Main problems in complying with the practices for charging for health care according to the Law without surprises

Editor’s note: In a recent article on Healthcare Weeklysummarized below, Manatt Health addresses the challenges of implementing the No Surprise Act (NSA) – and shares three key areas that providers need to focus on to ensure compliance with the new requirements.


The Federal Surprise Act (NSA), which came into force on January 1, 2022, represents a major change in the financial practices of patients in healthcare. At the heart of the NSA is a ban on out-of-network providers charging commercially insured patients more than sharing their costs online in three surprising medical billing situations: hospital emergency department (ED) or independent stand-alone ED; certain non-emergency services that are not urgent in a network hospital or outpatient surgery center (ASC); and air ambulances.

When the NSA is triggered, the patient is charged for sharing costs online and if the offline provider is dissatisfied with the amount of payment under the plan, the provider may arbitrate the amount of payment in a new Independent Dispute Resolution (IDR) process if the government legislation does not specify a methodology for reimbursing costs offline. Here are three key areas that vendors and equipment need to know.1

1. Conscientious assessments for uninsured and self-paying patients

According to the NSA, the responsibilities of providers of good faith assessment (GFE) for uninsured and self-paying patients differ depending on whether they serve as a ‘calling’ provider or a ‘healthcare provider’. The convening healthcare provider (or facility) is the one who receives the initial request for the GFE or who is responsible for planning the primary service. A joint healthcare provider (or facility) is one other than the provider or facility that provides items or services in connection with the primary service.2

Within one business day of scheduling a service or requesting a GFE, the provider or convening facility shall request estimates from each co-provider or joint facility that is expected to provide services related to the services of the provider or convening facility. An uninsured or self-paying patient can challenge any bill that exceeds by more than $ 400 the amount stated for the provider or facility in the GFE.3 After the arbitrator notifies the supplier of the dispute resolution process, the supplier or facility has ten working days to provide a copy of the disputed GFE and the invoice and any documentation that the difference is based on a medically necessary item or service that could not be reasonably expected when a GFE is provided.

2. Patient consent for offline charging

Sometimes an offline account is no surprise. The NSA recognizes this and establishes rules that allow offline providers to obtain the patient’s consent to waive NSA protection.

The NSA’s prohibition on balance charges applies only to services provided in hospital, self-employed EDs or ASCs. The NSA does not provide balancing protection for services in other settings or for emergencies services in offline facilities.

In situations where the patient has a real choice to use a network provider or an off-line provider in a hospital in the network or ASC, the off-line provider is entitled to obtain the patient’s consent to waive NSA protection and accept full charges. This also applies to post-stabilization services after emergency services.

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

3. IDR of the offline recovery health plan

Providers who are subject to the NSA’s ban on balance charges (and do not obtain the patient’s consent to waive NSA protection) have the option to arbitrate the recovery of the off-line health plan in the new IDR process. The federal IDR process only applies when state law does not set an off-line refund rate and the payer and provider have not agreed on a tariff.

The NSA requires baseball-style arbitration: The IDR must choose one of the bids submitted by the health plan or provider; can’t split the difference and build your own payment rate. The IDR must take into account the qualifying payment amount (QPA) and reliable information provided on the level of training of the provider, experience, quality and performance measures, market share of the country, patient severity or complexity of care, teaching status, the combination of cases, the scope of services of the non-participating facility and the history of contracting between plan and supplier.

The provisional final rule establishing the IDR process differs from this standard in that it states that “the IDR entity must start with the presumption that QPA is the appropriate off-line speed” and “must choose the bid closest to QPA, unless the IDR certified entity determines that reliable information provided by either party clearly indicates that the QPA is significantly different from the appropriate off-line speed. “5 The Texas Medical Association and several other provider organizations have filed lawsuits challenging this aspect of the interim final rules. On 23 February 2022, the first judge to rule on these cases ruled that this aspect of the rules (1) was contrary to the terms of the NSA and (2) had been incorrectly promulgated under the Administrative Procedure Act. The district court removed the provisions requiring IDR entities to choose the offer closest to the QPA, unless it is provided with reliable information that clearly shows that the QPA is significantly different from the appropriate rate.6 On February 28, HHS and the Ministry of Labor announced that they would withdraw guidance documents based on or refer to repealed parts of the rules, republish the guidance documents, and provide training to IDR organizations on the revised guidelines.7 However, the government is appealing the district court’s decision to the U.S. District Court of Appeals, Fifth District, and has also said it intends to issue a final rule on the IDR process soon.

So, despite all the effort required to follow these rules, they may be about to change again.


Note: To help you navigate the challenges and complexities that the NSA introduces, Manatt Health has released the No Surprises Act Toolkit, which includes five high-value components:

  1. A study tracking guidance from state and federal regulators on how state and federal laws apply. Updated every two weeks to keep abreast of new developments, the tracker provides brief summaries as well as links to any government regulation, newsletter or other guidelines.
  2. Deep diving analysis of all federal NSA-related regulations and their implications.
  3. Detailed checklists for suppliers and payers providing a step-by-step roadmap to compliance requirements.
  4. NEW PROPOSAL: Detailed diagrams summarizing the federal NSA implementation guidelines.
  5. One month free trial of Manat for health: Insights you trust, Manatt’s first-class information service, which provides in-depth insights and analysis focused on the legal, political and market changes that matter to you, keeping you up to date with the trends shaping our evolving health ecosystem. Manat for health includes weekly reviews of federal and state health reform, detailed regulatory and guidelines and analyzes of key federal legislation, and 50 state follow-ups on a number of key topics, from changes in telehealth health to 340B to health drivers.

Our NSA Toolkit provides information that is essential for both health plans and providers, especially those working in multiple countries. A full understanding of state and federal guidelines – and the interactions between them – will be essential to ensure that supplier invoicing practices and plan processing practices are compatible. As the guidelines remain in place, Manatt’s offer to the NSA ensures that plans and suppliers have clear, complete and up-to-date information on what regulators are saying so that they are ready to enforce the law.

To get more information or to schedule a demo of Manat for healthcontact Barrett Jefferds at [email protected]


1 Among other NSA client engagements, I am the author of NSA Physician Guides for the American Medical Association, which partially address similar topics as this article: American Medical Association Toolkit: Preparing to Implement the No-Surprise Act (2022) and American Medical Association Toolkit: Challenging Online Payments Using the No-Surprise 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 invoicing; Part II, 86 Fed. reg. 55980, 55984 (October 7, 2021).

6 Texas Med. Ass’n v. US Dep’t of Health & Human Servs.№ 6: 21-cv-425 (ED Tex. 23 February 2022).

7 Medicare & Medicaid Service Centers, Memorandum on Continuing Protection from Surprise Billing for Consumers (2022).

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