CopyCited 9 times | Published | Florida 4th District Court of Appeal
...(collectively referred to as the "HMOs"). Merkle is a professional association providing emergency orthopaedic services, as a non-participating provider, to patients insured by the HMOs. Merkle raised four claims in each complaint: (1) violations of section 641.513(5), Florida Statutes (2003), (2) unjust enrichment and quantum meruit, (3) account stated, and (4) declaratory and injunctive relief....
...[1] We affirm the trial court's dismissal of Merkle's account stated claims, but reverse the trial court's dismissal of the remaining claims. Emergency service providers like Merkle are required to care for HMO subscribers regardless of whether the provider participates in the HMO's health plan. See § 641.513(2), Fla. Stat. (2003). However, section 641.513(5), Florida Statutes (2003), dictates how an HMO must reimburse these non-participating providers....
...e 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. Such reimbursement shall be net of any applicable copayment authorized pursuant to subsection (4). § 641.513(5), Fla. Stat. (2003). Specifically, Merkle claimed that beginning in 2003, the HMOs violated section 641.513(5) by paying class members "artificially reduced payment amounts" equal to 120% of the Medicare reimbursement schedule, rather than the usual and customary provider charges. The HMOs filed four separate motions to dismiss Merkle's complaints. Collectively, they argued the following: 1. Merkle's claims under section 641.513(5) and for declaratory relief fail to state a cause of action because section 641.513(5) does not authorize a private cause of action for its violation....
...le. 3. Merkle's claim for account stated fails to state a cause of action because the parties never agreed on the amount the HMOs would pay Merkle. 4. Merkle's request for declaratory relief is a request for an impermissible advisory opinion because section 641.513(5) does not authorize a private cause of action....
...The trial court held a consolidated hearing on the motions to dismiss, and entered four virtually identical orders granting the motions to dismiss, with prejudice, and entering final judgment in favor of the HMOs on all claims. The trial court concluded that: 1. No private right of action exists under section 641.513(5)....
...t is reviewable on appeal by the de novo standard of review.'" Royal & Sunalliance,
877 So.2d at 845 (quoting Bell v. Indian River Mem'l Hosp.,
778 So.2d 1030, 1032 (Fla. 4th DCA 2001)). Merkle argues first that the trial court erred in finding that section
641.513(5) does not imply a private right of action....
...Blue Cross & Blue Shield,
934 So.2d 602 (Fla. 5th DCA 2006). Adventist Health is directly analogous to the instant case. In Adventist Health, a hospital providing emergency treatment to HMO subscribers brought a declaratory judgment complaint against the HMO seeking an interpretation of section
641.513(5).
934 So.2d at 603. The HMO argued that it was obligated only to pay an amount equal to 120% of Medicare reimbursement rates. Id. The hospital argued that section
641.513(5) required the HMO to pay the "`usual and customary provider charges for similar services in the community.'" Adventist Health,
934 So.2d at 603....
...The court recognized that "`[i]n general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or *1195 welfare of the public as an entity, will not be construed as establishing civil liability.'" Id. The court concluded that: [Section 641.513(5)] ....
...Instead, this court directed that the HMO subscriber could pursue breach of contract and tort law claims against the *1196 HMO based on common law principles. Id. at 1041-42. In Adventist Health, the appellate court found the holdings in Villazon, Florida Physicians and Greene inapplicable to section 641.513(5)....
...As recognized in Adventist Health, the cases of Villazon, Florida Physicians and Greene are distinguishable from the instant case. First, Villazon, Florida Physicians and Greene are specifically limited to provisions in the HMO Act, sections
641.17-641.3923. Section
641.513(5), at issue in this case, is not part of the HMO Act. Rather, it is included within part III of Chapter 641. Second, unlike
641.513(5), each of the statutory provisions at issue in Villazon, Florida Physicians and Greene were aimed specifically at protecting the public as an entity; i.e.: preventing negligence, unfair and deceptive trade practices and bad faith. Section
641.513(5) is aimed at protecting non-participating providers who must provide emergency medical services to HMO subscribers, ensuring they are compensated fairly. The question is not whether the HMOs are liable under section
641.513(5), but rather what is the appropriate method for determining the extent of that liability....
...duty and because the intent of the section is to preclude retaliatory discharge, the statute confers by implication every particular power necessary to insure the performance of that duty." Id. at 184 (citing Mitchell v. Maxwell,
2 Fla. 594 (1849)). Section
641.513(5) clearly imposes a duty on HMOs to reimburse non-participating providers according to the statute's dictates, not based on Medicare reimbursement rates. The intent of the section is to ensure that the non-participating providers are adequately paid for a service they are required by law to perform. See §
641.513(2), Fla....
...Os under any theory. Parties have "the right to maintain a private cause of action as the persons the legislature intended to protect by the enactment" of a particular statute. Moyant v. Beattie,
561 So.2d 1319, 1320 (Fla. 4th DCA 1990). In enacting
641.513(5), the legislature intended to protect not only subscribers, but also non-participating providers. As the amici curiae [2] supporting Merkle's position point out, the terms of section
641.513(5) are obligatory ("shall")....
...cating that the legislature intended "that subscribers will receive needed services for which hospitals and emergency room physicians will receive reimbursement"). The HMOs argue further that the only avenues for vindication of Merkle's rights under section
641.513(5) are either (1) filing a claim under ERISA, the federal Employee Retirement Income Security Act, or (2) participating in the alternative dispute resolution process established in section
408.7057, Florida Statutes....
...Although not determinative, it is noteworthy that the AHCA responded to a complaint made by Florida Hospital involving the instant dispute by stating that it "`does not have specific rule making authority to determine what specific payment amounts would comply with Section 641.513(5)(b), Florida Statutes....
...3d DCA 2002) (finding that class action proceedings may be appropriate despite arbitration provisions in agreements between providers and HMOs). Thus, while the dispute resolution process under section
408.7057 may provide an adequate review of a non-participating provider's claims under section
641.513(5), [3] it is not the only avenue of review. [4] Thus, we find that the trial court erred in concluding that section
641.513(5) does not imply a private cause of action....
...to pay this balance." Carpenter Contractors of Am., Inc. v. Fastener Corp. of Am., Inc.,
611 So.2d 564, 565 (Fla. 4th DCA 1992) (citing Merrill-Stevens Dry Dock Co. v. Corniche Exp.,
400 So.2d 1286 (Fla. 3d DCA 1981)). Merkle contends that sections
641.513(2) and
641.513(5) create an implied agreement between Merkle and the HMOs as to the balance owed by the HMOs....
...Accordingly, the trial court did not err in dismissing Merkle's account stated claims. Merkle's last argument is that the trial court erred in dismissing its claim for declaratory relief pursuant to section
86.021, Florida Statutes (2005), to clarify its rights, and those of the putative class, under section
641.513(5). In Adventist *1200 Health, the court reversed the trial court's dismissal of a provider's declaratory judgment complaint seeking an interpretation of section
641.513(5)(b)....
...(2005); §
120.68(1), Fla. Stat. (2005); Fla. Admin. Code R. 59A-12.030(3)(4) (2006); Fla. R.App. P. 9.030. [4] Merkle argues also that the dispute resolution process cannot be the exclusive remedy because the enabling statute, section
408.7057, was passed years after section
641.513(5)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 12060, 2006 WL 2032268
...Ziegler, P.A., Hollywood, Amicus Curiae for Florida Association of Health Plans. TORPY, J. The issue in this case is whether the lower court properly dismissed Appellant's (hereinafter "Florida Hospital") declaratory judgment complaint seeking an interpretation of section 641.513(5)(b), Florida Statutes (2005)....
...by Florida Hospital. Specifically, the parties disagree over the meaning of statutory language obligating Health Options to pay "the usual and customary provider charges for similar services in the community where the services were provided . . . ." § 641.513(5)(b), Fla. Stat. (2005). We hold that Florida Hospital's complaint stated a cause of action; therefore, the lower court erred when it granted judgment on the pleadings. Section 641.513(5), Florida Statutes (2005), provides: (5) Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of: (a) The provider's charges; (b)...
...Although Health Options acknowledges that the statute requires it to pay some amount for emergency medical services rendered to its subscribers, it contends that it is only obligated to pay an amount equal to 120% of what Medicare would reimburse for the same services. Conversely, Florida Hospital contends that section 641.513(5) requires that Health Options pay Florida Hospital's full billed charges because they are the "usual and customary provider charges for similar services in the community." While this dispute has been pending, Florida Hospital has bi...
...Although not determinative, it is noteworthy that the AHCA responded to a complaint made by Florida Hospital involving the instant dispute by stating that it "does not have specific rule making authority to determine what specific payment amounts would comply with Section
641.513(5)(b), Florida Statutes...." Instead, the AHCA directed the parties to bring this issue before a "court of competent jurisdiction or the provider dispute resolution program as outlined in section
408.7057." [3] We similarly distinguish Villazon v....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 2089, 2010 WL 624192
...Platt of Akerman Senterfitt, Tallahassee, for Appellee Humana Medical Plan, Inc. George N. Meros, Jr. and Andy V. Bardos of GrayRobinson, P.A., Tallahassee, for Amicus Curiae, Florida Association of Health Plans. ROBERTS, J. Baker County Medical Services, Inc. (BCMS), appeals a final judgment interpreting section 641.513(5)(b), Florida Statutes (2006). BCMS raises two issues on appeal. First, BCMS argues that the trial court erred in ruling that the term "provider" in section 641.513(5)(b) is not limited to any specific type of provider. We disagree and affirm on the first issue. Second, BCMS argues that the trial court erred in ruling that the phrase "usual and customary provider charges" in section 641.513(5)(b) includes consideration of the amounts billed by providers, as well as the amounts accepted by providers as payment....
...Third, for patients covered by Medicare or Medicaid, the reimbursement rate is set by the government agency administering those programs. Reimbursement to hospitals providing emergency medical services to patients who subscribe to an HMO that does not have a contract with the hospital is determined according to section 641.513(5), Florida Statutes (2006), which provides: Reimbursement for services pursuant to this section by a provider who does not have a contract with the health maintenance organization shall be the lesser of: (a) The provider's charges; (...
...billed or the charge master rates. After a bench trial, the trial court entered its final judgment and made the following relevant findings: 2. As a matter of law, the Court finds that there is no ambiguity in the language used by the legislature in Section 641.513(5), Florida Statutes. This Court further finds that the amount of reimbursement under Section 641.513(5) is a question of fact. * * * 4. The Court finds that in Section 641.513(5), Florida Statutes, the Florida legislature intended subsection 641.513(5)(a) to mean that in determining the proper reimbursement under the statute the trier of fact should consider the provider's charge, which means the amount billed by the provider....
...The Court finds that a trier of fact could determine from the evidence presented that the provider's "usual and customary charge" may differ from the provider's "charge. ..." 6. The Court finds that in determining the proper reimbursement under subsection 641.513(5)(b), the trier of fact may consider the amount billed by the provider....
...care, contracts with insurers, contracts with other health maintenance organizations, worker's compensation payments, private pay, charity care, indigent care, and payments received from any other payer source. * * * 8. The Court finds that under subsection 641.513(5)(b), the determination of "usual and customary provider charges for similar services in the community" is not limited to any specific type of provider....
...B) The determination of what constitutes "the community where the services were provided" is a question of fact that is not limited by the type of provider. ... On appeal, BCMS argues that the trial court erred in ruling that the term "provider" in section
641.513(5) is not limited to any specific type of provider. BCMS asserts that the term is limited only to hospitals. However, the term "provider" is specifically defined in chapter 641 to include all providers of similar services, not just hospitals. Section
641.513(5) is contained in part III of chapter 641, entitled "Health Care Services." Section
641.47 contains the definitions for terms used in Part III....
...ncludes consideration of the amounts billed by providers as well as the amounts accepted as payment. BCMS asserts that the "usual and customary charges" include only the amounts billed or the charge master rates. The term "charges" is not defined in section 641.513(5)....
CopyCited 2 times | Published | District Court, M.D. Florida
...at ¶ 38) On February 16, 2018, Plaintiff filed its original complaint (hereinafter, "Complaint") in Pinellas County Court. (Dkt. 2) In Count I, Plaintiff alleged that Defendant failed to pay the proper rate for health care claims in violation of Fla. Stat. § 641.513 (5)....
...43) On July 18, 2018, the Court granted Plaintiff's Motion, allowing withdrawal of Count II of the Complaint and an amendment of Count I. (Dkt. 54) The resulting complaint (hereinafter, "Amended Complaint") alleges one count of breach of implied-in-law contract, alleging a violation of both Fla. Stat. §§
641.513 (5) and
627.64194....
...Florida Law Overview Florida law requires HMOs, such as Defendant, to reimburse out-of-network emergency medical service providers, such as Plaintiff, within certain time parameters and at specified rates for emergency services medical treatment. See Fla. Stat. §§
641.513 (5),
641.3155(3),
627.6131(4)(b), and
627.64194....
...(Dkt. 2) Additionally, in several of the Hillsborough County Complaints, Plaintiff cites a fourth *1070 Florida statute, §
627.64194. 6 See e.g. , Hillsborough County First-Filed Case , Docket No. 2 at 8-9. First, Plaintiff asserts its claims under §
641.513(5), which states that [r]eimbursement for services by a provider who does not have a contract with the health maintenance organization shall be the lesser of: (a) The provider's charges; (b) The usual and customary provider charges for similar services in the community where the services were provided; or (c) The charge mutually agreed to by the health maintenance organization and the provider within 60 days of the submittal of the claim. Fla. Stat. §
641.513 (5)....
...icipating provider services and sets payment collection limitations. See Fla. Stat. §
627.64194 . The applicable section of the statute, §
627.64194(4), requires an insurer to "reimburse a non-participating provider of services ... as specified in s.
641.513(5), reduced only by insured cost share responsibilities as specified in the health insurance policy, within the applicable timeframe provided in s....
...2); Hillsborough County First-Filed Case , Docket No. 2; Hillsborough County Last-Filed Case , Docket No. 1-1. The Court addresses each group of cases in turn. a. Hillsborough County Cases The Court first addresses the claims Plaintiff asserts in the Hillsborough County Cases under Florida Statute §
641.513(5). Hillsborough County First-Filed Case , Docket No. 2; Hillsborough County Last-Filed Case , Docket No. 1-1. The Florida Court of Appeals established a healthcare provider's right to maintain a private cause of action under §
641.513 against an HMO in Peter F. Merkle, M.D., P.A. v. Health Options, Inc. ,
940 So.2d 1190 (Fla. 4th DCA 2006). The court found that "the terms of section
641.513(5) are obligatory ('shall')" and "aimed at protecting non-participating providers who must provide emergency medical services to HMO subscribers [to ensure] they are compensated fairly." Peter F. Merkle, M.D., P.A. ,
940 So.2d at 1196-97 (internal citations omitted). Significantly, the Merkle Court analyzed the legislative intent of the statute, noting that in "enacting
641.513(5), the legislature intended to protect not only subscribers, but also non-participating providers." Id. at 1197 . The "legislative history [of §
641.513 ] confirms that the legislature intended non-participating providers to be reimbursed in accordance with the statute....
...ing that the legislature intended "that subscribers will receive needed services for which hospitals and emergency room physicians will receive reimbursement") ). Accordingly, the question under this statute "is not whether the HMOs are liable under section 641.513(5), but rather what is the appropriate method for determining the extent of that liability." Id. It is clear that § 641.513(5) confers a private right of action upon Plaintiff, as a non-participating provider, to assert its claims against Defendant, as an HMO....
...2; Hillsborough County Last-Filed Case , Docket No. 1-1; see also Conn. State Dental , 591 at 1345 (quoting Davila ,
542 U.S. at 210 ,
124 S.Ct. 2488 ). As a result, the Court finds that these cases do, in fact, impose upon Defendant an independent legal duty pursuant to Florida Statute §
641.513(5)....
...pletely preempted.") Accordingly, the Hillsborough County Cases must be remanded for consideration in the requisite state court. b. Pinellas County Cases Turning to the Pinellas County Cases, the Court again begins its analysis under Florida statute §
641.513(5). See Fla. Stat. §
641.513 (5). As explained above, it is well established that §
641.513 creates a private right of action for non-participating healthcare providers. Peter F. Merkle, M.D., P.A. ,
940 So.2d at 1190 . However, although a non-participating healthcare provider could theoretically assert a private cause of action under §
641.513, which could then implicate an HMO's actions under an independent legal duty, the Court cannot draw such a conclusion in the Pinellas County Cases....
...theory-not as a "private right of action." ( Id. ) Consequently, the Court must construe Plaintiff's claims as derivative actions brought in Plaintiff's capacity as a third party beneficiary. (Dkt. 2 at 1, 5-7) Accordingly, Plaintiff cannot rely on § 641.513 to establish an independent legal duty in the Pinellas County Cases....
..., Premier Inpatient Partners, LLC, (E.A.) , 8:18-cv-01818-MSS-AAS, Docket No. 2 at 5-10. In the 5 last-filed cases, including (1) 8:19-cv-00074; (2) 8:19-cv-00075; (3) 8:19-cv-00076; (4) 8:19-cv-00241; and (5) 8:19-cv-00242, the operative Complaints assert claims pursuant to only two Florida statutes, §§
641.513(5) and
627.64194, and do not include any claims pursuant to § 3155 of Florida's Prompt Payment Act....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...December 2002 fall into three categories: (1) "continuity of care" patients for whom reimbursement rates are governed by section
641.51(8), Florida Statutes (2002); (2) patients seeking emergency care, for whom reimbursement rates are established by section
641.513(5), Florida Statutes (2002); and (3) all other patients who sought "non-emergency," "non-continuity of care" treatment, who must be billed a "reasonable rate," see, e.g., Payne v....
...Health Options then filed a response on appropriate Maximus CHDR forms. As presented to Maximus CHDR, the resolution of the large majority of these claims rested on a question of law related to statutory interpretation. The parties agreed that pursuant to section 641.513(5)(a)-(b), Florida Statutes (2002), Baycare was entitled to reimbursement for the emergency care claims in an amount equal to the lesser of (1) the provider's billed charges or (2) the "usual and customary" charges for such services in the community....
...Health Options concluded that a formula to pay 120% of Medicare reimbursement rates was appropriate and satisfied the statute's mandate to pay the "usual *566 and customary" charges for such services. [1] Baycare thus presented claims to Maximus CHDR that required the private, third-party organization to interpret section 641.513(5)(a)-(b) and to apply that interpretation to a large class of claims....
...Maximus CHDR generally concluded "that reimbursement of 120% of the Medicare fee schedule would fall within an appropriate range to be considered `reasonable'" and thus the equivalent of the "usual and customary" rates of other hospitals, as required by section 641.513(5)(a)-(b)....
...CA in the four cases. This motion argued that there was "newly discovered evidence" that established that Health Options' reimbursement formula, paying 120% of Medicare reimbursement rates as the equivalent of "usual and customary charges," violated section 641.513(5) and breached the insurance contracts between Health Options and its clients....
...tections. [6] Instead, it affirmatively chose a voluntary forum with minimal process. In this appeal, Baycare again asserts, as it did before Maximus CHDR, the AHCA, and the First District, that Health Options' reimbursement formula is invalid under section 641.513(5) and that a proper interpretation of the statute would require Health Options to pay the amount that Baycare billed....
