The Families First and Coronavirus Relief Act (FFCRA), as amended by the Coronavirus Aid, Relief, and Economic Security (CARES) Act, mandates that testing for COVID-19 infection must be free to the patient so long as the federally-declared state of emergency persists. The laws also provide that the associated office visit or medical consultation must be free as well. The mandate applies to nearly every form of health coverage, including government healthcare programs such as Medicare and Medicaid as well as private insurance. Despite this federal mandate, a number of insurance companies, employers, and providers have tried to skirt the law. Aetna is the most recent insurance company to be accused of putting profits over pandemic relief by refusing to cover patients for COVID-19-related costs.

A proposed class action lawsuit was recently instituted by Saloojas, Inc., doing business as AFC Urgent Care of Newark, alleging that Aetna Healthcare of California refused to reimburse the COVID-19 test provider for testing services provided to Aetna plan members. AFC describes itself as an out-of-network laboratory that provided “bona fide Covid Testing services” to Aetna members “in accordance with Congressionally set methodology established and supported” by the FFCRA and the CARES Act.

Per the complaint, Aetna “engaged in unconscionable and fraudulent conduct during the COVID-19 public health emergency period in order to evade and circumvent its obligations to fully cover all Aetna Plan members’ COVID-19 diagnostic testing.” Aetna “not only mis-adjudicated almost every single Covid Testing claim submitted by Plaintiff on behalf of members of Aetna Plans and Employer Plans administered by Aetna, but has, in fact, denied the vast majority of Covid Testing claims that Plaintiff has submitted.”

The plaintiff seeks to represent a nationwide class of all “out of network” providers of COVID-19 testing services covered by the FFCRA and the CARES Act to Aetna plan members. AFC contends that Aetna’s conduct violated the FFCRA, the Cares Act, the Employee Retirement Income Security Act of 1974 (“ERISA”), the Racketeer Influenced and Corrupt Organizations Act, and California law prohibiting unfair and deceptive business practices.

The FFCRA and the CARES Act require group health plans and health insurance issuers offering group or individual health insurance coverage to provide benefits for COVID-19-related diagnostic testing. Although the specifics of the laws may not have been clear at first, federal agencies including the Departments of Labor (DOL), Health and Human Services (HHS) and the Treasury have issued multiple sets of FAQs to clarify the ambit of the law. DOL guidance, for example, explicitly states that “plans and issuers must provide this coverage without imposing any cost-sharing requirements (including deductibles, copayments, and coinsurance) or prior authorization or other medical management requirements.” States are permitted to impose additional requirements, so long as they do not prevent the application of the federal mandate.

Moreover, DOL specifically clarified obligations with regard to out-of-network providers. Question 7 in the April 11, 2020, FAQs asks: “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)?” The answer: “Yes.”

AFC claims it attempted to negotiate an appropriate rate for repayment with Aetna on multiple occasions and was consistently ignored or rebuffed. As a result, AFC “and other similarly situated [out-of-network] providers” have been forced to incur significant financial losses as well as to “shutter specimen collection and testing locations[,] and to potentially stop offering Covid Testing services altogether.” Causing testing centers to cease testing has a profoundly negative effect on the country’s response to the novel coronavirus pandemic.

AFC is seeking injunctive relief forcing Aetna to pay for COVID-19 test claims, compensatory, consequential, punitive, and treble damages, and other relief.