Out-of-Network Fertility Billing: Patient Rights and Practice Strategy

Fertility practices occupy an unusual position in the commercial insurance landscape: specialty care that is frequently excluded from standard network contracts, increasingly managed through separate benefit managers with their own narrow networks, and subject to authorization requirements that can take weeks to satisfy. The result is that many reproductive endocrinology practices are out-of-network (OON) with one or more major commercial carriers—sometimes by design, often by default when payers offer contracted rates that do not cover the cost of complex ART services. Navigating OON billing in fertility requires understanding federal and state patient protections, single case agreement strategy, OON claim submission mechanics, and the financial counseling practices that prevent OON situations from becoming patient relations problems.

Why Fertility Practices Operate Out-of-Network

The most common reason fertility practices remain OON with commercial payers is reimbursement inadequacy. Major commercial carriers frequently offer contracted rates for ART services that fall well below the cost of embryology laboratory operations, highly skilled nursing coordination, and REI physician time. When a payer's published fee schedule for CPT 58970 (follicle puncture for oocyte retrieval) pays $650 in a market where performing that procedure costs $1,400 or more in direct and overhead expenses, remaining OON and billing at billed charges with the expectation of collecting at UCR rates is often the better financial decision for a practice that has accurately modeled both scenarios.

Fertility benefit manager (FBM) carve-outs create a second, increasingly common source of OON status. Payers like Progyny, WINFertility, Carrot Fertility, and OVIA Health administer fertility benefits for large self-funded employers under carve-out arrangements, maintaining separate proprietary networks with their own contracted providers. A practice that holds an active in-network contract with United Healthcare for standard commercial claims may still be OON for UHC's Progyny population if it has not contracted separately with Progyny. These carve-out networks function as distinct insurance products with their own authorization workflows, fee schedules, and claims adjudication systems. Being in-network with the underlying medical carrier does not confer in-network status under the fertility carve-out—and the failure to understand this distinction is one of the most common sources of unexpected OON denials in fertility billing.

A third driver is market geography and provider scarcity. In markets served by only a small number of REI practices, fertility clinics hold significantly more negotiating leverage with commercial payers and can sustain OON status while continuing to attract patients who have no practical geographic alternative. Patients with meaningful fertility coverage will seek care from the available specialist regardless of network status when the alternative is driving several hours or delaying treatment indefinitely.

The No Surprises Act: What Actually Applies to Fertility Services

The No Surprises Act (NSA), effective January 1, 2022, materially changed the legal framework around OON billing, but its application to scheduled fertility services is narrower than many practitioners initially assumed. Understanding exactly what the NSA requires—and what it does not—is essential for compliance and for avoiding operational overreactions that unnecessarily constrain practice revenue.

The NSA's direct balance billing prohibitions and cost-sharing limitations apply primarily to:

• Emergency services rendered at any facility, regardless of provider network status, when the patient could not have reasonably selected an in-network provider given the circumstances
• Non-emergency services provided by OON providers at in-network facilities—such as an OON anesthesiologist at a surgery where the patient chose an in-network surgeon—when the patient did not receive proper advance notice of OON status and did not provide written consent to OON cost-sharing
• Air ambulance transport services from OON providers

For the typical fertility patient who selects an OON fertility practice for planned ART treatment at that practice's own clinic or surgery center, the NSA's balance billing prohibitions generally do NOT apply. The patient is knowingly selecting an OON provider for elective, scheduled treatment at an OON facility. The NSA does not transform that scenario into a balance-billing-prohibited encounter. However, the NSA imposes a critical administrative requirement that applies to all providers including OON fertility practices: the Good Faith Estimate (GFE) requirement for uninsured and self-pay patients. When an uninsured or self-pay patient schedules a fertility service, the practice must provide a GFE within three business days of the scheduling request if the appointment is ten or more days out. If the patient's actual bill exceeds the GFE by more than $400, the patient may initiate the Patient-Provider Dispute Resolution (PPDR) process administered by HHS, which can result in a binding determination that the patient owes only the GFE amount.

Single Case Agreements: The Primary OON Revenue Tool

A single case agreement (SCA) is a one-time contract between an OON provider and an insurance plan under which the plan agrees to reimburse the provider at a specified rate for a specific patient's treatment episode, typically in exchange for the provider accepting that rate as payment in full and agreeing not to balance-bill the patient beyond their cost-sharing. SCAs are the most effective tool for maximizing reimbursement on high-value OON ART cases, because they establish an agreed rate before services are rendered, prevent the payer from applying payment at the plan's non-contracted default OON rate (often 50–60% of UCR), and reduce or eliminate the patient's OON cost-sharing burden—which improves the patient's financial experience and reduces the risk of post-treatment billing disputes.

SCAs are most worth pursuing when the patient's anticipated total treatment cost is significant (a full IVF cycle with ICSI, PGT-A, and FET commonly generates $20,000–$35,000 in billed charges), when the payer has documented history of covering fertility services for other patients in the same plan, and when a clinical authorization is either in place or approvable. Attempting to negotiate an SCA for a patient whose plan excludes infertility treatment entirely wastes staff time that could be spent on approvable cases. Prioritize SCA pursuit for cases where the clinical coverage question is settled and the payment rate is the only variable.

• Identify the correct SCA or letters-of-agreement contact at the payer—typically the Provider Relations or Special Case Management department, not the general provider services line; ask specifically for the team that handles single case agreements or out-of-network provider letters of agreement
• Confirm that the patient has a clinical authorization in place or that coverage has been verified in writing before initiating SCA negotiations—payers will not negotiate payment terms for services they have not yet approved clinically, and verbal coverage confirmations are insufficient
• Request that the SCA enumerate specific CPT codes with agreed payment rates: at minimum include 58970 (oocyte retrieval), 89250 or 89272 (embryo culture), 89258 (embryo cryopreservation), 58974 or 58976 (embryo transfer), and 89280 or 89281 (ICSI) as applicable to the planned treatment
• Negotiate toward a percentage of Medicare or a percentage of your billed charges at a rate you have modeled against your cost structure—avoid accepting a "plan OON rate" without understanding what that rate produces in dollars for each CPT code in the treatment plan
• Request a hold-harmless provision specifying that the patient is not responsible for amounts above the agreed SCA rate beyond their plan cost-sharing obligation; this prevents balance billing disputes after the cycle concludes and protects patient relations
• Obtain the SCA in writing, signed by an authorized payer representative, before scheduling the retrieval—verbal agreements are not enforceable, and payer representatives who agree verbally to an SCA rate frequently cannot be identified when the claim is adjudicated at a different rate months later
• Reference the SCA number or attach a copy of the executed agreement to every claim submitted for that patient; OON claims that process through the payer's standard adjudication logic without an SCA flag will pay at the default OON rate, requiring a corrected claim and adding weeks to the payment timeline

OON Claim Submission: CPT Codes, ICD-10, and Key Form Fields

OON fertility claims use exactly the same CPT and ICD-10 codes as in-network claims. Network status changes the plan's cost-sharing application and payment calculation logic, not the clinical codes themselves. The following table presents the core IVF cycle CPT codes along with 2025 Medicare facility RVU values and typical OON billed charge ranges observed in fertility practice charge masters. The Medicare RVU column is included as a reference baseline—commercial OON reimbursement is derived from UCR benchmarks, not from Medicare rates, but Medicare RVUs provide a useful relative value proxy.

ICD-10 diagnosis code selection for OON fertility claims follows the same logic as in-network claims. The primary diagnosis must reflect the specific clinical condition driving treatment. Commonly used primary diagnosis codes include N97.0 (female infertility associated with anovulation, used for documented PCOS or hypothalamic dysfunction), N97.1 (female infertility of tubal origin, established by HSG or laparoscopy, which directly supports IVF medical necessity on any payer review), N97.2 (female infertility of uterine origin due to fibroids, adhesions, or congenital anomaly), N97.8 (female infertility of other specified origin including diminished ovarian reserve or endometriosis without tubal involvement), and N97.9 (female infertility, unspecified, used only when no etiology is established). For male factor, N46.11 (organic azoospermia) and N46.021 (azoospermia due to drug therapy) support ICSI medical necessity. One diagnostic pitfall for OON claims: Z31.83 (encounter for assisted reproductive fertility procedure status) should always be a secondary code, not primary. Using Z31.83 as the primary diagnosis on OON monitoring claims can trigger ART-specific adjudication logic that produces denials when the patient's plan has an ART exclusion or a separate ART benefit with different cost-sharing than the standard medical benefit.

Place of Service (POS) coding must be accurate on OON claims because the UCR benchmark a payer applies can differ between facility and non-facility settings. POS 11 (office) applies to in-office monitoring ultrasounds and evaluation and management visits. POS 24 (ambulatory surgical center) applies to oocyte retrievals performed in an ASC. POS 22 (on-campus outpatient hospital) applies when retrievals are performed in a hospital outpatient department. An oocyte retrieval billed at POS 11 when it was actually performed in an ASC may be processed against a lower UCR benchmark than the correct POS would produce, reducing OON reimbursement through a purely administrative error that has nothing to do with clinical coding.

Billed Charges and UCR Strategy for OON Practices

OON reimbursement from commercial payers is almost always calculated as a percentage of the payer's "usual, customary, and reasonable" (UCR) rate for the applicable CPT code and geographic market. Most commercial payers derive UCR benchmarks from FAIR Health data, Optum Ingenix data, or proprietary actuarial databases, typically pegged at the 80th percentile of submitted charges in the market area. This creates a direct and often underappreciated connection between a practice's billed charges and its OON reimbursement: when billed charges fall below the 80th percentile UCR benchmark, the payer's stated OON payment percentage is applied to the lower billed charge rather than to the UCR benchmark—resulting in a payment far below what the practice should be receiving.

A fertility practice billing CPT 58970 at $1,200 when the local FAIR Health 80th percentile benchmark is $2,800 receives a fraction of the OON reimbursement it could receive by updating its charge above the benchmark. Annual Charge Description Master (CDM) review using FAIR Health's public benchmark tool—fairhealthconsumer.org allows ZIP-code level lookups for common fertility procedure codes—is not optional for OON practices. It is a core revenue protection step. Billed charges should be set at or above the 80th percentile benchmark for every CPT code in the practice's service mix. The charge is not what you expect to collect; it is the ceiling from which OON reimbursement is calculated, and that ceiling must be set correctly to ensure the practice receives the maximum payment the payer's policy permits.

State Balance Billing Protections Relevant to Fertility Billing

Numerous states have enacted balance billing protections that extend beyond the federal No Surprises Act. These laws vary significantly in scope, application to self-funded ERISA plans, and coverage of elective versus emergency services. The table below summarizes key state protections that fertility billing teams in affected markets should understand and factor into their OON billing and patient financial counseling processes.

A critical limitation of all state balance billing laws: self-funded ERISA plans—which cover approximately 61% of privately insured employees in the United States—are generally preempted from state insurance regulation under ERISA Section 514. When a fertility patient's coverage comes from a large employer's self-insured health plan rather than a fully-insured commercial product, state balance billing protections typically do not apply. The federal No Surprises Act's IDR mechanism applies to self-funded plans through the federal framework, but state-level OON protections that go beyond the NSA generally do not extend to ERISA-governed plans. Billing staff must determine at benefits verification whether a patient's plan is self-funded or fully-insured—ask the member and look for "self-funded," "self-insured," or "ASO" (Administrative Services Only) language on the insurance card or through a call to the payer's provider services line. This classification materially affects which legal protections apply to OON billing for that patient.

Patient Financial Counseling for OON Cases

The single most effective practice-level strategy for managing OON billing is pre-treatment financial counseling that is thorough, specific, and documented before the patient makes any clinical scheduling commitments. OON patients who discover unexpected cost-sharing obligations after a retrieval or transfer has been performed generate disputes, collection problems, and complaints that are far more expensive to resolve than they would have been to prevent. The financial counseling conversation is not an administrative task to be delegated to a front desk check-in—it is a clinical billing function that requires trained staff with fluency in the patient's specific plan benefits, OON reimbursement logic, and the variability inherent in IVF cycle costs.

Effective OON financial counseling for fertility patients should address the following topics before any treatment scheduling decisions are made:

• The patient's OON deductible, coinsurance percentage, and OON out-of-pocket maximum for the current plan year, and the amounts already applied toward each accumulator as of the counseling date—not estimates from earlier in the year
• Whether the patient's plan has a separate fertility benefit administered by a fertility benefit manager, and whether that benefit has different OON cost-sharing rules than the underlying medical benefit—carve-out OON terms frequently differ materially from the medical plan OON terms
• The practice's billed charges for the anticipated treatment plan, presented as a range that reflects real variability: stimulation protocol length, number of monitoring visits, number of embryos retrieved and cultured, whether PGT-A is anticipated and what laboratory will perform it
• The estimated payer OON reimbursement based on applicable UCR benchmarks and the plan's stated OON payment percentage, explicitly framed as an estimate that may vary—never presented as a commitment or a guarantee
• The patient's estimated out-of-pocket obligation after estimated insurance payment, itemized by treatment phase where possible so patients understand which costs are timing-variable (stimulation medications, additional monitoring visits) versus fixed
• Whether the practice is actively pursuing a single case agreement on the patient's behalf, and the potential reduction in patient cost-sharing if the SCA is granted—and what happens financially if the SCA is denied
• The practice's financial assistance options, payment plan availability, deposit requirements, and the specific terms of the financial agreement the patient will be asked to sign before scheduling
• The estimated timeline for claim adjudication and patient billing after the treatment cycle concludes, so patients are not surprised to receive a balance bill several months after their retrieval when they may have already mentally closed the financial chapter of that cycle

Every OON patient should sign a financial counseling acknowledgment before scheduling treatment. This document should confirm that the patient understands the practice is OON with their insurance plan, that OON cost-sharing rates apply, that the practice provided a detailed cost estimate and that estimate may vary, and that the patient is financially responsible for any balance remaining after insurance payment. This documentation protects the practice in post-treatment billing disputes and satisfies the spirit of the NSA's financial transparency requirements for insured patients whose plans are not subject to the GFE mandate.

Common OON Billing Errors That Cost Fertility Practices Revenue

• Setting billed charges below FAIR Health 80th percentile benchmarks — this single error can reduce OON reimbursement by hundreds to thousands of dollars per claim by creating an artificially low ceiling from which the payer's OON payment percentage is calculated; CDM review should occur at minimum annually and whenever FAIR Health updates its benchmark dataset for the relevant geographic market
• Missing the timely filing deadline on OON claims — OON claims are subject to the same timely filing windows as in-network claims; most commercial payers require initial submission within 90 to 180 days of the date of service; missing the window forecloses reimbursement and appeal rights entirely, and no SCA retroactively cures a timely filing denial
• Failing to attach or reference an executed SCA at claim submission — when an SCA exists and is not flagged at submission, the claim processes at the standard OON default rate; the practice must then submit a corrected claim with the SCA documentation, adding weeks to the payment timeline and requiring additional follow-up calls to confirm the corrected claim was received and reprocessed
• Accepting the first OON payment as final without auditing against UCR benchmarks — payer UCR calculations are not self-correcting; if a payer pays 70% of UCR but applies that percentage to an incorrectly low UCR figure, the practice is being underpaid on every claim for that CPT code until it identifies the discrepancy and disputes the payer's benchmark
• Not pursuing the Independent Dispute Resolution process under the NSA when applicable — for OON services where NSA IDR applies (facility-based non-emergency services, emergency services), accepting the payer's initial OON payment without invoking IDR when it is inadequate means forfeiting a federal arbitration mechanism that frequently results in materially higher payment
• Billing the patient before the payer EOB is received and all applicable appeals are exhausted — OON patients who receive large balance bills before their payer has finished adjudicating all claims in a treatment episode generate unnecessary complaints and disputes; bill the patient only after the payer's final EOB has been posted and any appeal decisions are complete
• Using an incorrect Place of Service code on OON claims — POS 11 (office), POS 24 (ASC), and POS 22 (outpatient hospital) can produce materially different UCR benchmarks for the same CPT code; an oocyte retrieval submitted at POS 11 when it was performed in an ASC may adjudicate against a lower benchmark, reducing payment through an avoidable administrative error
• Failing to verify OON timely filing deadlines payer-by-payer — some commercial carriers apply shorter timely filing windows to OON claims than to in-network claims; do not assume the standard 90-day window applies universally; calendar the specific deadline for each payer in the OON patient population at the time the service is rendered

Out-of-network fertility billing is not inherently disadvantageous. For practices that manage it rigorously, OON status can produce stronger reimbursement than certain in-network contracts where fee schedules have not kept pace with the actual cost of ART services. The practices that consistently succeed in OON billing maintain current billed charges benchmarked against FAIR Health UCR data, pursue single case agreements aggressively for high-value cases where authorization is in place, provide documented pre-treatment financial counseling for every OON patient, and treat OON claim submissions with the same coding precision and timely filing discipline applied to in-network claims. The combination of clinical coding accuracy, proactive payer negotiation, and patient financial transparency is what separates OON billing that generates sustainable practice revenue from OON billing that generates unpaid claims, patient complaints, and collection costs that exceed what a better in-network contract would have produced.