backProviders Take Fight Over Right to Enforce No Surprises Act Awards to Supreme Court
On October 8, 2025, two air ambulance providers (the “Providers”) filed a Petition for a Writ of Certiorari (“Petition”) asking the U.S. Supreme Court to grant review of a recent Fifth Circuit case that held that there is no private right of action under the No Surprises Act (“NSA”) to enforce awards issued by the Independent Dispute Resolution (“IDR”) entities. The Providers told the high court that if the Fifth Circuit decision stands and “insurers can ignore their statutory payment obligations, the NSA will no longer provide a fair way to resolve insurer-provider payment disputes while taking patients out of the middle.”
Background
The NSA, enacted in December 2020, protects patients from surprise bills, including from balance billing, for out-of-network emergency services and non-emergency services rendered by out-of-network providers at in-network facilities.
When the NSA applies, the out-of-network rate payable by the plan is determined by an All-Payer Model or specified state law, if applicable. In the absence of an All-Payor Model or specified state law, reimbursement is determined by the IDR process when the payor and provider cannot agree on a negotiated out-of-network rate. In the IDR process, after that process is initiated, both parties must submit final offers for payment along with supportive written material to an IDR entity who is required to select between the two offers (“baseball-style” arbitration).
The NSA provides that IDR awards are “binding upon the parties involved.” 42 U.S.C. § 300gg-111(c)(5)(E)(i). Further, awards “shall be made directly to the nonparticipating provider… not later than 30 days after the date on which such determination is made.” Id. § 300gg-111(c)(6).
Notwithstanding the statutory language, providers have encountered difficulties in practice, with payors slow paying, or even entirely not paying, IDR awards. For example, the Emergency Department Practice Management Association conducted a survey in 2024 of emergency physicians where respondents reported that “24% of [IDR] disputes were still not paid or were paid an incorrect amount within 30 calendar days of the IDR entity payment determination[.]”
Disputes Over Whether the NSA Contains a Private Right of Action to Enforce IDR Awards
Unpaid and late paid NSA IDR awards have led to litigation at both the federal district court and appellate court levels. At the district court level, there have been district courts in the Second Circuit that have found the NSA contains a private right of actions and there have also been district courts elsewhere, including in the Fifth Circuit, that have found otherwise.
King & Spalding has previously reported on litigation related to enforcement of aspects of the NSA’s IDR processes, including reporting on Guardian Flight, L.L.C. v. Health Care Serv. Corp., 140 F.4th 271 (5th Cir. 2025), where the Fifth Circuit found the NSA lacks a private right of action for providers to enforce IDR awards. The Fifth Circuit is the first federal appellate court to have addressed the question of whether the NSA provides for a private right of action.
The Providers Petition for a Writ of Certiorari
The Providers’ Petition asked the U.S. Supreme Court to grant the Petition to address two questions: (1) whether the NSA allows providers to sue in court to enforce NSA IDR awards and (2) “whether a breach of an ERISA plan terms constitute an injury in fact to an ERISA plan beneficiary, even where the beneficiary will not suffer any pocketbook injury.”
With respect to the question presented related to the NSA, the Providers argue that the Fifth Circuit’s holding that the NSA lacks a private right of action conflicts with the NSA’s provisions that provide that the NSA IDR awards are “binding,” and that payment “shall be made directly to the nonparticipating provider or facility not later than 30 days after the date on which such determination is made.
Recognizing that there is not yet a circuit split between the Fifth Circuit and any other circuit on the question of whether the NSA provides for a private right of action, the Providers argue that the U.S. Supreme Court should nonetheless grant the Petition because “If the Fifth Circuit decision stands, Congress’s [NSA] scheme will be upended. Insurers will know that they can lowball their initial payment and then ignore a subsequent IDR award ordering them to pay more—and there will be nothing providers can do about it.”
Reporter: Christopher C. Jew, Los Angeles, + 1 213 443 4336, cjew@kslaw.com
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