What good is a legal remedy without an adequate enforcement mechanism?

That question sits at the center of a growing body of federal case law addressing payment disputes under the federal No Surprises Act (“NSA”). With the goal of protecting patients from unexpected medical bills, the NSA reshaped how out-of-network payment disputes are resolved by removing patients from the equation and creating a mandatory, multi-step Independent Dispute Resolution (“IDR”) process for healthcare providers and insurers.

In theory, that process ends with a binding payment determination. But in practice, providers who prevail in the process are frequently left without a clear path to timely payment.

Several recent court decisions concerning the NSA, including a Fifth Circuit opinion and a series of cases from the District of New Jersey, have sent a consistent message: while the NSA creates a detailed framework for resolving payment disputes, it does not give courts the authority to compel insurers to pay providers what they were ordered to pay them during the IDR process. As a result, healthcare providers are often left with little to show for their efforts in navigating an expensive and resource-intensive process.

In the wake of courts’ reluctance to enforce the results of the NSA’s IDR process, Congress must revisit the NSA and add a private right of action. If Congress stands pat, many medical practices will face tough decisions about their future, which could ultimately harm consumers if they lose access to competent, conveniently located local healthcare providers.

The No Surprises Act and its dispute resolution framework

Congress passed the NSA in 2020, as part of the Consolidated Appropriations Act of 2021, to shield patients from “surprise” medical bills arising from out-of-network care in circumstances beyond a patient’s control. The statute prohibits balance billing—that is, a healthcare provider billing a patient for the difference between what the provider billed the patient’s insurer and the amount the insurer pays—in certain situations, most notably emergency services and certain non-emergency services provided at in-network facilities.

The NSA also shifts the burden of resolving billing disputes between providers and insurers away from patients. To resolve those disputes, the NSA established the IDR process. After an insurer makes an initial payment (or denial), the parties must engage in a short, open negotiation period. If negotiations fail, either party may initiate IDR, at which point a government-certified neutral is selected to review the dispute and issue a binding payment determination. Each side submits a proposed payment amount, and the decision-maker must select one of the two figures after considering statutorily enumerated factors, including the qualifying payment amount and case-specific considerations.

An IDR award “shall be binding upon the parties involved.” Payment of the award must be made “not later than 30 days after the date on which such determination is made.”

The process is designed to produce finality without court involvement, but it does so to a fault. The statute does not include a private right of action for healthcare providers to pursue when payment does not follow from the IDR process. The NSA assigns oversight authority over the IDR process to the U.S. Department of Health and Human Services (HHS), but it does not create a private right of action permitting providers to seek judicial enforcement of IDR determinations. In fact, the NSA expressly states in 42 U.S.C. § 300gg-111(c)(5)(E)(i)(II) that IDR awards “shall not be subject to judicial review” except in limited circumstances.

The lack of an enforcement pathway is spawning litigation across the country. But as courts have observed, Congress’s omission does not appear to have been an oversight. Thus, to date, courts have been unwilling to intervene in the IDR process, leaving healthcare providers in a desperate search for ways to secure payment from insurers after an IDR proceeding.

The Fifth Circuit and the D.N.J. are hesitant to join the fray

In the leading federal appellate case concerning this issue, Guardian Flight LLC v. Health Care Service Corp., No. 24-10561 (Jun. 12, 2025), the Fifth Circuit rejected a provider’s invitation to compel payment following a favorable IDR determination, holding that the statute does not create a private right of action permitting providers to seek judicial enforcement.

The court’s reasoning rested on straightforward principles of statutory interpretation. According to the court, Congress created a detailed administrative framework to govern payment disputes under the NSA and delegated enforcement authority to federal agencies. It did not authorize the courts to compel compliance with IDR outcomes. Instead, Congress empowered HHS to take action against insurers for failure to comply with the NSA. The Fifth Circuit noted that Congress could have incorporated Section 9 of the Federal Arbitration Act to create a private right of action for healthcare providers, but it chose not to. Thus, the NSA’s express bar on judicial review prevents courts from inserting themselves into the IDR process and enforcing decisions rendered in that process.

Courts in the District of New Jersey have applied similar reasoning in NSA cases. In Modern Orthopaedics of New Jersey v. Premera Blue Cross Blue Shield, No. 14-cv-01087 (Nov. 3, 2025), the provider sought to recover payment after a favorable IDR determination by advancing claims grounded in contract and equity. U.S. District Judge Brian R. Martinotti noted that under the NSA, Modern Orthopaedics “has a right to be paid. The question is whether [he] may properly enforce this right.”

In his view, he could not. First, he noted that, with the NSA providing administrative enforcement remedies—through a combination of the HHS, states, the Department of Labor, and the Treasury Department, depending on the kind of healthcare plan an individual has—there’s “a strong presumption against implied private rights of action that must be overcome,” which Modern Orthopaedics cannot “because the plain language of the statute limited ‘judicial review’ other than to vacate awards gained through misconduct.” Second, he noted that the NSA’s IDR process “does not displace traditional state-law remedies like unjust enrichment.” Finally, he saw no difference in the NSA’s prohibition of “judicial review” versus Modern Orthopaedics seeking “judicial enforcement” of the IDR award. Comparing “review” and “enforcement,” yields, in Judge Martinotti’s view and in the view of other courts, a distinction without a difference.

Another D.N.J. judge, U.S. District Judge Stanley R. Chesler, has issued several NSA decisions that reached the same conclusion as the decisions from the Fifth Circuit and Judge Martinotti, but through different means.

In Freeman Pain Institute v. Horizon Blue Cross Blue Shield, No. 25-02507 (Nov. 24, 2025), Judge Chesler held he lacked jurisdiction to confirm the IDR award under the FAA because it was not a traditional arbitration under the FAA. He further held that the NSA’s bar of judicial review of IDR awards strongly suggested that Congress did not legislate a private right of action into the statute.

Judge Chesler issued decisions in several cases mirroring this dual-track holding, including Northeast Neurosurgical Associates v. Horizon Blue Cross Blue Shield of New Jersey, No 25-06288 (Nov. 25, 2025), Complete Medical Wellness LLC v. Horizon Blue Cross Blue Shield of New Jersey, No. 25-04177 (Dec. 1, 2025), and Spiel v. Horizon Blue Cross Blue Shield of New Jersey, No. 25-14769 (Dec. 2, 2025).

Taken together, the decisions from the Fifth Circuit and the District of New Jersey leave little doubt about the current state of the law. While the NSA provides a detailed mechanism for resolving payment disputes, it does not empower healthcare providers to seek judicial enforcement of IDR determinations. This introduces significant uncertainty over how they are to manage their practices.

The ramifications of the NSA’s lack of a private right of action for IDR awards

Medical practices have been upended by courts’ refusal to enforce favorable IDR determinations. Such determinations do not guarantee prompt payment, if any payment at all. According to a U.S. Government Accountability Office report cited by Judge Martinotti in Modern Orthopaedics of New Jersey, insurers “have regularly failed to pay determination awards upon losing an IDR process dispute.” So much so that the “the majority of the payment determinations . . . remain unpaid.”

It’s unclear why there’s so little enforcement of IDR determinations. It could be due to a lack of funding at the responsible agencies, a lack of direction from those agencies’ leaders, or simply a lack of interest among agency staff in holding insurers liable for their wrongs.

But what is clear is that the damage done by unpaid IDR determinations is compounded by the scale at which IDR disputes arise. A single procedure may generate multiple billing codes, each of which can lead to its own billing dispute. As a result, even a relatively modest volume of out-of-network services can translate into dozens, even hundreds, of unresolved payment issues at any time. The administrative burden of tracking those disputes, combined with prolonged payment delays, creates significant strain for medical practices, no matter their size or profit margin.

Against this backdrop, providers cannot treat IDR as a self-contained solution. Collection activity must often continue in parallel due to the lack of a private right of action. Practices must plan for the possibility that IDR determinations will resolve the amount owed, but a payment from an insurer for that amount might never come.

Additionally, when healthcare providers decide to engage counsel to pursue payment from insurers after the NSA’s IDR process, they should demand transparency from their counsel so they can assess how well the IDR process is going and evaluate how the process is impacting their overall business. Winning an IDR determination, while still important, is no longer the sole measure of effective representation. Counsel must also be prepared to advise clients candidly about delays, risks, and operational consequences that flow from a system lacking judicial enforcement.

Counsel should also be transparent about how many claims (based on billing codes that haven’t been paid) the provider has to assert against insurers. They should be open about how many disputes they’ve won, their winning percentages for each code they’ve sought payment for, and how many days outstanding unpaid awards are. They should be able to provide both in-the-weeds data and high-level strategic guidance to their clients based on that data.

Healthcare providers should expect their counsel to advise them on which, if any, billing codes they have been reliably unable to recover from an insurer. This could help providers avoid using those billing codes in the future and instead use codes they are more likely to be paid for, whether in the normal course of business or after a favorable IDR award. Counsel who can identify those patterns and communicate them clearly can help their clients avoid spending resources on disputes that are unlikely to yield meaningful recoveries during the IDR process.

Providers should also ensure their counsel understands that the IDR process resembles a miniature trial. Although the process lacks the trappings of traditional litigation, it demands careful documentation, clear presentation of complex medical issues, and an ability to translate technical concepts into language accessible to non-clinical government-appointed neutrals “presiding” over the IDR process. In many respects, the process resembles trial advocacy more than informal negotiation. Counsel who treat it as such will be better positioned to protect their clients’ interests within the limits of the statute.

A statute in need of an adequate enforcement mechanism via a private right of action

The emerging case law regarding the NSA’s IDR process has clarified one question while leaving another unresolved. Courts have held that the NSA does not authorize judicial enforcement of IDR determinations. What remains uncertain is how a statutory regime governing a substantial segment of the healthcare economy can function effectively without an adequate enforcement mechanism in the form of a private right of action.

The NSA was designed to protect patients while ensuring that healthcare providers are paid fairly for covered services. Without a clear pathway to enforce payment obligations, the statute risks substituting one form of uncertainty for another. 

In practical terms, that risk now falls squarely on providers, who lack meaningful tools to compel insurers’ compliance with the results of IDR proceedings. Courts have clarified that addressing that lack of compliance is not their role.

If the NSA is to have its intended impact, Congress must step up and amend the statute to give healthcare providers a private right of action so that courts can compel payment from insurers. If Congress does not, an ongoing glut of unpaid IDR awards could force large numbers of providers to close their practices.

That would have a cataclysmic effect on the health and well-being of the patients of those practices, and if enough practices close, society as a whole.

Adam Kotlar is a founding partner at Kotlar Cohen. He is certified by the Supreme Court of New Jersey as a Civil Trial Attorney and as a Workers’ Compensation Attorney. Justin Cohen is also a founding partner at Kotlar Cohen. He is certified by the Supreme Court of New Jersey as a Workers’ Compensation Attorney. Both co-chair the firm’s No Surprises Act legal practice, representing physicians and medical groups in the statute’s Independent Resolution Process. They can be reached at [email protected] and [email protected], respectively.

Reprinted with permission from the January 15, 2026 edition of The New Jersey Law Journal © 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].