On September 30, 2021, the U.S. Department of Health and Human Services (HHS) issued the second Interim Final Rule with Comment (IFC Rule) implementing provisions to the No Surprise Act (NSA). This rule builds on the July 1, 2021 rule. The comment period is open for 60 days from publication.

The IFC Rule proposes:

  • The Independent Dispute Resolution (IDR) process that out-of-network (OON) providers and payers must use to determine the OON rate after unsuccessful negotiations.
  • The provider or facility must provide a good faith estimate of expected charges for items and services to an uninsured individual.
  • A dispute resolution process to determine a fair payment amount when an uninsured individual receives a bill in substantial excess of the good faith estimate.


As part of the Consolidated Appropriations Act signed into law December 27, 2020, the No Surprises Act was passed. This law is set to go into effect on January 1, 2022. The Act directs HHS to establish rules for various provisions of The Act through rulemaking. Under The Act, payers, and providers (including hospitals, facilities, individual practitioners, and air ambulance providers) are prohibited from billing patients more than in-network cost-sharing amounts in certain circumstances. The prohibition applies to both emergency care and certain non-emergency situations where patients do not have the ability to choose an in-network provider. The Act’s intent is not to preempt existing state laws, but due to variance among states, aims to provide coverage alongside state law to ensure broad protections.

Independent Dispute Resolution:

The IFC Rule requires that before initiating the federal independent dispute resolution process, disputing parties must initiate a 30-day “open negotiation” period to determine a payment rate. In the case of a failed open negotiation period, either party may initiate the federal independent dispute resolution process. After a certified independent dispute resolution entity is selected, the parties will submit their offers for payment along with supporting documentation. The certified independent dispute resolution entity will then issue a binding determination selecting one of the parties’ offers as the OON payment amount.

When making a payment determination, certified independent dispute resolution entities must begin with the presumption that the Qualifying Payment Amount (QPA) is the appropriate OON amount. The QPA is generally the plan or issuer’s median contracted rate for the same or similar service in the specific geographic area (full QPA calculation outlined in July rulemaking). If a party submits additional information that is allowed under the statute, then the certified independent dispute resolution entity must consider this information if it is credible. For the independent dispute resolution entity to deviate from the offer closest to the QPA, any information submitted must clearly demonstrate that the value of the item or service is materially different from the QPA. Without this additional information, the certified independent dispute resolution entity must select the offer closest to the QPA.

AMA and ACR Opposition

The American Medical Association (AMA) and American College of Radiology (ACR) have both opposed this provision of the IFC. Both have expressed concerns that the methodology for calculating the QPA and its weight in the IDR entity’s determination will lead to negotiation leverage greatly tilting in favor of the insurance companies.

AMA Opposition

ACR Statement


Good Faith Estimates for Uninsured:

Under the IFC Rule a good faith estimate must include expected charges for the items or services that are reasonably expected to be provided together with the primary item or service, including items or services that may be provided by other providers and facilities.  For example, for a surgery, the good faith estimate might include the cost of the surgery, any labs or tests, and the anesthesia that might be used during the operation. If an item or service is something that isn’t scheduled separately from the surgery itself, it will generally be included in the good faith estimate. Other items or services related to the surgery that might be scheduled separately, like pre-surgery appointments or physical therapy in the weeks after the surgery, won’t be included in the good faith estimate.

For individuals who schedule care at least three business days in advance, the good faith estimate must be provided within one business day after the date of scheduling. If care is scheduled at least 10 business days in advance, the good faith estimate must be provided within three business days of scheduling. The same timeline of three business days applies if the patient requests a good faith estimate but care has not been scheduled (and the patient should receive a new, second good faith estimate once care has actually been scheduled). The good faith estimate must be provided in writing to the patient or their authorized representative with the ability to be saved or printed and understood by the average uninsured or self-pay individual.

HHS states that it understands that it may take time for providers and facilities to develop systems and processes for providing and receiving the required information from others. Therefore, for good faith estimates provided to uninsured (or self-pay) individuals from January 1, 2022, through December 31, 2022, HHS will exercise its enforcement discretion in situations where a good faith estimate provided to an uninsured (or self-pay) individual does not include expected charges from other providers and facilities that are involved in the individual’s care.

Patient-Provider Dispute Resolution for Uninsured:

In a situation where an uninsured (or self-pay) individual receives a good faith estimate and then is billed for an amount substantially in excess of the good faith estimate, HHS establishes in the rule a patient-provider dispute resolution process to determine a payment amount.

A patient’s bill will be determined eligible for the patient-provider dispute resolution process if the patient received a good faith estimate, if the process is initiated within 120 calendar days of the patient receiving the bill, and if the bill is substantially in excess of the good faith estimate. HHS has defined “substantially in excess” as the billed charges being at least $400 more than the good faith estimate for any provider or facility listed on the good faith estimate.


Resources for the No Surprises Act Interim Final Rule

The third regulation is expected by Dec. 27, 2021 and will detail the independent resolution dispute (IDR) process. As always, ADVOCATE will continue to keep you informed on the issues impacting medical groups as they develop.

Colton Zody, JD, CHC

Chief Compliance Officer