Insight

COVID-19 and a Cloud of Dust

Think ERISA health plan litigation was convoluted before? The pandemic—and future pathogens such as the monkeypox virus currently causing consternation among health authorities worldwide—will further upend the legal landscape as new regulations and statutes take effect.

Masked man with airborne germs
JS

John J. Song and Theodore M. Becker

September 7, 2022 09:05 AM

In response to the COVID-19 pandemic, federal lawmakers over the last two-plus years have enacted an array of legislation including the No Surprises Act (NSA), the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief and Economic Security Act (CARES). The plaintiffs’ bar of the Employee Retirement Income Security Act (ERISA, first passed in 1974) is not far behind, focusing on issues arising from the changing health care legal landscape. As a result, pandemic-related litigation trends involving ERISA health plans are beginning to emerge.

Rise in Out-of-Network Care During the Pandemic

As COVID-19 began to spread in early 2020, the nation’s emergency rooms filled up, and elective services were often put on hold or canceled altogether. This shift had a profound impact, given that emergency services often involved patients seeking care from the nearest facility, even if it was out of their network—a distinct change from elective services, for which patients typically choose cheaper in-network providers that have negotiated discounts with their health plans. Because no contractual relationship exists between payors and out-of-network providers, the latter may bill patients for up to the full sticker price of their services.

This often meant that shortly after discharge from an already harrowing trip to the emergency room (or a longer inpatient hospital stay) for a mysterious new ailment that seemed to be taking over the world, patients were sent a “surprise” out-of-network bill for the full cost of their emergency care—frequently thousands, even tens or hundreds of thousands, of dollars.

Congress passed the No Surprises Act in late 2020 to prevent patients from getting unexpected bills and to ensure more predictability for the amounts that out-of-network providers would be paid for emergency claims. Among other provisions, the law established an independent dispute resolution (IDR) arbitration process to determine appropriate reimbursement; however, the NSA did not take effect until January 2022, meaning it has had no impact on most pandemic-related out-of-network emergency claims thus far. Medical associations are already challenging as unacceptably payor-friendly the NSA and its regulations, which use an insurer’s median in-network rate as the presumptive starting point for the IDR process. Uncertainties abound, which makes this a breeding ground for litigation.

Out-of-Network Provider Litigation

Against the backdrop of this increased focus on out-of-network care, providers have ramped up challenges to reimbursements from ERISA health plans for their out-of-network services. Such challenges include:

State common-law claims for additional payment. In the absence of any state or federal laws or regulations dictating specific reimbursements out-of-network providers may receive, providers have turned to common-law theories such as unjust enrichment, quantum meruit or implied contract for additional payment. ERISA plans can raise dismissal arguments based on ERISA preemption, and lower courts’ interpretation of the Supreme Court’s decision in Rutledge v. Pharmaceutical Care Management (2020) will be a key area to monitor.

Although not directly on point, the Supremes Court’s 10-page opinion has been interpreted by some trial courts as narrowing the scope of ERISA preemption, and more cases will surely make their way through the courts to challenge and clarify Rutledge’s scope. On the merits, many states’ common-law doctrines will present points of attack for health plans. For example, implied contract theories will often require plaintiffs to allege specific promises for reimbursement beyond merely that an out-of-network provider’s services will be “covered” by the plan.

Unjust enrichment or quantum meruit claims frequently require proof of a direct benefit conferred by the provider to the health plan itself rather than to the covered patient. As the volume of out-of-network provider/payor disputes increases due to the pandemic, how courts rule on these issues will affect the types of claims brought.

RICO and antitrust claims. Because many payors contract with third-party vendors to process out-of-network claims and contain costs, providers have leveled claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) as well as antitrust claims against payors and vendors. Although individual circumstances will dictate the available defenses, defendants can often attack these civil RICO claims for failure to adequately plead predicate acts with the particularity required by Federal Rule of Civil Procedure 9(b), while complex antitrust claims typically present a variety of angles of attack, including on antitrust standing grounds and weak horizontal or per se price-fixing allegations.

COVID-19-Related Litigation Against ERISA Health Plans

Beyond the burgeoning phenomenon of out-of-network care, pandemic-era changes in health care–related legislation have led to other COVID-19-specific claims against ERISA health plans.

COVID-19 testing cases. Congress passed the FCCRA and CARES Act in March 2020. These require health plans to cover the costs of COVID-19 testing, giving providers an incentive to make testing available amid a public-health emergency. Some providers, however, have imposed very high charges, particularly out of network, for COVID-19 testing.

Under the CARES Act, if a health plan or insurer does not have a negotiated rate with a COVID-19 testing provider—when the provider is out of network with the payor, that is—then the payor may be required to reimburse the provider at the posted cash price for COVID-19 testing on that provider’s website, or at a negotiated rate with the provider that is lower than the cash price. When payors balk at these charges, providers have begun to initiate litigation against health plans to recover for allegedly underpaid testing services. While individual factual scenarios will ultimately influence the parties’ claims and defenses, the few decisions issued so far by courts have held that the FCCRA and CARES Act do not confer a private cause of action upon plaintiffs, presenting a strong dismissal case for ERISA health plans.

Against the backdrop of this increased focus on out-of-network care, providers have ramped up challenges to reimbursements from ERISA health plans for their out-of-network services."

Telehealth coverage cases. Another emerging area of COVID-19 policy-related litigation is over coverage of telehealth services. While these had traditionally been reimbursed at lower amounts than standard in-office visits, the Centers for Medicare and Medicaid Services (CMS) during the pandemic increased the amount it would pay for telehealth services. This change has led some telehealth providers to commence actions again payors. Although this scenario is novel to the pandemic, where providers bring traditional ERISA causes of actions seeking additional payment of benefits, health plans can evaluate the specific allegations and the relevant plan language to tailor their ERISA defenses accordingly.

Looking Ahead

Given the novel theories of liability and increased focus on out-of-network care the pandemic has engendered, it’s important to carefully monitor case filings and court decisions in these areas to be prepared to defend against new types of ERISA claims relating to health plans that may be brought by creative plaintiffs’ counsel. Indeed, given the World Health Organization’s late-July declaration of a public-health emergency related to monkeypox, careful evaluation of the ever-shifting health care landscape will be key to counseling clients in the industry.

Theodore Becker is Co-Chair of McDermott’s ERISA Litigation Team and a Fellow of the American College of Employee Benefits Counsel. He focuses his practice on litigation under ERISA and related federal and state actions, and defense of government investigations and audits relating to employee benefit, health and welfare, and retirement plans brought by the US Department of Labor, the Internal Revenue Service and the US Department of Justice. He is a leading voice and nationally recognized practitioner in this complex practice area.

John J. Song is a litigator who represents clients in general commercial matters, as well as class actions and other complex litigations spanning federal and state courts, arbitration proceedings and appeals across the country. His matters have spanned a variety of industries, with a focus on healthcare, consumer products and private equity.

Headline Image: ISTOCK/ SOUMEN HAZRA, ISTOCK/SMARTBOY10

Related Articles

Getting Reorganized


by Sameer M. Alifarag and Seth H. Lieberman

Taking a second look at first day relief: an examination of recent bankruptcy trends through the lens of two important debtor motions and their impact on Chapter 11 bankruptcy proceedings.

Desk lamp with yellow background

Accommodation Reigns


by J. Lott Warren and Kara E. Shea

A recent 6th Circuit Court decision could have big implications for employers who don’t follow reasonable-accommodation standards within disability and medical-leave law to the letter.

Blue lungs behind white clock

The Great Debate: Do You Arbitrate Commercial Disputes?


by David K. Taylor

In a civil case, is it wiser for a business to try to persuade the counterparty to agree from the outset to arbitration—or potentially to place its very solvency in the unpredictable hands of a judge and jury?

Hand moving multicolor blocks

Before the Claim Hits


by George L. Lankford

General liability insurance is rarely as simple as it might seem—and if you wait to examine your policy specifics until your business has been sued, it’s too late.

Ship sinking surrounded by money

"Lawyer of the Year"


Lawyer in suit smiles for professional headshot

Kevin M. Levy

Technology Law

Miami, FL

2025

History Eraser


by Gregory Sirico

Penguin Random House and several other major book publishing houses filed litigation against Florida education leaders who recently passed a book ban law.

Penguin logo in front of black and white books

Scarlett Law Group: Mastering TBI Trial Law


by Justin Smulison

Randall H. Scarlett shares successes in traumatic brain injury cases, fueling Scarlett Law Group's growth across Northern California with specialized insights.

Two lawyers, suited, standing in front of law firm sign

"Lawyer of the Year"


Man in suit and tie smiling for professional headshot

Dylan D. Rudolph

Litigation - ERISA

San Francisco, CA

2025

"Lawyer of the Year"


Lawyer poses for professional firm headshot

Mindi M. Richter

Copyright Law

Tampa, FL

2025

One of the Greatest Ever...


by Justin Smulison

Steve Yerrid, a top catastrophic injury lawyer, has secured over 300 verdicts of $1M+ and has been recognized as "Lawyer of the Year" multiple times in Tampa.

Lawyer in blue suit poses in office for headshot

IN PARTNERSHIP

Georgia Car Accident: How to File a Car Accident Case


by Robert Hammers

In a car accident in Georgia? Read this guide for key steps from actions at the scene to settlement talks and lawsuit filing. Stay informed and prepared.

Figure with clipboard assesses the scene of an accident

"Lawyer of the Year"


Lawyer wearing glasses and suit smiles in headshot photo

Duane C. Pozza

Advertising Law

Washington, D.C., DC

2025

How a New Maryland Bike Safety Law Honors a Client’s Legacy


by Justin Smulison

Four-time Lawyer Of The Year Patrick Regan discusses how a client’s bicycling tragedy led to a result that improved Maryland traffic law to protect riders.

Group of lawyers posing for a photo

New SAFE Act Aims to Tackle Rising Crime in DC


by Gregory Sirico

As DC grapples with skyrocketing crime rates, the Secure Apartments for Everyone Regulation Amendment Act seeks to implement actionable change

Security cameras affixed to animated building

IN PARTNERSHIP

Three Steps To Maximizing Compensation After a Columbus Car Accident


by Jonathan Mani

Car accidents could result in costly medical bills and significant pain and suffering. To ensure you're compensated, contact a car accident attorney now.

Toy car laying upside down on pile of money

IN PARTNERSHIP

Immigration Pathways in the United States


by Versfeld & Hugo

Leon Versfeld knows firsthand how challenging obtaining a visa can be. Whether your path to residency involves investments, employment or athletic accolades, Versfeld & Hugo will guide you through every step.

Immigration Pathways in the United States

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background