Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 1 of 37
`Case 5:22-cv-03269 Document1 Filed 06/03/22 Page 1 of 37
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE, DIVISION
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`SALOOJASINC,
`
`: CASE NO:
`
`Plaintiff
`vs.
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`: CLASS ACTION COMPLAINT
`
`BLUE CROSS OF CALIFORNIA,INC
`
`Defendant.
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`ORIGINAL CLASS ACTION COMPLAINT
`
`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 Blue Cross Healthcare of
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`California, Inc (hereinafter referred to as Blue Cross). Plaintiffs allegations herein are
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`based upon personal knowledge and belief as to his own acts and upon the
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`investigation of his counsel and information andbeliefas to all other matter.
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`TITLE OF DOCUMENT: CLASS ACTION COMPLAINT
`PAGENO 1 OF
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 2 of 37
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`INTRODUCTION
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`1.
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`This is a class action lawsuit brought against the Defendant Blue Cross of
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`California by Plaintiff on behalf of itself and all and similarly situated individuals
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`2.
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`Plaintiff brings this action against the Defendant BlueCross, hereinafter
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`referred to as Blue Cross, because it has unjustifiably engaged in unconscionable and
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`fraudulent conduct during the COVID-19 public health emergencyperiod in orderto
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`evade and circumventits obligations to fully cover all Blue Cross Plan members’
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`COVID-19 diagnostic testing (“Covid Testing”) services and to reimbursePlaintiff, an
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`out-of-network (“OON”) laboratory, for bona fide Covid Testing services offered to
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`these same members in accordance with a Congressionally set methodology
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`established and supported by the Families First Coronavirus Response Act (the
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`“FFCRA”), the CoronavirusAid, Relief, Economic Security Act (the “CARES Act”).
`
`3.
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`Plaintiff brings this action against the Defendant Blue Cross, hereinafter
`
`referred to as Blue Cross, because it has unjustifiably engaged in unconscionable and
`
`fraudulent conduct during the COVID-19 public health emergencyperiod in orderto
`
`evade and circumventits obligations to fully cover all Blue Cross Plan members’
`
`COVID-19 diagnostic testing (“Covid Testing”) services and to reimbursePlaintiff, an
`
`out-of-network (“OON”) laboratory, for bona fide Covid Testing services offered to
`
`these same members in accordance with a Congressionally set methodology
`
`established and supported by the Families First Coronavirus Response Act (the
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`“FFCRA”), the CoronavirusAid, Relief, Economic Security Act (the “CARES Act”)
`
`4,
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`The importance of Covid Testing during a worldwide pandemic cannot be
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`overlookedasit is the best mitigation mechanism in placeto identify and curtail the
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 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 CARESAct 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.
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`Blue Cross’s conduct(or lack thereof as it pertains to the Employer Plans) has
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`underminednational efforts made to mitigate the spread of the COVID-19 virusasit
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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. Blue Cross’s misprocessing and denials of Covid Testing claims is nearing
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`an insurmountable financial loss for Plaintiff and has caused Plaintiff to hemorrhage
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`its own fundsto cover such financial losses.
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`6.
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`Blue Cross has not only mis-adjudicated almost every single Covid Testing
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`claim submitted by Plaintiff on behalf of members of Blue Cross Plans and Employer
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`Plans administered by Blue Cross, but has, in fact, denied the vast majority of Covid
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`Testing 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.
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`Blue Cross’s fraudulent behavior, in its capacity as an insurer andthird-
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`party claims administrator, and its failures to oversee and regulate Blue Cross’s
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`behavior (despite being provided with notice and an opportunity to remedy Blue
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`Cross’s behavior) has had a material adverse effect on the nation’s response to the
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`COVID-19 pandemic as it has largely diminished access to testing, shifted financial
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`responsibility for the cost of Covid Testing to the members of Blue Cross Plans and
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`Employer Plans, and, in the event of any future pandemics requiring the cooperation
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`and the joint efforts of licensed medical facilities and professionals (e.g. Plaintiff),
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`providers whohavefallen victim to Blue Cross’s predatory practices will be hesitant
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`andless likely to participate in any such future Federal and/orState efforts. In turn,
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`jeopardizing any future pandemic responses.
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`8.
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`Plaintiff has incessantly attempted to contact the Defendant Blue Cross
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`to inform it of its unlawful practices, has attempted to negotiate an agreed
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`amount/rate to be reimbursed for Covid Testing services with Blue Cross, and also has
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`provided it notice of its unlawful practices. However, all attempts by Plaintiff to
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`amicably resolve this matter havefailed, and Plaintiff is now left with no other option
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`thanto file this lawsuit against the Defendant.
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`9.
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`By wayofthis lawsuit, Plaintiff seeksto:
`
`(i)
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`hold the Defendant Blue Cross accountable for its fraudulent and
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`unlawful practices, and EmployerPlans responsiblefor their failures to
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`monitor and check Blue Cross on its practices despite being provided
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`with notice of such misconduct;
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`(ii)
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`ensurePlaintiff is properly reimbursedforits 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 Blue
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`Cross, Employer Plans, and other insurers and health plans in the event
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`of other national public health emergencies.
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`NATURE OF 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.’ During
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`the pandemic Plaintiff has operated seven specimen collectionsites.
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 5 of 37
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`1
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`Blue Cross provides health insurance and/or benefits to members of
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`Blue Cross Plans pursuantto a variety of health benefit plans and policies of insurance,
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`including employer- sponsored benefit plans andindividual health benefit plans.
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`12.
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`Under ordinary circumstances, not
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`all health plans
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`insured or
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`administered by Blue Cross offer its members with access to OON providers and
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`facilities. However, pursuant to Section 6001 of the FFCRA, as amended bySection
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`3201 of the CARESAct, all group health plans and health insurance issuers offering
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`group or individual health insurance coverage are required to provide benefits for
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`certain items and services related to diagnostic testing for the detection or diagnosis
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`of COVID-19 without the imposition of cost-sharing, prior authorization or other
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`medical management requirements when such itemsor services are furnished on or
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`after March 18, 2020, for the duration of the COVID-19 public health emergency
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`regardless of whetherthe Covid Testing provideris 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 andservices, 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/amountto be paid thatis less than
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`the publicized cash price.
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`14.
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`Blue Cross has intentionally disregarded its obligations to comply withits
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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 pursuantto Section 6001 of the FFCRA
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`and, in the instancesPlaintiff is reimbursed for its Covid Testing services, has failed to
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`reimburse Plaintiff in accordance with Section 3202(a) of the CARES Act. These
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`violations are madeto financially benefit Blue Cross and, by acting in its ownself-
`
`interests, has also caused the Employer Plans to be in violation of the FFCRA, the
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`CARES Act, Employee Retirement
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`Income Security Act of 1974 (“ERISA”), and
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`applicable State law.
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`15.
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`Blue Crosshasset up complexprocesses and procedures:
`
`(i)
`
`to deny or underpayclaimsfor arbitrary reasons;
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`(ii)|to force Plaintiff into a paperwork warof attrition in hopes of wearing
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`downPlaintiff to the point of collapse through continuous inundation of
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`Plaintiffs
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`financial and operational resources
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`(iii)
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`that have turned Blue Cross’s internal administrative appeals procedures
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`into kangaroo court wherefacts and law havenorelevance,thus,
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`rendering the administrative appeals process functionally meritless;
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`(iv)
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`to disinform its members, the Employer Plans and otherself-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 CARESAct; and
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`(v)
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`toultimately engage in unscrupulousand fraudulent conductforits
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`ownfinancial benefit during this public health emergency.
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`16.
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`Blue Cross’s schemes and misconduct also violate the Racketeer Influenced
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`and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). Blue Cross has
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`engaged in a pattern of racketeering activity that includes, but may notbe limited to,
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`the 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 schemesto defraud as detailed
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`through this Original Complaint.
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`PARTIES
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`17.
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`Plaintiff Saloojas, inc dba AFC Urgent Care of Newarkis 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.
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`Defendant Blue Cross is a California corporation doing businessin this
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`district.
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`[URISDICTION AND VENUE
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`19.
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`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 Blue Cross and
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`Employer Plans in Counts! and II, under the FFCRA, the CARES Act, and ERISA.
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`20.
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`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 Blue
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`Cross in CountIII, under RICO.
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`21.
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`This Court also has supplemental jurisdiction over Plaintiffs state law claims
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`against Blue Cross, becausetheseclaimsare so related to Plaintiffs federal claims that
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`the state law claims form a part of the same case or controversy underArticle III of the
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`United States Constitution. The Court has supplementaljurisdiction over these claims
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`pursuantto 28 U.S.C. § 1367(a).
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`22.
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`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 givingrise to this action arosein this District.
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`CLASS 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 certification of a Class defined as follows:
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`NationwideClass:
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`24.
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`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 ACTsfor
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`paymentbyBlueCross of their posted prices for rendered Covid Testing services to
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`the Defendant Blue Cross’s insured
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`25.
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`Plaintiff reserves the right to modify, change, or expand
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`the class
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`definitions if discovery and/or further investigation reveal
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`that they should be
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`expanded or otherwise modified.
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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 andidentities of individual membersof the
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`Class is unknownatthis time,Plaintiff believes, and on that basis allege, that at least
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`tens of thousandsof persons exist whoare out of network providers providing Covid
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`testing Services to the insured of the Defendant each of whom couldfile a similar
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`Complaintto this onefiled herein.
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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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`commonlegal and factual questions include, but are not limited to:
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`(a)
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`Does the FFRCA and CARESACTapply to the Defendant Blue Cross?
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`(b)
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`Are the following charges valid COVID Testing fees under the CARES Act?
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`(i)
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`the doctor Covid medical visit CPT 99203,
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`(ii)
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`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)
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`the patient optional fee for the emergency Covid protective equipment
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`CPT CODE 99072.
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`(c)
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`can the DefendantBlue Cross shift the paymentfor the above (b)(1-iv)
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`service to their insuredas their responsibility?
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`(d)
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`ifthe (b) (1-iv) services are COVID testing services,is it the responsibility of
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`the Defendant BlueCrossto pay their posted prices under the CARES ACT?
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`28.
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`Typicality: Plaintiffs claims are typical of the claims of the Class and Class
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`memberswereinjured in the same mannerby Defendant's uniform course of conductalleged
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`herein. Plaintiff and all Class members have the same claims against defendant
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`relating to the conductalleged herein, and the same events givingrise to Plaintiff's
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`claims for relief are identical to the givingrise to the claimsof all Class Members.
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`29.
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`Adequacy:Plaintiff is an adequate representative for the Class becauseits
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`interests do not conflict with the interests of the Class that he seeks to represent.
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`Plaintiff has retained counsel competent and highly experienced in complexlitigation
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`and they intend to prosecute this action vigorously. The interests of
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`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 meansoffair
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`and efficient adjudication of the claims of Plaintiff and membersof the Class. The
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`injury suffered by each individual Class memberis 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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`membersofthe 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.
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`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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`difficulties, and provides the benefits 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 bereadily identified and notified.
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`31
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`Defendant has acted, and refuses to act, on grounds generally applicable to the
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`Class, hereby making appropriate final equitable and injunctive relief with respect to
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`the Class as as a whole.
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`BACKGROUNDAS TO THE FFCRA AND THE CARES 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 HumanServices (“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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`confirmed cases of COVID-19 being identified in this country.
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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 RobertT.
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`Stafford Disaster Relief and EmergencyAssistanceAct.
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`34.
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`To facilitate the nation’s response to the COVID-19 pandemic, Congress
`
`passed the FFCRA and the CARESAct to, amongstother things, require group health
`
`plans and health insurance issuers offering group or individual health insurance
`
`coverageto:
`
`(i)
`
`provide benefits for certain items and services related to diagnostic
`
`testing for
`
`the
`
`detection or diagnosis of COVID- 19 without the
`
`imposition of any cost-sharing
`
`requirements
`
`(ie.
`
`deductibles,
`
`copayments, and coinsurance) or prior authorization or other
`
`medical management requirements; and
`
`(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(eg. Plaintiff), the cash price for such
`
`service thatis listed by the provider on its public website in accordance
`
`with 45 CFR § 182.40.
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`35. To furtherclarify 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
`
`Act, the Departmentof Labor (“DOL”), the Department of Health and HumanServices
`
`(“HHS”), and the Department of the Treasury (the “Treasury”)
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`(collectively,
`
`the
`
`“Departments”) jointly prepared and issued a series of Frequently Asked Questions
`
`(“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 the health
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`plan and issuers’ obligations as it pertains to covering and paying for Covid
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`Testing services during the public health emergency:
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`The Departments FAQ, Part 42, Q1: Which types ofgroup 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 amendedby 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 defined in section 1251(e) of the Patient Protection and
`Affordable Care). The term “group health plan” includes both insured andself-
`insured group health plans. It includes private employment-based group
`health plans (ERISA plans), non-federal governmental plans (such as plans
`sponsoredbystates and local governments), and church plans.
`
`“Individual health insurance coverage” includes coverage offered in the
`individual market throughor outside of an Exchange, as well as student health
`insurance coverage(as defined in 45 CFR 147.145).’
`
`The Departments FAQ, Part 42, Q3: Whatitems and services must plans and
`issuers provide benefitsfor under section 6001 of the FFCRA?
`
`Section 6001(a) of the FFCRA, as amendedby Section 3201 of the CARESAct,
`requires plans and issuers to provide coverage for the following items and
`services:
`
`(1) An in vitro diagnostic test as defined 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- ...
`
`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 developerof such test
`does not submit a request under such section within a reasonable time frame;
`2
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`23|"1Seehttps://www.cms.gov/files /document/FFCRA-Part-42-FAQs.pdf.
`34
`2 Id.
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 13 of 37
`Case 5:22-cv-03269 Document1 Filed 06/03/22 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 requirementsfor
`benefits that must be provided undersection 6001 (a) of the FFCRA, as amendedbysection 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
`management requirements for these items and services. These items and
`services must
`_be covered without cost sharing when medically
`appropriate for the individual, as determined by the individual’s
`attending healthcare provider in accordance with accepted standardsof
`current medical practice.’
`
`The Departments FAQ,Part 42, Q7: Are plans and issuers required to provide
`coveragefor 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 CARESAct providesthat a plan or issuer providing
`coverage of items and services described in section 6001(a) of the FFCRA
`shall reimbursethe providerof the diagnostic testing as follows:...
`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 amountthat
`equals the cash price for such service as listed by the provider on a public
`internet website, or the plan or issuer may negotiate a rate with the provider
`for less than such cashprice...’
`
`The Departments FAQ, Part 43, Q9: Does Section 3202 of the CARES Act
`protect participants, beneficiaries, 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
`CARESAct establishing a process for setting reimbursementrates, as intended
`to protect participants, beneficiaries, and enrollees from being balancebilled
`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 amountthat equals the cash price for such service thatis listed by
`the provider on a public website. In either case, the amount the plan or
`issuer reimburses the provider constitutes paymentin 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.”
`
`3 Id.
`“Id.
`5 See https://www.cms.gov/files /document/FFCRA-Part-43-FAQs.pdf; See also FAQ Part 43
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 14 of 37
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`Q12: ... Because the Departments interpretthe provisions of section 3202 of the CARES Act as
`specifying a rate that generally protects participants, beneficiaries, and enrollees from balance
`billing for a COVID-19 test (see Q9 above), the requirement to pay the greatest of three
`amounts underthe 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 thatis listed by the provider on a public website, or the plan or issuer
`may negotiate a rate that is lower than the cash price.
`
`The Departments FAQ, Part 44, Q1: Under the FFCRA, can plans and
`issuers use medical screening criteria to deny (or impose cost sharing on)
`a claim for COVID-19 diagnostic testing for an asymptomatic person who
`has no known or suspected exposure to COVID-19?
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`No. The FFCRA prohibits plans and issuers from imposing medical
`management,
`including specific medical screening criteria, on
`coverage of COVID-19 diagnostic testing. Plans and issuers cannot
`require the presence of symptomsor a recent known or suspected exposure,
`or otherwise impose medical screening criteria on coverageoftests.
`
`Whenan 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
`and issuers generally must assume that the receipt of the test reflects an
`“individualized clinical assessment” and the test should be covered without
`cost sharing, prior authorization, or other medical management requirements.
`
`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 assumethat the receipt of the test reflects an “individualized clinical
`assessment.”
`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,
`beneficiaries, and enrollees from inappropriate cost sharing and should
`documentanystepsthat they are taking to doso...°
`°See https:
`//www.cms.gov/files/document/faqs-part-44.pdf.
`7 Id.
`8 Id.
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 15 of 37
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`36. To supplement the FAQs publicized by the Departments, the Internal
`
`Revenue Service (the “IRS”) issued Notice 2020-15 pertaining to high deductible
`
`health plans (“HDHPs”) and expensesrelated to COVID-19 to provide members of
`
`HDHPs
`
`(including those HDHPs insured or administered by Blue Cross)
`
`the
`
`confidence that Covid Testing will be covered,in full, by their HDHP. Notice 2020-15
`
`states as follows:
`
`FACTUAL ALLEGATIONS COMMONTO ALL COUNTS
`
`The CARES ACT
`
`37.
`
`Congress in early 2020 when the COVID pandemic wasjuststarting
`
`wanted to be surethat all Americans had access to COVID Testing Services. Congress
`
`passedthe federal Cares Act Covid testing provisions, which are set forth below:
`
`SEC. 6001. COVERAGE OF TESTING FOR COVID-19.
`
`(a)
`
`IN GENERAL.—Agrouphealth plan and a health insuranceissuer
`offering group or individual health insurancecoverage... shall
`provide coverage, and shall not impose anycostsharing(including
`deductibles, copayments, and coinsurance) requirementsor prior
`authorization or otherr medical management requirements,for the
`following items andservices furnished during any portion of the
`emergencyperiod beginning onorafter the date of the enactmentof
`this Act:
`
`(1)
`
`Invitro diagnostic products. .. for the detection of SARS-
`CoV-2 or the diagnosis of the virus that causes COVID-19
`that are approved, cleared, or authorized and the administration
`of such in vitro diagnostic products.
`(emphasis added)
`
`[djue to the unprecedented public health
`emergency posed by COVID-19, and the need to
`eliminate potential administrative and financial
`barriers to testing for and treatment of COVID-19
`[emphasis added], a health plan that otherwise
`satisfies the requirements to be an HDHP under
`
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`Case 5:22-cv-03269 Document 1 Filed 06/03/22 Page 16 of 37
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`section 223(c)(2)(A) will not fail to be an HDHP
`merely because the health plan provides medical
`care services and items purchasedrelated to testing
`for and treatment of COVID-19 priorto the
`satisfaction of the applicable minimum deductible.
`
`38.
`
`The CARESAct then states:
`
`SEC. 3202. PRICING OF DIAGNOSTIC TESTING.
`
`(a)
`
`REIMBURSEMENT RATES.—Agrouphealth plan or a health
`insurance issuer providing coverage of items andservices described in
`section 6001(a) of division F of the Families First Coronavirus
`Response Act (Public Law 116-127) with respect to an enrollee shall
`reimbursethe providerof the diagnostic testing as follows:
`
`(1)
`
`(2)
`
`If the health plan or issuer has a negotiated rate with such
`providerin effect before the public health emergency declared
`undersection 319 of the Public Health Service Act (42 U.S.C.
`247d), such negotiated rate shall apply throughoutthe period of
`such declaration.
`
`Ifthe health plan or issuer does not have a negotiated rate with
`such provider, such plan or issuer shall reimburse the provider
`in an amountthat equals the cashprice for such service as
`listed by the provideron a public internet website, or such
`plan or issuer may negotiate a rate with su