throbber
Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 1 of 27
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`JEREMY HOCKENSTEIN, for himself and
`all others similarly situated,
`
`
`Plaintiff,
`
`
`
`
`
`Civil Case Number: ___________
`
`
`
`
`COMPLAINT
`
`
`
`
`
`
`-against-
`
`
`
`CIGNA HEALTH AND LIFE INSURANCE
`COMPANY,
`
`
`Defendant.
`
`
`
`
`
`
`Plaintiff alleges:
`
`NATURE OF THIS ACTION
`
`1.
`
`Defendant violated the Employee Retirement Income Security Act of 1974 (ERISA), 29
`
`U.S.C. §§ 1001 et seq.
`
`JURISDICTION AND VENUE
`
`2.
`
`3.
`
`4.
`
`Defendant regularly engages in business in the state of New York.
`
`Defendant caused harm to Plaintiff in New York as alleged more fully below.
`
`The Court has subject matter jurisdiction under 29 U.S.C. § 1132(e)(1); 28 U.S.C. § 1331;
`
`and 28 U.S.C. §§ 2201-2.
`
`5.
`
`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and pursuant to 29
`
`U.S.C. § 1132(b).
`
`
`
`1
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 2 of 27
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`
`
`PARTIES
`
`6.
`
`7.
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`Named Plaintiff is a natural person and a resident of New York, New York.
`
`Defendant CIGNA Health and Life Insurance Company (“Cigna”) is an insurance company
`
`organized under the laws of Connecticut with a principal place of business located at 900
`
`Cottage Grove Road, Bloomfield, Connecticut 06002.
`
`ERISA
`
`8.
`
`Recognizing the centrality of employer sponsored benefits to the American healthcare
`
`system, Congress enacted the Employee Retirement Income Security Act of 1974 (ERISA),
`
`29 U.S.C. §§ 1001 et seq. To this day, millions of Americans rely on an employer
`
`sponsored plan for their healthcare coverage. To assure that beneficiaries are protected and
`
`are treated equitably, ERISA imposes fiduciary obligations on insurers – such as Cigna – in
`
`the processing of claims for healthcare benefits.
`
`9.
`
`As a fiduciary, an insurer in this context owes the highest standard of loyalty and prudence
`
`in the processing of participant and beneficiary healthcare claims.
`
`10. This action asserts that Cigna breached its fiduciary duties under ERISA, and under ERISA
`
`plan documents, by failing to reimburse, in full and without cost sharing or other medical
`
`cost management, the costs of diagnostic Covid-19 testing. This action further asserts
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`Cigna failed to conduct “full and fair review” of its denial of diagnostic Covid-19
`
`reimbursement claims, and further asserts Cigna failed to provide adequate notice of the
`
`reasons for its denials of diagnostic Covid-19 testing claims.
`
`11. Following are relevant provisions of ERISA for purposes of this action:
`
`
`
`
`
`2
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 3 of 27
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`ERISA §
`
` 29 USC §
`
`3(21)(A)
`
`1002(21)(A)
`
`402(a)(1)
`
`1102(a)(1)
`
`402(b)
`
`1102(b)
`
`404(a)(1)
`
`1104(a)(1)
`
`405(c)(1)(B) 1105(c)(1)(B)
`
`502(a)
`
`1132(a)
`
`Text
`
`“a person is a fiduciary with respect to a plan to the extent (i) he
`exercises any discretionary authority or discretionary control
`respecting management of such plan or exercises any authority or
`control respecting management or disposition of its assets… (iii)
`he has any discretionary authority or discretionary responsibility in
`the administration of such plan. Such term includes any person
`designated under section 1105(c)(1)(B) of this title.”
`
`“Every employee benefit plan shall be established and maintained
`pursuant to a written instrument. Such instrument shall provide for
`one or more named fiduciaries who jointly or severally shall have
`authority to control and manage the operation and administration
`of the plan.”
`
`“Every employee benefit plan shall—
`(1) provide a procedure for establishing and carrying out a funding
`policy and method consistent with the objectives of the plan and
`the requirements of this subchapter,
`(2) describe any procedure under the plan for the allocation of
`responsibilities for the operation and administration of the plan
`(including any procedure described in section 1105(c)(1) of this
`title,
`…
`(4) specify the basis on which payments are made to and from the
`plan.”
`
`“a fiduciary shall discharge his duties with respect to a plan solely
`in the interest of the participants and beneficiaries and—
`(A)for the exclusive purpose of:
`(i)
`providing benefits to participants and their beneficiaries; and…
`(B)
`the
`the care, skill, prudence, and diligence under
`with
`circumstances then prevailing that a prudent man acting in a like
`capacity and familiar with such matters would use in the conduct
`of an enterprise of a like character and with like aims; [and]
`…
`(D)
`in accordance with the documents and instruments governing the
`plan insofar as such documents and instruments are consistent with
`the provisions of this subchapter…”
`
`“The instrument under which a plan is maintained may expressly
`provide for procedures… for named fiduciaries to designate
`persons other than named fiduciaries to carry out fiduciary
`responsibilities (other than trustee responsibilities) under the plan.”
`
`“A civil action may be brought—
`
`
`
`3
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 4 of 27
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`(1)
`by a participant or beneficiary
`…
`(B)
`to recover benefits due to him under the terms of his plan, to
`enforce his rights under the terms of the plan, or to clarify his
`rights to future benefits under the terms of the plan;
`(2)
`by the Secretary, or by a participant, beneficiary or fiduciary for
`appropriate relief under section 1109 of this title;
`(3)
`by a participant, beneficiary, or fiduciary (A) to enjoin any act or
`practice which violates any provision of this subchapter or the
`terms of the plan or (B) to obtain other appropriate equitable relief
`(i) to redress such violations or (ii) to enforce any provisions of this
`subchapter or the terms of the plan”
`
`“In accordance with regulations of the Secretary, every employee
`benefit plan shall—
`(1) provide adequate notice in writing to any participant or
`beneficiary whose claim for benefits under the plan has been
`denied, setting forth the specific reasons for such denial, written in
`a manner calculated to be understood by the participant.”
`
`“In accordance with regulations of the Secretary, every employee
`benefit plan shall—
`…
`(2) afford a reasonable opportunity to any participant whose claim
`for benefits has been denied for a full and fair review by the
`appropriate named fiduciary of the decision denying the claim.”
`
`
`FACTS
`
`503(1)
`
`1133(1)
`
`503(2)
`
`1133(2)
`
`
`
`12. Cigna issued insurance policy number 00632911 to The Educational Alliance (the,
`
`“Policy”).
`
`13. The Policy funds healthcare benefits for an employee welfare benefit plan within the
`
`meaning of 29 U.S.C. § 1002(3) (the, “Plan”).
`
`14. The Plan is governed by ERISA.
`
`15. Named Plaintiff was at all relevant times a beneficiary of the Policy and the Plan.
`
`
`
`4
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 5 of 27
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`16. Cigna acts as a fiduciary with respect to the Plan pursuant to 29 U.S.C. § 1002(21)(A), and
`
`pursuant to 29 U.S.C. § 1105(c). Cigna handles all claims for healthcare benefits,
`
`including making all claims determinations, under the Policy.
`
`17. Cigna promulgates a summary plan description (“SPD”) for the Plan, which provides in
`
`part (at p. 93):
`
`The Plan Administrator delegates to Cigna the discretionary
`authority to interpret and apply plan terms.... Such discretionary
`authority
`is
`intended
`to
`include, but not
`limited
`to…
`the
`determination of whether a person is entitled to benefits under the
`plan, and the computation of any and all benefit payments. The Plan
`Administrator also delegates to Cigna the discretionary authority to
`perform a full and fair review, as required by ERISA, of each claim
`denial which has been appealed by the claimant or his duly
`authorized representative.
`
`18. The SPD further states (at p. 5):
`
`We [i.e., Cigna] may, from time to time, offer or arrange for various
`entities to offer discounts, benefits, or other consideration to our
`members for the purpose of promoting the general health and well
`being of our members. We may also arrange for the reimbursement
`of all or a portion of the cost of services provided by other parties to
`the Policyholder.
`
`In March 2020, to address the emerging global Covid-19 pandemic, the United States
`
`19.
`
`Government passed the Families First Coronavirus Response Act, Pub. L. 116-127 (the
`
`“FFCRA”), followed by the Coronavirus Aid, Relief, and Economic Security Act Pub. L.
`
`116-134 (the, “CARES Act”). Pursuant to section 6001(a) of the FFCRA, and section 3202
`
`of the CARES Act, an insurer, such as Cigna, is obligated to reimburse in full the cost paid
`
`by a beneficiary for diagnostic Covid-19 testing, without imposing any cost-sharing, co-
`
`payments, deductibles, or coinsurance, regardless of whether the provider is in-network or
`
`out-of-network.
`
`
`
`5
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 6 of 27
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`20. On January 16, 2022, Plaintiff obtained a diagnostic Covid-19 test from the office of Dr.
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`Stuart B. Weiss, MD, for which Plaintiff paid $250 out of pocket, constituting full payment
`
`for the Covid test.
`
`21. The $250 fee charged by Dr. Weiss’s office was posted on the Internet at all relevant times.
`
`22. Dr. Weiss was an “out of network” provider for the Covid-19 test under the terms of the
`
`Policy.
`
`23. Plaintiff submitted a claim to Cigna for reimbursement of the $250 he paid. Cigna only
`
`approved and paid $51.31 in reimbursement to Plaintiff, otherwise denying Plaintiff’s
`
`claim and leaving Plaintiff to personally cover $198.69 of the cost of the Covid test.
`
`24. According to Cigna’s explanation of benefits (“EOB”), Cigna denied Plaintiff’s claim for
`
`$250 because there was a “Discount” of $198.69 applied to the Covid test. Cigna wrote
`
`(emphasis original):
`
`“You saved $198.69. Cigna negotiates discounts with health care
`professionals and facilitates to help you save money.”
`
`
`This was simply not true. Plaintiff was charged, and Plaintiff in fact paid, at the time
`
`services were rendered, the full $250 for the subject test, for which Plaintiff submitted the
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`claim to Cigna.
`
`25. By letter dated February 4, 2022, Plaintiff timely submitted a grievance letter to Cigna
`
`contesting its claim determination. Plaintiff highlighted the fact that Cigna was wrong to
`
`assert it had negotiated a discount, as Plaintiff had in fact paid the full $250 cost of the
`
`Covid test. Plaintiff further asserted the test should be fully covered under the CARES Act.
`
`Plaintiff wrote (emphasis original):
`
`I am submitting this Grievance to request that you cover the full cost
`of $250 for the out-of-network covid test I received on January 16,
`2022, provided by Dr. Stuart B. Weiss. Cigna appears to have
`
`
`
`6
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`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 7 of 27
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`provided partial coverage (about $53) for this test, leaving us to
`cover the remainder of the cost. The claim ID for my covid test is
`…. Cigna writes in the explanation of benefits that it negotiated a
`discount for this service, but that is not true. I paid the full $250
`charged by the provider. Please reimburse us the full $250. Under
`the CARES Act, this test should be fully covered, even though the
`provider was out-of-network. Additionally could you please provide
`Cigna's policies for covering out-of-network covid tests. I do not see
`this issue addressed in my plan documents.
`
`26. By letter dated March 3, 2022 addressed to Plaintiff, Cigna denied Plaintiff’s grievance,
`
`and affirmed its coverage determination. Cigna wrote:
`
`to determine
`to Medicare
`We use a methodology similar
`reimbursement for the same or similar service within a geographic
`market. Because we don’t have any information that supports a
`reason to pay more than the Maximum Reimbursable Charge, we
`won’t pay anything more towards this claim.
`…
`The Maximum Reimbursable Charge for covered services is
`determined based on the lesser of:
`o The provider’s normal charge for a similar service or supply;
`or
`o A policyholder-selected percentage of a schedule developed
`by Cigna that is based upon a methodology similar to a
`methodology utilized by Medicare to determine the allowable
`fee for the same or similar service within the geographic
`market.
`
`
`27. Cigna’s March 3 letter to Plaintiff contradicts Cigna’s EOB. Cigna’s EOB claims that
`
`Cigna negotiated a discount with Dr. Weiss to benefit Plaintiff; that Cigna paid, in full, a
`
`negotiated rate; and that Plaintiff “saved $198.69.” In contrast, Cigna’s March 3 letter
`
`claimed that Cigna paid either the “provider’s normal charge” – not a discounted rate – or
`
`that Cigna paid an amount methodologically derived (“based upon a methodology similar
`
`to… Medicare”), eschewing the notion of any negotiated rate between Cigna and Dr. Weiss
`
`altogether.
`
`
`
`7
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 8 of 27
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`28. Cigna’s March 3 letter contradicts the plain requirements of the FFCRA and CARES Act,
`
`under which Cigna is obligated to reimburse for Covid testing in full – not at some other
`
`price determined by a “schedule” with a “methodology similar to… Medicare.”
`
`29. Cigna’s March 3 letter is altogether incomprehensible to an ordinary beneficiary. Cigna’s
`
`March 3 letter failed to inform Plaintiff, and more generally, would fail to inform any
`
`reasonable person, how Cigna arrived at the determination to cover $51.31 – but no more –
`
`toward Plaintiff’s $250 Covid test.
`
`30.
`
`In its March 3 letter, Cigna completely ignored Plaintiff’s assertion that he had paid the full
`
`$250 cost of the Covid test out of pocket, and completely ignored Plaintiff’s assertion that
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`the Covid test should be covered under the CARES Act.
`
`31. Cigna’s March 3 letter provides no information regarding additional documentation
`
`Plaintiff should provide to obtain full coverage for his Covid-19 test. If, with further
`
`documentation from Plaintiff, Cigna would cover the costs of Plaintiff’s Covid-19 test, then
`
`Cigna was obligated to disclose the same pursuant to 29 CFR § 2560.503-1(g), and
`
`pursuant to the terms of the Plan promulgated by Cigna in the SPD (at p. 86), stating,
`
`“Every notice of an adverse benefit determination… will include… a description of any
`
`additional material or information necessary to perfect the claim.”
`
`32. Cigna’s claim processing of Plaintiff’s January 16 Covid test was not an isolated incident,
`
`but rather, part of a general pattern and practice. On September 6, 2021, and on September
`
`27, 2021, Plaintiff obtained for himself and two of his dependents Covid-19 tests at Dr.
`
`Weiss’s office. Plaintiff was charged the full $250 price for each such test, paid the same,
`
`and submitted a claim to Cigna for full reimbursement. Cigna denied, at least in part, all of
`
`Plaintiff’s claims as set forth in the following chart:
`
`
`
`8
`
`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 9 of 27
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`Beneficiary Test Date Plaintiff
`Paid
`
`Dependent 1
`
`Plaintiff
`
`Dependent 2
`
`
`9/6/2021
`
`9/27/2021
`
`9/27/2021
`
`
`$250
`
`$250
`
`$250
`
`Cigna
`Covered
`
`$153.93
`
`$76.97
`
`$153.93
`
`Cigna Asserts in EOB
`
`Patient Responsibility $96.07
`
`Patient responsibility $173.03
`
`Patient Responsibility $0;
`Cigna negotiated discount of $96.07
`
`
`In each instance noted in the chart above, Plaintiff and Plaintiff’s dependents obtained the
`
`33.
`
`same services from Dr. Weiss’s office.
`
`34. As set forth in the above chart, Cigna’s claims processing was inconsistent and
`
`contradictory. For Dependent 2, Cigna claimed to have negotiated a discount for Covid-19
`
`testing with Dr. Weiss’s office, such that Plaintiff’s responsibility was “$0.” This was
`
`false. Plaintiff received no discount from Dr. Weiss’s office, and Plaintiff’s responsibility
`
`was not $0.
`
`35. Still further, when it came to Plaintiff’s September 2021 Covid test, and that of Dependent
`
`1, Cigna did not purport to have negotiated any discount at all with Dr. Weiss’s office.
`
`Cigna claimed Plaintiff was responsible for some – but in each case, conflicting amounts –
`
`of the $250 bill for these tests.
`
`36. Plaintiff undertook diligent efforts to obtain coverage from Cigna for the September 2021
`
`Covid tests he obtained for himself and his dependents.
`
`37. Plaintiff submitted grievance letters to Cigna, contesting its claims determination for
`
`coverage of the September 2021 Covid-19 tests Plaintiff and his dependents had obtained.
`
`Plaintiff asserted that he paid in full the $250 charged by the provider, and that such Covid-
`
`19 testing should be covered in full under the CARES Act, without regard to in-network or
`
`out-of-network status.
`
`
`
`9
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 10 of 27
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`38.
`
`In each case, Cigna upheld its claims determination. In each case, Cigna ignored, and did
`
`not respond, to Plaintiff’s assertion that the subject Covid-19 tests should be covered in full
`
`under the CARES Act.
`
`39. Cigna’s responses to Plaintiff contained almost precisely the same boilerplate language
`
`pertaining to limits on the “Maximum Reimbursable Charge,” the provider’s “normal
`
`charge,” and a purported “methodology similar to… Medicare,” appearing in Cigna’s
`
`March 3, 2022, letter to Plaintiff cited above.
`
`40. Plaintiff could not possibly know, and indeed, to this day does not know, the basis for
`
`Cigna’s claims determinations, or, indeed, whether there is any rhyme or reason at all to
`
`Cigna’s landing upon the reimbursement rates of $76.97, or $153.93, or $51.31 – all for the
`
`same service, from the same provider, for which Plaintiff paid the same $250.
`
`41. To this day, Plaintiff does not know, and cannot know, why Cigna has failed to cover the
`
`subject Covid-19 tests in accordance with the FFCRA and CARES Act, or what further
`
`documentation Plaintiff should provide to obtain such coverage.
`
`42. Cigna’s March 3, 2022, letter to Plaintiff denying his grievance, and Cigna’s responses to
`
`each of Plaintiff’s grievances pertaining to the September 6 and September 27, 2021
`
`Covid-19 tests, confirmed that Plaintiff exhausted internal remedies, and that any claim
`
`Plaintiff might have could thereafter proceed in court.
`
`CLASS ALLEGATIONS COMMON TO ALL COUNTS
`
`43. Each Count below is brought by Plaintiff for himself, and on behalf of a class of similarly
`
`situated individuals, pursuant to Rule 23 of the Federal Rules of Civil Procedure (“FRCP”).
`
`44. As used in this complaint, the following terms have the following meanings:
`
`
`
`10
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`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 11 of 27
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`• “Class Period” means the time period beginning March 27, 2020, and through
`
`the earlier of: (a) the certification of the class in this matter, or (b) the
`
`termination of the emergency period described in section 6001(a) of the
`
`FFCRA.
`
`• “Cigna ERISA Plan” means an ERISA employee health benefit plan which
`
`delegates to Cigna discretionary authority to process claims thereunder.
`
`45. Count I is brought by Plaintiff for himself and the following class (the “Dr. Weiss Claims
`
`Processing Class”):
`
`All participants or beneficiaries of a Cigna ERSIA Plan; who
`obtained an in-person diagnostic Covid-19 test during the Class
`Period from the office of Dr. Stuart B. Weiss; who paid for such
`diagnostic Covid-19 test; who submitted a claim to Cigna therefor;
`and who Cigna failed to reimburse, in full, for such claim.
`
`
`46. As alleged more fully below, Count I alleges Cigna processed claims for diagnostic Covid-
`
`19 testing performed by the office of Dr. Stuart B. Weiss in violation of its fiduciary duties,
`
`by failing to reimburse such claims in full and without cost-sharing.
`
`47. Count II is brought by Plaintiff for himself and the following class (the “Dr. Weiss Claims
`
`Review Class”):
`
`All participants or beneficiaries of a Cigna ERISA Plan; who
`obtained an in-person diagnostic Covid-19 test during the Class
`Period from the office of Dr. Stuart B. Weiss; who paid for such
`diagnostic Covid-19 test; who submitted a claim to Cigna therefor,
`which Cigna failed to reimburse in full; who thereafter submitted
`an appeal or grievance for Cigna to review its claims denial; and
`where Cigna, following the submission of such appeal or
`grievance, failed to cover, in full, the cost of the subject diagnostic
`Covid-19 test.
`
`
`
`11
`
`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 12 of 27
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`48. As alleged more fully below, Count II alleges Cigna failed to have a process for performing
`
`full and fair review of its denial of claims for reimbursement of diagnostic Covid-19 testing
`
`performed by the office of Dr. Stuart Weiss.
`
`49. Count III is brought by Plaintiff for himself and the following class (“Nationwide
`
`Inadequate Notice Class”):
`
`All participants or beneficiaries of a Cigna ERISA Plan; who
`obtained an in-person (not over-the counter) diagnostic Covid-19
`test during the Class Period; who paid for such diagnostic Covid-
`19 test; who submitted a claim to Cigna therefor, which Cigna
`failed to reimburse in full; who thereafter submitted an appeal or
`grievance for Cigna to review its claims denial; and where Cigna,
`following the submission of such appeal or grievance, responded
`with a denial letter in substantially the same form as Cigna’s
`March 3, 2022 letter to Named Plaintiff.
`50. As alleged more fully below, Count III alleges Cigna failed to provide adequate notice, in a
`
`form reasonably calculated to be understood, of the specific reasons Cigna denied coverage
`
`for diagnostic Covid-19 testing.
`
`51. Plaintiff preserves the right to amend any of the class definitions, or to seek certification of
`
`one or more additional or alternative classes, or one or more sub-classes.
`
`52. Cigna acts as a fiduciary with respect to each Cigna ERISA Plan, pursuant to 29 U.S.C. §
`
`1002(21)(A) and pursuant to 29 U.S.C. § 1105(c). Upon information and belief, pursuant
`
`to delegation of authority by each Cigna ERISA Plan administrator, Cigna processes claims
`
`for healthcare benefits, including making all claims determinations, under each Cigna
`
`ERISA Plan.
`
`53. Each Count is brought under 29 U.S.C. § 1132(a)(3) to enjoin Cigna’s violations of ERISA
`
`and violations of the terms of Cigna ERISA Plans; to obtain appropriate equitable relief to
`
`redress such violations; and to enforce the provisions of ERISA and Cigna ERISA Plans
`
`against Cigna. This action seeks equitable remedies, including, inter alia, judgement
`
`
`
`12
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 13 of 27
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`compelling Cigna to reprocess its claims determinations for class members’ diagnostic
`
`Covid-19 testing; corrective disclosure from Cigna; and a surcharge against Cigna.
`
`54. Named Plaintiff and class members are appropriate parties to assert such claims, under the
`
`holding of Varity Corp. v. Howe, 516 U.S. 489 (1996).
`
`55. Each Count alleged below satisfies the requirements of FRCP 23(a).
`
`(a) Numerosity. Members of the classes are so numerous that joinder is
`
`impractical. Cigna is a nationwide health insurer which administers healthcare
`
`claims for millions of participants and beneficiaries. Upon information and
`
`belief, Dr. Weiss’s office provided diagnostic Covid-19 tests to thousands of
`
`people during the relevant time period, many of whom were surely participants
`
`or beneficiaries under Cigna ERISA Plans. The numerosity requirement of
`
`Rule 23(a) will easily be satisfied.
`
`(b) Commonality. There are questions of law and fact common to class members
`
`within each of the class claims, including:
`
`i. With respect to Count I, whether Cigna violated its fiduciary duties under
`
`ERISA and Cigna ERISA Plans, by denying class member claims for
`
`reimbursement of diagnostic Covid-19 tests;
`
`ii. With respect to Count II, whether Cigna violated 29 USC § 1133(2), and
`
`the terms of Cigna ERISA Plans, by failing to afford full and fair review
`
`of its denials of participant and beneficiary claims for reimbursement of
`
`diagnostic Covid-19 tests; and
`
`iii. With respect to Count III, whether Cigna violated 29 USC §1133(1), and
`
`the terms of Cigna ERISA Plans, by failing to provide adequate notice, in
`
`
`
`13
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`

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`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 14 of 27
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`a form reasonably calculated to be understood by beneficiaries and
`
`participants, of the specific reasons claims for reimbursement of Covid-19
`
`diagnostic testing were denied.
`
`(c) Upon information and belief, relevant terms of Cigna ERISA Plans and related
`
`documentation are contained in standard form documents and are materially the
`
`same, and accordingly are susceptible of class treatment. These include:
`
`i. The delegation to Cigna of discretionary authority for, “the determination
`
`of whether a person is entitled to benefits under the plan, and the
`
`computation of any and all benefit payments”;
`
`ii. The delegation to Cigna of, “discretionary authority to perform a full and
`
`fair review, as required by ERISA, of each claim denial”;
`
`iii. The process for grievances and appeals set forth in Cigna’s summaries of
`
`plan benefits;
`
`iv. Cigna’s grievance denial letters, in the form sent to named Plaintiff
`
`alleged more fully above, including with respect to referenced to the
`
`“Maximum Reimbursable Charge,” the “provider’s normal charge,” and a
`
`purported “methodology similar to… Medicare.”
`
`(d) Typicality. Named Plaintiff’s claims are typical of class members’ claims.
`
`With respect to the “Dr. Weiss Claims Processing Class,” just as named
`
`Plaintiff paid for a diagnostic Covid-19 test from Dr. Weiss, submitted a claim
`
`to Cigna, and was denied reimbursement, so too class members. With respect to
`
`the “Dr. Weiss Claims Review Class,” just as Named Plaintiff submitted an
`
`appeal to Cigna seeking reimbursement for his out-of-pocket payment for a
`
`
`
`14
`
`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 15 of 27
`
`diagnostic Covid test with Dr. Weiss, and Cigna thereafter declined coverage,
`
`so too class members. With respect to the “Nationwide Inadequate Notice
`
`Class,” just as Named Plaintiff was not provided a reasonable explanation for
`
`Cigna’s coverage determination in Cigna’s March 3, 2022 letter to Plaintiff, so
`
`too class members were not provided a reasonable explanation of Cigna’s
`
`claims denial for diagnostic Covid-19 testing in letters of substantially the same
`
`form.
`
`(e) Adequacy. Named Plaintiff and undersigned counsel are adequate to represent
`
`the class. Named Plaintiff is prepared to represent the interests of class
`
`members, and has retained experienced counsel to do so.
`
`56. Each of the classes alleged is ascertainable. Upon information and belief, Cigna maintains
`
`records of participant and beneficiary claims; Cigna maintains records of which claims are
`
`submitted under ERISA plans; Cigna maintains records pertaining to participant and
`
`beneficiary claim submissions, including diagnostic codes, CPT codes, and/or other coding
`
`systems sufficient to identify class members who submitted claims for diagnostic Covid-19
`
`tests during the Class Period; and Cigna maintains records of coverage determinations and
`
`communications pertaining thereto for beneficiaries and participants of Cigna ERISA
`
`Plans.
`
`COUNT I
`29 U.S.C. § 1104
`CLAIMS PROCESSING IN BREACH OF FIDUCIARY DUTY
`
`
`57. All preceding paragraphs are re-alleged.
`
`58. Count I is brought by Plaintiff for himself and the “Dr. Weiss Claims Processing Class”
`
`defined above.
`
`
`
`15
`
`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 16 of 27
`
`59. For each Cigna ERISA Plan, Cigna’s determination of reimbursements for beneficiary
`
`healthcare coverage, including diagnostic Covid-19 tests, is within the scope of Cigna’s
`
`“duties with respect to the plan,” as that phrase is used in 29 U.S.C. § 1104.
`
`60. As a fiduciary, Cigna is obligated to discharge its obligations with respect to each Cigna
`
`ERISA Plan under a prudent standard of care, pursuant to 29 U.S.C. § 1104. Cigna must
`
`discharge its obligations:
`
`• solely in the interests of plan participants and beneficiaries;
`
`•
`
`for the exclusive purpose of providing benefits to participants and beneficiaries;
`
`and
`
`• with reasonable care, skill, diligence, and prudence.
`
`61. Cigna violated the FFCRA and the CARES Act by failing to reimburse Plaintiff’s January
`
`16, 2022, Covid-19 test in full.
`
`62. Cigna violated the FFCRA and CARES Act by failing to reimburse, in full, the diagnostic
`
`Covid-19 tests obtained by each member of the class.
`
`63. Cigna’s violation of the FFCRA and CARES Act constitutes a failure, as a matter of law, to
`
`discharge its fiduciary duties with reasonable care, skill, diligence and prudence. A
`
`prudent fiduciary, and one acting with reasonable skill, care and diligence, would comply
`
`with the FFCRA and CARES Act in handling participant and beneficiary claims for
`
`diagnostic Covid-19 tests.
`
`64. Cigna’s violation of the FFCRA and CARES Act constitutes a failure, as a matter of law, to
`
`discharge its fiduciary duties solely in the interests of, and for the purpose of providing
`
`benefits to, participants and beneficiaries. A fiduciary discharging its duties for the benefit
`
`of plan beneficiaries would comply with the FFCRA and CARES Act in handling claims
`
`
`
`16
`
`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 17 of 27
`
`for diagnostic Covid-19 tests, and would cover such claims in full, and without cost
`
`sharing, as required by law.
`
`65. A fiduciary properly discharging its obligations would treat like cases alike, as required by
`
`29 CFR § 2560.503-1(b)(5), and in so doing, reimburse, in full, all beneficiaries and
`
`participants for the costs of diagnostic Covid-19 tests. Cigna failed to meet this standard,
`
`and instead made inconsistent and haphazard coverage determinations.
`
`66. Cigna’s has offered false, contradictory, and inadequate explanations concerning its
`
`coverage determinations for reimbursement of diagnostic Covid-19 testing, including:
`
`(a) Cigna’s false statements in its EOB for Plaintiff’s January 16 Covid test, stating
`Plaintiff’s responsibility was “$0,” when Plaintiff had paid in full;
`(b) Cigna’s March 3, 2022 letter to Plaintiff, which claimed it was reimbursing at a
`rate that was “normal” or methodologically derived, contradicting its EOB which
`claimed to have negotiated a rate for Plaintiff’s Covid test and that, “You [i.e.,
`Plaintiff] saved $198.69”;
`(c) Cigna’s issuing haphazard and inconsistent claims determinations for the
`identical Covid-19 tests for Plaintiff and his dependents in September 2021,
`performed by the same provider, for which Plaintiff paid the same amount,
`which Plaintiff submitted for reimbursement.
`67. A fiduciary properly exercising its responsibilities with requisite skill, care and prudence
`
`would provide accurate and consistent explanations to beneficiaries. Cigna’s inconsistent
`
`and inaccurate disclosures are evidence that Cigna lacks a sound basis for denying
`
`beneficiary and participant claims for reimbursement of diagnostic Covid-19 tests, and that
`
`Cigna’s denial of such claims is a breach of its fiduciary duties.
`
`68. No requirement should be imposed on each class member individually to exhaust Cigna’s
`
`internal claims review procedures. Any such exhaustion would be futile. Named Plaintiff
`
`submitted four Covid-19 test claims to Cigna for reimbursement, and Cigna denied, in part,
`
`all four. Named Plaintiff appealed all four denials, and all four appeals were denied by
`
`Cigna. As alleged more fully above, Cigna lacks a policy for covering class members’
`
`
`
`17
`
`

`

`Case 1:22-cv-04046 Document 1 Filed 05/17/22 Page 18 of 27
`
`claims for reimbursement of Covid-19 testing. Absent such a policy, Cigna’s appeals
`
`review process will provide no better results than its claims processing.
`
`69. Moreover, class members assert statutory violations of ERISA for which internal
`
`exhaustion is altogether unnecessary.
`
`70. The requirements of Rule 23(b) of the Federal Rules of Civil Procedure are satisfied with
`
`respect to the class.
`
`(a) Plaintiff may seek certification under FRCP 23(b)(1)(A) and 23(b)(1)(B).
`
`Cigna is required by law to treat like cases alike, and accordingly, adjudication
`
`of Plaintiff’s claims may, in whole or in part, establish standards for class
`
`members as a whole.
`
`(b) Plaintiff may seek certi

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