Part 1: The Nuances of Operational Compliance Under the No Surprises Act

Insured, Out-of-Network Patients

There are no easy answers or a “one-size-fits-all” solution to compliance with the No Surprises Act (NSA). Deciphering the law and its requirements is one half of compliance. The other half is doing the hard work of figuring out where the NSA’s various provisions intersect with your facility’s operations and how you’ll create policies and procedures to implement the new requirements. The mechanics of implementation will vary among facilities and healthcare systems.

NSA compliance requires exceptional coordination and communication across all departments, including patient access and scheduling, billing, back-end revenue cycle, contracting, finance, compliance and legal. Staff education and training is imperative, as is the ability to quickly adjust and pivot internal operations to respond to areas where compliance could be strengthened as the details of the law are further defined.

To help you navigate the nuances, here’s a summary of how to appropriately bill insured, out of network patients for:

  • Emergency services
  • Non-emergency services
  • Post-stabilization services

Let’s start with a recap of the NSA’s goals.

The NSA provides consumer protections against surprise medical bills in two situations:

  1. When an insured patient receives emergency services from an out-of-network provider or facility or receives non-emergent services from an out-of-network provider at an in-network facility
  2. When a self-pay or uninsured individual asks about or receives scheduled services

One of the ways providers and facilities are required to communicate these patient protections against balance billing is through a disclosure notice.

Learn more by reading our REFERENCE: No Surprises Act Disclosure Notice Requirements.

What do you need to know when it comes to insured, out-of-network patients?

The NSA spells out specific protections for participants, beneficiaries and enrollees in group health plans and group and individual health insurance coverage when they receive:

  • Emergency services from nonparticipating providers or facilities, and
  • Non-emergency services at participating facilities

In addition to reviewing the NSA, facilities and providers should review with their internal compliance and legal counsel any specific state requirements regarding balance billing protections to understand the interaction between state and federal law, including any additional or state-specific forms and notices.

Plan Types Affected:

Group health plans and health insurance issuers in the group and individual markets, and Federal Employee Health Benefit plans.


Operators from front- to back-end should be able to identify whether a patient has a plan type that falls under the NSA where the balance billing protections would be triggered. This includes utilization management, which may be making decisions relating to balance billing for post-stabilization services.

Billing for Emergency Services

This is an area where the NSA is straightforward, and compliance is less complex to implement. Providers and facilities can’t balance bill out-of-network (OON) patients for treatment for an emergency medical condition (Revenue Code 450 claims). Specifically, patients may not be billed more than their in-network cost sharing amounts. Violating this could result in a Civil Monetary Penalty of up to $10,000 per violation.

Instead, the NSA gives payors the responsibility and authority to remit an appropriate amount, based on one of several methodologies listed below. Payors have a lot of discretion here and the NSA assumes they’ll act in good faith.

How are payments calculated?

  • Qualifying Payment Amount (QPA). This is the median rate that plans pay in-network providers in a geographic area. In future years, the QPA will be increased according to the consumer price index.


Calculation of the QPA is specific for each item or service and will fluctuate between payors depending on their specific contracts. It’s worth noting the NSA says the QPA is calculated on the median contracted rate for an item or service and not the mean or average. Since facilities and providers won’t have access to a payor’s contracts, it’ll be extremely difficult to identify underpayments for disputes.

  • State All-Payor Claims Database. In cases in which a plan doesn’t have sufficient information to calculate a median contracted rate, the QPA can be determined through use of any approved database (such as a state all-payer claims database). See here for a little more detail.

  • Applicable State Law. Some states have their own laws in place that will help set a QPA for items or services. The NSA defers to state laws where this is the case.”

Plans like Reference Based Payors who are intentionally OON with all providers won’t have contracts to rely upon to calculate a median amount. They should use one of the other methods dependent upon which state the services are rendered.

Billing for Non-Emergency Services

A non-participating or OON provider is prohibited from balance billing patients forscheduled non-emergent services at a participating or in-network (INN) facility unless they properly provide the patient with the standard notice and consent (N&C) developed by the U.S. Department of Health and Human Services (HHS). The patient must sign it to agree to be balance billed.

HHS considers use of their N&C to be “good faith” compliance with the notice and consent requirements of the NSA, provided all other requirements are met. The same applies for any state-developed versions of notice and consent documents so long as they otherwise meet NSA requirements.

N&C Basics

  • The OON clinician (or INN facility on behalf of the OON clinician) must provide the patient with written notice in paper or electronic form, as selected by the patient, at least 72 hours prior to the date of service.

An exception may be made if the appointment is made within 72 hours of the anticipated service. Then the patient must receive notice on the day the appointment is scheduled and no later than three hours prior to rendering services.

  • Give a copy of the signed consent to the patient in-person, by mail or via email, as selected by the patient.

  • Keep a copy of the N&C for seven years.

Learn more by reading our REFERENCE: No Surprises Act Notice + Consent Requirements (Checklist).

Billing for Facility Post-Stabilization Services

Though balance billing isn’t allowed when providing emergency care to an OON patient, it may be possible for post-stabilization services in certain circumstances if all the following criteria are met. These criteria are very narrow and contain many subjective elements to satisfy. Any facility that intends to balance bill for post-stabilization services should consult with their legal and compliance departments prior to doing so.

  1. The attending emergency physician or treating provider must determine the participant, beneficiary or enrollee is able to travel using non-medical transportation or nonemergency medical transportation to an available participating provider or facility located within a reasonable travel distance, taking into consideration the individual’s medical condition.
  2. The facility furnishing post-stabilization services must satisfy the notice and consent criteria.
  3. The individual (or the individual’s authorized representative) must be in a condition to receive the information in the notice and to provide informed consent under such section, in accordance with applicable state law.
    • Consideration must be given to the individual’s state of mind after receiving the emergency services and the individual’s emotional state at the time of consent.
      • Consent must be made voluntarily, meaning the individual consents freely, without undue influence, fraud or duress.
        If post-stabilization services must be provided quickly after the emergency services are provided, it may be challenging for the individual or their authorized representative to have adequate time to make a clear-minded decision regarding consent. Consent obtained through a threat of restraint or immediacy of the need for treatment is not voluntary.
      • Also, the emergency physician or treating provider should consider whether the individual has reasonable options regarding post-stabilization services, transport, or service provider or facility.
  4. The provider or facility must satisfy any additional requirements or prohibitions as may be imposed under applicable state law.

OON patients receiving post-stabilization services by a nonparticipating provider within a participating emergency facility should be made aware of participating providers within the same facility and the option to be referred to them. In this case, the N&C should be accompanied by a list of those in-network providers who are able to furnish the items or services involved.


The Department of Health and Human Services, the Department of Labor and the Department of the Treasury are of the view that the post-stabilization notice and consent procedures should generally be applied in limited circumstances, where the individual knowingly and purposefully seeks care from a nonparticipating provider or facility (such as choosing a specific provider or facility they’re familiar or comfortable with). And the process shouldn’t be permitted to circumvent the consumer protections in the No Surprises Act.

N&C Doesn’t Apply to Ancillary Services

Staff training and education is important to identify ancillary services for which there is no exception to the ban on balance billing through N&C. For instance, patients may never be balance billed for the following:

  • Items and services related to emergency medicine, anesthesiology, pathology, radiology and neonatology, whether provided by a physician or non-physician practitioner, and items and services provided by assistant surgeons, hospitalists and intensivists unless HHS provides a rule stating otherwise
  • Diagnostic services (including radiology and laboratory services) unless HHS provides a rule stating otherwise
  • Items and services provided by such other specialty practitioners as HHS specifies through rulemaking
  • Items and services provided by a nonparticipating provider if there is no participating provider who can furnish such item or service at such facility
  • Items or services furnished because of unforeseen, urgent medical needs that arise at the time such covered items or services are furnished

Independent Dispute Resolution Process

A facility or provider can initiate the federal IDR process, or depending upon their state, a CMS-approved, state-run dispute resolution process if it thinks the amount remitted by an OON payor is insufficient.


Navigating the NSA IDR process presents several challenges. Primary among these is identifying underpayments in a timely manner for dispute. Facilities would need to focus on claims from OON payors that carry a 450-revenue code.

Facilities and providers should consult with their legal representation to determine if their state has dispute requirements and processes that differ from the NSA, as the NSA does allow for states to be the primary enforcers of the law.

An encouraging note is that some state processes predate the NSA and steps should already be in place operationally to engage in them. Many states have retained their specific dispute resolution processes. For examples, such as Florida, see CMS guidance here.

Lastly, it should be noted the IDR process heavily favors payors. Parties should review the potential ROI prior to engaging in IDR.

Learn more by reading our REFERENCE: Understanding the No Surprises Act Independent Dispute Resolution Process.

Want help navigating the operational compliance requirements of the No Surprises Act? Contact one of our experts today.

These materials are for general informational purposes only. These materials do not, and are not intended to, constitute legal or compliance advice, and you should not act or refrain from acting based on any information provided in these materials. Neither Ensemble Health Partners, nor any of its employees, are your lawyers. Please consult with your own legal counsel or compliance professional in regard to specific legal or compliance questions you have