Congress passed the No Surprises Act (NSA) in 2022 to protect consumers from unexpected surprise medical bills arising from out-of-network care in emergency or non-emergency settings. One key feature of the NSA is that it takes the patient out of the equation and leaves it to the insurance company and the medical provider to work out how much the provider will be paid; if they cannot agree, the amount is decided in arbitration.
The No Surprises Act (NSA) open negotiation period is a mandatory 30-business-day window where out-of-network healthcare providers and health plans attempt to settle payment disputes directly before initiating Independent Dispute Resolution (IDR).
At first glance, open negotiation looks simple: the provider and the insurer talk, and maybe settle. However, looks can be deceiving. There are many pitfalls that can cause you to lose your claim or result in you being at a serious disadvantage in arbitration. The offer you put on the table and the record you build during these weeks directly impact the IDR if negotiation fails.
What Is the NSA Open Negotiation Period?
Open negotiation is the mandatory 30-business-day window in which the provider and the health insurer attempt to agree on an out-of-network rate directly, without an arbitrator. The parties cannot avoid going through it. Federal law requires the parties to negotiate in good faith before either side can initiate IDR. If you reach an agreement, the dispute is over, and you are paid the agreed amount. If you do not, either party can then elect arbitration during a fixed time period.
If arbitration is requested, a specific process follows: IDR is “baseball-style” arbitration: each side submits a single final offer, and the arbitrator must pick one or the other. The arbitrator cannot split the difference.
Timeline and Deadlines
The process begins when the insurer issues its initial payment or a notice of denial. From the date the provider receives it, it has 30 business days to initiate open negotiation by sending an open negotiation notice. This notice consists of a standardized form identifying the claim, the initial payment, and the counteroffer.
Sending that notice starts the 30-business-day open negotiation period. During this window, either party can exchange offers, counteroffers, and supporting information in an effort to settle.
If no agreement is reached by the end of those 30 business days, you have a narrow four-business-day window to initiate IDR. If you miss this deadline, the provider may lose the ability to dispute the payment entirely.
A recent change has affected this timeline. Under the 2026 Federal IDR Operations final rule, open negotiation notices are being moved onto the federal IDR portal, and the non-initiating party will be required to submit an open negotiation response notice by the 15th business day of the 30-day period.
What to Submit During Open Negotiation
The open negotiation notice contains identifying information for the provider and plan, the specific items or services in dispute, the claim number, the initial payment amount or denial, and the amount the provider is proposing.
However, providers must be mindful when submitting materials and negotiating during this period. Kotlar Cohen has found that providers who recover the most use open negotiation to present a persuasive package to the payer, not just a number. That package should include the itemized claim and CPT/procedure codes, the relevant medical records, and documentation of anything that made the case more complex or resource-intensive.
Everything you submit as evidence at that time will be used in an arbitration. An offer and rationale you can defend now is far stronger than one you have to walk back later.
Negotiation Strategy: Documentation, Benchmarks, and Comparable Rates
A strong negotiation position rests on a defensible number backed by credible evidence. Start by closely examining the insurer’s qualifying payment amount (QPA), or the plan’s median contracted rate. This is typically the number the insurer will lean on. QPAs are frequently calculated in ways that understate fair value, and identifying weaknesses in how the insurer calculated its QPA is often extremely valuable.
From there, document evidence such as usual and customary charges for the service in your geographic area, comparable in-network rates, independent databases such as FAIR Health, and your own historical contracted rates for similar work. You can also include case-specific factors that are recognized by the NSA, such as the complexity of the service and the provider’s level of training and experience.
Document everything in writing and keep a record of every offer and response. Insurers often use open negotiation to delay rather than settle, standing by their initial payment in the hope that the provider gives up or lets a deadline slip.
When to Stop Negotiating and File IDR
Not every dispute should be negotiated to the end of the 30-day period. Providers should try to recognize when open negotiation has stopped being productive and prepare for an IDR.
Signs that it may be time to file include:
- The insurer stands firmly by its initial payment and will not move.
- Its “counteroffers” are token increases that do not approach fair value.
- Communications go quiet, or the plan strings you along with requests that waste time.
When you see these patterns, further negotiation is unlikely to change the outcome, and every day spent chasing it brings you closer to the four-business-day deadline.
The costliest mistake a provider can make is treating IDR as something you can turn to later. The timeline to request arbitration is short and strict, and once it lapses, it is generally gone. If an insurance company is negotiating in bad faith, it’s best to preserve your rights by initiating IDR on time and, where appropriate, combining qualified claims for efficiency. Deciding when to stop negotiating is a judgment call, and having Kotlar Cohen by your side to make that call can be enormously beneficial.
How Kotlar Cohen Manages Open Negotiation
Kotlar Cohen represents healthcare providers, not insurers, not patients. As board-certified trial attorneys with deep experience in No Surprises Act disputes, we treat open negotiation as the first move in a coordinated strategy.
We recommend building your case from day one, including closely examining the plan’s QPA, assembling the documentation and benchmarks that support a higher rate, and framing your offer so it holds up whether the dispute settles now or proceeds to arbitration. We manage the notices and the deadlines so nothing is forfeited on a technicality, and we bring hard-won knowledge of how the IDR process actually plays out.
Frequently Asked Questions
What is the NSA open negotiation period?
How long is the open negotiation period under the NSA?
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Call Kotlar Cohen Today With Your NSA Issues
If your medical practice was underpaid, delayed, or denied reimbursement for medical services, your claim may fall under the NSA. Contact Kotlar Cohen to schedule a free consultation or call us 24/7 at (856) 751-7676. We have been helping healthcare providers navigate the open negotiation period since the NSA was enacted. Because of strict statutory guidelines, you must act urgently in order to preserve all your legal rights. Contacting Kotlar Cohen as early as possible ensures you are in the best position to achieve the best possible outcome.
Open negotiation is a short window with lasting consequences. Handled strategically, it can resolve your dispute at a fair rate — or set you up to win at IDR if it doesn’t. Contact Kotlar Cohen’s No Surprises Act attorneys today to build your case before the clock runs out. Kotlar Cohen has been at the forefront of NSA since it was passed in 2022. We work tirelessly for our medical provider clients to ensure you are fairly paid for the services that you provide. Contact Kotlar Cohen today to represent you with any NSA issues.