The case involves Richard Agag, a plastic and reconstructive surgeon who performed surgery on two Cigna-insured patients at Saint Mary's Hospital in Waterbury and Backus Hospital in Norwich, Connecticut. According to Agag's complaint, Cigna allowed payment of $0.00 on all five of his claims. After open negotiations failed, certified IDR entities ruled in Agag's favor on every claim, awarding a combined $142,567.99. Agag alleges Cigna did not pay within the statutory 30-day window and has still not paid.
Judge Stefan R. Underhill of the District of Connecticut confirmed all five awards and directed the clerk to enter judgment confirming the IDR awards in the amount of $142,567.99 for Agag and against Cigna. The ruling is the third from a District of Connecticut judge on whether a provider may seek federal court confirmation of an unpaid NSA IDR award. The first, Guardian Flight LLC v. Aetna Life Ins. Co., held that the NSA provides an implied private right of action for confirmation. The second, Axis Neuromonitoring, LLC v. Aetna Inc., held that neither the FAA nor the NSA provides any basis for federal court jurisdiction — largely agreeing with the Fifth Circuit's decision in Guardian Flight, L.L.C. v. Health Care Serv. Corp. Judge Underhill reached a third conclusion, distinct from both.
The opinion's central move is to separate confirmation from judicial review. The NSA states that IDR awards shall be binding and shall not be subject to judicial review except on the four grounds for vacating an award under 9 U.S.C. § 10(a). The Fifth Circuit read "judicial review" broadly enough to encompass enforcement actions. Judge Underhill rejected that reading, concluding that the Fifth Circuit erred by consulting the dictionary definition of "review" rather than the phrase Congress actually used — "judicial review" — in violation of the surplusage canon. Applying the Black's Law Dictionary definition of "judicial review," the opinion held that merely confirming a binding award does not constitute review of any court's or administrative body's factual or legal findings.
The opinion also rejected Cigna's argument that the NSA's administrative enforcement scheme — principally HHS's authority to impose civil monetary penalties — provides an adequate and exclusive remedy. Judge Underhill noted that civil monetary penalties under the NSA are $100 per day and are paid to the government, not the provider. In Agag's case, the IDR award for one patient alone was $97,500, meaning Cigna could theoretically pay the daily penalty 974 times over rather than ever paying Agag. The opinion held that an administrative remedy that does not lead to the provider being paid is not a remedy at all.
On the FAA, the court agreed with Cigna that Section 9 does not apply: there was no written arbitration agreement between Agag and Cigna, and Congress did not incorporate Section 9 into the NSA. But the court held that federal question jurisdiction exists independently under 28 U.S.C. § 1331 because Agag's claim arises on the face of a well-pleaded complaint alleging violation of a federal statute. The court further held that confirmation does not require a traditional private right of action because it is a summary proceeding — analogous to FAA confirmation or registration of a foreign judgment — that does not adjudicate new substantive rights. The court did dismiss Agag's separate damages claim, holding that the NSA creates no implied private right of action for monetary relief beyond confirmation.
Because Cigna never moved to vacate the awards and offered no evidence of fraud or misrepresentation, the cross-motion to confirm was granted in full.