Labor & Employment Law Daily Wrap Up, PROCEDURE—N.D. Ohio: No associational standing in suit alleging HHS’s failure to enforce ACA non-discrimination provision, (Sep 4, 2025)

By Robert Margolis, J.D.

Group alleges that HHS’s failure to enforce provision “emboldens” insurers to discriminate against nurse anesthetists by reimbursing for their services at 85 percent of the rate paid for doctors for the same services.

The American Association of Nurse Anesthesiology (AANA), “a professional organization for nurse anesthesiologists” and certified nurse anesthetists (CRNAs), has failed to satisfy the requirements for associational standing to bring suit against HHS alleging that HHS’s failure to enforce the Anti-Discrimination provision of the Patient Protection and Affordable Care Act (ACA) has “emboldened” health insurers to discriminate against AANA members by reimbursing for their services at 85 percent of what they reimburse for doctors performing the same services, a federal district court in Ohio has held. The court granted HHS’s motion to dismiss AANA’s lawsuit, finding it failed to meet all three requisites for establishing that AANA members would have standing to assert the claims in their own right: (1) an injury in fact, (2) fairly traceable to the defendant’s alleged conduct, (3) that is likely to be redressed by a favorable judicial decision (American Association of Nurse Anesthesiology v. Kennedy, No. 1:24-cv-01657-PAB (N.D. Ohio Aug. 26, 2025)).

AANA alleges CRNAs and physician anesthesia providers “do the same thing at the same level, and they adhere to the same standards” when they administer anesthesia to patients. However, Cigna and Anthem, two national health insurers, “arbitrarily cut CRNA reimbursement rates” to 85 percent of what they reimburse physicians for performing the same services. AANA contends paying CRNAs at a lesser rate than physicians violates ACA Section 2706, titled “Non-discrimination in health care.”

There is no private right of action under the ACA Nondiscrimination Provision for healthcare providers to sue insurers who discriminate against them, so enforcement lies with HHS and the states. AANA therefore has sued HHS, alleging that its failure to enforce the ACA Nondiscrimination Provision generally has emboldened the insurers to discriminate in their reimbursement rates in violation of that statute. AANA brought two claims: (1) under the Mandamus Act, 28 U.S.C. §1361, and (2) the Administrative Procedure Act, 5 U.S.C. §706. It sought a declaration that the insurers’ conduct violates the ACA Nondiscrimination Provision and that HHS has a duty to enforce that statute, as well as a mandatory injunction requiring HHS to enforce the ACA Nondiscrimination Provision.

HHS moved to dismiss all claims, under Rule 12(b)(1) for lack of subject matter jurisdiction due to AANA’s lack of standing, and under Rule 12(b)(6) for failure to state a claim. Because the court agreed with HHS that AANA lacks standing to bring its claims, and granted HHS’s Rule 12(b)(1) motion, it did not address the merits of AANA’s discrimination theory.

Associational standing. As an organization that represents CRNAs, AANA contended it has “associational standing,” which permits an entity to sue over injuries suffered by its members. Associational standing exists where (1) an entity’s individual members would have standing to sue in their own right, (2) the interests it seeks to pursue are germane to the entity’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. HHS did not dispute that the second and third elements were satisfied, but contended AANA failed to establish the first element.

To establish that an individual member has standing to sue requires three showings: (1) an injury in fact, (2) fairly traceable to the defendant’s alleged conduct, (3) that is likely to be redressed by a favorable judicial decision. The court held that AANA established none of these elements.

Injury in fact. HHS argued AANA failed to establish this element because it did not identify any individual members who were paid at a lower rate by the insurers. Indeed, AANA identified no individuals in its complaint, and attempted to remedy this defect by attaching affidavits of several individuals to its brief in response to HHS’s motion. But such an affidavit is not a substitute for a defective pleading and AANA chose to oppose the motion rather than amend its complaint. Therefore, the court agreed with HHS that AANA failed to establish this element of standing.

Fairly traceable. This element requires a showing that the defendants’ conduct caused the plaintiffs’ injuries. HHS argued that AANA cannot satisfy this element because the alleged injuries resulted from independent actions by third parties, the insurers, who are not before the court. AANA responded that if the court compels HHS to enforce the law, this will necessarily deter the insurance companies from violating it, which will inure to the AANA’s members. And that by failing to enforce the law, HHS has emboldened the insurers to violate it.

But as the court pointed out, in a case brought by an unregulated plaintiff alleging that a regulated defendant would act in response to government regulation, the plaintiff must show that the government has somehow coerced the regulated third-party to cause the injury, and that it is “likely” the regulated third-parties would respond to enforcement in predictable ways that would redress the plaintiffs’ injuries. Here, the court held that HHS’s mere failure to enforce the ACA Nondiscrimination Provision “is a distant cry” from cajoling or commanding the insurers to violate that statute. And unlike in a case AANA cited, the insurers have not admitted that they would respond to a sudden HHS enforcement of the ACA Nondiscrimination Provision by equalizing their reimbursement rates. Therefore, AANA failed to establish this element of standing as well.

Redressability. Because AANA was not asking the court to order HHS to enforce the ACA Nondiscrimination Provision specifically against the insurers, but instead to “enforce the law generally,” the court found that it was purely speculative that the relief requested would actually redress the injuries allegedly suffered by AANA members. How “general” enforcement would affect CRNAs was purely speculative, given the AANA’s allegations that discrimination was widespread across several industries. Moreover, even if enforcement were directed to the differing reimbursement rates as alleged by AANA, the insurers could respond by cutting physician rates rather than increasing CRNA rates, which would not help AANA members. This element of standing, therefore, failed too.

The case is No. 1:24-cv-01657-PAB.

Judge: Barker, P.

Attorneys: Mark J. Silberman (Benesch Friedlander Coplan & Aronoff LLP) for American Association of Nurse Anesthesiology. Ruchi Vikram Asher, Office of the U.S. Attorney, for U.S. Department of Health and Human Services.

Companies: American Association of Nurse Anesthesiology

Cases: Procedure Discrimination OhioNews