Case 2:22-cv-00072 Document 1 Filed on 04/11/22 in TXSD Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS,
`CORPUS CHRISTI DIVISION
`
`
`
`
`
`C.A. No. _____________________
`
`DIAGNOSTIC AFFILIATES OF
`NORTHEAST HOU, LLC D/B/A 24
`HOUR COVID RT-PCR LABORATORY
`
`Plaintiff,
`
`v.
`
`ENTRUST, LLC, D/B/A 90 DEGREE
`BENEFITS AND TEXAS SCHOOL
`HEALTH BENEFITS PROGRAM
`
`
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`ORIGINAL COMPLAINT AND JURY DEMAND
`
`Diagnostic Affiliates of Northeast Hou, LLC d/b/a 24 Hour Covid RT-PCR Laboratory
`
`(“24 Hour Covid” or “Plaintiff”) by and through its attorneys, brings its Original Complaint against
`
`Entrust, LLC d/b/a 90 Degree Benefits (“90 Degree Benefits”) and the Texas School Health
`
`Benefits Program, (“TSHBP”) and allege as follows:
`
`NATURE OF THE CLAIMS
`
`1.
`
`24 Hour Covid is a CLIA certified high complexity laboratory that has requested
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`emergency use authorization under Section 564 of the Federal Food, Drug, and Cosmetic Act;
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`therefore, has all authorizations and/or approvals necessary to render and be reimbursed for Covid
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`Testing services.1 At the height of the pandemic 24 Hour Covid operated seven specimen
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`collection sites located across the States of Texas and Louisiana, and partnered with employers
`
`and independent school districts across Texas to render Covid Testing services to employees,
`
`teachers, students, and other staff members.2
`
`1 See 21 U.S.C. § 360bbb–3.
`2 Humble ISD Expands Options for Student Covid Testing (https://www.humbleisd.net/covid19studenttesting);
`Humble
`ISD
`expands
`free COVID-19
`testing options
`to provide
`easier
`access
`for
`students
`
`
`
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`Case 2:22-cv-00072 Document 1 Filed on 04/11/22 in TXSD Page 2 of 13
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`2.
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`90 Degree Benefits is licensed in the State of Texas to act as a Third-Party
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`Administrator and serves in the trusted role of third-party claims administrator for self-funded
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`health plans including the TSHBP.
`
`
`
`3.
`
`Importantly, 24 Hour Covid does not have an in-network contract with 90 Degree
`
`Benefits or TSHBP, and despite 90 Degree Benefits giving the impression of its intent to negotiate
`
`an amount to be paid to 24 Hour Covid for Covid Testing services, its actions appear to be no more
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`than “smoke and mirrors” given their lack of response after 24 Hour Covid attempted – repeatedly
`
`– to resolve this matter.
`
`4.
`
`Under ordinary circumstances, not all self-funded health plans administered by 90
`
`Degree Benefits, like TSHBP, offer its members with access to OON providers and facilities.
`
`However, pursuant to Section 6001 of the FFCRA, as amended by Section 3201 of the CARES
`
`Act, all group health plans and health insurance issuers offering group or individual health
`
`insurance coverage are required to provide benefits for certain items and services related to
`
`diagnostic testing for the detection or diagnosis of COVID-19 without the imposition of cost-
`
`sharing, prior authorization, or other medical management requirements when such items or
`
`services are furnished on or after March 18, 2020, for the duration of the COVID-19 public health
`
`emergency regardless of whether the Covid Testing provider is an in-network or out-of-network
`
`(“OON”) provider.3
`
`5.
`
`Furthermore, Section 3202(a) of the CARES Act provides that all group health
`
`plans and health insurance issuers covering Covid Testing items and services, as described in
`
`Section 6001 of the FFCRA, must reimburse OON providers in an amount that equals the cash
`
`
`(https://communityimpact.com/houston/lake-houston-humble-kingwood/education/2021/01/07/humble-isd-expands-
`free-covid-19-testing-options-to-provide-easier-access-for-students/).
`3 See CMS FAQ Parts 42, 43, and 44, The FFCRA and the CARES Act.
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`Case 2:22-cv-00072 Document 1 Filed on 04/11/22 in TXSD Page 3 of 13
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`price for such Covid Testing services as listed by the OON provider on its public internet website
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`or to negotiate a rate/amount to be paid that is less than the publicized cash price.
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`6.
`
`Here, 90 Degree Benefits and TSHBP have intentionally disregarded its obligations
`
`to comply with its requirements to cover Covid Testing services without the imposition of cost-
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`sharing and other medical management requirements pursuant to Section 6001 of the FFCRA, and,
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`in instances where Plaintiff was reimbursed for its Covid Testing services, 90 Degree Benefits and
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`TSHBP have failed to reimburse Plaintiff in accordance with Section 3202(a) of the CARES Act.
`
`PARTIES
`
`7.
`
`24 Hour Covid is a limited liability company organized under the laws of the State
`
`of Texas, with its company headquarters located at 22751 Professional Drive, Suite 210,
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`Kingwood, Texas 77339. 24 Hour Covid has lawful standing to bring in all claims asserted herein.
`
`8.
`
`Defendant Entrust, LLC, d/b/a 90 Degree Benefits (“90 Degree Benefits”) is a
`
`domestic limited liability company organized under the laws of the State of Texas with its principal
`
`place of business located at 22322 Grand Corner Drive, Suite 200, Katy, Texas 77494-5941. 90
`
`Degree Benefits may be served with process by serving its registered agent for service at CT
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`Corporation System, 1999 Bryan Street, Suite 900, Dallas, Texas 75201-3136.
`
`9.
`
`Defendant Texas School Health Benefits Program (“TSHBP”) is a self-funded
`
`health plan subject to Section 6001 of the FFCRA, as amended. TSHBP may be served with
`
`process at its principal place of business located at 2175 N. Glenville Drive, Richardson, Texas
`
`75082.
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`
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`Case 2:22-cv-00072 Document 1 Filed on 04/11/22 in TXSD Page 4 of 13
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`JURISDICTION AND VENUE
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`10.
`
`This Court has federal question subject matter jurisdiction over this matter pursuant
`
`to 28 U.S.C. § 1131, as 24 Hour Covid asserts federal claims against Defendants in Count I under
`
`the FFCRA and the CARES Act.
`
`11.
`
`The Court has personal jurisdiction over the parties because 24 Hour Covid submits
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`to the jurisdiction of this Court, and Defendants systemically and continuously conduct business
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`in the State of Texas and otherwise have minimum contacts with the State of Texas sufficient to
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`establish personal jurisdiction over them.
`
`12.
`
`Venue is appropriate under 28 U.S.C. § 1391(b)(2), in that a substantial part of the
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`events or omissions giving rise to the claim occurred in this district. 24 Hour Covid alleges that
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`Defendants violated the FFCRA and the CARES Act within the District Court of Texas.
`
`STATEMENT OF FACTS
`
`I.
`
`BACKGROUND AS TO THE FFCRA AND THE CARES ACT
`
`13.
`
`Pursuant to Section 319 of the Public Health Service Act, on January 31, 2020, the
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`Secretary of Health and Human Services (“HHS”) issued a determination that a Public Health
`
`Emergency exists and has existed as of January 27, 2020, due to confirmed cases of COVID-19
`
`being identified in this country.4
`
`14.
`
`On March 13, 2020, the President issued Proclamation 9994 declaring a National
`
`Emergency concerning the COVID-19 outbreak with a determination that a national emergency
`
`exists nationwide, pursuant to Section 501(b) of the Robert T. Stafford Disaster Relief and
`
`Emergency Assistance Act.
`
`
`4 See https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx (Determination that a Public
`Health Emergency Exists).
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`15.
`
`To facilitate the nation’s response to the COVID-19 pandemic, Congress passed
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`the FFCRA and the CARES Act to, amongst other things, require group health plans and health
`
`insurance issuers offering group or individual health insurance coverage to: (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 (i.e. deductibles, copayments, and
`
`coinsurance) or prior authorization or other medical management requirements;5 and (ii) to
`
`reimburse any provider for COVID-19 diagnostic testing an amount that equals the negotiated rate
`
`or, if the plan or issuer does not have a negotiated rate with the provider (e.g. 24 Hour Covid), the
`
`cash price for such service that is listed by the provider on its public website in accordance with
`
`45 CFR § 182.40.6
`
`16.
`
`To further clarify to issuers and health plans their legal expectations when
`
`processing a claim for Covid Testing in accordance with the FFCRA and the CARES Act, the
`
`Department of Labor (“DOL”), the Department of Health and Human Services (“HHS”), and the
`
`Department of the Treasury (the “Treasury”) (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 adjudication of Covid Testing claims. The following FAQs
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`summarize the health plan and issuers’ obligations as it pertains to covering and paying for Covid
`
`Testing services during the public health emergency:
`
`The Departments FAQ, Part 42, Q1: Which types of group health plans and health insurance
`coverage are subject to section 6001 of the FFCRA, as amended by section 3201 of the CARES
`Act?
`
`Section 6001 of the FFCRA, as amended by section 3201 of the CARES Act, applies to group
`health plans and health insurance issuers offering group or individual health insurance coverage
`(including grandfathered health plans as defined in section 1251(e) of the Patient Protection and
`Affordable Care). The term “group health plan” includes both insured and self-insured group health
`
`5 Pub. L. No. 116-127 (2020).
`6 Pub. L. No. 116-136 (2020).
`
`
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`plans. It includes private employment-based group health plans (ERISA plans), non-federal
`governmental plans (such as plans sponsored by states and local governments), and church plans.
`
`“Individual health insurance coverage” includes coverage offered in the individual market through
`or outside of an Exchange, as well as student health insurance coverage (as defined in 45 CFR
`147.145).7
`
`The Departments FAQ, Part 42, Q3: What items and services must plans and issuers provide
`benefits for under section 6001 of the FFCRA?
`
`Section 6001(a) of the FFCRA, as amended by Section 3201 of the CARES Act, 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
`developer of such test does not submit a request under such section within a reasonable
`timeframe;…8
`
`The Departments FAQ, Part 42, Q6: May a plan or issuer impose any cost-sharing requirements,
`prior authorization requirements, or other medical management requirements for benefits that
`must be provided under section 6001(a) of the FFCRA, as amended by section 3201 of the CARES
`Act?
`
`No. Section 6001(a) of the FFCRA provides that plans and issuers shall not impose any cost-sharing
`requirements (including deductibles, copayments, 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
`standards of current medical practice.9
`
`The Departments FAQ, Part 42, Q7: Are plans and issuers required to provide coverage for
`items and services that are furnished by providers that have not agreed to accept a negotiated rate
`as payment in full (i.e., out-of-network providers)?
`
`Yes. Section 3202(a) of the CARES Act provides that a plan or issuer providing coverage of items
`and services described in section 6001(a) of the FFCRA shall reimburse the provider of the
`diagnostic testing as follows: …
`
`2. If the plan or issuer does not have a negotiated rater with such provider, the plan or issuer
`
`shall reimburse the provider in an amount that equals the cash price for such service as listed by
`
`
`7 See https://www.cms.gov/files/document/FFCRA-Part-42-FAQs.pdf.
`8 Id.
`9 Id.
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`the provider on a public internet website, or the plan or issuer may negotiate a rate with the provider
`for less than such cash price…10
`
`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 CARES Act establishing a process for setting
`reimbursement rates, as intended to protect participants, beneficiaries, and enrollees from being
`balance billed for an applicable COVID-19 test. Section 3202(a) contemplates that a provider of
`COVID-19 testing will be reimbursed either a negotiated rate or an amount that equals the cash
`price for such service that is listed by the provider on a public website. In either case, the amount
`the plan or issuer reimburses the provider constitutes payment in full for the test, with no cost
`sharing to the individual or other balance due. Therefore, the statute generally precludes balance
`billing for COVID-19 testing. However, section 3202(a) of the CARES Act does not preclude
`balance billing for items and services not subject to section 3202(a), although balance billing may
`be prohibited by applicable state law and other applicable contractual agreements.11
`
`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?
`
`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 symptoms or a recent known or suspected exposure, or otherwise
`impose medical screening criteria on coverage of tests.
`
`When an individual seeks and receives a COVID-19 diagnostic test from a licensed or authorized
`health care provider, or when a licensed or authorized health care provider refers an individual for
`a COVID-19 diagnostic test, plans 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.12
`
`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,
`
`
`
`10 Id.
`11 See https://www.cms.gov/files/document/FFCRA-Part-43-FAQs.pdf; See also FAQ Part 43 Q12: … Because the
`Departments interpret the 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 under the regulations implementing section 2719A of the PHS Act is superseded by
`the requirements of section 3202(a) of the CARES Act with regard to COVID-19 diagnostic tests that are out-of-
`network emergency services. For these services, the plan or issuer must reimburse an out-of-network provider of
`COVID-19 testing an amount that equals the cash price for such service that is listed by the provider on a public
`website, or the plan or issuer may negotiate a rate that is lower than the cash price.
`12 See https://www.cms.gov/files/document/faqs-part-44.pdf.
`
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`and/or a site that does not require appointments, plans and issuers generally must assume that the
`receipt of the test reflects an “individualized clinical assessment.”13
`
`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 document any steps that they are taking to do so…14
`
`
`
`
`17.
`
`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 expenses related to COVID-19 to provide members of HDHPs (including those HDHPs
`
`administered by the 90 Degree Benefits TPA) the confidence that Covid Testing will be covered,
`
`in full, by their HDHP. Notice 2020-15 states as follows:
`
` [d]ue 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 section 223(c)(2)(A) will not fail to be an HDHP merely because the health
`plan provides medical care services and items purchased related to testing for and treatment
`of COVID-19 prior to the satisfaction of the applicable minimum deductible.
`
`
`
`18.
`
`In addition to the federal guidance publicized by the Departments, the Texas
`
`Department of Insurance (“TDI”) issued Commissioner’s Bulletin # B-0017-20, which also
`
`pertains to coverage for COVID-19 testing and network adequacy. In this Bulletin, TDI mandates
`
`exclusive provider networks (“EPOs”) and health maintenance organizations (“HMOs”) to comply
`
`with the Covid Testing adjudication requirements of the FFCRA and the CARES Act, and
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`“instructs health plans to pay a provider’s negotiated rate or, if a health plan does not have a
`
`negotiated rate with the provider, pay the provider’s publicly available cash price for testing
`
`[emphasis added].”15
`
`
`
`13 Id.
`14 Id.
`15 In an inquiry posed by 24 Hour Covid to TDI pertaining to the applicability of Commissioner’s Bulletin #B-0017-
`
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`II.
`
`DEFENDANTS
`REQUIREMENTS
`
`
`
`NON-COMPLIANCE WITH
`
`CONGRESSIONAL
`
`19.
`
`90 Degree Benefits is a health benefits company that provides full third-party
`
`claims administration services to self-funded health plans, like TSHBP.
`
`20. Members of Defendants’ health plans received Covid Testing services from 24
`
`Hour Covid that were determined to be medically necessary by a medical practice/physician prior
`
`to 24 Hour Covid providing any Covid Testing services.
`
`21.
`
`After the Covid Testing services were provided to members of Defendants’ health
`
`plans, 24 Hour Covid timely submitted claims to 90 Degree Benefits for payment. 24 Hour Covid
`
`provided such services in good faith, and, as such, reasonably expected a fair and timely payment
`
`in return from 90 Degree Benefits and TSHBP. As detailed above, Section 6001 of the FFCRA
`
`requires mandatory coverage of Covid Testing services and Section 3202(a) of the CARES Act
`
`requires health plans and issuers to pay OON Covid Testing providers either: (i) cash prices as
`
`publicized by the providers or (ii) a negotiated amount.
`
`22.
`
`90 Degree Benefits representative, Michelle Bruce, initially reached out to 24 Hour
`
`Covid nearly one year ago in what Plaintiff initially believed was an attempt to negotiate a payment
`
`amount as required by Section 3202(a) of the CARES Act; however, despite 24 Hour Covid’s
`
`constant attempts to work with Ms. Bruce, no response was ever provided by Ms. Bruce. 24 Hour
`
`
`20 to PPO and POS plans, TDI states the following: “Yes, it is TDI’s position that PPO and POS plans must also
`comply with FFCRA and the ‘CARES Act’ … Commissioner’s Bulletin #B-0017-20 made it expressly clear that in-
`network based plans, “insurers offering exclusive provider networks (EPOs) and health maintenance organizations
`(HMOs)… fall within the federal definitions for group health plans or health insurance issuers offering group or
`individual health insurance coverage.” Presumably, the purpose of the bulletin was to expressly clarify for network-
`based plans such as EPOs and gated HMO plans our expectation to protect consumers regardless of network affiliation,
`as contemplated by the CARES Act and by Texas’ laws. PPO and EPO issuers are subject to but not limited to Texas
`Insurance Code (TIC) Chapter 1301. HMOs may issue POS plans as required under TIC Chapter 1273. As PPO and
`POS plans are captured under the terms “issuer”, “HMO”, “group health plans”, “health insurance issuers”, and
`“individual health insurance coverage”; PPO and POS plans are not excluded from compliance.”
`
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`Covid sent several emails over the course of the coming weeks and months, but neither Ms. Bruce
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`nor any representative of 90 Degree Benefits ever responded.16
`
`23. After several months of inaction from 90 Degree Benefits, 24 Hour Covid again
`
`attempted to reach out to 90 Degree Benefits to negotiate an amount to be paid. 24 Hour Covid
`
`sent several emails and made several calls to 90 Degree Benefits, and, despite 90 Degree Benefits
`
`repeated representations that 24 Hour Covid will be provided an agreement to memorialize the
`
`negotiated rates for Covid Testing services, 90 Degree Benefits again fell silent.17
`
`24.
`
`24 Hour Covid clearly attempted to work in good faith with 90 Degree Benefits and
`
`TSHBP, but, unfortunately, no good deed goes unpunished. Not only has 90 Degree Benefits not
`
`reciprocated 24 Hour Covid’s efforts, but 90 Degree Benefits and TSHBP have commenced with
`
`denying the majority of Covid Testing claims submitted by 24 Hour Covid. 90 Degree Benefits,
`
`as a third-party claims administrator of TSHBP, has and continues to act in bad faith.
`
`25.
`
`90 Degree Benefits and TSHBP have failed to cover Covid Testing services in
`
`compliance with Section 6001 of the FFCRA and reimburse 24 Hour Covid in compliance with
`
`Section 3202(a) of the CARES Act. Through its failure to comply with these strict requirements,
`
`it has left numerous patients financially responsible for the balance between the amounts paid by
`
`the Defendants and the billed amount/cash price. The manner in which 90 Degree Benefits
`
`adjudicated TSHBP’s members’ Covid Testing claims is in complete conflict with Congress and
`
`the Departments’ intentions that no covered individual is to ever be left financially responsible for
`
`Covid Testing services as it pertains to their cost-sharing and balance-billing obligations. 18
`
`
`16 Exhibit P-1 (Email Correspondence Regarding 24 Hour Covid’s First Attempt to Negotiate Covid Testing Rates).
`17 Exhibit P-2 (Email Correspondence Regarding 24 Hour Covid’s Second Attempt to Negotiate Covid Testing
`Rate); Exhibit P-3 (Additional Email Correspondence Regarding 24 Hour Covid’s Second Attempt to Negotiate
`Covid Testing Rate).
`18 The Departments FAQ, Part 44, Q9:
`Does Section 3202 of the CARES Act protect participants, beneficiaries, and enrollees from balance billing for
`a COVID-19 diagnostic test?
`
`
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`CAUSES OF ACTION
`
`STANDING TO PURSUE A CLAIM UNDER THE FFCRA AND CARES ACT
`
`26.
`
`24 Hour Covid has standing to sue under the FFCRA and the CARES Act. The
`
`Court in Diagnostic Affiliates of Northeast Hou, LLC v. United Healthcare Services, Inc. et al
`
`concluded there is an implied private right of action to enforce the provisions of the FFCRA and
`
`CARES Act reimbursement requirement.19 The Court, to determine this, used the rubric set out by
`
`the Supreme Court in Cort v. Ash 20, along with Touche Ross & Co. v. Redington21
`
` to determine
`
`whether Congress intended a private cause of action in drafting the FFCRA and the CARES Act.
`
`27.
`
`The Court considering the four factors set out in Cort and giving the greatest weight
`
`to the first 3 factors as most indicative of Congress’s intent, concluded 24 Hour Covid established
`
`the very heavy burden to show that Congress intended a private enforcement in regard to the
`
`FFCRA and CARES Act, and overcame the presumption that Congress did not intend to create a
`
`private cause of action. 22 To summarize, 24 Hour Covid is a part of the class intended to benefit
`
`from the statute because: (i) of the mandatory reimbursement language in the statute; (ii) the
`
`evidence of legislative intent to create a private right of action since the FFCRA and CARES Act
`
`state clear rights to reimbursement; and (iii) the Court concluded a private right of action is
`
`consistent with the Legislative scheme since Congress mandated reimbursement.
`
`
`
`
`The Departments read the requirement to provide coverage without cost sharing in section 6001 of the FFCRA,
`together with section 3202(a) of the CARES Act establishing a process for setting reimbursement rates, as intended
`to protect participants, beneficiaries, and enrollees from being balance billed for an applicable COVID-19 test. Section
`3202(a) contemplates that a provider of COVID-19 testing will be reimbursed either a negotiated rate or an amount
`that equals the cash price for such service that is listed by the provider on a public website. In either case, the amount
`the plan or issuer reimburses the provider constitutes payment in full for the test, with no cost sharing to the individual
`or other balance due.
`19 Diagnostic Affiliates of Northeast Hou, LLC. V. United Healthcare Services, Inc., et al., No. 2:21-CV-00131,
`(S.D. Tex. Jan. 19, 2022)
`20 Cort v. Ash, 422 U.S. 66, 78 (1975)
`21 Touche Ross & Co. v. Redington, 442 U.S. 560, 575–76 (1979)
`22 Acara v. Banks, 4701 F. 3d 569, 571 (5th Circ. 2006)(per curiam).
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`Case 2:22-cv-00072 Document 1 Filed on 04/11/22 in TXSD Page 12 of 13
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`COUNT I: VIOLATION OF THE FFCRA AND THE CARES ACT
`(Against All Defendants)
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`The foregoing allegations are re-alleged and incorporated by reference as if fully
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`28.
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`set forth herein.
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`29.
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`The Covid Testing services that 24 Hour Covid provided to members of TSHBP’s
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`health plans administered by 90 Degree Benefits constitute as in vitro diagnostic products for the
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`detection of COVID-19, as provided by Section 6001 of the FFCRA.
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`30.
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`24 Hour Covid is an OON laboratory and did not have a negotiated rate with 90
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`Degree Benefits or TSHBP for the provision of Covid Testing services despite 24 Hour Covid’s
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`multiple attempts to amicably work with Defendants in good faith.
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`31.
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`In compliance with the CARES Act, 24 Hour Covid posted its cash prices for Covid
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`Testing services on its public website.
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`32.
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`Under section 3202(a)(2) of the CARES Act, if a health plan does not have a
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`negotiated rate with a provider, such as 24 Hour Covid, for providing Covid Testing services, the
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`health plan is obligated to pay the provider its posted cash price for providing those services.
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`33.
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`By reason of the foregoing, 24 Hour Covid has been injured.
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`34.
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`Based on the above, 24 Hour Covid is entitled to judgment against 90 Degree
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`Benefits and TSHBP in an amount to be determined at the trial of this matter, plus interest thereon,
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`together with the costs and disbursements of this action, including reasonable attorneys’ fees.
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`JURY DEMAND
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`Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby requests a
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`trial by jury on all issues so triable.
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`Page 12 of 13
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`Case 2:22-cv-00072 Document 1 Filed on 04/11/22 in TXSD Page 13 of 13
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`Plaintiff demands judgment in its favor against the Defendants as follows:
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`PRAYER
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`1. Declaring that the Defendants have breached the FFCRA and the CARES Act
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`regarding the coverage and reimbursement of the Covid Testing service claims
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`submitted by 24 Hour Covid, as well as awarding injunctive and declaratory relief to
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`prevent 90 Degree Benefits and TSHBP’s continuous actions detailed herein;
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`2. All costs and expenses associated with this lawsuit, including, but not limited to, court
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`costs and attorneys’ fees; and
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`3. For such other relief as the Court deems just and proper.
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`Respectfully submitted,
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`By: /s/ Ebad Khan
`Ebadullah (Ebad) Khan
`Federal Bar No. 2810999
`State Bar No. 2409265
`ekhan@24hourcovid.com
`23330 US-59, Suite 300
`Kingwood, Texas 77339
`(281) 319.8306 Direct
`(281) 605.6690 Facsimile
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`Attorney for Plaintiff
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`Page 13 of 13
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