Yale, Covid-Test Doc Spar Over Payments

Alleged ​“pandemic profiteer” Steven Murphy is asking a federal judge to allow him to sue Yale for allegedly not paying him over $1.1 million in Covid-test reimbursements.

Murphy’s attorney, Roy Breitenbach, asked a federal judge at a hearing Tuesday in Bridgeport to follow the legal logic of her Texas counterpart — and not that of her judicial colleague in New Haven — when deciding whether or not Murphy’s suit may proceed.

The hourlong hearing took place in a second-floor courtroom at the federal courthouse at 915 Lafayette Blvd. in Bridgeport.

The case being heard is Murphy Medical Associates LLC v. Yale University – and the argument, made by Breitenbach on behalf of his Greenwich-based client, has become a familiar one for a doctor who once partnered with New Haven city government to provide walk-up Covid-19 tests in the early months of the pandemic.

Over the past two years, Murphy’s medical practice has filed a total of nine different federal lawsuits against various insurers and health plans seeking to collect millions of dollars in unpaid Covid-19 test reimbursements. (Click here, here, here, and here to read some of those Murphy-filed lawsuits.)

Those defendants have consistently responded to Murphy’s legal challenges by accusing him of being a pandemic ​“profiteer” for sending insurers bills that were hundreds of dollars — and sometimes thousands of dollars — more expensive per test than the industry standard. Patients from across Connecticut and New York have also spoken up time and time and time again over the past two years about how they visited government-backed testing sites run by Murphy to receive only a Covid-19 test – and later found out that Murphy had billed their insurance companies exorbitant amounts for a suite of unrequested and potentially unrelated medical testing. (Click here, here, here, here, and here to read some of those insurer responses to Murphy-filed lawsuits.)

On Tuesday, Yale-hired attorney Patrick Noonan and Murphy-hired attorney Breitenbach duked it out before U.S. District Court Judge Kari Dooley over Yale’s motion to dismiss all eight counts of the civil lawsuit. 

That lawsuit states that Yale owes Murphy $1,100,784 for over 1,500 claims related to Covid-19 tests his practice performed on patients covered by Yale University and the Yale Health Plan, which is a health maintenance organization (HMO) that provides healthcare for students and staff at the university.

In the motion to dismiss, Yale’s attorney argues that Murphy and his medical practice ​“used the COVID-19 pandemic as an opportunity to grossly overcharge health insurers and payors for medical care, office visits and unnecessary respiratory tests provided to individuals who simply wanted to know whether they were infected with the virus that causes COVID-19.”

As was the case during a February court hearing in New Haven – involving a different set of lawyers, a different federal judge, a different insurer-defendant, and a different but near identical lawsuit filed by Murphy — the legal debate returned frequently on Tuesday to the question of whether or not doctors have the right to sue insurers under two pandemic-era federal laws if those insurers hold out on paying for the costs of Covid tests. 

That is, whether or not providers have a ​“private cause of action” under these laws.

Just as during that prior hearing, the two legal adversaries Tuesday had to contend with a recent federal court ruling offering a judge’s legal opinion on that very matter.

Those two judicial precedents, however, contained opposite and conflicting rulings — leading Noonan to urge the judge to follow one legal path, while Breitenbach called on the judge to pursue the other.

Yale: No "Private Cause" Allowed

The precedent that Noonan called on Dooley to follow came from her federal judicial colleague in New Haven, U.S. District Court Judge Janet Bond Arterton.

In a March ruling, Bond threw out six of the eight counts included in a Covid-test-reimbursement lawsuit filed by Murphy against the insurance giant Cigna.

One of the counts that she dismissed was Murphy’s claim that he as a medical provider has a so-called ​“private cause of action” under the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) Act to sue insurers who deny reimbursements for Covid-19 tests. 

Noonan quoted directly from Arterton’s ruling when he argued that there’s ​“no private cause of action under either FFCRA or CARES” on this question of Covid test reimbursements.

Arterton found that there was clearly no explicit private cause of action detailed in the federal law itself and that there was no ​“clear evidence of legislative intent” to support an implied cause of action, he said. 

In a March 22 filing in the Murphy v. Yale case, Noonan even added Arterton’s decision to his case’s record as a ​“notice of supplemental authority” in support of Yale’s motion to dismiss.

“Judge Arterton’s reasoning as to the absence of an implied private right of action under the FFCRA and CARES Act is relevant to the present matter,” he wrote in that March 22 filing. Therefore, Judge Dooley should take her Connecticut colleague’s ruling into consideration as she presides over this separate but parallel case.

On Tuesday, Noonan stressed that Congress set up an ​“administrative remedy” — outside of the courts — for providers looking to enforce the insurer payment provision of the relevant federal laws. A lawsuit based off of a right to sue that doesn’t exist therefore should be thrown out.

Murphy: Texas Judge Got It Right

During his time before the Bridgeport federal judge on Tuesday, Breitenbach argued that Dooley should indeed follow judicial precedent when deciding whether or not his client has a private cause of action under the CARES Act and the FFCRA.

That precedent that she should follow, however, comes out of Texas, not Connecticut.

On Jan. 18, a federal district court judge in southern Texas ruled in a separate but similar case that healthcare providers do have an ​“implied private right of action” under the FFCRA and CARES Act when looking to pressure insurance companies to reimburse them for the costs of Covid tests. 

“We believe the Diagnostic Testing case got it right,” he said, referring to the Texas court case by its name, Diagnostic Affiliates of Northeast Hou LLC v. United Healthcare Services Inc.

It’s obvious that Congress’s intent in passing those federal laws was to benefit patients looking to get tested for Covid at no cost, Breitenbach said. He said that necessarily means that Congress also intended to look out for medical providers with those same laws, because ​“if the provider was not reimbursed, they would have no incentive to provide these tests.”

He stressed that Congress’s intent was ​“to get providers paid quickly” and easily for Covid tests, so that they could make those tests easily available at a time of national crisis.

However, Breitenbach continued, even if Judge Dooley agrees with Judge Arterton’s reasoning in her March 2021 ruling about providers not having a private cause of action on such matters, he encouraged her to agree with another part of Arterton’s ruling.

That is, that another federal health care law, the Employee Retirement Income Security Act of 1974 (“ERISA”), was sufficiently modified by the CARES Act and the FFCRA to preclude insurers from reimbursing providers for the costs of Covid-19 diagnostic testing. Since Arterton refused to dismiss that ERISA-focused count of Murphy’s lawsuit against Cigna, Noonan said, the Yale case should also be allowed to continue on similar grounds, even if Dooley disagrees with the plaintiff on the private cause of action debate.

Dooley didn’t issue a ruling on Yale’s motion to dismiss at the end of the hourlong hearing. Instead, she said, ​“I will turn my attention to this and get you something as soon as possible” — not just in regards to the CARES Act, FFCRA, and ERISA claims, but in regards to all eight counts included in Murphy’s lawsuit against the university.

Judge: Did Patients Know What They Were Getting Tested For?

The arcane details of pandemic-era federal law weren’t the only matters up for debate during Tuesday’s hearing.

Dooley, Noonan, and Breitenbach also touched on the equipment Murphy’s practice used when testing patients for Covid — and why that equipment resulted in such high bills sent to insurance companies.

In his opening address to the judge, Noonan brought up how Murphy’s practice used a ​“BioFire array of tests” when testing patients for Covid. Not only is that system ​“really expensive,” he said, it’s ​“not nearly as effective as PCR,” and it unnecessarily tests for 21 other pathogens in addition to the virus that causes Covid-19.

“Medically, that shouldn’t have been done,” Noonan said. ​“BioFire is used when someone has a significant lung disorder that can’t otherwise be diagnosed.” Which was not the case for the Yale-covered patients here.

Breitenbach responded by telling the judge that the BioFire test panel is the ​“gold standard” for testing for respiratory pathogens. At the time that Murphy was conducting these Covid tests, he said, it was the start of the pandemic and doctors were encouraged to look out for Covid alongside other respiratory diseases.

“We believe we’re going to be able to establish medical necessity” for using the BioFire panel, Breitenbach said. ​“The record is strong” in support of such a method.

Dooley then interjected with a question of her own.

“When somebody went to the drive-through site for a Covid test” operated by Murphy’s clinic, the judge asked, ​“did they know they were getting tested for 21 different pathogens?” Or did they think they were getting tested only for Covid-19?

“We explained to them that we were using the BioFire test,” Breitenbach responded. ​“They [that is, patients] understood they were getting a BioFire test and what that meant, in most cases.”

The question, Dooley persisted, is one of ​“consent. You have to have consent to test for 21 pathogens” when someone comes in wanting only a Covid test.

In any of these 1,500 cases at the center of this lawsuit, Dooley asked, did Murphy’s medical practice find positive results for ​“unknown respiratory pathogens” that were not Covid-19?

“I believe so,” Breitenbach replied.

During his time back before the judge, Noonan said that he and his client have nothing against BioFire tests. ​“BioFire’s a perfectly good test when it’s needed.” The problem was, he said, that these patients were looking for a Covid test, ​“not a test for 21 other pathogens.”

"Private Cause" Case Law Reviewed

Breitenbach and Noonan aren’t the only lawyers to have recently weighed in on this question of whether or not the CARES Act and FFCRA provide doctors with a private cause of action around Covid test reimbursements.

In the June issue of the civil defense attorney magazine For The Defense, Hartford-based lawyer Patrick Begos dove deep on this very issue, on related claims of ​“pandemic profiteering,” on the Texas and Connecticut federal judges’ differing interpretations of the relevant sections of federal law. His article is called ​“Emergency Laws and Private Rights of Action.”

In addition to being a partner at the law firm Robinson & Cole, Begos is also the lawyer representing Cigna in Murphy’s ongoing federal court battle against the insurance giant — as well as in Cigna’s recently filed counter-lawsuit against Murphy’s practice. It was that Cigna case that resulted in Judge Arterton’s ruling that providers do not have a private cause of action under these laws. 

“It should come as no surprise that some providers sought to use the pandemic, and these laws, for their own enrichment – pandemic profiteering, in other words,” Begos wrote in the introduction to the article. ​“This has led to a number of cases, and just-now developing case law, regarding exactly what rights, and what obligations, were established by the FFCRA and the CARES Act.

“A central question, to which two courts have so far provided contradictory answers, is whether the Coronavirus legislation gives health care providers a private right of action to enforce payment obligations placed on health plans and health insurers. As discussed below, the author’s view, supported by one federal judge, is that the Coronavirus legislation does not grant providers a private right of action, and providers’ claims for reimbursement must proceed under the law governing the health plan at issue (typically ERISA).”

Click here to read Begos’s article in full.

See below for previous articles about Dr. Murphy, his lawsuits, and his Covid testing practice in New Haven.

• Murphy’s Lawsuit Largely Tossed
• Covid Case Q: Who Ripped Off Whom?
• ​“Profiteer” Set Up In City Amid Fraud Probe
• After $2,774 Covid Test, Dunner Persists
• Covid-Test Doc’s Woes Mount; UNH Bails
• Covid Updates: Homeless Plan Previewed; City Drops Dr. Murphy
• Debt Collector Dogs​“Free” Covid Testee
• Covid-Free? We’ll Tell You Next Week
• We Got Swabbed In Day Street Park
• Covid-19 Test Center Opening In Dwight
• Dixwell, Fair Haven Test Sites Readied