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No Suprises Act (NSA) Basics

 

Summary: Find information about balance billing, federal vs state law compliance, notice and consent rule, out-of-network qualifications, Qualifying Payment Amount (QPA), plus, patient information and resources.

 

The No Surprises Act law prohibits balance billing for emergency services provided by out-of-network providers and out-of-network emergency facilities and for covered non-emergency services provided by out-of-network providers at in-network health care facilities, including hospitals, hospital out-patient facilities (HOPD) and ambulatory surgical centers (ASC). 

The prohibition does not apply to services that are not covered by insurers. Offices are not listed as a facility covered by the prohibition.

The federal agencies have released specific guidance to most, but not all, states regarding the application of the NSA at cms.gov.

However, the guidance can be difficult to interpret.  Accordingly, ASA is recommending that its members consult with their state medical associations – most of which have begun to develop guidance based upon their specific state laws and regulations as well as their knowledge of the state insurance market.

The federal government likely will take the position that the notice and consent rules of the No Surprises Act (NSA) would preempt more permissive state laws. Under certain circumstances, patients can waive the balance billing protections of the NSA, provided that prescribed notice and consent requirements are satisfied.

However, under the Act, a patient cannot be asked to waive balance billing protections on anesthesiology services.  In contrast, some states have notice and consent laws that permit patients to consent to out of network care and balance billing for anesthesiology services. 

This may place these state laws in conflict with the NSA.  With limited exceptions, when state law conflicts with a federal law, the state law is preempted.  One exception is when a federal law specifically defers to state law.  For example, the NSA defers to “specified state laws” that “provide [] for a method for determining the amount of payment” due to an out of network provider.  No such deferral was made in the case of balance billing waiver exclusions.  Moreover, while not discussed in the Act itself, CMS instructs providers to use a Standard Notice and Consent Document when seeking patient consent.  In reference to state standards, CMS allows for the use of state-developed notice and consent documents if the documents meet the statutory and regulatory requirements and the corresponding rules. This may imply that CMS would defer to state notice and consent requirements only if they match (or exceed) the requirements in the Act. 

In areas where the NSA does not make specific deferral to state law, we expect the government will defer primarily to those state laws that exceed the patient protections offered in the NSA and will claim federal preemption where state laws may have the effect of limiting those protections. Additional federal guidance may clarify some of the deferral and preemption issues, but some may ultimately be decided in the courts. 

If you are an out-of-network, hospital-based anesthesiologist, you are barred by the federal No Surprises Act (NSA) from balance billing patients.

Your payment-related activities are subject to NSA regulations and potentially state balance bill laws and regulations. Also, you risk being offered below fair market value for items and services (at least when in-network, this can be negotiated during contract negotiations). Based on reports, low in-network rates are lowering out-of-network rates, too. 

Your payment disputes with insurance companies will need to be resolved through the NSA Independent Dispute Resolution (IDR) process and/or your state (depending on your state laws) dispute resolution process. Anesthesiologists are winning NSA IDR disputes at a very high rate and the payments awarded by arbiters are, on average, exceeding the insurer-calculated median in-network contracted amounts. However, there are costs and administrative burdens associated with the NSA IDR process and state processes that must be considered. 

You are required to provide a good faith estimate (GFE) of the cost of the procedure to uninsured and self-pay patients in conjunction with the convening provider. Per the NSA, convening providers (those who scheduled the services), such as surgeons and pain medicine physicians must provide a GFE upfront. You may have already seen notices at your institutions informing patients of their right to a GFE. Anesthesiologists must provide a GFE for their anesthesia services to the convening provider (surgeon or proceduralist) as part of the overall, single GFE for a patient. However, a patient can now ask for a GFE from any physician, and thus whoever the patient asks by law becomes the convening provider. We don’t expect an anesthesiologist to be asked frequently, but if so, be prepared to provide one and/or work with your surgeon or proceduralist to comply. For details on this consult pages 4-6 of ASA’s Implementing the No Surprises Act Overview (PDF). If you are a pain medicine physician and schedule a service, you are required to provide an estimate. The requirement to provide a cost estimate to insured patients as part of the Advanced Estimate of Benefits (AEOB) is not effective yet. 

The QPA for a service is the median contracted rate on January 31, 2019, for the same or similar service, increased annually for inflation.

To calculate the rate, the insurer identifies the contracted rates from all their plans in the same insurance market for the same or similar service that is provided by a provider in the same or similar specialty in the geographic region in which the service is furnished. For 2022, each insurer is responsible for calculating their median contracted conversion factor based on their negotiated contracts in each geographic region as of January 31, 2019 (with an adjustment based on the percentage change in the consumer price index for urban consumers from 2019 to 2021).  The median conversion factor calculated by each insurer should apply to any anesthesia services performed within the applicable geographic area regardless of which anesthesia code was billed.  As an example, an insurer indexed median contracted rate for the anesthesia conversion factor in San Francisco, CA should be the same regardless of whether anesthesia was performed during a gall bladder removal surgery versus an appendectomy. 

Complaints about insurers’ QPAs can be submitted to https://www.cms.gov/nosurprises/consumers/complaints-about-medical-billing. 
ASA is tracking reports from members regarding remittances based upon unreasonably low QPAs. 

The Centers for Medicare and Medicaid Services (CMS) has comprehensive webpages with guidance and resources to help educate patients about their rights and what they can expect and do with medical bills as result of the No Surprises Act.

As part of these webpages, patients are informed of their right to a Good Faith Estimate (GFE) and prompted to request one. For surgical procedures, patients are told to ask for a GFE from their provider and one from the hospital. The example provided to patients is the same one that physicians and providers can use to create GFEs. All physicians and facilities can be subject to the GFE obligations. As a result of CMS’ new webpages, there may be an increase in requests for a GFE, as well as payment disputes under the “patient-provider dispute resolution”. To ensure you know if you need to comply and how, see last week’s question of the week. 

 

Curated by: the ASA Department of Payment and Practice Management

Date of last update: July 17, 2025