No Surprises Act IDR enforcement uncertain after Supreme Court declines review

Inaction by the Supreme Court this week raised new questions about enforcement of the No Surprises Act’s independent dispute resolution (IDR) process.

The high court denied a petition by two air ambulance companies to review a circuit court’s 2025 decision that IDR awards are not enforceable in federal court. That opinion by the U.S. Court of Appeals for the Fifth Circuit removes litigation as a tool for ensuring health plans pay IDR awards.

The plaintiffs say the Fifth Circuit’s ruling essentially allows insurers to avoid making required payments, a situation that could contravene Congress’s intent in drafting the No Surprises Act (NSA).

“If the Fifth Circuit decision stands, Congress’s scheme will be upended,” the plaintiffs wrote in their petition to the Supreme Court. “Insurers will know that they can lowball their initial payment and then ignore a subsequent IDR award ordering them to pay more — and there will be nothing providers can do about it.”

The Fifth Circuit covers Louisiana, Mississippi and Texas. Providers in those states cannot go to court in pursuit of unpaid sums that have been awarded via IDR, the arbitration process for determining out-of-network payments when balance billing is prohibited under the NSA.

No similar prohibition is in effect elsewhere unless a court with jurisdiction says differently. But in a published analysis, the firm representing the insurer in the Fifth Circuit case opined that the ruling could have widespread implications.

Nationwide, the decision “may lend support to arguments that providers must at the very least first exhaust their administrative remedies before seeking relief in court, regardless of the merits of the cause of action,” according to the analysis by Crowell & Moring, LLP.

Fifth Circuit ruling limits judicial enforcement of IDR awards

The case, Guardian Flight, LLC, et al., v. Health Care Service Corporation, stemmed from a complaint by the air ambulance companies that the defendant had declined to make 33 IDR payments within the mandatory 30-day window.

Per the Fifth Circuit’s opinion, which upheld a 2024 ruling by the Northern District of Texas federal court, Congress meant for IDR award enforcement to be conducted through the administrative complaint process, as established by HHS, except in narrow circumstances such as arbitrator misconduct.

The structure of the No Surprises Act (NSA) “conveys Congress’s policy choice to enforce the statute through administrative penalties, not a private right of action [i.e., litigation],” states the June 2025 decision by a three-judge panel consisting of Reagan, G.W. Bush and Trump appointees.

“Congress may have had good reasons to provide only a general administrative remedy, together with a strictly limited form of judicial review,” the court added, saying a basis for such an approach could be to avoid having the court system flooded with cases.

The court said government analyses indicate that CMS, the HHS agency that oversees No Surprises, has fulfilled its role by “soliciting provider complaints and compelling payers to pay IDR awards where appropriate.” In its brief to the Supreme Court, the defendant cited a 2023 report by the Government Accountability Office that includes a description of CMS’s No Surprises Act help desk, which theoretically can require insurers to make IDR payments.

Conflicting federal court views create legal uncertainty

Provider advocates had hoped the Supreme Court would issue a decisive ruling to avoid a potential patchwork situation regarding enforceability of IDR awards.

In a separate case decided in 2025, the U.S. District Court for Connecticut ruled for air ambulance companies in a suit against Aetna and Cigna. The providers said the insurers either had delayed or failed to make $20 million in IDR payments.

The Connecticut court found that the NSA makes IDR payments obligatory. And because there is no explicit enforcement mechanism described in the statute, Congress must have seen litigation as a fallback option.

“The NSA’s text and structure evince an intent to allow for judicial enforcement,” wrote the judge, an Obama appointee, adding in a footnote that “it is unlikely that any such [administrative] enforcement scheme could police insurers’ and health plans’ compliance with each IDR determination.”

Another area of disagreement between the Fifth Circuit and the Connecticut court involved whether the Employee Retirement Income Security Act (ERISA) gave the providers standing to bring litigation. The plaintiffs in both cases argued that health plan members were denied statutory ERISA benefits because their providers were not compensated as the NSA required, but the Fifth Circuit said that issue was moot because the patients had no financial stake.

Financial implications for providers

For providers, the concern underpinning the litigation is that, at least anecdotally, delaying or withholding IDR payments is not an uncommon practice for insurers.

For example, a 2024 survey by a physician association found that nearly a quarter of respondents had not received the IDR amount they were entitled to within the statutory time frame. In 2023, a survey of 48,000 clinicians by a physician advocacy group found that 52% of IDR awards went unpaid.

“The NSA channels thousands of hospitals and physicians through IDR for exclusive determination of their right to payment for emergency care,” the plaintiffs wrote in their petition to the Supreme Court. “Rural hospitals and other emergency providers have little margin for error in their finances, and providers already face an epidemic of insurer nonpayment.”

The Center on Health Insurance Reforms at Georgetown University reported last year that providers had reaped $2.2 billion from IDR in 2023 and 2024. But that calculation presumed that insurers were paying all the owed amounts.

What to watch for

If a similar case reaches the appellate level and is decided in favor of providers, the split among circuit courts could give the Supreme Court more incentive to rule on the matter. The insurers in the Connecticut case did not appeal that ruling, although Aetna filed a counterclaim in the same district court, alleging a “sustained pattern of abuse and manipulation by the air ambulance companies.”

A decisive development is possible on Capitol Hill, with Congress considering whether to step into the perceived void in IDR enforcement. A bipartisan, bicameral bill to address the situation was introduced in 2025 but has not yet progressed toward becoming law.

Known as the No Surprises Enforcement Act, the legislation would penalize insurers for failing to pay providers within 30 days of an IDR decision. The penalty would be triple the difference between the insurer’s initial payment and the arbitration award.