Not So Surprising: The Fifth Circuit Finds No Private Right of Action in the No Surprises Act

On June 12, 2025, the Fifth Circuit ruled in Guardian Flight I^[i] and Guardian Flight II^[ii] that the No Surprises Act (“NSA”) does not confer a private right of action on parties to confirm an Independent Dispute Resolution (“IDR”) award in court. The Fifth Circuit is the first United States Court of Appeals to weigh in on the issue, which has divided some district courts. On July 11, 2025 the Fifth Circuit denied Appellant’s request for en banc review of the Court’s finding that the NSA lacks a private right of action.^[iii] The panel’s ruling is now final and controlling precedent for the Fifth Circuit unless overturned by the Supreme Court.

The NSA was passed to “promote fairness in payment disputes between insurers and providers.”^[iv] IDR was intended to be a truncated form of arbitration that would replace widespread litigation between payers and providers over reimbursement of out-of-network claims. IDR is a “baseball style” arbitration, in which providers and payers submit competing payment offers to the arbitrator, known as a Certified Independent Dispute Resolution Entity (“CIDRE”). The CIDRE then selects one of the two offers as the amount to be paid by the payor to the provider for the services at issue. Once the payment award issues, it is “binding upon the parties involved, in the absence of a fraudulent claim or evidence of misrepresentation of facts presented to the IDR entity involved regarding such claim” and “shall not be subject to judicial review except in a case described in paragraphs (1) through (4) of section 10(a) of title 9.”^[v]

But instead of simplifying things, the NSA has spawned extensive litigation over the validity of those IDR awards. Since 2024, providers have filed hundreds of lawsuits seeking to confirm arbitration awards that they claim have gone unpaid, arguing the NSA implies a right for parties to confirm arbitration awards in court. District courts have split on the issue: one court in the District of Connecticut^[vi] found that the NSA indeed does contain an implied right to confirm awards; courts in the District of Arizona^[vii] and the Northern District of Texas,^[viii] in contrast, concluded that the NSA does not permit confirmation.

In Guardian Flight I, the providers argued that Congress intended the NSA to guarantee them the right of payment, and that the statutory guarantee that IDR awards “shall be binding” implies a right to enforce awards in court. The Department of Justice and American Hospital Association joined in that argument as amici. The payors argued in response that the NSA proscribes judicial review except in the limited instances set forth in the statute, evincing Congress’s intent to foreclose all other forms of judicial review.

The Fifth Circuit issued two opinions on June 12, 2025, holding that the NSA does not provide a private right of action:

• The NSA’s plain text expressly forecloses the existence of an implied right of action. Because the NSA only allows for “judicial review” to the same extent a party to arbitration could seek vacatur under the Federal Arbitration Act (“FAA”), the court presumed that Congress did not intend to provide any other private right of action. Appellants failed to carry their “heavy burden” of showing otherwise.
• The court rejected Appellants’ distinction between judicial review—which the NSA limits—and judicial enforcement, noting that the Black’s Law definition of “review” included “the right to remand, modify, or vacate any action.”
• Congress knew how to empower the judiciary to confirm and enforce arbitration awards. It has done so in other statutes, and Congress’s decision to incorporate only a discrete subsection of the FAA, while excluding incorporation of the FAA’s confirmation provisions, should be understood as a deliberate choice.
• The court was not persuaded that the NSA’s purpose would be frustrated without an ability to enforce IDR awards. Congress provided the Department of Health and Human Services (“HHS”) with the power to levy civil money penalties against payers and providers that violate the NSA, a policy choice that the court would not second guess.

Noteworthy about Guardian Flight is not merely the holding that the NSA does not imply a cause of action, but the court’s finding that Congress intended disputes about the IDR process to be channeled through an administrative process managed by HHS. Thus, even in jurisdictions not bound by the Fifth Circuit’s principal holding, this aspect of Guardian Flight 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.