Some aspects of this eligibility review are straightforward. For example, out-of-network office-based procedures and non-emergency services provided at out-of-network facilities are not covered by the NSA. Similarly, claims tied to insurance programs not subject to the NSA—such as Medicare, Medicaid, TRICARE, or Retiree Plans—are automatically ineligible.

Other ineligibility determinations can be more complex. Questions often arise as to whether the provider met the time-sensitive deadlines for initiating negotiations or filing for IDR, whether a specific State law governs the claim, whether the claim is subject to the NSA’s “cooling-off” period, or whether multiple claims were batched incorrectly. Determining when a State law applies can be especially challenging, as it depends on factors such as whether the State law covers the type of insurance involved, whether the services fall within the State’s jurisdiction, whether the State has its own dispute resolution process, and whether the services were performed in the same State where the insurance policy was issued.

Compliance with the NSA’s strict timelines can also be difficult to assess. Although counting days appears simple, in practice, payors often issue the Explanation of Benefits (EOB) long after payment, or the EOB may fail to include the NSA-required disclosures. In such cases, a provider may still have valid grounds to argue that negotiation or IDR initiation was timely, despite the EOB’s date.

Challenging an ineligibility determination is a crucial part of the NSA process. Having the appropriate expertise, documentation, and internal procedures is vital because a failure to respond promptly can result in the permanent closure of the dispute. At CHRMS, we maintain well-defined and detailed processes to review and contest eligibility determinations we believe are incorrect, ensuring that claims can continue through the IDR process and that our clients have every opportunity to obtain additional reimbursement.

When a claim falls under the NSA, it must be processed using the patient’s in-network cost-sharing amounts, and the patient cannot be billed for any additional balance. Instead, any payment disputes must be resolved directly between the provider and the payor through the NSA’s established dispute resolution process.

In limited circumstances, a patient may choose to waive these protections and consent to be billed by an out-of-network provider. This waiver is permitted only when a nonparticipating provider or nonparticipating emergency facility provides post-stabilization services, or when a nonparticipating provider delivers non-emergency services during a visit to an in-network health care facility. However, this waiver is not valid for emergency, ancillary, or unforeseen services.

Ancillary services that can never be waived include items and services related to emergency medicine, anesthesiology, pathology, radiology, and neonatology, regardless of whether they are provided by physicians or non-physician practitioners. Other non-waivable services include those provided by assistant surgeons, hospitalists, intensivists, and diagnostic services such as radiology or laboratory testing. Additionally, if there is no in-network provider available at the facility to perform the needed service, the patient cannot waive NSA protections.

To obtain a valid waiver, providers must meet specific notice and consent requirements. The patient must be given and must sign the standard NSA Notice and Consent form at least 72 hours prior to a scheduled procedure or at least three hours in advance for same-day scheduled services. The form must list all expected CPT codes, the anticipated charges, and must be dated, time-stamped, and signed by the patient to show compliance with the NSA. A copy of the signed consent form must also be submitted with the claim at or before the time of submission. The official CMS Notice and Consent Decision Tree provides further guidance and can be found here.

Ultimately, the decision to waive NSA protections rests entirely with the patient. Providers may still choose to treat a patient without a signed waiver; however, in those cases, the claim must be processed under the NSA, and the patient remains protected from balance billing and limited to in-network cost-sharing obligations.

Each claim involves multiple factors that can independently influence where it should be directed. These factors may include whether the services were provided in an emergency or scheduled setting, whether the patient signed any documents waiving federal or state protections, the location of service delivery, the patient’s type of insurance or benefit coverage, and whether the claim was fully or partially allowed or denied.

In many cases, this information is not immediately available. Overlooking these details can result in missed opportunities and claims timing out before additional reimbursement can be pursued. Successfully managing out-of-network claims requires a thorough understanding of these variables, efficient information-gathering methods, and well-defined workflows to navigate this complex process.

At CHRMS, we have specialized in managing out-of-network claims for more than a decade. Our ongoing refinement of processes and deep understanding of payer practices and evolving regulatory requirements enable us to deliver optimal results for our clients.

Despite this clear federal requirement, delays in payment are common, and providers must often engage in extensive follow-up efforts to secure the awarded funds. The challenge is compounded by the fact that each insurer maintains its own internal processes for administering NSA-related payments, leading to inconsistencies and prolonged communication timelines. In some cases, payors attempt to challenge dispute eligibility even after an IDR decision has been rendered, which further postpones payment.

Given these realities, a proactive, multi-pronged enforcement strategy is essential for ensuring timely payment of IDR awards. Reliance solely on call follow-ups or standard claim inquiries is rarely effective. Instead, a combination of systematic monitoring, formal written demand letters, and when necessary, regulatory escalation to federal or state oversight agencies is required. Filing complaints with the Centers for Medicare & Medicaid Services (CMS), the U.S. Department of Labor (DOL), or the Office of Personnel Management (OPM)—depending on the plan type—remains the most established administrative pathway for enforcement. However, as the regulatory landscape evolves, litigation strategies are beginning to emerge, although these remain uncertain and vary widely by jurisdiction.

At CHRMS, we have developed a structured approach to IDR award enforcement that prioritizes early identification of non-payment risks, tracking of payment timelines, and prompt escalation when violations occur. We maintain close communication with payors and utilize a combination of administrative and legal channels to expedite payment. Additionally, through our affiliate law firm, Cohen Howard, we are able to provide legal advocacy and enforcement support when payors fail to comply with the NSA’s payment mandates. This integrated process enhances payment of awards so that our clients are receiving the value of their IDR awards and that their rights under the No Surprises Act are enforced.