“Surprise” Billing and “No Surprises” Act Implementation

As passed by Congress, the No Surprises Act held patients harmless and created an equitable provider-insurer independent dispute resolution (IDR) process.

The surprise billing interim final rules that took effect Jan. 1, however, ignored the law’s intent that a qualified payment amount (QPA) be among equally weighted factors considered in these disputes.

The rules made the QPA the primary factor over others, creating a benchmark payment that is set by insurers. This will result in narrower provider networks, drastic imaging reimbursement cuts regardless of network status and reduced patient access to care. 

Lawsuit News

The American College of Radiology® (ACR®), American College of Emergency Physicians and American Society of Anesthesiologists are suing agencies of the federal government to block parts of the rule implementing the No Surprises Act leaving the patient protections intact.

What You Can Do

The No Surprises Act

Members who provide out-of-network patient care and/or care to uninsured or self-pay patients must be aware of their obligations under the No Surprises Act as implemented. Please see the summary below.

No Surprises Act Overview (as it may impact radiology)

  • Bans balance billing for out-of-network emergency care until the patient can consent and safely be moved to an in-network facility.
  • Bans balance billing for scheduled out-of-network services at an in-network facility when the patient has not been notified or provided consent.
  • Prohibits insurers from assigning higher deductibles (and other cost sharing) to patients for out-of-network care than they do for in-network care without patient notification and consent.
  • Requires providers to give patients a good faith estimate of the cost of services provided to uninsured and self-pay patients in advance of the patient’s appointment.

What Does This Mean for Radiologists?

When Out-of-Network Care is Rendered in In-Network Facilities

When out-of-network care is rendered in in-network facilities:

Patient’s health plan is billed by the radiologist or facility

  • Radiologists can only charge for patient cost sharing, calculated based on the median in-network qualified payment amount for similar plans and services in that geographic area.
  • Balance billing of the patient for any other cost is prohibited.

Health plan pays physician/group directly within 30 days of clean claim

  • The law does not specify amount the insurer must pay. The plan pays what it believes is the correct amount.
  • If the physician disagrees with the payment, he/she can dispute the amount following a 30-day open negotiation period.

If no resolution, the physician and insurer can enter the IDR process

  • IDR is an arbitration process in which an outside entity determines a fair payment. This is a “baseball- style” process, like an arbitrator getting competing offers and deciding the salary an athlete will earn.

How the IDR Process Works

Radiologist submits payment claim
Radiologist submits claim to patient’s insurer. Patient pays only for costs of (as if it were) in network care and exits payment process.

Insurer underpays radiologist
Physician/group can dispute the amount during a 30-day open negotiation period.

Radiologist takes insurer to IDR
If no resolution during the open negotiation period, either party can use an online portal to start the IDR process and select an arbiter from a pre-vetted list of entities. Both parties must pay an administrative fee and the IDR entity fee up front ($200–500 for one claim; $268–670 for batched claims of similar services with the same insurer).

IDR submission
Each party submits an offer of reasonable payment within 10 days. Offer must include:

  • Calculated QPA (provided by the insurer).
  • Size of physician practice.
  • Physician/practice specialty.

The offer may also include:

  • Physician training and experience.
  • Complexity of procedure or medical decision making.
  • Patient's acuity.
  • Market share of health plan and physician/group.
  • Whether care was provided at a teaching facility.
  • Scope of services.
  • Any good faith efforts to agree on payment amount.
  • Contracted rates from the prior year.

Independent review
Arbiter evaluates both submissions and chooses one of the two payment amounts within 30 business days. No third payment option is allowed.

IDR loser pays fees
The losing party must make the other side whole and pay for the IDR fee within 30 calendar days. The winner’s filing fee is refunded within 30 business days.

This federal IDR process outlined above only governs disputes for which no specified state law applies (see section below).

State Balance Billing Laws

For patients insured by a state-regulated insurance plan (such as employer-sponsored commercial plans):

  • If that state has a balance billing law deemed by the federal government as meeting certain criteria, the state law will govern the out-of-network payment amount and IDR process (if any exists in that state).
  • If a state does not have a qualifying law the federal law’s initial payment and IDR process will apply.

For federally regulated insurance plans (such as ERISA/employer self-funded or federal Marketplace plans under the Affordable Care Act), the federal law’s initial payment and IDR process applies. Note: In some states, ERISA plans are allowed to opt into the state law.

The federal government has designated many states as having a qualifying law. View this table, to be updated as more states may be added to the qualifying list.

Physician Disclosure Requirements

Physicians/groups eligible under the No Surprises Act must inform patients of new balance billing protections in three ways:

  • Display prominently at facility.
  • As a fact sheet given to patient in person, or via mail, or email — the fact sheet can be created using a CMS template (see last page at link).
  • On a public website.

For emergency care, your hospital can take responsibility for the first two requirements if your practice/group and your hospital have a written agreement in place. It is recommended that the sheet be provided to the patient at the place and time of care.

If your hospital does not assume this responsibility, you must provide the disclosure fact sheet to the patient at or before you collect cost-sharing payment from them, or before filing a claim with the patient’s insurer.

Note: Your group is responsible for the third requirement and the disclosure notice must be posted on your group’s website, if your group has one.

Good Faith Estimates

The No Surprises Act requires clinicians providing non-emergency care to provide good faith estimates of services when care is scheduled at least 72 hours in advance or upon request from individuals who are uninsured or self-pay. You do not need to issue a good faith estimate for emergency radiologic care.