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

This article covers how the No Surprises Act approaches balancing billing limitations and the qualified payment amount determination.

Balance Billing Limitations- Qualified Payment Amount Determination

If I am an out-of-network provider subject to the balance billing limitations, must I accept the payor’s in-network provider rate?

When you submit your bill to the payer, the payer is required to either pay or deny your claim within 30 days. If the claim is covered, payers are required to include with its payment amount, information identifying the median in-network rate as of January 31, 2019, for the same or similar service, furnished in the same or similar facility, by the same or similar specialty in the same or similar geographic area. This is referred to as the “Qualified Payment Amount” or “QPA.” 

How is a geographic area defined for purposes of determining the QPA?

The geographic area is the metropolitan statistical area or “MSA” where the provider is located. All areas within a state outside an MSA are considered one geographic area.

How will the out-of-network provider know that the payer properly determined the QPA?

The payer is required to include in its out-of-network provider payment a notice that the payment amount is the QPA and a certification that the payer determined the QPA in accordance with the NSA’s requirements. The notice must also include how the provider can initiate the dispute resolution process if it disagrees that the QPA is an appropriate amount. Providers are also allowed to request additional information from the payer on how the payer calculated the QPA.

Why is the QPA important?

The QPA is important for a few reasons. First, the patient’s cost-sharing obligation is now impacted by the QPA and will typically be based on the QPA (unless the state in which the patient resides has a different methodology or an all-payer model agreement is applicable). 

For example, if an individual pays 20% of the cost of the services, the 20% will be determined based on the QPA unless state law dictates a different method is used or the participant is subject to an all-payer model agreement. Second, the certified IDR entity that ultimately decides on the payment amount in any dispute resolution process requested by a party may utilize the QPA as evidence of what an appropriate payment is for the service. The interim final rule specifically required the certified IDR entity to give deference to the QPA and assume it was the appropriate amount. A federal court has ruled that such deference is improper. Therefore, it is one factor that will be considered but is not necessarily the only factor or the most important factor.

Must the payer pay the out-of-network provider the QPA?

No. The payer must include information about the QPA in its payment to the out-of-network provider but the payer could pay the provider more or less than the QPA. 

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