No Surprises Act Expands Emergency Medical Services in Two Important Ways

The No Surprises Act ushered in several changes for health and welfare plans. Much has been said about the out-of-network emergency medical charges, out-of-network charges provided at an in-network facility, and air ambulance rules. But the Act also expanded the definition of “emergency services” in two important, but subtle, ways. That definition now includes (1) services provided at a “Free Standing Emergency Department” and (2) Post-Stabilization Services.

Free Standing Emergency Department

Under the Affordable Care Act, plans were required to provide coverage for “emergency services.” However, this only included traditional hospital emergency room services and did not prevent balance bills in an out-of-network situation. The No Surprises Act fills this gap by requiring plans to cover “emergency services” from an out-of-network facility at the in-network rate.

The Act also covers services provided by a “free standing emergency department.” This includes facilities that are structurally separate and distinct from a hospital but licensed to provide emergency care. Importantly, this does not generally include an urgent care facility. The free standing emergency departments are more common in rural areas where traditional hospitals are sparse.

Post-Stabilization Services

The Act also expanded the definition of “emergency services” to include post-stabilization services. Post-stabilization services include necessary medical treatment that is provided to a patient following an emergency situation but after he or she is stabilized. Under the Act, this includes any services rendered after the patient is stabilized as part of an observation or in-patient or out-patient stay unless four conditions are met:

  • The patient can travel using non-medical transportation or non-emergency medical transportation to an available in-network provider or facility located with a reasonable travel distance;
  • The provider or facility furnishing the post-stabilization services receives lawful consent from the participant to assess any out-of-network charges;
  • The patient is in a condition to understand the notice and provide informed consent; and
  • The provider or facility satisfies any additional requirements under state law (for example, some state laws do not permit patients to waive protections in any circumstance).


These two changes are subtle but do expand the types of “emergency services” that now must be covered at the in-network rate. Not only does it include the services provided at a free standing emergency department, but the post-stabilization rule would encompass many ancillary providers that are needed to care for an injured patient following an emergency medical situation. That could include laboratory work, radiology, or other diagnostic services.

These rules are effective on the first day of the plan year that begins after January 1, 2022. Therefore, plan sponsors will want that ensure that emergency medical claims will be processed according to the rules above and update plan documents to account for these changes.