09-4882, 09-4883, 09-4884, 09-4885, 09-5270, 10-0405, 10-0406 BLUE CROSS BLUE SHIELD OF FLORIDA, INC. and HEALTH OPTIONS, INC., v. OUTPATIENT SURGERY CENTER OF ST. AUGUSTINE, LAKE SUMTER EMERGENCY MED

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Laws-info.com » Cases » Florida » Florida First District Court » 2011 » 09-4882, 09-4883, 09-4884, 09-4885, 09-5270, 10-0405, 10-0406 BLUE CROSS BLUE SHIELD OF FLORIDA, INC. and HEALTH OPTIONS, INC., v. OUTPATIENT SURGERY CENTER OF ST. AUGUSTINE, LAKE SUMTER EMERGENCY MED

State: Florida

Court: Florida First District Court

Docket No: 09-4882,

Case Date: 04/15/2011

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

BLUE CROSS BLUE SHIELD OF FLORIDA, INC. and HEALTH OPTIONS, INC., Appellants, v. OUTPATIENT SURGERY CENTER OF ST. AUGUSTINE, Appellee. __________________________/

CASE NOS. 1D09-4882, 1D09-4883, 1D09-4884, 1D09-4885

BLUE CROSS BLUE SHIELD OF FLORIDA, INC. and HEALTH OPTIONS, INC., Appellants, v. LAKE-SUMTER EMERGENCY MEDICAL SERVICES, INC., Appellee. __________________________/ CASE NO. 1D09-5270

BLUE CROSS BLUE SHIELD OF FLORIDA, INC. and HEALTH OPTIONS, INC., Appellants, CASE NO. 1D10-405 v. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, and BAYFRONT MEDICAL CENTER, Appellees. __________________________/ BLUE CROSS BLUE SHIELD OF FLORIDA, INC. and HEALTH OPTIONS, INC., Appellants, CASE NO. 1D10-406 v. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, and LAKE-SUMTER EMERGENCY MEDICAL SERVICES, INC., Appellees. ___________________________________/ Opinion filed April 15, 2011. An appeal from an order of the Agency for Health Care Adminitration. George N. Meros, Jr., and Andy V. Bardos of GrayRobinson, P.A., Tallahassee; Daniel Alter of GrayRobinson, P.A., Ft. Lauderdale, for Appellants.

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James M. Barclay of Law Office of James M. Barclay, P.A., Tallahassee, and Jerry L. Rumph, Jr., Tallahassee, co-counsel for Bayfront Medical Center, Inc. and Lake-Sumter Emergency Medical Services, Inc., Appellees. Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Agency for Health Care Administration, Appellee. Scott Warburton of Adams, Coogler, Watson, Merkel, West Palm Beach, for Outpatient Surgery Center of St. Augustine, LLC., Appellee.

DODSON, CHARLES W., ASSOCIATE JUDGE. These consolidated appeals challenge the constitutionality of the dispute resolution process established by section 408.7057, Florida Statutes (2009), as applied to a respondent. That statute directs appellee Agency for Health Care Administration (AHCA) to establish a program to provide assistance for the resolution of disputes between health plans and health care providers. It also instructs AHCA to contract with a dispute resolution organization. Consequently, AHCA contracted with Maximus, a private dispute resolution organization. Appellants are Blue Cross and Blue Shield of Florida, Inc., and its wholly owned subsidiary Health Options, Inc. (collectively, "Blue Cross"). Appellees (1) Outpatient Surgery Center of St. Augustine, LLC (2) Lake-Sumter Emergency Medical Services and (3) Bayfront Medical Center, Inc., are medical service providers and are collectively referred to as "the Providers." The Providers have no contractual entitlement to direct payment from Blue Cross. They bill their patients (in these cases Blue Cross customers), who are

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reimbursed by Blue Cross. In these cases the Providers claimed underpayment by Blue Cross and submitted their disputes to Maximus. Pursuant to section 408.7057 and the applicable administrative rule, Maximus obtained documentation from Blue Cross and the Providers. After

review of that documentation, Maximus applied its procedure for determining the reimbursement amount and made its recommendation to AHCA. That

recommendation was adopted by AHCA, as required by section 408.7057(4), and a final order entered. It was from that final order that this appeal was taken. The dispute resolution procedure used by Maximus involves no testimony and no hearing. It is purely a document review. AHCA is required to adopt the recommendation of the dispute resolution organization. Blue Cross objects to this procedure, claiming it to be unconstitutional. Blue Cross claims violations of (1) the right of access to the courts, (2) the non-delegation doctrine, (3) due process, and (4) the right of trial by jury. When reasonably possible, this court should give a statute a constitutional construction. See Bush v. Holmes, 919 So. 2d 392, 405 (Fla. 2006) (observing that an appellate court "should give a statute a constitutional construction where such a construction is reasonably possible"); Tyne v. Time Warner Entm't Co., L.P., 901 So. 2d 802, 810 (Fla. 2005) ("This Court has an obligation to give a statute a constitutional construction where such a construction is possible."). Statutes come

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to this court clothed with a presumption of constitutionality. See Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 508 (Fla. 2008) (recalling the "wellestablished principle that a legislative enactment is presumed to be

constitutional"); Fla. Dep't of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005) ("[W]e are obligated to accord legislative acts a presumption of constitutionality and to construe challenged legislation to effect a constitutional outcome whenever possible."); Dep't of Legal Affairs v. Rogers, 329 So. 2d 257, 265 (Fla. 1976) ("[T]he legislature is presumed to have intended to enact a valid and constitutional law and . . . we will construe a statute, if possible, in such a manner as will be conducive to its constitutionality."). The courts have consistently referred to the procedure outlined in section 408.7057 as "voluntary." See Baycare Health Sys., Inc. v. Agency for Health Care Admin., 940 So. 2d 563, 569 (Fla. 2d DCA 2006) (concluding that section 408.7057 "creates a voluntary process that is an alternative to the formal administrative process"); Merkle v. Health Options, Inc., 940 So. 2d 1190 (Fla. 4th DCA 2006) (finding "no indication in section 408.7057 that the dispute resolution process is mandatory"); Adventist Health Sys./Sunbelt, Inc. v. Blue Cross and Blue Shield, 934 So. 2d 602, 604 n.2 (Fla. 5th DCA 2006) (denying that "the statutory, voluntary dispute resolution process established pursuant to section 408.7057, Florida Statutes (2005), must first be exhausted"). The statute provides at section

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408.7057(2)(b)6 that the resolution organization shall review disputed claims unless the claim "is the basis for an action pending in state or federal court." Thus, after these claims were filed with Maximus by the Providers, Blue Cross could have filed suit and had the dispute addressed in court, with all the constitutional safeguards provided by a court proceeding. Consistent with our holding in Health Options, Inc. v. Agency for Health Care Administration, 889 So. 2d 849 (Fla. 1st DCA 2004), such a suit could have been filed at any time before fact-finding was concluded by Maximus. This construction is consistent with the position taken by the Appellees. AHCA states in its brief "Appellants could have opted out of dispute resolution by simply informing AHCA or Maximus that they did not want to participate or by filing a declaratory or other action in circuit court." The Providers state in their brief "even after one party invokes the dispute resolution process by filing a claim with the resolution organization, the non-invoking party may file a civil action, stopping the resolution organization from considering the claim until the point that fact-finding is complete." This is the procedure adopted by the Legislature. Because the statute

includes a right of both a petitioner and a respondent to file suit, we find it to be constitutional.

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Appellants retained the right to judicial review pursuant to section 120.68, Florida Statutes (2009). Pursuant to that review, the final orders entered by AHCA are affirmed. AFFIRMED. DAVIS, J., CONCURS, and WETHERELL, J., DISSENTS WITH OPINION.

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WETHERELL, J., dissenting. I agree with the underlying premise implicit in the majority's opinion that, in order to pass constitutional muster, the dispute resolution process in section 408.7057, Florida Statutes, must be voluntary, not mandatory. However, I disagree with the majority's conclusion that the statute is susceptible to an interpretation that would make participation in the process voluntary for the respondent (here, Blue Cross). Accordingly, I respectfully dissent from the decision to affirm the final orders in these cases. The dispute resolution process in section 408.7057 is without question voluntary in the sense that a provider may chose to utilize that forum to resolve its dispute with the health maintenance organization (HMO) instead of filing suit in an appropriate court. See Baycare Health Sys., Inc. v. Agency for Health Care

Admin., 940 So. 2d 563 (Fla. 2d DCA 2006); Merkle v. Health Options, Inc., 940 So. 2d 1190 (Fla. 4th DCA 2006). However, as I read the statute and its

implementing rule, once the provider selects the dispute resolution process as the forum to resolve the dispute and the resolution organization accepts review of the claim, participation in the process is mandatory for the HMO as the respondent. Nothing in Health Options, Inc. v. Agency for Health Care Administration, 889 So. 2d 849 (Fla. 1st DCA 2004), suggests otherwise or compels the result reached by the majority. The issue in that case was whether the party who initiated

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the dispute resolution process could prematurely end the process by withdrawing its claim. See id. at 851. This court held that once the review organization issued its recommendation, the fact-finding process was complete and the party could not withdraw its claim. Id. In reaching that decision, the court explained that section 408.7057 was intended to provide a binding dispute resolution process and that the process would be turned into a "moot court endeavor" if the party faced with an adverse recommendation could simply withdraw its claims to avoid entry of a final order by AHCA. Id. at 852-54. Likewise, the Second District's decision in Baycare Health System and the Fourth District's decision in Merkle provide no support for the majority's decision in this case. In Baycare Health System, the court rejected the provider's

constitutional challenges to section 408.7057 because the provider voluntarily selected the forum provided by the statute to adjudicate its dispute with the HMO. 940 So. 2d at 569-70. In Merkle, the court rejected the HMO's argument that the provider was required to pursue its claims in the dispute resolution process under section 408.7057 and that the provider's circuit court action was barred because it failed to do so. 940 So. 2d at 1198; see also Adventist Health Sys./Sunbelt, Inc. v. Blue Cross & Blue Shield, 934 So. 2d 602, 604 n.2 (Fla. 5th DCA 2006) (rejecting HMO's argument that section 408.7057 gives AHCA exclusive jurisdiction over disputes between providers and HMOs or that the provider must exhaust the

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dispute resolution process under the statute before bringing a civil action against the HMO). These cases clearly establish that the dispute resolution process is voluntary in the sense that a provider may select the process as the forum to resolve its dispute with the HMO in lieu of filing suit in an appropriate court. But none of these cases involved the question presented by this case, i.e., whether participation in the dispute resolution process is mandatory for the respondent HMO when that forum is selected by the provider. Unlike the provider, who can choose to proceed through the dispute resolution process or file an action in court, the HMO is compelled to participate in the dispute resolution process once the process is initiated by the provider. The interpretation given to the statute by the majority

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