Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 1 of 37
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` UNITED STATES DISTRICT COURT
` NORTHERN DISTRICT OF CALIFORNIA
` SAN JOSE, DIVISION
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`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
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`SALOOJAS INC, : CASE NO:
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` : CLASS ACTION COMPLAINT
` Plaintiff
` vs. :
` :
`AETNA HEALTH OF CALIFORNIA, INC :
` :
` Defendant. :
` _______________________________________ :_____
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` ORIGINAL CLASS ACTION
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` COMPLAINT
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`AND JURY DEMAND
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`Plaintiff Saloojas, Inc dba AFC Urgent Care of Newark, A California corporation,
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`(“Plaintiff”), brings this Original Complaint on its behalf of all others similarly
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`situated, by and through counsel, brings this action against Aetna Healthcare of
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`California (hereinafter referred to as AETNA). Plaintiff’s allegations herein are based
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`upon personal knowledge and belief as to his own acts and upon the investigation of
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`his counsel and information and belief as to all other matter.
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`TITLE OF DOCUMENT: CLASS ACTION COMPLAINT
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 2 of 37
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`INTRODUCTION
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` 1. This is a class action lawsuit brought against the Defendant Aetna Healthcare
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`of California by Plaintiff on behalf of itself and all and similarly situated individuals
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` 2. Plaintiff brings this action against the Defendant Aetna, hereinafter referred
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`to as Aetna, because it has unjusti(cid:976)iably engaged in unconscionable and fraudulent
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`conduct during the COVID-19 public health emergency period in order to evade and
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`circumvent its obligations to fully cover all Aetna Plan members’ COVID-19
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`diagnostic testing (“Covid Testing”) services and to reimburse Plaintiff, an out-of-
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`network (“OON”) laboratory, for bona (cid:976)ide Covid Testing services offered to these
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`same members in accordance with a Congressionally set methodology established and
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`supported by the Families First Coronavirus Response Act (the “FFCRA”), the
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`Coronavirus Aid, Relief, Economic Security Act (the “CARES Act”).
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` 3.
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` Plaintiff brings this action against the Defendant Aetna, hereinafter
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`referred to as Aetna, because it has unjusti(cid:976)iably engaged in unconscionable and
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`fraudulent conduct during the COVID-19 public health emergency period in order to
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`evade and circumvent its obligations to fully cover all Aetna Plan members’ COVID-
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`19 diagnostic testing (“Covid Testing”) services and to reimburse Plaintiff, an out-of-
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`network (“OON”) laboratory, for bona (cid:976)ide Covid Testing services offered to these
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`same members in accordance with a Congressionally set methodology established and
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`supported by the Families First Coronavirus Response Act (the “FFCRA”), the
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`Coronavirus Aid, Relief, Economic Security Act (the “CARES Act”)
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` 4. The importance of Covid Testing during a worldwide pandemic cannot be
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`overlooked as it is the best mitigation mechanism in place to identify and curtail the
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`TITLE OF DOCUMENT: CLASS ACTION COMPLAINT
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 3 of 37
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`spread of the COVID-19 virus. Due to the urgent need to facilitate the nation’s
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`response to the public health emergency posed by COVID-19, Congress passed the
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`FFCRA and the CARES Act to, amongst other things, address issues pertaining to the
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`costs of and access to Covid Testing during the COVID-19 pandemic.
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` 5. Aetna’s conduct (or lack thereof as it pertains to the Employer Plans) has
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`undermined national efforts made to mitigate the spread of the COVID-19 virus as it
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`has caused Plaintiff, and other similarly situated OON providers, to shutter specimen
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`collection and testing locations and to potentially stop offering Covid Testing services
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`altogether. Aetna’s misprocessing and denials of Covid Testing claims is nearing an
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`insurmountable (cid:976)inancial loss for Plaintiff and has caused Plaintiff to hemorrhage its
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`own funds to cover such (cid:976)inancial losses.
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` 6. Aetna has not only mis-adjudicated almost every single Covid Testing claim
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`submitted by Plaintiff on behalf of members of Aetna Plans and Employer Plans
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`administered by Aetna, but has, in fact, denied the vast majority of Covid Testing
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`claims that Plaintiff has submitted, the reasons for which are to be detailed
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`throughout the course of this Original Complaint.
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` 7. Aetna’s fraudulent behavior, in its capacity as an insurer and third-party
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`claims administrator, and its failures to oversee and regulate Aetna’s behavior (despite
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`being provided with notice and an opportunity to remedy Aetna’s behavior) has had a
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`material adverse effect on the nation’s response to the COVID-19 pandemic as it has
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`largely diminished access to testing, shifted (cid:976)inancial responsibility for the cost of
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`Covid Testing to the members of Aetna Plans and Employer Plans, and, in the event of
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`any future pandemics requiring the cooperation and the joint efforts of licensed
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`medical facilities and professionals (e.g. Plaintiff), providers who have fallen victim to
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`TITLE OF DOCUMENT: CLASS ACTION COMPLAINT
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 4 of 37
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`Aetna’s predatory practices will be hesitant and less likely to participate in any such
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`future Federal and/or State efforts. In turn, jeopardizing any future pandemic
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`responses.
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` 8.
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`Plaintiff has incessantly attempted to contact the Defendant Aetna to
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`inform it of its unlawful practices, has attempted to negotiate an agreed amount/rate
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`to be reimbursed for Covid Testing services with Aetna, and also has provided it notice
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`of its unlawful practices. However, all attempts by Plaintiff to amicably resolve this
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`matter have failed, and Plaintiff is now left with no other option than to (cid:976)ile this lawsuit
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`against the Defendant.
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` 9.
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`By way of this lawsuit, Plaintiff seeks to:
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` (i)
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`hold the Defendant Aetna accountable for its fraudulent and unlawful
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`practices, and Employer Plans responsible for their failures to monitor
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`and check Aetna on its practices despite being provided with notice of
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`such misconduct;
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` (ii)
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`ensure Plaintiff is properly reimbursed for its efforts to provide a public
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`service in response to the COVID-19 public health emergency; and
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` (iii)
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`act as a safeguard against future unlawful practices instituted by Aetna,
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`Employer Plans, and other insurers and health plans in the event of other
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`national public health emergencies.
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` NATURE OF
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` THE CLAIMS
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` 10.
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`The Plaintiff conducts and renders Covid Diagnostic Testing Services
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`Therefore, Plaintiff as a medical facility and provider has all authorizations and/or
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`approvals necessary to render and be reimbursed for Covid Testing services.3 During
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`the pandemic Plaintiff has operated seven specimen collection sites.
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 5 of 37
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` 11.
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`Aetna provides health insurance and/or bene(cid:976)its to members of Aetna
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`Plans pursuant to a variety of health bene(cid:976)it plans and policies of insurance, including
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`employer- sponsored bene(cid:976)it plans and individual health bene(cid:976)it plans.
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` 12.
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`Under ordinary circumstances, not all health plans insured or
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`administered by Aetna offer its members with access to OON providers and facilities.
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`However, pursuant to Section 6001 of the FFCRA, as amended by Section 3201 of the
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`CARES Act, all group health plans and health insurance issuers offering group or
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`individual health insurance coverage are required to provide bene(cid:976)its for certain items
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`and services related to diagnostic testing for the detection or diagnosis of COVID-19
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`without the imposition of cost-sharing, prior authorization or other medical
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`management requirements
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` when such items or services are furnished on or after
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`March 18, 2020, for the duration of the COVID-19 public health emergency regardless
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`of whether the Covid Testing provider is an in-network or OON provider.
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`13.
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`Furthermore, Section 3202(a) of the CARES Act provides that all group
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`health plans and health insurance issuers covering Covid Testing items and services, as
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`described in Section 6001 of the FFCRA must reimburse OON providers in an amount
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`that equals the cash price for such Covid Testing services as listed by the OON provider
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`on its public internet website or to negotiate a rate/amount to be paid that is less than
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`the publicized cash price.
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` 14.
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`Aetna has intentionally disregarded its obligations to comply with its
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`requirements to cover Covid Testing services without the imposition of cost-sharing
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`and other medical management requirements pursuant to Section 6001 of the FFCRA
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`and, in the instances Plaintiff is reimbursed for its Covid Testing services, has failed to
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 6 of 37
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`reimburse Plaintiff in accordance with Section 3202(a) of the CARES Act. These
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`violations are made to (cid:976)inancially bene(cid:976)it Aetna and, by acting in its own self-interests,
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`has also caused the Employer Plans to be in violation of the FFCRA, the CARES Act,
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`Employee Retirement Income Security Act of 1974 (“ERISA”), and applicable State law.
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`15.
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`Aetna has set up complex processes and procedures:
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`(i)
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`to deny or underpay claims for arbitrary reasons;
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`(ii)
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`to force Plaintiff into a paperwork war of attrition in hopes of wearing
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`down Plaintiff to the point of collapse through continuous inundation of
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`Plaintiff’s (cid:976)inancial and operational resources
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` (iii) that have turned Aetna’s internal administrative appeals procedures into
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` kangaroo court where facts and law have no relevance, thus, rendering the
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` administrative appeals process functionally meritless;
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` (iv) to disinform its members, the Employer Plans and other self-funded health
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` plans that it administers, Plaintiff and other similarly situated OON
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` providers, the general public, and Federal and State regulators of
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` its obligations to adjudicate Covid Testing claims in accordance with
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` the FFCRA and the CARES Act; and
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` (v) to ultimately engage in unscrupulous and fraudulent conduct for its
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` own (cid:976)inancial bene(cid:976)it during this public health emergency.
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` 16. Aetna’s schemes and misconduct also violate the Racketeer In(cid:976)luenced and
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`Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). Aetna has engaged in a
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`pattern of racketeering activity that includes, but may not be limited to, the
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 7 of 37
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`embezzlement and/or conversion of welfare funds and the repeated and continuous
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`use of mails and wires in the furtherance of multiple schemes to defraud as detailed
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`through this Original Complaint.
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` PARTIES
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` 17. Plaintiff Saloojas, inc dba AFC Urgent Care of Newark is a corporation
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`organized under the laws of the State of California, with its company headquarters
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`located at 1563 Stevenson Blvd, Newark, CA 94560 Plaintiff has lawful standing to
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`bring in all claims asserted herein.
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` 18. Defendant Aetna is a California corporation doing business in this district.
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` JURISDICTION AND VENUE
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` 19. This Court has federal question subject matter jurisdiction over this matter
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`pursuant to 28 U.S.C. § 1131, as Plaintiff asserts federal claims against Aetna and
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`Employer Plans in Counts I and II, under the FFCRA, the CARES Act, and ERISA.
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` 20. This Court also has federal question subject matter jurisdiction over this
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`matter pursuant to 28 U.S.C. § 1131, as Plaintiff asserts federal claims against Aetna in
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`Count III, under RICO.
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` 21. This Court also has supplemental jurisdiction over Plaintiff’s state law claims
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`against Aetna, in Counts V, VI, VII, VIII, and IX because these claims are so related to
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`Plaintiff’s federal claims that the state law claims form a part of the same case or
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`controversy under Article III of the United States Constitution. The Court has
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`supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367(a).
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` 22. Venue is appropriate in this Court under 28 U.S.C. § 1391(b)(2) because a
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`substantial portion of the events giving rise to this action arose in this District.
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 8 of 37
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` CL ASS ACTION ALLEGATIONS
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` 23.
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`This action is brought, and may properly proceed, as a class action,
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`pursuant to Rule 23(a) and 23(b)(2) and (3) of the Federal Rules of Civil Procedure.
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`Plaintiff seeks certi(cid:976)ication of a Class de(cid:976)ined as follows:
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` Nationwide Class:
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`24. All persons, businesses and entities who were and are out of network
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`providers of Covid testing services and covered by the CARES and FFRCA ACTs for
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`payment by Aetna of their posted prices for rendered Covid Testing services to the
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`Defendant Aetna’s insured
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`25. Plaintiff reserves the right to modify, change, or expand the class
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`de(cid:976)initions if discovery and/or further investigation reveal that they should be
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`expanded or otherwise modi(cid:976)ied.
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`26.
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`Numerosity: The Class is so numerous that joinder of all members is
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`impracticable. While the exact number and identities of individual members of the
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`Class is unknown at this time, Plaintiff believes, and on that basis allege, that at least
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`tens of thousands of persons exist who are out of network providers to the insured of
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`the Defendant each of whom could (cid:976)ile a similar Complaint to this one (cid:976)iled herein for
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`the thousands of unpaid and under paid rendered Covid Testing services cases which
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`it has.
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` 27.
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`Existence/Predominance of Common Questions of Fact and Law:
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`Common questions of law and fact exist as to all members of the Class. These
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`questions predominate over the questions affecting individual Class members. These
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`common legal and factual questions include, but are not limited to:
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` (a)
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`Does the FFRCA and CARES ACT apply to the Defendant Aetna?
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 9 of 37
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`(b) Are the following charges valid COVID Testing fees under the CARES Act?
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` (i) the doctor Covid medical visit CPT 99203,
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` (ii) the additional urgent care walkin charge CPT CODE S9088,
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` (iii) the patient optional Covid swab collection fee CPT CODE G2023 and
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` (iv) the patient optional fee for the emergency Covid protective equipment
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` CPT CODE 99072.
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` (c) can the Defendant Aetna shift the payment for the above (b)(1-iv) service
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` to their insured as their responsibility?
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` (d) if the (b) (1-iv) services are COVID testing services, is it the responsibility of
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` the Defendant Aetna to pay their posted prices under the CARERS ACT?
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` 28.
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`Typicality: Plaintiff’s claims are typical of the claims of the Class and Class
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`members were injured in the same manner by Defendant’s uniform course of conduct alleged
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`herein. Plaintiff and all Class members have the same claims against defendant
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`relating to the conduct alleged herein, and the same events giving rise to Plaintiff’s
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`claims for relief are identical to the giving rise to the claims of all Class Members.
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` 29. Adequacy: Plaintiff is an adequate representative for the Class because its
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`interests do not con(cid:976)lict with the interests of the Class that he seeks to represent.
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`Plaintiff has retained counsel competent and highly experienced in complex litigation
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`and they intend to prosecute this action vigorously. The interests of the
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`Class will be fairly and adequately protected by Plaintiff and his counsel.
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` 30.
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`Superiority: A class action is superior to all other available means of fair
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`and ef(cid:976)icient adjudication of the claims of Plaintiff and members of the Class. The
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 10 of 37
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`injury suffered by each individual Class member is relatively small in comparison to
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`the burden and expense of individual prosecution of the complex and extensive
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`litigation necessitated by Defendant’s conduct. It would be virtually impossible for
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`members of the Class individually to redress effectively the wrongs done to them by
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`Defendant. Even if Class members could afford such individual litigation, the court
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`system could not. Individualized litigation presents a potential for inconsistent or
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`contradictory judgments. Individualized litigation increases the delay and expense to
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`all parties, and to the court system, presented by the complex legal and factual issues
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`of the case. By contrast, the class action device presents far fewer management
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`dif(cid:976)iculties, and provides the bene(cid:976)its of single adjudication, an economy of scale, and
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`comprehensive supervision by a single court. Upon information and belief, members
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`of the Class can be readily identi(cid:976)ied and noti(cid:976)ied.
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` 31 Defendant has acted, and refuses to act, on grounds generally applicable to the
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`Class, hereby making appropriate (cid:976)inal equitable and injunctive relief with respect to
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`the Class as as a whole.
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` BACKGROUND AS
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` TO THE FFCRA AND THE
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` CARES
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` ACT
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` 32.
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`Pursuant to Section 319 of the Public Health Service Act, on January 31,
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`2020, the Secretary of Health and Human Services (“HHS”) issued a determination that
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`a Public Health Emergency exists and has existed as of January 27, 2020, due to
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`con(cid:976)irmed cases of COVID-19 being identi(cid:976)ied in this country.7
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` 33.
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`On March 13, 2020, the President issued Proclamation 9994 declaring a
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`National Emergency concerning the COVID-19 outbreak with a determination that a
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`national emergency exists nationwide, pursuant to Section 501(b) of the Robert T.
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`Stafford Disaster Relief and Emergency Assistance Act.
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 11 of 37
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` 34.
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`To facilitate the nation’s response to the COVID-19 pandemic, Congress
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`passed the FFCRA and the CARES Act to, amongst other things, require group health
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`plans and health insurance issuers offering group or individual health insurance
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`coverage to:
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` (i)
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`provide bene(cid:976)its for certain items and services related to diagnostic
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`testing for
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`the
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`detection or diagnosis of COVID- 19 without the
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`imposition of any cost-sharing requirements (i.e.
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` deductibles,
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`
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`copayments, and coinsurance) or prior authorization or other
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`medical management
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` requirements
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` ;8 and
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` (ii)
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`to reimburse any provider for COVID-19 diagnostic testing an amount
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`that equals the negotiated rate or, if the plan or issuer does not have a
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`negotiated rate with the provider (e.g. Plaintiff), the cash price for such
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`service that is listed by the provider on its public website in accordance
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`with 45 CFR § 182.40.
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` 35. To further clarify to issuers and health plans their legal expectations when
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`processing a claim for Covid Testing in accordance with the FFCRA and the CARES
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`Act, the Department of Labor (“DOL”), the Department of Health and Human Services
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`(“HHS”), and the Department of the Treasury (the “Treasury”) (collectively, the
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`“Departments”) jointly prepared and issued a series of Frequently Asked Questions
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`(“FAQs”) to address any stakeholder questions or concerns pertaining to the proper
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`adjudication of Covid Testing claims. The following FAQs summarize
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` the
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` health plan
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` paying for
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 12 of 37
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`
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`The Departments FAQ, Part 42, Q1: Which types of group health plans and
`health insurance coverage are subject to section 6001 of the FFCRA, as amended
`by section 3201 of the CARES Act?
`
`Section 6001 of the FFCRA, as amended by section 3201 of the CARES Act,
`applies to group health plans and health insurance issuers offering group or
`individual health insurance coverage (including grandfathered health plans as
`de(cid:976)ined in section 1251(e) of the Patient Protection and Affordable Care). The
`term “group health plan” includes both insured and self-insured group health
`plans. It includes private employment-based group health plans (ERISA
`plans), non-federal governmental plans (such as plans sponsored by states
`and local governments), and church plans.
`
`“Individual health insurance coverage” includes coverage offered in the
`individual market through or outside of an Exchange, as well as student health
`insurance coverage (as de(cid:976)ined in 45 CFR 147.145).1
`
`The Departments FAQ, Part 42, Q3: What items and services must plans and
`issuers provide bene(cid:980)its for under section 6001 of the FFCRA?
`
`Section 6001(a) of the FFCRA, as amended by Section 3201 of the CARES Act,
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`requires plans and
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`
` issuers to provide
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` coverage
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` for
`
` the following items and
`services:
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`(1) An in vitro diagnostic test as de(cid:976)ined in section 809.3 of the title 21,
`Code of Federal Regulations, (or its successor regulations) for the detection of
`SARS-CoV-2 or the diagnosis of COVID-19, and the administration of such a
`test, that - …
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`B. The developer has requested, or intends to request, emergency
`use authorization under section564 of the Federal Food, Drug, and Cosmetic
`Act (21 U.S.C. 360bbb-3), unless and until the emergency use authorization
`request under such section 564 has been denied or the developer of such test
`does not submit a request under such section within a reasonable time frame;
`…2
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`1 See https ://www.
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`2 Id.
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` .gov/(cid:976)iles/document/FFCRA-Part-42-FAQs.pdf
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 13 of 37
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`The Departments FAQ, Part 42, Q6: May a plan or issuer impose any cost-sharing
`requirements, prior authorization requirements, or other medical management requirements for
`bene(cid:980)its that must be provided under section 6001(a) of the FFCRA, as amended by section 3201
`of the CARES Act?
`
`No. Section 6001(a) of the FFCRA provides that plans and issuers shall not
`impose any cost-sharing requirements (including deductibles, co-payments,
`and coinsurance), prior authorization requirements, or other medical
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`management requirements for these items and services. These items
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` and
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`services must be covered without cost sharing when medically appropriate
`for the individual, as determined by the individual’s attending healthcare
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` .3
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`provider in accordance with accepted standards of current
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` medical
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` practice
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`The Departments FAQ, Part 42, Q7: Are plans and issuers required to provide
`coverage for items and services that are furnished by providers that have not
`agreed to accept a negotiated rate as payment in full (i.e., out-of-network
`providers)?
`
`Yes. Section 3202(a) of the CARES Act provides that a plan or issuer providing
`coverage of items and services described in section 6001(a) of the FFCRA
`shall reimburse the provider of the diagnostic testing as follows: …
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`2. If the plan or issuer does not have a negotiated rater with such
`provider, the plan or issuer shall reimburse the provider in an amount that
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`equals the cash price for such service as listed by the provider on
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` a public
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`internet website,
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` or
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` the plan or issuer may
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` negotiate
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` a rate
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` with
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` the
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` provider
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`for less than such cash price…4
`
`The Departments FAQ, Part 43, Q9: Does Section 3202 of the CARES Act
`protect participants, bene(cid:980)iciaries, and enrollees from balance billing for a
`COVID-19 diagnostic test?
`
`The Departments read the requirement to provide coverage without cost
`sharing in section 6001 of the FFCRA, together with section 3202(a) of the
`CARES Act establishing a process for setting reimbursement rates, as intended
`to protect participants, bene(cid:976)iciaries, and enrollees from being balance billed
`for an applicable COVID-19 test. Section 3202(a) contemplates that a provider
`of COVID-19 testing will be reimbursed either a negotiated rate or an amount
`that equals the cash price for such service that is listed by the provider on a
`public website. In either case, the amount the plan or issuer reimburses the
`provider constitutes payment in full for the test, with no cost sharing to the
`individual or other balance due. Therefore, the statute generally precludes
`balance billing for COVID-19 testing. However, section 3202(a) of the CARES
`Act does not preclude balance billing for items and services not subject to
`section 3202(a), although balance billing may be prohibited by applicable
`state law and other applicable contractual agreements.5
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`4 Id.
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`5 See https ://www.
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` cms
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` .gov/(cid:976)iles/document/FFCRA-Part-43-FAQs.pdf
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` ; See also FAQ Part 43
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`Case 5:22-cv-02887-NC Document 1 Filed 05/16/22 Page 14 of 37
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`Q12: … Because the Departments interpret the provisions of section 3202 of the CARES Act as
`specifying a rate that generally protects participants, bene(cid:976)iciaries, and enrollees from balance
`billing for a COVID-19 test (see Q9 above), the requirement to pay the greatest of three
`amounts under the regulations implementing section 2719A of the PHS Act is superseded by
`the requirements of section 3202(a) of the CARES Act with regard to COVID-19 diagnostic
`tests that are out-of- network emergency services. For these services, the plan or issuer must
`reimburse an out-of-network provider of COVID-19 testing an amount that equals the cash
`price for such service that is listed by the provider on a public website, or the plan or issuer
`may negotiate a rate that is lower than the cash price.
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`
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`The Departments FAQ, Part 44, Q1 : Under the FFCRA, can plans and issuers
`
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`use medical screening
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` criteria
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` to deny
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` (or
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` impose cost
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` sharing
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` on)
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` a claim
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` for
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`COVID-19 diagnostic
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` testing
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` for
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` an asymptomatic person who has no
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` known
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` or
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`
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`suspected exposure to COVID-19?
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`No. The FFCRA prohibits plans and issuers from imposing medical
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`management, including speci(cid:976)ic
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` medical
`
` screening
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` criteria,
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` on
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` coverage
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`of COVID-19 diagnostic
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` testing. Plans and issuers cannot require the
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`presence of symptoms or a recent known or suspected exposure, or otherwise
`impose medical screening criteria on coverage of tests.
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`When an individual seeks and receives a COVID-19 diagnostic test from a
`licensed or authorized health care provider, or when a licensed or authorized
`health care provider refers an individual for a COVID-19 diagnostic test, plans
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`and issuers generally must assume that the receipt of the test re(cid:976)lects an
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`“individualized clinical
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` assessment”
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` and
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` the test should
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` be
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` covered without
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`cost
`sharing, prior authorization, or other medical management
`requirements.6
`
`The Departments FAQ, Part 44, Q3: Under the FFCRA, are plans and issuers
`required to cover COVID-19 diagnostic tests provided through state- or locality-
`administered testing sites?
`
`Yes. As stated in FAQs Part 43, Q3, any health care provider acting within the
`scope of their license or authorization can make an individualized clinical
`assessment regarding COVID-19 diagnostic testing. If an individual seeks and
`receives a COVID-19 diagnostic test from a licensed or authorized provider,
`including from a state- or locality-administered site, a “drive through” site,
`and/or a site that does not require appointments, plans and issuers generally
`must assume that the receipt of the test re(cid:976)lects an “individualized clinical
`assessment.”7
`
`The Departments FAQ, Part 44, Q5: What items and services are plans and
`issuers required to cover associated with COVID-19 diagnostic testing? What
`steps should plans and issuers take to help ensure compliance with these
`requirements?
`
`… Plans and issuers should maintain their claims processing and other
`information technology systems in ways that protect participants,
`bene(cid:976)iciaries, and enrollees from inappropriate cost sharing and should
`document any steps that they are taking to do so…8
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`Case 5:22-cv-02887-N