ACR Bulletin

Covering topics relevant to the practice of radiology

No Surprises

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The ACR advocates for the patients and radiologists as it pushes back against unfair policies. 

The fact is that this law ensures the patient is protected. The negotiations now are between clinicians and insurance companies.

—Gregory N. Nicola, MD, FACR
November 21, 2022

The College backed passage of the 2020 No Surprises Act (NSA), a law intended to address the billing of unexpected out-of-network care, and continues to support its strong patient protections. However, the ACR has serious concerns about the way the law is being operationalized. Specifically, the College is concerned the law is being altered in a way that threatens medical practices and the patients they serve.

The debate has intensified since Aug. 19, when final revisions to the No Surprises Act were issued jointly by the U.S. Departments of Health and Human Services (HHS), Labor, and Treasury in the form of a final rule.¹ The latest document finalizes and clarifies requirements that were proposed under an interim rule released in July 2021.

“For radiologists and other specialists, it means insurance companies, inappropriately, are ratcheting down in-network rates — using the NSA as a lever to do so,” says Richard E. Heller III, MD, MBA, associate chief medical officer for health policy at Radiology Partners, vice chair of the ACR Commission on Economics’ Committee on MACRA and co-chair of the ACR Commission on Economics’ Committee on Pediatric Radiology. “This was never the intent of the law.”

The NSA holds patients harmless, which means it removes them from reimbursement disputes between insurers and providers. To resolve these disputes, the law created an equitable provider-insurer arbitration process, termed independent dispute resolution (IDR). The IDR process is used by providers who believe the amount of reimbursement they received from the payer for applicable services was incorrect or not sufficient. If the provider and insurer are unable to come to an agreement during an open negotiation period, the situation may move to arbitration.

The interim final rule called for arbiters to begin with the presumption that an insurer-determined rate, termed the qualifying payment amount (QPA), is appropriate and select that rate unless there was evidence to the contrary. This rule created a “rebuttable presumption,” ignoring the law’s intent that the QPA be among equally weighted factors considered in these disputes, says Josh Cooper, ACR vice president of government relations and economics health policy.

The interim rule made the QPA the primary factor, creating a benchmark payment set by insurers — a situation radiologists say could result in narrower provider networks, drastic imaging reimbursement cuts regardless of network status, and potentially reduced access to care for patients. The final rule issued in August does not correct that situation.

“The surprise billing issue was generated from reports that patients were getting medical bills from out-of-network providers for the non-insured costs of providing their service,” Cooper says. The most common incidents were associated with patients going to an in-network facility but unknowingly receiving care provided by an out-of-network physician.

“Insurers might only cover a small portion of the out-of-network charge, if any at all,” Cooper points out. “Some of these patients have been left on the hook for many thousands of dollars. The College supported legislation that would protect patients from these types of medical bills, while also preserving good-faith contract negotiations between insurers and medical practices.”

Understanding the Details

The details of the law and associated rulemaking are complex but consequential, Heller says. For example, the calculation methodology and integrity of the QPA can have meaningful consequences for medical practices. The QPA is defined as the median in-network rate for a service for a particular insurer based on contracted rates with physicians of the same specialty and geographic region from Jan. 31, 2019, adjusted annually for inflation. The ACR has concerns about the QPA calculation methodology and provided comments to the government on this topic in September 2021.2

In response to the NSA, the ACR has focused its efforts on the IDR process, which directly impacts provider reimbursement, says Kathryn Keysor, ACR senior director of economic policy. “The IDR process does not impact the amount that patients must pay,” she says. “We fully and completely support the patient protections provided by the NSA.”

The primary issue with the calculation methodology, Keysor says, is the treatment of a contract as a data point in the median calculation, rather than individual claims representing data points. There is no weight given to the number of claims or services provided under a contract. As a result, the QPA, which is calculated by the insurer, may include so-called “ghost rates.” These are contracted rates that are never or rarely billed by a practice.

Providers are more likely to negotiate the rates on services they perform frequently. Providers who never or rarely perform a given service are more likely to accept lower rates, Keysor says. “As a result, there is potential downward skewing of the QPA calculation. For this reason, the ACR urged the government to adhere to the law and not make the QPA the primary determining factor in the IDR process,” she says. In August, the administration seemed to acknowledge this problem.However since the QPA calculations are not transparent, it is not yet clear whether this will be addressed, and if so then how.

Another substantial in-the-weeds issue is batching. With batching, medical groups submit multiple claims together for IDR. The goal is to maximize efficiency. Unfortunately, the government’s rulemaking has severely limited batching. To qualify for batching, the claims must be within the same limited time period, for the same exam, from the same practice, and for the exact same health insurance plan. By limiting the number of exams that can be batched together, the government is increasing the overall number of cases in IDR — and increasing the expenses associated with arbitrating them.

In August, it was reported that there is a tremendous backlog of cases with more than 97% of submitted cases awaiting arbitration.4 Further, restrictions on batching are also limiting some from accessing IDR altogether. Since the administrative fee of $50 per IDR submission is higher than many individual radiology claims, it is frequently not cost-effective to go to IDR without batching.

No-Surprise Litigation

The interim rule’s establishment of the QPA as a rebuttable presumption is what Keysor says led the ACR, the American College of Emergency Physicians (ACEP), the American Society of Anesthesiologists (ASA), and other groups to file lawsuits against the government to block parts of the rule, while leaving patient protections intact. The Texas Medical Association (TMA) was the first to file a lawsuit.

In February 2022, a federal court ruled in favor of TMA, saying the QPA is not more important than the other criteria in arbitration and that nothing in the law instructs arbiters “to weigh any one factor or circumstance more heavily than the others.”5 That part of the rule was vacated, and the government stated its intention to comply with the ruling and issue final guidance at a later date.

Many radiologists are unaware of the significant changes in reimbursement occurring in the background at their practices.

—Daniel G. Gridley, MD, FACR

In August 2022, the administration released the long-anticipated new rule.6 In the final rule, the government removed the language indicating that IDR entities should begin with the presumption that the QPA is the most accurate payment rate. “That is the good news,” Keysor says. “The bad news is that if the IDR entity chooses an amount that is not the QPA, it is required to provide a detailed
explanation as to what factors were considered and why the factors are not already considered in the QPA.” In other words, the QPA is again the primary factor in IDR — and there is more work involved for an IDR entity that chooses an amount higher than the QPA, she says.

As a result, the TMA filed a second lawsuit in September 2022. That lawsuit, like the first, states that the law does not establish the QPA as the primary factor in IDR determination. The TMA is arguing that the challenged provisions of the final rule deprive physicians and providers of the fair arbitration process the law intended.7 The new TMA suit is filed in the same Texas federal court that ruled in favor of the TMA prior to this suit. The ACR, ACEP, and ASA filed a joint amicus brief with the Texas court in support of TMA in October 2022.8 Additionally, the three organizations have dismissed a joint lawsuit in the U.S. Court for the Northern District of Illinois challenging the interim final IDR rule because that rule is no longer in effect. However, the organizations have preserved their legal right to re-file the Illinois lawsuit if the Texas court rules against TMA and its supporters.

“These changes in the proposed implementation guidelines are going to end up punishing medical practices, including radiologists, who have never been bad actors in presenting surprise bills,” says Lauren P. Nicola, MD, chair of the ACR Reimbursement Committee. That does not match up with the intent of the original legislation, she says, and that’s why the TMA filed its lawsuits.

Contract Rates

“Many radiologists are unaware of the significant changes in reimbursement occurring in the background at their practices,” says Daniel G. Gridley, MD, FACR, chair of the ACR Payer Relations Committee and Network. “We encourage you to reach out to your managed care/payer contracting team and your billing team to garner feedback and information about what may be happening due to NSA implementation.” This includes cancellation of in-network contracts, re-contracting with payers at lower rates (often due to payer demand), and receiving no reimbursement or markedly decreased reimbursement for services from non-contracted payer entities.

The QPA is tied to the median in-network reimbursement for the service rendered as determined by the insurance company, a non-transparent calculation with potential for manipulation. Gridley also expresses concern about “ghost rates” being used in QPA calculations. “Inclusion of these lower reimbursement levels could be leveraged by the insurance payers to artificially lower the QPA,” he says.

Establishing the QPA as a benchmark, especially if it is artificially depressed, can have significant consequences. Weeks after the interim rule was released in late 2021, establishing the QPA as a benchmark rate, some insurance companies issued letters to healthcare systems and physician groups noting that if they refused to re-contract at a lower reimbursement level, then the payer would move to remove them from the network. The letters specifically referenced the NSA and the rule granting them this authority.

“This Trojan horse effort by payers to morph the NSA into wide-sweeping reimbursement reduction has the potential to result in lack of contracting and an out-of-network status for multiple groups — thereby steering patients away from those entities and limiting networks in geographic areas,” Gridley says.

Uphill Battle

“Every time I talk about this, a lot of people tune me out on the radiology side of things,” Nicola says. “Radiologists tend to think it is not a problem for them because most are in-network with their contracts.” The problem is that once the QPA is set, the insurance companies have the option of either forcing practices to take those lower in-network rates or kicking the practices out of network altogether — knowing that they’ll be able to get something near the QPA in arbitration, she says.

The ACR is aware of practices in multiple states that received letters stating that because of this legislation, the insurer has the authority to demand a rate reduction or move to terminate their contract, Nicola says. The threats are being made to in-network practices, although the law was intended to address out-of-network billing. Paradoxically, the law could actually increase out-of-network billing. In this scenario, if the contract is canceled, the practice will be considered out-of-network.

“Then they have to go through this arbitration process, which will undoubtedly will be cumbersome, labor-intensive, and expensive,” Nicola says. “So, for some radiology practices, it is hardly worth the cost to try to fight it out.”

Radiology professionals need to stay on top of the issue, says Gregory N. Nicola, MD, FACR, chair of ACR’s Commission on Economics. “The fact is that this law ensures the patient is protected,” he says. “The negotiations now are between clinicians and insurance companies.”

The law intended this to be a balanced process, doctors say, and the implementation process should reflect that intent. “What we are hoping to gain by supporting the TMA’s second suit is that the government further revises its language on what the QPA means,” and its relative weight in an IDR process, he says. This is about preserving good-faith network contract negotiations and protecting patients’ access to care, he says.

Heller echoes that sentiment: “The administration should implement the NSA as Congress wrote it and issue rules that reflect balance — not favor insurance companies or physicians.”

The challenge now is getting the word out about what’s happening so radiology professionals can take a proactive stance, Heller says. “One of my concerns is that the first time groups find out about this is when they realize their reimbursement has gone down dramatically,” he says.

“With proper implementation, legislation to end surprise medical billing can be used as a tool to benefit insurers at the expense of patients and physicians — that is what I want people to know,” Heller says. “I would like to see our members be proactive. The ACR’s members should be reaching out to the College. The ACR can be a repository of evidence. If your radiology group sees evidence of inappropriate, abusive payer behavior, you should convey this information, in a compliant manner, so the ACR can use this for advocacy purposes.

“The College is doing important work on behalf of radiologists and the patients we care for, but they need our help,” Heller says. “I encourage people to get involved.”


  1. U.S. Department of Labor, Fact Sheet: Requirements Related to Surprise Billing: Final Rules, Aug. 19. 2022,
  2. ACR letter to HHS, File Code CMS-9909-IFC Requirements Related to Surprise Billing: Part I, Sept. 7, 2021,
  3. U.S. Department of Labor, Fact Sheet: FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 55, Aug. 19, 2022,
  4. Goldman M, ‘Not So Optimistic:’ Surprise Billing Arbitrations Cause Frustration, Modern Healthcare, Aug. 20, 2022,
  5. U.S. District Court for Eastern District of Texas, Tyler Division, Memorandum Opinion and Order, Texas Medical Association vs. U.S. Department of Health and Human Services, Feb. 23, 2022,
  6. U.S. Department of Labor, No Surprises Act, Advanced Explanation of Benefits,
  7. Texas Medical Association, TMA Urges District Court AGAIN to Protect Patient Access in “No Surprises Act” Final Rules, Sept. 22, 2022,
  8. ACR press release, Major Medical Societies to Support Texas Medical Association Federal Surprise Billing Lawsuit, Oct. 20, 2022,

Author Chad E. Hudnall  senior writer, ACR Press