(CN) – A Sixth Circuit panel refused to compel the federal government to enforce the Affordable Care Act’s nondiscrimination provision against private insurers that offer different compensation to doctors and nurses.
“Nurses provide the majority of anesthesia services in this country. They are both the face and the backbone of our health care system. But if they disagree with how the secretary has exercised his enforcement discretion, they should look to him for a remedy — not the courts,” U.S. District Judge Amul Thapar said in his speech. 10 page opinion.
American Association of Nurse Anesthesiology filed a lawsuit in the U.S. District Court for the Northern District of Ohio in 2024 against the U.S. Department of Health and Human Services, alleging that the department allowed private insurance companies to compensate nurse anesthetists less than physicians for the same care work.
The differential compensation flies in the face of the Affordable Care Act’s prohibition on licensure-based provider discrimination, according to the association. She sought a writ of mandamus compelling Secretary Robert F. Kennedy Jr. to enforce the provision, a responsibility the association claims he has abdicated.
The District Court dismissed it complaint for lack of standing, and the Sixth Circuit reached the same conclusion on appeal.
The association argued for association standing, which allows an organization to sue on behalf of an injured member. However, the members’ claim for monetary damages cannot be traced to the secretary’s conduct.
“The association claims that its members experienced the detriment of lower reimbursement rates for independent anesthesia services,” Thapar said. “But HHS didn’t set those fees — private insurers did. The association theorizes that HHS nonetheless caused its injury because those insurers are ’emboldened by the government’s failure’ to enforce (the provision). That causal relationship is too speculative to support the position.”
Even if the government’s inaction caused the injuries, the association failed to explain why RFK Jr.’s inaction. did so specifically, according to Thapar.
Thapar took his reasoning a step further, arguing that the harm to the association is not necessarily repairable by a favorable outcome in this lawsuit. It is not known how the secretary would act in the face of a court order to enforce the provision or how insurers would respond to enforcement.
Nurse anesthetists are reimbursed in two different ways, depending on how they practice.
If they work under the supervision of an anesthesiologist or operating physician, the nurse shares any reimbursement with the supervisor. If practicing without supervision, they receive 100% of the reimbursement fee that physician anesthesiologists receive.
That is, until 2023, when Cigna and Anthem Blue Cross Blue Shield announced reductions.
Anthem politics reduced reimbursement by 15% for certain anesthesia services provided by certified registered nurse anesthetists, while leaving reimbursement for physician anesthesia providers unaffected.
The association represents approximately 74,000 nurse anesthetists nationwide, who administer the majority of anesthesia procedures in the United States—over 50 million annually.
In his majority opinion, Thapar questioned why the association left the states out of its lawsuit, since they have primary enforcement authority over the nondiscrimination provision.
The Secretary must first determine that states have failed “substantially” to implement the provision itself before he can take any action.
Even if he decided that federal intervention was necessary, RFK Jr. retains absolute discretion over what penalty, if any, to impose. With so much speculation, a favorable decision on appeal likely won’t solve the association’s problem anytime soon, if at all.
The association said in a statement that it would work with state partners to “build local momentum that would protect CRNAs from discriminatory reimbursement practices as we explore future federal pathways.”
U.S. District Judge Helene White wrote a dissenting opinion agreeing with the majority on lack of standing but departing from its analysis of causation and resuitability.
It asserts that the causal chain linking the government’s inaction to the association’s alleged financial injury is foreseeable and not merely speculative. Similarly, uncertainty about how the secretary and insurers might act is to be expected and not an obstacle to relief.
“Here, I would consider it highly probable that, if the district court were to order the secretary to enforce the nondiscrimination provision, at least some of the association’s members would see their financial injury mitigated,” White said.
association view the mainly procedural decision as a threat to the associative position in general.
“Association standing is a core principle of professional and trade associations seeking to protect the interests of their members. AANA is evaluating the implications of the decision for how associations protect their members’ interests in federal court, and we encourage all associations to do the same,” said association President Jeff Molter, MSN, MBA, CRNA.
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