In 2020, Congress passed the No Surprises Act (NSA) in an attempt to protect uninsured patients from surprise billing. Some sections of the NSA became effective on January 1, 2022, while other sections are on hold until regulations are released. 

This series answers frequently asked questions about the No Surprises Act including:

• Scope, effectiveness, and patient notice
• Good Faith Estimates (GFE) applicability
• GFE timing and logistics
• GFE content, distribution, and implementation
• GFE dispute resolution
• Balance billing applicability
• Balance billing limitations and non-emergency services
• Balance billing limitations and qualified payment amounts

This article covers how the No Surprises Act approaches balancing billing limitations and dispute resolution.  

Balance Billing Limitations- Dispute Resolution

What if the provider wants to dispute the payment amount?

A provider who feels it hasn’t been paid appropriately for the service can dispute the payment by first triggering a 30-business day open negotiation period by sending a notice to the payer at the contact information provided in the notice accompanying its payment.  The provider must request the open negotiation period within 30 business days of the initial payment. The open negotiation period lasts 30 business days from the date of the request. During this time, the provider and payer can negotiate a payment amount.

Can a payer also trigger the dispute process?

Yes.  A payer may wish to trigger the dispute resolution process itself and work to negotiate a rate with the provider using the open negotiation period and dispute resolution if negotiations are unsuccessful.

What happens if the provider and payer do not agree on a payment rate during the 30-business day open negotiation period?

Either of them can request dispute resolution within four business days of the end of the 30 business day open negotiation period.

Can you go through the dispute resolution process without going through the open negotiation process?

No. If either party does not request open negotiation, each party has waived its right to dispute resolution.

What happens during the dispute resolution process?

After one party requests dispute resolution, the parties have three business days to agree on which certified independent dispute resolution entity (“certified IDR entity”) to use.  Once the certified IDR entity is selected, the parties have 10 business days to submit their payment offers.  Each party must submit a payment offer and include how the payment offer was determined. 

Can the party base its payment offer on any factors?

The party can base its payment offer on any factors except the following: (a) usual and customary charges, (b) the amount that would have been billed or paid in the absence of the No Surprises Act regulations, (c) the payment or reimbursement amounts from public payers, such as Medicare, Medicaid, CHIP, and TRICARE.

The certified IDR entity is not allowed to consider any of the above factors.  Additionally, the certified IDR entity is to consider factors that fit within one of the following so parties should provide information that fits within these categories to ensure it is considered the:

• Level of training, experience, quality, and outcomes measurements of the provider or facility that furnished the qualified IDR item or service.
• Market share is held by the provider or facility or that of the plan in the geographic region in which the item or service was provided. 
• The acuity of the participant, beneficiary, or enrollee receiving the item or service, or the complexity of furnishing the item or service to the patient.
• Teaching status, case mix, and scope of services of the facility that furnished the item or service, if applicable: 
• Demonstration of good faith efforts (or lack thereof) made by the provider or facility or the plan to enter into network agreements with each other, and, if applicable, contracted rates between the provider or facility, as applicable, and the plan during the previous four plan years.

Are the factors considered by the certified IDR entity different for air ambulance services?

Yes, for air ambulance services, the certified IDR entity is to consider the:

• Quality and outcomes measurements of the provider of air ambulance services that furnished the services.
• The acuity of the condition of the patient or the complexity of providing services to the patient.
• Level of training, experience, and quality of medical personnel that furnished the air ambulance services.
• Air ambulance vehicle type, including the clinical capability level of such vehicle.
• Population density of the point of pick-up for the air ambulance of the patient.
• Demonstrations of good faith efforts (or lack thereof) made by the out-of-network provider of air ambulance services or the plan to enter into network agreements, as well as contracted rates between the provider and the plan during the previous four plan years.

What happens after the parties each submit their payment offers?

Within 30 business days, the certified IDR entity will review the information and payment offers submitted by each party and make a decision on which one is the appropriate payment amount.  The appropriate payment amount determined by the certified IDR entity is the amount the payer must pay and the payment the provider must accept.  Any payment that is owed based on the decision (either by the payer to the provider or if the payer overpaid the provider by the provider to the payer) must be made within 30 calendar days of the decision.

Does the payment amount determined by the certified IDR entity impact the patient?

No. The patient can’t be balance billed and as discussed in this article, the patient’s cost-sharing obligations are determined based on the QPA.

Must the payer and provider utilize a separate dispute resolution process for each claim at issue?

The parties are allowed to batch claims and submit multiple claims in one dispute resolution process if they meet the following criteria for batching:

• they are billed by the same provider or group of providers;
• payment is made by the same payer;
• the items and services must be the same or similar; and
• the items and services must have been furnished within the same 30 business day period or the 90-day cooling-off period (discussed below).

How much does the dispute resolution process cost?

In 2022, each party must pay an administrative fee equal to $50. Certified IDR entities also charge a fixed fee for the dispute resolution process. This fee is regulated by the federal government and for 2022 it may be between $200 to $500 for single determinations and $268 and $670 for batched determinations unless a greater fee is approved by regulators.  

Each party pays the certified IDR entity its fee and the certified IDR entity holds these fees in trust. Both the administrative fee and the certified IDR fee must be paid by the time each party submits their payment offer.  The prevailing party will ultimately be refunded the certified IDR fee it paid and the certified IDR entity will keep the fee paid by the party whose payment amount is not selected.  If claims are batched, the party who loses the most will be deemed the non-prevailing party and whose fee will be retained by the certified IDR entity.

Are there limits on how often a provider or payer can use the dispute resolution process?

During the 90-day period after the certified IDR entity’s decision (referred to as the “cooling off period”) the party that initiated the IDR process may not initiate a subsequent IDR process involving the same payer and same or similar item or service.  Within 30 business days of the cooling-off period, either party may initiate dispute resolution for services provided during the cooling-off period. 

Health care providers who would like to submit a question for inclusion in a future FAQ installment should email susan.freed@dentons.com