Providers Ask Supreme Court to Address Private Right of Action Under No Surprises Act 

Air ambulance providers Guardian Flight, LLC, and Med-Trans Corporation, both of whom lost their bids to sue payors in court for payment of No Surprises Act (NSA) Independent Dispute Resolution (IDR) determinations, petitioned the U.S. Supreme Court on October 8, 2025, seeking to overturn a Fifth Circuit decision finding no private right of action under the NSA. Guardian Flight, L.L.C., et al. v Health Care Service Corporation, No. 25-441 (U.S.). The Fifth Circuit held in June 2025 that the providers did not have standing to enforce payment on IDR awards under ERISA as assignees of ERISA plan beneficiaries because the beneficiaries are protected from balance billing under the NSA and thus suffered no injury. The court also dismissed the providers' unjust enrichment allegations for failure to state a claim, relying on Texas case law holding that a provider does not provide a benefit to an insurer by providing services to an insured patient. As to a private right of action to enforce IDR awards, the court held that the NSA expressly bars such judicial review, except in limited circumstances listed in the statute not applicable to the case. Instead, the court recognized the administrative enforcement mechanism provided, noting "Congress's policy choice is beyond our judicial ken." In their petition for a writ of certiorari, the providers contend the Fifth Circuit erred on both standing and in deciding no private right of action exists. 

The majority of federal courts that have addressed the issue of whether the NSA provides a private right of action have decided it does not and the Fifth Circuit is the only federal appellate court to rule on this issue. Without a circuit split, it will be surprising if the Court takes up this issue at this time. 

Senate Passes ESOP Legislation

On October 9, 2025, the Senate unanimously approved the Retire Through Ownership Act (S. 2403) and the Employee Ownership Representation Act of 2025 (S. 1728) after both bills passed the Senate Committee on Health, Education, Labor and Pensions (HELP) in July. Following the Senate's vote, the legislation awaits further consideration in the House of Representatives, where companion bills were approved by the House Committee on Education and the Workforce on September 17, 2025. 

The Retire Through Ownership Act, sponsored by Senators Roger Marshall (R-KS) and Tim Kaine (D-VA), seeks to amend the definition of "adequate consideration" under section 3(18) of ERISA, 29 U.S.C. § 1002(18). The bill would provide a safe harbor for fiduciaries of employee stock ownership plans (ESOP) (as defined in section 407(d)(6)) who rely in good faith "on a valuation provided by an independent valuation expert or business appraiser that has relied upon the principles and methodologies set forth in Internal Revenue Service Revenue Ruling 59-60 (as amplified and modified by the Internal Revenue Service from time to time) in determining the fair market value of an asset." 

The Employee Ownership Representation Act of 2025, sponsored by HELP Committee Chair Bill Cassidy (R-LA), seeks to expand the number of members of the Advisory Council on Employee Welfare and Pension Benefit Plans to include two representatives of employee ownership organizations nominated by the Secretary of Labor. The bill would also create a seven-member Advisory Council on Employee Ownership. Lastly, the bill includes the appointment of an "Advocate for Employee Ownership within the Employee Ownership Initiative established under section 346(b)(1) of the SECURE 2.0 Act of 2022." Under the bill, the Secretary of Labor would be required to "solicit advice and input from the Advocate for Employee Ownership in developing regulations or interpretations of this Act that relate to [ESOPs]."

If passed by the House as anticipated, both bills would move to the president's desk for signature.

Breach of Fiduciary Duty and NSA Claims Proceed to Discovery 

The U.S. District Court for the District of Minnesota granted in part and denied in part a motion to dismiss by defendants Mayo Clinic and MMSI, Inc., in Orrison v. Mayo Clinic & MMSI, Inc., No. 24-cv-01124 (JMB/SGE) (D. Minn. Sept. 19, 2025). The court greenlighted the plaintiff's ERISA breach of fiduciary duty claims, another claim alleging a failure to comply with the ERISA claims regulation full and fair review provision, and a claim arising under the NSA alleging deficiencies with the defendants' disclosure of provider and benefits information, to include their provider directory search tool. 

The plaintiff is a participant in the Mayo Clinic's self-funded health plan (the Plan), administered by MMSI. She alleges that when she attempted to find mental health treatment for her son, she was directed by Plan documents to an online search tool, which impermissibly omitted in-network providers, requiring her to seek care with costly out-of-network providers. The complaint also alleges that the defendants did not disclose information regarding the reimbursement calculations for out-of-network providers, including how the defendants calculated their non-network provider reimbursement rate (NNPRA) on explanation of benefits statements. Lastly, the plaintiff alleges the information she received from the Plan regarding whether she had met her deductible and out-of-pocket maximums was inconsistent. 

The court denied the defendants' motion to dismiss the plaintiff's ERISA breach of fiduciary duty claims arising out of allegations that the defendants made materially misleading statements and refused to disclose the Plan's NNPRA pricing method and methodology used to calculate reimbursement rates. The parties only disputed whether there had been a breach and not whether the defendants were fiduciaries and whether there were losses from any such breach. However, the court dismissed without prejudice various other fiduciary theories to include allegations that member cost-sharing information was calculated differently on the MMSI member portal from an internal MMSI system. 

Of note, the court granted the defendants' motion to dismiss the plaintiff's claims arising under the Mental Health Parity and Addiction Equity Act (MHPAEA) for failure to state a claim, but allowed her NSA claim alleging that the defendants' provider search tool fell short of the requirements under 29 U.S.C. § 1185i(a)(4). The latter provision requires health plans and health insurance issuers offering group health insurance to provide a publicly available database that contains "a list of each health care provider and health care facility with which such plan or such issuer has a direct or indirect contractual relationship for furnishing items and services... and... provider directory information with respect to each such provider and facility." 

Litigation alleging violations of 29 U.S.C. § 1185i(a)(4) are among the novel ERISA welfare plan cases that we closely track. Orrison is especially interesting given the recent focus from both the legislative and executive branches on improving the transparency initiatives passed in the Consolidated Appropriations Act, 2021 and promulgated by the DOL in the 2020 Transparency in Coverage rules. 

Upcoming Speaking Engagements

Joanne will speak at the 2025 ERISA Industry Committee (ERIC) Virtual Symposium on October 22, presenting "The Great Data Race: What Employers Should Know About Emerging Fights to Control Plan Data." 

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