The Other No Surprises Act Lawsuits: An Update

In addition to the Texas Medical Association lawsuit, five other lawsuits are pending across the U.S.  We last provided an update in December. The case statuses have changed and more lawsuits have been filed. Here is a short update on each and an introduction to the new lawsuits:

Association of Air Medical Services v. U.S. Department of Health and Human Services AND American Medical Association v. U.S. Department of Health and Human Services

These cases were consolidated because they were pending in the same court and address many of the same issues.  Cross Motions for Summary Judgment are pending. Plaintiffs’ Motions argue:

  • The rebuttable presumption created by Part II of the Rules is inconsistent with the statutory text of the No Surprises Act (NSA);
  • The method of calculating the QPA set forth in Part I of the Rules impermissibly excludes certain contracts such as single case agreements;
  • The method of calculating the QPA set forth in Part I of the Rules treats air ambulance services furnished by different specialities the same; and
  • The method of calculating the QPA uses overbroad geographic regions.

While there is overlap between the claims in this case and in the TMA case, the claims made by the Association of Air Medical Services are more broad and specifically address certain air ambulance provisions. Accordingly, the Court may timely rule on the pending Motions.

American Society of Anesthesiologists v. U.S. Department of Health and Human Services

Pending in the U.S. District Court for the Northern District of Illinois, Plaintiffs set forth two claims for relief in this case: (1) that creation of the rebuttable presumption exceeds Defendants’ statutory authority; and (2) that the APA’s notice and comment rulemaking requirements were violated.

Plaintiff has filed a Motion for Summary Judgment and briefing is ongoing. Due to the similarity of this case to the TMA case and depending on the actions of HHS as a result of the decision in the TMA case, the Motion may remain pending for some time without a decision or the case may be dismissed.

NEW: Georgia College of Emergency Physicians v. U.S. Department of Health and Human Services

Like the Plaintiffs in the other cases, Georgia College of Emergency Physicians (GCEP) alleges that HHS overstepped by creating the rebuttable presumption in direct contravention of the language of the NSA. GCEP seeks: (1) a declaration that HHS acted unlawfully in promulgating rules creating a rebuttable presumption, (2) an order vacating those provisions; (3) an injunction barring enforcement of those provisions; and (4) an injunction barring replacement provisions absent compliance with the notice and comment period.

On January 28, 2022, GCEP filed a 66 page Motion for Preliminary Injunction or in the Alternative Motion for Summary Judgment to stop the enforcement of the rule creating the rebuttable presumption. GCEP seeks injunctive relief by tomorrow, March 1st. HHS has not filed a brief and no hearing is set. However, the Motion was submitted to the Judge.

NEW: Haller v. U.S. Department of Health and Human Services

This is the broadest of the cases. The Complaint seeks a declaration that the key provisions of the NSA are unconstitutional and seeks an injunction barring their enforcement. Specifically, this case asserts that the NSA unconstitutionally:

  • restricts the amount that physicians are entitled to be paid for their services;
  • delegates authority to determine the payment amount to the IDR Entity; and
  • prohibits physicians from being able to balance bill patients.

The Plaintiffs allege that the NSA (and the rules promulgated by HHS) violate their Fifth and Fourteenth Amendment due process rights. They also allege that it violates their Seventh Amendment right to a trial by jury and is an unconstitutional taking (of monies they would otherwise be entitled to). These are sweeping claims aimed at the heart of the NSA and appear unlikely to be successful.

This case is only at its beginning. All parties have not been served with the Complaint. (Adipex)

A final note: Many entities have filed amicus briefs. These are briefs filed in support of one of the parties by entities that are not parties to the case. The following have filed briefs in at least one of the pending cases (this list is not exhaustive): American Benefits Council; America’s Health Insurance Plans; Unite Here; Health Policy Experts; Business Group on Health; Council of Insurance Agents and Brokers; ERISA Industry Committee; HR Policy Association; National Alliance of Health Care Purchaser Coalitions; Self-Insurance Institute of America; Leukemia & Lymphoma Society; United States Public Interest Research Group, Inc.; Patty Murray; Frank Pallone; Blue Cross Blue Shield Associaiton…and many more.

So many entities are invested and interested in the outcome of this litigation, as it will shape health care in the U.S. for many years to come.