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ASA maintains an ever-growing repository of Surprise Billing Resources on our website. As we look to expand these resources to best help our members understand the new requirements and prepare their practices for them, we want to hear from you. Your input will help us create resources that address your specific needs.
Please send us your surprise billing questions at nosurprises@asahq.org.
Note: These responses are intended as guidance and do not constitute legal advice, nor should they be construed as representing ASA policy (unless otherwise stated), dictating payment policy, or substituting for the judgment of a physician and consultation with independent legal counsel.
Week of 2/6/2023
Q: Can you provide an update on litigation efforts on the No Surprises Act?
A. Currently there are two pending lawsuits by the Texas Medical Association (TMA) against the US Departments of Health and Human Services, Labor, Treasury, and the heads of the agencies. All of these lawsuits’ outcomes can result in future rulemaking by the departments. The latest lawsuit (PDF), TMA IV, filed on January 31, 2023, challenges the 600% increase in the non-refundable administrative fee required to access the federal Independent Dispute Resolution (IDR) process. The increased fee of $350 from $50 is due for any new dispute filed beginning in 2023. The increase will cost-prohibit many physicians and small practices from seeking appeals for unpaid or insufficient payment by insurers. Those physicians who mostly have small-value claims will be the most negatively affected.
TMA also disputes the implementation rules’ narrowing of the law’s provisions on “batching” claims for arbitration, which Congress authorized to encourage efficiency and minimize costs in the IDR process. TMA calls out that physicians with small-value claims can only access the IDR if they combine all claims of one service code in one IDR proceeding. The NSA allows the Departments to permit batching of claims for all of the treatments or procedures in a patient’s treatment plan, in a patient’s episode of care, or even across patients with similar conditions. However, the Departments’ rule permits batching only if the items and services are “the same or similar items or services,” i.e., if each is billed under the same service code. Both the increase in the fee and restriction in batching rules were made without notice and comment from the public and stakeholders, unlawful by the Administrative Procedure Act. The results from this case will significantly impact anesthesia claims.
TMA’s second lawsuit (PDF) filed in September 2022, challenges the NSA’s final rules that unfairly favor health insurers by requiring arbitrators in the IDR process to weigh more the suspect, insurer-calculated qualified payment amount (QPA), an amount that is intended to reflect an insurer’s median-in-network contracted amount, than any other factor in determining the most appropriate out-of-network rate. ASA filed an amicus brief in support of TMA’s second lawsuit. The brief notes that the QPA does not reflect fair market value of out-of-network items and services and incentives insurers to lower in-network rates. Both of these leading to under-compensation of care and further restricting patient access to providers especially in underserved areas. On February 6, 2023, a federal court in Texas ruled in favor of the TMA. The Court noted that in the government’s August surprise billing final rule, they continued to direct arbiters to give more preferential consideration to the QPA, “tilting arbitrations in favor of insurers, and thereby lowering payments to providers.” The Court noted that “the Act nowhere states that the QPA is the primary or most important factor—or that it must be weighed more heavily than, or considered before, other factors.” In ruling in favor of the TMA, arbiters will consider all the criterion referenced in the NSA statute as written, without giving additional weight to the QPA, absent a successful appeal by the government. ASA’s amicus brief was referenced in the Court’s ruling. The federal agencies will have to revise implementation rules to reflect the court’s ruling. This is a huge win for physicians and patients.
TMA filed its third lawsuit (PDF) in November 2022 challenging certain portions of the July 2021 interim final rules implementing the federal NSA. This lawsuit challenges the methodology for determining the QPA. The lawsuit focuses on “ghost rates” in contracts and the determination of the physician specialty for QPA purposes. No hearing date has been set for this case. ASA also filed a joint amicus brief with the American College of Emergency Physicians and American College of Radiology® in support of TMA’s third lawsuit. The brief notes that the IDR rules prevents physicians and facilities from engaging in fair contracting negotiations with insurers, which will result in more physicians and facilities being forced out-of-network.Â
It is vital for you to share your experiences so that ASA can share with CCIIO and policymakers to improve the process for anesthesia practices. Email us at nosurprises@asahq.org
Week of 1/23/2023
Q: Will there be any sessions about the No Surprises Act during ASA’s ADVANCE?
A. Yes. There will be several sessions on the No Surprises Act by ASA and industry presenters. The ASA-sponsored activities include a fireside chat and a roundtable discussion during ADVANCE on January 27th. Dr. Jonathan S. Gal, MD, MBA, MS, FASA will moderate the fireside chat, titled Taking the Surprise Out of The No Surprises Act, featuring Mr. Jordan Deuink, MBA, Steven Schulman, MD, MHA, FASA, and Manuel Bonilla, MS, ASA’s Chief Advocacy Officer. The chat will be on January 27 from 4-5pm ET. A Roundtable discussion will precede the chat from 1:50-2:20pm ET on January 27th. You can connect with the chat speakers as part of small groups.
Thank you for sharing your experiences with the No Surprises Act. We hope to see you during ADVANCE this week. If you cannot make it, email us at nosurprises@asahq.org
Week of 1/16/2023
Q: Has a new Independent Dispute Resolution (IDR) report been released?
A. On December 23, 2022, the Centers for Medicare & Medicaid Services released its Initial Report on the Independent Dispute Resolution (IDR) Process covering the period of April 15 - September 30, 2022 (the federal IDR portal was opened on April 15). The No Surprises Act requires the federal departments to publish information on the federal IDR process on a quarterly basis, including the number of disputes submitted, the number of determinations made, the number of times the payment amount determined exceeds the qualifying payment amount, CPT codes, type of practice location, and more.
The Departments published a status update on the federal IDR process in August 2022, but had not published a quarterly report until now. However, the Departments limited the scope of the report to a partial report (Q2 and Q3) and plan to issue full quarterly reports at a later date.
In the December report, the Departments describe that parties have submitted “significantly more” disputes than originally projected and that determining the eligibility of disputes is requiring more review than anticipated. The report includes a number of key takeaways including:
The report also highlighted that disputes were withdrawn due to disputes being subject to state, not the federal process, incorrect batching, missing information (e.g., health plan type) and other errors. ASA continues to demand that the IDR process be improved including the batching of claims. Until further changes are made, ensure that you are processing your claims following the guidance including:
Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 1/11/2023
Q: Is it true that the Independent Dispute Resolution (IDR) process fees increased for 2023?
A: Yes, the federal agencies increased the administrative fee for each disputing party from $50 to $350 for claims initiated after December 31, 2022. This represents a 700% increase and is non-refundable. Each party pays the administrative fee to the certified IDR entity, which is then remitted to the federal agencies.
The administrative fee is in addition to the fee owed to the IDR entity by each disputing party at the time that an offer is submitted as part of the IDR process. The IDR entity fee also increased. Beginning January 1, 2023, IDR entities can charge a fixed IDR entity fee for single determinations within the range of $200–$700. Unlike the administrative fee, the IDR entity fee is ultimately the full responsibility of the party that loses in the IDR process and is kept by the IDR entity for the services it performs. The party that wins as part of the IDR process is to be returned their IDR entity fee within 30 business days following the date of the payment determination.
In response to the fee increases, the ASA issued a statement expressing opposition to the administrative fee increase and urging the government to forgo implementation of the increase. The increase in fees is making it cost-prohibitive for small anesthesia practices to access the IDR process and are having to consider unpaid or underpaid claims by payers as a total loss. ASA is urging the government to block implementation of the massive fee increases, reform the IDR process, and allow batching of anesthesia claims to decrease the burden for anesthesia practices to resolve claims.
Access the details about the updated fee schedule at cms.gov: Amendment to the calendar year 2023 fee guidance for the federal independent dispute resolution process under the No Surprises Act: change in administrative fee (PDF).
ASA continues to share and document the issues that members face in any state and advocate for changes to the flawed IDR process. Thank you for sharing your experiences. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 1/4/2023
Q: Are there any changes to the Qualified Payment Amounts (QPAs) for 2023?
A: Yes, the Internal Revenue Service (IRS) published the inflation adjustment to Qualifying Payment Amounts under the No Surprises Act for 2023. The increased percentage from 2022 to 2023 is 1.0768582128. The IRS provides guidance with examples of how the increased percentage should be used depending on the year the service was provided, whether the item or service is newly covered, and if there is insufficient data used to calculate the media QPA in a particular market. Find the details starting on page 4 of this PDF.
If you expect to render services covered by the balance billing limitations of the No Surprises Act, we suggest that you include a friendly note to your payors when initially billing for 2023 services. This will serve as a friendly reminder in case they missed the updated inflation amount and attempt to plead ignorance.
At the end of 2022, ASA requested that the federal agencies initiate audits of insurer calculated QPAs and publish the findings of those audits. ASA will provide members with any updates should the federal agencies publish any additional information.
ASA continues to share and document the issues that members face in any state and advocate for changes to the flawed IDR process. Thank you for sharing your experiences. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 12/21/2022
Q: Where can I find information about outcomes from the Independent Dispute Resolution (IDR) process?
A: The No Surprises Act requires that the federal departments provide a quarterly report about the federal IDR process. To date, the agencies have largely failed to publish information regarding the process. In the first and only IDR status update, the agencies pointed to delays on processing IDR claims due to unexpected volumes created by insurers. Access this report and future ones at CMS Regulations and Guidance. In a recent correspondence, ASA has requested that the agencies initiate audits of insurer-calculated qualifying payment amounts (QPA) and publish the findings of those audits. ASA will provide members with any updates should the federal agencies publish any additional information.
In addition to the federal status updates, some states also publish reports about surprise billing. For example, Texas’ Department of Insurance published their report in October on balance billing. Find out if your state publishes a similar report by accessing your state’s department of insurance.
ASA continues to share and document the issues that members face in any state and advocate for changes to the flawed IDR process. Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 12/14/2022
Q: What are anesthesia practices doing that has helped them obtain successful resolution of claims submitted through the federal Independent Dispute Resolution (IDR)?
A: ASA is continuing to collect information regarding “best practices” in successfully navigating the IDR process. However, based upon initial feedback, ASA members and their business managers have shared that they:
Consult these documents when beginning the IDR process:
Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 11/14/2022
Q: Are there any updates from the federal surprise billing rules?
A: Yes. The federal departments published requirements related to the final rules and three guidance documents on October 31, 2022. The requirements document includes final rules under the No Surprises Act including certain disclosure requirements relating to information that health insurers must share about the qualifying payment amount (QPA). This document also finalizes requirements for independent dispute resolution (IDR) entities to disclose making payment determinations under the Federal IDR process, in light of the decisions in Texas Medical Association lawsuit.
The three guidance documents published include:
These documents include changes made in accordance with the “Requirements Related to Surprise Billing: Final Rules” (Final Rule) found here. The edits made to both guidance documents apply to all items and services furnished on or after October 25, 2022., The edits include:
ASA is disappointed that the federal departments did not meaningfully clarify expectations/rules beyond what was previously said in the final rule. ASA continues to push the departments to address ghost contracting rates referenced in August rules. ASA also continues to urge the federal agencies and Congress to improve the processes of the federal IDR system. ASA continues to strongly advocate for changes that position disputing parties like anesthesia practices in equitable positions when approaching the IDR process. The current system unintentionally favors payers.
Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 10/17/2022
Q: What is difference between single, batched, and bundled dispute?
A: A single dispute only includes a single service code. Batched disputes contain same or similar service codes vs bundled disputes are multiple items and services to one single service code. The most recent guidance clarifies the differences between these, found in the Technical Assistance for Certified Independent Dispute Resolution Entities-August 2022 Edition (PDF).
ASA has been urging the agencies to permit more expansive batching of anesthesia claims. Currently, the agencies have indicated that when initiating the federal IDR process you may only submit a batched dispute involving anesthesia qualified IDR services that are billed using the same CPT code (for example, all claims with CPT code 01999), even if the qualified IDR services were billed using different time units and physical status modifier units as long as the qualified IDR items and services comply with the batching requirements (consult question 1 in the guidance document). There is no limit to the number of qualified items or services that can be included in a batched dispute as long as they meet the requirements as outlined in question 1 in the guidance document).
Mistakes are common when initiating open negotiations with your disputing party and/or the IDR process. Avoid these mistakes:
Consult Technical Assistance for Certified Independent Dispute Resolution Entities-August 2022 Edition (PDF) if you are missing information from a non-initiating party needed to submit a complete dispute initiation.
ASA continues to push the federal agencies and Congress to improve the batching process. ASA has strongly advocated for permitting all anesthesia codes for a single payer to be batched. On multiple occasions, ASA has formally urged the federal agencies to permit the batching of all anesthesia codes from a single insurer. ASA has also met with leadership from the Center for Consumer Information and Insurance Oversight (which is responsible for helping implement provisions of the No Surprises Act) to discuss these issues. IDR system will work more efficiently if this is fixed. ASA will continue to push for broader rules for batching anesthesia claims.
Week of 10/10/2022
Q: What is ASA observing in the payment landscape since the implementation of the No Surprises Act began in January of this year?
A: ASA has received reports from ASA members about contract terminations, network changes, and decreases in payment. Prior to the implementation of the No Surprises Act, many anesthesia practices were able to successfully negotiate appropriate contracts with most of the major insurers However, with the implementation of the law, much has changed in contract negotiations, ranging from delays in negotiations to continued references to Medicare payment rates. In addition, some anesthesia practices are receiving early termination/renewal contract notices from insurers seeking unreasonable concessions including very low anesthesia Conversion Factor rates. A few practices have reported offers from insurers that reflect a 20% to 60% decrease in payment rates. For example, one private group’s contract with one of the largest payers in the state was coming to term. Instead of renewing at the same rate or accepting higher rates during this inflationary period, the payer offered a 20% decrease. If the practice did not accept, the payer threatened to force the practice out of network where the practice would be paid at the qualifying payment amount (QPA) – a payment rate much lower than contracted rates. Insurers’ behavior not only threatens the viability of anesthesia practices, but also further narrows networks for patients as anesthesia practices are dropped or forced out of networks by insurers.
ASA has also taken note that insurers are offering unreasonably low QPAs as their initial offers to practices. Several practices have shared that they are being offered payment rates close to Medicare rates. These rates are leaving practices no choice but to utilize the Independent Dispute Resolution (IDR) process to secure an appropriate payment. The IDR process is currently bogged down by excessive disputes and ineligibility claims, all caused by insurers. If insurers offered reasonable payment rates for anesthesiologists’ services, the IDR process would not be necessary.
ASA continues to push the federal agencies and Congress to improve this deeply flawed process created by the No Surprises Rules. The implementation rules as written continue to place the insurers in an extremely favorable and profitable position at the expense of ASA member practices and eventually at the cost of patients, whom this Act intended to protect. When the number of practices decreases, access to safe physician-led anesthesia care for patients will also decrease.
Thank you for sharing your experiences with the No Surprises Act. It is important that you continue to reach out to ASA, so that we can share these with the federal agencies and government to demand change. Email us at nosurprises@asahq.org
Week of 10/3/2022
Q: Am I able to choose the federal Independent Dispute Resolution entity (IDRE)?
A: If you are initiating the IDR process, then yes, you can indicate your preferred entity as part of the Notice of IDR initiation. Your practice and the insurer may also jointly select the certified IDRE. The CMS website has a list of certified IDR entities. In cases where the physician has initiated the process, the insurer, the non-initiating party, may agree or object to the selected entity. They must object within 3 business days.
ASA has received reports from members that that they have been able to select an IDR entity and in other cases where one was randomly assigned. ASA also continues to receive reports from members that the delays in the process have not improved. ASA has informed the agencies of our member experiences and asked specifically that resolution of anesthesia claims be expedited. While the delays are not unique to anesthesia claims and are happening at different points in the Independent Dispute Resolution (IDR) process, they are particularly problematic for anesthesiology practices. The government has stated that these delays are due to the high number of disputes received by the federal agencies and the complexity in determining eligibility of claims under the federal IDR process. However, the evidence is overwhelming that insurance companies are the primary drivers of this problem. Insurers are offering unreasonably low qualifying payment amounts (QPAs) as their initial offers to practices. These rates are leaving practices no choice but to utilize the IDR process to secure an appropriate payment. If insurers would put forth reasonable payment rates for anesthesiologists’ services, the IDR process would not be necessary, and the volume of disputes would drop dramatically.
The federal agencies reported that between April 15th and August 11th more than 46,000 disputes were initiated through the federal IDR portal. The agencies report that the high numbers of disputes received in four months is significantly more than anticipated would be received in a year. Of the disputes initiated between April 15th and August 11th, IDR entities determined payment for only 1,200 disputes. Additionally, insurers have contested the eligibility of 21,000 claims, further slowing the process. That is unacceptable. The government and these IDR entities must act to improve the process to resolve the disputes more expeditiously. And ASA will continue to push the government and Congress to improve this deeply flawed process.
Helpful documents to consult if you are new to the IDR process or already started:
Week of 9/26/2022
Q: Is there a new form that I must use to initiate the 30-day negotiation period?
A: Yes. As background, in general, you have 30 business days from the day you receive an initial payment or a notice of denial of payment from a plan or issuer regarding an item or service to initiate open negotiation with respect to that item or service, including in cases in which information required to be provided is missing. The 30-business-day open negotiation period was created for the disputing parties to try to reach an agreement regarding the total out-of-network rate (including any cost sharing). There is a new form that you must provide to initiate the open negotiation period prior to proceeding with the federal IDR process. The standard open negotiation form and instructions are found at Open Negotiation Notice (dol.gov)Note that the open negotiation period begins on the day that you (as the initiating party) send the open negotiation notice. You may initiate the open negotiation period by sending an open negotiation notice to the other party by mail. You may also send the notice electronically if the following two conditions are met: (1) you have a good faith belief that the electronic method is readily accessible by the other party; and (2) the notice is provided in paper form free of charge upon request. After the 30-business-day open negotiation period has lapsed and no agreement has been met, you may initiate the federal IDR process.
ASA has continued to receive reports from ASA members regarding insurer’s practices of not engaging in any meaningful negotiation during the 30-day period, failing to provide reasons for payment denial as required by the No Surprises Act, and forcing physicians to submit individual claims through insurer created electronic portals to begin the open negotiation provider. The mandated use of a propriety portal is not permissible by the No Surprises Rules. The process to initiate the open negotiation period is described above. ASA continues to inform the responsible federal agencies of these issues and urges the agencies to require insurers to comply with the law’s requirements that when absent hurt anesthesia and other out-of-network physicians.
If you have concerns about a plan’s or issuer’s compliance with the disclosure and other requirements, you may contact the No Surprises Help Desk at 1-800-985-3059 or submit a complaint at https://www.cms.gov/nosurprises/policies-and-resources/providers-submit-a-billing-complaint. The agencies have promised to enforce the applicable provisions of the No Surprises Act, in states where the federal process applies.
Consult these documents during open negotiation and when starting and during the IDR process:
Week of 9/19/2022
Q: Are there resources or guidance for when the state versus the federal Independent Dispute Resolution (IDR) process applies?
A: The question of whether a dispute should be resolved using the federal or a state IDR process remains a subject of much discussion. The federal agencies created two high-level charts to provide some guidance regarding which process applies depending on your state law or All-Payer Model agreement applies for out-of-network rates. Many states also follow a bi-furcated process. They are found at Chart for Determining the Applicability for the Federal Independent Dispute Resolution (IDR) Process (PDF) and Chart Regarding Applicability of the Federal Independent Dispute Resolution (IDR) Process in Bifurcated States (PDF)
Review the IDR State list and the Consolidated Appropriations Act (CAA) Enforcement Letters to determine which states will have processes that apply to payment determinations for the items, services, and parties involved. Federal Employees Health Benefits plans are subject to the Federal IDR process unless The United States Office of Personnel Management contracts with FEHB carriers to include terms that adopt state law as governing for this purpose.
However, ASA has continued to receive reports from ASA members regarding insurer’s practices that make discernment of the proper process difficult. ASA continues to urge the responsible federal agencies to issue additional clarifying guidance on the subject and to require insurers to more clearly identify whether a plan is subject to the state or federal IDR on the plan’s remittance forms.
Other helpful documents to consult if you are new to the IDR process or already started:
Week of 9/12/2022
Q: I had batched anesthesia service claims rejected by the independent dispute resolution (IDR) entity. What guidance is available from the government regarding the proper batching of claims for these services?
A: The government recently released a guidance document (PDF) specifying that anesthesiology practices “may submit a batched dispute involving anesthesia qualified IDR services that are billed using the same CPT code (for example, all claims with CPT code 01999) …”.
This recent guidance comes despite multiple ASA requests to agency officials that anesthesiology practices be permitted to batch all anesthesia claims, regardless of CPT code, for the same insurer that share the same anesthesia conversion factor. Such a practice would reduce administrative burdens on practices, reduce practice expenditures on IDR fees and allow IDR entities to resolve anesthesiology payment disputes more expeditiously and efficiently.
ASA will continue to urge the government to revise its recent guidance to more accurately reflect how anesthesiology practices contract and bill for anesthesia services.
Week of 9/5/2022
Q: My claims have been on hold for months as part of the IDR process. What information does ASA have about delays?
A: ASA is very disappointed with the delays ASA members are experiencing in resolving their payment disputes with insurance companies. ASA has informed the agencies of our member experiences and asked specifically that resolution of anesthesia claims be expedited. While the delays are not unique to anesthesia claims and are happening at different points in the Independent Dispute Resolution (IDR) process, they are particularly problematic for anesthesiology practices. The government has stated that these delays are due to the high number of disputes received by the federal agencies and the complexity in determining eligibility of claims under the federal IDR process. However, the evidence is overwhelming that insurance companies are the primary drivers of this problem. Insurers are offering unreasonably low qualifying payment amounts (QPAs) as their initial offers to practices. These rates are unreasonably low and are leaving practices no choice but to utilize the IDR process to secure an appropriate payment. If insurers would put forth reasonable payment rates for anesthesiologists’ services, the IDR process would not be necessary, and the volume of disputes would drop dramatically.
What is the actual impact of insurers’ behavior? The federal agencies reported that between April 15th and August 11th more than 46,000 disputes were initiated through the federal IDR portal. The agencies report that the high numbers of disputes received in four months is significantly more than anticipated would be received in a year. Of the disputes initiated between April 15th and August 11th, IDR entities determined payment for only 1,200 disputes. That is unacceptable. The government and these IDR entities must do better to resolve the disputes more expeditiously. And ASA will continue to push the government and Congress to improve this deeply flawed process.
If you have claims on hold or if you have successfully navigated the IDR process, we need to hear from you. Email us at nosurprises@asahq.org.
Additional information about this process can be found below:
ASA continues to advocate and gather information that will help members navigate implementation of the No Surprises Act. Access ASA’s NSA toolkit for members for more information.
Week of 8/29/2022
Q: Last week, the Departments of Labor, Health and Human Service, and Treasury published a final No Surprises Act rule titled Surprise Billing, Part 2 Final Rule (PDF). What do I need to know now?
A: The final rule was narrow in scope and specifically addressed only certain pending No Surprises Act (NSA) issues. Most notably, the rule addresses the consideration of the Qualifying Payment Amount (QPA), also known as the median in-network rate, by the independent dispute resolution entity (IDRE). After reviewing the rule, ASA has concluded that the final rule still does not match the statutory description in the NSA. Specifically, the rule skews the IDR process to favor the insurer calculated QPA over other factors Congress specifically directed IDR arbitrators to consider equally with the QPA. ASA is evaluating this final rule in the context of its pending litigation and exploring regulatory and legislative opportunities to address the issue.
In contrast, ASA was encouraged by additional information released by the agencies that seeks to address “phantom” or “ghost” rates. While not addressed in the final rule text, a set of Frequently Asked Questions (FAQs) that accompanied the rule affirms that insurers are “required” to calculate QPAs by provider specialty. The language comes as a result of ASA’s ongoing lobbying to address the inclusion of improper rates in insurers’ calculations of anesthesia QPAs. A recently issued ASA funded study (PDF) found that insurers may have used non-negotiated, never paid rates from primary care contracts to calculate anesthesia QPA. The FAQ language represents a small, yet important step, in ASA’s effort to hold insurers accountable for accurate QPAs.
There are a few actions that you can take now if you are new to the IDR process or already started:
Week of 8/22/2022
Q: Last week, ASA released a significant study regarding Qualified Payment Amounts (QPA). What has ASA learned from the study about how QPAs are calculated or are being used?
A: The ASA paper, jointly funded with the American College of Emergency Physicians and the American College of Radiology, found that some QPAs may be inaccurate. Specifically, the authors of the paper discovered that many primary care providers are contracting with payers/insurers for specialized services including anesthesia services that they rarely or never provide and for which they will likely never be paid. The rates were never actually negotiated so they are probably lower than negotiated, market-based rates. However, because they are contracted rates, payer/insurers may be including them in their QPA calculations. The existence of these lower rates in the QPA calculations could skew the QPA to provide a lower, inaccurate representation of the rates commonly paid for services rendered by in-network providers.
The QPA has considerable weight during the Independent Dispute Resolution (IDR) process and thus its calculation is of paramount concern for anesthesia. As defined by the No Surprises Act Rules, the QPA is the median in-network contracted rate recognized by a health plan for the same or similar service furnished by a provider in the same or similar specialty in the same geographic region. Payer/insurers are using QPAs for their initial payments which, when unreasonably low, force anesthesiologists’ practices to utilize the IDR process. Additionally, the QPA is one of the factors that arbitrators use in adjudicating payment disputes through the IDR process. For the No Surprises Act law to work as intended, accurate and truly representative QPAs are essential. Access the full report and other NSA resources with the No Surprises Act Tool Kit.
Week of 8/15/2022
Q: How long should it take for the IDR entity to adjudicate my dispute with the insurer?
A: Once you and the insurer have submitted your payment offers and supporting material to the independent dispute resolution entity (IDRE), the arbiter is required to make a binding decision in 30 business days. However, ASA has heard from members that the process is taking months, due to payers placing the claims on “hold.” These “holds” pause the 30-day countdown. If that is your situation, contact us at nosurprises@asahq.org. You can also file a complaint if the IDR entity or payer at Centers for Medicare & Medicaid Services No Surprises Help Desk at 1-800-985-3059 from 8 am to 8 pm EST, 7 days a week, or use this online Provider Complaint Form (cms.gov) to submit your complaint. Note: Business days are counted and defined as 8 a.m. to 5 p.m. Monday through Friday, excluding federal holidays.
Week of 8/8/2022
Q: For a self-pay or uninsured patient, if billed charges are “substantially in excess” of the Good Faith Estimate (GFE) furnished by a convening provider, which provider may be held responsible for the excess charges? The convening provider or the co-provider whose charges did not match the furnished GFE?
A: The provider whose total exceeds by $400 or more can be pulled into the IDR process. It does not matter whether the provider is a co-provider’ or convening provider. Anesthesiologists are co-providers in most cases, but pain physicians may be convening providers.The convening and co-provider requirements related to the GFE requirements are set to take effect on January 1, 2023, but the agencies are asking providers to begin using updated forms and procedures that were posted last month. See detailed provider requirements and resources from CMS.
Week of 7/29/2022
Q: Can an anesthesiologist still bill for services if the Good Faith Estimate (GFE) was not provided in advance (because they did not know about the patient’s insurance status)?
A: No. One of the requirements that went into effect January 1, 2022, of the No Surprises Act is for physicians and providers to inquire about patient insurance status and whether the patient plans to use their insurance for your services. See provider requirements and resources for details or email your question to provider_enforcement@cms.hhs.gov.
Week of 7/18/2022
Q: If there is a $600 overage, spread among three physicians, who will mediate among the physicians in terms of the discrepancy? Will the Independent Dispute Resolution (IDR) entity communicate repayment requirements? Or does it need to be worked out among the physicians with the convening provider mediating?
A: The dispute resolution process is triggered at $400 or over, but it does consider individual physician and other provider components. An IDR entity can see what an anesthesiologist or surgeon expected to charge for items and services to out-of-network patients. If there is an overage, an IDR entity would be able to determine who has the $400 overage. Providers do not need to work this out among themselves. For detailed information including the slides and recordings of recent presentations by the federal agencies for physicians on the CMS website under provider requirements and resources.
Week of 6/27/2022
Q: I have questions about notice, consent, and enforcement. Where can I learn more about these?
A: The Centers for Medicare & Medicaid Services and Center for Consumer Information and Insurance Oversight will present information on surprise billing, notice and consent and enforcement during a webinar on July 13th for physicians and other clinicians. The federal agencies will have subject matter experts presenting. Below is information for the webinar, the latest guidance from the agencies and ASA on these topics:
Week of 6/20/2022
Q: When will there be updated implementation guidance from the government?
A: Federal officials have suggested that there will be a final independent dispute resolution (IDR) process rule issued by early summer. However, due to recent successful challenges to the law’s rules, the latest guidance includes:
Week of 6/6/2022
Q: Why does the initiating party have to submit an independent resolution process (IDR) initiation request? Why can't that be done through the IDR portal?
A: The initiating party submits the notice of IDR initiation through the portal. They must also send the notice of IDR initiation to the non-initiating party.
Regarding the process, after receiving a claim, insurers have 30 days to make a payment. If the physician believes the payment is insufficient, they have 30 days to trigger a negotiation, which can last up to 30 days. Assuming the dispute is unresolved, the IDR process can be initiated any time during the four days following the end of the negotiation period. The process is triggered when one party, usually the physician, provides a written Notice of IDR Initiation to the other party, generally the insurer, and furnishes the Notice of IDR Initiation via the Federal IDR portal. In communications with the regulating federal entities, ASA has specifically asked for changes to the process to ease anesthesiologists’ notification of initiation.
Learn more with the member exclusive No Surprises Act Toolkit
Week of 5/30/2022
Q: Does the specific state law for surprise billing override the federal? I keep getting negotiations returned that they don't meet state guidelines for negotiation, but I feel they meet the federal guidelines.
A: Yes, the federal IDR process does not apply when there is a state law, or an all-payor model agreement establishes a method for determining the final out of network payment amount. However, the federal IDR process may still apply to federally regulated plans frequently used by large companies and unions. The federal agencies have released specific guidance to most, but not all, states regarding the application of the NSA. However, the guidance can be difficult to interpret. In a recent meeting with federal officials, ASA urged the responsible federal agencies to issue clarifying guidance on subject and to require insurers to more clearly identify whether a plan is subject to the state or federal IDR on the plan’s remittance forms. Currently, 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.
Week of 5/23/2022
Q: Related to the dates and timelines for negotiations preceding and through the IDR process, some dates are on the day something is sent, others are on date received, is there a resource that clarifies this for each date?
A: The Departments issued guidance where all applicable dates can be found starting on page 7 of IDR Process Guidance for Disputing Parties document (PDF).
Week of 5/9/2022
Q: What is meant by 30 business days versus 30 calendar days as it relates to initial payment or denial of payment for furnished services?
A: 30 calendar days is regarding initial payment or denial. Plans must pay the out-of-network provider an amount in accordance with a state All-Payer Model Agreement or specified state law, if applicable. In the absence of an applicable All-Payer Model Agreement or specified state law, the plan must make an initial payment or a denial of payment within 30 calendar days. If either party believes that the payment amount is not appropriate (it is either too high or too low), it has 30 business days from the date of initial payment or denial of payment to notify the other party that it would like to negotiate. Once notified, the parties may enter a 30-business-day open negotiation period to determine an alternate payment amount.
Week of 5/2/2022
Q: Can payors require physicians and health care professionals to provide all the credible information that would be used in the event of future arbitration to negotiate? For example, in its response to our Open Negotiation Notice, several insurance plans have requested we answer all the information requested prior to participating in negotiations. Without that information, they refuse to negotiate beyond the Qualified Payment Amount (QPA).
To facilitate communication between parties and compliance with this notice requirement, the federal agencies have issued a standard notice (see Appendix B in IDR guidance for Notice of Open Negotiation Template) that the parties must use to satisfy the open negotiation notice requirement. As long as this information is provided then the Open Negotiation Requirements should be met. Download the Open Negotiation Notice (PDF).
Week of 4/25/2022
Q: The Federal Independent Dispute Resolution (IDR) process to resolve payment disputes for certain out-of-network charges is open. Where do I get more information?
A: The Centers for Medicare & Medicaid Services opened the Federal Independent Dispute Resolution (IDR) process last week. More information about how to initiate the IDR process can be found on the federal IDR site. In addition, here are recently revised documents that include:
And continue to visit the ASA No Surprises Toolkit for the most relevant information for anesthesia and where the full list of Federal resources can be found.
Week of 4/18/2022
Q: What should anesthesiology practices do if an out-of-network payer sends an initial offer but omits other required information, such as the qualifying payment amount, from such offer?
A: ASA has become aware that some insurers are responding to the submission of out of network claims by sending remittance forms that do not include information required by the implementing regulations of the No Surprises Act. Most importantly, an accurately calculated qualifying payment amount (QPA) must be provided. If that is the case, the insurer is not following the law. Per current federal guidance, practices can file a complaint using the NSA billing complaint weblink or call the Help Desk at 1-800-985-3059. Supporting documentation may be required. ASA is also actively notifying policymakers of insurers activities that are not complaint with the law and its related regulations.
The online Independent Dispute Resolution (IDR) portal was planned to launch the week of April 11th. ASA is still closely monitoring the status of the portal and will share information with ASA members once the site is launched and operative.
Week of 4/11/2022
Q: What is ASA doing about the No Surprises Act?
A: ASA is seeking to ensure that anesthesiologists are able to secure fair payments from insurers under the No Surprises Act (NSA). To that end, ASA have five key initiatives underway to educate, support, and advocate for members.
Follow ASA’s ongoing work at: FDA and Washington Alerts and ASA Materials on Surprise Billing.
Week of 4/4/2022
Q: What are the federal agencies saying to patients about the No Surprises Act?
A: Medicare created a site for patients at Consumers | CMS that discusses the rules, rights of patients, how to file a complaint about a medical experience, and how to resolve a payment dispute. It also advices uninsured or self-pay patients how to obtain their good faith estimates before obtaining an item or service.
Week of 3/28/2022
Q: How is the Qualified Payment Amount (QPA) calculated?
A: The Centers for Medicare & Medicaid Services outlined how the qualified payment amount (QPA) is calculated in this PDF document. In general, the QPA for a given item or service is generally the median contracted rate on January 31, 2019, for the same or similar item or service, increased for inflation. For anesthesia services furnished during 2022, the QPA is calculated by taking the median contracted rate for the anesthesia conversion factor (determined in accordance with the methodology for calculating median contracted rates for service code-modifier combinations) for the same or similar item or service as of 1/31/2019, and increasing that amount to account for changes in the CPI–U. This amount is referred to as the indexed median contracted rate, and it is multiplied by the sum of the following three factors to calculate the QPA: (1) the base unit for the anesthesia service code (2) the time unit, and (3) the physical status modifier unit. For anesthesia services furnished during 2023 or a subsequent year, the QPA is calculated by taking the indexed median contracted rate for the anesthesia conversion factor and adjusting that amount by the percentage increase in the CPI– U over the previous year. The indexed median contracted rate is then multiplied by the sum of the base unit, time unit, and physical status modifier units for the participant, beneficiary, or enrollee.
Week of 3/21/2022
Q: What are the disclosure requirements that my practice must meet to comply with the Good Faith Estimate (GFE)? And do they apply to an office-based pain practice?
A: The No Surprises Act requires that providers – both hospital and office-based – offer a good faith estimate to uninsured or self-pay patients (including those with insurance that prefer not use their benefits) before scheduled services or upon request. Convening providers (those who scheduled the services), such as Pain Medicine physicians must provide a GFE upfront. Anesthesiologists must provide a GFE for their anesthesia services to the convening provider (surgeon or proceduralist) as part of the overall GFE for a patient. For details on this consult pages 4-6 of the Implementing the No Surprises Act Overview PDF download.
Week of 3/14/2022
Q: Recently, a federal judge in Texas invalidated parts of the surprise medical billing regulations related to the arbitration process for determining payment for services by out-of-network providers. What happens now?
A: The No Surprises Act intended for the arbiter to consider several factors when determining fair payment, including prior contracted rates for the same medical service, the physician’s training and experience, and case complexity, and not give primacy to the insurer calculated Qualifying Payment Amount (QPA). The independent dispute resolution (IDR) requirements and/or processes will be changing due to the Texas ruling, e.g., how factors are considered as part of the arbitration process including the weighting of the QPA.
Specifically, in order to comply with the Court’s ruling, the federal agencies have withdrawn their public guidance related to the IDR process as they consider whether to appeal the Court’s ruling. In the interim, the agencies must rewrite the specific regulations and reissue revised guidance which eliminates the primacy of the QPA. ASA is closely monitoring the federal agencies communications for the release of the revised regulations and guidance. To date, the IDR portal is not yet available.
Week of 3/7/2022
Q: How many independent dispute resolution entities are there? Where can I access information about them?
A: There are currently 10 certified independent dispute resolution (IDR) entities. Access the List of certified organizations | CMS. Once the IDR process is initiated, the payer and the provider have three business days to agree on an arbiter. If they do not come to agreement, the Secretary of HHS will select one for them in the next three business days.
At the time of writing this Question of the Week, the IDR portal was not yet open.
Week of 2/28/2022
Q: How do providers initiate the independent dispute resolution (IDR) process? How do I register for the IDR portal?
A: The No Surprises Act created an IDR process to resolve out-of-network payment disputes between insurers and physicians that are subject to the federal law. The primary mechanism to engage in the IDR process is a federal online IDR portal. ASA believes that the portal is scheduled to be formally launched in the coming weeks.
With regard to process, after receiving a claim, insurers have 30 days to make a payment. If the physician believes the payment is insufficient, he or she has 30 days to trigger a negotiation, which can last up to 30 days. Assuming the dispute is unresolved, the independent resolution process can be initiated any time during the four days following the end of the negotiation period. The process is triggered when one party, usually the physician, provides a written Notice of IDR Initiation to the other party, generally the insurer, and furnishes the Notice of IDR Initiation via the Federal IDR portal.
NEW! No Surprises Resource: As part of ASA’s efforts to support you, we now have FAQs on the No Surprises Act.
Week of 2/21/2022
Q: How do I determine if the Federal No Surprises Act or my individual state surprise medical bill law applies to each claim?
A: The federal agencies have released specific guidance to most, but not all, states regarding the application of the NSA. 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.
As you engage in the payer negotiation and/or IDR processes within the No Surprises Act, ASA is very interested to hear from members through a new form we have created. The information we receive from you will be used to develop resources to support anesthesiologists as they navigate their way through the NSA process. Please do not send specifics on rates or other protected information. Note that this is different from the survey asking about how insurance companies are reacting to the No Surprises Act.
Week of 2/14/2022
Q: I submitted an out-of-network claim in January and I received a payment back that was unusually low. What do I do now?
A: ASA is aware that some insurers appear to be using this process to report unreasonably low Qualifying Payment Amounts. If you receive a payment from the payer with an anesthesia conversion factor that you consider too low, the law and regulations permit you to initiate a 30-day open negotiation period with the payer to negotiate a more appropriate conversion factor. If that fails, you may then enter into the Independent Dispute Resolution (IDR) process.
To initiate the open negotiation period, you must provide notice to the insurer within 30 business days of receiving initial payment or notice of denial of payment for the service. As part of your response to the insurer, you can ask for the reason for the low payment. Once the insurer confirms that it is a result of the NSA, then you can inquire whether it is subject to the federal or state IDR process (the No Surprises Act is not intended to displace state balance billing laws). The open negotiation period begins on the day that you send the open negotiation notice. The government has provided Open Negotiation Notice instructions (PDF). You may initiate the open negotiation period by sending the notice to the insurer by mail or electronically under certain conditions. The implementing rules require that the insurer provide the contact information, including a telephone number and email address, for the appropriate person or office to initiate open negotiations. Be sure to save copies of any correspondence you send to the insurer. Because this process is new, ASA does not yet have best practices to recommend for the 30-day negotiating period. These will be forthcoming as we receive additional information from our members.
In countering the initial payment amount, you may want to include information such as rates from a national recognized database such as FAIR Health, complexity of the case, and previously contracted rates. The result of ASA’s Annual Commercial Conversion Factor survey published each year in the October edition of the ASA Monitor may also provide helpful information to you in this negotiation as it represents contracted in-network amounts nationally, by region, and, in some instances, by state. The rule requires that the full 30-day period be exhausted before the disputed claim(s) may be brought to the IDR process. The IDR process will use an online portal that has not yet been publicly released as of the date of this MMO.
As you engage in the payer negotiation and/or IDR processes within the No Surprises Act, ASA is very interested to hear from members through a new form we have created. The information we receive from you will be used to develop resources to support anesthesiologists as they navigate their way through the NSA process. Please do not send specifics on rates or other protected information. Note that this is different from the survey asking about how insurance companies are reacting to the No Surprises Act.
Week of 2/7/22
Q: What can I expect for an out-of-network bill submitted January 1, 2022?
A: Prior to January 1, 2022, out-of-network (OON) physician anesthesiologists after providing OON patient care would bill the patient’s insurance company, and in many circumstances could balance bill patients when an insurer’s payment did not cover the full cost of care and services provided. Effective January 1, 2022, out-of-network anesthesiologists providing care, including emergency services, to patients in an in-network hospital, hospital-based outpatient department, and critical access hospital or ambulatory surgery center are prohibited from balance billing patients. [Hospital-based physicians, including anesthesiologists, are barred from using the notice and consent process.] To settle payment disputes for patient care protected under the No Surprises Act, physicians must engage in a 30-day negotiation period with the insurer. If after the negotiation period the insurer still refuses to provide a reasonable payment, the anesthesiologist may enter the federal independent dispute resolution process (as applicable) to determine final payment amounts.
These requirements do not apply for patients with insurance coverage through Medicare, Medicaid, Indian Health Services, Veterans Affairs Health Care, TRICARE, or in states with balance billing laws already in place for state regulated insurance. These programs have different requirements for surprise medical billing.
To learn more, you can read this high-level overview of No Surprises Act provider requirements (cms.gov) (PDF).
Week of 1/31/2022
Q: What if a facility-based co-provider, (e.g., anesthesiologist) is requested to provide a Good Faith Estimate (GFE) by a patient—hasn’t CMS said that they will delay enforcement of the GFE requirements on co-providers?
A: This scenario may be rare and the enforcement of GFEs on co-providers has been delayed until January 1, 2023. Most GFE requests will come through the surgeon or hospital (the convening provider— the provider responsible for scheduling the primary service). However, every anesthesia practice may want to start generating a list of GFEs by payer/surgical CPT/surgeon for typical cases. In lieu of providing the information to the surgeon or hospital, ASA is exploring whether the anesthesiologist may request that the convening provider forward the patient request to the anesthesiologist, who could then provide the GFE.
It is important to note that when the patient directly requests the GFE from an anesthesiologist as noted in the question above the anesthesiologist assumes the status of a convening provider. CMS has made very clear, that in this scenario, enforcement delay is not applicable, and the physicians would be required to produce the GFE or face potentially penalties for failure to comply. [Per the regulation, the estimate requirement does not currently appear to carry any direct monetary penalties or fines for overestimating, but a provider cannot underestimate by more than $400.
A patient may still initiate the dispute resolution process in the No Surprises Act if the total amount charged to the patient (per provider) is at least $400 more than the charges listed in the estimate.] Learn more about Good Faith Estimates FAQ 12.21.2021 FINAL (cms.gov)
Week of 1/24/22
Q: What do I need to know now?
A: The three most important things to know right now are:
Which, if any, out-of-network claims will be covered by your state law versus the federal No Surprises Act. Please see CAA Enforcement Letter – Consolidated Appropriations Act, 2021 (CAA).
The basics of providing a good faith estimate to an uninsured or self-pay patient. See Good Faith Estimates FAQ 12.21.2021 FINAL (cms.gov) (PDF) and/or HHS PPDR Providers Guidance (cms.gov) (PDF).
This is a brand-new initiative, and we need your feedback to make sure we’re offering you the most helpful resources possible. Send your comments and questions to nosurprises@asahq.org.
Curated by: the ASA Department of Economics and Practice Innovation
Date of last update: February 7, 2023
