The No Surprises Act, its regulations, and the cases challenging the regulations
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No Surprises Act
Consolidated Appropriations Act, 2021, Division BB, Title I
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No Surprises Act regulations
86 Fed. Reg. 36,872 (July 13, 2021)
86 Fed. Reg. 55,980 (Oct. 7, 2021)
86 Fed. Reg. 66,662 (Nov. 23, 2021)
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Cases
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Calendar
1/10/22 TMA: Defendants’ summary judgment opposition/cross motion
1/18/22 TMA: Amicus briefs supporting US; US response to Members of Congress amicus
1/18/22 AAMS: Defendants’ summary judgment opposition/cross motion
1/24/22 AMA: Defendants’ stay and summary judgment opposition, and cross-motion for summary judgment
1/24/22 TMA: Plaintiffs’ summary judgment reply/opposition
2/1/22 AAMS: Plaintiffs’ summary judgment reply/opposition
2/2/22 TMA: Defendants’ summary judgment reply
2/4/22 TMA: summary judgment oral argument
2/7/22 AMA: Plaintiffs’ reply supporting stay/summary judgment opposition
2/18/22 AAMS/AMA: Defendants’ summary judgment reply
3/4/22 GCEP: Defendants’ summary judgment opposition (probably) (stayed)
3/9/22 ASAn: Defendants’ summary judgment motion/opposition (to be stayed?)
3/17/22 AAMS/AMA: summary judgment hearing (rescheduled to 3/21)
3/21/22 AAMS/AMA: summary judgment hearing
4/6/22 ASAn: Plaintiffs’ summary judgment reply/opposition (to be stayed?)
4/25/22 ASAn: Defendants’ summary judgment reply (to be stayed?)
4/26/22 Haller: Defendants’ opposition/cross motion due
5/2/22 GCEP: 60-day stay ends (probably) (motion to continue stay filed)
5/3/22 AsAn: Joint status report due
5/24/22 Haller: Plaintiffs’ reply/opposition due
5/31/22 Haller: Defendants’ reply supporting cross-motion due
6/7/22 Haller: motions hearing
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THE TEXAS MEDICAL ASS’N CASE AGAINST THE NO SURPRISES ACT REGULATIONS
Texas Medical Association v. U.S. D.H.H.S., No. 6:21-cv-425 (E.D. Tex., filed Oct. 28, 2021)
Complaint
Unopposed motion for expedited briefing, November 22, 2021
TMA No Surprises unop mo expedited SJ br 11 22
Scheduling order, November 23, 2021
TMA No Surprises scheduling order 11 23
Plaintiffs’ motion for summary judgment – December 10, 2021
Defendants’ opposition/cross-motion for summary judgment – January 10, 2022
Plaintiffs’ opposition/reply brief – January 24, 2022
Defendants’ reply brief – February 2, 2022.
Further, the Court hereby sets the parties’ summary judgment motions for
an in-person hearing on February 4, 2022, at 9:30 a.m., at the William M.
Steger Federal Building and United States Courthouse, 211 West Ferguson
Street, Tyler, TX 75702.
TMA motion for summary judgment, December 10, 2021
Action for Health amicus, December 17, 2021
TMA Action for Health amicus 12 17
California Medical Ass’n amicus, December 17, 2021
Medical Ass’n of Georgia amicus, December 17, 2021
Emergency Dep’t Practice Management Ass’n amicus, December 17, 2021
TMA Emergency Dept Practice Mgmt Assn amicus 12 17
[Exhibits]
Members of Congress amicus request, December 21, 2021
TMA Members of C amicus request 12 21
US opposition to amicus request, December 21, 2021
Order allowing filing of amicus brief and setting schedule, December 24, 2021
TMA order allowing amicus 12 24
[Schedule: filing by 1/3, US response by 1/18]
Ho/Gibson Dunn withdrawal, December 28, 2021
Members of Congress amicus, January 3, 2022
US opposition/cross-motion, January 10, 2022
AHIP amicus, January 18, 2022
Congressional Committee Leaders amicus, January 18, 2022
Health Policy Experts amicus, January 18, 2022
US response to Members of Congress amicus, January 18, 2022
US response to Members amicus 1 18
American Benefits Council amicus, January 18, 2022
American Benefits Council amicus
Cancer Support Community amicus, January 18, 2022
Blue Cross Blue Shield Ass’n amicus, January 18, 2022
TMA reply/opposition, January 24, 2022
[Exhibits]
Notice re dial-in information for Feb. 4 hearing, January 26, 2022
TMA court notice re dial in 1 26
Motion to appear by videoconference, February 2, 2022
US reply, February 2, 2022
Order denying videoconference but rescheduling hearing, February 2, 2022
US renewed motion for videoconference, February 3, 2022
Plaintiffs’ non opposition to partial video conference, February 3, 2022
Order allowing videoconference participation, February 4, 2022
Minute entry, February 4, 2022
Transcript request, February 4, 2022
Summary judgment opinion, and judgment, February 23, 2022
TMA summary judgment opinion 2 23
Notice of appeal, April 22, 2022
Fifth Circuit # 22-40264
Unopposed US motion to hold appeal in abeyance, April 29, 2022
Stay order, May 3, 2022
+++
CMS memo in response to TMA decision, February 28, 2022
Memorandum Regarding Continuing Surprise Billing Protections for Consumers_02-28-2022 MM 508
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THE ASSOCIATION OF AIR MEDICAL SERVICES CASE AGAINST THE NO SURPRISES ACT REGULATIONS (with filings from the AMA case from 2/8/22 on)
Association of Air Medical Services v. U.S. D.H.H.S., No. 1:21-cv-3031 (D. D.C., filed Nov. 16, 2021)
Complaint
Motion for summary judgment, December 10, 2021
Joint scheduling proposal, December 14, 2021
AAMS joint briefing schedule proposal 12 14
| 12/22/2021 | MINUTE ORDER. Upon consideration of the parties’ 8 Joint Motion for Briefing Schedule, it is hereby ORDERED that the motion is GRANTED. Defendants shall file their opposition to plaintiff’s motion for summary judgment, together with their cross-motion for summary judgment, on or before January 18, 2022; plaintiff shall file its reply in support of its motion for summary judgment, together with its opposition to defendants’ cross-motion, on or before February 1, 2022; and defendants shall file their reply in support of their cross-motion on or before February 11, 2022. SO ORDERED. Signed by Judge Richard J. Leon on 12/22/2021. (lcrjl1) (Entered: 12/22/2021) |
US opposition and cross-motion, January 18, 2022
AHIP amicus, January 25, 2022
Health Policy Experts amicus, January 25, 2022
AAMS Health Policy Experts amicus 1 25
American Benefits Council amicus, January 25, 2022
AAMS American Benefits Council amicus 1 25
Leukemia & Lymphoma Society amicus, January 25, 2022
Ass’n of Critical Care Transport amicus, January 26, 2022
AAMS reply supporting summary judgment/opposition to cross-motion, February 1, 2022
AAMS No Surprises AAMS reply opposition 2 1
| 02/02/2022 | MINUTE ORDER. Upon consideration of the defendants’ 25 Motion to Consolidate Cases or, in the Alternative, for an Extension of Time, it is hereby ORDERED that the motion is GRANTED. The Court finds that good cause exists under Federal Rule of Civil Procedure 42(a) for consolidation of Nos. 21-cv-3031 and 21-cv-3231, including a substantial overlap of common issues of law and fact such that consolidation will save the parties and Court time and effort in resolving these disputes, with no risk of prejudice to either set of plaintiffs. It is therefore further ORDERED that Ass’n of Air Medical Services v. Dep’t of Health & Human Services et al., No. 21-cv-3031-RJL, shall be consolidated with American Medical Association, et al. v. Dep’t of Health & Human Services et al., No. 21-cv-3231-RJL. It is further ORDERED that the Clerk’s Office close 21-cv-3231-RJL and that the parties in that case, including pending movants, be transferred to 21-cv-3031-RJL. It is further ORDERED that all future filings in these cases shall be made on the docket of the lead case, No. 21-cv-3031; that the plaintiffs in No. 21-cv-3231 shall file their reply brief in support of their motions and opposition to defendants’ cross-motion on or before February 8, 2022; that the defendants shall file a combined reply brief in support of their cross-motions for summary judgment in both cases, not to exceed thirty pages, on or before February 18, 2022; and that the parties in the consolidated cases shall file a single joint appendix of administrative record materials. SO ORDERED. Signed by Judge Richard J. Leon on 2/2/2022. (lcrjl1) (Entered: 02/02/2022) |
AMA reply/opposition, February 8, 2022
US reply, February 18, 2022
AHA/AMA notice of supplemental authority (TMA), February 24, 2022
AAMS notice of supplemental authority (TMA), February 24, 2022
| 02/28/2022 | MINUTE ORDER. It is hereby ORDERED that a hearing on the parties’ currently pending cross-motions for summary judgment shall be set for March 17, 2022 at 3:00 PM in Courtroom 18 before Judge Richard J. Leon. Subject to further order of the Court, plaintiff in 21-cv-3031, the Association of Air Medical Services, shall have 20 minutes to present argument in favor of its motion; plaintiffs in 21-cv-3231, American Medical Association et al., shall have 10 minutes; the defendants shall have 30 minutes to respond; plaintiff in 21-cv-3031 shall have 10 minutes of rebuttal; and plaintiffs in 21-cv-3231 shall have 5 minutes of rebuttal. SO ORDERED. Signed by Judge Richard J. Leon on 2/28/2022. (lcrjl1) (Entered: 02/28/2022) |
Rescheduling request, March 2, 2022
DC No Surprises resched rq 3 2
| 03/03/2022 | MINUTE ORDER. Upon consideration of the American Medical Association et al. plaintiffs’ 54 Motion to Continue, it is hereby ORDERED that the motion is GRANTED. The hearing currently set for March 17, 2022 at 3:00 PM is hereby rescheduled and shall be held on March 21, 2022 at 3:00 PM in Courtroom 18 before Judge Richard J. Leon (different date, same time). All other directions in the Court’s prior Order concerning the hearing remain applicable. SO ORDERED. Signed by Judge Richard J. Leon on 3/3/2022. (lcrjl1) (Entered: 03/03/2022) |
US response to TMA order, March 9, 2022
| 03/21/2022 | MINUTE ORDER. Upon consideration of defendants’ 56 Response to Notice of Supplemental Authority, it is hereby ORDERED that the procedure for oral argument on the parties’ motions shall be as follows: plaintiff Association of Air Medical Services (AAMS) shall have twenty minutes to argue on its challenge to the methodology for calculation of the QPA; the defendants shall have twenty minutes to respond on the same issue; and AAMS shall have five minutes of rebuttal. Following a break, the Court will then hear argument from the defendants concerning the status and effect of the Eastern District of Texas litigation; plaintiffs American Medical Association et al. and AAMS will then have an opportunity to respond. SO ORDERED. Signed by Judge Richard J. Leon on 3/21/22. (lcrjl1) (Entered: 03/21/2022) |
| 03/21/2022 | Minute Entry for proceedings held before Judge Richard J. Leon: Motion Hearing held on 3/21/2022 re: 5 10 CROSS MOTIONS for Summary Judgment. The Parties may file supplemental submissions not to exceed 12 pages, on issues discussed during the hearing, within 10 days of receipt of the transcript. (Court Reporter: Janice Dickman). (jth) (Entered: 03/21/2022) |
[transcripts released 3/24, so briefs due 4/4]
AHA/AMA supplemental brief, April 4, 2022
AAMS supplemental brief, April 4, 2022
US supplemental brief, April 4, 2022
AAMS notice of US policy guidance, April 12, 2022
AAMS notice re US policy guidance 4 12
AAMS notice re federal guidance, April 15, 2022
AAMS notice re federal guidance 4 15
Notice that US is appealing TMA, April 27, 2022
US notice of additional authority (Fifth Circuit stay), May 3, 2022
US notice of related case (LifeNet), May 12, 2022
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THE AMA CASE AGAINST THE NO SURPRISES ACT REGULATIONS
American Medical Ass’n v. U.S. D.H.H.S., No. 1:21-cv-3231 (D. D.C., filed Dec. 9, 2021)
Complaint
AMA No Surprises complaint 12 9
Notice of related case, December 9, 2021
AMA No Surprises notice of related case 12 9
Motion for stay, December 9, 2021
AMA No Surprises motion for stay pending judicial review 12 9
US scheduling proposal, December 14, 2021
AMA US schedule proposal 12 14
Partial opposition to US motion for briefing schedule, December 15, 2021
Federation of American Hospitals amicus, December 15, 2021
Reply supporting US briefing schedule, December 15, 2021
US reply supporting its briefing schedule 12 15
| 12/22/2021 | MINUTE ORDER. Upon consideration of defendants’ 13 Motion for Briefing Schedule and the parties’ pleadings, it is hereby ORDERED that the defendants’ motion is GRANTED. It is further ORDERED that defendants shall file their opposition to plaintiffs’ motion for a stay pending judicial review, or in the alternative for summary judgment, together with their cross-motion for summary judgment, on or before January 24, 2022; defendants shall also file a certified list of the administrative record with the Court, and serve plaintiffs with a copy of the administrative record, on or before January 24, 2022; plaintiffs shall file their reply in support of their motion for a stay pending judicial review, or in the alternative for summary judgment, together with their opposition to defendants’ cross-motion, on or before February 7, 2022; and defendants shall file their reply in support of their cross-motion for summary judgment on or before February 18, 2022. It is further ORDERED that defendants shall be relieved of their obligation to answer the complaint. SO ORDERED. Signed by Judge Richard J. Leon on 12/22/2021. (lcrjl1) (Entered: 12/22/2021) |
College of American Pathologists amicus, December 23, 2021
College of Am Pathologists amicus 12 23
Physicians Advocacy Institute amicus, January 7, 2022
Members of Congress amicus, January 12, 2022
US opposition to stay/memo supporting summary judgment, January 24, 2022
US motion to consolidate, January 26, 2022
AMA No Surprises US consol mo 1 26
Partial opposition to motion to consolidate, January 27, 2022
Reply supporting motion to consolidate, January 28, 2022
AHIP amicus, January 31, 2022
AMA No Surprises AHIP amicus 1 31
Health Policy Experts amicus, January 31, 2022
AMA No Surprises Health Policy Experts amicus 1 31
American Benefits Council amicus, January 31, 2022
AMA No Surprises Am Benefits Council amicus 1 31
Sen. Murray/Rep. Pallone amicus, January 31, 2022
AMA No Surprises Murray Pallone amicus 1 31
Leukemia & Lymphoma Society amicus, January 31, 2022
Blue Cross Blue Shield Association amicus, January 31, 2022
AMA No Surprises BC BS Assn amicus 1 31
| 02/02/2022 | MINUTE ORDER. Upon consideration of the defendants’ 25 Motion to Consolidate Cases or, in the Alternative, for an Extension of Time, it is hereby ORDERED that the motion is GRANTED. The Court finds that good cause exists under Federal Rule of Civil Procedure 42(a) for consolidation of Nos. 21-cv-3031 and 21-cv-3231, including a substantial overlap of common issues of law and fact such that consolidation will save the parties and Court time and effort in resolving these disputes, with no risk of prejudice to either set of plaintiffs. It is therefore further ORDERED that Ass’n of Air Medical Services v. Dep’t of Health & Human Services et al., No. 21-cv-3031-RJL, shall be consolidated with American Medical Association, et al. v. Dep’t of Health & Human Services et al., No. 21-cv-3231-RJL. It is further ORDERED that the Clerk’s Office close 21-cv-3231-RJL and that the parties in that case, including pending movants, be transferred to 21-cv-3031-RJL. It is further ORDERED that all future filings in these cases shall be made on the docket of the lead case, No. 21-cv-3031; that the plaintiffs in No. 21-cv-3231 shall file their reply brief in support of their motions and opposition to defendants’ cross-motion on or before February 8, 2022; that the defendants shall file a combined reply brief in support of their cross-motions for summary judgment in both cases, not to exceed thirty pages, on or before February 18, 2022; and that the parties in the consolidated cases shall file a single joint appendix of administrative record materials. SO ORDERED. Signed by Judge Richard J. Leon on 2/2/2022. (lcrjl1) (Entered: 02/02/2022) |
[Note: for further filings, see 1:21-cv-3031 above]
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THE AM. SOC. OF ANESTHESIOLOGISTS CASE AGAINST THE NO SURPRISES ACT REGULATIONS
American Society of Anesthesiologists v. U.S. D.H.H.S., No. 1:21-cv-6823 (N.D. Ill., filed Dec. 22, 2021)
Complaint, and exhibits
ASocAn No Surprises complaint 12 22 21
ASA motion to set briefing schedule, February 9, 2022
ASA No Surprises briefing schedule motion 2 9
ASA motion for summary judgment, February 9, 2022
Briefing schedule order, February 11, 2022
Defendants’ Motion for Summary Judgment and Opposition to
Plaintiffs’ Motion for Summary Judgment is due March 9, 2022, and the supporting
memorandum shall not exceed 45 pages. Plaintiffs’ reply brief and opposition to
Defendants’ Motion for Summary Judgment is due April 6, 2022, and shall not exceed 45
pages. Defendants’ reply brief is due April 25, 2022, and shall not exceed 25 pages.
US unopposed motion to stay, March 3, 2022
Minute entry re stay, March 8, 2022
Joint status report, and order, May 3, 2022
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THE GEORGIA COLLEGE OF EMERGENCY PHYSICIANS CASE AGAINST THE NO SURPRISES ACT REGULATIONS
Georgia College of Emergency Physicians v. U.S. D.H.H.S., No. 1:21-cv-5267 (N.D. Ga., filed Dec. 23, 2021)
Complaint
Scheduling order, January 20, 2022
GA No Surprises scheduling order 1 20
Plaintiffs’ motion for summary judgment or preliminary injunction, January 28, 2022
Emergency Department Practice Management Ass’n amicus, February 4, 2022
Joint motion for stay, March 1, 2022
GA No Surprises joint stay mo 3 1
Stay order, March 2, 2022
GA No Surprises stay order 3 2
Joint motion to continue stay, April 28, 2022
Order granting motion to continue stay, May 2, 2022
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THE HALLER CASE AGAINST THE NO SURPRISES ACT
Haller v. U.S. D.H.H.S., No. 2:21-cv-7208 (E.D. N.Y., filed Dec. 31, 2021)
Complaint
Haller No Surprises complaint 12 31
Motion for preliminary injunction/TRO/order to show cause, affidavits, memo, April 1, 2022
| 04/01/2022 | ORDER denying 21 Motion for Preliminary Injunction.
The plaintiffs submit 21 There is no discussion in the plaintiffs’ submissions 21 |
Haller notice of preliminary injunction motion, April 4, 2022
Haller notice of PI motion 4 4
| 04/04/2022 | ORDER. The Court has received the plaintiffs’ notice 25 of motion for a preliminary injunction. The plaintiffs are directed to submit a brief letter advising the Court whether they will file a declaration and memorandum in support of the motion, or if they intend to rely on the previously-filed submissions 22 23 . Ordered by Judge Ann M. Donnelly on 4/4/2022. (Mathew, Joshua) (Entered: 04/04/2022) |
| 04/05/2022 | SCHEDULING ORDER: The defendants are directed to file their opposition to the plaintiffs’ motion for preliminary injunction by April 19, 2022, and the plaintiffs are directed to file their reply, if any, by April 26, 2022. A hearing on the plaintiffs’ motion for a preliminary injunction is scheduled for May 3, 2022 at 3:30 p.m. in Courtroom 4G North. Ordered by Judge Ann M. Donnelly on 4/5/2022. (Mathew, Joshua) (Entered: 04/05/2022) |
US letter re scheduling, April 7, 2022
Haller letter re scheduling, April 8, 2022
| 04/08/2022 | SCHEDULING ORDER: The Court has received the parties’ letters 27 28 . The defendants’ request to waive the pre-motion conference requirement in anticipation of a motion to dismiss is granted.
The parties state that one or more non-parties will seek to participate in this action as amici curiae, but do not identify them. “District Courts have broad discretion in deciding whether to accept amicus briefs.” Jamaica Hosp. Med. Ctr., Inc. v. United Health Grp., Inc., 584 F. Supp. 2d 489, 497 (E.D.N.Y. 2008) (citation omitted). “Additionally, the circumstances under which an amicus brief is considered ‘desirable’ are limited[.]” Id. The parties have not shown that those circumstances are present here. The revised briefing schedule does not include amicus briefing, but accommodated the defendants’ anticipated motion to dismiss. The defendants’ memorandum in opposition to the plaintiffs’ motion for a preliminary injunction and in support of their motion to dismiss is due by April 26, 2022 and must not exceed 40 pages. The plaintiffs’ memorandum in opposition to the defendants’ motion to dismiss and reply in support of their motion for a preliminary injunction is due by May 24, 2022 and must not exceed 40 pages. The defendants’ reply in support of their motion to dismiss is due by May 31, 2022 and must not exceed 10 pages. A hearing on the plaintiffs’ motion for a preliminary injunction and the defendants’ motion to dismiss is scheduled for June 7, 2022 at 10:00 a.m. in Courtroom 4G North. Ordered by Judge Ann M. Donnelly on 4/8/2022. (Mathew, Joshua) (Entered: 04/08/2022) |
US memorandum opposing preliminary injunction and supporting motion to dismiss, April 26, 2022
Haller NS US dism ms sj op 4 26
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[US, 4/26; Haller, 5/24; US, 5/31; hearing, 6/7]
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A TEXAS AIR AMBULANCE CASE
Lifenet, Inc., v. U.S. D.H.H.S., No. 6:22-cv-162 (E.D. Tex., filed April 27, 2022)
Complaint
Civil cover sheet including related case (TMA), April 27, 2022
Lifenet NSA civil cover sheet w related case 4 27
Reassignment of case to Judge Kernodle, May 5, 2022
Lifenet motion to expedite summary judgment briefing, May 11, 2022
Order for response by 5 12, May 11, 2022
Lifenet order for expedited response 5 11
US opposition to expedited briefing, May 12, 2022
Lifenet US expedited sj op 5 12
US motion to change venue, May 12, 2022
Lifenet reply, with exhibit, May 13, 2022
Order expediting briefing, May 13, 2022
Lifenet order expediting briefing 5 13
The Court therefore ORDERS that LifeNet may file its motion for summary judgment at any time following this Order. Defendants’ response shall be due two weeks after LifeNet files its motion, and a reply and sur-reply (if any) shall be due one week after Defendants’ response and one week after LifeNet’s reply, respectively.
Lifenet opposition to changing venue, May 18, 2022
Lifenet motion for summary judgment, May 18, 2022
A KENTUCKY CASE
PHI Health, Ltd., v. U.S. Dep’t of Health and Human Services, No. 6:22-cv-95 (E.D. Ky., filed April 29, 2022)
Complaint
PHI Health No Surprises complaint 4 29 22
Magistrate’s recusal, May 3, 2022
Affordable Care Act Litigation 