its own fee schedule.

The NSA established an Independent Dispute Resolution(IDR) process to determine out-of-network payment between the provider and payor. The provider or plan has a 30-day window from the day the provider “receives an initial payment or notice of denial of payment” from the plan to initiate the open negotiation period. If the provider and plan cannot reach an agreement by the end of the 30-day open negotiation period, the plan or provider may initiate IDR. 

NSA requirements include no balance billing for air ambulance services, out-of-network emergency services, and non-emergency services by nonparticipating providers at certain participating healthcare facilities, including hospital outpatient departments, critical access hospitals, and ambulatory surgical centers.  

Under the No Surprises Act, the out-of-network rate is determined by a hierarchy of factors, including state laws, an agreement between provider and payor, and an independent dispute resolution process. Providers, while out-of-network, may have a relationship with the payor and can determine the in-network rate by contacting the payor directly. If unable to obtain directly from the payor, providers can also calculate the average in-network rate by analyzing the rate from contracted payors. While this option is not as specific as working with the payor directly, it will provide a starting point. If a provider would like to dispute the payor denial or payment, they can initiate an independent dispute resolution process.

For non-emergency services, when balance billing the patient for out-of-network services above the payor allowable, providers of the service are required to obtain patient consent.

A good faith estimate (GFE) is required when obtaining consent or providing services for the uninsured. GFE should include items or services reasonably expected to be furnished by both primary and co-provider.

Eligibility and patient responsibility tools, if available, are the most efficient way of providing good faith estimates. XiFin RCM clients can embed the patient responsibility estimator into their website to provide direct access for the patient or referring provider.

This may trigger the patient to call the insurance or healthcare provider. Having a customer service workflow process in place will help representatives handle patient phone calls.

Prior to the national legislation, several states implemented legislation to address surprise billing. The No Surprises Act does not overrule state law. Some states may have additional requirements in addition to the national legislation.

Under NSA, any out-of-network healthcare cost will be applied to a patient’s in-network deductible and out-of-pocket maximum.

There are statutory and regulatory requirements relating to the consent form required under the No Surprises Act. CMS has developed standard notice & consent forms regarding consumer consent on balance billing protections.

NSA, established a patient-provider dispute resolution (PPDR) process, that can be initiated by the patient when actual billed charges are in excess of the good faith estimate by $400 or more. There is a $25 fee to use the dispute process and the process must be initiated within 120 calendar days from the date on the original bill.   

The party whose offer was not chosen during the independent dispute resolution (IDR) process pays the costs of IDR. The estimated associated cost relating to the IDR process is between $200 and $670, in addition to the $50 administrative.