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Filing # 85165423 E-Filed 02/19/2019 03:29:16 PM
IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CASE NO: 18-000897-SC
PREMIER INPATIENT PARTNERS, LLC,
as third-party beneficiary of K.L.,
Plaintiff,
Vv.
AETNA HEALTH AND LIFE INSURANCE
COMPANY,
Defendant.
/
AETNA’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
AND MEMORANDUM OF LAW IN SUPPORT OF MOTION
Defendant, Aetna Health and Life Insurance Company (“Aetna” or “Defendant”,
pursuant to Fla. R. Civ. P. 1.140(b)(6), hereby files its Motion to Dismiss Plaintiff Premier
Inpatient Partners, LLC’s “Plaintiff’) First Amended Complaint and Memorandum of Law in
support thereof as follows:
INTRODUCTION
Plaintiff Premier is a health care provider that alleges it provided treatment to members of
Aetna’s health care plans. Plaintiff has not entered into a contract with Aetna, and therefore is an
“out-of-network” provider. Beginning in December 2017, Plaintiff filed a series of cases against
Aetna, in various counties in Florida, alleging that it provided medical treatment to patients
insured under Aetna plans, submitted claims to Aetna pursuant to the plan for reimbursement for
those services, and was not paid its full billed charges. !
1
In a July 18, 2018 Order, the Middle District of Florida recognized that the number of
cases Plaintiff has filed against Aetna is “noteworthy.” Plaintiff continues to increase those
***ELECTRONICALLY FILED 02/19/2019 03:29:16 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
Plaintiff's claim should be dismissed because its claims are inextricably intertwined with
a claim for benefits under Medicare and therefore is indisputably preempted by the Medicare
Act, and because Plaintiff failed to exhaust its administrative remedies before filing this lawsuit.
This case involves a privately administered HMO plan that provides Medicare benefits. And
the Medicare Act governs the relationship between Aetna and providers like Plaintiff, who are
not under contract with Aetna, but nonetheless provide health care services to its members.
Plaintiff's First Amended Complaint attempts to plead around the standards of the Medicare Act
and avoid Medicare’s broad preemption clause and requirement to exhaust administrative
remedies. Clever pleading, however, cannot salvage Plaintiff's deficient claim.
The crux of Plaintiff's claim is that Aetna failed to properly reimburse it for claims it
submitted for services provided to its members. Plaintiff's First Amended Complaint seeks
Medicare benefits under the Plan, and its claim relates to the processing and denial of claims for
benefits. Indeed, the Plan provides the entire basis for the claim against Aetna and its payments
to Plaintiff; absent a covered dependent under the Plan, Plaintiff has no means to submit a claim
to Aetna or seek any reimbursement whatsoever from Aetna. Plaintiff asserts repeatedly in its
First Amended Complaint that it seeks payment for its claim.
numbers. As of the date of this filing, Plaintiff has filed approximately one hundred fifty (150)
other cases against Aetna involving ERISA and Medicare plans.
2
Plaintiff does not attach the plan documents to the Complaints. The Plan documents are
attached to the Affidavit of Michael McNamara, filed contemporaneously herewith and
incorporated herein. These documents may be considered on this Motion to Dismiss. See, One
Call Property Services, Inc. v. Security First Ins. Co., 165 So.2d 749, 752 (Fla. 4" DCA
2015)(considering insurance policy which was not attached to the Complaint but was attached to
the defendant’ motion to dismiss, stating: “where the terms of a legal document are impliedly
incorporated by reference into the complaint, the trial court may consider the contents of the
document in ruling on a motion to dismiss.”)
The Medicare Act forecloses Plaintiff's claim in two ways. First, the Medicare Act
preempts Plaintiff's breach of contract claims. To ensure certainty and consistency, Congress
equipped the Medicare Act with a broad preemption clause establishing that Medicare standards
supersede state laws attempting to regulate private health plans offered to Medicare
beneficiaries. See, 42 USC. § 1395w-26(b)(3). The Medicare regulations provide
comprehensive standards controlling reimbursement rates for non-contracting providers like
Plaintiff. Second, Plaintiff's claims are not ripe because it failed to exhaust its administrative
remedies. The Medicare Act requires that Medicare disputes proceed through an administrative
process. Plaintiff's First Amended Complaint makes clear that it did not submit its claims to
Medicare’s administrative review process.
Put short, Plaintiff's First Amended Complaint seeks nothing more than benefits under
the Medicare Plan at issue. Regardless of how Plaintiff couches its claim, at its core, it seeks to
remedy the alleged denial of benefits under Medicare. Its claim is “inextricably intertwined”
with a claim for reimbursement of medical expenses. This action is nothing more than an
attempt by Plaintiff to substitute itself as the regulator in place of CMS and to use state law
theories in place of federal standards and remedies. Because its claim is preempted, and because
there is no dispute that Plaintiff failed to exhaust the required administrative remedies, its First
Amended Complaint should be dismissed in its entirety.
FACTUAL AND PROCEDURAL HISTORY
I. Statement of Facts.
Aetna is a health maintenance organization (“HMO”) that offers and administers health
plans in Florida, including privately administered HMO plans that provide Medicare benefits.
(First Amended Complaint, J 11)(“FAC”). Aetna has a Medicare contract with the Center for
Medicare and Medicaid Services (“CMS”) to offer and administer Medicare Advantage plans for
Medicare eligible individuals, including the patient at issue in this case. The regulations specific
to Medicare Advantage organizations are extensive, and cover all aspects of the program,
including the review and approval of marketing materials and enrollment forms, the specific
information a plan must disclose to enrollees, individual enrollment requirements, and the
management of grievances and disputes.
In or around December 2017, Plaintiff began filing a series of actions against Aetna,
seeking reimbursement for medical services allegedly provided to Aetna’s members pursuant to
health insurance policies between Aetna its members. Plaintiff alleges that it is an “out of
network” provider (FAC, {J 13-14). In other words, plaintiff has not contracted with Aetna to
accept discounted reimbursement, in exchange for the benefits of being an “in network”
provider. Plaintiff alleges that it treated patient K.L. on or about April 26, 2017. (FAC, § 12).
K.L. is a member of privately administered HMO plan that provides Medicare benefits.
Thereafter, Plaintiff submitted an electronic claim for reimbursement to Aetna, seeking payment
directly from Aetna. (FAC, §f] 16-17). It alleges that after it provided medical services to the
member beneficiary, Aetna failed to pay for services provided to Aetna’s member. (FAC, {J 1,
30).
Plaintiff's First Amended Complaint repeatedly and expressly acknowledges that its
claims are “inextricably intertwined” with a claim for Medicare benefits under the Plan at issue:
e Plaintiff expressly claims that it is entitled to “recover benefits for health care treatment
regarding the above-mentioned policy.” (FAC, { 30)(Emphasis Supplied);
Plaintiff alleges that this is an action for allegedly unpaid or underpaid claim(s) for health
care benefits (FAC, § 1);
Plaintiff alleges that its claims may change pursuant to the “subject policy and an explanation
of how the “allowed amount” reduction was calculated.” (FAC, 2)(Emphasis Supplied);
Plaintiff alleges that Aetna “directly or indirectly solicits or effects coverage of, collects
charges or premiums from, or adjusts or settles claims on behalf of residents of Florida . . .
through a health maintenance contract.” (FAC, J 11)
Plaintiff alleges that it submitted an electronic claim to Aetna and expected payment (FAC,
16);
Plaintiff alleges that “[iJn exchange for premiums, the Defendant owes the Patient/Member
an obligation to pay for the medical services received. The defendant derives a direct benefit
from the Plaintiff providing medical services that fulfill the Defendant’s obligations to the
Patient/Member.” (FAC, § 29).
The First Amended Complaint alleges a single cause of action: a claim for purported
violations of Fla. Stat. §§ 641.513/627.64194, and a breach of an alleged “implied-in-law
contract.” (FAC, J] 24-33). Plaintiff alleges that Aetna failed to pay the proper “health care
benefits” and that it seeks to recover benefits “regarding the above-mentioned policy.” (FAC, {J
30, 33).
IL. Procedural History.
Plaintiff filed this case against Aetna in the County Court for Pinellas County on or about
February 16, 2018. Plaintiff filed its original complaint as a third party beneficiary to the Plan at
issue and alleged two claims for breach of contract based on purported violations of Florida
statutes. Plaintiff alleged that these statutes were incorporated by reference into the policy.
Aetna timely removed the case to the Middle District of Florida.
On or about March 20, 2018, Aetna moved to dismiss Plaintiffs original Complaint, on
the grounds of express and conflict preemption under the Medicare Act. Plaintiff did not oppose
Aetna’s Motion. Over a month later, on or about May 9, 2018, Plaintiff filed its Motion for
Leave to File a First Amended Complaint. The First Amended Complaint did two things: it
dropped Count II, which alleged a breach of the plan at issue based upon Florida’s Prompt Pay
provisions, and it attempts to artfully plead around the undisputed fact that its remaining contract
claim is preempted by the Medicare Act.
On July 18, 2018, Judge Scriven with the Middle District of Florida granted Plaintiff
leave to file its First Amended Complaint, and granting Aetna leave to “reassert any of the
challenges raised therein” in another Motion to Dismiss. Aetna filed its Motion to Dismiss the
First Amended Complaint on August 2, 2018. On February 15, 2019, Judge Scriven remanded
this case back to this Court, finding that it lacked subject matter jurisdiction. The Court did not
tule on Aetna’s Motion to Dismiss.
As shown in detail below, Plaintiff still seeks to recover allegedly unpaid health
insurance benefits pursuant to a plan that provides Medicare benefits. The semantic changes
made to the First Amended Complaint fail to change this fact. By way of example, Plaintiff
artfully eliminates most (but not all) of the specific references to the Plan at issue, apparently in
an attempt to ignore that the patient at issue is a member of plan at issue providing Medicare
benefits. (See, e.g., paragraph 12 of original and First Amended Complaint; paragraph 26 of
original Complaint and paragraph 29 of First Amended Complaint). Its change of the label of its
breach of contract claim from one for “Breach of Contract” to “Breach of Contract — Implied-in-
Law” is also a mere change of form, not substance. Plaintiff's attempt to obscure the fact that its
claims are for unpaid Medicare benefits fails, as courts are consistent in holding that “artful”
pleading does not change the facts. The substance of its First Amended Complaint demonstrates
that it seeks reimbursement of Medicare benefits. Plaintiff alleges that it is entitled “to recover
benefits for health care treatment regarding the above-mentioned policy.” (FAC, { 30). 3
ARGUMENT AND CITATION TO AUTHORITIES
I Legal standard.
Under Florida Rule of Civil Procedure 1.140(b)(6), a complaint should be dismissed for failure
to state a cause of action where “the claimant could prove no set of facts whatsoever in support
of his claim.” Put another way, a motion to dismiss tests the legal sufficiency of a plaintiffs
complaint. * Crocker v. Marks, 856 So.2d 1123 (Fla. 4" DCA 2003); Jallali v. Barry University,
Inc., 746 So.2d 853 (Fla. 3d DCA 1999)(“The purpose of a motion to dismiss is to ascertain
whether a plaintiff has alleged a good cause of action.”). A motion to dismiss requires the trial
court to determine whether the complaint properly states a cause of action upon which relief can
be granted and, if it does not, to enter an order of dismissal. Nero v. Continental Country Club
R.0., Inc., 979 So.2d 263 (Fla. 5" DCA 2007).
IL. Express Preemption under the Medicare Act.
As this Court knows, Medicare is the federal government’s health insurance plan for the
elderly and certain persons with disabilities, and is administered by the Centers for Medicare and
Medicaid Services (“CMS”), a division of the U.S. Department of Health and Human Services.
3
Since filing these cases, plaintiff has filed yet another round of complaints alleging
declaratory judgment and unjust enrichment claims, in addition to its breach of contract claims.
Despite Plaintiff's multiple attempts to avoid preemption, its allegations have demonstrated —
time and time again — that, at bottom, it seeks payment for medical services provided to Aetna’s
members.
4
While all of the Florida Rules of Civil Procedure are not automatically applicable to this
action, Florida Small Claims Rule 7.020(c) allows this Court to order an action “to proceed
under | or more additional Florida Rules of Civil Procedure on application of any party or the
stipulation of all parties or on the court’s own motion.”
7
Part C allows eligible individuals to obtain benefits through Medicare Advantage plans, which
are administered by private insurers known as Medicare Advantage organizations (“MAO’s”)
that enter into contracts with CMS.° The Medicare Advantage Program provides Medicare
beneficiaries with an alternative method to access Medicare benefits. Under the Program,
Medicare beneficiaries may elect to receive their benefits through a private health plan that offers
a Medicare Advantage plan. The Program is a uniform federal program that operates across all
50 states and is subject to extensive and comprehensive regulation and continuing oversight by
CMS.
The regulations specific to Medicare Advantage organizations are extensive, and cover
all aspects of the program, including the review and approval of marketing materials (See, e.g.,
42 C.F.R. § 422.80(a); the enrollment process (See, e.g, 42 C.F.R. §§ 422.50, 422.60); the
management of grievances and disputes See, e.g., 42 C.F.R. § 422.564(a), (d), (f). Perhaps most
critically to this case, CMS also regulates benefits standards (See, e.g., 42. C.F.R. §§ 422.100,
101, 111). More specifically, as set forth above, the Act establishes reimbursement standards
Jor non-contracting providers who provide health care services to Medicare enrollees, requiring
Medicare Advantage Organizations to reimburse non-contracting providers at standard
Medicare rates. See, 42 U.S.C. § 1395cc(a)(1)(O); 42 C.F.R. § 422.100(b)(2) (Emphasis
Supplied).
Plaintiff's state law claim is expressly preempted by the Medicare Act because the
conduct alleged by the claim is subject to federal standards established in Medicare Act
regulations. As noted above, Plaintiff's claim ultimately disputes the amount that Aetna
5
Indeed, the purpose of the Medicare Advantage plans was to encourage private entities to
enter the market and provide the Medicare services heretofore provided by the federal
government in a more efficient manner. See, e.g. 70 Fed. Reg. 4589.
8
reimbursed Plaintiff for medical services. The Medicare Act and its regulations establish
standards for reimbursing non-contract service providers like Plaintiffs.
“[E]xpress preemption occurs when Congress has explicitly indicated its intention to
preempt state law in the text of the statute.” Pace v. CSX Trans, Inc., 613 F.3d 1066, 1068 (1 i¢
Cir. 2010). The Medicare Act contains a broad preemption clause establishing that Medicare
standards supersede state laws attempting to regulate private health plans offered to Medicare
beneficiaries. Put another way, the Act protects against interference from state law by granting
express federal preemption for any aspect of the program for which federal standards exist,
regardless of state law conflicts. See, 42 U.S.C. § 1395w-26(b)(3)(“The standards established
under [Part C of the Medicare Act] shall supersede any State law or regulation (other than State
licensing laws or State laws relating to plan solvency) with respect to MA plans which are
offered by Medicare organizations under this part”) See also, 42 C.F.R. § 422.402 (“The
standards established under this part [implementing the Medicare Advantage Program] supersede
any State law or regulation (other than state licensing laws or State laws relating to plan
solvency) with respect to the [Medicare Advantage] plans that are offered by MA
organizations.”). The very purpose in enacting the Medicare Act with such a broad preemptive
effect it so establish a uniform administrative scheme with respect to claims for Medicare
benefits. Proper functioning of this complex federal program requires that there be uniform
regulation and oversight by the federal government, including the federal courts, and not by a
variety of state laws or state courts. Importantly, the express preemption provision of the
Medicare Act reflects this policy in favor of uniform federal governance and mandates that
Plaintiff's claim be dismissed. Because Congress expressly foreclosed Plaintiff's efforts to
circumvent these standards, Plaintiff’s claim should be dismissed.
A claim presented under state law “arises under” the Medicare Act if “the standing and
substantive basis for the presentation” of the claim is the Medicare Act; or a claim is
“Gnextricably intertwined” with a claim for medical benefits. Heckler v. Ringer, 466 U.S. 602,
615 (1984). The Supreme Court mandates that the language “claim arising under” must be
construed broadly. Jd. In applying this standard, it does not matter how plaintiff characterizes
its claims if “at bottom” it seeks payment of Medicare claims. /d. In Ringer, plaintiffs sought
damages for the alleged denial of reimbursement for a surgical procedure. In holding that the
claims were “inextricably intertwined” with a claim for benefits, the court reasoned: “it seems to
us that it makes no sense construe the claims . . . as anything more than, at bottom, a claim that
[plaintiffs] should be paid for the surgery.” Jd.
The Eleventh Circuit has expressly found that the Supreme Court’s justification in
Heckler for broadly construing the “claims arising under” language of subsection 405(h) is to
prevent plaintiffs from “circumventing the administrative process by creatively styling their
benefits claims as . . . statutory challenges not ‘arising under’ Medicare.” United States v. Blue
Cross & Blue Shield of Alabama, 156 F.3d 1098, 1104 (1 1" Cir. 1998). This is exactly what
Plaintiff seeks to do. As shown below, Plaintiff’s claim “at bottom” seeks to be paid for its
services.
A. Plaintiff's Breach of Implied-In-Fact Contract Claim “Arises Under” the
Medicare Plan at issue.
Plaintiff alleges that Aetna breached an “implied in fact” contract and violated Fla. Stat. §
641.513. (FAC, ff] 29-30). Following the plain language of the statute and regulation, courts
have rejected plaintiffs’ attempts to circumvent the express preemption provision applicable to
Medicare Advantage organizations in the Medicare Act.
10
In Torrent and Ramos, M.D., P.A. v. Neighborhood Health Partnerships, Inc., No. 04-
20858-CIV-HUCK/TURNOFF, 2004 WL 7320735. *5 (S.D. Fla. July 1, 2004), the plaintiff
provided treatment to the defendant’s insureds, and claimed it was wrongfully denied payment of
its full billed charges. It sought, under a breach of implied or quasi contract or unjust enrichment
theory, the difference between what it was paid and what it filled. /d. at * 1. The court found
that plaintiff's claims were “inextricably intertwined” with claims for Medicare benefits, and
therefore plaintiff was required to exhaust its administrative remedies before filing suit. Jd. at *
5. As here, plaintiff argued that Florida statutes “take this case outside of the Medicare Act’s
preemptive reach.” In rejecting this argument, the court found that the claims were clearly for
reimbursement of medical benefits. /d.
In Rodriguez v. Health Options, Inc., Case No. 03-20429-CIV-MORENO (S.D. Fla. Aug.
29, 2003)(Emphasis Supplied)(copy attached hereto as Exhibit “A”), the plaintiff alleged nearly
identical claims as this case, including violation of Fla. Stat. § 641.513 and claims under a quasi-
contractual theory. There, the provider rendered certain emergency services to patients enrolled
in a Medicare Advantage program, and were not paid what they expected. Plaintiff argued, as
Premier alleges here, that its claims arise from an independent duty under the statute to
reimburse non-contracted providers for emergency procedures. In rejecting this claim, the court
held that the Non-Network Providers’ claims were “at bottom” claims for payment under
Medicare, and a plaintiff cannot avoid Medicare jurisdiction by characterizing its claim as
dependent “solely on a state statute and entirely collateral to the underlying denial of Medicare
benefits.” Jd. at p. 11.
Similarly, in Neurological Associates- H. Hooshmand, M.D., P.A. v. Blue Cross/Blue
Shield of Florida, Inc., 632 F.Supp. 1078, 1081 (S.D. Fla. 1986), the district court recognized
11
that “when a claim is made seeking payments of benefits under the Medicare Act, said claim
should be treated as a ‘claim arising under’ the Medicare Act.” Jd. at 1081 (citing Heckler, 466
US. at 624). As in Neurological Associates, the Plaintiff here is seeking “payment of benefits”
for services rendered to patients enrolled in a Medicare plan. Since the Plaintiff challenges the
amount of benefits to which it is entitled, its claims unquestionably “arise under” the Medicare
Act; Masey v. Humana, Inc., No. 806CV1713T24EAJ, 2007 WL 2363077, *8 (M.D. Fla. Aug.
16, 2007)(Plaintiff’s breach of contract claims were “essentially claims for reimbursement of
benefits under the Medicare Act.); Eihorn v. Care Plus Health Plans, Inc., 43 F.Supp.3d 1329
(S.D. Fla. 2014)(holding that a Medicare Advantage enrollee’s Florida Consumer Practices Act
claim seeking reimbursement greater than what was due was a claim arising under the Medicare
Act that must be brought through the administrative appeals process before it could be taken to
federal court); Associates Rehabilitation Recovery, Inc. v. Humana Medical Plan, Inc., 76
F.Supp.3d 1388 (S.D. Fla. 2014)(dismissing claim that “arose under” the Medicare Act, where
Plaintiff failed to exhaust administrative remedies); Humana Medical Plan, Inc. v. Reale, 180
So.3d 195, (Fla. 3d DCA 2015)(federal law preempted state law with respect to reimbursement
rights of a Medicare Advantage plan).
Plaintiff's claim stems from the fact that it “provided services to patients who were
participants in health plans and sought reimbursement for those services based on the patients’
participation in these health plans.” Plaintiff specifically alludes to the health plan throughout its
First Amended Complaint, asserting that it is entitled to “recover benefits for health care
treatment regarding the above-mentioned policy.” (FAC, § 30); See also, FAC, § 29 (“In
exchange for premiums, the Defendant owes the Patient/Member an obligation to pay for the
medical services received. The defendant derives a direct benefit from the Plaintiff providing
12
medical services that fulfill the Defendant’s obligations to the Patient/Member.”); FAC, ¥ 2
(referencing the “subject policy”). There can be no dispute that “at bottom,” Plaintiff's claims
are for payment of Medicare benefits. As such, it was required to exhaust its administrative
remedies, and its failure to do so is fatal to its claims.
B. Plaintiff’s Alleged Violations of Florida Statutory Law do not Take this Case out
of Medicare.
Plaintiff alleges that Aetna failed to pay its full billed charges for its alleged treatment of
Aetna’s member, resulting in a breach of contract and violation of Fla. Stat. § 641.513. (FAC, {ff
30-32). The Eleventh Circuit has recognized that the broad preemptive provision of the
Medicare Act was to prevent plaintiffs from using “statutory challenges” to circumvent the
administrative process. Blue Cross and Blue Shield of Alabama, Inc., 156 F.3d at 1104.
To the extent Plaintiff alleges a direct violation of this statute, identical claims have been
rejected. In Rodriguez, Case No. 03-20429-CIV-MORENO, the plaintiff alleged nearly identical
claims as this case, including violation of Fla. Stat. § 641.513. Plaintiff argued, as Premier
alleges here, that its claims arise from an independent duty under the statute to reimburse non-
contracted providers for emergency procedures, and were therefore independent of the Medicare
Plan. /d. at 10. In rejecting this claim, the court held that the Non-Network Providers’ claims
under § 641.513 constituted actions to recover Medicare benefits, finding that plaintiff could not
characterize its claims are “dependent on a state statute and entirely collateral to the underlying
denial of Medicare benefits.” Jd. Plaintiff specifically alleges that it is entitled to “recover
benefits for health care treatment regarding the above-referenced policy.” (FAC, J 30)
Weinberger v. Aetna Health, Inc., No. 06-20249-CIV, 2008 WL 11333422, at *7 (S.D.
Fla. Apr. 15, 2008), report and recommendation adopted, No. 06-20249-CIV, 2008 WL
11333408 (S.D. Fla. May 27, 2008) reinforced this holding. Once again, the court was faced
13
with nearly identical allegations, and held that Plaintiff's claims were completely preempted.
Plaintiffs in that case were non-network providers who provided medical emergency services to
Aetna’s insureds. As here, Plaintiffs alleged that Aetna failed to reimburse them in accordance
with Fla. Stat. § 641.513. /d. at *2. The court noted that the inquiry necessary to determine
whether state law claims were preempted by the Medicare Act is “conceptually
indistinguishable” from the ERISA inquiry and claims involving Medicare benefits would be
preempted under the Medicare Act. /d. at *14; See also, Voglino v. Health Options, Inc., No. 01-
4029-CIV (S.D. Fla. April 26, 2002))(claim of Florida statutory violation by non-participating
providers for emergency services seeking full reimbursement where the insurer had only paid a
portion of the billed charges were “inextricably intertwined” with claims for Medicare benefits
under the Medicare Act).
Put simply, Plaintiff is seeking to apply a state “standards” to Medicare Advantage
organizations with respect to payment of claims. Such an application of state standards is directly
contrary to Congress’ intention in enacting the express preemption provision and CMS’ intention
to create a uniform set of guidelines for Medicare Advantage organizations.
.
Il. To_the Extent PI: Seeks Reimbursement_under_ the Standards in Florida
Statutory Law, its Claim is also Barred by the Doctrine of Conflict Preemption.
As a separate and distinct basis for dismissal, Plaintiff's claims are also preempted by the
doctrine of conflict preemption. “Even where Congress has not completely displaced state
regulation” preemption operates to nullify state law “to the extent that it actually conflicts with
federal law.” Fidelity Federal Sav. And Loan Ass’n v. de la Cuesto, 458 U.S. 141, 153 (1982).
Conflict preemption exists “where it is impossible for a private party to comply with both state
and federal law” or “where under the circumstances of a particular case, the challenged state law
stands as an obstacle to the accomplishment and execution of the full purposes and objectives of
14
Congress.” See, Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000)(internal
quotations omitted). Federal law indisputably governs the amount that non-participating
providers may accept for rendering services to Medicare beneficiaries. See, e.g., 42. U.S.C.
§1396w-4(g). Plaintiff’s claim, purportedly based upon a reimbursement provision under Florida
statutory law, set forth a different payment structure for amounts that non-participating providers
must accept for rendering medical services. In light of this conflict, Plaintiff's Medicare Claim
are preempted by the conflict preemption doctrine. By way of example, Plaintiff alleges that it
was entitled to be reimbursed pursuant to Fla. Stat. §641.513(5), which provides, in part, for
reimbursement of the lesser of:
(a) the provider’s charges;
(b) the usual and customary provider charges for similar services in the
ommunity 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.
This statute conflicts with the amount that Plaintiff must accept for providing medical
services to Medicare beneficiaries. The Medicare Act establishes reimbursement standards for
non-contracting providers who provide health care services to Medicare enrollees, requiring
Medicare Advantage Organizations to reimburse non-contracting providers at standard Medicare
rates. See, 42 U.S.C. § 1395cec(a)(1)(O); 42 C.F.R. § 422.100(b)(2). Plaintiffs claim should be
dismissed.
Iv. Plaintiff’s Alleged Entitlement to Attorneys’ Fees Demonstrates that its Claim i
“ “Inextricably Intertwined” with a Claim for Benefits under the Plan.
—nexticably intertwined with 4
Preview
Filing # 85165423 E-Filed 02/19/2019 03:29:16 PM IN THE COUNTY COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO: 18-000897-SC PREMIER INPATIENT PARTNERS, LLC, as third-party beneficiary of K.L., Plaintiff, Vv. AETNA HEALTH AND LIFE INSURANCE COMPANY, Defendant. / AETNA’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT OF MOTION Defendant, Aetna Health and Life Insurance Company (“Aetna” or “Defendant”, pursuant to Fla. R. Civ. P. 1.140(b)(6), hereby files its Motion to Dismiss Plaintiff Premier Inpatient Partners, LLC’s “Plaintiff’) First Amended Complaint and Memorandum of Law in support thereof as follows: INTRODUCTION Plaintiff Premier is a health care provider that alleges it provided treatment to members of Aetna’s health care plans. Plaintiff has not entered into a contract with Aetna, and therefore is an “out-of-network” provider. Beginning in December 2017, Plaintiff filed a series of cases against Aetna, in various counties in Florida, alleging that it provided medical treatment to patients insured under Aetna plans, submitted claims to Aetna pursuant to the plan for reimbursement for those services, and was not paid its full billed charges. ! 1 In a July 18, 2018 Order, the Middle District of Florida recognized that the number of cases Plaintiff has filed against Aetna is “noteworthy.” Plaintiff continues to increase those ***ELECTRONICALLY FILED 02/19/2019 03:29:16 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** Plaintiff's claim should be dismissed because its claims are inextricably intertwined with a claim for benefits under Medicare and therefore is indisputably preempted by the Medicare Act, and because Plaintiff failed to exhaust its administrative remedies before filing this lawsuit. This case involves a privately administered HMO plan that provides Medicare benefits. And the Medicare Act governs the relationship between Aetna and providers like Plaintiff, who are not under contract with Aetna, but nonetheless provide health care services to its members. Plaintiff's First Amended Complaint attempts to plead around the standards of the Medicare Act and avoid Medicare’s broad preemption clause and requirement to exhaust administrative remedies. Clever pleading, however, cannot salvage Plaintiff's deficient claim. The crux of Plaintiff's claim is that Aetna failed to properly reimburse it for claims it submitted for services provided to its members. Plaintiff's First Amended Complaint seeks Medicare benefits under the Plan, and its claim relates to the processing and denial of claims for benefits. Indeed, the Plan provides the entire basis for the claim against Aetna and its payments to Plaintiff; absent a covered dependent under the Plan, Plaintiff has no means to submit a claim to Aetna or seek any reimbursement whatsoever from Aetna. Plaintiff asserts repeatedly in its First Amended Complaint that it seeks payment for its claim. numbers. As of the date of this filing, Plaintiff has filed approximately one hundred fifty (150) other cases against Aetna involving ERISA and Medicare plans. 2 Plaintiff does not attach the plan documents to the Complaints. The Plan documents are attached to the Affidavit of Michael McNamara, filed contemporaneously herewith and incorporated herein. These documents may be considered on this Motion to Dismiss. See, One Call Property Services, Inc. v. Security First Ins. Co., 165 So.2d 749, 752 (Fla. 4" DCA 2015)(considering insurance policy which was not attached to the Complaint but was attached to the defendant’ motion to dismiss, stating: “where the terms of a legal document are impliedly incorporated by reference into the complaint, the trial court may consider the contents of the document in ruling on a motion to dismiss.”) The Medicare Act forecloses Plaintiff's claim in two ways. First, the Medicare Act preempts Plaintiff's breach of contract claims. To ensure certainty and consistency, Congress equipped the Medicare Act with a broad preemption clause establishing that Medicare standards supersede state laws attempting to regulate private health plans offered to Medicare beneficiaries. See, 42 USC. § 1395w-26(b)(3). The Medicare regulations provide comprehensive standards controlling reimbursement rates for non-contracting providers like Plaintiff. Second, Plaintiff's claims are not ripe because it failed to exhaust its administrative remedies. The Medicare Act requires that Medicare disputes proceed through an administrative process. Plaintiff's First Amended Complaint makes clear that it did not submit its claims to Medicare’s administrative review process. Put short, Plaintiff's First Amended Complaint seeks nothing more than benefits under the Medicare Plan at issue. Regardless of how Plaintiff couches its claim, at its core, it seeks to remedy the alleged denial of benefits under Medicare. Its claim is “inextricably intertwined” with a claim for reimbursement of medical expenses. This action is nothing more than an attempt by Plaintiff to substitute itself as the regulator in place of CMS and to use state law theories in place of federal standards and remedies. Because its claim is preempted, and because there is no dispute that Plaintiff failed to exhaust the required administrative remedies, its First Amended Complaint should be dismissed in its entirety. FACTUAL AND PROCEDURAL HISTORY I. Statement of Facts. Aetna is a health maintenance organization (“HMO”) that offers and administers health plans in Florida, including privately administered HMO plans that provide Medicare benefits. (First Amended Complaint, J 11)(“FAC”). Aetna has a Medicare contract with the Center for Medicare and Medicaid Services (“CMS”) to offer and administer Medicare Advantage plans for Medicare eligible individuals, including the patient at issue in this case. The regulations specific to Medicare Advantage organizations are extensive, and cover all aspects of the program, including the review and approval of marketing materials and enrollment forms, the specific information a plan must disclose to enrollees, individual enrollment requirements, and the management of grievances and disputes. In or around December 2017, Plaintiff began filing a series of actions against Aetna, seeking reimbursement for medical services allegedly provided to Aetna’s members pursuant to health insurance policies between Aetna its members. Plaintiff alleges that it is an “out of network” provider (FAC, {J 13-14). In other words, plaintiff has not contracted with Aetna to accept discounted reimbursement, in exchange for the benefits of being an “in network” provider. Plaintiff alleges that it treated patient K.L. on or about April 26, 2017. (FAC, § 12). K.L. is a member of privately administered HMO plan that provides Medicare benefits. Thereafter, Plaintiff submitted an electronic claim for reimbursement to Aetna, seeking payment directly from Aetna. (FAC, §f] 16-17). It alleges that after it provided medical services to the member beneficiary, Aetna failed to pay for services provided to Aetna’s member. (FAC, {J 1, 30). Plaintiff's First Amended Complaint repeatedly and expressly acknowledges that its claims are “inextricably intertwined” with a claim for Medicare benefits under the Plan at issue: e Plaintiff expressly claims that it is entitled to “recover benefits for health care treatment regarding the above-mentioned policy.” (FAC, { 30)(Emphasis Supplied); Plaintiff alleges that this is an action for allegedly unpaid or underpaid claim(s) for health care benefits (FAC, § 1); Plaintiff alleges that its claims may change pursuant to the “subject policy and an explanation of how the “allowed amount” reduction was calculated.” (FAC, 2)(Emphasis Supplied); Plaintiff alleges that Aetna “directly or indirectly solicits or effects coverage of, collects charges or premiums from, or adjusts or settles claims on behalf of residents of Florida . . . through a health maintenance contract.” (FAC, J 11) Plaintiff alleges that it submitted an electronic claim to Aetna and expected payment (FAC, 16); Plaintiff alleges that “[iJn exchange for premiums, the Defendant owes the Patient/Member an obligation to pay for the medical services received. The defendant derives a direct benefit from the Plaintiff providing medical services that fulfill the Defendant’s obligations to the Patient/Member.” (FAC, § 29). The First Amended Complaint alleges a single cause of action: a claim for purported violations of Fla. Stat. §§ 641.513/627.64194, and a breach of an alleged “implied-in-law contract.” (FAC, J] 24-33). Plaintiff alleges that Aetna failed to pay the proper “health care benefits” and that it seeks to recover benefits “regarding the above-mentioned policy.” (FAC, {J 30, 33). IL. Procedural History. Plaintiff filed this case against Aetna in the County Court for Pinellas County on or about February 16, 2018. Plaintiff filed its original complaint as a third party beneficiary to the Plan at issue and alleged two claims for breach of contract based on purported violations of Florida statutes. Plaintiff alleged that these statutes were incorporated by reference into the policy. Aetna timely removed the case to the Middle District of Florida. On or about March 20, 2018, Aetna moved to dismiss Plaintiffs original Complaint, on the grounds of express and conflict preemption under the Medicare Act. Plaintiff did not oppose Aetna’s Motion. Over a month later, on or about May 9, 2018, Plaintiff filed its Motion for Leave to File a First Amended Complaint. The First Amended Complaint did two things: it dropped Count II, which alleged a breach of the plan at issue based upon Florida’s Prompt Pay provisions, and it attempts to artfully plead around the undisputed fact that its remaining contract claim is preempted by the Medicare Act. On July 18, 2018, Judge Scriven with the Middle District of Florida granted Plaintiff leave to file its First Amended Complaint, and granting Aetna leave to “reassert any of the challenges raised therein” in another Motion to Dismiss. Aetna filed its Motion to Dismiss the First Amended Complaint on August 2, 2018. On February 15, 2019, Judge Scriven remanded this case back to this Court, finding that it lacked subject matter jurisdiction. The Court did not tule on Aetna’s Motion to Dismiss. As shown in detail below, Plaintiff still seeks to recover allegedly unpaid health insurance benefits pursuant to a plan that provides Medicare benefits. The semantic changes made to the First Amended Complaint fail to change this fact. By way of example, Plaintiff artfully eliminates most (but not all) of the specific references to the Plan at issue, apparently in an attempt to ignore that the patient at issue is a member of plan at issue providing Medicare benefits. (See, e.g., paragraph 12 of original and First Amended Complaint; paragraph 26 of original Complaint and paragraph 29 of First Amended Complaint). Its change of the label of its breach of contract claim from one for “Breach of Contract” to “Breach of Contract — Implied-in- Law” is also a mere change of form, not substance. Plaintiff's attempt to obscure the fact that its claims are for unpaid Medicare benefits fails, as courts are consistent in holding that “artful” pleading does not change the facts. The substance of its First Amended Complaint demonstrates that it seeks reimbursement of Medicare benefits. Plaintiff alleges that it is entitled “to recover benefits for health care treatment regarding the above-mentioned policy.” (FAC, { 30). 3 ARGUMENT AND CITATION TO AUTHORITIES I Legal standard. Under Florida Rule of Civil Procedure 1.140(b)(6), a complaint should be dismissed for failure to state a cause of action where “the claimant could prove no set of facts whatsoever in support of his claim.” Put another way, a motion to dismiss tests the legal sufficiency of a plaintiffs complaint. * Crocker v. Marks, 856 So.2d 1123 (Fla. 4" DCA 2003); Jallali v. Barry University, Inc., 746 So.2d 853 (Fla. 3d DCA 1999)(“The purpose of a motion to dismiss is to ascertain whether a plaintiff has alleged a good cause of action.”). A motion to dismiss requires the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal. Nero v. Continental Country Club R.0., Inc., 979 So.2d 263 (Fla. 5" DCA 2007). IL. Express Preemption under the Medicare Act. As this Court knows, Medicare is the federal government’s health insurance plan for the elderly and certain persons with disabilities, and is administered by the Centers for Medicare and Medicaid Services (“CMS”), a division of the U.S. Department of Health and Human Services. 3 Since filing these cases, plaintiff has filed yet another round of complaints alleging declaratory judgment and unjust enrichment claims, in addition to its breach of contract claims. Despite Plaintiff's multiple attempts to avoid preemption, its allegations have demonstrated — time and time again — that, at bottom, it seeks payment for medical services provided to Aetna’s members. 4 While all of the Florida Rules of Civil Procedure are not automatically applicable to this action, Florida Small Claims Rule 7.020(c) allows this Court to order an action “to proceed under | or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion.” 7 Part C allows eligible individuals to obtain benefits through Medicare Advantage plans, which are administered by private insurers known as Medicare Advantage organizations (“MAO’s”) that enter into contracts with CMS.° The Medicare Advantage Program provides Medicare beneficiaries with an alternative method to access Medicare benefits. Under the Program, Medicare beneficiaries may elect to receive their benefits through a private health plan that offers a Medicare Advantage plan. The Program is a uniform federal program that operates across all 50 states and is subject to extensive and comprehensive regulation and continuing oversight by CMS. The regulations specific to Medicare Advantage organizations are extensive, and cover all aspects of the program, including the review and approval of marketing materials (See, e.g., 42 C.F.R. § 422.80(a); the enrollment process (See, e.g, 42 C.F.R. §§ 422.50, 422.60); the management of grievances and disputes See, e.g., 42 C.F.R. § 422.564(a), (d), (f). Perhaps most critically to this case, CMS also regulates benefits standards (See, e.g., 42. C.F.R. §§ 422.100, 101, 111). More specifically, as set forth above, the Act establishes reimbursement standards Jor non-contracting providers who provide health care services to Medicare enrollees, requiring Medicare Advantage Organizations to reimburse non-contracting providers at standard Medicare rates. See, 42 U.S.C. § 1395cc(a)(1)(O); 42 C.F.R. § 422.100(b)(2) (Emphasis Supplied). Plaintiff's state law claim is expressly preempted by the Medicare Act because the conduct alleged by the claim is subject to federal standards established in Medicare Act regulations. As noted above, Plaintiff's claim ultimately disputes the amount that Aetna 5 Indeed, the purpose of the Medicare Advantage plans was to encourage private entities to enter the market and provide the Medicare services heretofore provided by the federal government in a more efficient manner. See, e.g. 70 Fed. Reg. 4589. 8 reimbursed Plaintiff for medical services. The Medicare Act and its regulations establish standards for reimbursing non-contract service providers like Plaintiffs. “[E]xpress preemption occurs when Congress has explicitly indicated its intention to preempt state law in the text of the statute.” Pace v. CSX Trans, Inc., 613 F.3d 1066, 1068 (1 i¢ Cir. 2010). The Medicare Act contains a broad preemption clause establishing that Medicare standards supersede state laws attempting to regulate private health plans offered to Medicare beneficiaries. Put another way, the Act protects against interference from state law by granting express federal preemption for any aspect of the program for which federal standards exist, regardless of state law conflicts. See, 42 U.S.C. § 1395w-26(b)(3)(“The standards established under [Part C of the Medicare Act] shall supersede any State law or regulation (other than State licensing laws or State laws relating to plan solvency) with respect to MA plans which are offered by Medicare organizations under this part”) See also, 42 C.F.R. § 422.402 (“The standards established under this part [implementing the Medicare Advantage Program] supersede any State law or regulation (other than state licensing laws or State laws relating to plan solvency) with respect to the [Medicare Advantage] plans that are offered by MA organizations.”). The very purpose in enacting the Medicare Act with such a broad preemptive effect it so establish a uniform administrative scheme with respect to claims for Medicare benefits. Proper functioning of this complex federal program requires that there be uniform regulation and oversight by the federal government, including the federal courts, and not by a variety of state laws or state courts. Importantly, the express preemption provision of the Medicare Act reflects this policy in favor of uniform federal governance and mandates that Plaintiff's claim be dismissed. Because Congress expressly foreclosed Plaintiff's efforts to circumvent these standards, Plaintiff’s claim should be dismissed. A claim presented under state law “arises under” the Medicare Act if “the standing and substantive basis for the presentation” of the claim is the Medicare Act; or a claim is “Gnextricably intertwined” with a claim for medical benefits. Heckler v. Ringer, 466 U.S. 602, 615 (1984). The Supreme Court mandates that the language “claim arising under” must be construed broadly. Jd. In applying this standard, it does not matter how plaintiff characterizes its claims if “at bottom” it seeks payment of Medicare claims. /d. In Ringer, plaintiffs sought damages for the alleged denial of reimbursement for a surgical procedure. In holding that the claims were “inextricably intertwined” with a claim for benefits, the court reasoned: “it seems to us that it makes no sense construe the claims . . . as anything more than, at bottom, a claim that [plaintiffs] should be paid for the surgery.” Jd. The Eleventh Circuit has expressly found that the Supreme Court’s justification in Heckler for broadly construing the “claims arising under” language of subsection 405(h) is to prevent plaintiffs from “circumventing the administrative process by creatively styling their benefits claims as . . . statutory challenges not ‘arising under’ Medicare.” United States v. Blue Cross & Blue Shield of Alabama, 156 F.3d 1098, 1104 (1 1" Cir. 1998). This is exactly what Plaintiff seeks to do. As shown below, Plaintiff’s claim “at bottom” seeks to be paid for its services. A. Plaintiff's Breach of Implied-In-Fact Contract Claim “Arises Under” the Medicare Plan at issue. Plaintiff alleges that Aetna breached an “implied in fact” contract and violated Fla. Stat. § 641.513. (FAC, ff] 29-30). Following the plain language of the statute and regulation, courts have rejected plaintiffs’ attempts to circumvent the express preemption provision applicable to Medicare Advantage organizations in the Medicare Act. 10 In Torrent and Ramos, M.D., P.A. v. Neighborhood Health Partnerships, Inc., No. 04- 20858-CIV-HUCK/TURNOFF, 2004 WL 7320735. *5 (S.D. Fla. July 1, 2004), the plaintiff provided treatment to the defendant’s insureds, and claimed it was wrongfully denied payment of its full billed charges. It sought, under a breach of implied or quasi contract or unjust enrichment theory, the difference between what it was paid and what it filled. /d. at * 1. The court found that plaintiff's claims were “inextricably intertwined” with claims for Medicare benefits, and therefore plaintiff was required to exhaust its administrative remedies before filing suit. Jd. at * 5. As here, plaintiff argued that Florida statutes “take this case outside of the Medicare Act’s preemptive reach.” In rejecting this argument, the court found that the claims were clearly for reimbursement of medical benefits. /d. In Rodriguez v. Health Options, Inc., Case No. 03-20429-CIV-MORENO (S.D. Fla. Aug. 29, 2003)(Emphasis Supplied)(copy attached hereto as Exhibit “A”), the plaintiff alleged nearly identical claims as this case, including violation of Fla. Stat. § 641.513 and claims under a quasi- contractual theory. There, the provider rendered certain emergency services to patients enrolled in a Medicare Advantage program, and were not paid what they expected. Plaintiff argued, as Premier alleges here, that its claims arise from an independent duty under the statute to reimburse non-contracted providers for emergency procedures. In rejecting this claim, the court held that the Non-Network Providers’ claims were “at bottom” claims for payment under Medicare, and a plaintiff cannot avoid Medicare jurisdiction by characterizing its claim as dependent “solely on a state statute and entirely collateral to the underlying denial of Medicare benefits.” Jd. at p. 11. Similarly, in Neurological Associates- H. Hooshmand, M.D., P.A. v. Blue Cross/Blue Shield of Florida, Inc., 632 F.Supp. 1078, 1081 (S.D. Fla. 1986), the district court recognized 11 that “when a claim is made seeking payments of benefits under the Medicare Act, said claim should be treated as a ‘claim arising under’ the Medicare Act.” Jd. at 1081 (citing Heckler, 466 US. at 624). As in Neurological Associates, the Plaintiff here is seeking “payment of benefits” for services rendered to patients enrolled in a Medicare plan. Since the Plaintiff challenges the amount of benefits to which it is entitled, its claims unquestionably “arise under” the Medicare Act; Masey v. Humana, Inc., No. 806CV1713T24EAJ, 2007 WL 2363077, *8 (M.D. Fla. Aug. 16, 2007)(Plaintiff’s breach of contract claims were “essentially claims for reimbursement of benefits under the Medicare Act.); Eihorn v. Care Plus Health Plans, Inc., 43 F.Supp.3d 1329 (S.D. Fla. 2014)(holding that a Medicare Advantage enrollee’s Florida Consumer Practices Act claim seeking reimbursement greater than what was due was a claim arising under the Medicare Act that must be brought through the administrative appeals process before it could be taken to federal court); Associates Rehabilitation Recovery, Inc. v. Humana Medical Plan, Inc., 76 F.Supp.3d 1388 (S.D. Fla. 2014)(dismissing claim that “arose under” the Medicare Act, where Plaintiff failed to exhaust administrative remedies); Humana Medical Plan, Inc. v. Reale, 180 So.3d 195, (Fla. 3d DCA 2015)(federal law preempted state law with respect to reimbursement rights of a Medicare Advantage plan). Plaintiff's claim stems from the fact that it “provided services to patients who were participants in health plans and sought reimbursement for those services based on the patients’ participation in these health plans.” Plaintiff specifically alludes to the health plan throughout its First Amended Complaint, asserting that it is entitled to “recover benefits for health care treatment regarding the above-mentioned policy.” (FAC, § 30); See also, FAC, § 29 (“In exchange for premiums, the Defendant owes the Patient/Member an obligation to pay for the medical services received. The defendant derives a direct benefit from the Plaintiff providing 12 medical services that fulfill the Defendant’s obligations to the Patient/Member.”); FAC, ¥ 2 (referencing the “subject policy”). There can be no dispute that “at bottom,” Plaintiff's claims are for payment of Medicare benefits. As such, it was required to exhaust its administrative remedies, and its failure to do so is fatal to its claims. B. Plaintiff’s Alleged Violations of Florida Statutory Law do not Take this Case out of Medicare. Plaintiff alleges that Aetna failed to pay its full billed charges for its alleged treatment of Aetna’s member, resulting in a breach of contract and violation of Fla. Stat. § 641.513. (FAC, {ff 30-32). The Eleventh Circuit has recognized that the broad preemptive provision of the Medicare Act was to prevent plaintiffs from using “statutory challenges” to circumvent the administrative process. Blue Cross and Blue Shield of Alabama, Inc., 156 F.3d at 1104. To the extent Plaintiff alleges a direct violation of this statute, identical claims have been rejected. In Rodriguez, Case No. 03-20429-CIV-MORENO, the plaintiff alleged nearly identical claims as this case, including violation of Fla. Stat. § 641.513. Plaintiff argued, as Premier alleges here, that its claims arise from an independent duty under the statute to reimburse non- contracted providers for emergency procedures, and were therefore independent of the Medicare Plan. /d. at 10. In rejecting this claim, the court held that the Non-Network Providers’ claims under § 641.513 constituted actions to recover Medicare benefits, finding that plaintiff could not characterize its claims are “dependent on a state statute and entirely collateral to the underlying denial of Medicare benefits.” Jd. Plaintiff specifically alleges that it is entitled to “recover benefits for health care treatment regarding the above-referenced policy.” (FAC, J 30) Weinberger v. Aetna Health, Inc., No. 06-20249-CIV, 2008 WL 11333422, at *7 (S.D. Fla. Apr. 15, 2008), report and recommendation adopted, No. 06-20249-CIV, 2008 WL 11333408 (S.D. Fla. May 27, 2008) reinforced this holding. Once again, the court was faced 13 with nearly identical allegations, and held that Plaintiff's claims were completely preempted. Plaintiffs in that case were non-network providers who provided medical emergency services to Aetna’s insureds. As here, Plaintiffs alleged that Aetna failed to reimburse them in accordance with Fla. Stat. § 641.513. /d. at *2. The court noted that the inquiry necessary to determine whether state law claims were preempted by the Medicare Act is “conceptually indistinguishable” from the ERISA inquiry and claims involving Medicare benefits would be preempted under the Medicare Act. /d. at *14; See also, Voglino v. Health Options, Inc., No. 01- 4029-CIV (S.D. Fla. April 26, 2002))(claim of Florida statutory violation by non-participating providers for emergency services seeking full reimbursement where the insurer had only paid a portion of the billed charges were “inextricably intertwined” with claims for Medicare benefits under the Medicare Act). Put simply, Plaintiff is seeking to apply a state “standards” to Medicare Advantage organizations with respect to payment of claims. Such an application of state standards is directly contrary to Congress’ intention in enacting the express preemption provision and CMS’ intention to create a uniform set of guidelines for Medicare Advantage organizations. . Il. To_the Extent PI: Seeks Reimbursement_under_ the Standards in Florida Statutory Law, its Claim is also Barred by the Doctrine of Conflict Preemption. As a separate and distinct basis for dismissal, Plaintiff's claims are also preempted by the doctrine of conflict preemption. “Even where Congress has not completely displaced state regulation” preemption operates to nullify state law “to the extent that it actually conflicts with federal law.” Fidelity Federal Sav. And Loan Ass’n v. de la Cuesto, 458 U.S. 141, 153 (1982). Conflict preemption exists “where it is impossible for a private party to comply with both state and federal law” or “where under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of 14 Congress.” See, Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 (2000)(internal quotations omitted). Federal law indisputably governs the amount that non-participating providers may accept for rendering services to Medicare beneficiaries. See, e.g., 42. U.S.C. §1396w-4(g). Plaintiff’s claim, purportedly based upon a reimbursement provision under Florida statutory law, set forth a different payment structure for amounts that non-participating providers must accept for rendering medical services. In light of this conflict, Plaintiff's Medicare Claim are preempted by the conflict preemption doctrine. By way of example, Plaintiff alleges that it was entitled to be reimbursed pursuant to Fla. Stat. §641.513(5), which provides, in part, for reimbursement of the lesser of: (a) the provider’s charges; (b) the usual and customary provider charges for similar services in the ommunity 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. This statute conflicts with the amount that Plaintiff must accept for providing medical services to Medicare beneficiaries. The Medicare Act establishes reimbursement standards for non-contracting providers who provide health care services to Medicare enrollees, requiring Medicare Advantage Organizations to reimburse non-contracting providers at standard Medicare rates. See, 42 U.S.C. § 1395cec(a)(1)(O); 42 C.F.R. § 422.100(b)(2). Plaintiffs claim should be dismissed. Iv. Plaintiff’s Alleged Entitlement to Attorneys’ Fees Demonstrates that its Claim i “ “Inextricably Intertwined” with a Claim for Benefits under the Plan. —nexticably intertwined with 4