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

No. 25-441

In the

Supreme Court of the United States

GUARDIAN FLIGHT, L.L.C., et al.,

Petitioners,

v.

HEALTH CARE SERVICE CORPORATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE THE EMS AMBULANCE

OPERATORS STRATEGIC AND INNOVATION

ALLIANCE IN SUPPORT OF PETITIONERS

Steven M. Shepard

Counsel of Record

Susman Godfrey LLP

One Manhattan West

New York, NY 10001

(212) 336-8330

sshepard@susmangodfrey.com

Attorney for Amicus Curiae

386964

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

This Case Is Very Important . . . . . . . . . . . . . . . . 6

A. Air Ambulances Are Critical to Our

Nation’s Emergency Healthcare System . . . . 6

B. Air Ambulances Are Expensive to

Operate and Maintain . . . . . . . . . . . . . . . . . 10

C. Air Ambulance Providers Struggle to

Obtain Out-of-Network Reimbursement

Under the No Surprises Act . . . . . . . . . . . . 11

1.

Delayed Payments Under the No

Surprises Act Have Already Caused

Providers to Go Bankrupt . . . . . . . . . . 11

2. Amicus’s Members Already Face

High Levels of Non-Payment . . . . . . . 13

ii

Table of Contents

Page

3. Payors Are Already Using the Fifth

Circuit’s Decision as an Excuse Not

to Pay What the IDR Arbitrators

Have Ordered . . . . . . . . . . . . . . . . . . . . 15

D. The Agencies Are Powerless to Enforce

IDR Awards . . . . . . . . . . . . . . . . . . . . . . . . . 16

II. This Court Should Grant Review Now,

Rather than Wait for Further Percolation . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Alexander v. Sandoval,

532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

E. Coast Advanced Plastic Surgery, LLC v.

Cigna Health & Life Ins. Co.,

No. 25 CIV. 1686 (PAE), 2025 WL 2371537

(S.D.N.Y. Aug. 14, 2025) . . . . . . . . . . . . . . . . . . . . . . 5, 6

Guardian Flight LLC v. Aetna Life Ins. Co.,

789 F. Supp. 3d 214 (D. Conn. 2025) . . . . . . . . . . . 5, 21

Harrison v. Envision Mgmt. Holding, Inc.,

59 F.4th 1090 (10th Cir. 2023) . . . . . . . . . . . . . . . . . . 18

Jeffrey Farkas, M.D., LLC v.

Horizon Blue Cross Blue Shield of N.J.,

790 F. Supp. 3d 129 (E.D.N.Y. 2025) . . . . . . . . . . . . . . 6

Modern Orthopaedics of NJ v. Premera Blue Cross,

No. 2:25-CV-01087 (BRM) (JSA), 2025 WL 3063648

(D.N.J. Nov. 3, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

PHI Health, LLC v. Custom Design Benefits, LLC, et al.,

Case No. A-25-0272U (Ct. of Common Pleas,

Hamilton Cty., Ohio, Oct. 3, 2025) . . . . . . . . . . . . . . . 6

PHI Health LLC v. Optimum Choice, Inc.

d/b/a United Healthcare,

1:25-cv-02320-ABA (D. Md. Aug. 14, 2025),

ECF No. 12-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv

Cited Authorities

Page

Worldwide Aircraft Servs. Inc. v.

Worldwide Ins. Servs., LLC,

No. 8:25-cv-167-MSS-NHA, 2025 U.S. Dist.

LEXIS 155594 (M.D. Fla. Aug. 12, 2025) . . . . . . . . . 6

Statutes

42 U.S.C. § 300gg-111 . . . . . . . . . . . . . . . . . . . . . . .4, 16, 20

42 U.S.C. § 300gg-134 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tex. Civ. Prac. & Rem. Code §§ 34.001 et seq. . . . . . . . 17

Rules

Fed. R. Civ. P. 69(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

S. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

S. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

M. B. Alexander, Rural Health Inequity and the Air

Ambulance Abyss: Time to Try a Coordinated,

All-Payer System, 21 Wyoming L. Rev. 97

(2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

A micus Brief of United States, Guardian

Flight, et al. v. Health Care Service Corp.,

No. 24-10561 (5th Cir. filed Oct. 4, 2024) . . . . . . 16, 18

v

Cited Authorities

Page

Z. Briggs, Air Methods closes bases in Kerrville

and Pleasanton over financial pressures,

Kens 5 News (Sept. 16, 2022) . . . . . . . . . . . . . . . . . . . 11

Declaration of Jason Kahn, In re Air Methods

Cor poration , et al ., Case No. 23 -90886

(Bankr. S.D. Tex. Oct. 24, 2024), ECF No. 5 . . . . . . 12

Declaration of Paul Keglevic, In re Envision

Healthcare Corp., Case No. 23-90342 (CML)

(Bankr. S.D. Tex. May 15, 2023), ECF No. 2 . . . . . . 13

O. Lapidus et al., Trauma patient transport to

hospital using helicopter emergency medical

services or road ambulance in Sweden: a

comparison of survival and prehospital

time intervals, Scandinavian Journal of

Trauma Resuscitation and Emergency Medicine

(2023), vol. 31, p.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

J. Lyng, MD, et al., Appropriate Air Medical

Services Utilization and Recommendations

for Integration of Air Medical Services

Resources into the EMS System of Care: A Joint

Position Statement and Resource Document

of NAEMSP, ACEP, and AMPA, Prehospital

Emergency Care, vol. 25, issue 6 (2021) . . . . . . . . . . . 7

S. McCarthy, MD, et al., Impact of Rural

Hospital Closures on Health-Care Access, J.

Surgical Research, Feb. 2021 (258), pp. 170-178 . . . . 8

vi

Cited Authorities

Page

D. Michaels, et al., Helicopter versus ground

ambulance: review of national database for

outcomes in survival in transferred trauma

patients in the USA, Trauma Surgery &

Acute Care Open (2019), vol. 4, issue 1,

https://perma.cc/KU8E-YLVE . . . . . . . . . . . . . . . . 7, 8

K. E. M. Miller et al., The effect of r ural

hospital closures on emergency medical

service response and transport times, Health

Service Research (2020), Vol. 55, pp. 288–300 . . . . . 9

S. Wang, ‘It can be a loss of life’: First responders

detail the deadly cost of rural hospital

closures, ABCNews.com (Oct. 9, 2025) . . . . . . . . . . . 8

E. Wilde, Do emergency medical system response

times matter for health outcomes? Health

Economics (2013), vol. 22, pp. 790-806 . . . . . . . . . . . . 9

1

The EMS Ambulance Operators Strategic and

Innovation Alliance respectfully submits this brief in

support of the petition for certiorari filed by Guardian

Flight L.L.C., et al.

INTEREST OF AMICUS CURIAE1

The EMS Ambulance Operators Strategic and

Innovation Alliance (“EMS Alliance”) is an unincorporated

association of seven of the nation’s largest providers of

emergency ambulance services. The EMS Alliance’s

primary purpose is to effect beneficial change in the laws

affecting reimbursement of emergency medical transport.

The EMS Alliance’s member companies collectively

perform hundreds of thousands of emergency air medical

transports every year, using thousands of helicopters and

planes stationed at hundreds of bases around the country.

The No Surprises Act covers many of the air medical

transports performed by the members of the EMS

Alliance. Its members therefore depend upon that Act in

order to obtain prompt reimbursement, at fair rates, from

commercial health insurers. The Fifth Circuit’s erroneous

1. This brief was authored solely by amicus and its

undersigned counsel. No person, other than amicus, made a

monetary contribution intended to fund the preparation or

submission of this brief. See S. Ct. R. 37.6. Petitioner’s parent

company (Global Medical Response, Inc. (“GMR”)) is a member of

the EMS Alliance. However, GMR did not provide any monetary

contribution intended to fund the preparation or submission of

this brief and was not involved in the authoring of this brief.

Undersigned counsel provided timely notice to counsel of record

for all parties regarding amicus’s intent to file this brief. See

S. Ct. R. 37.2.

2

decision effectively guts the Act’s mandatory “shall

pay” provisions and thereby imperils this vital source of

payment for the EMS Alliance’s members.

SUMMARY OF ARGUMENT

A ir ambulance providers depend upon the No

Surprises Act to obtain fair and reasonable out-of-network

reimbursement from commercial health insurers. 2 That

reimbursement is critical to their continued existence. The

Fifth Circuit’s incorrect decision endangers the continued

availability of air ambulance transport throughout our

nation.

Most of the EMS Alliance’s members’ air ambulance

companies provide just one service: emergency medical

transport. The payments they receive from commercial

health insurers are by far their most important revenue

stream. Those payments are now governed by the No

Surprises Act. The continued existence of the EMS

Alliance’s members depends on commercial health

insurers promptly paying what they are ordered to pay

by the federally certified and duly appointed arbitrators

who conduct the Act’s “Independent Dispute Resolution”

(IDR) process. The Fifth Circuit’s erroneous decision

in this case eviscerates the Act’s mandatory “shall pay”

provision and thus critically endangers the very existence

of the EMS Alliance’s members.

2. As in Guardian Flight’s petition, this brief uses the

shorthand “commercial health insurer” to include all of the payors

covered by the No Surprises Act, including: individual health

insurance issuers; group health insurance issuers; and self-insured

group health plans, which include ERISA plans sponsored by

employers and unions.

3

The EMS Alliance’s members already struggle

with payors who refuse to pay their IDR awards. One

member—PHI Health, LLC (“PHI”)—currently has

4,525 unpaid IDR awards that it is attempting to collect on,

of which approximately 3,800 (about 84%) remain unpaid

after the Act’s statutorily mandated 30-day payment

deadline. Some payors refuse to pay altogether: about

5% of PHI’s transports in 2023 and 2024, for which PHI

later received an IDR award, are still unpaid. PHI has

filed 156 court actions to enforce the oldest of its unpaid

IDR awards.

Other members of the EMS Alliance face similar

struggles: one member reports that 14% of its IDR awards

are unpaid, many months after they were issued; another

reports 10% non-payment. If this Court denies review,

these percentages of unpaid IDR awards will skyrocket,

as many more payors become emboldened to simply ignore

the No Surprises Act and the IDR arbitrations conducted

pursuant to it.

Many commercial health insurers are employersponsored self-insured group health plans (ERISA plans).

These payors are businesses that self-fund their employees’

healthcare costs. Once these payors learn that providers

are unable to enforce IDR arbitrators’ awards, then many

of them will make the rational (though immoral) decision to

pay nothing. Some plans’ third-party administrators are

already telling the EMS Alliance’s members exactly that:

their clients (the employers who sponsor these ERISA

plans) are aware of the Fifth Circuit’s opinion and are

paying nothing because they believe that providers will

be unable to enforce the IDR awards.

4

That, of course, is exactly the opposite of what

Congress intended when it passed the No Surprises Act.

The text of the statute is clear: payments “shall be made

directly” by the payor “to the nonparticipating provider

. . . not later than 30 days after the date on which such

determination [by the IDR arbitrator] is made.” 42 U.S.C.

§ 300gg-111(c)(6). An IDR arbitrator’s award is “binding

upon the parties involved.” Id. § 300gg-111(c)(5)(E)(i).

But those statutory provisions, like the IDR arbitrators’

awards, will be worthless if this Court allows the Fifth

Circuit’s decision to stand.

The federal agencies are powerless to enforce IDR

awards—as the United States told the Fifth Circuit in

its amicus brief. The Act does not give the agencies this

power. And even if they did have enforcement power, as

a practical matter these agencies lack the resources to

enforce IDR awards—as the United States also made

clear in its brief below. The experiences of the EMS

Alliance’s members confirm the truth of what the United

States wrote in its amicus brief. Despite many thousands

of complaints that the EMS Alliance’s members have

filed with the relevant agencies, to date there has been

no report back to any member, from any federal agency,

of any remedial action.

If this Court denies review, then the payment system

created by the No Surprises Act will collapse. In the short

term, more commercial health insurers will refuse to pay

what the IDR arbitrators have ordered. In the medium

term, those refusals to pay will cause air ambulance

bases to close and fewer air ambulances to fly. That in

turn will mean many preventable deaths and permanent

injuries that could have been avoided if air ambulances

had been available. Those deaths and injuries will fall

5

disproportionately on rural areas, where the closures

and contractions of rural hospitals have left patients with

no other option, besides air ambulances, to reach Level

I trauma centers in time to make a difference during a

medical emergency.

This Court should not wait for further percolation

of the question presented. The Fifth Circuit’s decision is

egregiously wrong. It is precisely the opposite of what

the statutory text demonstrates Congress intended,

as Chief Judge Michael P. Shea has explained in his

opinion for the U.S. District Court for the District of

Connecticut, agreeing with petitioner and finding an

implied private right of action: “the [No Surprises Act’s]

text and structure evinces an intent to allow for judicial

enforcement.” Guardian Flight LLC v. Aetna Life Ins.

Co., 789 F. Supp. 3d 214, 227 (D. Conn. 2025). “Any other

interpretation [of the Act] would render IDR awards

meaningless . . . .” Id. at 228.

During the time that it would take for the question

presented to further percolate, among the appellate

courts, the Fifth Circuit’s error will cause severe negative

consequences for providers, patients, and the nation’s

emergency healthcare system. Providers may have to

wait years for another appellate decision to create a split

in appellate authority. In the meantime, busy trial judges

across the nation are falling in line with the Fifth Circuit’s

decision to clear their dockets. 3

3. E.g., Modern Orthopaedics of NJ v. Premera Blue Cross,

No. 2:25-CV-01087 (BRM) (JSA), 2025 WL 3063648, at *9 (D.N.J.

Nov. 3, 2025) (citing and relying upon the Fifth Circuit’s decision

in this case to find no private right of action); E. Coast Advanced

Plastic Surgery, LLC v. Cigna Health & Life Ins. Co., No. 25 CIV.

6

This Court should grant review now and reverse the

Fifth Circuit.

ARGUMENT

I.

This Case Is Very Important

Air ambulances are a critical element of our nation’s

emergency healthcare system, especially in rural areas.

They are expensive to operate, and air ambulance

companies are critically dependent on payments from

commercial health insurers. These companies already

face difficulties in obtaining the out-of-network payments

that they are entitled to under the No Surprises Act. If

this Court allows the Fifth Circuit’s erroneous decision

to stand, those difficulties will multiply a thousand-fold.

First providers and then patients will suffer.

A.

Air Ambulances Are Critical to Our Nation’s

Emergency Healthcare System

Air ambulances are critically necessary to our

nation’s emergency healthcare system. According to three

of the largest organizations of emergency healthcare

professionals, air ambulance transport is appropriate

(as opposed to the less-expensive alternative of ground

1686 (PAE), 2025 WL 2371537, at *17 (S.D.N.Y. Aug. 14, 2025)

(same); Worldwide Aircraft Servs. Inc. v. Worldwide Ins. Servs.,

LLC, No. 8:25-cv-167-MSS-NHA, 2025 U.S. Dist. LEXIS 155594,

at *5 (M.D. Fla. Aug. 12, 2025) (same); Jeffrey Farkas, M.D., LLC

v. Horizon Blue Cross Blue Shield of N.J., 790 F. Supp. 3d 129,

136-37 (E.D.N.Y. 2025) (same); PHI Health, LLC v. Custom Design

Benefits, LLC, et al., Case No. A-25-0272U (Ct. of Common Pleas,

Hamilton Cty., Ohio, Oct. 3, 2025) (same).

7

transport) whenever necessary to “accomplish one or

more of three primary patient-centered goals: initiation

or continuation of locally unavailable advanced or specialty

care; expedited delivery to definitive care for timesensitive interventions; and/or extraction from physically

remote or otherwise inaccessible locations that limit

timely access to necessary care.”4

There is good reason why these professional criteria

stress the need for “timely” care. Time is of the essence

during a medical emergency. By reaching the patient

quickly (to provide emergency interventions) and then

transporting that patient quickly to a qualified treatment

facility, air ambulances save lives. 5

4. J. Lyng, MD, et al., Appropriate Air Medical Services

Utilization and Recommendations for Integration of Air

Medical Services Resources into the EMS System of Care: A

Joint Position Statement and Resource Document of NAEMSP,

ACEP, and AMPA, Prehospital Emergency Care, vol. 25, issue 6

(2021), https://doi.org/10.1080/10903127.2021.1967534. The three

organizations issuing this Joint Statement are: the National

Association of EMS Physicians (NAEMSP); the American College

of Emergency Physicians (ACEP); and the Air Medical Physician

Association (AMPA).

5. See, e.g., O. Lapidus et al., Trauma patient transport to

hospital using helicopter emergency medical services or road

ambulance in Sweden: a comparison of survival and prehospital

time intervals, Scandinavian Journal of Trauma, Resuscitation

and Emergency Medicine (2023), vol. 31, p.101, https://perma.cc/

WGP8-CSXC (based on study of medical records of 74,032 patients

receiving emergency medical transports in Sweden between 2012

and 2022, authors concluded that “HEMS [helicopter-transported]

patients had significantly lower mortality compared to patients

transported by [ground] EMS”); D. Michaels, et al., Helicopter

versus ground ambulance: review of national database for

8

Air ambulances are especially needed in rural areas.

Over the last twenty years, “our healthcare system has

chosen to shift to a model that relies on air ambulance

transport to provide appropriate care to rural America.”6

Between 2010 and 2021, at least “106 rural hospitals in

the United States have closed.” 7 These closures resulted

in 812,314 U.S. residents losing access to a hospital

within a 15-minute drive time. 8 For “a patient who is in

cardiac arrest,” or suffering some other similarly grave

medical emergency, “the additional time could spell the

difference between death or survival.” 9 A rural hospital

outcomes in survival in transferred trauma patients in the USA,

Trauma Surgery & Acute Care Open (2019), vol. 4, issue 1, https://

perma.cc/KU8E-YLVE (based on analysis of 469,407 trauma

patients receiving ground or air transport in the United States

in 2014, and after adjusting for age, gender, and Injury Severity

Score (ISS), the authors concluded that “trauma patients who

were transferred by helicopter were 57.0% less likely to die than

those transferred by GA [ground ambulance]”).

6. M. B. Alexander, Rural Health Inequity and the Air

Ambulance Abyss: Time to Try a Coordinated, All-Payer System,

21 Wyoming L. Rev. 97, 123 (2021) (hereafter Alexander, “Rural

Health Inequity”). This article’s concerns about “balance billing,”

and its effect on patients unable to pay, were addressed by the

No Surprises Act, which took the patient out of the middle and

instead gave providers a direct right of action, via the IDR process,

against the insurer.

7. S. McCarthy, MD, et al., Impact of Rural Hospital

Closures on Health-Care Access, J. Surgical Research, Feb. 2021

(258), pp. 170-178.

8. Id. at 175.

9. Id. at 177; see also S. Wang, ‘It can be a loss of life’: First

responders detail the deadly cost of rural hospital closures,

ABCNews.com (Oct. 9, 2025), https://perma.cc/E722-N4QG.

9

“closure increases transportation times (time from

scene to hospital) by 4.7 minutes” on average “compared

to the year prior to closure.”10 Although 4.7 minutes of

additional transport time may not sound like much to a

lay reader, that time matters a great deal to the patient

in the ambulance, since “[o]n average, a minute increase

in response time increases mortality by between 8 and

17%.”11

The count of 106 closed rural hospitals since 2010

significantly understates the increased need for air

ambulances in those areas, since those 106 closures do not

include the many other rural hospitals that have reduced

or eliminated their trauma-care services, and therefore

must arrange to transport their critically ill and injured

patients to a higher-level trauma center. “For example, in

Riverton, Wyoming, the local hospital had 230 employees

in 2013; today it has less than 40. It remains ‘open,’ but

no longer provides the services it once did. As a result,

local air ambulance transport has increased more than

five-fold over the same time period.”12

10. K. E. M. Miller et al., The effect of rural hospital closures

on emergency medical service response and transport times,

Health Service Research (2020), Vol. 55, pp. 288–300, at p. 294,

https://doi.org/10.1111/1475-6773.13254.

11. E. Wilde, Do emergency medical system response times

matter for health outcomes? Health Economics (2013), vol. 22, pp.

790-806, at 795, https://doi.org/10.1002/hec.2851.

12. Alexander, Rural Health Inequity, supra note 6, at 123

(emphasis added).

10

B. Air Ambulances Are Expensive to Operate and

Maintain

The members of the EMS Alliance have aircraft and

personnel on standby 24 hours a day, 7 days a week, 365

days a year. To be fully staffed for emergency service,

each aircraft needs a base of operations, a pilot, a flight

nurse, a flight paramedic, and an aviation mechanic. All

this represents a significant upfront capital investment—

in the vehicles; in hangers and support infrastructure and

maintenance equipment; and in hiring qualified personnel.

Keeping an air ambulance base open also incurs high fixed

costs that come due each month, chief among them the

salaries of medical and flight personnel, followed by jet

fuel and maintenance costs. Most of the EMS Alliance’s

air ambulance companies do not have any other significant

revenue streams besides the payments they receive for

emergency medical transport.

Air ambulance companies are legally and ethically

required to respond to all requests for emergency

transport, without regard to the patient’s ability to pay.

As a practical matter, the air ambulances operated by

the EMS Alliance’s members respond to emergency

dispatches with all due speed and are typically airborne

within ten minutes or less from the time the dispatch

is received. At no point before or during the transport

do their air ambulance providers limit or refuse service

based on the patient’s insurance status or ability to pay.

It is often the case that the EMS Alliance’s members will

learn of the patient’s insurance status, and ability to pay,

only after the transport is completed.

The majority of the patients transported by the EMS

Alliance’s members are covered by Medicare or Medicaid.

11

Those government programs’ reimbursements typically

do not even cover members’ costs of providing the services,

let alone provide any profit. Air ambulance providers are

therefore critically dependent upon the payments they

receive from commercial health insurers, i.e., on the

payments now governed by the No Surprises Act.

C.

Air Ambulance Providers Struggle to Obtain

Out-of-Network Reimbursement Under the No

Surprises Act

The refusal by respondent, to pay Guardian Flight

what the IDR arbitrator ordered it to pay, is not unusual.

All of the EMS Alliance’s member companies have

experienced similar refusals; many of them have filed

complaints in federal court seeking to enforce their IDR

awards.

1.

Delayed Payments Under the No Surprises

Act Have Already Caused Providers to Go

Bankrupt

Bankruptcy is a realistic expectation if the Fifth

Circuit’s decision is allowed to stand. In late summer 2022,

Air Methods (one of the members of the EMS Alliance)

announced the closure of air bases across the country,

in part “due to the tremendous pressures from the No

Surprises Act.”13 In October 2024, Air Methods declared

bankruptcy, and told the court that one reason for the

13. Z. Briggs, Air Methods closes bases in Kerrville and

Pleasanton over financial pressures, Kens 5 News (Sept. 16,

2022) (quoting Air Methods’ emailed statement) (emphasis added),

https://perma.cc/BJ63-9ZYE.

12

bankruptcy was the No Surprises Act: “Although Air

Methods has been highly successful in winning disputes

during the IDR process, the amount of time required to

resolve a claim through IDR materially delays [its] cash

collection associated with that claim. . . . [S]ignificant

delays resulting from disputed claims being resolved using

the IDR process have caused an unprecedented increase

in the time to collect on receivables.”14

Similar evidence comes from the May 2023 bankruptcy

filing of Envision Healthcare, a company that provided

emergency healthcare in emergency rooms (ERs) across

the country. Its Chief Restructuring Officer told the

court that one reason for its bankruptcy was Envision’s

inability to obtain the payments due to it under the No

Surprises Act:

While the legislative policy behind the No

Sur pr ises Act is sound, the regulator y

implementation of the No Surprises Act has

been highly flawed, ultimately shifting the

power dynamic in payment disputes too far in

the favor of insurance companies (referred to

as “payors”). In fact, some payors (including

Envision’s single largest payor) have used

the No Surprises Act and its implementing

regulations as an excuse to avoid payment to

medical groups like Envision and affiliated

entities. Moreover, payors have aggressively

denied, delayed, and reduced payment terms,

14. Declaration of Jason Kahn ¶ 45, In re Air Methods

Corporation, et al., Case No. 23-90886 (Bankr. S.D. Tex. Oct. 24,

2024), ECF No. 5.

13

often below the direct cost of delivering care.

This has left Envision, other medical groups,

and healthcare providers to deal with the

negative financial consequences. Although the

legislation included an arbitration process

intended to provide a forum for providers

and payors to settle disputes, the process has

proved highly ineffective.15

2.

Amicus’s Members Already Face High

Levels of Non-Payment

The EMS Alliance’s members have faced similar

frustrations, in attempting to obtain payment under the

No Surprises Act, consistent with what Air Methods and

Envision documented in their bankruptcy filings.

One of the EMS Alliance’s members, PHI Health,

LLC (“PHI”), is an air ambulance provider with 85

bases located in sixteen states. At undersigned counsel’s

request, PHI has conducted a review of its payment

records for transports carried out between January 1,

2023 (a date by which the No Surprises Act had fully taken

effect) and December 31, 2024. During those two years,

PHI conducted 7,702 emergency medical transports that

were covered by the No Surprises Act. By July 1, 2025,

PHI had obtained IDR awards, requiring additional

payment, for 4,285 of those transports. As of October

2025, PHI’s records reflect that the company has not

received additional payment for 5% (209) of them. PHI has

15. Declaration of Paul Keglevic ¶ 5, In re Envision

Healthcare Corp., Case No. 23-90342 (CML) (Bankr. S.D. Tex.

May 15, 2023), ECF No. 2 (emphases added).

14

initiated litigation to enforce the oldest of these unpaid

IDR awards, pertaining to 156 transports. Of those

lawsuits, 42 (26% of the total) were filed against a payor

affiliated with the respondent in this case (i.e., the payor

was either a Blue Cross Blue Shield insurance company

or a group health plan administered by a Blue Cross Blue

Shield administrator).

Another member of the EMS Alliance—Life Flight

Network, a mid-size air ambulance company with bases in

the Pacific Northwest, Intermountain West, and Hawaii—

conducted a similar review of its payment records for

transports that it carried out during that same time period

(2023 and 2024). Life Flight received 986 IDR awards

requiring additional payment for those transports, but

14% of the awarded amounts remain unpaid as of today.

A third member of the EMS Alliance—a mid-size

company with air ambulance bases in the South and

Midwest—has conducted a similar review of its payment

records for transports that it carried out during this time

period (2023 and 2024). Of its 1,145 transports covered

by the No Surprises Act, this member has received IDR

awards requiring additional payment for 754. Of those

victories, 77 (about 10%) have still not been paid; the

average length of delay, for those 77 holdouts, is now

about 210 days (and counting). The non-payors give similar

excuses, to this Alliance member, as what PHI has heard:

one delinquent payor says that it is “trying to reach out”

to the IDR arbitrator for reconsideration (a procedure not

permitted by the Act or its implementing regulations);

another late payor (an ERISA plan) says that it should not

have to pay because the patient is no longer an employee

(an irrelevant argument since the patient was covered by

15

the plan at the time of the transport); while yet another

payor claims it should not have to pay because it missed

the email informing it of the IDR initiation (another invalid

excuse).

3.

Payors Are Already Using the Fifth

Circuit’s Decision as an Excuse Not to Pay

What the IDR Arbitrators Have Ordered

Commercial health insurers are aware of the Fifth

Circuit’s decision and some of them are already using it

as an excuse to refuse to pay what the IDR arbitrators

have ordered. In one recent case, the representative of

the payor’s third-party administrator (Custom Design

Benefits) told PHI’s outside counsel that its client (a

self-insured group health plan) would pay only a fraction

(about 15%) of what the IDR arbitrator ordered the plan

to pay. When PHI’s lawyer asked why the plan refused to

pay what was ordered, the plan’s administrator pointed

solely to the difficulties PHI would face in enforcing the

award. In effect, the administrator stated that its client

would not pay because it believed PHI could not find a

court that would order it to do so. Another third-party

administrator (Nexcaliber) has told PHI much the same

thing, on behalf of a different ERISA plan.

These thumb-your-nose-at-the-law objections would

vanish if this Court were to give effect to Congress’s

intent, which was to give providers a private right of action

to enforce the Act’s mandatory “shall pay” language.

Frivolous defenses will not be tolerated by federal judges,

who also have inherent authority to issue sanctions on

parties who make them. But so long as the courthouse

doors remain shut by the Fifth Circuit’s decision, payors

16

can get away with just about any lame excuse they can

dream up for not paying what the IDR arbitrators order

them to pay.

D.

The Agencies Are Powerless to Enforce IDR

Awards

The No Surprises Act adds considerably to the

workload of the three agencies charged with implementing

it: the Department of Labor (for ERISA plans); the

Department of Health and Human Services (for individual

and fully insured group health insurance policies and

non-federal governmental plans); and the Department of

the Treasury (for religious plans and other non-ERISA

self-insured health arrangements). The Act requires

these agencies to engage in administrative rulemaking,

to conduct audits of payors’ “qualifying payment

amount” calculations,16 and to select and certify the IDR

arbitrators. But the Act does not empower these agencies

to enforce the arbitrators’ awards. As the United States

explained in its amicus brief below, any “enforcement [by

the agencies] would not ensure that [IDR] decisions are

binding on the parties.”17

16. 42 U.S.C. § 300gg-111(a)(2)(A). The “qualifying payment

amount” is one factor the IDR arbitrator considers when deciding

the appropriate amount of out-of-network reimbursement; this

data point is calculated by the payor from its own records. Id.

(a)(3)(E). These audit provisions are the only part of the Act that

calls upon the agencies to take any action against a payor. But

these audit provisions give no power to the agencies to enforce

an IDR arbitrator’s award.

17. Amicus Brief of United States 13, Guardian Flight, et

al. v. Health Care Service Corp., No. 24-10561 (5th Cir. filed Oct.

4, 2024), Doc. No. 32.

17

Taking enforcement action against a deadbeat

judgment-debtor requires a court (and, if necessary,

sheriffs and marshals) to identify the judgment-debtor’s

assets; seize them; and then sell them at auction and give

the proceeds to the judgment-creditor. If the district

court in this case had confirmed the IDR award in a final

judgment, then Guardian Flight could have taken these

enforcement measures. See Fed. R. Civ. P. 69(a)(1) (a

“money judgment” from a federal court is “enforced by

writ of execution” in “accord with the procedure of the

state where the court is located”); Tex. Civ. Prac. & Rem.

Code §§ 34.001 et seq. (Texas statutes governing writs

of execution to enforce judgments). But there is nothing

like these enforcement mechanisms to be found in any

grant of Congressional power to these agencies. On the

contrary, the only “enforcement” provision found in the

No Surprises Act is one that authorizes these agencies

to take action against providers who send illegal bills

to patients. 42 U.S.C. § 300gg-134. The reason why the

No Surprises Act did not confer upon the agencies any

enforcement powers against payors is obvious: Congress

believed that it was creating a private right of action so

that providers could enforce IDR awards.

Even if the text of the Act could be read to empower

the agencies to enforce the mandatory “shall pay”

provisions of the No Surprises Act, that reading would

be of only theoretical comfort to the EMS Alliance and its

members, since the plain truth is that the agencies do not

have the resources to act as enforcement sheriffs. Where

are the employees of the Department of Labor with guns

and badges, who are available to be deployed around the

country to serve writs of execution upon deadbeat ERISA

plan sponsors? As the United States represented in its

18

amicus brief in the Fifth Circuit, these agencies lack

the resources to undertake enforcement at any serious

scale: their efforts “would not be comprehensive.”18 “[I]t

is unreasonable to assume that the DOL [Department of

Labor] is capable of policing every employer-sponsored

benefit plan in the country.”19 A private right of action is

therefore necessary because as a practical matter there

simply are no “adequate alternative means to ensure that

insurers pay out-of-network providers the money owed

under the statute.” 20

The experiences of the EMS Alliance’s members

confirm the truth of the United States’ statements to the

Fifth Circuit in its amicus brief. Since 2023, PHI has

submitted more than 2,000 complaints with the relevant

federal authorities complaining about non-payment (as

well as other payor misconduct) but so far PHI has not

received any substantive response from any federal agency

indicating that remedial action had been taken. The third

EMS Alliance member described above on page 14 has so

far made 21 complaints to the relevant federal agencies

regarding these and other misbehaviors by payors; like

PHI, it too has yet to receive any substantive response

or meaningful assistance from those agencies that would

address its complaints.

PHI has also received some evidence that payors are

using the agencies’ non-responsiveness as an excuse not

to pay. In August 2025, one large payor (Optimum Choice,

18. Id.

19. Id. (quoting Harrison v. Envision Mgmt. Holding, Inc.,

59 F.4th 1090, 1112 (10th Cir. 2023)).

20. Id.

19

Inc., d/b/a United Healthcare), filed a motion to dismiss

PHI’s complaint to enforce an IDR award that PHI had

obtained against Optimum. Optimum’s motion did not

even try to explain why it had refused to pay what the

IDR arbitrator had ordered it to pay. But Optimum did

tell the federal court that it had filed “an administrative

complaint challenging the award. Its complaint is

currently under review.” 21 The particular complaint was

sent by Optimum to the Centers for Medicare & Medicaid

Services (“CMS”) more than eighteen months earlier,

in June 2024—according to a representation made by

Optimum, to the IDR arbitrator, at that time (with a

copy to PHI). Optimum’s position appears to be that it

can refuse to pay what the IDR arbitrator ordered it to

pay, for however long it takes the agency to respond to

Optimum’s confidential complaint—which means, so far,

eighteen months of delay and counting. In the meantime,

according to Optimum, a federal court is powerless to give

effect to the No Surprises Act by requiring Optimum to

pay what the IDR arbitrator ordered and the Act plainly

requires. If other payors begin using this cynical kind of

“self-help,” by launching complaints into the black hole

of CMS’s complaint-submission inbox and then refusing

to pay a cent until a response comes back to them, then

providers will be waiting for payment until the heat death

of the known universe.

This is the exact opposite of what Congress intended

when it wrote into the statute the mandatory “shall pay”

language: Payment, according to Congress, “shall be made

21. Motion to Dismiss at 6 n.4, PHI Health LLC v. Optimum

Choice, Inc. d/b/a United Healthcare, 1:25-cv-02320-ABA (D. Md.

Aug. 14, 2025), ECF No. 12-1.

20

directly” by the payor “to the nonparticipating provider

. . . not later than 30 days after the date on which such

determination [by the IDR arbitrator] is made.” 42 U.S.C.

§ 300gg-111(c)(6). Congress did not say that payment “shall

be made” once the agency gets around to responding to

a payor’s complaint (whatever it may be) about the IDR

process. The power of the federal courts is needed, and is

needed now, in order to give effect to Congress’s command

and thereby to save the IDR system and the providers—

and ultimately the U.S. emergency healthcare system—

that depend upon the Act’s promise of prompt payment.

II. This Court Should Grant Review Now, Rather than

Wait for Further Percolation

There is no need to wait for further percolation of the

question presented in this petition. This case presents

an excellent vehicle. The question was timely raised and

incorrectly answered by the Fifth Circuit, despite the

excellent lawyers for Guardian Flight at the Jones Day law

firm, who have represented that company since the initial

complaint and who continue to represent the company

here. Guardian Flight has no doubt incurred significant

expense—vastly exceeding the IDR award amounts at

issue—in order to present this important issue of law for

the courts’ resolution.

Nor would further percolation be expected to yield

any valuable insights or perspectives from other lower

courts. The relevant legal question is a straightforward

task of statutory interpretation. See Alexander v.

Sandoval, 532 U.S. 275, 286 (2001) (“[s]tatutory intent”

determines whether a federal statute implies a private

right of action). The Fifth Circuit got this interpretation

21

egregiously wrong, without even bothering to discuss the

relevant statutory text—as Guardian Flight’s petition

ably explains, and as Chief Judge Shea has also explained

in his opinion in a different case. Guardian Flight, 789

F. Supp. 3d at 227.

It could take several years for another case to reach

this Court again presenting this question. Those years

would cause real harm. As discussed above, air ambulance

companies depend critically upon the cash flow they

receive from commercial health insurers. As more payors

become emboldened by the Fifth Circuit’s decision to

thumb their noses at the No Surprises Act’s “shall pay”

mandate, then their refusals to pay will become more

frequent and providers’ most important cash flow will

reduce to a trickle. Once that happens, first providers will

suffer; and then in short order patients, too, will suffer.

The suffering will be worst in the nation’s rural areas.

22

CONCLUSION

A denial of this petition will mean, in the next two years:

fewer air ambulance flights; fewer air ambulance bases;

fewer air ambulance companies; and more preventable

deaths from trauma and other medical emergencies. Those

risks are not speculative. This is not a rhetorical flourish.

These are the medical and financial realities that the EMS

Alliance’s member companies face every day as they work

to keep patients alive and also obtain the revenue needed

to pay their high monthly fixed costs.

Air ambulance providers should not be required to

undergo further years of uncertainty, and incur years

more of ongoing litigation expenses, in order to obtain

a correct appellate decision and thus present a split of

authority for this Court to review in some later petition

for certiorari. Now is the time for this issue to be settled.

This Court should grant the petition and reverse.

Respectfully submitted,

Steven M. Shepard

Counsel of Record

Susman Godfrey LLP

One Manhattan West

New York, NY 10001

(212) 336-8330

sshepard@susmangodfrey.com

Attorney for Amicus Curiae