Private Payer Resource Center

The No Surprises Act (NSA) provides patients with new protections against surprise billing because of insurance network rules. Like other clinicians, dermatologists must follow new NSA rules beginning on Jan. 1, 2022. The rules were issued jointly by HHS and agencies in the Labor and Treasury departments.

The NSA was meant to address the problem of insured patients receiving large, unanticipated bills in scenarios where they have little or no choice in who provides their clinical care. These charges typically occurred for emergency care, air ambulance services, and surgeries where some care is provided out of network. The law requires that patients be charged no more than they would pay for in-network care.

Presently many practices use the advance beneficiary notice of non-coverage (ABN) to address the question of billing responsibility. In practical terms, the NSA shifts responsibility for coverage from patients to physicians and payers. It means new administrative and financial burdens for dermatologists and other physicians.

What does the NSA require from you?

Under the law, clinicians and health plans must:

• Provide all patients with a Disclosure Notice that informs them of their protections from out-of-network billing and informs them how they can file complaints through an independent dispute resolution (IDR) process

• Provide patients who pay with cash with good faith estimates (GFEs) of expected charges for items and services

• Inform patients of their rights and responsibilities in paying for treatment

• Health plans must cover out-of-network claims and apply in-network cost sharing fees (applies to both job-based and non-group plans)

What steps do you need to take now?

By Jan. 1, 2022 at minimum:

• Have Disclosure Notices ready for patients

• Familiarize yourself with the process for generating good-faith estimates and when they are required

• Check surprise medical bills or balance billing laws in your state as these may be stricter than federal law, in which case the stricter requirement applies. CMS has issued a listing by state, what each state is enforcing either directly or through a collaborative enforcement agreement, and the provisions that CMS will enforce. These letters also communicate whether the federal independent dispute resolution process and the federal patient-provider dispute resolution process apply in each state, and in what circumstances.

What should be included in the notice to patients?

Practices must provide a “one-page notice” that includes information in clear and understandable language on the following:

• The restrictions on providers and facilities regarding balance billing in certain circumstances

• Any applicable state law protections against balance billing

• How patients can contact federal and (if applicable) state enforcement agencies to file complaints about NSA violations

CMS has provided an optional template patient disclosure notice form (PDF) that can be adapted by your practice.

Dermatologists and other clinicians must also provide a good faith estimate if there may be out-of-network care. The notice provides a good faith estimate to patients of what the charges to them will be. CMS has made a template GFE form (PDF) available for download. NSA requires you to give this notice at least 72-hours in advance or, if the patient schedules a service less than 72-hours in advance, no later than the day the appointment is made.

An exception to federal surprise billing protections is allowed if patients give prior written consent to waive their rights under the NSA and be billed more by out-of-network providers. Consent must be given voluntarily and cannot be coerced, although providers can refuse care if consent is denied. Providers should not seek consent to waive protections from patients who are impaired or otherwise limited in their ability to make informed decisions.

What needs to be included in a good faith estimate?

The GFE provides estimated charges for services and items of care reasonably expected to be provided out of network. To cite typical examples, this could include:

• Cost of the surgery

• Required laboratory tests not separately scheduled from the surgery

The GFE must reflect the price for services, less any discounts, and the total cost of expected care furnished by the provider during a “period of care” along with the billing codes.

Again, CMS has provided a template GFE form (PDF) you can use to generate a GFE that complies with NSA requirements.

What if the GFE is incorrect?

You are still compliant with the NSA if you make an error in a GFE but correct it as soon as practical. You also do not violate the NSA by passing along an incorrect GFE from another entity unless you know or reasonably should have known that the information is inaccurate.

However, if the services are provided before the error in the GFE is addressed, you may be subject to the Provider Dispute Resolution Process, if the billed charges are $400 or more than the GFE.

How are disputes resolved?

There are two dispute resolution processes under the NSA:

1. Patient-Provider Dispute Resolution (SDR)

2. Payer-Provider Dispute Resolution (IDR)

Patient-Provider: Select Dispute Resolution (SDR)

This process must be initiated by the patient by submitting notification via the federal portal within 120 calendar days of receiving the initial bill containing the charges, which must exceed the GFE by $400 or more. This will be reviewed by a third-party arbitrator who will make a decision on the amount to be paid by the patient no later than 30 business days after receipt of the information.

Payer-Provider: Independent Dispute Resolution (IDR)

Either party has up to 30 calendar days after receiving charges or denials to dispute them by launching the Independent Dispute Resolution (IDR) process. You and the payer must first exhaust a 30-day negotiation period.

If the parties fail to agree on a final payment within the 30 days, the formal IDR process begins within 4 days. After that you and the payer have three days to select an arbiter. You and the payer must submit your offers and supporting information to the IDR entity within 10 days. The IDR entity will decide within 30 days of their selection.

On August 19, 2022, HHS, Labor and Treasury published a final rule specifying that:

1. Payers must disclose information about the qualifying payment amount (QPA) to providers and facilities that includes the QPA for each item or service involved; a statement certifying that the QPA applies for purpose of the recognized amount; if a QPA is based on a downcoded service code or modifier, a payer is to provide a statement that the service code or modifier billed by the provider was downcoded; an explanation of why the claim was downcoded (including a description of which service codes were altered, if any, and which modifiers were altered, added, or removed, if any); and the amount that would have been the QPA had the service code or modifier not been downcoded.

Furthermore, payers must calculate a median contracted rate separately for each provider specialty, if the [payer’s] contracted rates for service codes vary based on provider specialty as a result of the [payer’s] contracting process.

2. Instead of focusing only on median price of a service, arbitrators can also use other information to more fully encapsulate the value of the care provided.

Physicians are encouraged to submit information on other factors affecting the cost of an out-of-network service such as:

• The level of training or outcome quality of the service provider;

• The acuity or condition of the patient;

• The market share of a provider or insurer in a given region;

• The training or experience of the provider;

• The teaching status of a hospital or facility; and

• Past efforts to enter into a network agreement between the provider and insurer.

3. IDR entities are required to provide a written explanation on how these additional factors were taken in consideration in determining the payment if they choose a provider’s offer over that of the payer.

Where can I get more information?

Visit the CMS page on the No Surprises Act.

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