Federal Courts Divided Over Private Enforcement of ‘No Surprises Act’ Arbitration Awards

Since the IDR process under the NSA began in April 2022, hundreds of thousands of claims have been submitted. As arbitrators have handed down awards, largely in favor of providers, a critical question has emerged — are these final and binding judgments privately enforceable? Two recent federal decisions, one from the District of Connecticut and one from the Fifth Circuit, have reached opposite conclusions.

Guardian Flight LLC v. Aetna Life Ins. Co., No. 3:24-cv-680-MPS (D. Conn. May 14, 2025): Private Right of Action Exists

In Guardian Flight LLC v. Aetna Life Insurance Co., the District of Connecticut addressed whether air ambulance providers could bring suit in court to enforce unpaid or late-paid IDR awards under the NSA. The plaintiffs, a group of air ambulance companies, alleged that Aetna and Cigna failed to comply with IDR determinations. Specifically, the insurers allegedly failed to pay, or else only partially paid, millions of dollars in IDR awards to the providers. The providers asserted a cause of action under the NSA to enforce the arbitration results.

The court found that the NSA provided for a private right of action to enforce IDR awards. In its analysis of the NSA, the court noted that the statute uses strong, mandatory language regarding payment obligations and the binding nature of the final awards themselves. While the NSA does not expressly create a private right of action, the court found that the absence of an explicit enforcement mechanism for providers — combined with the statute’s mandatory language — implied that Congress intended to allow providers to seek judicial enforcement of IDR awards when payers fail to comply, such as by failing to pay within 30 days of a determination being rendered. The court concluded that NSA IDR awards are self-executing and immediately binding. Without a private right of enforcement, the court reasoned, the awards would be meaningless.

The court rejected the defendants’ argument that Congress intended providers to seek administrative enforcement through the US Department of Health and Human Services (HHS). While HHS exercises regulatory authority over the NSA, the statute does not specifically empower it to enforce individual IDR awards or “hold health plans and insurers accountable for untimely payments.” This lack of an administrative enforcement mechanism argued in favor of a private right of action.

Guardian Flight, LLC v. Health Care Serv. Corp., No. 24-10561 (5th Cir. June 12, 2025): No Private Right of Action

In contrast, the Fifth Circuit in Guardian Flight, LLC v. Health Care Service Corporation, ruling on similar facts, involving the same plaintiff, held less than a month later that the NSA does not provide a private right of action to enforce IDR awards. The court was “unconvinced” by the District of Connecticut’s statutory analysis and, by contrast, emphasized the NSA’s bar on “judicial review” of IDR awards, except for narrow grounds, such as corruption and arbitrator misconduct. The court explained that Congress knew how to include a right of judicial review, and did so in some aspects of the NSA, but did not include that right for courts to enforce IDR determinations. The court held that enforcement of those awards fell within the NSA’s prohibition of “judicial review.” The Fifth Circuit determined that Congress elected not to create a private right of action, but rather intended that providers could pursue administrative enforcement through HHS, which has the authority to assess penalties against noncompliant insurers.

Key Takeaways

Split in Authority

There is now a clear split between the District of Connecticut (within the Second Circuit) and the Fifth Circuit on whether the NSA allows providers to bring private enforcement actions against payers for unpaid or late-paid IDR awards. This split may expand as more providers seek to enforce IDR awards, necessitating further review by the US Courts of Appeals or the US Supreme Court.

Practical Implications

In the Fifth Circuit (which includes Texas, Louisiana, and Mississippi), providers should be aware that IDR awards may be more challenging to enforce. Those providers may need to resort to reporting payers’ non-compliance to HHS. In Connecticut, and potentially other jurisdictions, private enforcement may remain a viable and useful tool when payers fail to make full and prompt payment.

Conclusion

The existence of a private right of action under the NSA in certain jurisdictions is a potent tool for providers seeking to enforce IDR awards. Providers should carefully monitor the evolving legal landscape on private NSA IDR enforcement and evaluate alternative mechanisms where private enforcement is unavailable. ArentFox Schiff will continue to follow this issue.