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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATION OF AIR MEDICAL SERVICES,
et al.,

                                                        Plaintiffs,

v.
                                                                                      Civ. Action No. 1:21-cv-3031-RJL 

U.S. DEPARTMENT OF HEALTH AND
HUMAN SERVICES, et al.,
                                                         Defendants.

   AMA/AHA SUPPLEMENTAL BRIEF   

The American Medical Association/���������� Association Plaintiffs’ claim challenging the September Rule’s presumption in favor of the qualifying payment amount (QPA) remains a live part of this consolidated case and warrants immediate action. The government continues to insist that its atextual reading of the No Surprises Act is correct, and it has shown no indication whatsoever that its forthcoming final rule will be any less unlawful. A decision from this Court can put an end to the government’s illegal interpretation once and for all. As such, Plaintiffs respectfully ask the Court to act as soon as practicable.

First, although the Departments hint at some sort of “doubt[]” about a “live controversy,” Tr. 45, this Court clearly has jurisdiction over the AMA/AHA claim. The Departments have neither acquiesced to the decision of the Eastern District of Texas vacating portions of the September Rule, nor suggested any intent to abandon their interpretation of the No Surprises Act in any final rule; indeed, as discussed below, the government continues to defend and seek judgment in its favor regarding the same legally infirm language and provisions as they relate to air ambulance providers. Because there is “‘no certainty’ that the [government] will forego reinstating the” QPA presumption given the opportunity, American Bankers Ass’n v. National Credit Union Admin., 934 F.3d 649, 661 (D.C. Cir. 2019)—and every indication points in the opposite direction—the government cannot bear its “heavy burden” of proving mootness, Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation omitted); see generally Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1, (2017) (court must find “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”). A decision resolving Plaintiffs’ challenge would thus not be an “advisory opinion,” Tr. 45; it would be a straightforward exercise of this Court’s “virtually unflagging” obligation “to hear and decide cases within its jurisdiction,” Zukerman v. United States Postal Serv., 961 F.3d 431, 445 (D.C. Cir. 2020).

View the detailed briefs below.