Saloojas, Inc. v. Aetna Health of Cal., Inc., 80 F.4th 1011 (9th Cir. 2023)
Saloojas, Inc. provides COVID-19 diagnostic testing at a list price published on its website. Aetna is a health insurer that provides COVID-19 tests to its insureds under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Saloojas is not in Aetna’s network, so there is no negotiated reimbursement rate for the COVID-19 tests it provides to Aetna’s insureds. Saloojas sued Aetna under § 3202(a)(2) of the CARES Act, alleging Aetna paid less than Saloojas’s posted cash price for the tests Aetna provided to its insureds. Saloojas sought reimbursement for the difference between what Aetna paid and the full price listed on Saloojas’s website. The district court dismissed Saloojas’ complaint, ruling that it had no private right of action under the CARES Act against insurers for violation of § 3202. Saloojas appealed.
The Ninth Circuit affirmed. The court observed that the CARES Act did not expressly create a private right of action, and rejected Saloojas’s argument that it had an implied private right of action to seek reimbursement for the full price of its COVID-19 tests. Although the CARES Act states that when there is no negotiated rate an insurer “shall reimburse” the provider for diagnostic testing “in an amount that equals the cash price . . . as listed by the provider,” the court explained that such mandatory language alone does not create an implied private right of action. For an implied right of action to exist, there must be “‘rights-creating language’ that places ‘an unmistakable focus’ on the individuals protected instead of the person regulated.” Here, the CARES Act focuses on the regulated party (the insurers), and refers to the providers only as the object of the insurers’ obligation. “Accordingly, § 3202(a)(2) of the CARES Act does not contain rights-creating language that would evince Congress’s intent to create a private right of action for providers to sue insurers.” The court further noted that §3202(b) of the CARES Act includes an enforcement mechanism that is limited to actions by the Secretary of Health and Human Services, which “cuts strongly against a finding of intent to create a private remedy for . . . providers.”
