Petition for Writ of Certiorari — Saloojas, Inc., Petitioner v. Aetna Health of California, Inc.

No. 22In the

Supreme Court of the United States

SALOOJAS, INC.,

Petitioner,

v.

AETNA HEALTH OF CALIFORNIA, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael L. Gabriel, Esq.

Counsel of Record

1903 A Cooley Avenue

East Palo Altos, CA 94303

(650) 888-9189

aetal@earthlink.net

Counsel for Petitioner

316044

A

(800) 274-3321 • (800) 359-6859

i

I. QUESTION PRESENTED

Did Congress have an implicit intent to create a

private remedy in favor of diagnostic testing providers

for full reimbursement under the CARES Act?

ii

II. CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, the undersigned

counsel of record for Petitioner SALOOJAS, INC., hereby

certifies that SALOOJAS, INC., is incorporated and does

not have any parent companies, subsidiaries, or affiliates

that have issued shares to the public.

iii

III. PARTIES TO THE PROCEEDINGS

AND RELATED CASES

SALOOJAS, INC., Petitioner, v. AETNA HEALTH

OF CALIFORNIA, INC., Respondents. Below are cases

directly related to the case in this Court:

* Saloojas, Inc vs. Aetna Health of California, Inc, No:

22-16034, No: 22-16035, No: 22-16036, No: 22-16037, No:

22-16038, United States Court Appeals for the Ninth

Circuit.

* Saloojas, Inc vs. Aetna Health of California, Inc, No.

22-cv-01696 JSC.

U.S. District Court for Northern

District of California Judgment entered August 17,

2022.

* Saloojas, Inc vs. Aetna Health of California, Inc, No.

22-cv-01702-JSC.U.S. District Court for Northern

District of California Judgment entered August 17,

2022. Notice of Appeal July 15, 2022,

* Saloojas, Inc vs. Aetna Health of California, Inc, No.

22-cv-01703-JSC. U.S. District Court for Northern

District of California Judgment entered August 17,

2022.

* Saloojas, Inc vs. Aetna Health of California, Inc, No.

22-cv-01704-JSC. U.S. District Court for Northern

District of California Judgment entered August 17,

2022.

iv

* Saloojas, Inc vs. Aetna Health of California, Inc, No.

22-cv-01706-JSC. U.S. District Court for Northern

District of California Judgment entered August 17,

2022.

* Saloojas, Inc vs. Aetna Health of California, Inc No:

21SC004114. The State of California, Alameda County

Superior Court Small Claims Division

* Saloojas, Inc vs. Aetna Health of California, Inc No:

21SC004108 The State of California, Alameda County

Superior Court Small Claims Division

* Saloojas, Inc vs. Aetna Health of California, Inc

No: 21SC004106. The State of California, Alameda

County Superior Court Small Claims Division

* Saloojas, Inc vs. Aetna Health of California, Inc

No: 21SC004104. The State of California, Alameda

County Superior Court Small Claims Division

* Saloojas, Inc vs. Aetna Health of California, Inc

No: 21SC004091. The State of California, Alameda

County Superior Court Small Claims Division

v

IV. TABLE OF CONTENTS

Page

I. QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

II. CORPORATE DISCLOSURE STATEMENT . . . . . ii

III. PARTIES TO THE PROCEEDINGS

AND RELATED CASES . . . . . . . . . . . . . . . . . . . . . . iii

IV. TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . v

V. TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . viii

VI. TABLE OF CITED AUTHORITIES . . . . . . . . . . ix

VII. PETITION FOR WRIT OF CERTIORARI . . . . . . 1

VIII. OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

IX. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

X. CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED . . . . . . 2

XI. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A. The Cour t Should Grant Expedited

Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Health Care Providers Have An Implied

Private Right Of Action for Private

Remedy Under The CARES Act . . . . . . . . . . . . . 3

vi

Table of Contents

Page

C. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.

Due To The Need For Immediate

A nd Efficient Testing, Congress

Enacted The FFCRA And CARES

Act So Patients Could Easily Get

Tested And Providers Would Be Fully

Compensated During The Pandemic . . . . . . 6

2.

To Combat The National Pandemic,

The Petitioner Invested in Creating

Testing Sites At The Very Start Of The

Pandemic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3.

Aetna Circumvented and Undermined

Federal Law Reflected in the CARES

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . 10

XII. REASON FOR GRANTING THE PETITION . . 12

A. This Case Warrants This Court’s Review . . . . . 12

Factor 1. Is Plaintiff in a Class the

Statutes Intended to Benefit? . . . . . . . . . . . . . . . . 14

Factor 2. Is There Evidence of Legislative

Intent to Create or Deny a Private Right

of Action? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

vii

Table of Contents

Page

Factor 3. Is a Private Right of Action

in Favor of Plaintiff Consistent with the

Legislative Scheme? . . . . . . . . . . . . . . . . . . . . . . . 18

Factor 4. Would It Be Inappropriate to

Create a Federal Right, Given the Context

of State Concerns? . . . . . . . . . . . . . . . . . . . . . . . . 18

1.

The Lower Courts Have Erred in the

Opinions Below, and Such Errors Must

Be Corrected To Ensure Public Safety

and Save Lives . . . . . . . . . . . . . . . . . . . . . . . 19

2.

Health Care Providers Have A n

Implied Private Right Of Action for

Private Remedy Under The CARES

Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

a. The CARES Act . . . . . . . . . . . . . . . . . . . . 26

b. Cong ress Sought to Rapidly

Increase Access to COVID-19

Testing Creating a Reimbursement

Right W i t h o u t Wr i t t e n

Remedy Favoring An Implied

R i g h t C on s i s t e nt w it h t he

Purpose of the CARES Act . . . . . . . . . 28

XIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

viii

V. TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF CALIFORNIA,

FILED JUNE 23, 2022 . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16a

ix

VI. TABLE OF CITED AUTHORITIES

Page

CASES

Alexander v. Sandoval,

532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . 17, 26, 30

Am. Video Duplicating, Inc. v. City Nat’l Bank,

2020 WL 6882735 (C.D. Cal. Nov. 20, 2020) . . . . . . . 11

Ashcroft v. Iqbal,

556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Cannon v. University of Chicago,

441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Cort v. Ash,

422 U.S. 66 (1975) . . . . . . . . . . . . . . . . . . . . . . . . passim

Diagnostic Affiliates of Ne. Hou, LLC v.

United Healthcare Servs.,

2022 WL 214101 (S.D. Tex. Jan. 18, 2022) . . 12, 13, 23

Franklin v. Gwinnett County Pub. Schs.,

503 U.S. 60 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

x

Cited Authorities

Page

Graham v. Bhd. of Locomotive Firemen

& Enginemen,

338 U.S. 232 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Hawaii Motor Sports Center v. Babbitt,

125 F. Supp. 2d 1041 (D. Haw. 2000) . . . . . . . . . . . . . 16

Int’l Bhd. of Elec. Workers v. Foust,

442 U.S. 42 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Janus v. Am. Fed’n of State, Cty.,

& Mun. Emps., Council 31,

138 S. Ct. 2448 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 28

Leonard F. v. Israel Disc. Bank of N.Y.,

199 F.3d 99 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . 20

Lindsay v. Ass’n of Prof’l Flight Attendants,

581 F.3d 47 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 24

M.F. v. State of New York Exec.

Dep’t Div. of Parole,

640 F.3d 491 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 24

Maine Comm. Health v. US Mod. Health Plan,

140 S. Ct. 1308 (2020) . . . . . . . . . . . . . . . . . . . 13, 14, 16

Merrill Lynch, Pierce, Fenner & Smith, v.

Curran,

456 U.S. 353 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

xi

Cited Authorities

Page

Murphy Med. Assocs., LLC v.

Cigna Health & Life Ins.,

No. 3:20cv1675(JBA), 2022 WL 743088

(D. Conn. Mar. 11, 2022) . . . . . . . . . . . . . . . . . 13, 19, 21

Oxford Univ. Bank v. Lansuppe Feeder,

933 F.3d 99 (2d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . 26

Patane v. Clark,

508 F.3d 106 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 20

Republic of Iraq v. ABB AG,

768 F.3d 145 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 24

San Juan Cable LLC v. P. R. Tel. Co.,

612 F.3d 25 (1st Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 24

Steele v. Louisville & N.R. Co.,

323 U.S. 192 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Transamerica Mortg. Advisors, (TAMA) v.

Lewis,

444 U.S. 11 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

United States v. Langston,

118 U.S. 389 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Villager Pond, Inc. v. Town of Darien,

56 F.3d. 375 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

xii

Cited Authorities

Page

STATUTES AND CONSTITUTIONAL PROVISIONS

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 1441(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 2101(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Coronavirus Aid, Relief, and Economic

Security (“CARES”) Act, Pub. L. 116-136

(2020) the “CARES Act” . . . . . . . . . . . . . . . . . . . passim

Families First Coronavirus Response Act

(“FFCRA”), Pub. L. No. 116-127, 134 Stat. 178

(March 18, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . passim

RULES

Fed. R. Civ. P. 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1

VII. PETITION FOR WRIT OF CERTIORARI

PETITIONER SALOOJAS, INC., by and through

Michael L. Gabriel, Attorney for Petitioner, respectfully

requests that this court issue a writ of certiorari to reverse

and remand the decision from The Northern District

of California issued an order in Saloojas, Inc. v. Aetna

Health of California, Inc., No. 22-CV-01696-JSC, 2022

WL 2267786 (N.D. Cal. June 23, 2022), which held there

is no private cause of action under The CARES Act.

VIII. OPINIONS BELOW

The Northern District of California issued the order

in this instant case, Saloojas, Inc. v. Aetna Health of

California, Inc., No. 21-cv-01696-JSC [lead case number],

2022 WL 2267786 (N.D. Cal. June 23, 2022), holding that

there is no private cause of action and remedy under the

CARES Act. In doing so, the court granted Aetna Health

of California, Inc.,’s Motion to Dismiss, which disposed

of the matter in its entirety. [Order Granting Motion to

Dismiss, June 23, 2022, Appendix 1a].

IX. JURISDICTION

Most recent opinion was issued on June 23, 2022.

Notice of Appeal was filed in the Ninth Circuit Court

of Appeals on July 15, 2022, which is matter is pending.

Therefore, this federal case is invoked under 28 U.S.C.

§ 1254(1). Pursuant to 28 U.S.C. § 2101(e), Petitioner

seeks this application to the Supreme Court for a writ of

certiorari to review the case before judgment has been

rendered in the court of appeals, which is timely and made

prior to judgment being issued.

2

X. CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The Coronavirus Aid, Relief, and Economic Security

(“CARES”) Act, Pub. L. 116-136 (2020) the “CARES Act”,

which was passed by Congress. Appendix 16a

Section 6001 of the Families First Coronavirus

Response Act (“FFCRA”), as amended by Section 3201

of the CARES Act. Appendix 21a.

XI. STATEMENT OF THE CASE

A. The Court Should Grant Expedited Review.

The court should grant expedited review of this writ

to settle the conflict of jurisdictions. Three other states

have motions to dismiss pending which need Supreme

Court resolution to settle the issue of who can enforce the

Cares Act. The three states are as follows: New Jersey:

OPEN MRI AND IMAGING OF RP VESTIBULAR

DIAGNOSTICS, P.A., vs. CIGNA HEALTH AND LIFE

INSURANCE COMPANY, Case No: 2:20-CV-10345KMSK: Minnesota: GS LABS, LLC, v. MEDICA

INSURANCE COMPANY, Case Number: No.: 21-cv2400; Washington PREMERA BLUE CROSS v. GS

LABS, LLC, Case No. 2:21-cv-01399-LK.

There is a growing emergency with the resurgence

of the pandemic for which the CARES ACT is front and

center in the COVID treatment. By granting this writ,

the court can save more lives than most physicians will

save in their entire career.

3

In 2020 during the prior Trump Administration,

the insurance companies adhered to the Cares Act

thereby keeping the rate of people who died of COVID

to approximately 350,381 people according to the CDC

figures. Thereafter, January 2021 at the onset of the Biden

Administration wherein the Cares Act was no longer

enforced, insurance companies stopped reimbursing

health care providers in full as required by the Cares

Act. Petitioner in this matter could not get his services

reimbursed in April 2021. Instead, Aetna forced Petitioner

to navigate mountains of paper and bureaucracy to

delay and obstruct reimbursement. The Cares Act was

specifically enacted to avoid this conduct by insurers. Now

that the Cares Act is no longer enforced, the number of

COVID Deaths have nearly tripled to well over one million.

The difference can be attributed to insurance companies

not paying for medical testing services in violation of the

Cares Act. This is a real emergency situation for which

the Supreme Court is needed immediately to settle the

law on a national COVID medical policy so that people do

not die unnecessarily.

B. Health Care Providers Have An Implied Private

Right Of Action for Private Remedy Under The

CARES Act.

This is an action seeking congressionally-mandated

reimbursement for the full price of lifesaving COVID-19

diagnostic testing services that Petitioner Saloojas, Inc.,

provided to insureds of Respondent Aetna Health of

California, Inc.

Congress took the extra ordinary step of enacting

Coronavirus Aid, Relief, and Economic Security Act

4

(“CARES Act”), and Section 6001 of the Families First

Coronavirus Response Act (“FFCRA”), as amended by

Section 3201 of the CARES Act to reduce the pandemic’s

harm by ensuring that any person who needed a test

could get one. Appendix 16a, 21a. Congress addressed

such concern by requiring all health insurance plans to

cover COVID-19 testing with no out of pocket expenses to

patients. The acts sought to make certain that no person

would have to consider the economic cost of getting tested,

and so co-payments, deductibles, and co-insurance were

prohibited. In doing so, Congress mandated that insurers

like Aetna “shall reimburse the provider of the diagnostic

testing.” Despite such mandate, Aetna has refused to do

so, and such refusal jeopardizes public safety and violates

the intent of Congress.

It was the need to get tested for COVID which gave

cause for Congress to enact the CARES Act and such

reason still exists today. The need is exemplified in

a message issued by the White House, which states:

“The American people deserve an urgent, robust, and

professional response to the growing public health and

economic crisis caused by the coronavirus (COVID-19)

outbreak. President Biden believes that the federal

government must act swiftly and aggressively to help

protect and support our families, small businesses, first

responders, and caregivers essential to help us face this

challenge, those who are most vulnerable to health and

economic impacts, and our broader communities – not to

blame others or bail out corporations. President Biden and

Vice President Harris have a seven-point plan to beat

COVID-19. Ensure all Americans have access to regular,

reliable, and free testing.”

5

There is now a split in the jurisdictions between two

United States District Courts as whether thereis a private

of right of action to enforce the will of Congress for free

COVID testing necessary to save lives. This division

reveals a conflict in jurisdictions wherein the Texas

District Court and the Connecticut and California District

Courts have conflicting orders. The Texas District

Court ruled a private right of action does exist, and the

Connecticut and California District Courts rules there

is not a private remedy available. There are three other

states wherein motions to dismiss on this very question of

law is pending. Thus, showing a need for Supreme Court

resolution. Furthermore, there is a growing emergency

stemming from the resurgence of the pandemic for which

the enforcement of The CARES Act is necessary to save

lives. Therefore, United States Supreme Court should

review this case to enforce The CARES Act to ensure

“free testing”, which is needed to prevent more deaths

from COVID and save lives.

C. Statement of Facts

In early 2020 the COVID-19 pandemic quickly set

upon the United States. Due to the hyperbolic onset of

COVID-19, California, and the rest of the country, were

unprepared in many critical aspects. By late March of

2020, the COVID-19 outbreak, was ravaging the country

as America’s worst pandemic in over 100 years. The

COVID-19 illness was easily spread by an infected person,

even before symptoms developed. Any effort to contain the

disease required testing as many Americans as possible.

Rapid testing was needed to identify those infected to

provide prompt treatment. Such rapid testing was required

so that infected people would quarantine themselves to

6

prevent infection of this highly communicable disease. In

response, the United States Congress and the President

of the United States agreed that immediate and drastic

action was necessary. The Government took the extra

ordinary step of enacting a pair of statutes to reduce the

pandemic’s harm by ensuring that any person who needed

a test could get one.

1.

Due To The Need For Immediate And Efficient

Testing, Congress Enacted The FFCRA And

CARES Act So Patients Could Easily Get Tested

And Providers Would Be Fully Compensated

During The Pandemic.

On March 27, 2020, the President signed into law

the Coronavirus Aid, Relief, and Economic Security

(“CARES”) Act, Pub. L. 116-136 (2020) (the “CARES

Act”, which was passed by Congress. Congress enacted

legislation to help the country fight the virus. Congress

enacted the CARES Act. Taken together, these statutes

required all health insurance plans to cover COVID-19

testing with no out-of-pocket expenses to patients. These

statutes allowed patients to have access to a COVID-19

test that was provided by a practice that was not in the

patient’s insurance. Both the FFCRA and the CARES

Act addressed how insurers were required to reimburse

both “in- network” and “out-of-network providers.”

In a section titled “ACCESS TO HEALTH CARE

FOR COVID-19 PATIENTS,” the CARES Act added a

requirement that health plans covered by the FFCRA

“shall reimburse the provider of the diagnostic testing

as follows . . .” for covered tests and services. The Act

then set forth alternative methods to calculate the actual

payment amounts health plans were required to pay

7

providers for testing and other services. Importantly,

the Act addressed payment for services provided by

“out-of-network” providers and “in-network” providers.

To be more precise, under the legislation, if the patient’s

plan already had a negotiated rate with the provider, i.e.,

the provider was “in-network,” the plan had to pay that

negotiated rate. Furthermore, the Act also addressed the

payment requirements for providers who did not have

a negotiated rate, i.e., “out-of-network providers.”

Insurers were required to pay “out of network” providers

their full cash price for the test unless the insurer could

negotiate a lower rate with the provider. In addition to

reimbursing providers for the COVID tests, insurers were

to reimburse providers for other related tests, items, and

services furnished during a visit that resulted in an order

for a COVID-19 or COVID-19 anti body test.

The acts sought to make certain that no person would

have to consider the economic cost of getting tested,

and so co-payments, deductibles, and co-insurance were

prohibited. Removing barriers that might discourage

patients from getting tested was only part of the goal

– Congress also needed to persuade practitioners to

participate and invest in establishing testing centers

that would test anyone. This included making sure that

providers would not turn away patients who had insurance

coverage, but the coverage was through a plan in which

the provider was not a contracted participant, i.e., was

“out-of-network.” Congress addressed both in- network

and out-of-network providers directly, by requiring plans

to cover testing from out-of-network providers on the same

terms as from in-network providers. These express terms

were that there would be no out of pocket expenses, no

co- payments, and no deductibles. Congress recognized,

8

however, that plans often pay very little to out-of-network

providers, something they do to incentivize their members

to use in-network providers who have agreed by contract

to accept discounted rates. In order to prevent providers

from declining to provide testing services to patients

who were out-of-network with respect to the providers,

Congress set out a specific reimbursement protocol

for out-of-network providers, which required plans pay

such providers their cash price, unless a lower price had

been negotiated.

2.

To Combat The National Pandemic, The

Petitioner Invested in Creating Testing Sites

At The Very Start Of The Pandemic.

Petitioner were among the earliest pioneers in the

effort, establishing testing centers to provide around the

clock opportunities for residents of Northern California

to get tested. Their efforts included testing over 35,000

patients and provided no-cost testing to over 3,000

uninsured patients. Petitioner were hailed by local leaders

such as the Mayor of Newark, California.

In doing so, Petitioner invested hundreds of thousands

of dollars to transform its traditional medical practice to

setup COVID-19 testing sites for walk in patients. These

sites – which were erected virtually overnight – were

designed to provide efficient drive and/or walk-through

COVID-19testing to patients with symptoms or suspected

exposure. This was the first line of defense against

the pandemic. Petitioner operated drive and/or walkthrough COVID-19 testing site in Newark, California.

In addition to creating the physical infrastructure for the

testing sites, Petitioner had to assemble the clinical and

9

administrative staff needed to operate the sites. Similarly,

it had to develop extensive protocols and procedures to

ensure the sites were effectively and efficiently operating,

and that all safety, infection control, OSHA, and CDC

guidance were observed. Petitioner’s efforts to drastically

increase testing in the area were a key and valuable part

of the population’s defenses against COVID-19.

3.

Aetna Circumvented and Undermined Federal

Law Reflected in the CARES Act.

In its response to the national emergency, Aetna

did not embrace the coordinated approach to testing

developed by Congress. Instead, Aetna looked to

protect their bottom-line by engaging in a campaign to

undermine and circumvent federal policy and federal law

as reflected in the FFCRA and the CARES act, as well as

the guidance issued by federal agencies. Aetna refused to

honor its coverage requirements under federal legislation

by routinely refusing to pay providers. Consequently,

providers were not fully paid for their services though

federal law required Aetna to provide full reimbursement.

Providers challenged Aetna’s refusals and their response

was essentially, “tough luck – there is nothing you can do

about it.”

Aetna’s refusal to pay for rendered COVID testing

services were expressly prohibited. Aetna has denied

reimbursement for COVID-19 testing and testing- related

services for thousands of Aetna’s members or beneficiaries.

Aetna still owes more than $1 million dollars to

Petitioner for its rendered COVID testing services.

10

D. Procedural History

On December 14, 2021, Petitioner filed a complaint

in the Small Claims Division of the Superior Court of

California, County of Alameda. The Complaint sought

money that was owed by Aetna Health of California and

punitive damages.

In the Complaint, Petitioner set forth that they

provided COVID-19 testing, which was not paid by Aetna,

and such lack of payment was “an intentional violation of

the CARES ACT.” Further, that Petitioner underwent

Aetna’s appeal process, resulting in a denial of full

payment mandated under the CARES ACT.

Aetna was served with the Complaint on February 15,

2022, and on March 16, 2022, it removed the case pursuant

to 28 U.S.C. § 1331 and 28 U.S.C. § 1441(a) on grounds

that the alleged money owed to Petitioner was pursuant

to the provision of a federal statute.

Once removed to the Northern District, Aetna moved

to have the Complaint dismissed arguing that no private

cause of action or relief exists under the CARES Act.

In doing so, Aetna successfully had the Complaint be

dismissed with prejudice pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. In their Motion, Aetna

attempted to circumvent federal law by arguing that there

is no private right of action under the FFCRA or the

CARES Act, seeking dismissal of Plaintiff’s Complaint.

Aetna cited cases rejecting attempts to privately

enforce “various provisions” of the over 300 pages CARES

Act. However, not one of the cases cited addressed the

11

specific provision of the CARES Act that the Petitioner

sought to enforce. As noted, the CARES Act is over 300

pages of legislation of which only two pages are devoted

to COVID-19 testing. The bulk of the Act addresses

economic relief and stimulus programs. Aetna’s cases

failed to address the issue before the Court – whether

Part II, Subpart A, Section 3201of the CARES Act

permits out-of- network providers to sue insurers to

collect reimbursement payments. Instead, the cases cited

by Aetna only concerned payroll protection loans and

other legislation to assist small businesses. Am. Video

Duplicating, Inc. v. City Nat’l Bank, No. 20-cv-04036,

2020 WL 6882735, at *1 (C.D. Cal. Nov. 20, 2020) (concerns

Paycheck Protection Program and the right of an agent

to collect fees).

Petitioner’s opposition argued that a private right

of action can readily be inferred from the language and

context of the CARES Act establishing the provider’s

right to reimbursement for the COVID testing services

it provided in both its Memorandum of Law In Opposition

to Defendant’s Motion to Dismissal and its Supplemental

Brief in Support of Opposition to Motion to Dismiss

Plaintiff’s Complaint for Failure to State a Claim.

On June 23, 2022, the Northern District of California

issued the order in this instant case, Saloojas, Inc. v. Aetna

Health of California, Inc., No. 22-CV-01696-JSC, 2022 WL

2267786 (N.D. Cal. June 23, 2022), holding that there is no

private cause of action under the CARES Act. In doing

so, the Court granted Aetna’s Motion to Dismiss, which

dismissed the matter in its entirety.

12

The Saloojas Decision states without explanation that

there is no indication of intent. Thus, failing to recognize

evidence of Congress’s explicit or implicit intent to create a

remedy. The Decision further fails to provide full analysis

of the law.

Consequently, Petitioner herein seeks urgent relief.

Petitioner believes this decision fails to fully consider the

text, structure, and legislative history of the CARES Act,

all of which demonstrate that Congress intended to create

a private remedy in favor of diagnostic testing providers.

XII. REASON FOR GRANTING THE PETITION

A. This Case Warrants This Court’s Review

There is a conflict of law in the District Courts, and

this case is an ideal vehicle to resolve such conflict. The

legal issues are of importance even beyond the scope of

the present case and is of great national significance as it

relates to a private right of action under the Cares Act to

enforce public safety to save lives. By granting this writ,

the court can save more lives than most physicians will

save in their entire career

Until this instant case, there have been only two cases

addressing whether an out of network provider can bring a

private suit for nonpayment under the CARES Act. There

is now a split in the jurisdictions. The two cases that have

addressed whether an implied right of action exists for a

testing reimbursement claim under the CARES Act were

in the Texas District Court in Diagnostic Affiliates of Ne.

Hou, LLC v. United Healthcare Servs., Inc., No. 2:21-CV00131, 2022 WL 214101, at *4–9 (S.D. Tex. Jan. 18, 2022),

13

Civ Act found that a private right of action exists, while

in Murphy Med. Assocs., LLC v. Cigna Health & Life Ins.

Co., No. 3:20cv1675(JBA), 2022 WL 743088, at *2–6 (D.

Conn. Mar. 11, 2022), the Connecticut Court held that a

private right of action did not exist because essentially

it was not expressly stated by Congress. Though the

Connecticut Court referenced the Texas District Court’s

ruling in Diagnostic Affiliates of Northeast Houston, LLC

vs. United Health Care Service, it was not fully addressed.

This Court in a case of a nearly identical issue of

whether Congress imposed a liability and obligation to

pay under the Patient Protection and Affordable Care Act

was relied upon by the Texas court Maine Comm. Health

v. US Mod. Health Plan, Inc., 140.S.Ct. 1320, 1320 (2020),

which stated:

“Congress can also create an obligation directly by

statute, without also providing details about how it must be

satisfied. Consider, for example, United States v. Langston,

118 U.S. 389, 6 S.Ct. 1185, 30 S.Ct. 164 (1886). In that case,

Congress had enacted a statute fixing an official’s annual

salary at “$7,500 from the date of the creation of his office.”

Id., at 394, 6 S.Ct. 1185. Years later, however, Congress

failed to appropriate enough funds to pay the full amount,

prompting the officer to sue for the remainder. Id., at 393,

6 S. Ct. 1185. Understanding that Congress had created

the obligation by statute, this Court held that a subsequent

failure to appropriate enough funds neither “abrogated [n]

or suspended” the Government’s pre-existing commitment

to pay. Id., at 394, 6 S.Ct. 1185. The Court thus affirmed

judgment for the officer for the balance owed. Ibid.5”

14

The Texas Court looked at this US Supreme Court

case and concluded that Congress intended to impose the

liability on insurance companies for payment to out- ofnetwork providers such as Petitioner for their rendered

Covid testing services. The issue was then to decide

whether there was also an implied private right of action

giving such out of network providers the ability to sue

for nonpayment under the CARES Act. To then make the

decision as to whether a private right of action existed, the

Texas Court then went on to apply the Supreme Court test

as set forth in Cort v. Ash, 422 U.S. 66, 78 (1975) (citations

omitted) for determining whether a private right of action

was implied. In doing so, the Texas Court identified four

factors to consider in determining whether a private

remedy is implicit in a statute not expressly providing

one as set forth below:

Factor 1. Is Plaintiff in a Class the Statutes

Intended to Benefit?

The court found it was clear that the legislative

objective was to ensure that COVID-19 testing was widely

available to the entire population. This required that

providers be willing to supply and administer the tests,

which in turn required a reliable method of payment

for that service. Payment of providers was sufficiently

essential for the legislature to create a mandatory scheme,

using the term “shall,” for determining the amount to be

paid and protecting patients from any burden associated

with the cost or other administrative requirements. The

FFCRA and CARES Act directly apply to Covid testing

services and the mandatory reimbursement language

in favor of testing providers supports finding an implied

private right of action for the claims. See Maine Cmty.

15

Health Options v. United States, 140 S. Ct. 1308, 1320

(2020). That the plain language of the statutes indicated

that Diagnostic Affiliates was among the class of providers

for whose benefit the payment provisions were included.

The Court’s view of the mandatory language of the

statutes for purposes of creating a private right of action

should not be read to foreclose any defense or counterclaim challenging the propriety of Diagnostic Affiliates’

pricing as such issue was not before the Court.

In Diagnostic Affiliates, the Defendants asserted

that the FFCRA and the CARES Act were intended to

benefit patients only. And an out-of-network provider may

routinely assert its claim through an insured patient’s

rights under the applicable group health plan. D.E. 121, p.

6. However, the Court found this construction of the rights

and remedies in the statutes failed to account for the fact

that patients were to be spared any cost or administrative

burden in obtaining COVID-19 testing. No plan coverage

decision is necessary because the FFCRA requires

coverage. No rate decision is necessary because the

CARES Act prescribes the method for determining the

rate. Therefore, there is no reason to involve the patient

in the enforcement of the claim.

The Texas Court concluded that the FFCRA and

CARES Act do intend to benefit patients. But to effectuate

that, it also intends to benefit testing providers. These are

not mutually exclusive concepts.

16

Factor 2. Is There Evidence of Legislative Intent

to Create or Deny a Private Right of Action?

The Court found that the terms of the statutes,

themselves, evidence legislative intent as follows: The

mandatory nature of the reimbursement right supports

recognition of an implied private right of action. See Maine

Cmty. Health Options, 140 S. Ct. at 1320. Envision argues

against that proposition, citing Hawaii Motor Sports

Center v. Babbitt, 125 F. Supp. 2d 1041, 1047 (D. Haw. 2000)

as stating that mandatory language does not automatically

imply a private right of action. But the Court does not

treat the mandatory language as dispositive. Consistent

with the analysis in Hawaii Motor Sports, the mandatory

language is one aspect to consider when doing the fourpart Cort review. Id. n.3. In Hawaii Motor Sports, the

mandatory language was unavailing because the claimant

was not the intended beneficiary of the statute at issue.

Here, Diagnostic Affiliates is an intended beneficiary and

the mandatory language works in its favor.

Finding also that the Secretaries of Health and

Human Services, Labor, and Treasury are empowered

to implement the relevant FFCRA provisions through

sub- regulatory guidance, program instruction or

otherwise. FFCRA § 6001(c). And the same Secretaries

are directed to enforce them through ERISA and the

regulation and taxation of group health plans. FFCRA

§ 6001(b). But FFCRA § 6001 is relevant here because it

requires insurers to cover COVID-19 testing through their

health insurance plans. This provision indicates who is

responsible for payment, not how payment is to be made.

Its enforcement scheme is appropriately designed for the

purpose of ensuring coverage for insureds. Nothing in

17

the amended complaint indicates Defendants have denied

or reduced claims because the service is not covered or

that it was provided to a person who was not an insured.

Defendants in the Texas case relied on the concept

that, “The express provision of one method of enforcing

a substantive rule suggests that Congress intended to

preclude others.” Alexander v. Sandoval, 532 U.S. 275,

290 (2001). But the court found that the administrative

enforcement provisions address other provisions and do

not address the manner in which a COVID-19 testing

provider can obtain its reimbursements (which are no less

mandatory). Therefore, the administrative enforcement

scheme cannot be said to evidence an intent to deny a

private right of action.

Defendants also contended that the express creation

of private enforcement rights for other provisions of the

statutes indicates that the legislature would have likewise

created a private enforcement right for reimbursement,

had one been intended. D.E. 67, p. 7 (“Sections 3102,

5102, and 5105 of the FFCRA expressly incorporate the

private enforcement provisions of Fair Labor Standards

Act and Family and Medical Leave Act to remedy improper

denials of emergency paid employee leave.”). Diagnostic

Affiliates responded that the lack of specificity in creating

a private right of action for reimbursement was likely

the result of the speed with which Congress had to act

in response to the pandemic emergency. These statutes

broadly address multifaceted aspects of the pandemic.

Under the circumstances, seeking consistency in the

treatment of remedies elevates form over substance

where clear rights to reimbursement were created and no

other enforcement mechanism exists. An implied private

18

right of action is a more appropriate construction of the

statute than the creation of a right without any remedy.

The terms of the FFCRA and CARES Act support finding

an implied private right of action to enforce the right to

reimbursement for COVID-19 testing against insurance

plans and administrators.

Factor 3. Is a Private Right of Action in Favor of

Plaintiff Consistent with the Legislative Scheme?

The Court found that Congress wanted widespread

COVID-19 testing, which could only be accomplished by

private entities quickly incurring the cost of establishing

testing sites across the country and procuring the

necessary supplies to administer tests. Legislative

impatience with the finer points of the relationship

between providers and insurance companies to properly

allocate those costs or to determine appropriate pricing

is evidenced by the inclusion of a mandatory methodology

for determining the rate to be paid, if the parties did not

have the time or cooperation to negotiate rates. A private

right of action to recover the mandated reimbursement is

fully consistent with the legislative scheme.

Factor 4. Would It Be Inappropriate to Create a

Federal Right, Given the Context of State Concerns?

The court determined that no state concerns counsel

against recognizing an implied private right of action as

a remedy to redress a federally-created right.

In conclusion, the Texas court in its Diagnostic

Affiliates decision applied this Supreme Court’s test and

concluded that a private right of action existed for an out

19

of network provider so as to be able to sue to enforce the

CARES Act.

In sharp contrast, the Connecticut Court barely

discussed the Supreme Court test in its Murphy Medical

decision and ruled only on the basic premise that unless

the Congress expressly provides a private right of action

it does not exist, and declined to find a private cause of

action.

When everything is considered, and the Cort factors

properly applied, the only reasonable conclusion is that

there is an implied private right of action under the

CARES Act independent from the right of action derived

from ERISA and RICO.

Respectfully, this Court should rule that these

emergency laws passed in the midst of public health

emergency have special exception, and confer standing

to Petitioner, and other similarly situated providers, to

pursue this remedy under the CARES Act.

1.

The Lower Courts Have Erred in the Opinions

Below, and Such Errors Must Be Corrected To

Ensure Public Safety and Save Lives.

The Order in Saloojas, Inc. v. Aetna Health of

California, Inc., No. 22-CV- 01696-JSC, 2022 WL 2267786

(N.D. Cal. June 23, 2022), which held there is no private

cause of action under the CARES Act failed to fully

consider the text, structure, and legislative history of

the CARES Act. Although the Saloojas Decision agreed

that three of the four Cort factors favor finding a private

cause of action, the decision does not address any of the

arguments on the most relevant factor.

20

Whether there is evidence of Congress’s explicit or

implicit intent to create a remedy. The Court granted

Aetna’s motion to dismiss, which disposed of the matter

in its entirety.

In granting Aetna’s motion to dismiss, the Court

failed to adhere to the legal standard for a motion to

dismiss. A motion to dismiss under Rule 12(b)(6) must

be decided on “facts stated on the face of the complaint,

in documents appended to the complaint or incorporated

in the complaint by reference, and matters of which judicial

notice may be taken.” Leonard F. v. Israel Disc. Bank

of N.Y., 199 F.3d 99, 107 (2d Cir. 1999). In deciding a

motion to dismiss, well-pleaded facts must be accepted

as true and considered in the light most favorable to

the Plaintiff. Patane v. Clark, 508 F.3d 106, 111 (2d Cir.

2007). The issue in deciding a motion to dismiss is “not

whether the plaintiff will ultimately prevail but whether

the plaintiff is entitled to offer evidence to support the

claims.” Villager Pond, Inc. v. Town of Darien, 56 F.3d.

375 (1995). The Court’s ruling to dismiss, disposed of the

matter. Consequently, Petitioners were prevented from

presenting any evidence or further argument that they

are entitled to reimbursement for their services under

the CARES Act.

A complaint is only required to contain “a short and

plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint must

include “sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim

has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference

21

that the defendant is liable for the misconduct alleged.”

Id. A complaint states a claim if it “raise[s] a reasonable

expectation that discovery will reveal evidence” in support

of the claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

556 (2007).

Aetna’s motion to dismiss failed for lack of legal

authority. Aetna attacks the federal claims of the CARES

Act based upon a handful of district court cases that have

analyzed entirely unrelated parts of the CARES Act,

which legislation exceeds 335 pages. The cases they

cite are inapposite to establish that the particular

statutory provision at issue in this case arguing that the

relevant sections of the CARES Act does not support an

implied private cause of action. In fact, Aetna’s motion to

dismiss all of these claims actually serves to reinforce a

finding that an implied cause of action exists under the

CARES Act (per the second Cort factor, see infra Part

I.B) because, if Aetna were correct, providers would be

left wholly without any remedy whatsoever. Accordingly,

the Court should have denied Aetna’s motion to dismiss.

However, the Court granted the motion relying on the

decision of Murphy Medical.

Petitioner respectfully submits that Murphy Medical

decision is not persuasive for the following reasons:

First, the Murphy Medical decision does not address

and analyze each of the four Cort factors, whereas the

opinion in Diagnostic Affiliates, and GS Labs’ briefing in

this matter, explains why each and every one of the four

Cort factors supports the existence of an implied private

cause of action in CARES Act § 3202(a).

22

Second, the court reasoned that plaintiff in Murphy

Medical decision failed to identify “anything in the

text or structure of the CARES Act which suggests

that Congress intended to afford them with a privately

enforceable remedy.” By comparison, Plaintiff has

identified in extensive detail why the text and structure of

the CARES Act shows that Congress intended to provide

a privately enforceable reimbursement remedy in favor of

diagnostic testing providers.

Third, Plaintiff in the Murphy Medical case argued

primarily that “Congress’s silence was merely a product

of its rush to create legislation in the midst of the

pandemic.” Here, by contrast, Plaintiff has advanced

numerous facts showing the text, purpose, legislative

history, and historical Congressional action in this area

of interstate concern all support finding a private cause

of action. Indeed, in deciding Murphy Medical, the court

appears to have couched its holding by implying plaintiff in

that case may have been able to successfully plead “factual

allegations demonstrating that the FFCRA and CARES

Act incorporate[s] a private right of action.” That is exactly

what Plaintiff has done in pleading its claim in this case.

Lastly, the Murphy Medical court observed, without

actually deciding, that the plaintiff testing provider before

it may not be “remediless” because the Secretaries of

Labor, Health and Human Services, and the Treasury

suggested in FAQs, Part 43 that their Departments would

enforce the FFCRA and CARES Act in conjunction with

states. However, the mere suggestion that state or federal

agencies might one day attempt to enforce CARES Act §

3202(a) of their own volition does not change the fact that

Congress did not authorize them to do so, and that state

and federal agencies have in fact not attempted to do so.

23

In contrast, the Court in Diagnostic Affiliates came

to the same conclusions, reasoning the third Cort factor

favors finding an implied private cause of action for

violations of § 3202(a):

As discussed, Congress wanted widespread COVID-19

testing, which could only be accomplished by private

entities quickly incurring the cost of establishing testing

sites across the country and procuring the necessary

supplies to administer tests. Legislative impatience with

the finer points of the relationship between providers

and insurance companies to properly allocate those costs

or to determine appropriate pricing is evidenced by the

inclusion of a mandatory methodology for determining

the rate to be paid, if the parties did not have the time

or cooperation to negotiate rates. A private right of

action to recover the mandated reimbursement is fully

consistent with the legislative scheme.2022 WL 214101, at

*9 (emphasis added). The Texas Court fully analyzed the

availability of a private cause of action under the relevant

part of the CARES Act. The Texas Court held that there

is an implied private cause of action for violations of the

Covid testing provisions in its r u l i ng in Diagnostic

Affiliates. In doing so, the court found that the cases cited

by Defendants failed to address whether the FFCRA or

CARES Act contains an implied right of action in favor

of a COVID-19 testing provider seeking statutorilymandated reimbursements.

The Court found that

the cases did not contain any analogous fact patterns

that would make their conclusions persuasive.

By proceeding directly to the question of an implied

right of action, Diagnostic Affiliates concedes that the

Acts do not create an express private right of action to

24

enforce their provisions. D.E. 99, p. 10. So, the question is

whether the terms of the legislation support the conclusion

that there is an implied private right of action. San Juan

Cable LLC v. P. R. Tel. Co., Inc., 612 F.3d 25, 29 (1st Cir.

2010); see also Merrill Lynch, Pierce, Fenner & Smith,

Inc. v. Curran, 456 U.S. 353, 378-88 (1982) (describing

the analysis of whether a statute includes an implied

private right of action as a matter of the legal context

in which the statute was passed); Chevron, U.S.A., Inc.

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9

(1984) (statutory construction and legislative intent are

matters of law).

2.

Health Care Providers Have An Implied Private

Right Of Action for Private Remedy Under The

CARES Act.

The question of whether a federal statute contains an

implied private right of action is “basically a matter of

statutory construction.” Transamerica Mortg. Advisors,

Inc. (TAMA) v. Lewis, 444 U.S. 11, 15 (1979). The Supreme

Court has enumerated several factors relevant to this

analysis, as set forth in Cort, 422 U.S. at 78. Id. See,

Republic of Iraq v. ABB AG, 768 F.3d 145, 170 (2d Cir.

2014) (“To ‘illuminate’ this analysis, we also consider

factors enumerated in Cort v. Ash”) (internal citation

omitted)); see also M.F. v. State of New York Exec. Dep’t

Div. of Parole, 640 F.3d 491, 495 (2d Cir. 2011) (courts in

the Second Circuit continue to apply the factors set forth

in Cort in order to discern congressional intent to provide

a private right of action); Lindsay v. Ass’n of Prof’l Flight

Attendants, 581 F.3d 47, 52 n.3 (2d Cir. 2009) (same).

25

The CARES Act plainly create a benefit for the

class of persons of which the Petitioner is a member:

out-of-network providers who furnish COVID testing.

The statute straightforwardly directs insurers like

Aetna to pay out-of-network providers who furnish

COVID-19 testing. Importantly, the statutes go further,

describing how the amount such providers must be paid

will be calculated. It states that “such plan or issuer shall

reimburse the provider in an amount that equals the cash

price for such service as listed by the provider on a public

internet website . . .” This provision “grant[s] private rights

to members of an identifiable class.” Transamerica Mortg.

Advisors, Inc. (TAMA) v. Lewis, 444 U.S. at 24 Id. But the

language used in the Cares Act reflects a legislative intent

that is in fact consistent with providing a private right of

action because Congress specifically identified a discrete

group and then used language giving that group a right

to reimbursement. Therefore, if such group is denied the

right granted to it by Congress, they will have a remedy.

In fact, one example of the difficulties caused by the

rushed adoption of the CARES Act was the failure of

Congress to provide a reimbursement calculation method

for the time period where a provider had yet to publish

their cash price on the website. Most providers such as

the Petitioner, were in the early stages of the pandemic

and scrambled to line up staff, equipment, and supplies to

safely and effectively address the pandemic. The relevant

CARES Act provisions are silent about what happens prior

to any cash price being listed on the web site.

Clearly, Part II, Subpart A, Section 3201 of the

CARES Act created a private cause of action for outof-network providers of COVID-19 related testing and

services, so as to prevent medical providers from directly

26

billing the patients. This was ensured via the text that

all providers both in and out of network would receive

full reimbursement in the absence of a negotiated rate.

Moreover, if there were no private right of action, patients

and medical providers would be left remediless, which is

inappropriate. See, Franklin v. Gwinnett County Pub.

Schs., 503 U.S. 60, 76 (1992) (Finding private right of action

for money damages under Title IX because administrative

process would leave complainant “remediless”).

Aetna argued that the CARES Act contains no

statutory language focused on protecting private rights.

Aetna’s argument is simply inaccurate. As described

above, Section 3201, protects the rights of reimbursement

for out-of-network providers who rendered COVID testing

services during the pandemic. As the Second Circuit has

explained, when concluding that, “the provision of other

(private or public) enforcement mechanisms (Bellikoff

factors (i) and (ii)) merely “suggests” “that Congress

intended to preclude” implied private rights of action.”

Oxford Univ. Bank v. Lansuppe Feeder, LLC, 933 F.3d

99, 106(2d Cir. 2019) (citing Alexander v. Sandoval, 532

U.S. 275, 290). Here, as in Oxford Univ. that “suggestion”

is not particularly persuasive. The federal agencies are

only empowered to fine Aetna for non-compliance. They

are not empowered to protect the very specific right that

Petitioner seeks to vindicate as their right to payment for

services provided.

a.

The CARES Act

The FFCRA and the CARES Act were passed

in response to the public health emergency declared

under Section 319 of the Public Health Service Act.

27

The purpose of including Section 6601 of the FFCRA

and Section 3202(a) of the CARES Act was to two- fold:

(1) to motivate and to provide reasonable assurances to

providers capable of providing Covid Testing services that

they would be reimbursed for the Covid Testing services

it rendered throughout the course of the public health

emergency; and (2) to provide reasonable assurances to

members of health plans that they would not be held

personally financially responsible for Covid Testing

services as it would disincentives persons from being

tested, in turn, further exacerbating the pandemic. This

conscious decision by Congress to eliminate the patient

from the reimbursement chain in out-of-network Covid

Testing situations obviates the ordinary requirement for

such provider to obtain a valid assignment, and, in the

event there is an anti-assignment provision in the terms

of the health plan- which there usually is - to obtain a

validly executed and notarized special power of attorney.

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. Aetna’s refusal to fully reimburse Petitioner

illegally countermands Congress’s directive to insurers

to reimburse COVID-19 Diagnostic Testing Providers.

28

b.

Congress Sought to Rapidly Increase

Access to COVID-19 Testing Creating a

Reimbursement Right Without Written

Remedy Favoring An Implied Right

Consistent with the Purpose of the

CARES Act.

The second Cort factor is whether Congress

manifested an intent to create an implied private right

of action. This factor favors finding such an intention here

because Congress did not enact any mechanism to enforce

its mandate in § 3202(a). The Supreme Court has long

held that when Congress enacts statutory provisions

“stated in the form of commands,” but for which “there is

no mode of enforcement other than resort to the courts,”

courts have the “jurisdiction and duty to afford a remedy

for a breach of statutory duty.” Steele v. Louisville &

N.R. Co., 323 U.S. 192, 207 (1944). Otherwise, the “right

would be sacrificed or obliterated if it were without the

remedy which courts can give for breach of such a duty

or obligation.” Id. The Supreme Court has reaffirmed

this several times. Janus v. Am. Fed’n of State, Cty., &

Mun. Emps., Council 31, 138 S. Ct. 2448, 2468 (2018);

Int’l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 47 (1979);

Cannon, (1979) 441 U.S. 677 at693 n.13; Graham v. Bhd.

of Locomotive Firemen & Enginemen, 338 U.S. 232, 239

(1949). Steele applies when the statute at issue contains

a command (e.g., “shall reimburse”), but provides no

enforcement mechanism.

The third Cort factor is whether an implied private

cause of action is consistent with the purpose of the statute

at issue. Here, a holding that providers of diagnostic testing

have a right to obtain denied reimbursement from insurers

is not only consistent with the plain and unambiguous

29

intention of Congress as expressed in § 3202(a) of the

CARES Act, but it is also the only interpretation that is

consistent with the underlying purpose of Act to rapidly

increase access to COVID-19 testing.

It would completely defy Congress’s objective to

increase testing capacity and accessibility if there were

no mechanism whatsoever to enforce the requirement

that insurers reimburse providers for testing services

at this critical time. The strong legislative resolve to

increase the development of, and accessibility to, testing

facilities requires there be a remedy for reimbursement to

ensure the start-up and continued implementation of that

legislative purpose when insurers unlawfully withhold

reimbursement.

As the Supreme Court stated in Cort: “in situations

in which it is clear that federal law has granted a class

of persons certain rights, it is not necessary to show an

intention to create a private cause of action, although

an explicit purpose to deny such cause of action would

be controlling.” Cort, 422 U.S. at 82 (emphasis added).

Thus, even if legislators did not express an intention to

create a private cause of action, that does not prevent or

deter finding that an implied private cause of action for

reimbursement is consistent with the purposes of the

CARES Act.

In Cort, the Court also explained that the maxim

of expressio unius est exclusio alterius does not apply

when there was no discussion whatever in Congress

concerning private enforcement.” Id. at 82 n.14. Here,

there was no discussion in Congress concerning private

enforcement; Congress was concerned more with

30

the pressing matters of an escalating pandemic. Thus,

the rule that “[t]he express provision of one method

of enforcing a substantive rule suggests that Congress

intended to preclude others,” Alexander, 532 U.S. at 290,

has no application to this case. Based upon the foregoing,

it should be found that an implied Congressional private

right of actions exists under the CARES Act.

XIII. CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Michael L. Gabriel, Esq.

Counsel of Record

1903 A Cooley Avenue

East Palo Altos, CA 94303

(650) 888-9189

aetal@earthlink.net

Counsel for Petitioner

APPENDIX

1a

A THE UNITED

APPENDIX A —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF CALIFORNIA, FILED JUNE 23, 2022

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case Nos.

22-cv-01696-JSC

22-cv-01702-JSC

22-cv-01703-JSC

22-cv-01704-JSC

22-cv-01706-JSC

SALOOJAS, INC.,

Plaintiff,

v.

AETNA HEALTH OF CALIFORNIA, INC.,

Defendant.

June 23, 2022, Decided

June 23, 2022, Filed

ORDER RE: MOTIONS TO DISMISS

Plaintiff, a healthcare provider, brings five related

cases against an insurer for underpaying for COVID

2a

Appendix A

testing of five patients.1 Before the Court are Defendant’s

identical motions to dismiss each of the five cases. (Case

No. 22-cv-01696-JSC, Dkt. Nos. 5, 7, 14, 17, 19, 20; Case

No. 22-cv-01702-JSC, Dkt. Nos. 7, 14, 18, 20, 21; Case

No. 22-cv-01703-JSC, Dkt. Nos. 5, 11, 15, 17, 18; Case

No. 22-cv-01704-JSC, Dkt. Nos. 6, 12, 16, 18, 19; Case

No. 22-cv-01706-JSC, Dkt. Nos. 7, 14, 18, 20, 21.)2 After

carefully considering the parties’ initial and supplemental

briefing, (see Dkt. No. 18), the Court concludes that oral

argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b),

and GRANTS the motions as explained below.

BACKGROUND

Plaintiff alleges Defendant underpaid for COVID

tests that Plaintiff provided to Defendant’s insureds

between November 20 and 23, 2020. Plaintiff is outside

of Defendant’s provider network. It alleges that under

Section 3202(a)(2) of the Coronavirus Aid, Relief, and

Economic Security (“CARES”) Act, Defendant must “pay

the entire bill at posted prices without any deductions

1. (See Case No. 22-cv-01696-JSC, Dkt. No. 1 at 6 (“Patient ID

no: 2069047”); Case No. 22-cv-01702-JSC, Dkt. No. 1 at 6 (“Patient

ID no: 2068896”); Case No. 22-cv-01703-JSC, Dkt. No. 1 at 6

(“Patient ID no: 2068125”); Case No. 22-cv-01704-JSC, Dkt. No. 1-1

at 3 (“Patient ID no: 2068239”); Case No. 22-cv-01706-JSC, Dkt.

No. 1 at 6 (“Patient ID no: 2069003”).) A sixth related case does

not have a pending motion to dismiss. (Case No. 22-cv-02887-JSC.)

2. Record citations are to material in the Electronic Case

File (“ECF”) for Case No. 22-cv-01696-JSC, unless otherwise

indicated; pinpoint citations are to the ECF-generated page

numbers at the top of the documents.

3a

Appendix A

for cop[a]y or deductibles.” (Dkt. No. 1 at 7.) For the five

patients at issue, Plaintiff contends Defendant owes $922,

$1,090, $1,090, $924, and $922, each rounded up to $2,500

to account for a “balance” of “punitive damages . . . for

intentional violation” of the CARES Act. (Id. at 6.)3

Plaintiff filed in small claims court in Alameda

County. It attached as an exhibit an undated letter from

Plaintiff to Defendant, on letterhead of AFC Urgent Care

of Newark, appealing Defendant’s payment decision and

asserting that the CARES Act requires Defendant to pay

Plaintiff’s posted cash prices. (Id. at 12-15.) For two cases,

Plaintiff attached October 2021 letters from Defendant

to Plaintiff, each denying an appeal request because it

was filed after the 60-day deadline. (Id. at 16-17; Case No.

22-cv-01703-JSC, Dkt. No. 1 at 16.) For the other three

cases, Plaintiff attached an acknowledgement of appeal

request, an acknowledgement of dispute, and an appeal

denial, respectively.4 (Case No. 22-cv-01702-JSC, Dkt. No.

1 at 17; Case No. 22-cv-01704-JSC, Dkt. No. 1-1 at 13; Case

No. 22-cv-01706-JSC, Dkt. No. 1 at 12.)

Thereafter, Defendant removed to federal court.

Defendant moves to dismiss for failure to state a claim, see

Fed. R. Civ. P. 12(b)(6), on the grounds that the CARES

3. (See Case No. 22-cv-01702-JSC, Dkt. No. 1 at 6; Case No.

22-cv-01703-JSC, Dkt. No. 1 at 6; Case No. 22-cv-01704-JSC, Dkt.

No. 1-1 at 3; Case No. 22-cv-01706-JSC, Dkt. No. 1 at 6.)

4. The Court takes judicial notice of these documents attached

to the complaints. See Parks Sch. of Bus., Inc. v. Symington, 51

F.3d 1480, 1484 (9th Cir. 1995).

4a

Appendix A

Act does not provide a private right of action to Plaintiff.

DISCUSSION

Section 3202 of the CARES Act provides:

PRICING OF DIAGNOSTIC TESTING.

(a) REIMBURSEMENT RATES.—A group

health plan or a health insurance issuer

providing coverage of items and services

described in section 6001(a) of division F of

the Families First Coronavirus Response Act

(Public Law 116-127) with respect to an enrollee

shall reimburse the provider of the diagnostic

testing as follows:

(1) If the health plan or issuer has a

negotiated rate with such provider in effect

before the public health emergency declared

under section 319 of the Public Health Service

Act (42 U.S.C. 247d), such negotiated rate shall

apply throughout the period of such declaration.

(2) If the health plan or issuer does not

have a negotiated rate with such provider, such

plan or issuer shall reimburse the provider in

an amount that equals the cash price for such

service as listed by the provider on a public

internet website, or such plan or issuer may

negotiate a rate with such provider for less than

such cash price.

5a

Appendix A

(b) REQUIREMENT TO PUBLICIZE CASH

PRICE FOR DIAGNOSTIC TESTING FOR

COVID-19.—

(1) IN GENERAL.—During the emergency

period declared under section 319 of the Public

Health Service Act (42 U.S.C. 247d), each

provider of a diagnostic test for COVID-19 shall

make public the cash price for such test on a

public internet website of such provider.

(2) CIVIL MONETARY PENALTIES.—

The Secretary of Health and Human Services

may impose a civil monetary penalty on any

provider of a diagnostic test for COVID-19 that

is not in compliance with paragraph (1) and has

not completed a corrective action plan to comply

with the requirements of such paragraph, in

an amount not to exceed $300 per day that the

violation is ongoing.

Pub. L. 116-136, § 3202 (Mar. 27, 2020), 134 Stat. 367. Thus,

Section 3202 referenced and amended Section 6001(a) of

the Families First Coronavirus Response Act (“FFCRA”).

See id. § 3201; Pub. L. 116-127, § 6001(a) (Mar. 18, 2020),

134 Stat. 178. Section 6001, in turn, provides:

COVERAGE OF TESTING FOR COVID-19.

(a) IN GENERAL.—A group health plan and

a health insurance issuer offering group or

individual health insurance coverage . . . shall

6a

Appendix A

provide coverage, and shall not impose any cost

sharing (including deductibles, copayments,

and coinsurance) requirements or pr ior

authorization or other medical management

requirements, for the following items and

services furnished during any portion of the

emergency period defined in paragraph (1)(B)

of section 1135(g) of the Social Security Act (42

U.S.C. 1320b-5(g)) beginning on or after the

date of the enactment of this Act:

(1) In vitro diagnostic products (as defined

in section 809.3(a) of title 21, Code of Federal

Regulations) for the detection of SARS-CoV-2

or the diagnosis of the virus that causes

COVID-19 that are approved, cleared, or

authorized under section 510(k), 513, 515 or

564 of the Federal Food, Drug, and Cosmetic

Act, and the administration of such in vitro

diagnostic products.

(2) Items and services furnished to an

individual during health care provider office

visits (which term in this paragraph includes

in-person visits and telehealth visits), urgent

care center visits, and emergency room visits

that result in an order for or administration

of an in vitro diagnostic product described

in paragraph (1), but only to the extent such

items and services relate to the furnishing

or administration of such product or to the

evaluation of such individual for purposes of

7a

Appendix A

determining the need of such individual for

such product.

(b) ENFORCEMENT.—The provisions of

subsection (a) shall be applied by the Secretary

of Health and Human Services, Secretary of

Labor, and Secretary of the Treasury to group

health plans and health insurance issuers

offering group or individual health insurance

coverage as if included in the provisions of part

A of title XXVII of the Public Health Service

Act, part 7 of the Employee Retirement Income

Security Act of 1974, and subchapter B of

chapter 100 of the Internal Revenue Code of

1986, as applicable.

(c) IMPLEMENTATION.—The Secretary

of Health and Human Services, Secretary of

Labor, and Secretary of the Treasury may

implement the provisions of this section through

sub-regulatory guidance, program instruction

or otherwise.

(d) TERMS.—The terms “group health plan”;

“health insurance issuer”; “group health

insurance coverage”, and “individual health

insurance coverage” have the meanings given

such terms in section 2791 of the Public Health

Service Act (42 U.S.C. 300gg-91), section 733 of

the Employee Retirement Income Security Act

of 1974 (29 U.S.C. 1191b), and section 9832 of the

Internal Revenue Code of 1986, as applicable.

8a

Appendix A

Pub. L. 116-127, § 6001. Plaintiff bases its claim on CARES

Act Section 3202(a)(2)’s directive that an insurer “shall

reimburse” the provider at “the cash price” of testing

if the insurer “does not have a negotiated rate” with the

provider. Pub. L. 116-136, § 3202(a). Plaintiff concedes

that the CARES Act provides no express right of action

for its testing reimbursement claim, but argues there is

an implied right of action.

“Like substantive federal law itself, private rights of

action to enforce federal law must be created by Congress.”

Alexander v. Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511,

149 L. Ed. 2d 517 (2001). The Supreme Court’s opinions in

Cort and Alexander govern whether a statute implies a

private right of action. Id.; Cort v. Ash, 422 U.S. 66, 95 S.

Ct. 2080, 45 L. Ed. 2d 26 (1975); see McGreevey v. PHH

Mortg. Corp., 897 F.3d 1037, 1043-44 (9th Cir. 2018). Cort

lays out four factors:

First, is the plaintiff one of the class for whose

especial benefit the statute was enacted—that

is, does the statute create a federal right in favor

of the plaintiff? Second, is there any indication

of legislative intent, explicit or implicit, either

to create such a remedy or to deny one? Third,

is it consistent with the underlying purposes of

the legislative scheme to imply such a remedy

for the plaintiff? And finally, is the cause of

action one traditionally relegated to state law,

in an area basically the concern of the States, so

that it would be inappropriate to infer a cause

of action based solely on federal law?

9a

Appendix A

422 U.S. at 78 (cleaned up). The Ninth Circuit has

explained that the Cort factors “remain relevant,” but “the

focus now is on” Alexander. McGreevey, 897 F.3d at 1043.

Alexander asks “whether Congress displays through the

statute an intent to create not just a private right but also

a private remedy. Statutory intent . . . is determinative;

without Congress’s intent to create a remedy, no right

of action can be implied.” Id. at 1043-44 (cleaned up);

see also Touche Ross & Co. v. Redington, 442 U.S. 560,

575, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979) (“[Cort] did

not decide that each of these factors is entitled to equal

weight. The central inquiry remains whether Congress

intended to create, either expressly or by implication, a

private cause of action.”). Courts “begin . . . [the] search

for Congress’s intent with the text and structure of” the

statute. Alexander, 532 U.S. at 288.

The Court is aware of only two cases that have

addressed whether an implied right of action exists for

a testing reimbursement claim under the CARES Act.

See Murphy Med. Assocs., LLC v. Cigna Health & Life

Ins. Co., No. 3:20cv1675(JBA), 2022 U.S. Dist. LEXIS

43351, 2022 WL 743088, at *2-6 (D. Conn. Mar. 11, 2022)

(no); Diagnostic Affiliates of Northeast Hou v. United

Healthcare Servs, No. 2:21-CV-00131, 2022 U.S. Dist.

LEXIS 14132, 2022 WL 214101, at *4-9 (S.D. Tex. Jan.

18, 2022) (yes).

A.

Text and Structure of the CARES Act

The text and structure of the CARES Act do not show

congressional intent to create a private right of action

10a

Appendix A

for COVID-19 test providers like Plaintiff. The CARES

Act creates rights and duties for providers: in Section

3202(a), the right to reimbursement of the published cash

price from an insurer who does not have a negotiated

rate, and in Section 3202(b), the duty to publish a cash

price. Section 3202(a), the substantive basis for Plaintiff’s

claim, has no enforcement language. Pub. L. 116-136,

§ 3202(a). Section 3202(b) provides that the Secretary of

Health and Human Services “may impose a civil monetary

penalty on any provider of a diagnostic test . . . that is not

in compliance with” the requirement to publish a cash

price. Id. § 3202(b). Thus, Section 3202 only contemplates

enforcement against providers, not against insurers who

fail to reimburse providers, and only administrative

enforcement, not a private right of action.

For its part, FFCRA Section 6001 provides that the

Secretaries of Health and Human Services, Labor, and

the Treasury may enforce Section 6001(a) against “group

health plans and health insurance issuers.” Pub. L. 116127, § 6001(b); see Pub. L. 116-136, § 3202(a) (referencing

FFCRA Section 6001(a)). Assuming without deciding

that FFCRA Section 6001 allows the Secretaries to

enforce CARES Act Section 3202(a) against insurers, that

would not show congressional intent to create a private

right of action for providers like Plaintiff to enforce the

provision against insurers. See Alexander, 532 U.S. at

289 (“Nor do the methods that § 602 goes on to provide

for enforcing its authorized regulations manifest an intent

to create a private remedy; if anything, they suggest the

opposite.”); see also Murphy Med. Assocs., LLC, 2022 U.S.

Dist. LEXIS 43351, 2022 WL 743088, at *5 n.5 (noting

11a

Appendix A

Secretaries’ joint Frequently Asked Questions document

and ambiguity regarding administrative enforcement

scheme).

In its supplemental brief, Plaintiff argues that

it is separately entitled to challenge Defendant’s

reimbursement through private rights of action created by

the Employee Retirement Income Security Act (“ERISA”).

(Dkt. No. 20.) This argument fails because nothing in

Plaintiff’s complaint references ERISA. The small claims

complaint states, “COVID TESTING SERVICE[S] under

the CARES ACT were rendered . . . . Insurance company

owes $922 and the balance is punitive damages to $2,500

for the intentional violation of the Federal CARES ACT.”

(Dkt. No. 1 at 6.) “[U]nder the CARES ACT sec 3202(a)

(2)[,] Defendants are required to pay the entire bill at

posted prices . . . . Plaintiff appealed the denial of full

payment mandated under the CARES ACT . . . .” (Id. at

7.) Thus, the complaint does not “give the defendant fair

notice” that ERISA provides “the grounds upon which”

Plaintiff’s claim rests. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)

(cleaned up). CARES Act Section 3202(a)’s reference to

FFCRA Section 6001, which in turn refers to ERISA, is

too removed to provide notice that Plaintiff’s claim rests

on an ERISA private right of action. See Pub. L. 116-136,

§ 3202(a); Pub. L. 116-127, § 6001(b), (d).

B. Cort Factors

Turning to the Cort factors, to the extent they

“remain relevant,” McGreevey, 897 F.3d at 1043, three

12a

Appendix A

factors weigh in favor of an implied private right of action

but the most important factor does not. See Touche Ross,

442 U.S. at 575 (“[Cort] did not decide that each of these

factors is entitled to equal weight.”).

First, the CARES Act “create[s] a federal right

in favor of” Plaintiff: the right to reimbursement at

the posted cash price. Cort, 422 U.S. at 78; see Pub. L.

116-136, § 3202(a)(2). Third, it is “consistent with the

underlying purposes of the legislative scheme to imply

such a remedy.” Cort, 422 U.S. at 78. The purpose of

this part of the CARES Act scheme is to incentivize

healthcare organizations to provide COVID-19 testing and

to make testing widely available to prevent the spread of

COVID-19. See Diagnostic Affiliates of Northeast Hou,

2022 U.S. Dist. LEXIS 14132, 2022 WL 214101, at *6

(“[T]he legislative objective was to ensure that COVID-19

testing was widely available to the entire population.”), *9

(“Congress wanted widespread COVID-19 testing, which

could only be accomplished by private entities quickly

incurring the cost of establishing testing sites across

the country and procuring the necessary supplies to

administer tests.”). Fourth, a cause of action for diagnostic

testing reimbursement, particularly with respect to the

global pandemic, is not “traditionally relegated to state

law” or “in an area basically the concern of the States.”

Cort, 422 U.S. at 78.

The second, most important factor echoes Alexander

in considering whether there is “any indication of

legislative intent, explicit or implicit, either to create such

a remedy or to deny one.” Id. As explained above, there

13a

Appendix A

is no indication of implicit intent to create such a remedy

and Plaintiff concedes there is no indication of explicit

intent. Although there is no indication of intent to deny a

remedy, see Diagnostic Affiliates, 2022 U.S. Dist. LEXIS

14132, 2022 WL 214101, at *8, that is not enough to imply

one. See McGreevey, 897 F.3d at 1043-44; Murphy Med.,

2022 U.S. Dist. LEXIS 43351, 2022 WL 743088, at *5 (“[I]

f Congress has manifested no intent to provide a private

right of action, the Court cannot create one.” (cleaned up)).

The district court’s opinion in Diagnostic Affiliates

does not persuade the Court otherwise. On the most

important Cort factor and the primary inquiry under

Alexander, the court concluded that “the administrative

enforcement scheme cannot be said to evidence an

intent to deny a private right of action.” 2022 U.S. Dist.

LEXIS 14132, 2022 WL 214101, at *8. “[C]lear rights to

reimbursement were created and no other enforcement

mechanism exists. An implied private right of action is

a more appropriate construction of the statute than the

creation of a right without any remedy.” Id. This reasoning

does not square with the Supreme Court’s directive in

Alexander: “The judicial task is to interpret the statute

Congress has passed to determine whether it displays

an intent to create not just a private right but also a

private remedy. Statutory intent on this latter point is

determinative.” 532 U.S. at 286 (citation omitted). Thus,

the reasoning in the other district court case, Murphy

Medical, is more persuasive. 2022 U.S. Dist. LEXIS

43351, 2022 WL 743088, at *2-6.

14a

Appendix A

***

The CARES Act does not provide an implied private

right of action for Plaintiff to seek reimbursement of its

posted cash price. Accordingly, Plaintiff’s complaint does

not state a claim on which relief could be granted. See

Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121

(9th Cir. 2008) (noting that dismissal under Rule 12(b)

(6) “may be based on either a lack of a cognizable legal

theory or the absence of sufficient facts alleged under a

cognizable legal theory” (cleaned up)).

Although amendment of a CARES Act claim would be

futile, Plaintiff argues that it could amend its complaint

to state a claim under ERISA. Without the benefit of

full briefing, the Court cannot conclude that such claim

would fail as a matter of law. Accordingly, leave to amend

is proper. See Yagman v. Garcetti, 852 F.3d 859, 863 (9th

Cir. 2017).

CONCLUSION

Defendant’s motions to dismiss are GRANTED.

Plaintiff may file amended complaints that assert claims

under ERISA on or before July 25, 2022.

This Order disposes of Docket No. 5 in Case No. 22-cv01696-JSC; Docket No. 7 in Case No. 22-cv-01702-JSC;

Docket No. 5 in Case No. 22-cv-01703-JSC; Docket No. 6

in Case No. 22-cv-01704-JSC; and Docket No. 7 in Case

No. 22-cv-01706-JSC.

15a

Appendix A

IT IS SO ORDERED.

Dated: June 23, 2022

/s/ Jacqueline Scott Corley

JACQUELINE SCOTT CORLEY

United States District Judge

16a

Appendix

B

APPENDIX

B — RELEVANT

STATUTORY PROVISIONS

THE CORONAVIRUS AID, RELIEF AND

ECONOMIC SECURITY (“CARES”) ACT

H.R. 748 PUB. L. NO. 116-136

PA RT II—ACCES S TO HEA LTH CA RE FOR

COVID–19 PATIENTS Subpart A—Coverage of Testing

and Preventive Services

SEC. 3201. COVERAGE OF DIAGNOSTIC TESTING

FOR COVID–19. Paragraph (1) of section 6001(a) of

division F of the Families First Coronavirus Response

Act (Public Law 116–127) is amended to read as follows: ‘‘

(1) An in vitro diagnostic test defined in section

809.3 of title 21, Code of Federal Regulations

(or successor regulations) for the detection of

SARS–CoV–2 or the diagnosis of the virus that

causes COVID–19, and the administration of such

a test, that—

‘‘(A) is approved, cleared, or authorized under

section 510(k), 513, 515, or 564 of the Federal

Food, Drug, and Cosmetic Act (21 U.S.C.

360(k), 360c, 360e, 360bbb–3);

‘‘(B) the developer has requested, or intends to

request, emergency use authorization under

section 564 of the Federal Food, Drug, and

Cosmetic Act (21 U.S.C. 360bbb– 3), unless

17a

Appendix B

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 time frame;

‘‘(C) is developed in and authorized by a State

that has notified the Secretary of Health and

Human Services of its intention to review

tests intended to diagnose COVID 19; or

‘‘(D) other test that the Secretary determines

appropriate in guidance.’’.

SEC. 3202. PRICING OF DIAGNOSTIC TESTING.

(a) REIMBURSEMENT RATES.—A group health plan

or a health insurance issuer providing coverage of items

and services described in section 6001(a) of division F of

the Families First Coronavirus Response Act (Public Law

116–127) with respect to an enrollee shall reimburse the

provider of the diagnostic testing as follows:

(1) If the health plan or issuer has a negotiated rate

with such provider in effect before the public

health emergency declared under section 319 of

the Public Health Service Act (42 U.S.C. 247d),

such negotiated rate shall apply throughout the

period of such declaration.

18a

Appendix B

(2) If the health plan or issuer does not have a

negotiated rate with such provider, such plan or

issuer shall reimburse the provider in an amount

that equals the cash price for such service as

listed by the provider on a public internet website,

or such plan or issuer may negotiate a rate with

such provider for less than such cash price.

(b) REQUIREMENT TO PUBLICIZE CASH PRICE

FOR DIAGNOSTIC TESTING FOR COVID–19.

(1) IN GENERAL.—During the emergency period

declared under section 319 of the Public Health

Service Act (42 U.S.C. 247d), each provider of a

diagnostic test for COVID–19 shall make public

the cash price for such test on a public internet

website of such provider.

(2) CIVIL MONETARY PENA LTIES.—The

Secretary of Health and Human Services may

impose a civil monetary penalty on any provider

of a diagnostic test for COVID–19 that is not

in compliance with paragraph (1) and has not

completed a corrective action plan to comply

with the requirements of such paragraph, in

an amount not to exceed $300 per day that the

violation is ongoing.

19a

Appendix B

SEC. 3203. RAPID COVERAGE OF PREVENTIVE

SERVICES AND VACCINES FOR CORONAVIRUS.

(a) IN GENERAL.—Notwithstanding 2713(b) of the

Public Health Service Act (42 U.S.C. 300gg–13), the

Secretary of Health and Human Services, the Secretary

of Labor, and the Secretary of the Treasury shall require

group health plans and health insurance issuers offering

group or individual health insurance to cover (without costsharing) any qualifying coronavirus preventive service,

pursuant to section 2713(a) of the Public Health Service

Act (42 U.S.C. 300gg–13(a)) (including the regulations

under sections 2590.715–2713 of title 29, Code of Federal

Regulations, section 54.9815–2713 of title 26, Code of

Federal Regulations, and section 147.130 of title 45, Code

of Federal Regulations (or any successor regulations)).

The requirement described in this subsection shall take

effect with respect to a qualifying coronavirus preventive

service on the specified date described in subsection (b)(2).

(b) DEFINITIONS.—For purposes of this section:

(1) Q U A L I F Y I N G C O R O N A V I R U S

PR EV E N T I V E S ERV IC E . —T h e t e r m

‘‘qualifying coronavirus preventive service’’

means an item, H. R. 748 — 88 ser vice, or

immunization that is intended to prevent or

mitigate coronavirus disease 2019 and that is—

(A) an evidence-based item or service that has

in effect a rating of ‘‘A’’ or ‘‘B’’ in the current

recommendations of the United States

Preventive Services Task Force; or

20a

Appendix B

(B) an immunization that has in effect a

recom mendat ion f rom t he Adv i sor y

Committee on Immunization Practices

of the Centers for Disease Control and

Prevention with respect to the individual

involved.

(2) SPECIFIED DATE.—The term ‘‘specified date’’

means the date that is 15 business days after the

date on which a recommendation is made relating

to the qualifying coronavirus preventive service

as described in such paragraph.

(3) ADDITIONAL TERMS.—In this section, the

terms ‘‘group health plan’’, ‘‘health insurance

issuer’’, ‘‘group health insurance coverage’’, and

‘‘individual health insurance coverage’’ have the

meanings given such terms in section 2791 of the

Public Health Service Act (42 U.S.C. 300gg–91),

section 733 of the Employee Retirement Income

Security Act of 1974 (29 U.S.C. 1191b), and section

9832 of the Internal Revenue Code, as applicable.

21a

Appendix B

FAMILIES FIRST CORONAVIRUS RESPONSE

ACT (“FFRCA’_) PUB. L. NO. 116-1127 (2020)

DIVISION F—HEALTH PROVISIONS

SEC. 6001. COVERAGE OF TESTING FOR COVID–19.

(a) IN GENERAL.—A group health plan and a health

insurance issuer offering group or individual health

insurance coverage (including a grandfathered health

plan (as defined in section 1251(e)of the Patient Protection

and Affordable Care Act)) shall provide coverage, and

shall not impose any cost sharing (including deductibles,

copayments, and coinsurance) requirements or prior

authorization or other medical management requirements,

for the following items and services furnished during any

portion of the emergency period defined in paragraph

(1)(B) of section 1135(g) of the Social Security Act (42

U.S.C. 1320b–5(g)) beginning on or after the date of the

enactment of this Act:

(1) In vitro diagnostic products (as defined

in section 809.3(a) of title 21, Code of Federal

Regulations) for the detec- tion of SARS–CoV–2 or

the diagnosis of the virus that causes COVID–19

that are approved, cleared, or authorized under

section 510(k), 513, 515 or 564 of the Federal Food,

Drug,and Cosmetic Act, and the administration of

such in vitro diagnostic products.

(2) Items and services furnished to an individual

during health care provider office visits (which

22a

Appendix B

term in this paragraph includes in-person visits

and telehealth visits), urgent care center visits, and

emergency room visits that result in an order for

or administration of an in vitro diagnostic product

described in paragraph (1), but only to the extent

such items and services relate to the furnishing or

administration of such product or to the evaluation

of such individual for purposesof determining the

need of such individual for such product.

(b) ENFORCEMENT.—The provisions of subsection

(a) shall be applied by the Secretary of Health and

Human Services, Secretary of Labor, and Secretary of

the Treasury to group health plans and health insurance

issuers offering group or individual health insurance

coverage as if included in the provisions of part A of title

XXVII of the Public Health Service Act, part 7 of the

Employee Retirement Income Security Act of 1974, and

subchapter B of chapter 100 of the Internal Revenue

Code of 1986, as applicable.

(c) IMPLEMENTATION.—The Secretary of Health

and Human Services, Secretary of Labor, and Secretary of

the Treasury mayimplement the provisions of this section

through sub-regulatoryguidance, program instruction or

otherwise.

(d) TERMS.—The terms ‘‘group health plan’’; ‘‘health

insurance issuer’’; ‘‘group health insurance coverage’’, and

‘‘individual health insurance coverage’’ have the meanings

given such terms in section 2791 of the Public Health

Service Act (42 U.S.C. 300gg–91), section 733 of the

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Appendix B

Employee Retirement Income Security Act of 1974 (29

U.S.C. 1191b), and section 9832 of the Internal Revenue

Code of 1986, as applicable.