Mid-Atlantic Health Law TOPICS

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No Surprises Act– A New and Improved Proposed Rule

The No Surprises Act (NSA), effective January 1, 2022, generally protects patients from receiving unanticipated bills for emergency care rendered by providers who do not participate with the patient’s insurance coverage (out-of-network providers), and includes a prohibition on certain out-of-network providers balance billing patients.

The law also requires that the patient’s insurer reimburse the out-of-network provider the rate provided either by a state All-Payer Model Agreement (such as Maryland’s All-Payer Model), other state law that sets the reimbursement rate for the service, or in the absence of both of those, an amount (1) agreed to by the insurer and the out-of-network provider or (2) determined through an independent dispute resolution (IDR) process.

Judicial Intervention 

In August 2023, two court orders were issued once again halting the IDR process by vacating certain portions of the out-of-network billing regulations, focusing on the calculation of the “qualifying payment amount” used to settle disputes between providers and insurance companies over the amount owed to providers.

The New Rule 

As a result, in October 2023, the Centers for Medicare and Medicaid Services released new proposed rules for the dispute resolution process that contain the following elements:

  1. Payers must include additional information with their initial payments or denials, such as the qualifying payment amount and contact information for initiating the open negotiation period. 
  2. The provider must provide an open negotiation notice to the payer and the Department through the federal IDR portal to initiate the open negotiation period, which will start the open negotiation period of 30 days. 
  3. The receiving party must file an open negotiation response notice to the other party and the Department by the 15th business day of the open negotiation period. 
  4. Increased flexibility to “batch” claims into one dispute for settlement.
  5. Eligibility determinations by IDR entities must be done within five business days.

Noticeably absent are the previously objected to elements that directed the IDR entities in how to weigh the information submitted when making a determination regarding the reimbursement rate. 

Darci M. Smith
410-576-4153 • dsmith@gfrlaw.com


March 13, 2024




Smith, Darci M.


Health Care