throbber
Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 1 of 34
`
`/ PA ID #331322
`Afiyfa H. Ellington, Esq.
`Joshua Cohen, Esq./PA ID #330855
`Abira Medical Laboratories, LLC d/b/a
`Genesis Diagnostics
`| #322
`957 Route 33 | Suite 12
`Hamilton Square | New Jersey | 08690
`Tel:
`(212)220-1616 | Fax:
`(609) 798-0327
`aellington@genesisdx.com
`Counsel for Abira Medical Laboratories, LLC d/b/a Genesis
`Diagnostics
`
`UNTTED STATES DISTRICT COURT
`FOR THE
`
`EASTERN DISTRICT OF PENNSYLVANTA
`
`ii80088
`|
`CASE NO.
`|
`|
`
`ABIRA MEDICAL LABORATORIES,
`LLC d/b/a GENESIS DIAGNOSTICS,
`
`Plaintiff
`
`vs.
`
`VERIFIED COMPLAINT
`
`INC.
`HIGHMARK WEST VIRGINIA,
`d/b/a HIGHMARK BLUE CROSS BLUE |
`SHIELD WEST VIRGINIA, ABC
`COMPANIES 1-100, AND JOHN DOES |
`1~100
`
` Defendants
`
`
`I. INTRODUCTION
`
`1,
`
`This is an action seeking to collect,
`
`inter alia,
`
`for
`
`medical laboratory services rendered in the amount of, or in excess
`
`of $344,401, exclusive of interest and costs. The Plaintiff, Abira
`
`Medical Laboratories,
`
`LLC d/b/a Genesis Diagnostics
`
`(hereafter,
`
`“GENESIS” or “Plaintiff”), performed laboratory test services,
`
`including but not
`
`limited to COVID-19 tests,
`
`for the Defendants,
`
`Page 1 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document 1 Filed 04/11/24 Page 2 of 34
`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 2 of 34
`
`their agents,
`
`servants,
`
`employees,
`
`insureds, or others through
`
`whom they acted, cr others on whose behalf they acted.
`
`CENESIS
`
`performed medical
`
`laboratory testing for
`
`tests
`
`ordered
`
`hy
`
`physician members of insurance companies, ordered by a non-member
`
`physician, or an insured/patient member of an insurance company.
`
`2,
`
`The Defendant, Highmark West Virginia,
`
`Inc.
`
`d/b/a
`
`Highmark Blue Cross Blue Shield West Virginia
`
`(hereafter,
`
`“Highmark”),
`
`their agents,
`
`servants,
`
`employees,
`
`insureds,
`
`or
`
`others with or through whom they acted, or others on whose behalf
`
`they acted,
`
`including but not limited to their affiliates,
`
`the ABC
`
`companies 1-100, and John Does 1-100 (collectively with Highmark
`
`referred to as “Defendants”), ordered and/or authorized laboratory
`
`services
`
`including but not
`
`limited to COVID-19
`
`tests to be
`
`performed by GENESIS.
`
`3.
`
`Plaintiff,
`
`an
`
`authorized
`
`representative
`
`of
`
`the
`
`insured/claimants pursuant
`
`to 29 C.F.R.
`
`§ 2650.503-1 (b) (4), has
`
`the right
`
`to file appeals and take any necessary legal action to
`
`oc
`
`secure for the claimants the benefits already paid for under their
`
`insurance contract.
`
`4,
`
`There is little dispute that services were rendered.
`
`There is a dispute by Defendants as to whether a few of the tests
`
`were already paid for, and the amount of the ramaining balance.
`
`There is a dispute wherein Defendants sought additional records,
`
`which were
`
`supplied,
`
`but which did not
`
`result
`
`in payment.
`
`Page 2 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document 1 Filed 04/11/24 Page 3 of 34
`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 3 of 34
`
`Effectively, this was an appeal process culminating in the improper
`
`denial of payment for laboratory services rendered, and exhausting
`
`the available administrative remedy.
`
`5.
`
`A January 16, 2024 a demand letter to Highmark BCBS West
`
`VI
`
`from attorney David Ghisalbert, Esq,
`
`(see copy attached hereto
`
`as “EXHIBIT A”) clearly made demand for all unpaid claims (attached
`
`hereto as
`
`“EXHIBIT B”
`
`is a list of
`
`the claim numbers for those
`
`claims which a claim number was provided). Defendants have refused
`
`to make payment for services rendered.
`
`II.
`
`PARTIES
`
`6.
`
`Abira Medical
`
`Laboratories,
`
`LLC
`
`d/b/a
`
`Genesis
`
`Diagnostics
`
`is a domestic limited liability company organized
`
`under
`
`the laws of
`
`the State of New Jersey. Several of GENESIS’
`
`administrators and decision-makers live in New Jersey, work in New
`
`Jersey, and run GENESIS’ affairs from New Jersey.
`
`7.
`
`At all
`
`times
`
`relevant hereto,
`
`the principal medical
`
`testing laboratory was
`
`located at 900 Town Center Drive, Suite
`
`H50, Langhorne, Pennsylvania 19047.
`
`8.
`
`Defendant, Highmark West Virginia,
`
`Inc. d/b/a Highmark
`
`Blue Cross Blue Shield West Virginia, provides health insurance
`
`services
`
`throughout
`
`the State of West Virginia,
`
`and has
`
`its
`
`principal place
`
`of business
`
`located at
`
`614 Market Street,
`
`Parkersburg, West Virginia 26101, with registered agent being
`
`James L, Fawcett, P.O. Box 1948, Parkersburg, WV 26102.
`
`Page 3 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 4 of 34
`
`9,
`
`GENESIS is unaware of the true names and capacities of
`
`Defendants
`
`named
`
`herein
`
`as
`
`ABC Companies
`
`1
`
`through
`
`100
`
`and JOHN DOES 1
`
`through 100,
`
`inclusive,
`
`and therefore asserts
`
`claims against these Defendants by such fictitious names.
`
`10,
`
`GENESIS will amend this Complaint to show the true names
`
`and capacities of such ABC Companies and JOHN DOES when the same
`
`have been ascertained.
`
`ll,
`
`GENESIS, on information and belief, alleges that each of
`
`the
`
`fictitious
`
`named Defendants,
`
`jointly and
`
`severally,
`
`are
`
`responsible in some manner for the actions and occurrences herein
`
`alleged,
`
`and that GENESIS’ damages were approximately caused by
`
`their acts.
`
`12.
`
`On further information and belief, GENESIS alleges that
`
`at
`
`all
`
`times
`
`herein
`
`mentioned,
`
`the
`
`ABC
`
`Companies
`
`and JOHN DOE Defendants
`
`acted in
`
`concert with,
`
`through,
`
`and
`
`were/was
`
`the
`
`agent,
`
`employee,
`
`contractor,
`
`partner,
`
`servant,
`
`employee and/or representative, with the permission and consent of
`
`the other Defendants.
`
`IIL,
`
`JURISDICTION AND VENUE
`
`13,
`
`Jurisdiction is proper
`
`in this court pursuant
`
`to 28
`
`U.S.C.
`
`§ 1332, due to the complete diversity of the parties,
`
`the
`
`existence of
`
`a
`
`justiciable dispute between the parties,
`
`the
`
`issue(s)
`
`involving federal statutes, a dollar amount
`
`in excess of
`
`that
`
`required for
`
`federal
`
`jurisdiction,
`
`and the fact
`
`that
`
`the
`
`Page 4 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 5 of 34
`
`services
`
`at
`
`issue were
`
`rendered within the Commonwealth of
`
`Pennsylvania.
`
`14,
`
`There were continuing and substantial contacts with the
`
`medical
`
`laboratory testing operations
`
`in Pennsylvania, between
`
`GENESIS
`
`and Defendants.
`
`Defendants’ physicians or
`
`nonmember
`
`physicians, or as authorized by patients shipped the lab specimens,
`
`retrieve the results from the laboratory or its computer server,
`
`communication with representatives and took other actions in the
`
`Pennsylvania related to the processing of the laboratory specimen.
`
`15.
`
`Defendants processed and paid several claims that were
`
`submitted by GENESIS, which taken with the other
`
`factors
`
`is
`
`sufficient to establish sufficient continuing and minimum contacts
`
`in Pennsylvania,
`
`for jurisdictional purposes.
`
`16. Moreover,
`
`the Employee Retirement Income Security Act of
`
`1974
`
`(“ERISA”)
`
`is
`
`unique
`
`in
`
`having
`
`relaxed jurisdictional
`
`requirements,
`
`as
`
`it was designed to remove
`
`jurisdictional and
`
`procedural obstacles that would hinder effective enforcement
`
`/};
`
`this is reflected directly in the code:
`
`- “Where an action under
`i. 29 U.S.C. § 1132 (8) (2)
`this subchapter is brought in a district court of
`the United States,
`it may be brought
`in the
`district where the plan is administered, where
`the breach took place..”,
`
`and
`
`' Senate Report No, 127, 93Congress, 18t Session (1973),
`Cong,
`& Ad. News 4871,
`
`in 1974 U.S. Code
`
`Page 5 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 6 of 34
`
`i, 29 U.S.C. § 1132(f£) “the district courts of the
`United States shall have jurisdiction, without
`respect
`to the amount
`in controversy or
`the
`citizenship of the parties,
`to grant
`the relief
`provided for in subsection (a) cf this section in
`any action.”
`
`[emphasis supplied]
`
`17,
`
`Pursuant
`
`to 29 U.S.C.
`
`§ 1132(e), State
`
`courts
`
`have
`
`concurrent jurisdiction over this action.
`
`Iv.
`
`FACTS
`
`GENESIS Operated A Medical Testing Laboratory And Rendered
`[A]
`Services to the Defendants’
`Insurance Companies’
`Insureds/Claimants
`
`18.
`
`GENESIS operated a licensed medical
`
`testing laboratory
`
`business, which provided services nationwide, with approximately
`
`150
`
`employeas,
`
`including
`
`but
`
`not
`
`necessarily
`
`limited
`
`to
`
`physicians,
`
`scientists,
`
`technicians,
`
`administrative personnel,
`
`and sales representatives.
`
`19.
`
`As part
`
`of
`
`its business model,
`
`GENESIS
`
`performed
`
`clinical laboratory,
`
`toxicology, pharmacy, genetics, and addiction
`
`rehabilitation testing services
`
`on
`
`specimens
`
`submitted
`
`for
`
`numerous insureds/claimants located throughout
`
`the United States
`
`(the “Laboratory Testing Services”).
`
`20.
`
`At
`
`the advent of the COVID-19 pandemic,
`
`in addition to
`
`its pre-existing schedule of
`
`specimen tests, GENESIS offered
`
` COVID-19 testing, as part of its contribution to combatting the
`
`COVID-19 pandemic.
`
`Page 6 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document 1 Filed 04/11/24 Page 7 of 34
`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 7 of 34
`
`21,
`
`GENESIS obtained regulatory approvals and emergency use
`
`authorizations from numerous states to provide COVID testing and
`
`reporting on a timely basis, with monthly reauthorizations and
`
`renewals, which required test
`
`results
`
`to be
`
`reported within
`
`specified time constraints,
`
`in order to grant reauthorization.
`
`22. Additionally, GENESIS held a
`
`regional designation to
`
`perform first
`
`responder
`
`testing for police,
`
`firefighters,
`
`and
`
`healthcare workers,
`
`and provided testing for prison systems in
`
`multiple counties,
`
`including in Pennsylvania.
`
`23.
`
`Physicians and patients relied upon GENESIS to rapidly
`
`provide the results from Laboratory Testing Services in order to
`
`
`inform medical decisions on patient care and public safety.
`
`«24. Additionally, various businesses, such as nursing homes,
`
`sent
`
`tens of thousands of daily specimens to GENESIS,
`
`for timely
`
`results
`
`that
`
`informed whether
`
`to
`
`isolate
`
`or
`
`hospitalize
`
`insureds/claimants,
`
`to limit
`
`infection, avoid the spread of
`
`the
`
`COVID-19 virus, and death.
`
`25,
`
`The insurance contracts between the insurance companies
`
`and the insureds/claimants include Benefits clauses or provisions,
`
`which require the Defendants to pay for laboratory testing of the
`
`insureds’ /claimants’ specimen.
`
`26.
`
`As
`
`the Defendants
`
`are
`
`required under
`
`the Benefits
`
`clauses
`
`in the
`
`insurance contracts to pay for
`
`the laboratory
`
`testing
`
`of
`
`the
`
`insureds’ /claimants’
`
`specimen,
`
`the
`
`Page 7 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 8 of 34
`
`insureds/claimants designated GENESIS
`
`as
`
`an
`
`assignee
`
`of
`
`the
`
`insurance contracts, as evidenced by providing their authorization
`
`and/or insurance information to GENESIS, specifically for GENESIS
`
`to claim payments from the Defendants for the lab tests.
`
`27.
`
`In addition to being an authorized representative of the
`
`claimants pursuant
`
`to 29 C.F.R.
`
`§ 2560.503-1(b) (4), when
`
`the
`
`insureds/claimants designated GENESIS
`
`as
`
`an
`
`assignee of
`
`the
`
`insurance contracts,
`
`this did in fact put GENESIS in privity of
`
`contract with the Defendants to be paid for the lab tests.
`
`28.
`
`Highmark
`
`regularly refused to pay
`
`and/or underpaid
`
`claims
`
`properly
`
`submitted
`
`by
`
`GENESIS
`
`-
`
`including without
`
`limitation,
`
`claims
`
`for COVID-19
`
`testing GENESIS performed for
`
`Highmark of enrollees during the pandemic - or simply failed to
`
`respond in any way to claims properly submitted by GENESIS, all in
`
`violation of applicable state and federal law.
`
`29,
`
`The Defendants were supposed to pay the claims, pursuant
`
`to the GENESIS fee schedule or
`
`the insurer’s fee schedule, or
`
`typically, negotiate a reasonable fee.
`
`30,
`
`The dates of service for
`
`the claims underlying this
`
`action are from on or about April of 2017 through September of
`
`2020,
`
`31.
`
`Defendants, however, processed and actually sprinkled
`
`payments of claims paid GENESIS for some claims that occurred in
`
`2018, 2020 and 2021,
`
`so that:
`
`Page 8 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 9 of 34
`
`. by processing/payment
`
`and the communication involved
`
`with
`
`GENESIS’
`
`claim submission,
`
`plus Defendants’
`
`advising from time-to-time that claims submitted were
`
`“processed and paid,” Defendants impressed upon GENESIS
`
`that they would continue to honor the claims;
`
`ii.
`
`whereas Defendants representatives knew that they merely
`
`induced GHNESIS to continue to provide specimen testing
`
`to their insureds/claimants,
`
`from whom they collected
`
`premium payments
`
`for
`
`the
`
`insurance
`
`contracts,
`
`but
`
`Defendants intended to watch GENESIS’ claims increase,
`
`knowing that they would later refuse to pay GENESIS for
`
`é substantial amount of outstanding claims;
`
`Lia.
`
`the Defendants
`
`engaged in the processing/payment of
`
`GENESIS’
`
`claim and
`
`the
`
`intermittent
`
`communication
`
`representing to GENESIS that they would continue to pay
`
`subsequent claims, with the intention that GENESIS would
`
`rely on such,
`
`to continue providing testing services to
`
`Defendants’
`Even
`as
`
`insureds/claimants,
`the | claims
`grew,
`
`iv.
`
`due
`
`to
`
`prior
`
`processing/payment,
`
`and communication from Defendants!
`
`representatives,
`
`GENESIS reasonably
`
`relied
`
`on
`
`the
`
`Defendants to pay subsequent claims;
`
`Defendants
`
`then
`
`allowed GENESIS’
`
`claims
`
`to
`
`grow
`
`suostantially and caused financial damage to GENESIS, by
`
`Page 9 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 10 of 34
`
`refusing to pay GENESIS for the substantial outstanding
`
`claims.
`
`GENESIS Is An Authorized Representative of the
`[B]
`Insureds/Claimants
`
`32, Defendants, being health insurance companies,
`
`third-
`
`party administrators, health and welfare funds,
`
`or
`
`even gelf-
`
`insured employers, providing health insurance services to their
`
`members,
`
`intentionally and unlawfully denied benefits to their
`
`insureds/claimants
`
`(and
`
`their assignees),
`
`by
`
`failing to pay
`
`GENESIS,
`
`for
`
`laboratory testing of
`
`specimen,
`
`including but not
`
`limited to COVID-19
`
`
`tests, which GENESIS performed for
`
`the
`
`insureds/claimants.
`
`33.
`
`Defendants have contractual obligations to the natural
`
`person insureds/claimants.
`
`34.
`
`To
`
`the
`
`extent
`
`that
`
`the
`
`contracts
`
`relevant
`
`to the
`
`underlying claims are governed by ERISA,
`
`this action is brought
`
`to:
`
`(1)
`
`recover benefits pursuant
`
`to 29 U.S.C. § 1132 (a) (1) (B),
`
`and (2) fer equitable relief, pursuant te 29 U.S.C. § 1132{a) (3).
`
`35.
`
`Pursuant
`
`to 29 C.F.R.
`
`§ 2560.503-1(b) (4), GENESIS is an
`
`“authorized
`
`representative”
`
`acting
`
`on
`
`behalf
`
`of
`
`the
`
`insureds/claimants for any necessary legal action,
`
`to secure for
`
`the insureds/claimants,
`
`the benefits that
`
`they already paid for
`
`under the contracts with the Defendants.
`
`36.
`
`For the purpose of their claims,
`
`the insureds/claimants
`
`designated GENESIS
`
`as
`
`their
`
`assignee,
`
`as
`
`evidenced by
`
`the
`
`Page 10 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 11 of 34
`
`insureds/claimants
`
`providing
`
`their
`
`insurance
`
`information
`
`to
`
`GENESIS,
`
`for
`
`the purpose of GENESIS
`
`filing claims with the
`
`Defendants for payment of lab tests, which the insurance contracts
`
`require Defendants to cover.
`
`37.
`
`As anyone who has had a medical laboratory test performed
`
`knows, or should know,
`
`it is the usual and customary business
`
`practice of medical
`
`testing laboratories to obtain an insured’s
`
`Signature (a)
`
`to authorize the laboratory test
`
`to be performed
`
`(i.e. blood draw, etc.), and (b)
`
`to authorize the medical testing
`
`laboratory to charge the insured’s insurance company and collect
`from the insured’s insurance company for the laboratery test
`(or
`
`other service) performed; assigning the right of collection to the
`
`laboratory. This was the usual business practice of GENESIS.
`
`38.
`
`GENESIS
`
`exhausted the
`
`administrative
`
`remedies
`
`aver
`
`nonpayment of these claims, by filing appeals when the claims were
`
`denied,
`
`thus preserving this action with regard to over nine
`
`hundred and eighty (980) claims underlying this action,
`
`and any
`
`applicable statute of limitations.
`
`39,
`
`GENESIS seeks benefits under 29 U.S.C. § 1132 (a) (1) (B),
`
`and equitable relief 29 U.S.C. § 1132 (a) (3),
`
`in the amount of, or
`
`
`in excess of $344,401, exclusive of costs and interest.
`
`40,
`
`GENESIS is alse entitled to attorney fees and costs of
`
`suit pursuant
`
`to 29 U.S.C. § 1132(q¢) (1),
`
`and other
`
`legal or
`
`Page 11 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 12 of 34
`
`equitable relief as
`
`this court deems appropriate, pursuant
`
`to
`
`29 U.S.C. § 1132(g) (2) (EB).
`
`41. Where Defendants are an insurer, it failed to pay GENESIS
`
`directly for claims GENESIS submitted for its services rendered by
`
`laboratory testing of the insureds’/claimants’ specimens.
`
`42. Where Defendants are a
`
`third-party administrator,
`
`it
`
`acted as an agent of
`
`the insurer,
`
`furnished by the insurer with
`
`the necessary funds
`
`to perform the administrative service of
`
`processing and paying claims on the insurer’s behalf, but
`
`for
`
`avarice,
`
`the third-party administrator failed to process and pay
`
`said claims.
`
`43.
`Defendants were supposed to verify and honor the claims
`submitted by the laboratory, but instead, they:
`
`i.
`
`entered
`
`into
`
`insurance
`
`contracts with
`
`the
`
`insureds/claimants, by which they communicated to
`
`the insureds/claimants,
`
`that pursuant
`
`to Benefits
`
`clauses
`
`or
`
`provisions
`
`of
`
`contract,
`
`if
`
`the
`
`insureds/claimants got
`
`tested and gave
`
`the lab
`
`their insurance information,
`
`the insurer would pay
`
`the lab when it submits its claims to the insurer
`
`for laboratory testing it performed;
`
`Li. Defendants
`
`knew that
`
`the
`
`representations
`
`and
`
`promises made
`
`to the insureds/claimants via the
`
`insurance contracts were misrepresentations
`
`and
`
`Page 12 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document 1 Filed 04/11/24 Page 13 of 34
`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 13 of 34
`
`false promises, with regard to paying for
`
`their
`
`laboratory testing, and knew that such would not be
`
`honored;
`
`iii.
`
`Defendants intended for the insureds/claimants to
`
`rely
`
`on
`
`the
`
`promises
`
`and
`
`representations
`
`communicated to the
`
`insureds/claimants via the
`
`insurance contracts, that the insurer would pay the
`
`lab when it submits its invoice or claims to the
`
`insurer for laboratory testing it performed;
`
`iv.
`
`The
`
`insureds’ /claimants’
`
`reliance
`
`on
`
`the
`
`Defendants’ promises were reasonable, because they
`
`made
`
`the
`
`premium payments
`
`to the Defendants,
`
`submitted their specimen to GENESTS for
`
`testing,
`
`and
`
`designated
`
`GENESIS
`
`assignee/authorized representative
`
`as
`
`of
`
`an
`
`the
`
`insurance contracts
`
`pursuant
`
`to
`
`29 CFVR. §
`
`2560.503-1(b) (4),
`
`to process payment
`
`for the lab
`
`testing, as evidenced by providing their insurance
`
`information to GENESIS;
`
`Ultimately,
`
`the
`
`Defendants
`
`damaged
`
`the
`
`insureds/claimants by refusing to pay CENESIS,
`
`for
`
`the
`
`laboratory
`
`testing
`
`performed
`
`for
`
`the
`
`insureds/claimants,
`
`and also damaged GENESIS, who
`
`Page 13 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 14 of 34
`
`came into privity of contract with the Defendants
`
`as an assignee of the insured.
`
`[C] Claims Arising From COVID-19
`44. With regard to those claims arising from the COVID-19
`pandemic, Congress
`took extraordinary steps
`to require health
`plans and health insurance issuers like Defendants to cover and
`pay for coronavirus testing.
`
`Congress prohibited health plans and health insurance
`45,
`issuers from imposing any prior authorization or other medical
`Management requirements on testing for the diagnosis of COVID-19.
`[See Families First Coronavirus Response Act
`(“FFCRA”) § 6001 (a)].
`46,
`Congress
`required that group health plans and health
`insurance issuers like Defendants must cover and reimburse COVID-
`19 testing and related services, which were laid out not just in
`the text of the FFCRA and Coronavirus Aid, Relief,
`and Economic
`security Act
`(“CARES Act”), but also in a series of “Frequently
`Asked Questions” (“FAQs”) documents issued and publicly posted by
`the U.S. Department of Health and Human Services (“HHS”).
`47.
`Pursuant
`to Section 6001 of
`the FFCRA, as amended by
`Section 3201 of
`the CARES Act, Defendants must provide benefits
`for certain COVID-19-related items and services,
`including COVID-
`19 testing,
`furnished Starting from March 18, 2020,
`48.
`Specifically, Defendants
`“must provide this coverage
`without
`imposing
`any
`cost-sharing
`requirements
`(including
`
`Page 14 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 15 of 34
`
`deductibles, copayments, and coinsurance), prior authorization, or
`
`other medical management requirements.” See FFCRA, § 6001(a); FAQs
`
`About FFCRA, Part 44, po. 1-2, February 26, 2021.
`
`49, Moreover,
`the FAQs clarify that plans and issuers are
`prohibited from imposing specific screening criteria on coverage
`
`of COVID-19 diagnostic testing for an asymptomatic person who has
`
`no known or suspected exposure to COVID-19. Id. at pg. 2, QI.
`
`50.
`
`Thus,
`
`“f{wlhen 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 and
`
`issuers generally must assume that the receipt of the test reflects
`
`an
`
`‘individualized clinical assessment’
`
`and the test should be
`
`cevered without cost sharing, prior authorization, other medical
`
`management requirements.” Id. at pg. 2-3.
`
`S1.
`
`Federal guidance under the FFCRA and CARES Act makes it
`
`clear
`
`that Defendants’ obligation extends
`
`to a wide array of
`
`coverage and testing types;
`
`the FFCRA/CARES Act payment rules apply
`
`to “group health plans and health insurance issuers offering group
`
`
`or individual health insurance coverage (including grandfathered
`
`health plans),” which specifically includes
`
`“both insured and
`
`self-insured group health plans,” including “private employment-
`
`based group health plans
`
`(ERISA plans), non-federal governmental
`
`Page 15 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 16 of 34
`
`plans...and church plans.” See FAQs, Part 42, 91, pg. 2-3, April
`
`il, 2020,
`
`52.
`
`Defendants!
`
`reimbursement obligations also apply to all
`
`manner of COVID-19 diagnostic testing,
`
`including serological
`
`(otherwise known as “antibody”) testing, and tests administered at
`
`home through self-collection. See FAQs, Part 42, Qi, pg. 2-3, April
`
`il, 2020; FAQs, Part 43, 04, pg. 6, June 23, 2020.
`
`33.
`
`Regulators have even warned that plans and issuers shall
`
`not attempt to “limit or eliminate other benefits .. .
`
`to offset
`
`the costs of increasing the generosity of benefits related to the
`
`diagnosis and/or treatment of COVID-19."” See FAQs, Part 42, Q9,
`
`pg. 7-9, April 11, 2020.
`
`54,
`
`There can be no debate that FFCRA and CARES Act require
`
`Defendants to pay for the COVID-19 testing services which GENESIS
`
`provided,
`
`55.
`
`GENESIS had every reasonable expectation that Defendants
`
`would honor their obligations and properly reimburse GENESIS for
`
`the
`
`COVID-19
`
`testing’ services
`
`it
`
`provided
`
`to Defendants!
`
`insureds/claimants,
`
`56. Defendants,
`
`however,
`
`failed to pay GENESIS
`
`for
`
`its
`
`services,
`
`including but not limited to COVID-19 diagnostic testing
`
`that GENESIS provided to Defendants'
`
`insureds/claimants,
`
`to the
`
`detriment of GENESIS. Defendants failed to comply with the FFRCA
`
`and the CARES Act.
`
`Page 16 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 17 of 34
`
`v.
`
`LEGAL CLAIMS
`
`COUNT ONE
`
`BREACH OF CONTRACT
`
`57,
`
`GENESIS realleges and incorporates herein by reference,
`
`each of the foregoing allegations, paragraphs 1.
`
`through 56, as if
`
`expressly rewritten herein,
`
`58.
`
`The Benefits clause in the valid and binding insurance
`
`contracts and insurance plans which the insureds/claimants paid
`
`for,
`
`require the Defendants to pay for the laboratory testing of
`
`the insureds’/cliaimants’ specimen.
`
`59,
`
`The insureds/claimants assigned to GENESIS,
`
`the right to
`
`collect from the insurance company, file insurance claims for the
`
`lab testing, as evidenced by insureds/claimants providing GENESIS
`
`the necessary insurance information for GENESIS to file the claims
`
`
`and collect the payments on behalf of the insureds.
`
`60.
`
`GENESIS is in privity with Defendants,
`
`so that GENESIS
`
`is entitled to prompt processing and payment of
`
`the claims for
`
`lab testing services rendered to Defendants'
`
`insureds/claimants.
`
`61.
`
`Defendants, however,
`
`repeatedly breached the insurance
`
`contracts by either failing to respond at all to properly submitted
`
`claims or,
`
`for
`
`those claims
`
`in which Defendants did choose to
`
`respond,
`
`regularly refusing to pay claims submitted by GENESIS,
`
`
`Page 17 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 18 of 34
`
`for intentional dilatory reasons that were (and remain) entirely
`
`groundless,
`
`62.
`
`Due
`
`to Defendants’ acts and/or omissions,
`
`including
`
`their multiple
`
`breaches
`
`of
`
`the
`
`insurance
`
`contracts
`
`and/or
`
`statutory requirements,
`
`the insureds/claimants have been deprived
`
`of
`
`payments
`
`for
`
`lab
`
`testing
`
`GENESIS
`
`provided
`
`to
`
`the
`
`insureds/claimants.
`
`63.
`
`Due
`
`to Defendants' multiple breaches of
`
`the insurance
`
`contracts, GENESIS has been deprived of payment for the insurance
`
`claims, which the insureds/claimants assigned GENESIS to collect
`
`on their behalf.
`
`64,
`
`Defendants made no payments on the balance due and owing,
`
`in the amount of, or in excess of $344,401, for services rendered
`
`oy GENESIS
`
`to Defendants'
`
`insureds/claimants,
`
`exclusive
`
`of
`
`interest and costs.
`
`65,
`
`Defendants’ failure to pay GENESIS as required under the
`
`insurance
`
`contracts
`
`(and applicable law)
`
`caused
`
`the
`
`insured/claimants and GENESIS to suffer damages,
`
`in the amount of,
`
`or in excess of $344,401, exclusive of costs and interest.
`
`BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
`
`COUNT TWO
`
`66.
`
`GENESIS realleges and incorporates herein by reference,
`
`each of the foregoing allegations, paragraphs 1
`
`through 65, as if
`
`expressly rewritten herein.
`
`Page 18 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 19 of 34
`
`Implied in ail contracts is the covenant of gocd faith
`67.
`and fair dealing.
`
`including but not
`Defendants’ acts and/or omissions,
`68.
`limited to,
`failure and/or refusal to respond at ail to properly
`submitted claims, or
`for
`those claims
`in which Defendants did
`choose to respond,
`regularly refusing to pay claims submitted by
`GENESIS for intentional dilatory reasons that were
`(and remain)
`entirely groundless, breached the implied covenants.
`
`Consequently, Defendants caused the insured/claimahts
`69,
`and GENESIS to suffer damages, for which Defendants are liable,
`in
`the amount of, or in excess of $344,401, exclusive of costs and
`interest.
`
`COUNT THREE
`FRAUDULENT MISREPRESENTATIONEemEORNLALION
`GENESIS realleges and incorporates herein by reference,
`70.
`each of the foregoing allegations, paragraphs 1.
`through 69, as if
`expressly rewritten herein.
`
`the
`in
`insureds/ciaimants
`the
`promised
`Defendants
`71,
`Benefits clause of the insurance contracts,
`that they would cover
`for the insureds/claimants,
`the cost of lab tests for specimen,
`72,
`Defendants knew, by their acts and/or omissions,
`that
`they merely intended for the insureds/claimants to rely on their
`representations in the insurance contracts, and subsequently for
`GENESIS,
`to rely on their representations, knowing that Defendants
`
`Page 19 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 20 of 34
`
`would later refuse to pay a substantial amount of claims that would
`
`grow over time.
`
`73.
`
`The insureds/claimants, and subsequently GENESIS, relied
`
`on Defendants’
`
`representations,
`
`in good faith, and such reliance
`
`was reasonable and justified.
`
`74,
`
`Defendants
`
`have
`
`therefore
`
`fraudulently induced
`
`the
`
`insureds/claimants to pay insurance premiums, and induced GENESIS
`
`to continue to perform laboratory testing services for Defendants’
`
`insureds/claimants, for which Defendants had no intention to pay,
`
`and for which Defendants,
`
`in fact, did not pay GENESIS.
`
`75,
`
`Consequently, Defendants caused the insured/claimants
`
`and GENESIS to suffer damages, for which Defendants are liable,
`
`in
`
`the amount of, or in excess of $344,401, exclusive of costes and
`
`interest.
`
`COUNT FOUR
`NEGLIGENT MISREPRESENTATION
`EMNTALLON
`
`76,
`
`GENESIS realleges and incorporates herein by reference,
`
`each of the foregoing allegations, paragraphs 1
`
`through 75, as if
`
`expressly rewritten herein.
`
`77,
`
`Defendants
`
`promised
`
`the
`
`insureds/claimants
`
`in
`
`the
`
`Benefits clause of the insurance contracts,
`
`that they would cover
`
`for the insureds/claimants,
`
`the cost of lab tests for specimen.
`
`78.
`
`Defendants
`
`knew that
`
`they merely intended for
`
`the
`
`insureds/claimants
`
`to
`
`rely on
`
`their
`
`representations
`
`in
`
`the
`
`Page 20 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 21 of 34
`
`insurance contracts, and subsequently for GENESIS,
`
`to rely on their
`
`representations, knowing that Defendants would later refuse to pay
`
`a substantial amount of claims that would grow over time.
`
`79,
`
`The insureds/claimants, and subsequently GENESIS, relied
`
`on Defendants' representations and/or promises,
`
`in good faith, and
`
`such reliance was reasonable and justified.
`
`80, Defendant's negligent misrepresentations fraudulently
`
`induced the insureds/claimants
`
`to pay insurance premiums,
`
`and
`
`Defendants'
`
`induced
`
`GENESIS
`
`to
`
`continue
`
`to
`
`perform
`
`laboratory testing services
`
`for Defendants'
`
`insureds/claimants,
`
`for which Defendants had no
`
`intention to pay,
`
`and for which
`
`Defendants,
`
`in fact, did not pay GENESIS.
`
`BI.
`
`Consequently, Defendants caused the insured/claimants
`
`and GENESTS to suffer damages, for which Defendants are liable,
`
`in
`
`the amount of, or
`
`in excess of $344,401, exclusive of costs and
`
`interest.
`
`COUNT FIVE
`
`PROMISSORY ESTOPPEL
`
`82.
`
`GENESIS realleges and incorporates herein by reference,
`
`each of the foregoing allegations, paragraphs 1 through 81, as if
`
`expressly rewritten herein.
`
`83.
`
`Defendants
`
`promised
`
`the
`
`insureds/claimants
`
`in
`
`the
`
`Benefits clause of the insurance contracts,
`
`that they would cover
`
`for the insureds/claimants,
`
`the cost of lab tests for specimen.
`
`Page 21 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 22 of 34
`
`84.
`
`Defendants
`
`knew that by their acts and/or omissions,
`
`their payments and communication,
`
`they merely intended for
`
`the
`
`insureds/claimants,
`
`and for GENESIS to rely on their promises,
`
`knowing that they would later refuse to pay a substantial amount
`
`of claims that would grow over time.
`
`85,
`
`The insureds/claimants and GENESIS relied on Defendants,
`
`especially because Defendants actually sprinkled payments
`
`to
`
`GENESIS, and Defendants' representatives communicated with GENESIS
`
`in good faith,
`
`and such reliance was
`
`reasonable and justified,
`
`with regard to ongoing and outstanding claims.
`
`86,
`
`Defendants,
`
`in fact,
`
`did not
`
`pay GENESIS
`
`for
`
`the
`
`continued testing,
`
`and the substantial amount of claims GENESIS
`
`later submitted to them.
`
`87.
`
`Defendants
`
`are
`
`or
`
`should be
`
`estopped from acting
`
`contrary to their representations and statutory obligations,
`
`88.
`
`Consequently, Defendants caused the insured/claimants
`
`and GENESIS to suffer damages, for which Defendants are liable,
`
`in
`
`the amount of, or in excess of $344,401, exclusive of costs and
`
`interest.
`
`COUNT SIX
`QUANTUM MERUIT / UNJUST ENRICHMENT
`
`89,
`
`GENESTS realleges and incorporates herein by reference,
`
`each of the foregoing allegations, paragraphs 1
`
`through 88, as if
`
`expressly rewritten herein.
`
`Page 22 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document1 Filed 04/11/24 Page 23 of 34
`
`90.
`
`In accordance with the insurance contracts between the
`
`Defendants
`
`and
`
`the
`
`insureds/claimants, Defendants
`
`collected
`
`insurance premium payments,
`
`in exchange
`
`for which they were
`
`Supposed to use a portion of the premium payments they pooled to
`
`pay
`
`for
`
`the
`
`laboratory testing services promised under
`
`the
`
`contracts.
`
`91,
`
`It is against equity and good conscience to permit
`
`Defendants to retain the money it intentionally and wrongfully
`
`failed to pay for lab tests, on behalf of the insureds/claimants.
`
`92.
`
`Defendants have been unjustly enriched in the amount of
`
`not
`
`less than $344,401, plus interest, which pursuant
`
`to which
`
`pursuant
`
`to 29 C.F.R.
`
`§ 2560.503-1(b) (4),
`
`the insureds/claimants
`
`authorized GENESIS to collect on their behalf.
`
`VI. RELIEF SOUGHT
`
`WHEREFORE, Plaintiff, Abira Laboratories, LLC d/b/a Genesis
`
`Diagnostics prays
`
`for
`
`judgment against Highmark West Virginia,
`
`Inc. d/b/a Highmark Blue Cross Blue Shield West Virginia,
`
`as
`
`follows:
`
`i. Damages
`
`in the amount of, or
`
`in excess of 5344,401 for
`
`(a) benefits due to the insureds/claimants, cumulatively,
`
`pursuant to 29 U.S.C. § 1132(a) (1) (B) and/or (b) equitable
`
`relief
`
`due
`
`to
`
`the
`
`insureds/claimants,
`
`cumulatively,
`
`pursuant
`
`to 29 U.S.C. § 1132 (a) (3);
`
`Page 23 of 25
`
`

`

`Case 2:24-cv-01513-CFK Document 1 Filed 04/11/24 Page 24 of 34
`
`ii. Compensatory damages, contractual damages

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