Amicus Curiae Brief — Guardian Flight, L.L.C., et al., Petitioners v. Health Care Service Corporation

No. 25-441

In The

GUARDIAN FLIGHT, L.L.C., ET AL.,

Petitioners,

v.

HEALTH CARE SERVICE CORPORATION.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF AMERICAN MEDICAL

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

James E. Tysse

Counsel of Record

Kelly M. Cleary

Kristen E. Loveland

Haley S. Gorman

AKIN GUMP STRAUSS

HAUER & FELD LLP

2001 K Streest, NW

Washington, DC 20006

(202) 887-4000

jtysse@akingump.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE............................. 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT ........................................................ 2

ARGUMENT ................................................................ 4

I.

II.

THE

FIFTH

CIRCUIT

ERRED

IN

INTERPRETING THE NSA TO PRECLUDE

JUDICIAL ENFORCEMENT OF IDR

AWARDS ............................................................. 4

A.

The Fifth Circuit’s Interpretation Runs

Afoul Of The Presumption Against

Ineffectiveness ............................................. 4

B.

The Fifth Circuit Should Have Adopted

The Interpretation That Would Have

Made The NSA Effective ............................. 7

PROVIDERS

AND

PATIENTS

ARE

SERIOUSLY HARMED BY INSURERS’

FAILURE TO PAY IDR AWARDS ................... 11

A.

Providers And Their Patients Suffer

When

Insurers

Are

Not

Held

Accountable For The Payment of IDR

Awards ....................................................... 11

B.

The Serious And Immediate Threats To

Providers’

Livelihoods

And

This

Country’s Healthcare System Warrant

This Court’s Immediate Review................ 15

CONCLUSION .......................................................... 18

ii

TABLE OF AUTHORITIES

CASES:

Alexander v. Sandoval,

532 U.S. 275 (2001) ................................................ 9

Cheminova A/S v. Griffin L.L.C.,

182 F. Supp. 2d 68 (D.D.C. 2002) ...................... 6, 7

Drs. Ellis, Rojas, Ross & Debs, Inc. v.

UMR, Inc.,

No. 24-cv-20428, 2025 WL 742761

(S.D. Fla. Mar. 9, 2025) ........................................ 15

Garland v. Cargill,

602 U.S. 406 (2024) ................................................ 5

Guardian Flight, L.L.C. v. Health Care

Serv. Corp.,

140 F.4th 271 (5th Cir. 2025) ................................ 9

Jeffrey Farkas, M.D., LLC v. Horizon

Blue Cross Blue Shield of N.J.,

No. 25-cv-00054, 2025 WL 1860241

(E.D.N.Y. July 2, 2025) ........................................ 15

Kallen v. District 1199, Nat'l Union of

Hosp. & Health Care Empls.,

574 F.2d 723 (2d Cir. 1978).................................... 8

Lander Co. v. MMP Invs., Inc.,

107 F.3d 476 (7th Cir. 1997) .................................. 7

iii

Maine Cmty. Health Options v. United

States,

590 U.S. 296 (2020) ............................................ 8, 9

NextEra Energy Res., LLC v. Federal

Energy Regul. Comm’n,

118 F.4th 361 (D.C. Cir. 2024) ............................. 11

Place St. Charles v. J.A. Jones Constr.

Co.,

823 F.2d 120 (5th Cir. 1987) .................................. 8

Reiter v. Sonotone Corp.,

442 U.S. 330 (1979) .............................................. 11

Sierra Club v. E.P.A.,

294 F.3d 155 (D.C. Cir. 2002) ................................ 6

Texas Workforce Comm’n v. United

States Dep’t of Educ.,

973 F.3d 383 (5th Cir. 2020) .............................. 5, 7

The Emily,

22 U.S. (9 Wheat.) 381 (1824) .................................. 5

Transamerica Mortg. Advisors, Inc.

(TAMA) v. Lewis,

444 U.S. 11 (1979) .................................................. 8

United States v. Castleman,

572 U.S. 157 (2014) ............................................ 3, 5

United States v. Hartley,

34 F.4th 919 (10th Cir. 2022) ................................ 5

iv

STATUTES:

42 U.S.C.

§ 300gg-22 ......................................................... 9, 10

§ 300gg-22(b)(2)(C)(i)............................................ 10

§ 300gg-111(a) ........................................................ 5

§ 300gg-111(a)(1)(C)(iv).......................................... 5

§ 300gg-111(b) ........................................................ 5

§ 300gg-111(b)(1)(C) ............................................... 5

§ 300gg-111(b)(1)(D) ............................................... 5

§ 300gg-111(c) ......................................................... 5

§ 300gg-111(c)(1)(A) ............................................... 6

§ 300gg-111(c)(1)(B) ............................................... 6

§ 300gg-111(c)(2) .................................................... 6

§ 300gg-111(c)(3) .................................................... 6

§ 300gg-111(c)(4) .................................................... 6

§ 300gg-111(c)(5) .................................................... 6

§ 300gg-111(c)(5)(E)(i) ........................................ 6, 7

§ 300gg-111(c)(5)(E)(i)(II) ....................................... 8

§ 300gg-111(c)(6) ................................................ 6, 8

§ 300gg-111(c)(7) .................................................... 6

§ 300gg-112(a)(3) .................................................... 7

§ 300gg-112(b) ........................................................ 7

§ 300gg-134(a)(1) .................................................... 9

§ 300gg-134(b)(1) .................................................... 9

OTHER AUTHORITIES:

American Hosp. Ass’n, America’s

Hospitals and Health Systems

Continue to Face Escalating

Operational Costs and Economic

Pressures as They Care for Patients

and Communities (May 2024).............................. 16

v

Americans for Fair Health Care, No

Surprises Act (NSA) Impact Analysis

(2025) .............................................................. 12, 13

CMS, Supplemental Background on

Federal Independent Dispute

Resolution Public Use Files, January

1, 2024-June 30, 2024 (March 18,

2025) ..................................................................... 14

CMS, Supplemental Background on

Federal Independent Dispute

Resolution Public Use Files, July 1,

2024-December 31, 2024 (May 28,

2025) ............................................................... 10, 14

Emergency Dep’t Practice Mgmt. Ass’n,

No Surprises Act Update: Full-Year

2024 IDR Metrics (May/June 2024) ..................... 12

Kacik, Alex, How surprise billing

arbitration strains physician groups ,

MODERN HEALTHCARE (Oct. 22, 2024) ................. 17

Letter from AMA to Hon. John Thune,

U.S. Senate and Hon. Charles

Schumer, U.S. Senate (June 20,

2025) ..................................................................... 16

Letter from AMA to Hon. Mehmet C. Oz,

MD, MBA, Administrator, CMS (July

11, 2025) ............................................................... 16

MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY (11th ed. 2020) ................................... 7

vi

Reduced Care for Patients: Fallout from

Flawed Implementation of Surprise

Medical Billing Protections: Hearing

Before the H. Comm. on Ways and

Means, 118th Cong. (2023)

(statement of Jim Budzinski, Exec.

Vice President and Chief Fin. Officer,

Wellstar Health System)...................................... 14

Reduced Care for Patients: Fallout from

Flawed Implementation of Surprise

Medical Billing Protections: Hearing

Before the H. Comm. on Ways and

Means, 118th Cong. (2023)

(statement of Seth Bleier, MD,

FACEP, Vice President of Fin., Wake

Emergency Physicians, PA) ..................... 13, 17, 18

Reed, Tina, Doctors say insurers are

ignoring orders to pay surprise

billing disputes, AXIOS (Aug. 3, 2023) ................. 12

Requirements Related to Surprise

Billing; Part II, 86 Fed. Reg. 55,980

(Oct. 7, 2021) ........................................................ 17

SCALIA, ANTONIN & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION

OF LEGAL TEXTS (2012) ....................................... 5, 11

Sup. Ct. R.

37.2 ......................................................................... 1

37.6 ......................................................................... 1

vii

Tepper, Nona, Coming to a contract

negotiation near you: the No

Surprises Act, MODERN HEALTHCARE

(Aug. 15, 2022)...................................................... 13

U.S. GOV’T ACCOUNTABILITY OFF., GAO24-106335, PRIVATE HEALTH

INSURANCE: ROLL OUT OF

INDEPENDENT DISPUTE RESOLUTION

PROCESS FOR OUT-OF-NETWORK

CLAIMS HAS BEEN CHALLENGING

(2023) .................................................................... 15

WEBSTER’S NEW WORLD COLLEGE

DICTIONARY (5th ed. 2020) ..................................... 7

INTEREST OF AMICUS CURIAE1

The American Medical Association submits this

brief amicus curiae in support of Petitioners Guardian

Flight LLC and Med-Trans Corporation.

The American Medical Association (“AMA”), an

Illinois not-for-profit corporation founded in 1847, is

the country’s largest medical society. Its physicians

practice in all fields of medical specialization in every

state. The AMA is dedicated to promoting the science

and art of medicine and the betterment of public

health. It regularly files amicus briefs and engages in

other advocacy efforts to support the interests of

physicians nationwide.2

The AMA strongly supports Congress’s goal of

protecting patients from “surprise billing.” For years,

it has consistently advocated for a patient-first

solution to surprise medical bills that would shield

patients from unexpected payments, while enabling

providers and insurers to determine fair payment

among themselves and ensuring continued access to

1 Pursuant

to Supreme Court Rule 37.2, amicus curiae

states that it provided timely notice to all counsel of their intent

to file a brief. Pursuant to Supreme Court Rule 37.6, amicus

curiae states that no counsel for any party authored this brief in

whole or in part and no entity or person, aside from amicus

curiae, its members, or its counsel, made any monetary

contribution intended to fund the preparation or submission of

this brief.

2 The AMA files this brief as a member of the American

Medical Association/State Medical Society Litigation Center

(“Litigation Center”). The Litigation Center was formed in 1995

as a coalition of the AMA and private, voluntary, nonprofit state

medical societies to represent the views of organized medicine in

the courts.

(1)

2

care. The AMA thus supported the compromise set

forth in the No Surprises Act, which both protected

patients from surprise medical bills and established

an independent dispute resolution process to ensure

that providers would not remain underpaid for their

services.

The

Fifth

Circuit’s

determination

that

independent dispute resolution awards are judicially

unenforceable, however, upsets the balance that

Congress struck, and fails to achieve the goal of fair

payment.

The AMA and its members agree with

Petitioners that the Fifth Circuit’s decision

misinterprets the No Surprises Act. They submit this

brief to emphasize that the presumption against

ineffectiveness further counsels against the Fifth

Circuit’s reading, as well as to explain why immediate

review is necessary to avoid the detrimental impact

the Fifth Circuit’s holding will have on the ability of

physicians to provide their patients with the excellent

care they deserve.

INTRODUCTION AND SUMMARY OF

ARGUMENT

The No Surprises Act (“NSA”) bars out-ofnetwork providers from seeking payment from

patients for certain services and establishes a system

whereby

providers

may

seek

reasonable

reimbursement from insurers instead.

When

providers and insurers cannot agree on the amount of

reasonable reimbursement in the required 30-day

“open negotiation” period, the NSA funnels them into

independent dispute resolution (“IDR”), where an

arbitrator selects one of the parties’ two offers.

3

In the short history of IDR arbitration, providers

have prevailed much more often than not.

Yet

according to the Fifth Circuit, providers lack any

means of enforcing those awards—even though the

NSA provides no meaningful alternative enforcement

mechanism. The AMA agrees with Petitioners that this

Court should review the Fifth Circuit’s decision now.

The Fifth Circuit’s holding threatens grave and

immediate harm to providers and their patients in

addition to contradicting the NSA’s text and purpose.

Amicus files this brief to provide its unique perspective

on why the Court should grant review of Petitioners’

second question presented: whether Congress intended

providers to have the ability to enforce IDR awards

crucial to their fair payment.

“Congress presumably does not enact useless

laws.” United States v. Castleman, 572 U.S. 157, 178

(2014) (Scalia, J., concurring in part). Yet the Fifth

Circuit interpreted the NSA in a way that renders

entire sections nugatory. There is no need for an IDR

process—or any of the NSA’s other payment

mechanisms—if nothing prevents most insurers from

simply refusing to pay adverse IDR determinations.

Such an interpretation contravenes the presumption

against ineffectiveness and runs counter to the NSA’s

text and structure, which (among other things)

mandate that determinations “shall be binding upon

the parties involved”—a congressional command that

determinations be legally constraining and thus

judicially enforceable.

The Fifth Circuit’s interpretation also threatens

serious and ongoing harm to providers and the

healthcare system they serve. It gives insurers

4

significant leverage to demand confiscatory discounts

from out-of-network providers, as well as to exact

across-the-board rate cuts from in-network providers

(lest they be kicked out of network and not paid at all).

Both in- and out-of-network providers will thus find

themselves

perpetually

underpaid

or

even

uncompensated for their valuable services, and

patients will lose providers and critical care as a

result.

This Court should grant review to ensure that a

major piece of bipartisan legislation is not rendered

nugatory by the Fifth Circuit’s interpretation of its

enforceability and providers are not left vulnerable to

the

practice-destroying

harm

of

perpetual

underpayment that Congress sought to remedy in

enacting the NSA.

ARGUMENT

I.

THE

FIFTH

CIRCUIT

ERRED

IN

INTERPRETING THE NSA TO PRECLUDE

JUDICIAL

ENFORCEMENT

OF

IDR

AWARDS

A.

The Fifth Circuit’s Interpretation Runs

Afoul Of The Presumption Against

Ineffectiveness

The AMA agrees with Petitioners that the Court

should grant immediate review of the Fifth Circuit’s

decision, including its flawed holding that the NSA

provides no private cause of action. See Pet. 26-31.

Amicus files this brief to explain why the Fifth

Circuit’s interpretation of the NSA is not only wrong

as a matter of ordinary meaning, but transgresses a

5

fundamental principle of statutory interpretation: the

presumption against ineffectiveness.

This Court has long adopted constructions of

statutes to ensure that they effectively serve their

evident purposes. The so-called presumption against

ineffectiveness “weighs against interpretations of a

statute that would ‘render the law in a great measure

nugatory, and enable offenders to elude its provisions

in the most easy manner.’” Garland v. Cargill, 602 U.S.

406, 427 (2024) (alteration omitted) (quoting The

Emily, 22 U.S. (9 Wheat.) 381, 389 (1824)). More

simply, the presumption reflects “the idea that

Congress presumably does not enact useless laws.”

Castleman, 572 U.S. at 178 (Scalia, J., concurring in

part); see also United States v. Hartley, 34 F.4th 919,

928 (10th Cir. 2022) (courts should “give effect to each

statute Congress enacts because a statute’s ‘evident

purpose always includes effectiveness.’” (quoting

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS 63 (2012))); Texas

Workforce Comm’n v. United States Dep’t of Educ., 973

F.3d 383, 389 (5th Cir. 2020) (courts should favor “a

textually permissible interpretation that furthers

rather than obstructs the document’s purpose”).

The Fifth Circuit’s conclusion “render[s]

nugatory,” and allows most insurers “to elude,” whole

sections of the NSA—including all of 42 U.S.C. § 300gg111(c) and many parts of § 300gg-111(a) and (b). If an

insurer faces no threat of ultimate enforcement, there

is no reason for an insurer to send “an initial payment

or notice of denial of payment” to a provider. 42 U.S.C.

§ 300gg-111(a)(1)(C)(iv), (b)(1)(C), (D). There is also no

reason why the insurer should engage in the required

6

30-day “open negotiation” period to see if the parties

can agree on a preliminary payment, id. § 300gg111(c)(1)(A), much less submit to the IDR process “in

case of failed negotiations,” id. § 300gg-111(c)(1)(B).

Equally “useless,” then, are the NSA’s extensive

provisions governing the IDR process. Those provisions

include directives on how to treat a provider’s claims,

how to select and certify IDR entities, how the IDR

entity should make its payment determination, and

what information should be published about the IDR

process. 42 U.S.C. § 300gg-111(c)(2), (c)(3), (c)(4), (c)(5),

(c)(7).

Congress’s

specification

that

IDR

determinations “shall be binding upon the parties

involved,” id. § 300gg-111(c)(5)(E)(i), is also without

effect, as is its instruction that payment should be

made to a provider “not later than 30 days after the

date on which such determination is made,” id. § 300gg111(c)(6).

Under the Fifth Circuit’s reasoning,

Congress might as well not have enacted such

provisions at all, given that insurers can refuse to pay

the award without consequence.

More broadly, “the absence of judicial

enforcement would frustrate Congress’s attempt to”

comprehensively solve the problem of surprise billing

while ensuring providers are properly compensated for

their services. Cheminova A/S v. Griffin L.L.C., 182

F. Supp. 2d 68, 75 (D.D.C. 2002) (holding that

statutorily “binding” arbitration determinations

under FIFRA must be enforceable in federal court).

“The most reliable guide to congressional intent is the

legislation [that] Congress enacted,” Sierra Club v.

E.P.A., 294 F.3d 155, 161 (D.C. Cir. 2002), and the

NSA—through both its text and structure—makes

7

clear that Congress did not intend for providers to be

left holding the bag.

B.

The Fifth Circuit Should Have Adopted

The Interpretation That Would Have

Made The NSA Effective

The Fifth Circuit need not have gone down this

futile road. The best interpretation—and certainly “a

textually permissible” one—avoids this outcome, and

“furthers rather than obstructs the [NSA]’s purpose.”

Texas Workforce Comm’n, 973 F.3d at 389.

In particular, the NSA provides that an IDR

determination “shall be binding upon the parties

involved.” 42 U.S.C. § 300gg-111(c)(5)(E)(i) (emphasis

added).3 The term “binding” is “understood to mean

that an award will be enforceable in court.”

Cheminova A/S, 182 F. Supp. 2d at 73 (emphasis

added). Indeed, the plain meaning of “to bind” is “to

constrain with legal authority.” See Bind, MERRIAMWEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2020);

see also Bind, WEBSTER’S NEW WORLD COLLEGE

DICTIONARY (5th ed. 2020) (“bind” means “to compel,

as by oath, legal restraint, or contract” (emphasis

added)).

That is also the meaning the term has long had

in private arbitration, the background context against

which the NSA was drafted. See Lander Co. v. MMP

Invs., Inc., 107 F.3d 476, 480 (7th Cir. 1997) (“To agree

to binding arbitration is to agree that if your opponent

3 The same analysis applies to the NSA’s parallel provisions

governing air ambulance bills. See 42 U.S.C. § 300gg-112(a)(3),

(b).

8

wins the arbitration he can obtain judicial relief if you

refuse to comply with the arbitrator’s award.”); see also

Kallen v. District 1199, Nat'l Union of Hosp. & Health

Care Empls., 574 F.2d 723, 726 (2d Cir. 1978) (“[A

party] can hardly avow that an award will be ‘final,

conclusive and binding’ upon it without implicitly

agreeing that federal court intervention may be sought

to compel compliance.”); Place St. Charles v. J.A. Jones

Constr. Co., 823 F.2d 120, 124 (5th Cir. 1987)

(arbitration clause stating a “decision shall be final

and binding” rendered arbitration award judicially

enforceable). As this Court has explained, when

Congress incorporates a legal term of art into a

statute, “it intend[s] that the customary legal

incidents” of the term be incorporated into the statute

as well, including the availability of associated

remedies.

Transamerica Mortg. Advisors, Inc.

(TAMA) v. Lewis, 444 U.S. 11, 19 (1979). In making

IDR determinations “binding,” Congress thus made

clear that those determinations were to be just as

enforceable as they would be in the private arbitration

context on which the NSA was modeled. Cf. 42 U.S.C.

§ 300gg-111(c)(5)(E)(i)(II) (incorporating same four

grounds for vacatur as Federal Arbitration Act). Yet

the Fifth Circuit never meaningfully engaged with or

analyzed the term.4

4 Nor did it meaningfully engage with the NSA’s statutory

language regarding payments within 30 days, 42 U.S.C. § 300gg111(c)(6), which this Court has interpreted in analogous contexts

to “impose[] a legal duty” to pay that sum enforceable through a

“damages remedy.” Maine Cmty. Health Options v. United

States, 590 U.S. 296, 310, 323 n.12 (2020). In so holding, the

9

In adopting the view that Congress never

intended private enforcement, the Fifth Circuit

apparently did not believe its interpretation rendered

the NSA ineffective. It noted that Congress delegated

limited enforcement authority to the Department of

Health and Human Services (“HHS”), which it felt

“conveys Congress’s policy choice to enforce the statute

through administrative penalties, not a private right

of action.” Guardian Flight, L.L.C. v. Health Care

Serv. Corp., 140 F.4th 271, 276-277 (5th Cir. 2025).

But the NSA does not delegate any such authority:

HHS may only impose civil monetary penalties of up

to $10,000 on a “provider or facility” for violating the

Act’s patient-protection provisions.

42 U.S.C.

§§ 300gg-134(a)(1),

(b)(1)

(emphasis

added)

(authorizing agencies to impose fines against “a

provider or facility,” “including, as applicable, a

provider of air ambulance services”).

The Fifth Circuit relied instead on a general

delegation of authority to penalize noncompliance

with federal insurance provisions found in a statutory

provision that pre-dated the NSA. See Guardian

Flight, 140 F.4th at 277 (citing 42 U.S.C. § 300gg-22).

But as Petitioners note, HHS’s authority under that

provision does not reach large swaths of the insurance

market and empowers HHS only to incentivize

payment, not direct it. Pet. 34. The government

agrees: It argued below that its authority over the

limited category of insurers subject to its jurisdiction

Court rejected the notion that Alexander v. Sandoval, 532 U.S.

275 (2001) requires “magic words explicitly inviting suit.” Id.

10

under § 300gg-22 falls far short of the ability to enforce

the NSA’s mandate that IDR awards “shall be

binding” and paid within 30 days. At most, the

“imposition of civil monetary penalties may indirectly

encourage payment, but it would not be

comprehensive, and it would not necessarily result in

the provider compensation contemplated by Congress

when it enacted the NSA.” Br. of United States as

Amicus Curiae in support of Plaintiffs-Appellants, No.

24-10561, 2024 WL 4451970, at *13 (5th Cir. Oct. 4,

2024). This is especially so given that unpaid IDR

awards—like the nearly $1 million at issue in this suit,

Pet. 9—often dwarf the amount that HHS can assess

in civil penalties.

Compare, e.g., Compl. 2-3,

SpecialtyCare, Inc. v. Elevance Health, Inc., 1:25-cv01282 (S.D. Ind. June 26, 2025), ECF No. 1 (seeking

$2.7 million dollars in unpaid IDR awards), with 42

U.S.C. § 300gg-22(b)(2)(C)(i) (limiting civil penalties to

$100 per day). And even if HHS had the legal

authority, HHS lacks capacity to enforce many

thousands of IDR payment obligations year over year.

CMS, Supplemental Background on Federal

Independent Dispute Resolution Public Use Files, July

1, 2024-December 31, 2024, at 2 (May 28, 2025). 5

Thus, the notion that Congress intended NSA awards

to be enforceable solely via indirect, limited

administrative penalties is implausible.

Rather than rely on a provision that fails to

ensure every IDR award is “binding,” as the NSA

requires, the Fifth Circuit should have adopted the

5

https://www.cms.gov/files/document/federal-idrsupplemental-background-2024-q3-2024-q4.pdf.

11

interpretation that fulfills that mandate. Interpreting

the plain language of the NSA to provide a private

right of action to enforce IDR determinations “furthers

rather than obstructs the [NSA]’s purpose,” NextEra

Energy Res., LLC v. Federal Energy Regul. Comm’n,

118 F.4th 361, 371 (D.C. Cir. 2024) (quoting SCALIA &

GARNER, supra, at 63), and saves many of its

provisions from futility, see Reiter v. Sonotone Corp.,

442 U.S. 330, 339 (1979) (“In construing a statute we

are obliged to give effect, if possible, to every word

Congress used.”). The Court should take this case now

to correct the Fifth Circuit’s clear—and as explained

next, consequential—mistake.

II.

PROVIDERS

AND

PATIENTS

ARE

SERIOUSLY HARMED BY INSURERS’

FAILURE TO PAY IDR AWARDS

A.

Providers And Their Patients Suffer

When

Insurers

Are

Not

Held

Accountable For The Payment Of IDR

Awards

The harm providers will suffer if the Fifth

Circuit’s decision stands is obvious. Under the NSA,

it is usually providers who seek payment from

insurers because it is providers who have rendered

services without pre-payment. If insurers’ payment

obligations are unenforceable in the mine-run of cases,

they will have no incentive to pay providers at all,

much less in a timely manner.

Even prior to the Fifth Circuit’s decision, a

significant number of insurers were refusing to comply

with IDR determinations. A 2025 survey of clinicians

across 45 states found that 22% of IDR awards owed

12

providers in 2023 and 11% of awards in 2024 had not

been paid at all. Americans for Fair Health Care, No

Surprises Act (NSA) Impact Analysis, at 5 (2025).6 Of

the payments actually made in 2024, 50% were not

remitted within the requisite 30-day timeframe, and

15% were made in an incorrect amount. Id. A 2025

survey targeting emergency departments found even

greater noncompliance, with respondents reporting

that 60% of their IDR awards were unpaid within the

30 business days required by the NSA, and 26% of

awards were paid in the wrong amount. Emergency

Dep’t Practice Mgmt. Ass’n, No Surprises Act Update:

Full-Year 2024 IDR Metrics (May/June 2024). 7 The

same survey respondents reported that insurers also

continue to owe them tens of millions of dollars in

unpaid IDR awards. Id.

Press reports indicate that some insurers are

explicitly telling providers they would not “honor an

arbitration award because they view them as

‘unenforceable’ and ‘not binding.’” Tina Reed, Doctors

say insurers are ignoring orders to pay surprise billing

disputes, AXIOS (Aug. 3, 2023).8 Now that a federal

appellate court has held that IDR awards are

unenforceable, those numbers and those refusals are

only likely to increase.

6

https://www.americansforfairhealthcare.org/_files/ugd/11639b_3

948738a47e7439c910c4490a8c47778.pdf.

7

https://edpma.org/wp-content/uploads/2021/02/EDPMANo-Surprises-Act-Update-6.30.25.pdf.

8 https://www.axios.com/2023/08/03/insurers-refusing-paysurprise-billing.

13

The Fifth Circuit’s decision to render IDR awards

unenforceable will also have significant downstream

effects on the relationship between providers and

insurance companies. Even before the Fifth Circuit’s

decision, one major survey found that 20% of providers

had

experienced

“insurer-driven

contract

termination,” and one in five had been threatened with

contract termination following implementation of the

NSA. No Surprises Act (NSA) Impact Analysis, supra,

at 5. In addition, nearly 20% of providers had received

take-it-or-leave-it unilateral contract amendments in

2024. Id. Other in-network providers had seen abrupt

demands from insurers for across-the-board rate

reductions as high as 50%. Nona Tepper, Coming to a

contract negotiation near you: the No Surprises Act,

MODERN HEALTHCARE (Aug. 15, 2022).

In one

instance, two insurers unilaterally terminated the

contracts of a physician-owned practice group of

emergency doctors, pushing a third of the group’s

commercial patients out of network and paying “up to

70 percent less than our previous contracts for what

are now out of network services.” Reduced Care for

Patients: Fallout from Flawed Implementation of

Surprise Medical Billing Protections: Hearing Before

the H. Comm. on Ways and Means, 118th Cong. (2023)

(statement of Seth Bleier, MD, FACEP, Vice President

of Fin., Wake Emergency Physicians, PA) (“Bleier

Statement”), at 2. In the wake of the Fifth Circuit’s

ruling, in-network providers will be forced to accept

take-it-or-leave-it rate cuts, knowing that their other

choice is to be pushed out of network and potentially

never paid (by anyone).

14

There is no other way to compensate providers

adequately. Under the NSA, providers cannot turn to

patients to ensure they are adequately compensated

for their services. And their only other option—

insurers—now know there is little to no consequence

for a refusal to pay. So it matters little that in the

second half of 2024, “[p]roviders, facilities, or air

ambulance providers were the prevailing party in

approximately 85% of payment determinations.”

CMS, Supplemental Background, supra, at 4. That

high number was no fluke. In the six months prior,

providers were the prevailing party in 84% of payment

determinations. CMS, Supplemental Background on

Federal Independent Dispute Resolution Public Use

Files, January 1, 2024-June 30, 2024, at 4 (March 18,

2025). 9 Without the crucial backstop of the IDR

process, outright refusals to pay adequate

compensation will become only more commonplace.

Insurers’ underpayments and noncompliance

with the IDR process have already had serious

consequences for health systems. In 2023, the Chief

Financial Officer of a not-for-profit, community-based

health system, which operates 6 of the top 20 busiest

emergency departments in Georgia and Georgia’s

largest trauma network, told Congress that the health

system had received timely payment in just one-third

of its winning IDR disputes, representing over $40

million in reimbursement still outstanding. Reduced

Care

for

Patients:

Fallout

from

Flawed

Implementation of Surprise Medical Billing

9

https://www.cms.gov/files/document/supplementalbackground-federal-idr-puf-january-1-june-30-2024-march-182025.pdf

15

Protections: Hearing Before the H. Comm. on Ways and

Means, 118th Cong. (2023) (statement of Jim

Budzinski, Exec. Vice President and Chief Fin. Officer,

Wellstar Health System), at 4-5. Another provider

reported that the majority of its IDR awards remained

unpaid past the 30-day statutory deadline, while a

third stated it had over $5 million in unpaid IDR

awards. U.S. GOV’T ACCOUNTABILITY OFF., GAO-24106335, PRIVATE HEALTH INSURANCE: ROLL OUT OF

INDEPENDENT DISPUTE RESOLUTION PROCESS FOR OUTOF-NETWORK CLAIMS HAS BEEN CHALLENGING 30

(2023).

B.

The Serious And Immediate Threats To

Providers’

Livelihoods

And

This

Country’s Healthcare System Warrant

This Court’s Immediate Review

Providers and the patients they serve cannot wait

years for litigation on this question to percolate in

lower courts. The Fifth Circuit’s error is already

spreading, imperiling providers’ livelihoods around

the country. Multiple district courts outside the Fifth

Circuit have adopted its implausible interpretation of

the NSA with next to no independent analysis. See,

e.g., Jeffrey Farkas, M.D., LLC v. Horizon Blue Cross

Blue Shield of N.J., No. 25-cv-00054, 2025 WL

1860241, at *5-6 (E.D.N.Y. July 2, 2025); cf. Drs. Ellis,

Rojas, Ross & Debs, Inc. v. UMR, Inc., No. 24-cv20428, 2025 WL 742761, at *3 (S.D. Fla. Mar. 9, 2025)

(relying on the district court’s decision in this

litigation to suggest that federal courts have no role in

confirming IDR awards).

16

Correction by this Court of the Fifth Circuit’s

manifest error thus cannot wait. A judicial decision

that enables insurers to continue to delay or refuse

payment of IDR awards comes at a perilous time for

hospitals in particular. After weathering a once-in-acentury global pandemic, “[p]ersistent workforce

shortages, severe fractures in the supply chain for

drugs and supplies, and high levels of inflation have

collectively fueled hospitals’ costs as they care for

patients 24/7.” American Hosp. Ass’n, America’s

Hospitals and Health Systems Continue to Face

Escalating Operational Costs and Economic Pressures

as They Care for Patients and Communities (May

2024).10 Hospitals are thus “operating with little to no

margin,” id. (emphasis omitted), and depend on

adequate and timely payment to ensure excellent care.

In fact, providers are now staring down the barrel of

more than $860 billion in reduced federal Medicaid

spending over the next decade under the One Big

Beautiful Bill Act. See Letter from AMA to Hon.

Mehmet C. Oz, MD, MBA, Administrator, CMS at 2

(July 11, 2025). 11 That is on top of the fact that

physicians “are already dealing with a 2.83 percent cut

to Medicare payment in 2025 and, since 2001,

payment updates have fallen behind practice cost

inflation by 33 percent.” Letter from AMA to Hon.

John Thune, U.S. Senate and Hon. Charles Schumer,

https://www.aha.org/guidesreports/2025-04-28-2024costs-caring.

11

https://searchlf.amaassn.org/letter/documentDownload?uri=/unstructured/binary/let

ter/LETTERS/lf.zip/lf/2025-7-11-Letter-to-Oz-re-PreservingMedicaid-Funding-v2.pdf.

10

17

U.S. Senate at 11 (June 20, 2025).12 The inability to

timely collect IDR payments is adding even further

strain. Alex Kacik, How surprise billing arbitration

strains physician groups, MODERN HEALTHCARE (Oct.

22, 2024).13

It is patients and this country’s healthcare

system that will ultimately suffer. As the government

has recognized, significant reductions in provider

rates can “threaten the viability of *** providers [and]

facilities,” which “in turn, c[an] lead to participants,

beneficiaries and enrollees not receiving needed

medical care, undermining the goals of the No

Surprises Act.” Requirements Related to Surprise

Billing; Part II, 86 Fed. Reg. 55,980, 56,044 (Oct. 7,

2021).

Rural and other underserved patient

populations will bear the brunt of the sea change,

losing their access to readily available and

personalized care. Bleier Statement at 2; see also

Kacik, supra. The representative for one emergency

physician group serving rural populations explained

that after being forced out of network by two of their

insurers, his group feared they would have to “reduce

salaries, reduce physician and advanced practice

provider staffing hours, cut positions, or make difficult

decisions about what areas we can realistically serve.”

Bleier Statement at 3. Emergency physician practices

in rural and underserved areas may be “unable to

https://searchlf.amaassn.org/letter/documentDownload?uri=/unstructured/binary/let

ter/LETTERS/lfb.zip/2025-6-20-Letter-to-Thune-and-Schumerre-HR-1-One-Big-Beautiful-Bill-Act-v3.pdf.

13

https://www.modernhealthcare.com/providers/nosurprises-act-2020-arbitration-independent-dispute-resolutions/.

12

18

afford to continue to operate in the areas where

patients need them most,” leaving millions with “less

access to the lifesaving emergency care they need and

deserve.” Id. at 3-4.

The Fifth Circuit’s decision imperils the provision

of care to these patients—the very population

Congress meant to protect when it passed the NSA.

This Court should reject the Fifth Circuit’s atextual

and detrimental interpretation and restore the NSA to

the way Congress intended it to operate.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted.

James E. Tysse

Counsel of Record

Kelly M. Cleary

Kristen E. Loveland

Haley S. Gorman

AKIN GUMP STRAUSS

HAUER & FELD LLP

November 5, 2025