Does the No Surprises Act Apply to Freestanding Emergency Rooms?

How Do You Tell Whether a Freestanding ER Is Covered?

Run five questions in order and stop at the first no. The first four decide whether the Act protects the visit, and the fifth decides which dispute route applies.

1. Is the facility an emergency department of a hospital or an independent freestanding emergency department (IFED)?
2. Does the patient have coverage the Act reaches?
3. Was the service an emergency service, or an item or service that counts as one?
4. Did the facility properly obtain notice and consent for any post-stabilization care?
5. Does federal IDR or a state process resolve the payment?

The rest of this post takes them one at a time. The freestanding ER billing guide and the post on how freestanding ERs bill facility fees cover the claim side.

Question 1: Is the Facility an Emergency Department or an IFED?

An IFED, defined in 45 CFR 149.30, is a health care facility that is geographically separate and distinct and licensed separately from a hospital under state law, and that provides emergency services. The same section says the emergency department of a hospital includes a hospital outpatient department that provides emergency services, so a hospital-affiliated freestanding ED is covered as a hospital department.

Urgent care is covered only if it meets the IFED test. CMS's key protections document says an urgent care center counts only if it is licensed to provide emergency services and is geographically separate from, and licensed separately from, a hospital. A walk-in clinic without that license is not an independent freestanding emergency department, and the emergency protections do not attach.

Question 2: Which Plans Does the Act Reach?

An independent freestanding ER usually cannot bill Medicare at all, because CMS has stated that current law does not recognize IFEDs as certified Medicare providers. Eligibility checks at registration should record the plan type, since the answer drives every later step. The post on whether self-funded plans have to follow the NSA covers one common question.

Question 3: Which Services Are Protected?

Emergency services as defined in 45 CFR 149.110(c)(2): an appropriate medical screening examination, including ancillary services routinely available to the department, and the further examination and treatment needed to stabilize the patient. For an IFED, the rule says to apply that standard as it would be required under EMTALA if EMTALA applied to an IFED.

The protections run through the prudent layperson standard. An emergency medical condition is one with acute symptoms of sufficient severity, including severe pain, that a prudent layperson with average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in serious jeopardy to health, serious impairment of bodily functions or serious dysfunction of an organ or body part.

Section 149.110(b) also bars prior authorization for emergency services, even when they are out of network, and limits the plan to in-network cost sharing and in-network administrative requirements. The post on which emergency services the NSA covers lists them in detail.

Question 4: What Happens After the Patient Is Stabilized?

Care after stabilization stays protected unless the facility meets every condition in 45 CFR 149.410(b). The attending emergency physician or treating provider must determine the patient can travel by nonmedical or nonemergency medical transportation to an available participating provider or facility within a reasonable distance. The facility must also give the written notice and get consent under 149.420(c) through (g).

For a nonparticipating emergency facility, the written notice must include the good faith estimated amount the patient may be charged. When a facility did obtain valid notice and consent, 45 CFR 149.510(c)(1)(i) bars a party from starting federal IDR for those items or services if it knows, or reasonably should know, that notice and consent were received. The post-stabilization notice and consent post has the form content.

Question 5: How Is a Short Payment Resolved?

A nonparticipating emergency facility can use the federal IDR process under 45 CFR 149.510(a)(1), after open negotiation. The plan owes an initial payment or a notice of denial within 30 calendar days of the bill. Open negotiation must start within 30 business days of that payment or denial, runs 30 business days, and either party then has 4 business days to start IDR. The IDR process page lists each step and the open negotiation term is defined in the glossary.

State law can change the route. CMS treats Texas Insurance Code chapter 1467 as a specified state law for emergency care at hospitals and licensed freestanding ERs, with mediation for an out-of-network facility and arbitration for a provider that is not a facility. Whether the state or federal route applies depends on the plan, which the state or federal law post and the Texas page take apart.

What Do Five Typical Visits Look Like?

Write the answer into the account note. If an insurer later pays a covered visit at a low rate, the note shows which pathway applies and when the clock started.

How Does Nucleus Align Handle Freestanding ER Disputes?

We handle out-of-network reimbursement end to end: eligibility assessment, open negotiation, dispute submissions, deadline management and outcome tracking, under federal IDR and applicable state pathways, including Texas TDI. See out-of-network billing and IDR, the emergency medicine billing page or book a call.