Petition for Writ of Certiorari — Guardian Flight, L.L.C., et al., Petitioners v. Health Care Service Corporation

Supreme Court briefOct 8, 2025

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APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Fifth Circuit

(June 12, 2025)..................................................... 1a

APPENDIX B: Memorandum Opinion and

Order of the United States District Court for

the Northern District of Texas

(May 30, 2024) ................................................... 16a

APPENDIX C: Order of the United States

Court of Appeals for the Fifth Circuit

Denying Rehearing (July 10, 2025) .................. 35a

APPENDIX D: Statutory Provisions Involved

42 U.S.C. § 300gg-111 ................................... 37a

42 U.S.C. § 300gg-112 ................................... 80a

29 U.S.C. § 1185e .......................................... 95a

29 U.S.C. § 1185f ......................................... 140a

_____________________

APPENDIX A

_____________________

United States Court of Appeals

for the Fifth Circuit

_______________

No. 24-10561

________________

Guardian Flight, L.L.C.; Med-Trans Corporation,

Plaintiffs — Appellants,

VERSUS

Health Care Service Corporation,

Defendant — Appellee.

United States Court of Appeals

Fifth Circuit

FILED

June 12, 2025

Lyle W. Cayce

Clerk

Case: 24-10561 Document: 91-1 Page: 1 Date Filed:

06/12/2025

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:23-CV-1861

Before SMITH, CLEMENT, and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Appellants Guardian Flight, LLC, and Med-Trans

Corporation,

two

air

ambulance

providers

(“Providers”), appeal the dismissal of their complaint

against Appellee Health Care Service Corporation

(“HCSC”) for HCSC’s alleged failure to timely pay

dispute resolution awards under the No Surprises Act

(“NSA”). Because we agree with the district court that

the NSA does not contain a private right of action, and

because Providers have failed to allege facts sufficient

to state a derivative claim under the Employee

Retirement Income Security Act (“ERISA”) or for

quantum meruit under Texas law, we affirm.

Congress enacted the NSA in 2022 to protect

patients from surprise medical bills incurred when

they receive emergency medical services from out-ofnetwork healthcare providers. See 42 U.S.C. §§ 300gg111, 300gg-112. The NSA achieves this by, inter alia,

relieving patients from financial liability for surprise

bills and creating an Independent Dispute Resolution

(“IDR”) process for billing disputes between providers

and insurers. Id. § 300gg-111(c)(1)–(5); see generally

Tex. Med. Ass’n v. United States Dep’t of Health &

Hum. Servs., 110 F.4th 762, 767–78 (5th Cir. 2024)

(discussing the NSA). 1

Under the IDR provisions, the provider and insurer

first try to agree on a price for the services. Id. §

300gg-111(c)(1)(A).

If the negotiation fails, the

provider or payor has four days to initiate IDR

proceedings. Id. § 300gg-111(c)(1)(B). If the parties

pursue IDR, either the parties or the Department of

Health and Human Services (“HHS”) selects a

certified independent dispute resolution entity

(“CIDRE”) to referee. Id. § 300gg-111(c)(4).

The CIDRE determines the amount the payor owes

the provider. Id. § 300gg-111(c)(5). The CIDRE sets

that amount via “baseball-style” dispute resolution

where the provider and insurer each submit an offer,

and the CIDRE selects one party’s offer as the award.

Id. §§ 300gg-112(b)(5). In selecting which offer to

award, the CIDRE must consider the insurer’s

“qualifying payment amount,” a heavily regulated rate

that reflects the “median of the contracted rates

recognized by the plan or issuer . . . for the same or a

similar item or service” offered in the same insurance

market and geographic area.

Id. § 300gg111(a)(3)(E)(i).

In the absence of a fraudulent claim or evidence of a

misrepresentation of facts to the CIDRE, the IDR

award “shall be binding upon the parties involved,”

and payment of the award “shall be made . . . not later

than 30 days after the date on which such

determination is made.” Id. § 300gg- 112(b)(5)(D)

(incorporating 42 U.S.C. § 300gg-111(c)(5)(E)); id. §

1 The regulations invalidated by Texas Medical Association have

no effect on this case.

300gg-112(b)(6). Patients are not involved in open

negotiations or the IDR process, and payors are

directed to issue any IDR award payments directly to

the provider. See id.§ 300gg-112(b)(1)(A), (b)(5)(B),

(b)(6).

The NSA also provides that an IDR award “shall not

be subject to judicial review, except in a case described

in any of paragraphs (1) through (4) of section 10(a)”

of the Federal Arbitration Act (“FAA”). Id. §§ 300gg112(b)(5)(D), 300gg-111(c)(5)(E).

HHS has the

authority to enforce provider and payor noncompliance with the NSA’s provisions. Id. § 300gg22(b)(2)(A) (providing for HHS enforcement against

some payors for NSA non-compliance); id. § 300gg134(b) (providing for HHS enforcement against

providers for NSA non-compliance).

In this case, Providers initiated IDR under the NSA

to resolve their billing disputes with HCSC. After IDR

concluded, Providers sued HCSC alleging it (1) failed

to timely pay Providers thirty-three IDR awards in

violation of the NSA; (2) improperly denied benefits to

HCSC’s beneficiaries in violation of ERISA by failing

to pay Providers; and (3) was unjustly enriched

because Providers conferred a benefit on HCSC that

HCSC has never paid.

The district court granted HCSC’s motion to dismiss

the complaint under Rule 12(b)(1) and 12(b)(6). It

dismissed the NSA claim after concluding that the

NSA contains no private right of action. The court

dismissed the ERISA claim for lack of standing

because Providers, as assignees of HCSC’s individual

plan beneficiaries, did not show the beneficiaries

suffered injury given that the NSA shields them from

liability and removes them from the IDR process.

Finally, the court dismissed Providers’ quantum

meruit claim because they did not perform their air

ambulance services for HCSC’s benefit. The district

court also ruled that granting Providers leave to

amend would be futile. Providers timely appealed.

We review de novo a district court’s “dismissal for

lack of subject matter jurisdiction pursuant to Rule

12(b)(1) or for failure to state a claim pursuant to Rule

12(b)(6).” Ctr. for Biological Diversity, Inc. v. BP Am.

Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013). “Legal

questions relating to standing and mootness are also

reviewed de novo,” ibid., as are questions of statutory

interpretation. Seago v. O’Malley, 91 F.4th 386, 389

(5th Cir. 2024).

III

Providers argue that the district court erred in

dismissing their NSA, ERISA, and quantum meruit

claims. W e address each claim in turn.

The district court correctly dismissed Providers’

claim against HCSC for its failure to timely pay

dispute resolution awards obtained under the NSA

because the NSA provides no private right of action.

First, as the district court correctly observed, the

NSA contains no express right of action to enforce or

confirm an IDR award. The only right of action

provided derives from the incorporated vacatur

sections of Section 10(a) of the FAA—none of which

applies to this dispute, as Providers concede. So, we

begin with the presumption that Congress did not

intend to create any private cause of action. Sigmon v.

Sw. Airlines Co., 110 F.3d 1200, 1205 (5th Cir. 1997).

To overcome this presumption, Providers must show

“that Congress affirmatively contemplated private

enforcement when it passed the relevant statute.” Ibid.

(cleaned up); see also Casas v. Am. Airlines, Inc., 304

F.3d 517, 521–22 (5th Cir. 2002) (noting plaintiffs’

“heavy burden” to “overcome the familiar presumption

that Congress did not intend to create a private right

of action”); see also Anthony J. Bellia, Jr., Justice

Scalia, Implied Rights of Action, and Historical

Practice, 92 NOTRE DAME L. REV. 2077, 2090 (2017)

(“[H]istorically federal courts did not supply private

rights of action for federal statutory violations

independently of congressional authority.”).

Providers do not carry their heavy burden of

showing Congress contemplated a private right of

action in the NSA. Indeed, the NSA’s text and

structure point in the opposite direction. The NSA

expressly bars judicial review of IDR awards except as

to the specific provisions borrowed from the FAA

(sections which, again, Providers concede are

inapplicable). See 42 U.S.C. § 300gg-111(c)(5)(E)(i)(II)

(IDR awards “shall not be subject to judicial review,

except in a case described” in 9 U.S.C. § 10(a)

(emphasis

added));

id.

300gg-112(b)(5)(D)

(incorporating the same). The district court correctly

2 Those provisions authorize a court to vacate an arbitral award:

(1) where the award was procured by corruption, fraud, or undue

means;

(2) where there was evident partiality or corruption

in the arbitrators, or either of them;

reasoned that this bar on judicial review strongly

suggests Congress did not insert a private right of

action into the statute.

Providers counter that they seek only judicial

enforcement of an IDR award, not judicial review of one.

That is a distinction without a difference. The term

“judicial review” is broad enough to include a court’s

order to enforce an IDR award. “Review” includes

“[p]lenary power to direct and instruct an agent or

subordinate, including the right to remand, modify, or

vacate any action by the agent or subordinate, or to act

directly in place of the agent or subordinate.” Review,

BLACK’S LAW DICTIONARY (12th ed. 2024) (emphasis

added). 3

(3) where the arbitrators were guilty of misconduct

in refusing to postpone the hearing, upon sufficient

cause shown, or in refusing to hear evidence

pertinent and material to the controversy; or of any

other misbehavior by which the rights of any party

have been prejudiced; or

(4) where the arbitrators exceeded their powers, or

so imperfectly executed them that a mutual, final,

and definite award upon the subject matter

submitted was not made.

9 U.S.C. § 10(a)(1)–(4).

3 It follows that judicial review also encompasses the power to

vacate IDR determinations. See Hall St. Assocs., L.L.C. v. Mattel,

Inc., 552 U.S. 576, 578 (2008) (“The Federal Arbitration Act . . .

provides for expedited judicial review to confirm, vacate, or

modify arbitration awards.”). That disposes of the slightly

different argument made in the other NSA case we decide today.

See Guardian Flight, L.L.C. v. Med. Evaluators of Tex. ASO,

L.L.C., No. 24-20051, — F.4th — (5th Cir. ________ , 2025). As

we explain in that case, the provider there asserts that the NSA’s

bar on judicial review does not touch a court’s power to declare an

IDR determination void. We reject that argument for the same

Furthermore, courts interpreting other statutes,

including the FAA, have held that “judicial review”

includes actions that seek to confirm or enforce a

dispute resolution award. See, e.g., Concrete Pipe &

Prods. of Cal., Inc. v. Constr. Laborers Pension Trust,

508 U.S. 602, 611 (1993) (explaining ERISA “provides

for judicial review of the arbitrator’s decision by an

action in the district court to enforce, vacate, or modify

the award” (emphases added)). 4 And Congress uses

the term “judicial review” when referring to private

causes of action. See, e.g., 33 U.S.C. § 2236(b)(2)

(creating private right of “action to seek judicial

review”); 42 U.S.C. § 10139(c) (referring to a “civil

action for judicial review”).

In sum, Providers’ enforcement action depends on

the availability of a private right of action not present

in the NSA. As a result, the NSA’s plain text bars this

suit. We will not find an implied right of action where

Congress expressly forecloses it. See Sigmon, 110 F.3d

at 1206 (holding a statute’s “express bar” on lawsuits

“compel[led] the conclusion that Congress did not

intend to provide a private remedy”).

Congress could have done otherwise. Section 9 of

the FAA empowers courts to confirm or enforce

arbitration awards, see 9 U.S.C. § 9, but Congress

chose not to incorporate § 9 into the NSA. It

reason we reject the Providers’ argument here: it artificially

narrows the term “judicial review” that Congress used in the

NSA.

4 See also Hall St. Assocs., 552 U.S. at 578 (interpreting “judicial

review” in the FAA to include “confirm[ing]” an arbitral award);

Mid Atl. Cap. Corp. v. Bien, 956 F.3d 1182, 1194 (10th Cir. 2020)

(same); Med. Shoppe Int’l, Inc. v. Turner Invs., Inc., 614 F.3d 485,

488 (8th Cir. 2010) (same).

incorporated only parts of § 10. See 42 U.S.C. § 300gg111(c)(5)(E)(i)(II). By contrast, in other statutes,

Congress has incorporated § 9 to create a private right

of action. See 5 U.S.C. § 580(c) (“A final award is

binding on the parties to the arbitration proceeding,

and may be enforced pursuant to sections 9 through 13

of” the FAA (emphasis added)). 5 So, Congress knew

how to create a private right of action in the NSA—

and has done so elsewhere—but declined to do so.

Howard Univ. Hosp. v. D.C. Dep’t of Emp. Servs., 952

A.2d 168, 174 (D.C. 2008) (“Where a statute, with

reference to one subject, contains a given provision,

the omission of such [a] provision from a similar

statute concerning a related subject . . . is significant

to show [that] a different intention existed.”

(alterations in original) (quoting Smith v. D.C. Dep’t of

Emp. Servs., 548 A.2d 95, 100 n.13 (D.C. 1988)); Turtle

Island Restoration Network v. Evans, 284 F.3d 1282,

1296 (Fed. Cir. 2002) (“When Congress omits from a

statute a provision found in similar statutes, the

5 In a 28(j) letter, Providers point out that a federal district court

recently found an implied private right of action in the NSA,

reasoning it would be absurd to interpret the statute otherwise.

See Guardian Flight LLC v. Aetna Life Ins. Co., No. 3:24-cv-680MPS, 2025 WL 1399145, at *8–9 (D. Conn. May 14, 2025). The

court also tried to explain Congress’s decision to omit the FAA’s

express private right of action from the NSA: Unlike “binding”

IDR awards, FAA arbitration awards are not self-enforcing, so an

express private right of action is necessary to confirm them. Id.

at *8. We are unconvinced. We follow the NSA’s plain text and

structure in concluding Congress created no general private right

of action in the NSA. See 42 U.S.C. § 300gg-111(c)(5)(E)(i)(II). We

are likewise unpersuaded by the district court’s ERISA analysis;

like Providers, the court relied on precedent that predates the

NSA’s enactment. See infra Section III.B; N. Cypress Med. Ctr.

Operating Co. v. Cigna Healthcare, 781 F.3d 182 (5th Cir. 2015).

10a

omission is typically thought deliberate.” (citing I.N.S.

v. Phinpathya, 464 U.S. 183, 190 (1984))); 2B NORMAN

SINGER & SHAMBIE SINGER, SUTHERLAND STATUTORY

CONSTRUCTION § 51:2 (7th ed. 2024) (“[C]ourts

presume a different intent when a legislature omits

words used in a prior statute on a similar subject.”).

Instead, Congress took a different tack: it

empowered HHS to assess penalties against insurers

for failure to comply with the NSA. See 42 U.S.C. §

300gg-22(b)(2)(A); 45 C.F.R. § 150.301 et seq. The

Centers for Medicare and Medicaid Services (CMS), an

agency within HHS, has acted on that authority by

soliciting provider complaints and compelling payors

to pay IDR awards where appropriate. 6 CMS

maintains an online portal through which providers

may submit complaints regarding the IDR process.

See No Surprises Complaint Form, CMS,

https://perma.cc/HHD2-8HW7.

The inference from the NSA’s broader structure,

then, is plain. The “express provision of one method of

enforcing a substantive rule suggests that Congress

intended to preclude others.” Alexander v. Sandoval,

532 U.S. 275, 290 (2001); Sigmon, 110 F.3d at 1206

(holding the “existence of [an] administrative scheme

of enforcement is strong evidence that Congress

intended the administrative remedy to be exclusive”

(quotations omitted)). The NSA’s structure conveys

Congress’s policy choice to enforce the statute through

administrative penalties, not a private right of action.

6 See U.S. GOV’T ACCOUNTABILITY OFF., GAO-24-106335, PRIVATE

HEALTH INSURANCE: ROLL OUT OF INDEPENDENT DISPUTE

RESOLUTION PROCESS FOR OUT-OF-NETWORK CLAIMS HAS BEEN

CHALLENGING 35 (2023).

11a

Providers insist that without a private right of

action, “not only would the purpose of the NSA be

frustrated, the very structure of the NSA would fall

apart.” But our interpretation is compelled by the

NSA’s text and structure, both of which exclude a

general private right of action.

Nor does that

interpretation obviously “frustrate” the NSA’s purpose.

Congress may have had good reasons to provide only a

general administrative remedy, together with a

strictly limited form of judicial review.

For example, in the first calendar year the NSA was

operational, providers filed more than thirty times the

number of IDR disputes HHS anticipated. See Brief

for America’s Health Insurance Plans as Amicus

Curiae Supporting Appellee at 5–7, Guardian Flight,

L.L.C. v. Health Care Serv. Corp., No. 24-10561 (5th

Cir. argued Feb. 24, 2025). By 2023, providers had

initiated nearly 680,000 disputes. Ibid. Congress may

have judged it better to have an administrative

enforcement mechanism handle most award disputes

instead of throwing open the floodgates of litigation.

Understandably, Providers would prefer a different

mechanism for resolving provider-insurer disputes.

But the wisdom of Congress’s policy choice is beyond

our judicial ken. 7

7 Amici American Hospital Association, et al., suggest that

declining to find an implied private right of action in the NSA

“raises the question whether it is constitutional to wholly

abrogate a core common-law right without providing a reasonable

alternative remedy.” But amici fail to present any authority that

directly addresses this concern beyond mere suggestion, and, in

any case, neither amici nor HCSC has explained why the NSA’s

administrative remedy is so inadequate as to violate the

Constitution.

12a

In sum, Providers have not shown that, despite the

NSA’s express bar on judicial review in cases like this,

Congress “affirmatively contemplated” a private right

of action to enforce IDR awards.

We turn next to Providers’ ERISA claim, which the

district court dismissed for lack of standing.

To demonstrate standing for a derivative ERISA

claim as healthcare providers, Providers must first

obtain an assignment of benefits from individual plan

beneficiaries. See N. Cypress Med. Ctr. Operating Co.,

781 F.3d at 191–92. Providers satisfy this requirement,

as several HCSC beneficiaries assigned their rights to

Appellants.

Providers must also show, however, that the

individual plan beneficiaries for whom they are

assignees suffered a concrete injury, had those

beneficiaries brought the claim themselves. See

Quality Infusion Care, Inc. v. Health Care Serv. Corp.,

628 F.3d 725, 729 (5th Cir. 2010) (“[A]n assignee . . .

stands in the same position as its assignor stood.”

(ellipses in original) (quoting Houk v. Comm’r of

Internal Revenue, 173 F.2d 821, 825 (5th Cir. 1949)));

see also Thole v. U.S. Bank N.A., 590 U.S. 538, 547

(2020) (“There is no ERISA exception to Article III.”).

Providers claim the beneficiaries suffered concrete

injuries when HCSC refused to provide them with outof-network coverage benefits under the parties’

contracts.

We disagree.

The NSA shields the

beneficiaries from liability for any out-of-network

coverage costs, so the beneficiaries have not suffered—

and could not suffer—any concrete injury from

HCSC’s failure to cover medical bills that fall within

13a

the scope of the NSA. 8 Further, the beneficiaries had

nothing to gain or lose in the IDR proceedings between

Appellants and HCSC. That process exists entirely

outside and independent of ERISA.

Providers argue the injury to beneficiaries is

nonetheless cognizable because the beneficiaries have

suffered a breach of contract and so have been denied

a benefit of their bargain with HCSC. We disagree.

This technical violation, if it amounts to one, does no

actual harm to the beneficiaries and is consequently

an abstract theory insufficient for Article III injury.

See TransUnion LLC v. Ramirez, 594 U.S. 413, 427

(2021) (“Article III grants federal courts the power to

redress harms that defendants cause plaintiffs, not a

freewheeling power to hold defendants accountable for

legal infractions.” (quoting Casillas v. Madison Ave.

Assocs., 926 F.3d 329, 332 (7th Cir. 2019)); Thole, 590

U.S. at 541 (“If [plaintiffs] were to win this lawsuit,

they would still receive the exact same monthly

benefits that they are already slated to receive, not a

penny more. The plaintiffs therefore have no concrete

stake in this lawsuit.”).

In short, because the beneficiaries would lack

Article III standing if they brought an ERISA claim on

their own, Providers lack standing to bring a

derivative ERISA claim as their assignees. See Thole,

590 U.S. at 547. 9

42 U.S.C. § 300gg-135 (non-participating air ambulance

providers “shall not bill, and shall not hold liable, [the]

participant, beneficiary, or enrollee for a payment amount for

such service furnished by such provider” beyond the patient’s

cost-sharing for the service).

8 See

9 Providers

contend that every circuit to consider this ERISA

14a

Finally, the district court correctly dismissed

Providers’ quantum-meruit claim because they failed

to allege that they provided a direct benefit to HCSC.

Providers admit that Texas courts have held in other

contexts that because healthcare services are

undertaken for the patient’s benefit, not the insurer’s,

the patient is the proper target of a healthcare

provider’s quantum-meruit claim. See Tex. Med. Res.,

LLP v. Molina Healthcare of Texas, Inc., 659 S.W.3d

424, 437 (Tex. 2023). Providers merely argue that this

is “a debatable proposition,” and that the district court

was “too hasty” in dismissing their quantum-meruit

claim because it leaves them without a judicial remedy.

The district court was right. Providers did not

render any services for HCSC’s benefit. Instead they

provided “air ambulance transports for [HCSC’s]

beneficiaries.” Those beneficiaries are not plaintiffs in

this case, so Providers plainly fail to allege facts that

could satisfy the elements of a quantum-meruit claim

under Texas law. See Tex. Med. Res., LLP, 659 S.W.3d

at 436 (“[I]t is not enough to show that [the plaintiff’s]

efforts benefited [the defendant].

Rather, the

plaintiff’s efforts must have been undertaken for the

person sought to be charged.” (cleaned up) (emphasis

and second and third alterations in original) (quoting

issue, including this court, has determined that the beneficiary

suffered a concrete injury. Not so. Each of Providers’ cited cases

predates the NSA and is therefore inapposite. See, e.g., Springer

v. Cleveland Clinic Emp. Health Plan Total Care, 900 F.3d 284

(6th Cir. 2018).

15a

Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307,

310 (Tex. 1985))). 10

The district court’s judgment is AFFIRMED.

10 The district court did not abuse its discretion in denying

Providers’ request for leave to amend. Providers have no cause of

action under the NSA and do not explain which facts they could

allege in an amended complaint to satisfy the elements of their

ERISA or quantum-meruit claims. See Porretto v. City of

Galveston Park Bd. of Trs., 113 F.4th 469, 491 (5th Cir. 2024)

(“[A] ‘bare bones’ request to amend pleadings ‘remains futile

when it “fail[s] to apprise the district court of the facts that [the

plaintiff] would plead in an amended complaint.”’” (quoting

Edionwe v. Bailey, 860 F.3d 287, 295 (5th Cir. 2017))).

16a

_____________________

APPENDIX B

_____________________

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GUARDIAN FLIGHT LLC and

MED-TRANS CORPORATION,

Plaintiffs,

CIVIL ACTION NO.

3:23-CV-1861-B

HEALTH CARE SERVICE

CORPORATION,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Health Care Service

Corporation (“HCSC”)’s Motion to Dismiss (Doc. 11).

For the following reasons, the Court GRANTS

HCSC’s Motion and DISMISSES Plaintiffs Guardian

Flight LLC and Med-Trans Corporation (collectively,

“Plaintiffs”)’s claims. A final judgment will follow.

17a

BACKGROUND 1

This case is about air ambulances. Air ambulances

serve the important role of transporting people

experiencing severe health crises to hospitals that

provide emergency care. Doc. 1, Compl., ¶ 7. Until

recently, most air ambulance providers were out-ofnetwork health care providers, meaning that they had

no affiliation with any health insurance company, and

had not negotiated the prices for their services with

health insurance companies. See H.R. REP. No. 116615(I), at 52 (2020). This meant that air ambulance

providers could charge one price for their services,

while health insurance companies would only cover a

different (i.e., lower) price. Id. at 51–52. This, in turn,

led to “balance billing,” meaning that patients were

responsible for the difference between the provider’s

price and the amount covered by the health insurers.

See id. at 48. For example, if an out-of-network

provider charged $30,000, but a patient’s health plan

covered only $5,000, the patient typically owed the

out-of-network provider $25,000.

These circumstances led to enactment of the No

Surprises Act (“NSA”) in 2022. See id. at 47–49. The

The Court derives the factual background from Plaintiffs’

Complaint and the Congressional Record of the No Surprises Act.

“[A] court ruling on a 12(b)(6) motion may rely on the complaint,

its proper attachments, documents incorporated into the

complaint by reference, and matters of which a court may take

judicial notice.” Innova Hosp. San Antonio, Ltd. P’ship v. Blue

Cross & Blue Shield of Georgia, Inc., 892 F.3d 719, 726 (5th Cir.

2018) (citation omitted). The Court takes judicial notice of the

Congressional Record in support of the No Surprises Act. See

Territory of Alaska v. Am. Can Co., 358 U.S. 224, 226–27 (1959).

18a

NSA protects patients from the severe financial

liabilities that could result from surprise medical bills

and balance billing. Id. at 51. As relevant here, the

NSA establishes a dispute resolution system for when

healthcare providers and insurers dispute surprise

medical bills. 42 U.S.C. § 300gg-111(c)(1)–(5). This

system is known as the Independent Dispute

Resolution (“IDR”) process, and it works as follows:

First, the provider and the insurer negotiate the price

for the service. Id. § 300gg-111(c)(1)(A). Second, if

these negotiations fail, the provider and insurer have

four days to begin the IDR process. Id. § 300gg111(c)(1)(B). Third, a certified IDR entity is selected

by either the parties or the Department of Health and

Human Services (“HHS”). Id. § 300gg-111(c)(4).

Fourth, the certified IDR entity determines whether

the parties’ dispute is eligible for IDR and then decides

the amount owed to the provider by the insurer. Id.

§ 300gg-111(c)(5).

Plaintiffs are two air ambulance providers that

underwent the IDR process with HCSC. Doc. 1,

Compl.,¶¶ 11–12. Plaintiffs bring three claims against

HCSC. Their first cause of action is brought under the

NSA—they allege that HCSC failed to timely pay the

awards determined by a certified IDR entity. Id. ¶¶

15–17. Plaintiffs’ second cause of action is brought

under ERISA, claiming that HCSC improperly denied

benefits to its beneficiaries by failing to pay Plaintiffs

the IDR awards. Id. ¶¶ 18–23. Plaintiffs’ third claim

is for unjust enrichment, arguing that Plaintiffs

conferred a benefit on HCSC’s beneficiaries, yet HCSC

never paid for this benefit. Id. ¶¶ 24–29. HCSC moves

to dismiss all of Plaintiffs’ claims. Doc. 11, Mot., 1.

The Court considers the Motion below.

19a

II.

LEGAL STANDARDS

A. Motion to Dismiss for Lack of Subject-Matter

Jurisdiction

“Federal courts are courts of limited jurisdiction.”

Settlement Funding, L.L.C. v. Rapid Settlements, Ltd.,

851 F.3d 530, 537 (5th Cir. 2017) (citations omitted).

Thus, courts “must presume that a suit lies outside

this limited jurisdiction, and the burden of

establishing federal jurisdiction rests on the party

seeking the federal forum.” Id. (citations omitted). “If

the record does not contain sufficient evidence to show

that subject matter jurisdiction exists, a federal court

does not have jurisdiction over the case.” Id. (citation

omitted). “Congress has plenary authority to regulate

federal court jurisdiction and can withhold such

jurisdiction at its discretion.” In re B-727 Aircraft

Serial No. 21010, 272 F.3d 264, 269 (5th Cir. 2001).

B. Motion to Dismiss for Failure to State a Claim

Under Federal Rule of Civil Procedure 8(a)(2), a

complaint must contain “a short and plain statement

of the claim showing that the pleader is entitled to

relief.” Rule 12(b)(6) authorizes a court to dismiss a

plaintiff’s complaint for “failure to state a claim upon

which relief can be granted.” FED. R. CIV. P. 12(b)(6).

In considering a Rule 12(b)(6) motion to dismiss, “the

Court must accept all well-pleaded facts as true, and

view them in the light most favorable to the plaintiff.”

Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724,

735 (5th Cir. 2019) (alteration in original) (citation

omitted). But the Court will “not look beyond the face

of the pleadings to determine whether relief should be

20a

granted based on the alleged facts.”

Spivey v.

Robertson, 197 F.3d 772, 774 (5th Cir. 1999).

To survive a motion to dismiss, plaintiffs must plead

“enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id.

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id.

(quoting Twombly, 550 U.S. at 556). When wellpleaded facts fail to meet this standard, “the complaint

has alleged—but it has not shown—that the pleader is

entitled to relief.” Id. at 679 (alteration in original)

(citation omitted).

III.

ANALYSIS

First, the Court concludes that Plaintiffs have failed

to state a claim because the NSA does not confer a

private cause of action to enforce an IDR award and

convert that award to a final judgment. Second, the

Court lacks subject-matter jurisdiction over Plaintiffs’

ERISA claim because Plaintiffs do not have standing

to bring that claim. Third, Plaintiffs did not state a

claim for unjust enrichment, or quantum meruit,

because they did not provide HCSC with any direct

benefit.

21a

A. The NSA Does Not Provide an Express or

Implied Cause of Action.

Plaintiffs’ first claim is brought pursuant to the

NSA, seeking to enforce their IDR awards. However,

the Court concludes that the NSA does not provide

Plaintiffs with an express or implied cause of action to

enforce IDR awards. Therefore, the Court dismisses

Plaintiffs’ first claim.

The Court first notes that the NSA does not contain

any provisions expressly allowing Plaintiffs to file a

lawsuit in federal court seeking to enforce an IDR

award—thus, the NSA does not contain an express

cause of action. In another statutory context, the

Federal Arbitration Act (“FAA”), Congress expressly

included a provision which enables a court to confirm,

or enforce, arbitration awards. 9 U.S.C. § 9. The NSA

does not contain any similar provision. Thus, the

Court must determine whether the NSA contains an

implied cause of action. While Plaintiffs argue that

the language in the NSA gives the Court authority to

enforce IDR awards without having to imply a cause

of action, Doc. 12, Resp., 4–5, this assertion is simply

incorrect.

To establish that the NSA contains an implied cause

of action, Plaintiffs “must overcome the presumption

that Congress did not intend to create a private cause

of action.” Acara v. Banks, 470 F.3d 569, 571 (5th Cir.

2006). Here, the presumption against a statute

containing a cause of action applies because the NSA

does not contain an express cause of action. See id. A

cause of action requires two things—a right and a

remedy. See Alexander v. Sandoval, 532 U.S. 275, 286

(2001) (“The judicial task is to interpret the statute

22a

Congress has passed to determine whether it displays

an intent to create not just a private right but also a

private remedy.”). “Statutory intent on this latter

point is determinative.” Id. (emphasis added). So, the

Court must look to the text of the NSA to determine

whether Congress intended to create a private right

and a private remedy. See id. While Plaintiffs present

compelling arguments that the NSA created a right,

they fail to identify any “statutory intent” to create a

remedy to enforce that right.

There is no language in the NSA establishing that

Congress intended to create a remedy for out-ofnetwork providers. At the outset, the Court will clarify

the meaning of the term “remedy” as used in this

context. While remedy often refers to the precise relief

that a plaintiff is seeking, see REMEDY, Black’s Law

Dictionary (11th ed. 2019), the Supreme Court used

the term differently in the context of determining

whether Congress created an implied cause of action.

“Remedy,” as used in Sandoval, refers to a procedural

mechanism which enables a party to enforce its rights.

See Sandoval, 532 U.S. at 289–90; see also Diagnostic

Affiliates of Ne. Hou, LLC v. Aetna, Inc., 654 F. Supp.

3d 595, 610 (S.D. Tex. 2023) (“And while Sandoval

speaks in terms of legislative language establishing a

remedy, it is actually singularly focused on the

procedural cause of action, not the substantive

remedy.” (emphasis added)). With this distinction in

mind, the Court concludes that the NSA does not

create a procedural mechanism for Plaintiffs to enforce

their IDR awards in federal court.

Perhaps the paradigm example of a statute

containing an implied cause of action came in Cannon

v. Univ. of Chicago, 441 U.S. 677 (1979). There, the

23a

Supreme Court determined that Title IX of the Civil

Rights Act contained an implied cause of action in

large part because Title IX included a fee-shifting

provision that awarded attorneys’ fees to prevailing

parties. Id. at 699–700. Therefore, the Supreme Court

held, the text of the statute indicated that Congress

intended to create a private cause of action. Id. at 709.

Unlike Title IX, the NSA does not contain any feeshifting provisions or any other language suggesting

that Congress intended to confer a private cause of

action to healthcare providers. In fact, the NSA

includes language that almost entirely prohibits

judicial review of IDR decisions. The NSA states that

IDR decisions “shall not be subject to judicial review”

other than permitting courts to vacate IDR decisions

under the same four grounds a court can vacate an

arbitration award under the FAA. 42 U.S.C. § 300gg111(c)(5)(E)(i)(II); see also 9 U.S.C. § 10(a). Including

language almost entirely forbidding judicial review of

IDR decisions strongly suggests that Congress did not

intend to confer Plaintiffs a cause of action to enforce

IDR awards.

Additionally, although Congress borrowed from § 10

of the FAA, it notably did not incorporate the FAA

provision that enables parties to confirm arbitration

awards, which further indicates that Congress did not

intend to create a private cause of action under the

NSA. The FAA expressly provides parties with a

procedural mechanism to vacate, modify, and confirm

arbitration awards in a federal court. 9 U.S.C. §§ 9–

11. If Congress intended to create such a procedural

mechanism under the NSA, it simply could have

incorporated one more section from the FAA, yet

Congress did not do so. The Court interprets this

24a

omission in the NSA to mean that Congress did not

intend to create a remedy under the NSA. Cf.

Guardian Flight, LLC v. Aetna Health Inc., No. 4:22CV-03805, 2024 WL 484561, at *4 (S.D. Tex. Jan. 5,

2024) (holding that only the vacatur section of the FAA

applied to the NSA because Congress would have

incorporated other FAA sections if it had intended to)

(citation omitted). Therefore, not only is there no

“statutory intent” to create a private remedy, see

Sandoval, 532 U.S. at 286, but the NSA also includes

language strongly suggesting that Congress did not

intend to create a private remedy.

To the extent Plaintiffs are arguing that the NSA

creates a right and thereby a remedy, this proposition

is incorrect. Plaintiffs identify two textual provisions

within the NSA to support the existence of a cause of

action. First, the NSA states that any decision by a

certified IDR entity “shall be binding.” Doc. 12, Resp.,

3; 42 U.S.C. § 300gg-111(c)(5)(E)(i)(I). Second, the

NSA includes a “Timing of Payment” provision which

requires healthcare insurers to pay the IDR awards

within thirty days. Doc. 12, Resp., 3; 42 U.S.C. §

300gg-112(b)(6). Plaintiffs argue that the “shall be

binding” language and the “Timing of Payment”

provision establish that Congress “clearly intended to

create a private right of action to enforce the timely

payment of IDR awards.” Doc. 12, Resp., 7. The Court

disagrees. While the NSA appears to create a right

that out-of-network providers are entitled to recover

their IDR awards within thirty days, these provisions,

when read together, do not suggest that Congress

intended to create a procedural mechanism for

providers to convert IDR awards to final judgments.

Further, there is no other language in the statute

25a

suggesting that Congress contemplated providers

would be able to file a lawsuit to enforce IDR awards.

In other words, these provisions only suggest that

Congress created a right, but there is nothing to

suggest that Congress also intended to confer a

corresponding remedy.

Plaintiffs make several arguments for why

Congress should have provided a private cause of

action to enforce an IDR award. Doc. 12, Resp., 5.

However, even if the Court found these policy

arguments compelling, “courts may not create [a cause

of action], no matter how desirable that might be as a

policy matter.” Cantu v. Moody, 933 F.3d 414, 424 (5th

Cir. 2019) (alteration in original) (quoting Sandoval,

532 U.S. at 286–87).

In sum, the NSA does not contain an implied cause

of action for out-of-network healthcare providers to

enforce IDR awards. Because the NSA does not

provide a private cause of action, Plaintiffs cannot

state a claim under the NSA. Therefore, the Court

grants HCSC’s Motion to Dismiss with respect to

Plaintiffs’ NSA claim.

B. Plaintiffs Lack Standing to Bring Their ERISA

Cause of Action.

Plaintiffs’ second cause of action is brought under

ERISA, claiming that “HCSC improperly denied plan

benefits by failing to pay [Plaintiffs] the IDR awards.”

Doc. 1, Compl., ¶ 21. Article III of the United States

Constitution limits the subject-matter jurisdiction of

the federal courts to certain “Cases” and

“Controversies.” U.S. CONST. art. III, § 2. “In an

attempt to give meaning to Article III’s ‘case or

controversy requirement,’ the courts have developed a

26a

series of principles termed ‘justiciability doctrines.’”

United Transp. Union v. Foster, 205 F.3d 851, 857 (5th

Cir. 2000). One such justiciability doctrine is standing.

See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

“The essence of standing is whether the litigant is

entitled to have the court decide the merits of the

dispute or of particular issues.” Mississippi State

Democratic Party v. Barbour, 529 F.3d 538, 544 (5th

Cir. 2008) (citations omitted).

There are three

elements to constitutional standing: (1) “the plaintiff

must have suffered an ‘injury in fact’—an invasion of

a legally protected interest that is (a) concrete and

particularized, and (b) actual or imminent, not

conjectural or hypothetical,” (2) “there must be a

causal connection between the injury and the conduct

complained of,” and (3) “it must be likely, as opposed

to merely speculative, that the injury will be redressed

by a favorable decision.” United States v. Hays, 515

U.S. 737, 742–43 (1995) (citations omitted). “The

party invoking federal jurisdiction bears the burden of

establishing these elements.” Lujan, 504 U.S. at 561.

“If the plaintiff does not claim to have suffered an

injury that the defendant caused and the court can

remedy, there is no case or controversy for the federal

court to resolve.” TransUnion LLC v. Ramirez, 594

U.S. 413, 423 (2021) (citation omitted).

Here, Plaintiffs’ ERISA claim asserts the rights of

some of HCSC’s beneficiaries. Several of HCSC’s

beneficiaries assigned some of their rights under their

HCSC healthcare plans to Plaintiffs. Doc. 1, Compl.,

¶ 12. Because Plaintiffs received valid assignments

from the beneficiaries, Plaintiffs “stand[] in the same

position as [HCSC’s beneficiaries] stood” with regards

to standing. See Quality Infusion Care, Inc. v. Health

27a

Care Serv. Corp., 628 F.3d 725, 729 (5th Cir. 2010)

(citation omitted).

Thus, for Plaintiffs to have

standing, they must show that the beneficiaries would

have had standing to bring an ERISA claim to require

HCSC to pay Plaintiffs the IDR awards. See id. The

Court concludes that HCSC’s beneficiaries would not

have had standing to bring such a claim—therefore,

Plaintiffs likewise lack standing.

The HCSC beneficiaries suffered no concrete injury

from HCSC allegedly failing to pay IDR awards to

Plaintiffs. As the Court discussed above, the passage

of the NSA means that patients, like the HCSC

beneficiaries, are no longer financially responsible for

balance billing—i.e., the difference between the out-ofnetwork provider’s price and what the insurer agrees

to cover. See 42 U.S.C. § 300gg-135. The HCSC

beneficiaries would incur no financial injury from a

dispute between HCSC and Plaintiffs because the

beneficiaries do not have to pay the IDR awards.

Plaintiffs likewise fail to assert any other nonfinancial injury that the HCSC beneficiaries would

have suffered, thus the Court concludes the HCSC

beneficiaries did not suffer any concrete injury. See

Lujan, 504 U.S. at 561.

Plaintiffs argue that the HCSC beneficiaries

suffered three separate concrete injuries. All three

arguments lack merit. First, Plaintiffs argue that the

HCSC beneficiaries’ protections from balance billing,

which are codified by statute in the NSA, are

endangered “under numerous legal theories” if HCSC

fails to pay the IDR awards. Doc. 12, Resp., 10. The

Court rejects this argument as it is unaware of these

“numerous legal theories” and Plaintiffs fail to

elucidate which theories they are referring to. Second,

28a

Plaintiffs argue that the beneficiaries “risk higher

premiums if their health plans do not pay IDR awards.”

Id. In essence, Plaintiffs are arguing that, if HCSC

does not pay the IDR awards, it will get sued by outof-network healthcare providers, which will result in

HCSC incurring litigation costs, and subsequently

lead to HCSC increasing its beneficiaries’ premiums.

See id. This claimed injury is merely “conjectural or

hypothetical” and falls far short of what is required for

standing—a concrete injury. See Hays, 515 U.S. at

742–43. Third, Plaintiffs argue that the beneficiaries

have an interest in their health plans paying Plaintiffs

“so that air ambulance transports remain accessible

and providers do not go bankrupt.” Doc. 12, Resp., 10.

Plaintiffs speculate that health insurance companies

failing to pay IDR awards could force out-of-network

air ambulance providers into bankruptcy, which could

then injure the HCSC beneficiaries because they

would not have access to air ambulance services if they

later needed them. This argument fails because this

injury is purely conjectural and thus fails to establish

standing. See Hays, 515 U.S. at 742–43.

Plaintiffs lack standing to assert their ERISA claim

because the HCSC beneficiaries did not suffer any

concrete injury. Accordingly, the Court grants HCSC’s

Motion to Dismiss as to Plaintiffs’ ERISA claim.

C. Plaintiffs Failed to State a Claim for Unjust

Enrichment.

Plaintiffs’ third cause of action against HCSC is for

unjust enrichment. Plaintiffs appear to advance two

theories of unjust enrichment.

First, Plaintiffs

provided their air ambulance services to HCSC’s

beneficiaries, and HCSC never paid Plaintiffs, despite

29a

their beneficiaries receiving these benefits. Doc. 1,

Compl., ¶ 25. Second, Plaintiffs argue that HCSC was

“further unjustly enriched by receiving interest and/or

investment income as a result of the unlawful

retention of the [IDR awards].” Id. ¶ 28.

Most Texas courts have held that unjust enrichment

is not an independent cause of action under Texas law.

Richardson Hosp. Auth. v Duru, 387 S.W.3d 109, 114

(Tex. App.—Dallas 2012, no pet.); Watson v. City of

San Marcos, No. 03-22-00307-CV, 2023 WL 3010938,

at *3 (Tex. App.—Austin Apr. 20, 2023, pet. denied)

(mem. op.); Davis v. OneWest Bank, N.A., No. 02-1400264-CV, 2015 WL 1623541, at *1 (Tex. App.—Fort

Worth, Apr. 9, 2015, pet. denied). However, the

allegations in support of Plaintiffs’ “unjust enrichment”

claim roughly track the elements of a quantum meruit

claim, which the Supreme Court of Texas has

described as “an equitable theory founded in the

principle of unjust enrichment.” Texas Med. Res., LLP

v. Molina Healthcare of Texas, Inc., 659 S.W.3d 424,

436 (Tex. 2023) (citations omitted); see Doc. 1, Compl.,

¶¶ 25–29. To draw all reasonable inferences in favor

of Plaintiffs, the Court construes Plaintiffs’ unjust

enrichment claim as a cause of action for quantum

meruit. But even construed as such, Plaintiffs have

not stated a claim for quantum meruit under either of

their proposed theories.

1. Plaintiffs Failed to State a Claim for Quantum

Meruit Because They Did Not Provide a Direct Benefit

to HCSC.

Under Texas law, quantum meruit claims have four

elements: “(1) valuable services were rendered or

materials furnished; (2) for the defendant; (3) the

30a

services or materials were accepted by the defendant;

and (4) the defendant was reasonably notified that the

plaintiff performing the services or providing the

materials was expecting to be paid.” Texas Med. Res.,

659 S.W.3d at 436 (internal alterations omitted). To

establish the second element, it is insufficient that

HCSC merely benefitted from Plaintiffs’ services. Id.

Instead, Plaintiffs’ “efforts must have been

undertaken for the person sought to be charged.” Id.

(citations omitted) (emphasis in original).

Plaintiffs fail to state a claim for quantum meruit

under their first theory because they did not provide

their air ambulance services for HCSC’s benefit.

Healthcare providers generally cannot maintain a

quantum meruit claim against health insurance

companies based on allegations that the providers

performed services solely for the health insurance

companies’ insureds. See Encompass Off. Sols., Inc. v.

Ingenix, Inc., 775 F. Supp. 2d 938, 966 (E.D. Tex. 2011)

(“Even if [the health insurance company] received

some benefit as a result of [the healthcare provider]

providing medical services to its insureds . . . [the

healthcare provider’s] services were rendered to and

for its patients, not [the health insurance company].”);

see Angelina Emergency Med. Assocs. PA v. Health

Care Serv. Corp., 506 F. Supp. 3d 425, 432 (N.D. Tex.

2020) (Starr, J.) (“Serving a defendant’s customers is

hardly the same as serving the defendant itself.”

(emphasis omitted)). The parties do not dispute that

it was HCSC’s beneficiaries who received Plaintiffs’

air ambulance services—HCSC never directly received

these services. Compare Doc. 11, Mot., 19–20, with

Doc. 12, Resp., 13–14. Therefore, Plaintiffs failed to

plead that they rendered a valuable service to HCSC.

31a

Plaintiffs do not argue that they provided a benefit

directly to HCSC. Instead, Plaintiffs argue that “the

NSA changed the provider-insurer landscape.” Doc.

12, Resp., 13. They argue that because the NSA placed

the payment obligation solely on health insurers,

Plaintiffs should be able to maintain their quantum

meruit claim against HCSC. Id. at 13–14. While they

are correct that the NSA changed a beneficiary’s

obligations to out-of-network healthcare providers, see

42 U.S.C. § 300gg-135, the NSA is a federal statute,

and it did not change the elements of a Texas tort.

Just because Plaintiffs now must resolve payment

disputes with health insurance companies instead of

directly with the beneficiaries does not mean that

healthcare providers now confer a benefit directly to a

health insurance company by providing services to its

insureds. Therefore, Plaintiffs failed to adequately

plead an element of their quantum meruit claim. The

Court grants HCSC’s motion to dismiss with regards

to the construed quantum meruit claim.

2. Plaintiffs Failed to State a Claim for Quantum

Meruit Under Their Second Theory Because They Did

Not Perform Any Services for HCSC.

Plaintiffs also allege that HCSC has been further

unjustly enriched by receiving interest or investment

income because it refused to timely pay the IDR

awards. Doc. 1, Compl., ¶ 28. It is not entirely clear

whether the interest on the allegedly withheld

payments constitutes an entirely separate theory of

unjust enrichment or whether this forms part of

Plaintiffs’ first theory of unjust enrichment—HCSC

not paying for the benefits its beneficiaries received.

See Doc. 12, Resp., 14. If the latter, Plaintiffs fail to

state a claim because HCSC did not directly benefit

32a

from its insureds receiving the air ambulance services,

as discussed above. If the former, Plaintiffs fail to

adequately plead the first element of a quantum

meruit claim because Plaintiffs did not perform any

services for HCSC when HCSC allegedly withheld the

IDR awards. See Texas Med. Res., 659 S.W.3d at 436.

Accordingly, the Court grants HCSC’s motion to

dismiss the unjust enrichment claim to the extent

Plaintiffs bring an additional unjust enrichment claim

against HCSC for receiving interest or investment

income from not timely paying the IDR awards.

D. The Court Denies Plaintiffs Leave to Amend

Their Complaint.

“[D]istrict courts often afford plaintiffs at least one

opportunity to cure pleading deficiencies before

dismissing a case, unless it is clear that the defects are

incurable or the plaintiffs advise the court that they

are unwilling or unable to amend in a manner that will

avoid dismissal.” Great Plains Tr. Co. v. Morgan

Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.

2002). District courts give plaintiffs leave to amend

their complaints “when justice so requires.” FED. R.

CIV. P. 15(a)(2). This liberal standard, however, is

“tempered by the necessary power of a district court to

manage a case.” Schiller v. Physicians Res. Grp. Inc.,

342 F.3d 563, 566 (5th Cir. 2003).

When deciding whether to grant leave to amend,

district courts consider the following factors: “undue

delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to

the opposing party, and futility of amendment.”

Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998)

33a

(citations and emphasis omitted). Granting leave to

amend a complaint is futile if “the amended complaint

would fail to state a claim upon which relief could be

granted.” Stripling v. Jordan Prod. Co., LLC, 234 F.3d

863, 873 (5th Cir. 2000).

While Plaintiffs did not request leave to amend, the

Court will nevertheless consider whether to grant

them leave to do so. With regards to Plaintiffs’ claim

under the NSA, the Court finds leave to amend would

be futile because the NSA does not contain a private

cause of action for out-of-network healthcare providers

to enforce IDR awards. See Stripling, 234 F.3d at 873.

Thus, the Court denies Plaintiffs leave to amend their

NSA claim. The Court also finds it would be futile to

give Plaintiffs leave to amend their ERISA claim.

Given the highly speculative injuries alleged, the

Court is convinced that any amended complaint would

also fail to allege facts establishing that HCSC’s

beneficiaries suffered a concrete injury from HCSC

allegedly not paying Plaintiffs. See id. Accordingly,

the Court dismisses Plaintiffs’ ERISA claim without

prejudice for lack of subject-matter jurisdiction and

denies Plaintiffs leave to amend their ERISA claim.

See Mitchell v. Bailey, 982 F.3d 937, 944 (5th Cir. 2020)

(holding that a district court should dismiss a case

without prejudice when it lacks subject-matter

jurisdiction over the dispute).

Lastly, the Court concludes that it would be futile to

allow Plaintiffs to amend their unjust enrichment

claim, which the Court construed as a quantum meruit

claim. The Court finds that Plaintiffs would not be

able to allege any facts to establish they provided any

benefits directly to HCSC, as necessary to maintain a

quantum meruit claim. See Stripling, 234 F.3d at 873;

34a

see Texas Med. Res., 659 S.W.3d at 436. Thus, this

defect in the Plaintiffs’ Complaint is incurable. See

Great Plains Tr. Co., 313 F.3d at 329. Accordingly, the

Court denies Plaintiffs leave to amend their

Complaint.

IV.

CONCLUSION

For the reasons discussed above, the Court

GRANTS HCSC’s Motion to Dismiss (Doc. 11).

Specifically,

the

Court

DISMISSES

WITH

PREJUDICE Plaintiffs’ claim under the NSA for

failure to state a claim and DENIES Plaintiffs leave

to replead their NSA claim. The Court DISMISSES

WITHOUT PREJUDICE Plaintiffs’ ERISA claim for

lack of subject-matter jurisdiction and DENIES

Plaintiffs leave to replead their ERISA claim. Lastly,

the Court DISMISSES WITH PREJUDICE

Plaintiffs’ claim for unjust enrichment and DENIES

Plaintiffs leave to replead their unjust enrichment

claim. A final judgment will follow.

SO ORDERED.

SIGNED: May 30, 2024.

JANE J. BOYLE

UNITED STATES DISTRICT JUDGE

35a

_____________________

APPENDIX C

_____________________

United States Court of Appeals

for the Fifth Circuit

_______________

No. 24-10561

________________

Guardian Flight, L.L.C.; Med-Trans Corporation,

Plaintiffs — Appellants,

VERSUS

Health Care Service Corporation,

Defendant — Appellee.

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2025

Lyle W. Cayce

Clerk

Case: 24-10561 Document: 107-1 Page: 1 Date Filed:

07/10/2025

36a

_________________________________________

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:23-CV-1861

_________________________________________

ON PETITION FOR REHEARING EN BANC

Before SMITH, CLEMENT, and DUNCAN, Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th Cir. R.40 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en

banc (FED. R. APP. P.40 and 5TH CIR. R.40), the petition

for rehearing en banc is DENIED.

________________

* Judge Carolyn Dineen King, and Judge Irma Carrillo

Ramirez, did not participate in the consideration of the

rehearing en ban

37a

_____________________

APPENDIX D

_____________________

42 U.S.C. § 300gg-111:

Preventing surprise medical bills

§300gg–111. Preventing surprise medical bills

(a) Coverage of emergency services

(1) In general

If a group health plan, or a health insurance issuer

offering group or individual health insurance

coverage, provides or covers any benefits with respect

to services in an emergency department of a hospital

or with respect to emergency services in an

independent freestanding emergency department (as

defined in paragraph (3)(D)), the plan or issuer shall

cover emergency services (as defined in paragraph

(3)(C))(A) without the need

authorization determination;

for

any

prior

(B) whether the health care provider

furnishing such services is a participating

provider or a participating emergency facility, as

applicable, with respect to such services;

provided to a participant, beneficiary, or enrollee

nonparticipating

provider

nonparticipating emergency facility(i) such services will be provided

without imposing any requirement under

the plan or coverage for prior authorization

38a

of services or any limitation on coverage that

is more restrictive than the requirements or

limitations that apply to emergency services

received from participating providers and

participating emergency facilities with

respect to such plan or coverage,

respectively;

(ii) the cost-sharing requirement is

not greater than the requirement that would

apply if such services were provided by a

participating provider or a participating

emergency facility;

(iii) such cost-sharing requirement is

calculated as if the total amount that would

have been charged for such services by such

participating provider or participating

emergency facility were equal to the

recognized amount (as defined in paragraph

(3)(H)) for such services, plan or coverage,

and year;

(iv) the group health plan or health

insurance issuer, respectively(I) not later than 30 calendar days

after the bill for such services is

transmitted by such provider or facility,

sends to the provider or facility, as

applicable, an initial payment or notice

of denial of payment; and

(II) pays a total plan or coverage

payment directly to such provider or

facility, respectively (in accordance, if

applicable,

with

the

timing

requirement described in subsection

39a

(c)(6)) that is, with application of any

initial payment under subclause (I),

equal to the amount by which the outof-network rate (as defined in

paragraph (3)(K)) for such services

exceeds the cost-sharing amount for

such services (as determined in

accordance with clauses (ii) and (iii))

and year; and

(v) any cost-sharing payments made

by the participant, beneficiary, or enrollee

with respect to such emergency services so

furnished shall be counted toward any innetwork

deductible

out-of-pocket

maximums applied under the plan or

coverage, respectively (and such in-network

deductible and out-of-pocket maximums

shall be applied) in the same manner as if

such cost-sharing payments were made with

respect to emergency services furnished by

a participating provider or a participating

emergency facility; and

(D) without regard to any other term or

condition of such coverage (other than exclusion

or coordination of benefits, or an affiliation or

waiting period, permitted under section 300gg–3

of this title, including as incorporated pursuant

to section 1185d of title 29 and section 9815 of

title 26, and other than applicable cost-sharing).

(2) Audit process and regulations

qualifying payment amounts

(A) Audit process

(i)

In general

for

40a

Not later than October 1, 2021, the Secretary, in

consultation with the Secretary of Labor and the

Secretary of the Treasury, shall establish through

rulemaking a process, in accordance with clause (ii),

under which group health plans and health insurance

issuers offering group or individual health insurance

coverage are audited by the Secretary or applicable

State authority to ensure that(I)

such plans and coverage are in

compliance with the requirement of applying a

qualifying payment amount under this section; and

(II) such qualifying payment amount

so applied satisfies the definition under paragraph

(3)(E) with respect to the year involved, including

with respect to a group health plan or health

insurance issuer described in clause (ii) of such

paragraph (3)(E).

(ii) Audit samples

Under the process established pursuant to clause

(i), the Secretary(I) shall conduct audits described in such

clause, with respect to a year (beginning with

2022), of a sample with respect to such year of

claims data from not more than 25 group health

plans and health insurance issuers offering group

or individual health insurance coverage; and

(II) may audit any group health plan or health

insurance issuer offering group or individual

health insurance coverage if the Secretary has

received any complaint or other information about

such plan or coverage, respectively, that involves

the compliance of the plan or coverage,

41a

respectively, with either of the requirements

described in subclauses (I) and (II) of such clause.

(iii) Reports

Beginning for 2022, the Secretary shall annually

submit to Congress a report on the number of plans

and issuers with respect to which audits were

conducted during such year pursuant to this

subparagraph.

(B) Rulemaking

Not later than July 1, 2021, the Secretary, in

consultation with the Secretary of Labor and the

Secretary of the Treasury, shall establish through

rulemaking(i) the methodology the group health plan or

health insurance issuer offering group or

individual health insurance coverage shall use to

determine the qualifying payment amount,

differentiating by individual market, large group

market, and small group market;

(ii) the information such plan or issuer,

respectively, shall share with the nonparticipating

provider or nonparticipating facility, as applicable,

when making such a determination;

(iii) the geographic regions applied for

purposes of this subparagraph, taking into account

access to items and services in rural and

underserved areas, including health professional

shortage areas, as defined in section 254e of this

title; and

(iv) a process to receive complaints of

violations of the requirements described in

subclauses (I) and (II) of subparagraph (A)(i) by

42a

group health plans and health insurance issuers

offering group or individual health insurance

coverage.

Such rulemaking shall take into account payments

that are made by such plan or issuer, respectively,

that are not on a fee-for-service basis.

Such

methodology may account for relevant payment

adjustments that take into account quality or facility

type (including higher acuity settings and the casemix of various facility types) that are otherwise taken

into account for purposes of determining payment

amounts with respect to participating facilities. In

carrying out clause (iii), the Secretary shall consult

with the National Association of Insurance

Commissioners to establish the geographic regions

under such clause and shall periodically update such

regions, as appropriate, taking into account the

findings of the report submitted under section 109(a)

of the No Surprises Act.

(3) Definitions

In this part and part E:

(A) Emergency

hospital

department

The term “emergency department of a hospital”

includes a hospital outpatient department that

provides emergency services (as defined in

subparagraph (C)(i)).

(B) Emergency medical condition

The term “emergency medical condition” means a

medical condition manifesting itself by acute

symptoms of sufficient severity (including severe

pain) such that a prudent layperson, who possesses an

43a

average knowledge of health and medicine, could

reasonably expect the absence of immediate medical

attention to result in a condition described in clause

(i), (ii), or (iii) of section 1867(e)(1)(A) of the Social

Security Act [42 U.S.C. 1395dd(e)(1)(A)].

(i)

In general

The term “emergency services”, with respect to an

emergency medical condition, means(I)

a medical screening examination (as

required under section 1867 of the Social Security Act

[42 U.S.C. 1395dd], or as would be required under

such section if such section applied to an independent

freestanding emergency department) that is within

the capability of the emergency department of a

hospital or of an independent freestanding emergency

department, as applicable, including ancillary services

routinely available to the emergency department to

evaluate such emergency medical condition; and

(II) within the capabilities of the staff and

facilities available at the hospital or the independent

freestanding emergency department, as applicable,

such further medical examination and treatment as

are required under section 1395dd of this title, or as

would be required under such section if such section

applied to an independent freestanding emergency

department, to stabilize the patient (regardless of the

department of the hospital in which such further

examination or treatment is furnished).

(ii) Inclusion of additional services

(I)

In general

44a

For purposes of this subsection and section 300gg–

131 of this title, in the case of a participant,

beneficiary, or enrollee who is enrolled in a group

health plan or group or individual health insurance

coverage offered by a health insurance issuer and who

is furnished services described in clause (i) with

respect to an emergency medical condition, the term

“emergency services” shall include, unless each of the

conditions described in subclause (II) are met, in

addition to the items and services described in clause

(i), items and services(aa) for which benefits are provided or covered

under the plan or coverage, respectively; and

(bb) that are furnished by a nonparticipating

provider or nonparticipating emergency facility

(regardless of the department of the hospital in

which such items or services are furnished) after

the participant, beneficiary, or enrollee is

stabilized and as part of outpatient observation or

an inpatient or outpatient stay with respect to the

visit in which the services described in clause (i)

are furnished.

(II) Conditions

For purposes of subclause (I), the conditions

described in this subclause, with respect to a

participant, beneficiary, or enrollee who is stabilized

and furnished additional items and services described

in subclause (I), after such stabilization by a provider

or facility described in subclause (I), are the following;

(aa) Such provider or facility determines such

individual is able to travel using nonmedical

transportation

nonemergency

medical

transportation.

45a

(bb) Such provider furnishing such additional

items and services satisfies the notice and consent

criteria of section 300gg–132(d) of this title with

respect to such items and services.

(cc) Such individual is in a condition to receive

(as determined in accordance with guidelines

issued by the Secretary pursuant to rulemaking)

the information described in section 300gg–132 of

this title and to provide informed consent under

such section, in accordance with applicable State

law.

(dd) Such other conditions, as specified by the

Secretary, such as conditions relating to

coordinating care transitions to participating

providers and facilities.

(D) Independent freestanding emergency

department

The term “independent freestanding emergency

department” means a health care facility that(i) is geographically separate and distinct

and licensed separately from a hospital under

applicable State law; and

(ii) provides any of the emergency services

(as defined in subparagraph (C)(i)).

(E) Qualifying payment amount

(i)

In general

The term “qualifying payment amount” means,

subject to clauses (ii) and (iii), with respect to a

sponsor of a group health plan and health insurance

issuer offering group or individual health insurance

coverage-

46a

(I)

for an item or service furnished during

2022, the median of the contracted rates recognized

by the plan or issuer, respectively (determined with

respect to all such plans of such sponsor or all such

coverage offered by such issuer that are offered within

the same insurance market (specified in subclause (I),

(II), (III), or (IV) of clause (iv)) as the plan or

coverage) as the total maximum payment (including

the cost-sharing amount imposed for such item or

service and the amount to be paid by the plan or

issuer, respectively) under such plans or coverage,

respectively, on January 31, 2019, for the same or a

similar item or service that is provided by a provider

in the same or similar specialty and provided in the

geographic region in which the item or service is

furnished,

consistent

with

the

methodology

established by the Secretary under paragraph (2)(B),

increased by the percentage increase in the consumer

price index for all urban consumers (United States city

average) over 2019, such percentage increase over

2020, and such percentage increase over 2021; and

(II) for an item or service furnished during

2023 or a subsequent year, the qualifying payment

amount determined under this clause for such an item

or service furnished in the previous year, increased by

the percentage increase in the consumer price index

for all urban consumers (United States city average)

over such previous year.

(ii) New plans and coverage

The term “qualifying payment amount” means,

with respect to a sponsor of a group health plan or

health insurance issuer offering group or individual

health insurance coverage in a geographic region in

47a

which such sponsor or issuer, respectively, did not

offer any group health plan or health insurance

coverage during 2019(I)

for the first year in which such group

health plan, group health insurance coverage, or

individual health insurance coverage, respectively, is

offered in such region, a rate (determined in

accordance with a methodology established by the

Secretary) for items and services that are covered by

such plan or coverage and furnished during such first

year; and

(II) for each subsequent year such group

health plan, group health insurance coverage, or

individual health insurance coverage, respectively, is

offered in such region, the qualifying payment amount

determined under this clause for such items and

services furnished in the previous year, increased by

the percentage increase in the consumer price index

for all urban consumers (United States city average)

over such previous year.

(iii) Insufficient information; newly

covered items and services

In the case of a sponsor of a group health plan or

health insurance issuer offering group or individual

health insurance coverage that does not have

sufficient information to calculate the median of the

contracted rates described in clause (i)(I) in 2019 (or,

in the case of a newly covered item or service (as

defined in clause (v)(III)), in the first coverage year

(as defined in clause (v)(I)) for such item or service

with respect to such plan or coverage) for an item or

service (including with respect to provider type, or

amount, of claims for items or services (as determined

48a

by the Secretary) provided in a particular geographic

region (other than in a case with respect to which

clause (ii) applies)) the term “qualifying payment

amount”(I)

for an item or service furnished during

2022 (or, in the case of a newly covered item or

service, during the first coverage year for such item or

service with respect to such plan or coverage), means

such rate for such item or service determined by the

sponsor or issuer, respectively, through use of any

database that is determined, in accordance with

rulemaking described in paragraph (2)(B), to not have

any conflicts of interest and to have sufficient

information reflecting allowed amounts paid to a

health care provider or facility for relevant services

furnished in the applicable geographic region (such

as a State all-payer claims database);

(II) for an item or service furnished in a

subsequent year (before the first sufficient

information year (as defined in clause (v)(II)) for such

item or service with respect to such plan or coverage),

means the rate determined under subclause (I) or this

subclause, as applicable, for such item or service for

the year previous to such subsequent year, increased

by the percentage increase in the consumer price index

for all urban consumers (United States city average)

over such previous year;

(III) for an item or service furnished in the

first sufficient information year for such item or

service with respect to such plan or coverage, has the

meaning given the term qualifying payment amount

in clause (i)(I), except that in applying such clause to

such item or service, the reference to “furnished

49a

during 2022” shall be treated as a reference to

furnished during such first sufficient information

year, the reference to “in 2019” shall be treated as a

reference to such sufficient information year, and the

increase described in such clause shall not be applied;

and

(IV) for an item or service furnished in any

year subsequent to the first sufficient information

year for such item or service with respect to such plan

or coverage, has the meaning given such term in

clause (i)(II), except that in applying such clause to

such item or service, the reference to “furnished

during 2023 or a subsequent year” shall be treated as

a reference to furnished during the year after such

first sufficient information year or a subsequent year.

(iv) Insurance market

For purposes of clause (i)(I), a health insurance

market specified in this clause is one of the following:

(I)

The individual market.

(II) The large group market (other than

plans described in subclause (IV)).

(III) The small group market (other than

plans described in subclause (IV)).

(IV) In the case of a self-insured group health

plan, other self-insured group health plans.

(v)

Definitions

For purposes of this subparagraph:

(I)

First coverage year

The term “first coverage year” means, with respect

to a group health plan or group or individual health

insurance coverage offered by a health insurance

50a

issuer and an item or service for which coverage is not

offered in 2019 under such plan or coverage, the first

year after 2019 for which coverage for such item or

service is offered under such plan or health insurance

coverage.

(II)

First sufficient information year

The term “first sufficient information year” means,

with respect to a group health plan or group or

individual health insurance coverage offered by a

health insurance issuer(aa) in the case of an item or service for which

the plan or coverage does not have sufficient

information to calculate the median of the contracted

rates described in clause (i)(I) in 2019, the first year

subsequent to 2022 for which the sponsor or issuer has

such sufficient information to calculate the median of

such contracted rates in the year previous to such first

subsequent year; and

(bb) in the case of a newly covered item or

service, the first year subsequent to the first coverage

year for such item or service with respect to such plan

or coverage for which the sponsor or issuer has

sufficient information to calculate the median of the

contracted rates described in clause (i)(I) in the year

previous to such first subsequent year.

(III) Newly covered item or service

The term “newly covered item or service” means,

with respect to a group health plan or group or

individual health insurance issuer offering health

insurance coverage, an item or service for which

coverage was not offered in 2019 under such plan or

coverage, but is offered under such plan or coverage

in a year after 2019.

51a

(F) Nonparticipating emergency facility;

participating emergency facility

(i)

Nonparticipating

facility

emergency

The term “nonparticipating emergency facility”

means, with respect to an item or service and a group

health plan or group or individual health insurance

coverage offered by a health insurance issuer, an

emergency department of a hospital, or an

independent freestanding emergency department,

that does not have a contractual relationship directly

or indirectly with the plan or issuer, respectively, for

furnishing such item or service under the plan or

coverage, respectively.

(ii) Participating emergency facility

The term “participating emergency facility” means,

with respect to an item or service and a group health

plan or group or individual health insurance coverage

offered by a health insurance issuer, an emergency

department of a hospital, or an independent

freestanding emergency department, that has a

contractual relationship directly or indirectly with the

plan or issuer, respectively, with respect to the

furnishing of such an item or service at such facility.

(G) Nonparticipating

participating providers

(i)

providers;

Nonparticipating provider

The term “nonparticipating provider” means, with

respect to an item or service and a group health plan

or group or individual health insurance coverage

offered by a health insurance issuer, a physician or

other health care provider who is acting within the

52a

scope of practice of that provider’s license or

certification under applicable State law and who does

not have a contractual relationship with the plan or

issuer, respectively, for furnishing such item or

service under the plan or coverage, respectively.

(ii) Participating provider

The term “participating provider” means, with

respect to an item or service and a group health plan

or group or individual health insurance coverage

offered by a health insurance issuer, a physician or

other health care provider who is acting within the

scope of practice of that provider’s license or

certification under applicable State law and who has

a contractual relationship with the plan or issuer,

respectively, for furnishing such item or service under

the plan or coverage, respectively.

(H) Recognized amount

The term “recognized amount” means, with respect

to an item or service furnished by a nonparticipating

provider or nonparticipating emergency facility during

a year and a group health plan or group or individual

health insurance coverage offered by a health

insurance issuer(i)

subject to clause (iii), in the case of such

item or service furnished in a State that has in effect

a specified State law with respect to such plan,

coverage,

issuer,

respectively;

such

nonparticipating provider or

nonparticipating

emergency facility; and such an item or service, the

amount determined in accordance with such law;

(ii) subject to clause (iii), in the case of such item

or service furnished in a State that does not have in

effect a specified State law, with respect to such plan,

53a

coverage,

issuer,

respectively;

such

nonparticipating provider

or nonparticipating

emergency facility; and such an item or service, the

amount that is the qualifying payment amount (as

defined in subparagraph (E)) for such year and

determined in accordance with rulemaking described

in paragraph (2)(B)) for such item or service; or

(iii) in the case of such item or service furnished

in a State with an All-Payer Model Agreement under

section 1115A of the Social Security Act [42 U.S.C.

1315a], the amount that the State approves under

such system for such item or service so furnished.

(I)

Specified State law

The term “specified State law” means, with respect

to a State, an item or service furnished by a

nonparticipating

provider or nonparticipating

emergency facility during a year and a group health

plan or group or individual health insurance coverage

offered by a health insurance issuer, a State law that

provides for a method for determining the total

amount payable under such a plan, coverage, or issuer,

respectively (to the extent such State law applies to

such plan, coverage, or issuer, subject to section 1144

of title 29) in the case of a participant, beneficiary, or

enrollee covered under such plan or coverage and

receiving such item or service from such a

nonparticipating

provider or nonparticipating

emergency facility.

(J) Stabilize

The term “to stabilize”, with respect to an

emergency medical condition (as defined in

subparagraph (B)), has the meaning give in section

54a

1867(e)(3) of the Social Security Act (42 U.S.C.

1395dd(e)(3)).

(K) Out-of-network rate

The term “out-of-network rate” means, with respect

to an item or service furnished in a State during a year

to a participant, beneficiary, or enrollee of a group

health plan or group or individual health insurance

coverage offered by a health insurance issuer receiving

such item or service from a nonparticipating provider

or nonparticipating emergency facility(i)

subject to clause (iii), in the case of such

item or service furnished in a State that has in effect

a specified State law with respect to such plan,

coverage,

issuer,

respectively;

such

nonparticipating provider or

nonparticipating

emergency facility; and such an item or service, the

amount determined in accordance with such law;

(ii) subject to clause (iii), in the case such State

does not have in effect such a law with respect to such

item or service, plan, and provider or facility(I) subject to subclause (II), if the provider

or facility (as applicable) and such plan or coverage

agree on an amount of payment (including if such

agreed on amount is the initial payment sent by the

plan under subsection (a)(1)(C)(iv)(I), subsection

(b)(1)(C), or section 300gg–112(a)(3)(A) of this title, as

applicable, or is agreed on through open negotiations

under subsection (c)(1)) with respect to such item or

service, such agreed on amount; or

(II) if such provider or facility (as

applicable) and such plan or coverage enter the

independent dispute resolution process under

subsection (c) and do not so agree before the date on

55a

which a certified IDR entity (as defined in paragraph

(4) of such subsection) makes a determination with

respect to such item or service under such subsection,

the amount of such determination; or

(iii) in the case such State has an All-Payer

Model Agreement under section 1115A of the Social

Security Act [42 U.S.C. 1315a], the amount that the

State approves under such system for such item or

service so furnished.

(L) Cost-sharing

The term “cost-sharing” includes copayments,

coinsurance, and deductibles.

(b) Coverage

non-emergency

services performed by nonparticipating

providers at certain participating facilities

(1) In general

In the case of items or services (other than

emergency services to which subsection (a) applies) for

which any benefits are provided or covered by a group

health plan or health insurance issuer offering group

or individual health insurance coverage furnished to

a participant, beneficiary, or enrollee of such plan or

coverage by a nonparticipating provider (as defined in

subsection (a)(3)(G)(i)) (and who, with respect to such

items and services, has not satisfied the notice and

consent criteria of section 300gg–132(d) of this title)

with respect to a visit (as defined by the Secretary in

accordance with paragraph (2)(B)) at a participating

health care facility (as defined in paragraph (2)(A)),

with respect to such plan or coverage, respectively, the

plan or coverage, respectively-

56a

(A)

shall not impose on such participant,

beneficiary, or enrollee a cost-sharing requirement for

such items and services so furnished that is greater

than the cost-sharing requirement that would apply

under such plan or coverage, respectively, had such

items or services been furnished by a participating

provider (as defined in subsection (a)(3)(G)(ii));

(B)

shall

calculate

such

cost-sharing

requirement as if the total amount that would have

been charged for such items and services by such

participating provider were equal to the recognized

amount (as defined in subsection (a)(3)(H)) for such

items and services, plan or coverage, and year;

(C)

not later than 30 calendar days after the

bill for such services is transmitted by such provider,

shall send to the provider an initial payment or notice

of denial of payment;

(D) shall pay a total plan or coverage

payment directly, in accordance, if applicable, with the

timing requirement described in subsection (c)(6), to

such provider furnishing such items and services to

such participant, beneficiary, or enrollee that is, with

application

any

initial

payment

under

subparagraph (C), equal to the amount by which the

out-of-network rate (as defined in subsection (a)(3)(K))

for such items and services involved exceeds the costsharing amount imposed under the plan or coverage,

respectively, for such items and services (as

determined in accordance with subparagraphs (A) and

(B)) and year; and

(E)

shall count toward any in-network

deductible and in-network out-of-pocket maximums

(as applicable) applied under the plan or coverage,

57a

respectively, any cost-sharing payments made by the

participant, beneficiary, or enrollee (and such innetwork deductible and out-of-pocket maximums shall

be applied) with respect to such items and services so

furnished in the same manner as if such cost-sharing

payments were with respect to items and services

furnished by a participating provider.

(2) Definitions

In this section:

(A) Participating health care facility

(i)

In general

The term “participating health care facility”

means, with respect to an item or service and a group

health plan or health insurance issuer offering group

or individual health insurance coverage, a health care

facility described in clause (ii) that has a direct or

indirect contractual relationship with the plan or

issuer, respectively, with respect to the furnishing of

such an item or service at the facility.

(ii) Health care facility described

A health care facility described in this clause, with

respect to a group health plan or group or individual

health insurance coverage, is each of the following:

(I)

A hospital (as defined in 1861(e) of the

Social Security Act [42 U.S.C. 1395x(e)]).

(II)

A hospital outpatient department.

(III) A critical access hospital (as defined in

section 1861(mm)(1) of such Act [42 U.S.C.

1395x(mm)(1)]).

58a

(IV) An ambulatory surgical center described

in section 1833(i)(1)(A) of such Act [42 U.S.C.

1395l(i)(1)(A)].

(V)

Any other facility, specified by the

Secretary, that provides items or services for which

coverage is provided under the plan or coverage,

respectively.

(B) Visit

The term “visit” shall, with respect to items and

services furnished to an individual at a health care

facility, include equipment and devices, telemedicine

services, imaging services, laboratory services,

preoperative and postoperative services, and such

other items and services as the Secretary may specify,

regardless of whether or not the provider furnishing

such items or services is at the facility.

paid by health plans; independent dispute

resolution process

(1) Determination

negotiation

through

open

(A) In general

With respect to an item or service furnished in a

year by a nonparticipating provider or a

nonparticipating facility, with respect to a group

health plan or health insurance issuer offering group

or individual health insurance coverage, in a State

described in subsection (a)(3)(K)(ii) with respect to

such plan or coverage and provider or facility, and for

which a payment is required to be made by the plan or

coverage pursuant to subsection (a)(1) or (b)(1), the

provider or facility (as applicable) or plan or coverage

59a

may, during the 30-day period beginning on the day

the provider or facility receives an initial payment or

a notice of denial of payment from the plan or coverage

regarding a claim for payment for such item or

service, initiate open negotiations under this

paragraph between such provider or facility and plan

or coverage for purposes of determining, during the

open negotiation period, an amount agreed on by such

provider or facility, respectively, and such plan or

coverage for payment (including any cost-sharing) for

such item or service. For purposes of this subsection,

the open negotiation period, with respect to an item or

service, is the 30-day period beginning on the date of

initiation of the negotiations with respect to such item

or service.

(B) Accessing independent dispute

resolution process in case of failed

negotiations

In the case of open negotiations pursuant to

subparagraph (A), with respect to an item or service,

that do not result in a determination of an amount of

payment for such item or service by the last day of the

open negotiation

period described in such

subparagraph with respect to such item or service,

the provider or facility (as applicable) or group health

plan or health insurance issuer offering group or

individual health insurance coverage that was party

to such negotiations may, during the 4-day period

beginning on the day after such open negotiation

period, initiate the independent dispute resolution

process under paragraph (2) with respect to such item

or service. The independent dispute resolution

process shall be initiated by a party pursuant to the

previous sentence by submission to the other party

60a

and to the Secretary of a notification (containing such

information as specified by the Secretary) and for

purposes of this subsection, the date of initiation of

such process shall be the date of such submission or

such other date specified by the Secretary pursuant to

regulations that is not later than the date of receipt of

such notification by both the other party and the

Secretary.

(2) Independent

dispute

resolution

process available in case of failed open

negotiations

(A) Establishment

Not later than 1 year after December 27, 2020, the

Secretary, jointly with the Secretary of Labor and the

Secretary of the Treasury, shall establish by

regulation one independent dispute resolution process

(referred to in this subsection as the “IDR process”)

under which, in the case of an item or service with

respect to which a provider or facility (as applicable)

or group health plan or health insurance issuer

offering group or individual health insurance coverage

submits a notification under paragraph (1)(B) (in this

subsection referred to as a “qualified IDR item or

service”), a certified IDR entity under paragraph (4)

determines, subject to subparagraph (B) and in

accordance with the succeeding provisions of this

subsection, the amount of payment under the plan or

coverage for such item or service furnished by such

provider or facility.

(B) Authority to continue negotiations

Under the independent dispute resolution process,

in the case that the parties to a determination for a

qualified IDR item or service agree on a payment

61a

amount for such item or service during such process

but before the date on which the entity selected with

respect to such determination under paragraph (4)

makes such determination under paragraph (5), such

amount shall be treated for purposes of subsection

(a)(3)(K)(ii) as the amount agreed to by such parties

for such item or service. In the case of an agreement

described in the previous sentence, the independent

dispute resolution process shall provide for a method

to determine how to allocate between the parties to

such determination the payment of the compensation

of the entity selected with respect to such

determination.

A nonparticipating provider may not, with respect

to an item or service furnished by such provider,

submit a notification under paragraph (1)(B) if such

provider is exempt from the requirement under

subsection (a) of section 300gg–132 of this title with

respect to such item or service pursuant to subsection

(b) of such section.

(3) Treatment of batching of items and

services

(A) In general

Under the IDR process, the Secretary shall specify

criteria under which multiple qualified IDR dispute

items and services are permitted to be considered

jointly as part of a single determination by an entity

for purposes of encouraging the efficiency (including

minimizing costs) of the IDR process. Such items and

services may be so considered only if-

62a

(i)

such items and services to be included in

such determination are furnished by the same

provider or facility;

(ii)

payment for such items and services is

required to be made by the same group health plan or

health insurance issuer;

(iii) such items and services are related to

the treatment of a similar condition; and

(iv) such items and services were furnished

during the 30 day period following the date on which

the first item or service included with respect to such

determination was furnished or an alternative period

as determined by the Secretary, for use in limited

situations, such as by the consent of the parties or in

the case of low-volume items and services, to

encourage procedural efficiency and minimize health

plan and provider administrative costs.

(B) Treatment of bundled payments

In carrying out subparagraph (A), the Secretary

shall provide that, in the case of items and services

which are included by a provider or facility as part of

a bundled payment, such items and services included

in such bundled payment may be part of a single

determination under this subsection.

(4) Certification

entities

and

selection

IDR

(A) In general

The Secretary, in consultation with the Secretary of

Labor and Secretary of the Treasury, shall establish a

process to certify (including to recertify) entities under

this paragraph. Such process shall ensure that an

entity so certified-

63a

(i)

has (directly or through contracts or

other arrangements) sufficient medical, legal, and

other expertise and sufficient staffing to make

determinations described in paragraph (5) on a timely

basis;

(ii)

is not-

(I)

a group health plan or health

insurance issuer offering group or individual health

insurance coverage, provider, or facility;

(II) an affiliate or a subsidiary of such a

group health plan or health insurance issuer,

provider, or facility; or

(III) an affiliate or subsidiary of a

professional or trade association of such group health

plans or health insurance issuers or of providers or

facilities;

(iii) carries out the responsibilities of such an

entity in accordance with this subsection;

(iv)

integrity;

meets appropriate indicators of fiscal

(v)

maintains

the

confidentiality

(in

accordance with regulations promulgated by the

Secretary) of individually

identifiable health

information obtained in the course of conducting such

determinations;

(vi) does not under the IDR process carry out

any determination with respect to which the entity

would not pursuant to subclause (I), (II), or (III) of

subparagraph (F)(i) be eligible for selection; and

(vii) meets such other requirements

determined appropriate by the Secretary.

(B) Period of certification

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Subject to subparagraph (C), each certification

(including a recertification) of an entity under the

process described in subparagraph (A) shall be for a 5year period.

A certification of an entity under this paragraph

may be revoked under the process described in

subparagraph (A) if the entity has a pattern or practice

of noncompliance with any of the requirements

described in such subparagraph.

(D) Petition for denial or withdrawal

The process described in subparagraph (A) shall

ensure that an individual, provider, facility, or group

health plan or health insurance issuer offering group

or individual health insurance coverage may petition

for a denial of a certification or a revocation of a

certification with respect to an entity under this

paragraph for failure of meeting a requirement of this

subsection.

(E) Sufficient number of entities

The process described in subparagraph (A) shall

ensure that a sufficient number of entities are certified

under this paragraph to ensure the timely and

efficient provision of determinations described in

paragraph (5).

(F) Selection of certified IDR entity

The Secretary shall, with respect to the

determination of the amount of payment under this

subsection of an item or service, provide for a method(i)

that allows for the group health plan or

health insurance issuer offering group or individual

health insurance coverage and the nonparticipating

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provider or the nonparticipating emergency facility

(as applicable) involved in a notification under

paragraph (1)(B) to jointly select, not later than the

last day of the 3-business day period following the

date of the initiation of the process with respect to

such item or service, for purposes of making such

determination, an entity certified under this

paragraph that(I) is not a party to such determination or

an employee or agent of such a party;

(II) does not have a material familial,

financial, or professional relationship with such a

party; and

(III) does not otherwise have a conflict of

interest with such a party (as determined by the

Secretary); and

(ii)

that requires, in the case such parties do

not make such selection by such last day, the

Secretary to, not later than 6 business days after such

date of initiation(I)

select such an entity that satisfies

subclauses (I) through (III) of clause (i)); and

(II) provide notification of such selection to

the provider or facility (as applicable) and the plan or

issuer (as applicable) party to such determination.

An entity selected pursuant to the previous

sentence to make a determination described in such

sentence shall be referred to in this subsection as the

“certified IDR entity” with respect to such

determination.

(5) Payment determination

(A) In general

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Not later than 30 days after the date of selection of

the certified IDR entity with respect to a

determination for a qualified IDR item or service, the

certified IDR entity shall(i)

taking into account the considerations

specified in subparagraph (C), select one of the offers

submitted under subparagraph (B) to be the amount

of payment for such item or service determined under

this subsection for purposes of subsection (a)(1) or

(b)(1), as applicable; and

(ii)

notify the provider or facility and the

group health plan or health insurance issuer offering

group or individual health insurance coverage party

to such determination of the offer selected under

clause (i).

(B) Submission of offers

Not later than 10 days after the date of selection of

the certified IDR entity with respect to a

determination for a qualified IDR item or service, the

provider or facility and the group health plan or health

insurance issuer offering group or individual health

insurance coverage party to such determination(i)

shall each submit to the certified IDR

entity with respect to such determination(I) an offer for a payment amount for such

item or service furnished by such provider or facility;

and

(II) such information as requested by the

certified IDR entity relating to such offer; and

(ii)

may each submit to the certified IDR

entity with respect to such determination any

information relating to such offer submitted by either

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party, including information relating to

circumstance described in subparagraph (C)(ii).

any

(i)

In general

In determining which offer is the payment to be

applied pursuant to this paragraph, the certified IDR

entity, with respect to the determination for a

qualified IDR item or service shall consider(I)

the qualifying payment amounts (as

defined in subsection (a)(3)(E)) for the applicable year

for items or services that are comparable to the

qualified IDR item or service and that are furnished

in the same geographic region (as defined by the

Secretary for purposes of such subsection) as such

qualified IDR item or service; and

(II) subject to subparagraph (D), information

on any circumstance described in clause (ii), such

information as requested in subparagraph (B)(i)(II),

and any additional information provided in

subparagraph (B)(ii).

(ii) Additional circumstances

For purposes of clause (i)(II), the circumstances

described in this clause are, with respect to a qualified

IDR item or service of a nonparticipating provider,

nonparticipating emergency facility, group health

plan, or health insurance issuer of group or individual

health insurance coverage the following:

(I)

The level of training, experience, and

quality and outcomes measurements of the provider or

facility that furnished such item or service (such as

those endorsed by the consensus-based entity

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authorized in section 1890 of the Social Security Act

[42 U.S.C. 1395aaa]).

(II) The market share held by the

nonparticipating provider or facility or that of the plan

or issuer in the geographic region in which the item or

service was provided.

(III) The acuity of the individual receiving

such item or service or the complexity of furnishing

such item or service to such individual.

(IV) The teaching status, case mix, and scope

of services of the nonparticipating facility that

furnished such item or service.

(V)

Demonstrations of good faith efforts (or

lack of good faith efforts) made by the nonparticipating

provider or nonparticipating facility or the plan or

issuer to enter into network agreements and, if

applicable, contracted rates between the provider or

facility, as applicable, and the plan or issuer, as

applicable, during the previous 4 plan years.

(D) Prohibition on consideration of certain

factors

In determining which offer is the payment to be

applied with respect to qualified IDR items and

services furnished by a provider or facility, the

certified IDR entity with respect to a determination

shall not consider usual and customary charges, the

amount that would have been billed by such provider

or facility with respect to such items and services had

the provisions of section 300gg–131 or 300gg–132 of

this title (as applicable) not applied, or the payment

or reimbursement rate for such items and services

furnished by such provider or facility payable by a

public payor, including under the Medicare program

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under title XVIII of the Social Security Act [42 U.S.C.

1395 et seq.], under the Medicaid program under title

XIX of such Act [42 U.S.C. 1396 et seq.], under the

Children’s Health Insurance Program under title XXI

of such Act [42 U.S.C. 1397aa et seq.], under the

TRICARE program under chapter 55 of title 10, or

under chapter 17 of title 38.

(E) Effects of determination

(i)

In general

A determination of a certified IDR entity under

subparagraph (A)(I)

shall be binding upon the parties

involved, in the absence of a fraudulent claim or

evidence of misrepresentation of facts presented to the

IDR entity involved regarding such claim; and

(II) shall not be subject to judicial review,

except in a case described in any of paragraphs (1)

through (4) of section 10(a) of title 9.

(ii) Suspension of certain subsequent

IDR requests

In the case of a determination of a certified IDR

entity under subparagraph (A), with respect to an

initial notification submitted under paragraph (1)(B)

with respect to qualified IDR items and services and

the two parties involved with such notification, the

party that submitted such notification may not submit

during the 90-day period following such determination

a subsequent notification under such paragraph

involving the same other party to such notification

with respect to such an item or service that was the

subject of such initial notification.

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(iii) Subsequent submission of requests

permitted

In the case of a notification that pursuant to clause

(ii) is not permitted to be submitted under paragraph

(1)(B) during a 90-day period specified in such clause,

if the end of the open negotiation period specified in

paragraph (1)(A), that but for this clause would

otherwise apply with respect to such notification,

occurs during such 90-day period, such paragraph

(1)(B) shall be applied as if the reference in such

paragraph to the 4-day period beginning on the day

after such open negotiation period were instead a

reference to the 30-day period beginning on the day

after the last day of such 90-day period.

(iv) Reports

The Secretary, jointly with the Secretary of Labor

and the Secretary of the Treasury, shall examine the

impact of the application of clause (ii) and whether the

application of such clause delays payment

determinations or impacts early, alternative

resolution of claims (such as through open

negotiations), and shall submit to Congress, not later

than 2 years after the date of implementation of such

clause an interim report (and not later than 4 years

after such date of implementation, a final report) on

whether any group health plans or health insurance

issuers offering group or individual health insurance

coverage or types of such plans or coverage have a

pattern or practice of routine denial, low payment, or

down-coding of claims, or otherwise abuse the 90-day

period described in such clause, including

recommendations on ways to discourage such a

pattern or practice.

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(F) Costs

independent

resolution process

dispute

In the case of a notification under paragraph (1)(B)

submitted

nonparticipating

provider,

nonparticipating emergency facility, group health

plan, or health insurance issuer offering group or

individual health insurance coverage and submitted

to a certified IDR entity(i)

if such entity makes a determination

with respect to such notification under subparagraph

(A), the party whose offer is not chosen under such

subparagraph shall be responsible for paying all fees

charged by such entity; and

(ii)

if the parties reach a settlement with

respect to such notification prior to such a

determination, each party shall pay half of all fees

charged by such entity, unless the parties otherwise

agree.

(6) Timing of payment

The total plan or coverage payment required

pursuant to subsection (a)(1) or (b)(1), with respect to

a qualified IDR item or service for which a

determination is made under paragraph (5)(A) or

with respect to an item or service for which a payment

amount is determined under open negotiations under

paragraph (1), shall be made directly to the

nonparticipating provider or facility not later than 30

days after the date on which such determination is

made.

(7) Publication of information relating to the

IDR process

(A) Publication of information

72a

For each calendar quarter in 2022 and each

calendar quarter in a subsequent year, the Secretary

shall make available on the public website of the

Department of Health and Human Services(i)

the number of notifications submitted

under paragraph (1)(B) during such calendar quarter;

(ii)

the size of the provider practices and the

size of the facilities submitting notifications under

paragraph (1)(B) during such calendar quarter;

(iii) the number of such notifications with

respect to which a determination was made under

paragraph (5)(A);

(iv) the

information

described

subparagraph (B) with respect to each notification

with respect to which such a determination was so

made;

(v)

the number of times the payment amount

determined (or agreed to) under this subsection

exceeds the qualifying payment amount, specified by

items and services;

(vi) the amount of expenditures made by the

Secretary during such calendar quarter to carry out

the IDR process;

(vii) the total amount of fees paid under

paragraph (8) during such calendar quarter; and

(viii) the total amount of compensation paid to

certified IDR entities under paragraph (5)(F) during

such calendar quarter.

(B) Information

For purposes of subparagraph (A), the information

described in this subparagraph is, with respect to a

notification

under

paragraph

(1)(B)

73a

nonparticipating

provider,

nonparticipating

emergency facility, group health plan, or health

insurance issuer offering group or individual health

insurance coverage(i)

a description of each item and service

included with respect to such notification;

(ii)

the geography in which the items and

services with respect to such notification were

provided;

(iii) the amount of the offer submitted under

paragraph (5)(B) by the group health plan or health

insurance issuer (as applicable) and by the

nonparticipating

provider

nonparticipating

emergency facility (as applicable) expressed as a

percentage of the qualifying payment amount;

(iv) whether the offer selected by the certified

IDR entity under paragraph (5) to be the payment

applied was the offer submitted by such plan or issuer

(as applicable) or by such provider or facility (as

applicable) and the amount of such offer so selected

expressed as a percentage of the qualifying payment

amount;

(v)

the category and practice specialty of

each such provider or facility involved in furnishing

such items and services;

(vi) the identity of the health plan or health

insurance issuer, provider, or facility, with respect to

the notification;

(vii) the length of time in making each

determination;

74a

(viii) the compensation paid to the certified

IDR entity with respect to the settlement or

determination; and

(ix)

Secretary.

any other information specified by the

For 2022 and each subsequent year, an IDR entity,

as a condition of certification as an IDR entity, shall

submit to the Secretary such information as the

Secretary determines necessary to carry out the

provisions of this subsection.

(D) Clarification

The Secretary shall ensure the public reporting

under this paragraph does not contain information

that would disclose privileged or confidential

information of a group health plan or health insurance

issuer offering group or individual health insurance

coverage or of a provider or facility.

(8) Administrative fee

(A) In general

Each party to a determination under paragraph (5)

to which an entity is selected under paragraph (3) in a

year shall pay to the Secretary, at such time and in

such manner as specified by the Secretary, a fee for

participating in the IDR process with respect to such

determination in an amount described in

subparagraph (B) for such year.

(B) Amount of fee

The amount described in this subparagraph for a

year is an amount established by the Secretary in a

manner such that the total amount of fees paid under

this paragraph for such year is estimated to be equal

75a

to the amount of expenditures estimated to be made

by the Secretary for such year in carrying out the

IDR process.

(9) Waiver authority

The Secretary may modify any deadline or other

timing requirement specified under this subsection

(other than the establishment date for the IDR

process under paragraph (2)(A) and other than under

paragraph (6)) in cases of extenuating circumstances,

as specified by the Secretary, or to ensure that all

claims that occur during a 90-day period described in

paragraph (5)(E)(ii), but with respect to which a

notification is not permitted by reason of such

paragraph to be submitted under paragraph (1)(B)

during such period, are eligible for the IDR process.

(d) Certain access fees to certain databases

In the case of a sponsor of a group health plan or

health insurance issuer offering group or individual

health insurance coverage that, pursuant to

subsection (a)(3)(E)(iii), uses a database described in

such subsection to determine a rate to apply under

such subsection for an item or service by reason of

having insufficient information described in such

subsection with respect to such item or service, such

sponsor or issuer shall cover the cost for access to such

database.

(e) Transparency regarding in-network

and out-of-network deductibles and

out-of-pocket limitations

A group health plan or a health insurance issuer

offering group or individual health insurance

coverage and providing or covering any benefit with

respect to items or services shall include, in clear

76a

writing, on any physical or electronic plan or

insurance identification card issued to the

participants, beneficiaries, or enrollees in the plan or

coverage the following:

(1)

coverage.

Any deductible applicable to such plan or

(2)

Any out-of-pocket maximum limitation

applicable to such plan or coverage.

(3)

A telephone number and Internet

website address through which such individual may

seek consumer assistance information, such as

information related to hospitals and urgent care

facilities that have in effect a contractual relationship

with such plan or coverage for furnishing items and

services under such plan or coverage 6

(f)

Advanced explanation of benefits

(1) In general

For plan years beginning on or after January 1,

2022, each group health plan, or a health insurance

issuer offering group or individual health insurance

coverage shall, with respect to a notification

submitted under section 300gg–136 of this title by a

health care provider or health care facility to the plan

or issuer for a participant, beneficiary, or enrollee

under plan or coverage scheduled to receive an item or

service from the provider or facility (or authorized

representative of such participant, beneficiary, or

enrollee), not later than 1 business day (or, in the case

such item or service was so scheduled at least 10

business days before such item or service is to be

furnished (or in the case of a request made to such

plan or coverage by such participant, beneficiary, or

77a

enrollee), 3 business days) after the date on which the

plan or coverage receives such notification (or such

request), provide to the participant, beneficiary, or

enrollee (through mail or electronic means, as

requested by the participant, beneficiary, or enrollee)

a notification (in clear and understandable language)

including the following:

(A)

Whether or not the provider or facility is

a participating provider or a participating facility with

respect to the plan or coverage with respect to the

furnishing of such item or service and(i) in the case the provider or facility is a

participating provider or facility with respect to the

plan or coverage with respect to the furnishing of such

item or service, the contracted rate under such plan or

coverage for such item or service (based on the billing

and diagnostic codes provided by such provider or

facility); and

(ii) in the case the provider or facility is a

nonparticipating provider or facility with respect to

such plan or coverage, a description of how such

individual may obtain information on providers and

facilities that, with respect to such plan or coverage,

are participating providers and facilities, if any.

(B)

The good faith estimate included in the

notification received from the provider or facility (if

applicable) based on such codes.

(C)

A good faith estimate of the amount the

plan or coverage is responsible for paying for items and

services included in the estimate described in

subparagraph (B).

any

(D) A good faith estimate of the amount of

cost-sharing for which the participant,

78a

beneficiary, or enrollee would be responsible for such

item or service (as of the date of such notification).

(E)

A good faith estimate of the amount that

the participant, beneficiary, or enrollee has incurred

toward meeting the limit of the financial

responsibility (including with respect to deductibles

and out-of-pocket maximums) under the plan or

coverage (as of the date of such notification).

(F)

In the case such item or service is subject

to a medical management technique (including

concurrent review, prior authorization, and steptherapy or fail-first protocols) for coverage under the

plan or coverage, a disclaimer that coverage for such

item or service is subject to such medical management

technique.

(G) A disclaimer that the information

provided in the notification is only an estimate based

on the items and services reasonably expected, at the

time of scheduling (or requesting) the item or service,

to be furnished and is subject to change.

(H) Any other information or disclaimer the

plan or coverage determines appropriate that is

consistent with information and disclaimers required

under this section.

(2) Authority

modify

timing

requirements in the case of

specified items and services

(A) In general

In the case of a participant, beneficiary, or enrollee

scheduled to receive an item or service that is a

specified item or service (as defined in subparagraph

(B)), the Secretary may modify any timing

79a

requirements relating to the provision of the

notification described in paragraph (1) to such

participant, beneficiary, or enrollee with respect to

such item or service. Any modification made by the

Secretary pursuant to the previous sentence may not

result in the provision of such notification after such

participant, beneficiary, or enrollee has been

furnished such item or service.

(B) Specified

defined

item

service

For purposes of subparagraph (A), the term

“specified item or service” means an item or service

that has low utilization or significant variation in

costs (such as when furnished as part of a complex

treatment), as specified by the Secretary.

(July 1, 1944, ch. 373, title XXVII, §2799A–1, as added

and amended Pub. L. 116–260, div. BB, title I,

§§102(a)(1), 103(a), 107(a), 111(a), Dec. 27, 2020, 134

Stat. 2759 , 2797, 2858, 2861.)

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42 U.S.C. § 300gg-112: Ending surprise air

ambulance bills

§300gg–112. Ending surprise air ambulance bills

(a) In general

In the case of a participant, beneficiary, or enrollee

who is in a group health plan or group or individual

health insurance coverage offered by a health

insurance issuer and who receives air ambulance

services from a nonparticipating provider (as defined

in section 300gg–111(a)(3)(G) of this title) with respect

to such plan or coverage, if such services would be

covered if provided by a participating provider (as

defined in such section) with respect to such plan or

coverage(1) the cost-sharing requirement with respect to

such services shall be the same requirement that

would apply if such services were provided by such

a participating provider, and any coinsurance or

deductible shall be based on rates that would apply

for such services if they were furnished by such a

participating provider;

(2) such cost-sharing amounts shall be counted

towards the in-network deductible and in-network

out-of-pocket maximum amount under the plan or

coverage for the plan year (and such in-network

deductible shall be applied) with respect to such

items and services so furnished in the same manner

as if such cost-sharing payments were with respect

to items and services furnished by a participating

provider; and

81a

(3) the group health plan or health insurance

issuer, respectively, shall(A) not later than 30 calendar days after the

bill for such services is transmitted by such

provider, send to the provider, an initial payment

or notice of denial of payment; and

(B) pay a total plan or coverage payment, in

accordance with, if applicable, subsection (b)(6),

directly to such provider furnishing such services

to such participant, beneficiary, or enrollee that

is, with application of any initial payment under

subparagraph (A), equal to the amount by which

the out-of-network rate (as defined in section

300gg–111(a)(3)(K) of this title) for such services

and year involved exceeds the cost-sharing

amount imposed under the plan or coverage,

respectively, for such services (as determined in

accordance with paragraphs (1) and (2)).

(b) Determination of out-of-network rates to be

paid by health plans; independent dispute

resolution process

(1) Determination through open negotiation

(A) In general

With respect to air ambulance services

furnished in a year by a nonparticipating provider,

with respect to a group health plan or health

insurance issuer offering group or individual

health insurance coverage, and for which a

payment is required to be made by the plan or

coverage pursuant to subsection (a)(3), the

provider or plan or coverage may, during the 30day period beginning on the day the provider

receives an initial payment or a notice of denial of

82a

payment from the plan or coverage regarding a

claim for payment for such service, initiate open

negotiations under this paragraph between such

provider and plan or coverage for purposes of

determining, during the open negotiation period,

an amount agreed on by such provider, and such

plan or coverage for payment (including any costsharing) for such service. For purposes of this

subsection, the open negotiation period, with

respect to air ambulance services, is the 30-day

period beginning on the date of initiation of the

negotiations with respect to such services.

(B) Accessing

independent

resolution process in case

negotiations

dispute

failed

In the case of open negotiations pursuant to

subparagraph (A), with respect to air ambulance

services, that do not result in a determination of

an amount of payment for such services by the

last day of the open negotiation period described

in such subparagraph with respect to such

services, the provider or group health plan or

health insurance issuer offering group or

individual health insurance coverage that was

party to such negotiations may, during the 4-day

period beginning on the day after such open

negotiation period, initiate the independent

dispute resolution process under paragraph (2)

with respect to such item or service.

The

independent dispute resolution process shall be

initiated by a party pursuant to the previous

sentence by submission to the other party and to

the Secretary of a notification (containing such

information as specified by the Secretary) and for

83a

purposes of this subsection, the date of initiation

of such process shall be the date of such

submission or such other date specified by the

Secretary pursuant to regulations that is not later

than the date of receipt of such notification by

both the other party and the Secretary.

(2) Independent dispute resolution process

available in case of failed open negotiations

(A) Establishment

Not later than 1 year after December 27, 2020,

the Secretary, jointly with the Secretary of Labor

and the Secretary of the Treasury, shall establish

by regulation one independent dispute resolution

process (referred to in this subsection as the “IDR

process”) under which, in the case of air

ambulance services with respect to which a

provider or group health plan or health insurance

issuer offering group or individual health

insurance coverage submits a notification under

paragraph (1)(B) (in this subsection referred to as

a “qualified IDR air ambulance services”), a

certified IDR entity under paragraph (4)

determines, subject to subparagraph (B) and in

accordance with the succeeding provisions of this

subsection, the amount of payment under the

plan or coverage for such services furnished by

such provider.

(B) Authority to continue negotiations

Under the independent dispute resolution

process, in the case that the parties to a

determination for qualified IDR air ambulance

services agree on a payment amount for such

services during such process but before the date

84a

on which the entity selected with respect to such

determination under paragraph (4) makes such

determination under paragraph (5), such amount

shall be treated for purposes of section 300gg–

111(a)(3)(K)(ii) of this title as the amount agreed

to by such parties for such services. In the case of

an agreement described in the previous sentence,

the independent dispute resolution process shall

provide for a method to determine how to allocate

between the parties to such determination the

payment of the compensation of the entity

selected with respect to such determination.

A nonparticipating provider may not, with

respect to an item or service furnished by such

provider, submit a notification under paragraph

(1)(B) if such provider is exempt from the

requirement under subsection (a) of section

300gg–132 of this title with respect to such item

or service pursuant to subsection (b) of such

section.

(3) Treatment of batching of services

The provisions of section 300gg–111(c)(3) of this

title shall apply with respect to a notification

submitted under this subsection with respect to air

ambulance services in the same manner and to the

same extent such provisions apply with respect to a

notification submitted under section 300gg–111(c)

of this title with respect to items and services

described in such section.

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(4) IDR entities

(A) Eligibility

An IDR entity certified under this subsection is

an IDR entity certified under section 300gg–

111(c)(4) of this title.

(B) Selection of certified IDR entity

The provisions of subparagraph (F) of section

300gg–111(c)(4) of this title shall apply with

respect to selecting an IDR entity certified

pursuant to subparagraph (A) with respect to the

determination of the amount of payment under

this subsection of air ambulance services in the

same manner as such provisions apply with

respect to selecting an IDR entity certified under

such section with respect to the determination of

the amount of payment under section 300gg–

111(c) of this title of an item or service. An entity

selected pursuant to the previous sentence to

make a determination described in such sentence

shall be referred to in this subsection as the

“certified IDR entity” with respect to such

determination.

(5) Payment determination

(A) In general

Not later than 30 days after the date of

selection of the certified IDR entity with respect

to a determination for qualified IDR ambulance

services, the certified IDR entity shall(i) taking into account the considerations

specified in subparagraph (C), select one of the

offers submitted under subparagraph (B) to be

the amount of payment for such services

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determined under this subsection for purposes

of subsection (a)(3); and

(ii) notify the provider or facility and the

group health plan or health insurance issuer

offering group or individual health insurance

coverage party to such determination of the

offer selected under clause (i).

(B) Submission of offers

Not later than 10 days after the date of

selection of the certified IDR entity with respect

to a determination for qualified IDR air

ambulance services, the provider and the group

health plan or health insurance issuer offering

group or individual health insurance coverage

party to such determination(i) shall each submit to the certified IDR

entity with respect to such determination(I) an offer for a payment amount for such

services furnished by such provider; and

(II) such information as requested by the

certified IDR entity relating to such offer;

and

(ii) may each submit to the certified IDR

entity with respect to such determination any

information relating to such offer submitted by

either party, including information relating to

any circumstance described in subparagraph

(C)(ii).

(i) In general

In determining which offer is the payment to

be applied pursuant to this paragraph, the

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certified IDR entity, with respect to the

determination for a qualified IDR air

ambulance service shall consider(I) the qualifying payment amounts (as

defined in section 300gg–111(a)(3)(E) of this

title) for the applicable year for items or

services that are comparable to the qualified

IDR air ambulance service and that are

furnished in the same geographic region (as

defined by the Secretary for purposes of such

subsection) as such qualified IDR air

ambulance service; and

(II) subject to clause (iii), information on

any circumstance described in clause (ii),

such

information

requested

subparagraph (B)(i)(II), and any additional

information provided in subparagraph (B)(ii).

(ii) Additional circumstances

For purposes of clause (i)(II), the

circumstances described in this clause are, with

respect to air ambulance services included in

the notification submitted under paragraph

(1)(B) of a nonparticipating provider, group

health plan, or health insurance issuer the

following:

(I) The

quality

and

outcomes

measurements of the provider that furnished

such services.

(II) The acuity of the individual receiving

such services or the complexity of furnishing

such services to such individual.

88a

(III) The training, experience, and quality

of the medical personnel that furnished such

services.

(IV) Ambulance vehicle type, including the

clinical capability level of such vehicle.

(V) Population density of the pick up

location (such as urban, suburban, rural, or

frontier).

(VI) Demonstrations of good faith efforts

(or lack of good faith efforts) made by the

nonparticipating

provider

nonparticipating facility or the plan or issuer

to enter into network agreements and, if

applicable, contracted rates between the

provider and the plan or issuer, as applicable,

during the previous 4 plan years.

(iii) Prohibition

certain factors

consideration

In determining which offer is the payment

amount to be applied with respect to qualified

IDR air ambulance services furnished by a

provider, the certified IDR entity with respect

to such determination shall not consider usual

and customary charges, the amount that would

have been billed by such provider with respect

to such services had the provisions of section

300gg–135 of this title not applied, or the

payment or reimbursement rate for such

services furnished by such provider payable by

a public payor, including under the Medicare

program under title XVIII of the Social

Security Act [42 U.S.C. 1395 et seq.], under the

Medicaid program under title XIX of such Act

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[42 U.S.C. 1396 et seq.], under the Children’s

Health Insurance Program under title XXI of

such Act [42 U.S.C. 1397aa et seq.], under the

TRICARE program under chapter 55 of title 10,

or under chapter 17 of title 38.

(D) Effects of determination

The provisions of section 300gg–111(c)(5)(E) of

this title shall apply with respect to a

determination of a certified IDR entity under

subparagraph (A), the notification submitted

with respect to such determination, the services

with respect to such notification, and the parties

to such notification in the same manner as such

provisions apply with respect to a determination

of a certified IDR entity under section 300gg–

111(c)(5)(E) of this title, the notification

submitted with respect to such determination, the

items and services with respect to such

notification, and the parties to such notification.

(E) Costs of independent dispute resolution

process

The provisions of section 300gg–111(c)(5)(F) of

this title shall apply to a notification made under

this subsection, the parties to such notification,

and a determination under subparagraph (A) in

the same manner and to the same extent such

provisions apply to a notification under section

300gg–111(c) of this title, the parties to such

notification and a determination made under

section 300gg–111(c)(5)(A) of this title.

(6) Timing of payment

The total plan or coverage payment required

pursuant to subsection (a)(3), with respect to

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qualified IDR air ambulance services for which a

determination is made under paragraph (5)(A) or

with respect to an air ambulance service for which a

payment amount is determined under open

negotiations under paragraph (1), shall be made

directly to the nonparticipating provider not later

than 30 days after the date on which such

determination is made.

(7) Publication of information relating to the

IDR process

(A) In general

For each calendar quarter in 2022 and each

calendar quarter in a subsequent year, the

Secretary shall publish on the public website of

the Department of Health and Human Services(i) the number of notifications submitted

under the IDR process during such calendar

quarter;

(ii) the number of such notifications with

respect to which a final determination was

made under paragraph (5)(A);

(iii) the

information

described

subparagraph (B) with respect to each

notification with respect to which such a

determination was so made.

(iv) the number of times the payment

amount determined (or agreed to) under this

subsection exceeds the qualifying payment

amount;

(v) the amount of expenditures made by the

Secretary during such calendar quarter to

carry out the IDR process;

91a

(vi) the total amount of fees paid under

paragraph (8) during such calendar quarter;

and

(vii) the total amount of compensation paid

to certified IDR entities under paragraph (5)(E)

during such calendar quarter.

(B) Information with respect to requests

For purposes of subparagraph (A), the

information described in this subparagraph is,

with respect to a notification under the IDR

process of a nonparticipating provider, group

health plan, or health insurance issuer offering

group or individual health insurance coverage(i) a description of each air ambulance

service included in such notification;

(ii) the geography in which the services

included in such notification were provided;

(iii) the amount of the offer submitted under

paragraph (2) by the group health plan or

health insurance issuer (as applicable) and by

the nonparticipating provider expressed as a

percentage of the qualifying payment amount;

(iv) whether the offer selected by the

certified IDR entity under paragraph (5) to be

the payment applied was the offer submitted by

such plan or issuer (as applicable) or by such

provider and the amount of such offer so

selected expressed as a percentage of the

qualifying payment amount;

(v) ambulance vehicle type, including the

clinical capability level of such vehicle;

92a

(vi) the identity of the group health plan or

health insurance issuer or air ambulance

provider with respect to such notification;

(vii) the length of time in making each

determination;

(viii) the compensation paid to the certified

IDR entity with respect to the settlement or

determination; and

(ix) any other information specified by the

Secretary.

For 2022 and each subsequent year, an IDR

entity, as a condition of certification as an IDR

entity, shall submit to the Secretary such

information as the Secretary determines

necessary for the Secretary to carry out the

provisions of this paragraph.

(D) Clarification

The Secretary shall ensure the public reporting

under this paragraph does not contain

information that would disclose privileged or

confidential information of a group health plan or

health insurance issuer offering group or

individual health insurance coverage or of a

provider or facility.

(8) Administrative fee

(A) In general

Each party to a determination under

paragraph (5) to which an entity is selected under

paragraph (4) in a year shall pay to the Secretary,

at such time and in such manner as specified by

the Secretary, a fee for participating in the IDR

93a

process with respect to such determination in an

amount described in subparagraph (B) for such

year.

(B) Amount of fee

The amount described in this subparagraph for

a year is an amount established by the Secretary

in a manner such that the total amount of fees

paid under this paragraph for such year is

estimated to be equal to the amount of

expenditures estimated to be made by the

Secretary for such year in carrying out the IDR

process.

(9) Waiver authority

The Secretary may modify any deadline or other

timing requirement specified under this subsection

(other than the establishment date for the IDR

process under paragraph (2)(A) and other than

under paragraph (6)) in cases of extenuating

circumstances, as specified by the Secretary, or to

ensure that all claims that occur during a 90-day

period applied through paragraph (5)(D), but with

respect to which a notification is not permitted by

reason of such paragraph to be submitted under

paragraph (1)(B) during such period, are eligible for

the IDR process.

For purposes of this section:

(1) Air ambulance service

The term “air ambulance service” means medical

transport by helicopter or airplane for patients.

94a

(2) Qualifying payment amount

The term “qualifying payment amount” has the

meaning given such term in section 300gg–111(a)(3)

of this title.

(3) Nonparticipating provider

The term “nonparticipating provider” has the

meaning given such term in section 300gg–111(a)(3)

of this title. (July 1, 1944, ch. 373, title XXVII,

§2799A–2, as added Pub. L. 116–260, div. BB, title

I, §105(a)(1), Dec. 27, 2020, 134 Stat. 2831 .)

95a

29 U.S.C. § 1185e: Preventing surprise medical

bills

§1185e. Preventing surprise medical bills

(a) Coverage of emergency services

(1) In general

If a group health plan, or a health insurance

issuer offering group health insurance coverage,

provides or covers any benefits with respect to

services in an emergency department of a hospital

or with respect to emergency services in an

independent freestanding emergency department

(as defined in paragraph (3)(D)), the plan or issuer

shall cover emergency services (as defined in

paragraph (3)(C))(A) without the need

authorization determination;

for

any

prior

(B) whether the health care provider

furnishing such services is a participating

provider or a participating emergency facility, as

applicable, with respect to such services;

provided to a participant or beneficiary by a

nonparticipating provider or a nonparticipating

emergency facility(i) such services will be provided without

imposing any requirement under the plan for

prior authorization of services or any limitation

on coverage that is more restrictive than the

requirements or limitations that apply to

emergency services received from participating

providers

and

participating

emergency

96a

facilities with respect to such plan or coverage,

respectively;

(ii) the cost-sharing requirement is not

greater than the requirement that would apply

if such services were provided by a

participating provider or a participating

emergency facility;

(iii) such cost-sharing requirement is

calculated as if the total amount that would

have been charged for such services by such

participating

provider

participating

emergency facility were equal to the recognized

amount (as defined in paragraph (3)(H)) for

such services, plan or coverage, and year;

(iv) the group health plan

insurance issuer, respectively-

health

(I) not later than 30 calendar days after

the bill for such services is transmitted by

such provider or facility, sends to the

provider or facility, as applicable, an initial

payment or notice of denial of payment; and

(II) pays a total plan or coverage payment

directly to such provider or facility,

respectively (in accordance, if applicable,

with the timing requirement described in

subsection (c)(6)) that is, with application of

any initial payment under subclause (I),

equal to the amount by which the out-ofnetwork rate (as defined in paragraph (3)(K))

for such services exceeds the cost-sharing

amount for such services (as determined in

accordance with clauses (ii) and (iii)) and

year; and

97a

(v) any cost-sharing payments made by the

participant or beneficiary with respect to such

emergency services so furnished shall be

counted toward any in-network deductible or

out-of-pocket maximums applied under the

plan or coverage, respectively (and such innetwork

deductible

and

out-of-pocket

maximums shall be applied) in the same

manner as if such cost-sharing payments were

made with respect to emergency services

furnished by a participating provider or a

participating emergency facility; and

(D) without regard to any other term or

condition of such coverage (other than exclusion

or coordination of benefits, or an affiliation or

waiting period, permitted under section 300gg–3

of title 42, including as incorporated pursuant to

section 1185d of this title and section 9815 of title

26, and other than applicable cost-sharing).

(2) Regulations

amounts

for

qualifying

payment

Not later than July 1, 2021, the Secretary, in

consultation with the Secretary of the Treasury and

the Secretary of Health and Human Services, shall

establish through rulemaking(A) the methodology the group health plan or

health insurance issuer offering health insurance

coverage in the group market shall use to

determine the qualifying payment amount,

differentiating by large group market, and small

group market;

(B) the information such plan or issuer,

respectively,

shall

with

the

98a

nonparticipating provider or nonparticipating

facility, as applicable, when making such a

determination;

of this subparagraph, taking into account access

to items and services in rural and underserved

areas, including health professional shortage

areas, as defined in section 254e of title 42; and

(D) a process to receive complaints of violations

of the requirements described in subclauses (I)

and (II) of subparagraph (A)(i) by group health

plans and health insurance issuers offering

health insurance coverage in the group market.

Such rulemaking shall take into account payments

that are made by such plan or issuer, respectively,

that are not on a fee-for-service basis. Such

methodology may account for relevant payment

adjustments that take into account quality or

facility type (including higher acuity settings and

the case-mix of various facility types) that are

otherwise taken into account for purposes of

determining payment amounts with respect to

participating facilities. In carrying out clause (iii),

the Secretary shall consult with the National

Association of Insurance Commissioners to

establish the geographic regions under such clause

and shall periodically update such regions, as

appropriate, taking into account the findings of the

report submitted under section 109(a) of the No

Surprises Act.

(3) Definitions

In this subpart:

99a

(A) Emergency department of a hospital

The term “emergency department of a hospital”

includes a hospital outpatient department that

provides emergency services (as defined in

subparagraph (C)(i)).

(B) Emergency medical condition

The term “emergency medical condition” means

a medical condition manifesting itself by acute

symptoms of sufficient severity (including severe

pain) such that a prudent layperson, who

possesses an average knowledge of health and

medicine, could reasonably expect the absence of

immediate medical attention to result in a

condition described in clause (i), (ii), or (iii) of

section 1867(e)(1)(A) of the Social Security Act [42

U.S.C. 1395dd(e)(1)(A)].

(i) In general

The term “emergency services”, with respect

to an emergency medical condition, means

(I) a medical screening examination (as

required under section 1867 of the Social

Security Act [42 U.S.C. 1395dd], or as would

be required under such section if such section

applied to an independent freestanding

emergency department) that is within the

capability of the emergency department of a

hospital or of an independent freestanding

emergency department, as applicable,

including ancillary services routinely

available to the emergency department to

100a

evaluate such emergency medical condition;

and

(II) within the capabilities of the staff and

facilities available at the hospital or the

independent

freestanding

emergency

department, as applicable, such further

medical examination and treatment as are

required under section 1867 of such Act [42

U.S.C. 1395dd], or as would be required

under such section if such section applied to

an independent freestanding emergency

department, to stabilize the patient

(regardless of the department of the hospital

in which such further examination or

treatment is furnished).

(ii) Inclusion of additional services

(I) In general

For purposes of this subsection and section

300gg–131 of title 42, in the case of a

participant or beneficiary who is enrolled in

a group health plan or group health

insurance coverage offered by a health

insurance issuer and who is furnished

services described in clause (i) with respect

to an emergency medical condition, the term

“emergency services” shall include, unless

each of the conditions described in subclause

(II) are met, in addition to the items and

services described in clause (i), items and

services(aa) for which benefits are provided or

covered under the plan or coverage,

respectively; and

101a

(bb) that

are

furnished

nonparticipating

provider

nonparticipating

emergency

facility

(regardless of the department of the

hospital in which such items or services

are furnished) after the participant or

beneficiary is stabilized and as part of

outpatient observation or an inpatient or

outpatient stay with respect to the visit in

which the services described in clause (i)

are furnished.

(II) Conditions

For purposes of subclause (I), the

conditions described in this subclause, with

respect to a participant or beneficiary who is

stabilized and furnished additional items

and services described in subclause (I) after

such stabilization by a provider or facility

described in subclause (I), are the following;

(aa) Such provider or facility determines

such individual is able to travel using

nonmedical

transportation

nonemergency medical transportation.

(bb) Such provider furnishing such

additional items and services satisfies the

notice and consent criteria of section

300gg–132(d) 1 of title 42 with respect to

such items and services.

(cc) Such individual is in a condition to

receive (as determined in accordance with

guidelines issued by the Secretary

pursuant to rulemaking) the information

described in section 300gg–132 1 of title 42

102a

and to provide informed consent under

such section, in accordance with applicable

State law.

(dd) Such other conditions, as specified

by the Secretary, such as conditions

relating to coordinating care transitions to

participating providers and facilities.

(D) Independent freestanding emergency

department

The

term

“independent

freestanding

emergency department” means a health care

facility that(i) is geographically separate and distinct

and licensed separately from a hospital under

applicable State law; and

(ii) provides any of the emergency services

(as defined in subparagraph (C)(i)).

(E) Qualifying payment amount

(i) In general

The term “qualifying payment amount”

means, subject to clauses (ii) and (iii), with

respect to a sponsor of a group health plan and

health insurance issuer offering group health

insurance coverage(I) for an item or service furnished during

2022, the median of the contracted rates

recognized by the plan or issuer, respectively

(determined with respect to all such plans of

such sponsor or all such coverage offered by

such issuer that are offered within the same

insurance market (specified in subclause (I),

(II), or (III) of clause (iv)) as the plan or

103a

coverage) as the total maximum payment

(including the cost-sharing amount imposed

for such item or service and the amount to be

paid by the plan or issuer, respectively)

under such plans or coverage, respectively,

on January 31, 2019, for the same or a

similar item or service that is provided by a

provider in the same or similar specialty and

provided in the geographic region in which

the item or service is furnished, consistent

with the methodology established by the

Secretary under paragraph (2), increased by

the percentage increase in the consumer

price index for all urban consumers (United

States city average) over 2019, such

percentage increase over 2020, and such

percentage increase over 2021; and

(II) for an item or service furnished during

2023 or a subsequent year, the qualifying

payment amount determined under this

clause for such an item or service furnished

in the previous year, increased by the

percentage increase in the consumer price

index for all urban consumers (United States

city average) over such previous year.

(ii) New plans and coverage

The term “qualifying payment amount”

means, with respect to a sponsor of a group

health plan or health insurance issuer offering

group health insurance coverage in a

geographic region in which such sponsor or

issuer, respectively, did not offer any group

104a

health plan or health insurance coverage

during 2019(I) for the first year in which such group

health plan or health insurance coverage,

respectively, is offered in such region, a rate

(determined

accordance

with

methodology established by the Secretary)

for items and services that are covered by

such plan and furnished during such first

year; and

(II) for each subsequent year such group

health plan or health insurance coverage,

respectively, is offered in such region, the

qualifying payment amount determined

under this clause for such items and services

furnished in the previous year, increased by

the percentage increase in the consumer

price index for all urban consumers (United

States city average) over such previous year.

(iii) Insufficient

information;

covered items and services

newly

In the case of a sponsor of a group health

plan or health insurance issuer offering group

health insurance coverage that does not have

sufficient information to calculate the median

of the contracted rates described in clause (i)(I)

in 2019 (or, in the case of a newly covered item

or service (as defined in clause (v)(III)), in the

first coverage year (as defined in clause (v)(I))

for such item or service with respect to such

plan or coverage) for an item or service

(including with respect to provider type, or

amount, of claims for items or services (as

105a

determined by the Secretary) provided in a

particular geographic region (other than in a

case with respect to which clause (ii) applies))

the term “qualifying payment amount”(I) for an item or service furnished during

2022 (or, in the case of a newly covered item

or service, during the first coverage year for

such item or service with respect to such plan

or coverage), means such rate for such item

or service determined by the sponsor or

issuer, respectively, through use of any

database that is determined, in accordance

with rulemaking described in paragraph (2),

to not have any conflicts of interest and to

have sufficient information reflecting

allowed amounts paid to a health care

provider or facility for relevant services

furnished in the applicable geographic region

(such as a State all-payer claims database);

(II) for an item or service furnished in a

subsequent year (before the first sufficient

information year (as defined in clause (v)(II))

for such item or service with respect to such

plan or coverage), means the rate

determined under subclause (I) or this

subclause, as applicable, for such item or

service for the year previous to such

subsequent

year,

increased by

the

percentage increase in the consumer price

index for all urban consumers (United States

city average) over such previous year;

(III) for an item or service furnished in the

first sufficient information year for such item

106a

or service with respect to such plan or

coverage, has the meaning given the term

qualifying payment amount in clause (i)(I),

except that in applying such clause to such

item or service, the reference to “furnished

during 2022” shall be treated as a reference

to furnished during such first sufficient

information year, the reference to “in 2019”

shall be treated as a reference to such

sufficient information year, and the increase

described in such clause shall not be applied;

and

(IV) for an item or service furnished in any

year subsequent to the first sufficient

information year for such item or service

with respect to such plan or coverage, has the

meaning given such term in clause (i)(II),

except that in applying such clause to such

item or service, the reference to “furnished

during 2023 or a subsequent year” shall be

treated as a reference to furnished during

the year after such first sufficient

information year or a subsequent year.

(iv) Insurance market

For purposes of clause (i)(I), a health

insurance market specified in this clause is one

of the following:

(I) The large group market (other than

plans described in subclause (III)).

(II) The small group market (other than

plans described in subclause (III)).

107a

(III) In the case of a self-insured group

health plan, other self-insured group health

plans.

(v) Definitions

For purposes of this subparagraph:

(I) First coverage year

The term “first coverage year” means, with

respect to a group health plan or group

health insurance coverage offered by a

health insurance issuer and an item or

service for which coverage is not offered in

2019 under such plan or coverage, the first

year after 2019 for which coverage for such

item or service is offered under such plan or

health insurance coverage.

(II) First sufficient information year

The term “first sufficient information year”

means, with respect to a group health plan or

group health insurance coverage offered by a

health insurance issuer(aa) in the case of an item or service for

which the plan or coverage does not have

sufficient information to calculate the

median of the contracted rates described

in clause (i)(I) in 2019, the first year

subsequent to 2022 for which such sponsor

or issuer has such sufficient information to

calculate the median of such contracted

rates in the year previous to such first

subsequent year; and

(bb) in the case of a newly covered item

or service, the first year subsequent to the

108a

first coverage year for such item or service

with respect to such plan or coverage for

which the sponsor or issuer has sufficient

information to calculate the median of the

contracted rates described in clause (i)(I)

in the year previous to such first

subsequent year.

(III) Newly covered item or service

The term “newly covered item or service”

means, with respect to a group health plan or

health insurance issuer offering group

health insurance coverage, an item or service

for which coverage was not offered in 2019

under such plan or coverage, but is offered

under such plan or coverage in a year after

2019.

(F) Nonparticipating emergency

participating emergency facility

facility;

(i) Nonparticipating emergency facility

The term “nonparticipating emergency

facility” means, with respect to an item or

service and a group health plan or group health

insurance coverage offered by a health

insurance issuer, an emergency department of

a hospital, or an independent freestanding

emergency department, that does not have a

contractual relationship directly or indirectly

with the plan or issuer, respectively, for

furnishing such item or service under the plan

or coverage, respectively.

109a

(ii) Participating emergency facility

The term “participating emergency facility”

means, with respect to an item or service and a

group health plan or group health insurance

coverage offered by a health insurance issuer,

an emergency department of a hospital, or an

independent

freestanding

emergency

department,

that

has

contractual

relationship directly or indirectly with the plan

or issuer, respectively, with respect to the

furnishing of such an item or service at such

facility.

(G) Nonparticipating providers;

participating providers

(i) Nonparticipating provider

The term “nonparticipating provider” means,

with respect to an item or service and a group

health plan or group health insurance coverage

offered by a health insurance issuer, a

physician or other health care provider who is

acting within the scope of practice of that

provider’s license or certification under

applicable State law and who does not have a

contractual relationship with the plan or issuer,

respectively, for furnishing such item or service

under the plan or coverage, respectively.

(ii) Participating provider

The term “participating provider” means,

with respect to an item or service and a group

health plan or group health insurance coverage

offered by a health insurance issuer, a

physician or other health care provider who is

acting within the scope of practice of that

110a

provider’s license or certification under

applicable State law and who has a contractual

relationship with the plan or issuer,

respectively, for furnishing such item or service

under the plan or coverage, respectively.

(H) Recognized amount

The term “recognized amount” means, with

respect to an item or service furnished by a

nonparticipating provider or nonparticipating

emergency facility during a year and a group

health plan or group health insurance coverage

offered by a health insurance issuer(i) subject to clause (iii), in the case of such

item or service furnished in a State that has in

effect a specified State law with respect to such

plan, coverage, or issuer, respectively; such a

nonparticipating provider or nonparticipating

emergency facility; and such an item or service,

the amount determined in accordance with

such law;

(ii) subject to clause (iii), in the case of such

item or service furnished in a State that does

not have in effect a specified State law, with

respect to such plan, coverage, or issuer,

respectively; such a nonparticipating provider

or nonparticipating emergency facility; and

such an item or service, the amount that is the

qualifying payment amount (as defined in

subparagraph (E)) for such year and

determined in accordance with rulemaking

described in paragraph (2))2 for such item or

service; or

111a

(iii) in the case of such item or service

furnished in a State with an All-Payer Model

Agreement under section 1115A of the Social

Security Act [42 U.S.C. 1315a], the amount

that the State approves under such system for

such item or service so furnished.

(I) Specified State law

The term “specified State law” means, with

respect to a State, an item or service furnished by

a nonparticipating provider or nonparticipating

emergency facility during a year and a group

health plan or group health insurance coverage

offered by a health insurance issuer, a State law

that provides for a method for determining the

total amount payable under such a plan, coverage,

or issuer, respectively (to the extent such State

law applies to such plan, coverage, or issuer,

subject to section 1144 of this title) in the case of

a participant or beneficiary covered under such

plan or coverage and receiving such item or

service from such a nonparticipating provider or

nonparticipating emergency facility.

(J) Stabilize

The term “to stabilize”, with respect to an

emergency medical condition (as defined in

subparagraph (B)), has the meaning give in

section 1867(e)(3) of the Social Security Act (42

U.S.C. 1395dd(e)(3)).

(K) Out-of-network rate

The term “out-of-network rate” means, with

respect to an item or service furnished in a State

during a year to a participant or beneficiary of a

group health plan or group health insurance

112a

coverage offered by a health insurance issuer

receiving such item or service from a

nonparticipating provider or nonparticipating

emergency facility(i) subject to clause (iii), in the case of such

item or service furnished in a State that has in

effect a specified State law with respect to such

plan, coverage, or issuer, respectively; such a

nonparticipating provider or nonparticipating

emergency facility; and such an item or service,

the amount determined in accordance with

such law;

(ii) subject to clause (iii), in the case such

State does not have in effect such a law with

respect to such item or service, plan, and

provider or facility(I) subject to subclause (II), if the provider

or facility (as applicable) and such plan or

coverage agree on an amount of payment

(including if such agreed on amount is the

initial payment sent by the plan under

subsection

(a)(1)(C)(iv)(I),

subsection

(b)(1)(C), or section 1185f(a)(3)(A) of this title,

as applicable, or is agreed on through open

negotiations under subsection (c)(1)) with

respect to such item or service, such agreed

on amount; or

(II) if such provider or facility (as

applicable) and such plan or coverage enter

the independent dispute resolution process

under subsection (c) and do not so agree

before the date on which a certified IDR

entity (as defined in paragraph (4) of such

113a

subsection) makes a determination with

respect to such item or service under such

subsection,

the

amount

such

determination; or

(iii) in the case such State has an All-Payer

Model Agreement under section 1115A of the

Social Security Act [42 U.S.C. 1315a], the

amount that the State approves under such

system for such item or service so furnished.

(L) Cost-sharing

The term “cost-sharing” includes copayments,

coinsurance, and deductibles.

(b) Coverage

non-emergency

services

performed by nonparticipating providers at

certain participating facilities

(1) In general

In the case of items or services (other than

emergency services to which subsection (a) applies)

for which any benefits are provided or covered by a

group health plan or health insurance issuer

offering group health insurance coverage furnished

to a participant or beneficiary of such plan or

coverage by a nonparticipating pro

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