Motion for Attachment Order in Gulf-to-Bay Anesthesiology Associates, LLC vs United Healthcare of Florida, Inc.| Trellis.Law

On November 02, 2020 a Party Notice was filed involving a dispute between Gulf-To-Bay Anesthesiology Associates, Llc, and Multiplan, Inc., Umr, Inc., Unitedhealthcare Insurance Co., United Healthcare Of Florida, Inc., Unitedhealthcare Of Florida, Inc., for Civil in the District Court of Hillsborough County.

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Filing # 118102901 E-Filed 12/11/2020 06:29:39 PM

IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. 20-CA-008606

GULF-TO-BAY ANESTHESIOLOGY
ASSOCIATES, LLC,

Plaintiff,

UNITED HEALTHCARE OF FLORIDA, INC.
UNITED HEALTHCARE INSURANCE CO.,
UMR, INC., and MULTIPLAN, INC.,

Defendants.
___________________________________________/

NOTICE OF FILING OF NOTICE OF REMOVAL

PLEASE TAKE NOTICE that on December 11, 2020, Defendant, MultiPlan, Inc.

(“MultiPlan”), filed with the Clerk of the United States District Court for the Middle District of

Florida, its Notice of Removal of the above-styled action, a copy of which Notice of Removal is

attached hereto as Exhibit 1.

By filing its Notice of Removal, MultiPlan effected removal of this action to the United

States District Court for the Middle District of Florida.

Pursuant to 28 U.S.C. § 1446(d), this Court is prohibited from proceeding in the above-

styled action unless and until the action is remanded.

RESPECTFULLY SUBMITTED on this 11th day of December, 2020.

/s/ Bret M. Feldman
BRET M. FELDMAN, FBN 370370
PHELPS DUNBAR LLP
100 South Ashley Drive, Ste. 2000
Tampa, Florida 33602-5315

PD.30446789.1

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(813) 472-7879
(813) 472-7570 (Fax)
Bret.feldman@phelps.com

ATTORNEYS FOR MULTIPLAN, INC.

CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing was electronically served on counsel below and

all counsel of record via Florida Courts E-Filing Portal on December 11, 2020.

Alan D. Lash
Justin C. Fineberg
Jonathan E. Siegelaub
Rachel H. LeBlanc
Lash & Goldberg LLP
Weston Corporate Center I
2500 Weston Road, Ste. 220
Weston, FL 33331
alash@lashgoldberg.com
jfineberg@lashgoldberg.com
jsiegelaub@lashgoldberg.com
rleblanc@lashgoldberg.com

/s/ Bret M. Feldman
Bret M. Feldman

PD.30446789.1

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EXHIBIT 1

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

CASE NO. ______________________
GULF-TO-BAY ANESTHESIOLOGY
ASSOCIATES, LLC,

Plaintiff,

UNITED HEALTHCARE OF FLORIDA, INC.
UNITED HEALTHCARE INSURANCE CO.,
UMR, INC., and MULTIPLAN, INC.,

Defendants.
___________________________________________/

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. §§ 1331, 1441, and 1446,

Defendant, MultiPlan, Inc. (“MultiPlan”), by and through undersigned counsel, and with a full

reservation of rights, hereby removes the above-titled matter, Gulf-to-Bay Anesthesiology

Associates, LLC v. United Healthcare of Florida, Inc., et al., bearing Case No. 20-CA-008606,

from the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida,

where it is currently pending, to the United States District Court for the Middle District of Florida,

and as grounds therefor, alleges as follows:

INTRODUCTION

1. As discussed in more detail below, MultiPlan removes this matter on the basis of

federal question jurisdiction pursuant to 28 U.S.C. § 1331 because certain state law causes of action

alleged by Plaintiff, Gulf-to-Bay Anesthesiology Associates, LLC (“GTB” or “Plaintiff”), relate

to self-funded employee health and welfare benefit plans and therefore arise under and are subject

PD.30375895.1

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to federal law pursuant to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.

(“ERISA”).

2. This action is properly removed to this Court, as it has original jurisdiction based

on ERISA’s complete preemption doctrine. It is removable without regard to the citizenship or

residence of the parties.

Background and Procedural History

3. On or about November 2, 2020, Plaintiff GTB filed a complaint (the “Complaint”

or “Compl.”) in the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough

County, Florida, in an action styled as Gulf-to-Bay Anesthesiology Associates, LLC vs. United

HealthCare of Florida, Inc., UnitedHealthcare Insurance Co., UMR, Inc., and MultiPlan, Inc.,

and bearing Case No. 20-CA-008606 (the “State Court Action”).

4. MultiPlan was served with process on November 12, 2020. Thus, this Notice of

Removal is timely, as it is being filed within thirty (30) days of the date that MultiPlan was served

with a copy of the Complaint in accordance with 28 U.S.C. §§ 1441 and 1446.

5. Pursuant to 28 U.S.C. § 1446(a), true and correct copies of all process, pleadings,

and orders served upon MultiPlan in the State Court Action are attached hereto as Composite

Exhibit A.

6. MultiPlan is not the only defendant named in the Complaint. United Healthcare of

Florida, Inc. (“UHC of Florida”), UnitedHealthcare Insurance Co. (“UHIC”), and UMR, Inc.

(“UMR” and, together with UHC of Florida and UHIC, “United” or the “United Defendants”) are

also named as defendants.

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7. As evidenced by the Notice of Consent to Removal, which is attached hereto as

Exhibit B, United consents to removal of the State Court Action to this Court in accordance with

28 U.S.C. §§ 1446(b)(2)(A) and (C).

Plaintiff’s Allegations

8. GTB provides professional “anesthesia care for surgical and pain management

services at over twenty (20) healthcare facilities in Central Florida.” [Compl., ¶¶ 1, 17]. GTB

allegedly became an out-of-network, nonparticipating provider with United on May 21, 2017, and

“[a]t no time since May 21, 2017,” has GTB “been a participating provider with any United

Defendant” or “been a party to a direct and express contract with United […] that governs the

reimbursement, or any other aspect, of the services provided by [GTB] to United[’s …] Members.”

[Id. ¶¶ 4–5, 30]. In-network, participating providers, by contrast, enter into participation

agreements with United that govern reimbursement rates.

9. According to the Complaint, UHC of Florida “operates […] as a health

maintenance organization,” whereas UHIC “operates […] as a life and health insurer” and UMR

“operates […] as a third-party administrator.” [Compl., ¶¶ 18–20]. However, the United

Defendants are “all subsidiaries” operating under the “common control” and “common ownership

of UnitedHealth Group,” the “largest health insurer in the United States,” and when they “enter

into participating provider agreements in Florida, [they] do so on behalf of themselves and all

‘Affiliates,’ which are defined to include ‘entities controlling, controlled by or under common

control’ with each other.” [Id. ¶¶ 21–22, 279]. Accordingly, a participating provider agreement

entered into by one of the United Defendants covers the benefit claims submitted by the

participating provider for UHC of Florida, UHIC, and UMR, “among other of the United

Defendants’ related entities.” [Id. ¶¶ 22, 279]. Additionally, the United Defendants allegedly

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“operate in concert with one another, as they direct that all claims for reimbursement for anesthesia

services be uploaded to the same electronic filing portal.” [Id. ¶¶ 23, 280].

10. The United Defendants allegedly “assume responsibility to pay for health care

services rendered to Members covered by their health plans” in exchange for premiums, fees, or

other compensation and offer a range of health plans, which “generally fall into one of two

categories:” (i) fully-funded plans, “in which United Defendants collect premiums directly from

their members (or from third parties on behalf of their members) and pay claims directly from the

pool of funds generated by those premiums;” and (ii) employer-funded plans, “in which United

Defendants provide administrative services to their employer clients, including processing,

analysis, approval, and payment of health care claims, using the funds of the claimant’s employer.”

[Compl., ¶¶ 48–50].

11. Regardless of whether a given health plan is fully-funded (i.e., insured by United)

or employer-funded (i.e., administered by United as third-party administrator), GTB uses the term

“Member” to refer to any individual covered under a health plan that was issued or administered

by United. [See Compl., ¶ 1].

12 In its Complaint, GTB seeks to recover “full payment” for the “medically necessary

anesthesia services” it allegedly rendered “to Florida patients insured by” United or by “an

employer-funded health plan for which the United Defendants serve as a third-party

administrator.” [Compl., ¶¶ 1, 6]. GTB alleges that all of the benefit claims at issue in this action

“are for reimbursement for services [GTB] provided at times when it was a non-participating (or

‘out-of-network’) provider” with United. [Id. ¶ 31]. GTB further alleges that it “already sued

certain of the Defendants for inadequate reimbursement of out-of-network claims from May 21,

2017 through February 29, 2020, in the case styled Gulf-to-Bay Anesthesiology Associates, LLC

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v. UnitedHealthcare of Florida, Inc. and UnitedHealthcare Insurance Co., Case No.: 17-CA-

011207, in and for the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough

County, Florida” (“Gulf-to-Bay I”), and that the at-issue claims in this case “are for the period of

time commencing March 1, 2020 and forward.” [Id. ¶ 14].

13. As set forth in the Complaint, GTB and United were formerly bound by a

Participation Agreement from May 20, 2003 until May 20, 2017. [Compl., ¶ 2]. While that

Participation Agreement was in effect, GTB rendered anesthesia services to United’s members “at

a modest discount [rate] off of [GTB’s] standard billed charges” in GTB’s capacity as a

“participating provider in United Defendants’ provider network.” [Compl., ¶¶ 2–3 (emphasis in

original)]. But on May 21, 2017, the Participation Agreement ended, and GTB became an “out-of-

network provider” with United. [Id. ¶¶ 4–5].

14. GTB claims that, “[d]espite its out-of-network status,” it has continued to provide

“medically necessary, covered anesthesiology services” to United’s members, but that, “[i]stead

of reimbursing [GTB] at either its billed charges or the usual and customary charges for [its]

services,” United has “dramatically underpaid” GTB for the services it rendered to United’s

members “by utilizing extraordinarily deficient reimbursement rates […] generated and supplied

to [United] by MultiPlan through MultiPlan’s Data iSight ‘service.’” [Compl., ¶¶ 6–9, 32–34].

15. Accordingly, the Complaint seeks relief for what GTB describes as “unlawful

discounted payments” for the anesthesia services it rendered to United’s members, “caused by

Defendants’ unlawful scheme to deprive [GTB] of its property (claims to and the rights to receive

lawful reimbursement amounts) under Florida law.” [Compl., ¶¶ 15, 34].

16. Each count in the Complaint rests on the premise that GTB is allegedly entitled to

“charges” or “billed charges” [see Compl., ¶ 7, 12, 35, 45–46, 70, 232] under Section 641.513(5)

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of the Florida Statutes. GTB also alleges that Section 641.513(5) warrants payment of certain

benefits regardless of whether such benefits are covered under the health plans in which United’s

members participate. [See, e.g., id. ¶¶ 35–37]. Importantly, however, GTB specifically

acknowledges United’s obligation to “determine[]” whether claims for benefits are “to be covered

and allowed as payable” under the terms of its members’ health plans. [Id. ¶¶ 12, 45 (emphasis

added)].

17. That premise in the Complaint—that GTB is entitled to “charges” or “billed

charges” under Section 641.513(5)—is fundamentally flawed for at least two reasons. First, it is

in tension with GTB’s allegation that this lawsuit “arises only from claims involving United

Defendants’ commercial plans and products.”1 [Compl., ¶ 11]. Second, the Complaint repeatedly

refers to United’s “Members” who received services from GTB [id. ¶¶ 1–2, 5–6, 11–12, 32, 34,

41–43, 59, 70, 72, 227, 244, 296, 300, 308, 317], and these “Members” include participants in

ERISA plans. [See id. ¶ 1 (alleging that GTB is seeking payment in this lawsuit “for the

anesthesiology medical care it has rendered to Florida patients insured […] by an employer-funded

1
For example, § 641.513(5) of the Florida Statutes does not, by its express terms, apply to
private employers that self-fund their health plans, and no court has permitted a provider to apply
that statute to such plans.

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health plan for which the United Defendants serve as a third-party administrator”); see also ¶¶ 48–

51].2

18. Additionally, while GTB contends that the benefit claims at issue “do not relate to

or involve [GTB’s] right to payment, […] but rather the rate of payment [GTB] is entitled to

receive for its services” [Compl., ¶ 13 (emphasis in original)], this is expressly belied by GTB’s

admission that, “[t]hrough this action, [it] seeks to recover the damages […] caused by Defendants’

unlawful scheme to deprive [GTB] of its property (claims to and the rights to receive lawful

reimbursement amounts) under Florida law.” [Id. ¶¶ 15, 71 (emphasis added)].

19. At bottom, GTB seeks to recover benefits under ERISA plans. Therefore, GTB’s

causes of action necessarily fall within the scope of ERISA and are completely preempted.

20. Specifically, Counts I and II of the Complaint allege claims against all Defendants

for violation of Florida’s Racketeer Influenced and Corrupt Organization (“RICO”) Act pursuant

to Fla. Stat. § 895.03(3) and for conspiracy to violate Florida’s RICO Act pursuant to Fla. Stat. §

895.03(4), which are premised on allegations that GTB “was paid substantially less than its charges

or a usual and customary rate” for the anesthesia services it rendered to United’s members [Compl.,

¶ 232], and that “[e]ach Defendant provides benefits to insured Members, processes claims for

2
ERISA applies to employee welfare benefit plans, which are defined to include:
any plan, fund, or program which was heretofore or is hereafter established or
maintained by an employer or by an employee organization, or by both, 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, through the purchase
of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or
benefits in the event of sickness, accident, disability, death or unemployment, or
vacation benefits, apprenticeship or other training programs, or day care centers,
scholarship funds, or prepaid legal services, or (B) any benefit described in section
186(c) of this title(other than pensions on retirement or death, and insurance to
provide such pensions).
29 U.S.C.A. § 1002.

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services provided to Members, purports to determine and recommend a reimbursement rate for

such services, and/or issues payments for services.” [Id. ¶ 298; see also ¶¶ 227–41, 272, 286–89,

296, 300, 306, 308]. Counts I and II are therefore completely preempted by ERISA. See All. Med,

LLC v. Blue Cross & Blue Shield of Ga., Inc., 2016 WL 3208077, at *3 (N.D. Ga. June 10, 2016)

(holding that claims for “misrepresentation, fraud, unfair trade practices, theft by deception, and

RICO conspiracy” were completely preempted by ERISA).

21. Similarly, Counts III and IV of the Complaint allege claims against all Defendants

for violation of Florida’s Civil Remedies for Criminal Practices Act (“CRCPA”) pursuant to Fla.

Stat. § 772.103(3) and for conspiracy to violate CRCPA under Fla. Stat. § 772.103(4) based on

allegations that “Defendants had, and continue to have, the common and continuing purpose of

depriving [GTB] of the reimbursement to which [it is] entitled” for services rendered to United’s

members, and that “[e]ach Defendant provides benefits to insured Members, processes claims for

services provided to Members, purports to determine and recommend a reimbursement rate for

such services, and/or issues payments for services, and knowingly and willingly participants in the

scheme to defraud [GTB] and retain funds allocated to [GTB] for anesthesia services rendered to

United Defendants’ Members.” [Compl., ¶¶ 315, 317]. Counts III and IV are therefore completely

preempted by ERISA.

22. Finally, Count V of the Complaint asserts a claim against MultiPlan only for

violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), which claim is

based solely on underpayment allegations, [see, e.g., Compl. ¶ 333: GTB “has received deficient

reimbursements from United on all of the Claims at amounts less than [GTB] is entitled to receive;”

see also ¶¶ 331–32], and thus is completely preempted by ERISA. See Ehlen Floor Covering, Inc.

v. Lamb, 2008 WL 4097712, at *5 (M.D. Fla. Sept. 3, 2008) (finding that all of the plaintiffs’

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claims, including their FDUTA claim, were subject to the ERISA complete preemption doctrine);

Weinberger v. Aetna Health, Inc., 2008 WL 11333422, at *15 (S.D. Fla. Apr. 15, 2008), report

and recommendation adopted, 2008 WL 11333408 (S.D. Fla. May 27, 2008) (holding that

Plaintiff’s FDUTA claim was completely preempted by ERISA).

BASIS FOR REMOVAL

Federal Question Jurisdiction – Complete Preemption

23. This Court has jurisdiction under 28 U.S.C. § 1331 because GTB’s causes of action

are completely preempted by ERISA.

24. Although federal question jurisdiction ordinarily is governed by the well-pleaded

complaint rule, “[a]n exception to this rule is when Congress so completely pre-empt[s] a particular

area that any civil complaint raising this select group of claims is necessarily federal in character.”

Brown v. Connecticut Gen. Life Ins. Co., 934 F.2d 1193, 1196 (11th Cir. 1991) (internal quotation

omitted). “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.” Id.; see also Ehlen Floor Covering, Inc. v.

Lamb, 660 F.3d 1283, 1287 (11th Cir. 2011).

25. State court actions that fall within the scope of § 502(a) of ERISA, such as a claim

for improper denial of benefits under state law, are “displaced” by ERISA’s civil enforcement

mechanism and are therefore “removable to federal court.” Metro. Life Ins. Co. v. Taylor, 481 U.S.

58, 60 (1987); see also Lamb, 660 F.3d at 1287 (“Regardless of its characterization as a state law

matter, a claim will be re-characterized as federal in nature if it seeks relief under ERISA.”). In

fact, when a “federal statute [such as ERISA] completely pre-empts the state-law cause of action,

a claim which comes within the scope of that cause of action, even if pleaded in terms of state law,

is in reality based on federal law.” Aetna Health Inc. v. Davila, 542 U.S. 200, 207-08 (2004).

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26. A state law cause of action is subject to complete preemption under ERISA when:

(i) the plaintiff “could have brought [its] claim under ERISA § 502(a)(1)(B)”; and (ii) “there is no

other independent legal duty that is implicated by a defendant’s actions.” Davila, 542 U.S. at 210.

27. With respect to prong one of the Davila test, a claim for relief can be brought under

ERISA § 502(a)(1)(B) by a “participant or beneficiary […] to recover benefits due to him under

the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to

future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). This prong is satisfied if a

plaintiff has standing to sue and the claim “fall[s] within the scope of ERISA.” Conn. State Dental

Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1350 (11th Cir. 2009).

28. By its own admission, GTB has already sued two of the United Defendants, UHC

of Florida and UHIC “for inadequate reimbursement of out-of-network claims from May 21, 2017

through February 29, 2020,” [see Compl., ¶ 14], and that litigation contains evidence that, when

GTB submitted the benefit claims to UHIC in order to elicit the payment of available benefits

under the terms of the “Members’” plans, GTB represented that the relevant patients/members had

assigned their rights to benefits under their health plans to GTB, and that GTB had accepted those

assignments.

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29. Similarly, an initial investigation of GTB’s claims and allegations in the instant

case3 reveals that, when GTB submitted benefit claims to the United Defendants in order to elicit

the payment of available benefits under the terms of the “Members’” plans, GTB specifically

represented that the patients had assigned their rights to benefits under the terms of their health

plans to GTB.4 Therefore, GTB—by allegedly stepping into the shoes of its patients—obtained

the derivative right to sue and are “beneficiaries” of the health plan for purposes of complete

preemption under ERISA. See, e.g., Conn. State Dental, 591 F.3d at 1351 (finding that claim forms

submitted by dentists to the defendant ERISA plan insurer “suffice to show an assignment of

benefits” and confer ERISA standing for removal purposes); Borrero v. United Healthcare of New

York, Inc., 610 F.3d 1296, 1302–04 (11th Cir. 2010) (rejecting the arguments raised by medical

provider Plaintiff who contested the adequacy of claim forms as the basis for finding they

possessed derivative standing under ERISA for removal purposes).

30. GTB also submitted reimbursement benefit claims directly to the United

Defendants and received payments from the United Defendants for certain of the benefit claims.

[See Compl. ¶¶ 6–7, 32–34]. These direct payments further support prong one of the Davila test.

See Conn. State Dental, 591 F.3d at 1353; Kennedy v. Conn. Gen. Life Ins. Co., 924 F.2d 698, 701

3
Aside from ¶¶ 120–122 of the Complaint, where GTB loosely identifies six (6) exemplary
claims that it submitted to the United Defendants during the time period allegedly at issue, GTB
fails to provide any claim-specific identifying information for the claims it purports to place at
issue in this lawsuit. This omission has limited MultiPlan’s ability to collect and present evidence
to the Court along with this Notice. However, MultiPlan’s investigation continues, and MultiPlan
specifically reserves the right to submit additional evidence in opposition to any motion to remand
that GTB may file. MultiPlan also reserves the right to seek permission to conduct limited
jurisdictional discovery to resolve any factual disputes presented herein, including with respect to
GTB’s receipt of assignment of benefits and/or the nature of the claims or underlying health benefit
plans allegedly at issue. See, e.g., United Surgical Assistants, LLC v. Aetna Life Ins. Co., 2014 WL
1268659, at *3 (M.D. Fla. March 27, 2014) (granting motion to allow post-removal jurisdictional
discovery regarding assignment of benefits in case involving question of federal subject matter
jurisdiction on basis of ERISA preemption).

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(7th Cir. 1991) (“The possibility of direct payment is enough to establish subject-matter

jurisdiction.”).

31. With respect to prong two of the Davila test, there is no legal duty implicated here

independent of the members’ plans. “If the right to payment derives from the ERISA benefit plan

as opposed to another independent obligation, the resolution of a right to payment dispute requires

an interpretation of the plan.” Gables Ins. Recovery v. United Healthcare Ins. Co., 39 F. Supp. 3d

1377, 1388 (S.D. Fla. 2013).

32. Here, this distinction is irrelevant because GTB repeatedly alleges that it is “out-

of-network” and “has not been part[y] to a contract with United that governs the reimbursement,

or any other suspect, of the services provided by” GTB to United’s Members since May 21, 2017,

[Compl., ¶¶ 5–6, 30–33]; thus, there is no independent contractual right to reimbursement at rates

higher than what is afforded under the members’ health plans. See, e.g., Sarasota Cty. Pub.

Hospital Bd. v. Blue Cross and Blue Shield of Fla., Inc., 2019 WL 2567979, at *3 (M.D. Fla. June

21, 2019) (dismissing counts for breach of provider agreements as “irrelevant” to the question of

standing where plaintiff brought other counts asserting ERISA right-to-payment claims, which

conferred standing to sue). The reimbursement amounts that the United Defendants have paid to

GTB for the services at issue in this lawsuit—as a non-participating provider—are set by the

4
Attached hereto as Exhibit D is the benefit claim submission data (redacted to exclude
personal health information) and a provider remittance advice form (“PRAs”) (redacted to exclude
personal health information) related to certain benefit claims that GTB submitted to the United
Defendants on or after March 1, 2020. Specifically, Exhibit D(1) contains the benefit claim
submission data and a PRA relating to patient RB, who is identified in ¶ 120 of the Complaint.
This benefit claim submission data contains authorization and assignment acknowledgements (see
Boxes 12 and 13), whereby GTB represented that benefits were assigned to it,meaning that it
obtained a signed authorization and assignment of benefits from the plan member or beneficiary,
allowing GTB to receive benefits under the applicable employee benefit plan. See also Exhibits
D(2) and D(3).

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coverage terms of the members’ health plans. See Gables Ins. Recovery, 39 F. Supp. 3d at 1388

(finding ERISA completely preempted state law claims and holding, “any determination of

benefits under the terms of an ERISA plan, even regarding a seeming independent breach of oral

or implied contract based on verification of those benefits, falls under ERISA and is a legal duty

dependent on, not independent of, the ERISA plan.”). Thus, determining the core issue of whether

GTB has been denied payment or coverage for the services at issue in this lawsuit will necessarily

require the Court to interpret those member’s health plans, squarely bringing these claims within

the scope of ERISA preemption. See id. (“If the right to payment derives from the ERISA benefit

plan as opposed to another independent obligation, the resolution of a right to payment dispute

requires an interpretation of the plan.”).

33. Any attempt to rely on a purported distinction between so-called “right to payment”

claims and “rate of payment” claims to oppose preemption is unavailing. The Eleventh Circuit

Court of Appeals has applied this distinction only in cases where a healthcare provider has an

express written participation agreement with a managed care organization and is suing for breach

of contract under that express agreement.5 Here, as GTB repeatedly alleges, there is no

participating provider agreement that independently supplies either a right to payment or a rate of

5
See Conn. State Dental, 591 F.3d at 1350; see also Apex Toxicology, LLC v. United
Healthcare Ins. Co., No. 16-CV-62768, 2017 WL 7806152, at *5 (S.D. Fla. June 26, 2017)
(concluding that the benefit claims at issue involved the denial of benefit claims under ERISA
because “[t]he distinction between ‘rate of payment’ and ‘right of payment’ […] is irrelevant in
cases involving out-of-network providers because a ‘rate of payment’ dispute is governed by the
provider agreement.”) (citing Conn. State Dental, 591 F.3d at 1349); See also Alliance Med, LLC
v. Blue Cross and Blue Shield of Georgia, Inc., 15-cv-00171-RWS, 2016 WL 3208077, at *3 (N.D.
Ga. June 10, 2016) (“Although Plaintiffs rely on the distinction between ‘rate of payment’ and
‘right of payment,’ this distinction is irrelevant in cases involving out of network providers because
a ‘rate of payment’ dispute is governed by the provider agreement. Plaintiffs in this case are not
in-network providers and thus do not hold a provider agreement with Defendants. Therefore, these
claims are within the scope of ERISA.”) (citing Conn. State Dental, 591 F.3d at 1349).

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payment. For that reason, it is irrelevant whether the right to payment or rate of payment is

implicated by Plaintiffs’ claims.6

34. Even if this “rate of payment” versus “right to payment” dichotomy applies in the

case of a plaintiff-provider that admits it has no contract with the defendants (which is the case),

GTB’s claims in this case still implicate “right to payment” issuesand thus are completely

preempted by ERISA. See generally Borrero, 610 F.3d at 1301–05 (citing Conn. State Dental, 591

F.3d at 1350–54)). GTB actually concedes this point when it asserts that, “[t]hrough this action,

[it] seeks to recover the damages […] caused by Defendants’ unlawful scheme to deprive [GTB]

of its property (claims to and the rights to receive lawful reimbursement amounts) under Florida

law.” [Compl., ¶¶ 15, 71 (emphasis added)].

35. GTB further acknowledges and refers to the United Defendants’ obligation to

“Members,” including referencing the determination of coverage under the members’ health plans

insured or administered by United. [See, e.g., Compl., ¶ 12]. Accordingly, GTB cannot evade

ERISA preemption by incorrectly describing its claims as implicating only a “rate of payment,”

when those claims actually implicate a “right to payment” under the operative ERISA health

benefit plans, including contracts between the United Defendants and members of fully-insured

ERISA plans. For example, GTB alleges on numerous occasions that Florida law has been violated

because “the united Defendants have dramatically underpaid [GTB] for its services” rendered to

United’s members. [See, e.g., id. ¶ 7]. But GTB was aware of how such benefit payment

6
See, e.g., N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182 (5th Cir.
2015); Emerus Hosp. v. Health Care Serv. Corp., 2020 WL 1675665, at *5 (N.D. Ill. Apr. 6, 2020);
Hill Country Emergency Med. Assocs, P.A. v. UnitedHealthCare Ins. Co., No. 19-cv-00548-RP,
Order at 7–8 (W.D. Tex. Dec. 10, 2019); Bassel v. Aetna Health Ins. Co. of N.Y., 2018 WL
4288635, at *6 (E.D.N.Y. Sept. 7, 2018); Apex Toxicology, LLC v. United Healthcare Ins. Co.,
2017 WL 7806152, at *5 (S.D. Fla. June 26, 2017); Sportscare of Am., P.C. v. Multiplan, Inc.,
2011 WL 223724, at *4 (D.N.J. Jan. 24, 2011).

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Case 8:20-cv-02964 Document 1 Filed 12/11/20 Page 15 of 21 PageID 15

determinations would be made in relation to United’s Members, including by the United

Defendants “process[ing] claims for services provided to Members” and determining claims “to

be covered and allowed as payable,” consistent with the terms of the members’ benefit plans. [Id.

¶¶ 12, 45, 298].

36. GTB also repeatedly refers to “covered” services—i.e., services covered under the

terms of the members’ benefit plans. [Compl. ¶¶ 12, 32, 45]. An initial investigation into GTB

claims and allegations reveals that at least some of the benefit claims that GTB submitted during

the relevant time period were made from ERISA plans and are comprised of claim lines that reflect

either partial payment of some claim lines and denials of other claim lines or reductions based on

the terms of the patient’s health benefit plan.7 See Borrero, 610 F.3d at 1302 (applying Eleventh

Circuit precedent concluding that providers’ complaint “challenged both the rate of payment and

the right to payment under the ERISA plan because it alleged that the administrator both paid them

the wrong rate and denied payment altogether for ‘medically necessary’ services, a coverage

determination defined by the beneficiary’s ERISA plan.”) (citing Conn. State Dental, 591 F.3d at

1350–51). GTB purports not to pursue “any claims in which benefits were denied,” [see Compl.,

¶ 13], but at the same time specifically admits that “the reimbursement claims within the scope of

this action are ones that were determined to be covered and allowed as payable by the United

Defendants but [… were] paid [by the United Defendants] at rates below both the billed charges

7
Exhibits D(2) and D(3) contain claim submission data (redacted to exclude personal health
information) and PRAs (redacted to exclude personal health information) related to certain claims
that GTB submitted to the United Defendants on or after March 1, 2020, pursuant to employer-
sponsored health benefit plans. The PRAs included in Exhibits D(2) and D(3) reflect that the
claims submitted included multiple claims lines, some of which were partially paid, and some of
which were denied. Additionally, Exhibit D(1) contains claim submission data and a PRA relating
to patient RB, who is identified in ¶ 120 of the Complaint. The PRA included in Exhibit “D(1)”
reflects that payment on the claim was reduced based on the plan terms and benefits, which
implicates the question of whether GTB has a “right to payment” of that portion of the claim.

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Case 8:20-cv-02964 Document 1 Filed 12/11/20 Page 16 of 21 PageID 16

and the usual and customary provider charges for similar services in the community where [GTB]

rendered such services to United’s Members […] for the period of

Case Info

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Farfante, Darren. D Track Judge’s New Case

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Document Filed Date

December 11, 2020

Case Filing Date

November 02, 2020

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Parties

BLALACK, K LEE, II Attorney for the Defendant
CRAIG, CAESAR L Attorney for the Defendant
ERROL, KING J Attorney for the Defendant
FEDER, KEVIN D Attorney for the Defendant
FELDMAN , BRET MICHAEL Attorney for the Defendant
FINEBERG , JUSTIN C Attorney for the Plaintiff
FISCHER , DIANNE OLIVIA Attorney for the Defendant
FRICK, IRENE BASSEL Attorney for the Defendant
Gulf-to-Bay Anesthesiology Associates, LLC Plaintiff
HAMMACK, SCOTT Attorney for the Defendant
Multiplan, Inc. Defendant
PEOPLES , GERA R. Attorney for the Defendant
UMR, Inc. Defendant
UnitedHealthcare Insurance Co. Defendant
United Healthcare of Florida, Inc. Defendant
UnitedHealthcare of Florida, Inc. Defendant
Alan Lash Attorney
Alexandra Mora Attorney
David Ruffner Attorney
Jonathan Siegelaub Attorney
Rachel LeBlanc Attorney
Edward Jackson Attorney
Elliot Jackson Attorney
Virginia Boies Attorneys for Plaintiffs
Michael Ehren Attorneys for Plaintiffs
John West Attorneys for Defendants
Jonathan Feuer Attorneys for Plaintiffs
Nicholas Ortiz Attorneys for Plaintiffs
Daniel Alter Attorney
Shayna Freyman Attorney

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Party Notice: Gulf-to-Bay Anesthesiology Associates, LLC vs United Healthcare of Florida, Inc.

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