Ninth Circuit Rejects Provider Lawsuit Against Aetna over COVID-19 Testing Reimbursement
- September 08, 2023
The Ninth Circuit rejected September 7 a putative class action against Aetna Health of California Inc. for failing to fully reimburse an out-of-network provider for COVID-19 tests.
The three-judge panel affirmed a lower court decision holding that the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) did not include a private right of action against insurers to recover reimbursement for COVID-19 testing at providers' publicly posted cash price.
The Ninth Circuit is the first federal appeals court to rule on the issue, though every district court to consider the question has reached the same conclusion.
Plaintiff Saloojas, Inc., which operated specimen collection sites for COVID testing, filed five actions against Aetna arguing that the CARES Act required insurers to reimburse providers of diagnostic testing at either the negotiated rate or “an amount that equals the cash price for such service as listed by the provider on a public internet website.”
Saloojas conceded that the CARES Act did not include an express private right of action to enforce violations of the statue but argued that mandatory language requiring reimbursement of out-of-network providers at the posted cash price created an implied right of action.
The appeals court disagreed, holding the statute did not include “rights-creating” language evincing an intent to create a private right of action for out-of-network providers to sue insurers.
The relevant provision focuses on the regulated party—i.e., the insurer—and the diagnostic test “provider” is only the object of the obligation, the appeals court reasoned.
Moreover, the fact that COVID relief legislation specified enforcement mechanisms only through the federal agencies weighed against finding congressional intent to create a private right of action for providers.
Saloojas, Inc. v. Aetna Health of Cal., Inc., No. 22-16034 (9th Cir. Sept. 7, 2023).