Party Notice: ORTHOPAEDIC CARE SPECIALISTS PL V BLUE CROSS AND BLUE SHIELD OF FLORIDA INC

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                                Filing # 129954084 E-Filed 07/01/2021 07:30:20 PM

IN THE CIRCUIT COURT, FIFTEENTH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA

CASE NO. 2021-CA-006497-XXXX-MB

ORTHOPAEDIC CARE SPECIALISTS, P.L.,
Plaintiff,

Vv.

BLUE CROSS AND BLUE SHIELD OF

FLORIDA, INC., and HEALTH OPTIONS,

Defendants.
/

NOTICE OF FILING NOTICE OF REMOVAL TO THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1331, 1441 and 1446, Defendants
Blue Cross and Blue Shield of Florida, Inc. and Health Options, Inc. have been served with a copy
of a summons and complaint in this action and have filed a Notice of Removal of this action to the
United States District Court for the Southern District of Florida. A copy of the Notice of Removal
filed with the United States District Court is attached as Exhibit 1 hereto and is hereby served on
the Plaintiff's attorney and filed with the Court as required by 28 U.S.C. § 1446(d). This service
and filing effect the removal and “the State Court shall proceed no further unless and until the case
is remanded.” 28 U.S.C. § 1446(d).

Dated: July 1, 2021

FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 07/01/2021 07:30:20 PMRespectfully submitted,

HOLLAND & KNIGHT LLP

/s Timothy J. Conner
Timothy J. Conner

Florida Bar No. 767580
timothy.conner@hklaw.com
camille.winn@hklaw.com
Jennifer A. Mansfield

Florida Bar No. 186724
jennfer.mansfield@hklaw.com
Laura B. Renstrom

Florida Bar No. 108019
laura.renstrom@hklaw.com
Michael M. Gropper

Florida Bar No. 105959
michael.gropper@hklaw.com
Michael B. Decembrino, Jr.
Florida Bar No. 1026204
michael.decembrino@hklaw.com
50 North Laura Street, Suite 3900
Jacksonville, Florida 32202
Telephone: (904) 353-2000
Facsimile: (904) 358-1872

Attorneys for Defendants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 1, 2021, the foregoing document was filed with the
Clerk of the Court using CM/ECF:
Tony Bennett, Esq.

3399 PGA Boulevard, Suite 300
Palm Beach Gardens, FL 33410

E-Mail: tbennett@hmelawfirm.com
ncoull@hmelawfirm.com

Attorneys for Plaintiff

s/ Timothy J. Conner
AttorneyEXHIBIT “1”

to Notice of FilingCase 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
ORTHOPAEDIC CARE SPECIALISTS, P.L.,
Plaintiff,
v. CASE NO.:
BLUE CROSS AND BLUE SHIELD OF
FLORIDA, INC., and HEALTH OPTIONS,
INC.,

Defendants.
/

DEFENDANTS BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC.
AND HEALTH OPTIONS, INC.’S JOINT NOTICE OF REMOVAL

Defendants, Blue Cross and Blue Shield of Florida, Inc. (“Florida Blue”) and Health
Options, Inc. (“HOI”), hereby file this Notice of Removal containing a short and plain statement
of the facts which entitles them to removal as required by 28 U.S.C. § 1446, and state:

1. On or about May 21, 2021, Plaintiff, Orthopaedic Care Specialists, P.L.
(‘Plaintiff’), commenced this action in the Circuit Court, Fifteenth Judicial Circuit, in and for
Palm Beach County, Florida, under Case No. 2021-CA-006497, styled Orthopaedic Care
Specialists, P.L. v. Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc.

2. This Notice of Removal is being filed within thirty (30) days of Florida Blue’s
receipt of service of process on June 1, 2021 and HOI’s receipt of service of process on June 3,
2021 of Plaintiff's complaint. This civil action has, therefore, been timely removed. See 28

US.C. § 1446(b).Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 2 of 11

3. Contemporaneously filed herewith as Exhibit A is a copy of the Complaint filed
by Plaintiff in the state court, as well as copies of all process, pleadings, papers and orders, if
any, now on file in the state court pursuant to 28 U.S.C. § 1446(a).

4, Defendants remove this case pursuant to 28 U.S.C. § 1441 as an action over
which this Court has original federal question jurisdiction under 28 U.S.C. § 1331. This case
raises federal questions, and thus is removable, because 16 of the healthcare claims for which
Plaintiff seeks to recover are completely preempted by the Employee Retirement Income
Security Act of 1974, 29 U.S.C. § 1001, et. seg. (“ERISA”).

5. In support of this Notice of Removal, Defendants are contemporaneously filing,
as Exhibit B, the Declaration of Amanda Iacovella (the “Iacovella Declaration” or “Decl.”),
which, along with its Exhibits, is incorporated herein by reference.

6. Based on the allegations of the complaint, Defendants’ records show that 12 of
the patients at issue were enrolled in ERISA-governed healthcare plans, and that 16' of the
healthcare claims at issue arise under those 12 ERISA-governed plans. (See Decl. §{[ 5—6.)

7. Of the 16 healthcare claims that arise under ERISA-governed plans, Plaintiff
alleges that that Defendants did not submit any payment on 5 claims. (See Compl., Ex. A; Decl.
4/8.) Thus, coverage (i.e., the right to any payment at all) is at issue for the five claims for which
Plaintiff claims it received no payment.

8. Additionally, one of the ERISA claims pertains to a policy issued in Arkansas and
thus is not subject to Florida's insurance or HMO statutes.

9. Furthermore, at least two and perhaps three, of the ERISA plans at issue are self-
insured. (See Decl. {J 6-7.)

1 Plaintiff seeks payment on multiple healthcare claims for certain patients, which is why there
are more ERISA healthcare claims at issue than there are ERISA plans.Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 3 of 11

10. Self-insured ERISA plans are creatures of federal law which are not regulated by
state insurance statutes and regulations. See 29 U.S.C. § 1144(b)(2)(B) ("Deemer Clause")
(“Neither an employee benefit plan described in section 1003(a) of this title . . . nor any trust
established under such a plan, shall be deemed to be an insurance company or other insurer. . .
or to be engaged in the business of insurance or banking for purposes of any law of any State
purporting to regulate insurance companies, insurance contracts, banks, trust companies, or
investment companies.”).

11. Binding precedent from the United States Supreme Court and the Eleventh Circuit
interpreting the Deemer Clause holds that state laws of insurance cannot be applied to self-
insured ERISA plans. See Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 732 (1985) (holding that
self-funded plans are protected from state insurance regulation by the deemer clause); FMC
Corp. v. Holliday, 498 U.S. 52, 61 (1990) (“State laws that directly regulate insurance are
‘saved’ but do not reach self-funded employee benefit plans because the plans may not be
deemed to be insurance companies, other insurers, or engaged in the business of insurance for
purposes of such state laws.”); America’s Health Ins. Plans v. Hudgens, 915 F. Supp. 2d 1340,
1362 (N.D. Ga. 2012) (holding that ERISA’s deemer clause applied to pre-empt Georgia’s
insurance prompt payment law as applied to self-funded ERISA plans), aff'd, 742 F.3d 1319,
1333-34 (11th Cir. 2014).

12. As the emergency services statutes under which Plaintiff purports to bring its
claims regulate insurance companies (Chapter 627) and HMOs (Chapter 641), neither can be
enforced against a self-funded ERISA plan. Florida's Department of Financial Services (“DFS”)
acknowledges its own lack of authority to regulate self-funded ERISA plans in information on its

website directed to providers:Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 4 of 11

 

(The DFS does not have authority over the following contracts:

 

1.{Contracts purchased in a state other than Florida! If the contract
was purchased in a state other than Florida, you should contact that state’s Department of
Insurance. You can access the appropriate state’s contact information on the National
Associatio!

     

 

4. Prepaid Dental claims (contractual).

See Division of Consumer Services, Department of Financial Services, "Medical Provider
Informational Memorandum Attention: All Medical Providers," accessed at
https://apps.fldfs.com/ESER VICE/MedicalProvider.aspx, last visited July 1, 2021, attached
hereto as Exhibit C.

13. Consequently, any argument Plaintiff may make that this case concerns the “rate”
of payment versus “right” to payment is belied by: (1) the outright lack of payments on five
claims alleged in its Complaint which put coverage at issue; (2) the claims for benefits provided
under self-funded ERISA plans immune from application of the emergency services statutes
pursuant to the Deemer Clause; and (3) the ERISA claim governed by an insurance contract not
issued or purchased in Florida. See also, N. Cypress Med. Ctr. Operating Co., Ltd. v. Cigna, 781
F.3d 182, 201 (Sth Cir. 2015) (holding that rate versus right analysis inapposite for claims by
out-of-network providers).

14. Even when some, but not all, of the claims at issue are preempted, the entire case
is removable. 28 U.S.C. § 1367(a); Smith v. Wynfield Dev. Co., Inc., 238 F. App’x 451, 458

(11th Cir. 2007).Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 5 of 11

15. Attached as Exhibits 2 and 3 to the Iacovella Declaration are true and correct
copies an exemplar ERISA plans that covered two of the patients whose healthcare claims was
not paid. (See Decl. {| 9-10.) Because of the potentially voluminous nature of filing each of the
12 individual ERISA plans at issue—some of which are nearly 300 pages—Defendants are filing
this exemplar copy as representative of those ERISA plans. If and when it may become
necessary, Defendants can file the other ERISA plans or provide them to Plaintiff's counsel or
the Court upon request.

16. | Employer-sponsored or employer-provided health care plans are governed
exclusively by ERISA. This federal act “comprehensively regulates employee pension and
welfare plans.” Metro. Life Ins. Co. v. Mass., 471 U.S. 724, 732 (1985).

17. An “employee welfare benefit plan” is defined at § 1002(1) of Title 29 of ERISA

Any plan, fund, or program which was heretofore or is hereafter
established or maintained by an employer . . . to the extent that such plan,
fund, or program was established or is maintained for the purpose of
providing for its participants or their beneficiaries, for the purchase of
insurance or otherwise (A) Medical, Surgical, or Hospital Care or
Benefits in the event of sickness, accident, disability, death, or
unemployment ....

18. In Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63-64 (1987), the
Supreme Court held that a defendant may remove a state cause of action to federal court if
ERISA completely preempts the state claims. Here, 16 of Plaintiffs claims for benefits arise
under ERISA-governed plans. As the Eleventh Circuit noted in Garren v. John Hancock Mutual
Life Insurance Company, 114 F.3d 186, 187 (11th Cir. 1997), “[a] party’s state law claim ‘relates
to’ an ERISA benefit plan for purposes of ERISA pre-emption whenever the alleged conduct at

issue is intertwined with the refusal to pay benefits.”Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 6 of 11

19. Plaintiffs claims for monetary damages are clearly preempted by ERISA. See
Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir. 1991) (noting that
“{i]t is not the label placed on a state law claim that determines whether it is pre-empted, but
whether in essence such a claim is for the recovery of an ERISA plan benefit”); HCA Health
Servs. of Ga., Inc. v. Empr’s Health Ins. Co., 22 F. Supp. 2d 1390 (N.D. Ga. 1998) (finding
provider's claims for quantum meruit, open account, and stated account under Georgia common
law pre-empted by ERISA), aff'd., 240 F.3d 982 (11th Cir. 2001); Mullenix v. Aetna Life & Cas.
Co., 912 F.2d 1406 (11th Cir. 1990) (finding breach of contract action for failure to pay
insurance benefits was preempted by ERISA).

20. ERISA was designed to establish pension and welfare plan regulation “as
exclusively a federal concern.” See Alessi v. Raybestos — Manhattan, Inc., 451 U.S. 504, 523
(1981). Congress’ intent is evidenced in the statutory provision of ERISA which provides that
ERISA shall supersede all state laws that “relate to” any employee benefit plans described in the
statute. 29 U.S.C. § 1144(a). The United States Supreme Court has described ERISA’s pre-
emption clause as “deliberately expansive,” noting that Congress “intended to insure that plans

. would be subject to a uniform body of benefit law” with the goal of minimizing “the
administrative and financial burden of complying with conflicting directives among States.”
Ingersoll-Rand Co. y. McClendon, 498 U.S. 133, 142 (1990).

21. The United States Supreme Court reaffirmed ERISA’s strong preemptive force in
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004). In Davila, two individuals sued their health
maintenance organizations under a Texas medical malpractice statute for payment for benefits
not provided under the individuals’ health care plans. The individuals argued that the Texas

statute was an independent state law claim unrelated to ERISA. They further argued that theyCase 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 7 of 11

did not seek reimbursement for benefits denied them but rather tort damages from breach of a
statutorily imposed duty of ordinary care. See id. at 206. The Fifth Circuit Court of Appeals had
held that the claims were outside the scope of ERISA’s preemptive reach, and thus the cases
should be remanded to state court. The Supreme Court rejected this reasoning, and held that the
individuals’ causes of action, “brought to remedy only the denial of benefits under ERISA-
regulated benefit plans, fell within the scope of, and are completely pre-empted by, ERISA
§ 502(a)(1)(B), and thus removable to federal district court.” See id. at 221.

22. In its analysis, the Davila Court held that the preemptive force of ERISA is
stronger than only preempting a state law cause of action that “duplicates, supplements, or
supplants the ERISA civil enforcement remedy.” Jd. at 209. ERISA preempts state law claims
even if the remedies provided under those state laws are different or more extensive, or if the
state law claims are not duplicative of ERISA.

23. The Fifth Circuit reasoned that ERISA preemption did not exist because the
individuals were asserting “tort” claims rather than “breach of contract” claims based on ERISA;
however, the Supreme Court expressly rejected this reasoning. See id. at 215. “[D]istinguishing
between pre-empted and non-preempted claims based on the particular label affixed to them
would ‘elevate form over substance and allow parties to evade’ the pre-emptive scope of ERISA
simply ‘by relabeling their contract claims as claims for tortious breach of contract.” Jd. at 214.
Thus, the Court held that where the suit is brought to rectify a wrongful denial of benefits under
an ERISA plan, the “relates to” requirement is satisfied regardless of the label placed on the
claim, and therefore ERISA completely preempted the state law claims.

24. A suit to recover benefits from an ERISA-governed plan falls directly under 29

U.S.C. § 1132, which provides for an exclusive federal scheme of civil enforcement of ERISACase 9:21-cv-81165-XXXX Document1 Entered on FLSD Docket 07/01/2021 Page 8 of 11

disputes. See Ingersoll-Rand Co. v. McClendon, supra; Belasco v. WKP Wilson & Sons, Inc.,
833 F.2d 277, 282 (11th Cir. 1987); Amos v. Blue Cross & Blue Shield of Ala., 868 F.2d 430, 432
(11th Cir. 1989); Brown v. Conn. Gen. Life Ins. Co., 934 F. 2d 1193, 1195-96 (11th Cir. 1991).

25. Thus, where a state statute purports to expand the remedies available for benefit
claims, like those in Florida's emergency services statutes, the claims are preempted. N. Cypress
Med. Ctr. Operating Co., Lid. v. Cigna, 781 F.3d 182, 201 (5th Cir. 2015) (holding that state
laws that provide remedies different than those in ERISA are preempted).

26. In Brown v. Connecticut General Life Insurance Co., the Eleventh Circuit noted
that the well-pleaded complaint rule does not apply when there is ERISA “super preemption”
and stated:

An exception to [the well-pleaded complaint] rule is when Congress “so
completely pre-empts” a particular area that any civil complaint raising the
select group of claims is necessarily federal in character. The effect of this
exception is to convert what would ordinarily be a state claim into a claim
arising under the laws of the United States. This conversion of what
would otherwise be state law claims into federal claims can be labeled
“super pre-emption” to distinguish it from ordinary pre-emption, which
does not have that effect.

The Supreme Court has determined that ERISA “completely pre-empts”
the area of employee benefit plans and thus converts the state law claims
into federal claims when the state law is pre-empted by ERISA and also
falls within the scope of the civil enforcement section of ERISA, Section
502 (a), 29 U.S.C. § 1132 (a).

934 F.2d at 1196 (citations omitted).

27. — In Williams v. Wright, 927 F.2d 1540 (11th Cir. 1991), the Eleventh Circuit held
that an ERISA plan “is established if from the surrounding circumstances a reasonable person
can ascertain the intended benefits, a class of beneficiaries, the source of financing, and the

procedures for receiving benefits.” 920 F.2d at 1543 (quoting Donovan v. Dillingham, 688 F.2d

1367 (11th Cir. 1982) (en banc)) see also Randol v. Mid-West Nat'l Life Ins. Co., 987 F.2d 1547,Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 9 of 11

1550-51 n.5 (11th Cir. 1993) (“[C]ommercially purchased insurance polic[ies] under which the
procedures of receiving benefits are all dictated by the insurance carrier can constitute a plan for
ERISA purposes.”).

28. Here, there are 12 ERISA plans governing 16 claims identified in Exhibit A to
Plaintiff's Complaint and Exhibit 1 to the Iacovella Declaration. (See Decl. {J 5-6.) Ultimately,
any liability to pay Plaintiff on those claims arises solely from the terms and conditions of the
ERISA plans applicable to the claims. Therefore, Plaintiff’s claims fall squarely within the ambit
of ERISA super-preemption, and removal of the state action is proper. See, e.g., Sarasota Cty.
Pub. Hosp. Bd. v. Blue Cross & Blue Shield of Fla., Inc., 2019 WL 2567979, at *4 (M.D. Fla.
June 21, 2019) (finding ERISA super-preemption and exercising jurisdiction when the Plaintiff
“could have brought at least one claim under ERISA Section 502(a).” (emphasis added)); Baker
Cty. Med. Servs. Inc. v. Blue Cross & Blue Shield of Fla., Inc., No. 3:18-cv-01510, 2019 WL
5104773, at *5 (M.D. Fla. Sept. 19, 2019) (holding that ERISA completely preempted Plaintiff's
claims when only 5 out of 69 healthcare claims at issue implicated ERISA plans).

29. As this action is properly removed from State court pursuant to 28 U.S.C.
§ 1441(b) as a civil action over which this Court has original jurisdiction founded on claims
arising under the laws of the United States, it is removable without regard to the citizenship of
the parties or the amount in controversy.

30. Venue is proper in the Southern District of Florida, West Palm Beach Division, as
the state court in which the action is pending is within its jurisdictional confines. See 29 U.S.C.

§ 1146(a).Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 10 of 11

31. | Contemporaneously with this Notice of Removal, Florida Blue is filing a notice
with the Circuit Court, Fifteenth Judicial Circuit, in and for Palm Beach County, Florida,

pursuant to the requirements of 28 U.S.C. § 1446(d).

HOLLAND & KNIGHT LLP

/s Timothy J. Conner
Timothy J. Conner

Florida Bar No. 767580
timothy.conner@hklaw.com
Secondary: camille.winn@hklaw.com
Jennifer A. Mansfield

Florida Bar No. 186724
jennfer.mansfield@hklaw.com
Laura B. Renstrom

Florida Bar No. 108019
laura.renstrom@hklaw.com
Michael M. Gropper

Florida Bar No. 105959
michael.gropper@hklaw.com
Michael B. Decembrino, Jr.
Florida Bar No. 1026204
michael.decembrino@hklaw.com
50 North Laura Street, Suite 3900
Jacksonville, Florida 32202
Telephone: (904) 353-2000
Facsimile: (904) 358-1872

Attorneys for Defendants

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 1, 2021, the foregoing document was filed with the
Clerk of the Court using CM/ECF. I further certify that I emailed the foregoing document to:
Tony Bennett, Esq.

3399 PGA Boulevard, Suite 300
Palm Beach Gardens, FL 33410

E-Mail: tbennett@hmelawfirm.com

10Case 9:21-cv-81165-XXXX Document 1 Entered on FLSD Docket 07/01/2021 Page 11 of 11

ncoull@hmelawfirm.com

Attorneys for Plaintiff

s/ Timothy J. Conner
Attorney

11sat go GASCGRARRLEBS-XXXX Docume ert, GNAKRUSMIETEBD Docket 07/01/2021 Page 1 of 1

The JS 44 evil cover sheet and the information contained herein ache replace nor supplement he filing and service of pleadings or other

by local rules of court. This form, approved by the Judicial Conference of the United
the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE:

I. (a) PLAINTIFFS
Orthopaedic Care Specialists, P.L.

(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number)

spers as required by law, except as provided
tates in September 1974, is required for the use of the Clerk of Court for the purpose of initiating
': Attorneys MUST Indicate All Re-filed Cases Below.

DEFENDANTS
Blue Cross and Blue Shield of Florida, Inc, and)

County of Residence of First Listed Defendant Pyyyal
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
‘THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

NOTE:

Tony Bennett, Esq., Hicks & Motto, PA, 3399 PGA Blvd #300 Palm Br Timothy J. Conner, Esq., Holland & Knight LLP, 50 N Laura St #9
Ss

(d) Check County Where Action Arose: 1] MIAMI-DADE [J MONROE [1 BROWARD [al PALM BEACH [J MARTIN OUST. LUCIE CUINDIANRIVER [J OKEECHOBEE [1] HIGHLANDS:

 

II. BASIS OF JURISDICTION = (Place an “X” in One Box Only)

IIL. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintif))

 

 

 

(For Diversity Cases Only) and One Box for Defendant)
1 1 US. Government a Federal Question PIF DEF PIF DEF
Plainift (US. Government Not a Party) Citizen of This State C11 111 Incomporated or Principal Pee =]. 4.4
‘of Business In This State
1 2 US. Government o4 Diversity Citizen of Another State [] 2. [2 Incomporated.and Principal Place «=. $5
Defendant (Indicate Citizenship of Parties in Item IID of Business In Another State
Citizen or Subject of a 113 13 Foreign Nation Os os
Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions
(CONTRACT. TORTS. FORFEITURE/PENATTY. BANKRUPTCY, ‘OTHER STATUTES,
1110 Insurance PERSONALINJURY _ PERSONALINJURY [1] 625 Drug Related Seizure] 422 Appeal 28 USC 158 ]_375 False Claims Act
1120 Marine (310 Airplane 1 365 Personal Injury - of Property 21 USC 881] 423 Withdrawal 1 376 Qui Tam G1 USC
11130 Miller Act (21315 Airplane Product Product Liability] 690 Other 28 USC 157 3729 (a))
11140 Negotiable Instrument Liability 1 367 Health Care/ 1 400 State Reapportionment
11150 Recovery of Overpayment [320 Assault, Libel & Pharmaceutical [PROPERTY RIGHTS] O) 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 11820 Copyrights 430 Banks and Banking
1151 Medicare Act (71330 Federal Employers” Product Liebility 1 830 Patent | 1D 450 Commerce
[1152 Recovery of Defaulted Liability 1 368 Asbestos Personal o Ape Brig apicaion 1 460 Deportation
; Injury Produet Liability ademas 470 Racketeer Influenced and
Student Loans 340 Marine a ) Defend Trade Secrets — 1 Conupt Organizations
(Excl. Veterans) 111345 Marine Product TABOR ‘SOCIAL SECURITY OJ eco Crea oy
111153 Recovery of Overpayment Liability PERSONAL PROPERTY [710 Fair Labor Standards [J 861 HIA (1395fi) OO Proeateee ata)

(21350 Motor Vehicle
035s Motor Vehicle

© 370 Other Fraud
© 371 Truth in Lending

of Veteran’s Benefits
F160 Stockholders” Suits

  

 

   

© 490 Cable/Sat TV
1 850 Securities/Commodities!

Act
720 Labor/Mgmt, Relations

1 862 Black Lung (923)
DB 863 DIWC/DIWW (405(¢))

11190 Other Contract Product Liability [EF] 380 Other Personal 1D 740 Railway Labor Act D 864 SsiD Title XVI Exchange

1195 Contract Product Liability [] 360 Other Personal Property Damage [751 Family and Medical 1D 865 RSI (405(g)) 1 890 Other Statutory Actions

0196 Franchise 1 385 Property Damage Leave Act CO 891 Agricultural Acts

Product Liability] 790 Other Labor Litigation D893 Environmental Matters
ed, Malpractice Z Eee 791 Empl. Ret. Ine. 7 1 895 Freedom of Information
‘REAL PROPERTY ‘CIVIL RIGHTS PRISONER PETITIONS, Security Act [-FEDERACTAXSUITS—] _ Act

(0210 Land Condemnation (1740 Other Civil Rights ‘Habeas Corpus: (2870 Taxes (US. Plaintiff — C) 896 Arbitration

D0 220 Foreclosure 441 Voting 1 463 Alien Detainee or Defendant) 1 899 Administrative Procedure

1 230 Rent Lease & Ejectment a2 Eplyment 1 310, Motions: to Vacate 1 SZAIRS— Third Party 26 USC 7 peers jor : ;

1 240 Torts to Land o 443 Housing) Other: 950 Constitutionality of State

( 245 Tort Product Liability (1445 Amer. w/Disabilities - [] 530 General [-——IvmiGRATION——_]

£1 290 All Other Real Property Employment

11446 Amer. w/Disabilities -

1 535 Death Penalty
© 540 Mandamus & Other

ier 7 550 Civil Rights
(1448 Education 1 555 Prison Condition
560 Ciyil Detainee ~
C1 Conditions of
Confinement

(2762 Naturalization Appitcation
0 465 Other Immigration
Actions

  

 

V. ORIGIN (Place an “X” in One Box Only) 7 4
(1 Original fm] 2 Removed [7] 3 Re-filed [] 4 Reinstated [ 5 Transferred from 6 Multidistrict [7] 7 Appeal to D1 8 muttiaistrict Remanded fror
a Eons Sea Reopened one eae Distriet Judge Litigation C19 Appellate Court
from Magistrate rect
Judgment File
VI. RELATED/ (See instructions): a) Re-filed Case DYES ONO b) Related Cases OYES tf NO
RE-FILED CASE(S) JUDGE: DOCKET NUMBER:

 

Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):

VII. CAUSE OF ACTION Plaintiff's claims are completely preempted by the Employee Retirement Income Security Act of 1974, 29 U.S.Cg§

LENGTH OF TRIAL via 10
oO CHECK IF THIS IS A CLASS ACTION

days estimated

VII. REQUESTED IN

 

(for both sides to try entire case)

DEMANDS >$30,000 CHECK YES only if demanded in complaint:

 

 

COMPLAIN UNDER FRCP. 23
JURY DEMAND: lm Yes__CINo
‘ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE,
DATE, SIGNATURE OF ATTORNEY OF RECORD
07/01/2021 /s/ Timothy J. Conner
FOR OFFICE USE ONLY : RECEIPT # "AMOUNT TEP. JUDGE MAG JUDGECase 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 1 of 43

EXHIBIT “A”

to Notice of Removalferred mri ta etuventr tema enad
PNEYE Tot onthe

 

CASE NUMBER: 50-2021-CA-006497-XXXX-MB
CASE STYLE: ORTHOPAEDIC CARE SPECIALISTS PL V BLUE CROSS AND BLUE SHIELD OF FLORIDA INC

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Public = 3 In Process = @ Page Size:|25_¥
Docket Effective Notes
Number Date
a
1 05/25/2021 DIVISION AA: Circuit Civil Central - AA (Civil)
ASSIGNMENT
B2 05/21/2021 CIVIL COVER
SHEET
3 05/21/2021 COMPLAINT F/8 PLT
4 05/21/2021 SUMMONS tbennett@hmelawfirm.com;ncoull@hmelawfirm.com;hgiron@hmelawfirm.com
ISSUED ISSUED TO BLUE CROSS AND BLUE SHILED OF FLORIDA INC EFILED
Os 05/21/2021 SUMMONS tbennett@hmelawfirm.com;ncoull@hmelawfirm.com;hgiron@hmelawfirm.com
ISSUED ISSUED TO HEALTH OPTIONS INC EFILED
6 05/25/2021 PAID $421.000N —$421.00 4040701 Fully Paid
RECEIPT 4040701
Qo 7 06/01/2021 SERVICE NOTICE OF SERVICE OF PROCESS SERVED BLUE CROSS & BLUE SHIELD OF
RETURNED FLORIDA, INC - 06/01/2021
(NUMBERED)
QO 8 06/22/2021 SERVICE RETURN OF SERVICE SERVED DEFENDANT: HEALTH OPTIONS, INC - 06/03/2021
RETURNED

(NUMBERED)** CASE NUMBER: 502021CA006497XXXXMB Div: AA ****
Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 3 of 43

Filing # 127276270 E-Filed 05/21/2021 11:00:26 AM

FORM 1.997, CIVIL COVER SHEET

The civil cover sheet and the information contained in it neither replace nor supplement the filing
and service of pleadings or other documents as required by law. This form must be filed by the
plaintiff or petitioner with the Clerk of Court for the purpose of reporting uniform data pursuant
to section 25.075, Florida Statutes. (See instructions for completion.)

4

IL CASESTYLE a
x)

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL GIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA x

Orthopaedic Care Specialists PL
Plaintiff Case

Judge
vs.
Blue Cross and Blue Shield of Florida Inc, Health Options.Ine
Defendant Ay
XR

y
TI. AMOUNT OF CLAIM.
Please indicate the estimated amount of the claim, round to the nearest dollar. The estimated amount of
the claim is requested for data collection and@letical processing purposes only. The amount of the claim

shall not be used for any other purpose. \
© $8,000 or less &
C2 $8,001 - $30,000 ( )
C2 $30,001- $50,000
D $50,001- $75,000
0 $75,001 - $100,000
over $100,000.00
nf Nyvee OFCASE _ (Ifthe case fits more than one type of case, select the most

definitfvg'categbry.) If the most descriptive label is a subcategory (is indented under a broader
category) »place an x on both the main category and subcategory lines.

FILED: PALM BEACH COUNTY, FL, JOSEPH ABRUZZO, CLERK, 05/21/2021 11:00:26 AMCase 9:21-cv-81165-XXXX Document 1-2

CIRCUIT CIVIL

O Condominium
0 Contracts and indebtedness
C Eminent domain
CO Auto negligence
O Negligence—other
C Business governance
CO Business torts
0 Environmental/Toxic tort
O Third party indemnification
0 Construction defect
O Mass tort
O Negligent security
O Nursing home negligence
O Premises liability —commercial
O Premises liability—tresidential
O Products liability
OC Real Property/Mortgage foreclosure
O Commercial foreclosure
C Homestead residential foreclosure
CO Non-homestead residential foreclosure
O Other real property actions

OProfessional malpractice
O Malpractice—business
O Malpractice—medical

0 Antitrust/Trade regulation
CO Business transactions

O Malpractice—other pro Keions y
Other

Entered on FLSD Docket 07/01/2021 Page 4 of 43

A
S
ao

&

O Constitutional \challenge—statute or ordinance
O Constitutional tliallénge—proposed amendment

o Corpordfé trust

o Discrintiation—employment or other

IyStrace claims
Intellettual property

NLibel/Slander
Fate derivative action

ecurities litigation
0 Trade secrets
O Trust litigation

COUNTY CIVIL

O Small Claims up to $8,000
O Civil
O Real property/Mortgage foreclosureCase 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 5 of 43

O Replevins
O Evictions

O Residential Evictions

O Non-residential Evictions
O Other civil (non-monetary)

COMPLEX BUSINESS COURT

This action is appropriate for assignment to Complex Business Court as delincated and mandated by the
Administrative Order. Yes 0 No &

& Monetary;
OC Nonmonetary declaratory or injunctive relief;
O Punitive

IV. REMEDIES SOUGHT (check all that apply): Ss
V. | NUMBER OF CAUSES OF ACTION: [ ] S
(Specify) LY

QO.
VI. IS THIS CASE A CLASS ACTIONEAWSUIT?
O yes a
no

VII. HAS NOTICE OF 4 OWN RELATED CASE BEEN FILED?
no 1”

O yes If CG al Weed cases by name, case number, and court.

VI. IS JURYT! EMANDED IN COMPLAINT?
yes
Oto
I CERTIFY/that théyiformation Ihave provided in this cover sheet is accurate to the best of
my knowledge and belief, and that I have read and will comply with the requirements of
Florida’Rule’fudicial Administration 2.425.

Signatutg: s/ Tony Bennett Fla. Bar # 40357
Attorney or party (Bar # if attorney)
Tony Bennett 05/21/2021
(type or print name) DateFins ASO 9 PISS G TORS 2 PVN 43.26 NAPE ON FLSD Docket 0701/2021, Page 6 of 43

IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA.
ORTHOPAEDIC CARE SPECIALISTS, P.L., Case No.

Plaintiff,
v.

BLUE CROSS AND BLUE SHIELD OF
FLORIDA, INC., and HEALTH OPTIONS,
INC.,

Defendants.
/

COMPLAINT
Plaintiff, ORTHOPAEDIC CARE SPECIALISTS, P.L., is an emergency medicine group
practice and sues Defendants, BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC. and
HEALTH OPTIONS, INC., collectively designated as “BCBS/HO!” and alleges:
Nature of Action
1, This is an action concerning the rate at which BCBS/HOI reimbursed the Plaintiff for
emergency medical services the Plaintiff provided to patients (patients referred by as “BCBS/HOI
Members”) covered under the Defendants’ commercial insurance health plans. BCBS/HOI has
wrongfully paid the Plaintiff at rates below both: (1) the “usual and customary provider charges”
in violation of Sections 641.513(5) and 627.64194(4), Florida Statutes. For claims subject to those
sections; and, (2) below the reasonable value of the services in the marketplace required under
quantum meruit by the implied-in-fact contract between the parties and/or the implied-in-law
contract, for claims not subject to Sections 641.4513(5) and 627.64194(4).
2. The Plaintiff is obligated by law to provide emergency medicine services to BCBS/HOI
members and BCBS/HOI is obligated to cover those services. Further, BCBS/HOI, as a managed

care organization licensed as an HMO, has a duty under Section 641.513(5) and 627.64194(4) to

Page 1 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 7 of 43

reimburse Plaintiff at rates that are, at a minimum, equivalent to the “usual and customary provider
charges for similar services in the community.” Florida courts have interpreted this language as
requiring payment at fair market value. As Florida courts have held, the “intent of [Section
641.513(5)] is to ensure that the non-participating providers are adequately paid for a service they
are required by law to perform.” Merkle v. Health Options, 940 So. 2d 1190, 1196 (Fla. 4" DCA
2006). Section 627.64194(4) incorporates by reference the reimbursement terms of Section
641.513(5) and applies to the non-participating preferred provider network (commonly known as
“PPO/POS”) and exclusive provider network (commonly known as “EPO”) claims post- July
2016. This action does not include any claims in which benefits which were denied nor does it
challenge any coverage determinations under an ERISA plan.

3. For the claims at issue in this action, Plaintiff was a non-participating provider with
BCBS/HOI and, as a result, did not agree to accept discounted rates from BCBS/HOI for their
services and did not agree to be bound by BCBS/HOl’s reimbursement policies or rate schedules.

4, The impact of BCBS/HOI’s underpayments on the claims at issue is considerable and has
left a balance due from BCBS/HOI exceeding the minimum jurisdictional limits of this Court.

Parties

5. Defendant, BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC. is a Florida-for-
profit corporation with its headquarters at 4800 Deerwood Campus Parkway, Jacksonville, FL
32246. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC. is licensed as a health
maintenance organization (“HMO”) pursuant to Chapter 641 of the Florida Statutes and provides
managed care products and administrative services throughout Florida, including Palm Beach
County, Florida, and has an office for the transaction of its customary business in Palm Beach

County, FL.

Page 2 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 8 of 43

6. Defendant HEALTH OPTIONS, INC. is a Florida-for-profit corporation with its
headquarters at 4800 Deerwood Campus Parkway, DC1-7, Jacksonville, FL 32246. HEALTH
OPTIONS, INC. is licensed as a health maintenance organization (“HMO”) pursuant to Chapter
641 of the Florida Statutes and provides managed care products and administrative services
throughout Florida, including Palm Beach County, Florida, and has an office for the transaction of
its customary business in Palm Beach County, FL.

7. Plaintiff Orthopaedic Care Specialists, P.L. is a professional emergency medicine practice
which staffs the emergency departments at St. Mary’s Medical Center and Children’s Hospital in
West Palm Beach, Palm Beach County, Florida, Jupiter Medical Center, 1210 S. Old Dixie
Highway, Jupiter, FL 33458 and Palm Beach Gardens Medical Center, 3360 Burns Rd., Palm
Beach Gardens, FL 33410. Plaintiffresides at 733 U. S. Highway 1, North Palm Beach, FL 33408.

Jurisdiction and Venue

8. This is an action for damages exceeding the minimum jurisdictional limits of this Court,
exclusive of interest, attorney’s fees and costs, and the Defendant is engaged in substantial activity
within Florida and maintains an office within Florida.

9. Venue is proper in Palm Beach County, Florida, because the Plaintiff performs the
professional emergency medicine services at issue in Palm Beach County and the Defendant
BCBS/HOT has an office for the transaction of its customary business in Palm Beach County, FL.
Additionally, the acts and omissions that give rise to this action occurred within Palm Beach
County.

Facts

10. Plaintiff is an emergency medicine group practice that staffs the emergency departments at

Page 3 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 9 of 43

St. Mary’s Medical Center, Jupiter Medical Center and Palm Beach Gardens Medical Center and
provides emergency medical care and related services to patients, including BCBS/HOI Members,
presenting to its emergency departments.

11. In exchange for premiums, fees and/or other forms of compensation, BCBS/HOI pays for
health care services rendered to Members of its commercial health care products and platforms,
such as HMO plans.

12. The Plaintiff is obligated by Florida law to examine and individual presenting to the
emergency department and to provide stabilizing treatment to any such individual with an
emergency medical condition, regardless of the individual’s insurance coverage or ability to pay.

13. The Plaintiff provided professional emergency medical services at St. Mary’s Medical
Center, Jupiter Medical Center and Palm Beach Gardens Medical Center to fifty-six (56)
BCBS/HOI members. The charges for said services, claim numbers assigned to the claims by the
Defendants, the emergency services rendered, amounts paid by Defendants, member initials and
dates of service are contained within a spreadsheet attached as Exhibit “A.”

14. The aforementioned patients/members presented to the emergency department of St.
Mary’s Medical Center, Jupiter Medical Center and Palm Beach Gardens Medical Center with
severe injuries subsequent to traumatic events. Plaintiff performed under anesthesia multiple
procedures to each member identified in Exhibit “A” in order to treat the emergency medical
condition the patients/members presented to the emergency room with. The medical conditions
the members presented to the Emergency Department with required immediate medical attention
and had said interventions by the Plaintiff not occurred pursuant to Florida Statute 641.47(8),
serious jeopardy to the health of the members/patients, serious impairment to the
patients/members’ bodily functions, and serious disfunction of the patients’ affected body parts

would have resulted within the meaning of the Florida Statute 641.47(7)(a).

Page 4 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 10 of 43

15. With respect to the above refenced claims at issue, the Plaintiff did not and does not have
applicable participation agreements with BCBS/HOI, and the claims for reimbursement are
therefore considered non-participating or out of network claims (hereinafter, “Non-Participating
Claims”).

16. The Plaintiff did not agree to accept discounted rates from BCBS/HOI or to be bound by
BCBS/HOI’s reimbursement policies or rate schedules with respect to any of the claims for
emergency medical services Plaintiff rendered to the BCBS/HOI members referenced above.

17. Section 641.513(5), Florida Statutes, provides;

Reimbursement for services pursuant to this section by a provider who does not have a
contract with the health maintenance organization shall be the lesser of:

(a) The provider’s charges;

(b) The usual and customary provider charges for similar services in the community
where the services were provided; or

(c) The charge mutually agreed to by the health maintenance organization and the
provider within 60 days of the submittal of the claim.

18. Section 627.64194(4) incorporates by reference the above dictates of 641.513(5)
concerning the reimbursement of a non-participating provider with respect to services provided to
patients covered under a PPO/POS or EPO plan.

19. Under Section 641.513(5) and, effective July 1, 2016, Section 627.64194(4), Florida law
strikes a balance with respect to emergency services provided by non-participating providers such
as the Plaintiff. The Plaintiff must provide emergency care to all individuals presenting in the
emergency department, regardless of insurance coverage; and managed care organizations, such
as BCBS/HOI, must reimburse the Plaintiff for providing that care to their members according to
the dictates set forth by Sections 641.513(5) and 627.64194(4). Florida courts have interpreted
Section 641.513(5) to impose a requirement on managed care organizations licensed as HMO’s

“to ensure that the non-participating providers are adequately paid for a service they are required

by law to perform.” Merkle v. Health Options, Inc., 940 So. 2d 1190, 1196 (Fla. 4" DCA 2006).

Page 5 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 11 of 43

20. Sections 641.513(5) and 627.64194(4) impose a duty on managed care organizations such
as BCBS/HOI to reimburse non-participating providers such as the Plaintiff according to the
respective statute’s dictates. Where a managed care organization, such as BCBS/HOI, does not
comply with its statutory duty to a provider, both statutes afford that provider a private right of
action against the managed care organization to enforce its rights pursuant to these statutes.

21. Furthermore, Florida courts have interpreted the phrase “usual and customary provider
charges for similar services in the community where the services were provided” under Section
641.513(5) to require payment of “fair market value” for the services rendered. Baker County
Med. Servs. V. Aetna Health Mgmt., LLC., 31 So. 3d 842, 845-46 (Fla. 1 DCA 2010).

22. In establishing a framework to determine a fair rate of payment for non-participating
emergency medicine physicians with respect to reimbursement claims subject to Sections
641.513(5) and 627.64194(4), the Florida legislature also established a benchmark of “fair market
value” that can be used to determine appropriate levels of reimbursement of non-contracted
emergency medicine providers such as the Plaintiff with respect to all of the commercial and
Exchange products in which a given patient may be enrolled.

23. BCBS/HOT has at all material times approved Plaintiffs rendering emergency medicine
services to BCBS/HOI members in Plaintiff's Exhibit “A”.

24. BCBS/HOI is aware of its obligations to non-contracted providers such as the Plaintiff.
BCBS/HOlI is also aware that the Plaintiff provided professional emergency medicine services to
the specific BCBS/HOI members referenced above with the expectation and understanding that
their services had been approved by BCBS/HOI and that they would be reimbursed by BCBS/HOI
at rates reflecting (A) the lesser of (i) their billed charges or (ii) the “usual and customary provider
charges for similar services” (i.e. fair market value), as provided by Sections 641.513(5) and

627.64194(4) for claims subject to those sections and (B) the reasonable value in the marketplace,

Page 6 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 12 of 43

or quantum meruit, of the professional services Plaintiff provided, for claims not subject to
Sections 641.513(5) and 627.64194(4).

25. The Plaintiff has at all relevant times billed BCBS/HOI for the emergency medicine
services its professionals have provided to the BCBS/HOI members referenced above at Plaintiff's
charges with the understanding that BCBS/HOI had agreed to pay them (a) the lesser of their billed
charges or fair market value for claims subject to Sections 641.513(5) and 627.64194(4) and (b)
the reasonable value of services in the marketplace for claims not subject to those sections.

26. At all relevant times, BCBS/HOI paid the Plaintiff for some of the emergency medicine
services their professionals provided to the BCBS/HOI members referenced above, albeit at
amounts obviously and inappropriately below the Plaintiff’s billed charges, fair market value and
the reasonable value of their services in the marketplace.

27. With the full knowledge of its statutory obligations, BCBS/HOI is obligated to pay for
emergency medical services received by BCBS/HOI members from the Plaintiff at the emergency
departments Plaintiff staffs. BCBS/HOI acknowledgement of its obligation is confirmed by the
fact that it has issued payment to Plaintiff for the above referenced claims, albeit at rates below
what was owed to Plaintiff.

28. Despite the fact the Plaintiff is a non-participating provider and has never agree to accept
the steeply discounted rates from BCBS/HOI, the Explanation of Benefits notices BCBS/HOI sent
to the Plaintiff cryptically included, for example, only an explanation such as the following:
“Charge exceeds fee schedule/maximum allowable or contract/legislated fee arrangement.”

29. BCBS/HOL has not paid the Plaintiff either their billed charges, the fair market value of the
services rendered or the reasonable value of the services rendered by Plaintiff.

30. Plaintiff in this action seeks a determination that BCBS/HOI: (1) has an obligation under

Section 641.513(5) and 627.64194(4) to pay the lesser of their billed charges or “the usual and

Page 7 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 13 of 43

customary provider charges for similar services in the community where the services were
provided;” i.e. fair market value; (2) that BCBS/HOI has an obligation pursuant to an implied-in-
fact or implied-in-law contract to pay Plaintiff the reasonable value of the services rendered in the
marketplace; (3) that BCBS/HOI has failed to adhere to its obligations under Section 641.513(5)
and 627.64194(4); (4) and that BCBS/HOI breached the implied contract.

31. BCBS/HOI’s refusal to pay the Plaintiff the fair market value and/or the reasonable value
of the professional emergency medicine services they have provided to the BCBS/HOI members
referenced above has caused, and continues to cause the Plaintiff to suffer damages in an amount
equal to the difference between the amounts allowed and paid by BCBS/HOI and the fair market
value and reasonable value of the services the Plaintiff provided, plus Plaintiff’s loss of use of that
money.

COUNT I - Violation of Sections 641.513(5) and 627.64194(4)

32. Plaintiff re-alleges and restates paragraphs 1-31 above as if they were fully set forth herein.

33. The Plaintiff provided covered professional emergency medicine services to BCBS/HOI
members as specified in Exhibit “A” and submitted reimbursement claims subject to Sections
641.513(5) and 627.64194(4) for which BCBS/HOI, a managed care organization, was responsible
for payment.

34. At all material times, the Plaintiff was a non-participating emergency medicine provider
that staffed the emergency departments at St. Mary’s Medical Center, Jupiter Medical Center and
Palm Beach Gardens Medical Center.

35. Section 641.513(5), Florida Statutes, provides;

Reimbursement for services pursuant to this section by a provider who does not have a
contract with the health maintenance organization shall be the lesser of:

(d) The provider’s charges;
(ce) The usual and customary provider charges for similar services in the community
where the services were provided; or

Page 8 of 13Case 9:21-cv-81165-XXXX Document 1-2 Entered on FLSD Docket 07/01/2021 Page 14 of 43

(f) The charge mutually agreed to by the health maintenance organization and the
provider within 60 days of the submittal of the claim.

36. Section 641.513(5) imposes a duty on BCBS/HOL as a managed care organization licensed
as an HMO, to reimburse Plaintiff for their Non-Participating Claims according to the statute’s
dictates.

37. Plaintiff has a private right of action under both Sections 641.513(5) and 627.64194(4) to
enforce their provision against BCBS/HOI.

38. At all material times, the Plaintiff submitted its Non-Participating Claims to Defendant,
BCBS/HOL, setting forth its charges for reimbursement of the emergency medicine services its
professionals rendered to the above referenced BCBS/HOI members.

39. At all times material hereto, BCBS/HOI issued payment on the non-Participating Claims
submitted by the Plaintiff for emergency medicine services rendered to the above referenced
BCBS/HOI members, albeit at a rate less than the “usual and customary provider charges for
similar services in the community where the services were provided” that BCBS/HOI w