How Emergency Medicine Providers Can Improve Their Bargaining Power During Open Negotiation and IDR

Medicine is not the glamorous profession it once was. Between the annual Medicare rebalancing of fee schedules and payers’ wily and sometimes deceitful tactics to minimize their responsibility, the financial pressure on providers is reaching the breaking point. 

Nowhere is the squeeze more apparent than for emergency medicine (EM) physicians and emergency medical service (EMS) air ambulance providers, who provide critical, emergency care and are often out of network. Under the No Surprises Act (NSA), payers reimburse out-of-network providers at the qualifying payment amount (QPA) — the median contracted rate paid to in-network physicians, hospitals, and others on January 31, 2019, for the same or similar service, adjusted for inflation. However, providers are taking issue with the way the QPA is calculated and arguing that it is unfairly below market rates.

Until and unless the NSA final rule is changed1, out-of-network EM and EMS providers will continue to be challenged by payers seeking to reimburse them at below-market rates based on what many see as a flawed implementation of the NSA. When a provider receives an initial payment or denial of payment from the payer, they have 30 business days to initiate the open negotiation period under NSA rules. The period is up to 30 days in duration, after which the provider or the payer can initiate the Federal Independent Dispute Resolution (IDR) process.

Providers are better off resolving disputes directly with payers during the open negotiation period so that they can collect delayed reimbursement as quickly as possible. It is to their advantage to avoid arbitration under IDR because the federal process requires considerable time and resources, and there are both IDR and administrative fees that add to the cost. However, most payers are not engaged during the open negotiation period.

With the scales tipped to the payers’ advantage, how can providers enter open negotiation and the IDR process, confident in their position? Preparation and documentation are key. EM and EMS providers should take a strategic approach:

  • Build the argument ahead of time.
  • Clearly frame the provider position and be ready to defend it.
  • Use data to back up the provider position and ensure that payment requested is consistent with other similar providers in the area.

Providers can increase their bargaining power by obtaining actionable intelligence into the payer’s actual QPA and average reimbursement rates for similar procedure codes in their area. By ingesting and enhancing millions of medical claims, healthcare data solution providers can produce detailed reports that give providers the data they need to prepare for working directly with payers and strengthen their position during open negotiation and the IDR process.

Not all healthcare data products are equal, however, and providers should ensure that the information they are seeking will give them the level of confidence they need to succeed in negotiations. Specifically, providers should understand whether the intelligence they are purchasing is based on a robust database of actionable healthcare claims data. Capabilities to look for include:

  • Ability to view total payment trend by payer and CPT code back to January 31, 2019
  • Ability to compare provider rates against average reimbursement rates in their area for the same or similar procedure codes
  • Independent market data on QPA calculations to enable comparison to the QPA specific payers are providing

Healthcare reimbursement rates are declining. EM and EMS providers need more visibility into market rates and payer behaviors to negotiate with payers from a position of strength and battle NSA regulations based on actual healthcare claims data. Access to healthcare intelligence on charges, payments, and denials supports providers’ efforts, and moreover, it fosters market transparency in an environment where anti-trust and collusion statutes prohibit providers from sharing data or payer negotiation best practices with each other. 

Payers have had all the insight for years, and they have had disproportionate leverage as a result. Healthcare intelligence products based on de-identified claims data, such as ZOLL® Claims Clarity,™ are giving providers a fighting chance to level the playing field.


1. As of August 24, 2023, CMS advises via the website,“As a result of the TMA III decision, effective immediately, the Departments have temporarily suspended all Federal IDR process operations until the Departments can provide additional instructions. Disputing parties should continue to engage in open negotiation.” Accessed 1 September 2023.

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