Cornerstone Medical Center, L.L.C. et al v. Blue Cross/Blue Shield Healthcare Plan of Georgia, Inc. et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.June 23, 2017

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CORNERSTONE MEDICAL CENTER, L.L.C., and APOLLOMD BUSINESS SERVICES, L.L.C., individually, and as a representative of and for all, of its applicable affiliated and/or subsidiary entities/companies, which are operated by/under/through, ApolloMD, et al., Plaintiffs, v. BLUE CROSS/BLUE SHIELD HEALTHCARE PLAN OF GEORGIA, INC., and BLUE CROSS AND BLUE SHIELD OF GEORGIA, INC., Defendants. No. 1:17-cv-02264-RWS DEFENDANTS’ MOTION TO DISMISS In accordance with Federal Rule of Civil Procedure 12(b)(6), and for the reasons set forth in the Brief in Support filed contemporaneously herewith, Defendants, by and through their undersigned counsel, hereby move this Court for dismissal with prejudice of all claims asserted against them in Plaintiffs’ Complaint as a result of Plaintiffs’ failure to state a claim upon which relief can be granted. (signatures on following page) Case 1:17-cv-02264-RWS Document 5 Filed 06/23/17 Page 1 of 3 - 2 - Respectfully submitted, this 23rd day of June, 2017. REED SMITH LLP Martin J. Bishop (application for admission pro hac vice to be filed) Bryan M. Webster (application for admission pro hac vice to be filed) 10 S. Wacker Drive, 40th Floor Chicago, IL 60606 Tel: 312.207.1000 Fax: 312.207.6400 Email: mbishop@reedsmith.com Email: bwebster@reedsmith.com TROUTMAN SANDERS LLP /s/ Jaime L. Theriot Jaime L. Theriot (GA Bar No. 497652) 600 Peachtree Street, NE, Suite 5200 Atlanta, Georgia 30308 Tel: 404.885.3534 Fax: 404.962-6748 Email: jaime.theriot@troutmansanders.com Attorneys for Defendants Case 1:17-cv-02264-RWS Document 5 Filed 06/23/17 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that the foregoing Defendants’ Motion to Dismiss Complaint was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 23rd day of June, 2017. /s/ Jaime L. Theriot Jaime L. Theriot (GA Bar No. 497652) jaime.theriot@troutmansanders.com Case 1:17-cv-02264-RWS Document 5 Filed 06/23/17 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CORNERSTONE MEDICAL CENTER, L.L.C., and APOLLOMD BUSINESS SERVICES, L.L.C., individually, and as a representative of and for all, of its applicable affiliated and/or subsidiary entities/companies, which are operated by/under/through, ApolloMD, et al., Plaintiffs, v. BLUE CROSS/BLUE SHIELD HEALTHCARE PLAN OF GEORGIA, INC., and BLUE CROSS AND BLUE SHIELD OF GEORGIA, INC., Defendants. No. 1:17-cv-02264-RWS BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Plaintiffs’ Complaint should be dismissed because it represents a quintessential example of improper gamesmanship in which Plaintiffs are engaging in piecemeal prosecution of the same claims involving the same parties in multiple forums in order to hedge against any potential negative rulings by this Court. Indeed, Plaintiffs’ Complaint asserts the same causes of action by the same Plaintiffs against the same Defendants for the same alleged underpayment and denial of reimbursement claims for medical services rendered to Defendants’ Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 1 of 26 - 2 - members for the same time period that were asserted in this Court several months ago in ApolloMD Business Services, L.L.C. et al., v. Amerigroup Corporation (Delaware), Blue Cross Blue Shield Healthcare Plan of Georgia, Inc., Blue Cross and Blue Shield of Georgia, Inc., et al., No. 1:16-cv-04814-RWS (the “Prior Action”). This improper claim splitting is disfavored by federal courts and warrants dismissal of this second action. Plaintiffs’ Complaint in this case also suffers from other defects mandating its dismissal. First, Plaintiffs’ breach of contract claim is impermissibly vague, as it does not specify a single claim that was allegedly underpaid, leaving Defendants to speculate as to how Defendants breached the contract by allegedly failing to pay Plaintiffs pursuant to the terms of the contract. Second, Plaintiffs have not alleged sufficient facts to support either a Georgia Fair Business Practices Act (“FBPA”) claim or fraud claim. The FBPA claim fails because such a claim is only intended for consumer disputes, not disputes between two businesses or disputes which are centered on regulated insurance activities such as the present dispute. Similarly, Plaintiffs’ fraud claim fails because it is based upon a duty arising under the parties’ contract, not an Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 2 of 26 - 3 - independent legal duty, and Plaintiffs have not sufficiently identified facts that would support a fraud claim under Rule 9(b)’s heightened pleading standard. Third, Plaintiffs’ cause of action for an injunction should be dismissed because an injunction is a remedy, not a cause of action, and because Plaintiffs cannot establish irreparable harm as they have adequate monetary damages available for any purported injury. Finally, like the Prior Action, certain underlying claims for payment here are governed by ERISA plans, and must be asserted as ERISA claims, rather than common-law claims. For all of these reasons, each of which is detailed below, the Court should dismiss the Complaint with prejudice. SUMMARY OF ALLEGATIONS1 A. The Complaint Plaintiff Cornerstone Medical Center, L.L.C. (“Cornerstone”) is a regional, multi-specialty hospital. (Compl. ¶¶ 6-7.) Plaintiff ApolloMD Business Services, L.L.C. (“ApolloMD” and with Cornerstone, “Plaintiffs”) is a Georgia limited liability company that owns and operates Cornerstone. (Id. ¶¶ 8-9.) Defendants Blue Cross Blue Shield Healthcare Plan of Georgia, Inc. (“BCBSHP”), and Blue 1 Defendants accept Plaintiffs’ well-pleaded allegations as true only for the purposes of their motion to dismiss, but do not admit the truth of such allegations. Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 3 of 26 - 4 - Cross and Blue Shield of Georgia, Inc. (“BCBSGA”) are managed care organizations operating in the State of Georgia. (Id. ¶¶ 10-12.) In December 2015, ApolloMD purchased Cornerstone. (Id. ¶ 20.) As part of the acquisition, ApolloMD was allegedly assigned a contract with Defendants (the “Hospital Agreement”) which specifies, among other items, the rate at which Plaintiffs will be reimbursed by Defendants for covered medical services rendered at Cornerstone to Defendants’ members. (Id. ¶¶ 24, 26.) Plaintiffs allege that Defendants “have consistently ignored” the obligations imposed by the Hospital Agreement, reimbursed Plaintiffs at lower rates than provided for in the Hospital Agreement, and delayed payments. (Id. ¶¶ 28-31.) In some instances, Defendants have allegedly denied Plaintiffs’ claims in their entirety and imposed improper coverage limitations. (See, e.g., id. ¶ 30 (“Reimbursement by the Defendants has ranged from essentially nothing at all . . . .”); id. ¶ 49 (“Defendants have . . . willfully refus[ed] to make reasonable and appropriate payments to Plaintiff[.]”); id. ¶ 63 (“[Defendants] have acted . . . to impose undue coverage limitations[.]”).) The Complaint does not identify any of the claims, plans, or services at issue, or the amount that Defendants allegedly underpaid or refused to pay. (See, e.g., Compl.) Plaintiffs further allege that Defendants have either failed to respond or responded in a delayed fashion to Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 4 of 26 - 5 - Plaintiffs’ inquiries regarding reimbursements, and have not remedied the “situation relative to reimbursement” despite Defendants’ assurances that they are “working on it.” (Id. ¶¶ 32-34, 44-45.) Based on these allegations, Plaintiffs assert claims for breach of contract (Count I), violation of the Georgia FBPA (Count II), fraudulent misrepresentation, fraudulent inducement, and deceit (Count III), and injunctive relief (Count IV). (Id. ¶¶ 47-91.) Plaintiffs seek compensatory, consequential, punitive, and treble damages, civil penalties, interest, costs, and attorneys’ fees. (Id. pp. 19-20.) B. Procedural History The Complaint was initially filed in the Superior Court of, Walker County on April 10, 2017. On May 19, 2017, Plaintiffs filed a Motion for a Preliminary Injunction and Request for Immediate Hearing (“PI Mot.”), which seeks to require Defendants to “immediately reimburse Plaintiffs at the rates sought in Plaintiffs’ Complaint.” (See Dkt. 2, PI Mot. at 5.) In the PI Motion, Plaintiffs amplified their non-payment allegations, claiming that “Defendants have ceased making any reimbursement payments whatsoever to Plaintiffs.” (PI Mot. ¶ 8.) On June 16, 2017, Plaintiffs removed the action to this Court. (See Dkt. 1.) Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 5 of 26 - 6 - C. ApolloMD Filed a Complaint Asserting Nearly Identical Allegations Against Defendants in This Court in December 2016. Plaintiffs’ allegations in this action are virtually identical to those asserted by ApolloMD in a separate federal action filed in this Court on December 30, 2016, titled ApolloMD Business Services, L.L.C. et al., v. Amerigroup Corporation (Delaware), Blue Cross Blue Shield Healthcare Plan of Georgia, Inc., Blue Cross and Blue Shield of Georgia, Inc., et al., No. 1:16-cv-04814-RWS (N.D. Ga. Dec. 30, 2016). An amended complaint was filed in the Prior Action on February 6, 2017 (the “Prior Complaint” or “Prior Compl.”).2 The Prior Action was brought on behalf of ApolloMD, and all of its affiliated companies, which includes Cornerstone. (Compare Prior Compl., Preamble; Compl. ¶ 9 (“Plaintiff, ApolloMD . . . owns and operates Cornerstone Medical Center).) The Prior Complaint lists both BCBSHP and BCBSGA as defendants and asserts claims based on their alleged “unfair and illegal reimbursement practices.” (Prior Compl. ¶ 19.) It further alleges that Defendants were “systemically underpaying claims submitted by Plaintiff . . . or otherwise denying tens of thousands of claims, which Plaintiff properly submitted for 2 A copy of the Prior Complaint is attached as Ex. 1. The Court may take judicial notice of a prior complaint on a motion to dismiss. See Halmos v. Bomardier Aerospace Corp., 404 F. App’x 376, 377 (11th Cir. 2010) (affirming a Rule 12(b)(6) dismissal based on the court’s taking judicial notice of facts relating to the docket and filings in a previous state court action between the parties). Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 6 of 26 - 7 - payment.” (Id. ¶ 21.) ApolloMD seeks payment for claims for services rendered by Plaintiffs from December 30, 2010 to the present. (Id. ¶ 19.) Based on these allegations in the Prior Action, ApolloMD asserts claims for violations of the Affordable Care Act, Emergency Medical Treatment and Labor Act, and COBRA (Counts I-III), violation of the FBPA (Count IV), Breach of Contract (Count IV),3 and Fraud and Fraudulent Inducement (Count VI). ARGUMENT AND CITATION OF AUTHORITY To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint ‘must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.’” Harris v. Chase Home Fin., LLC, 524 F. App’x 590, 591 (11th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “‘[L]abels and conclusions, and a formulaic recitation of the elements of a cause of action[,] will not’ be enough to survive a Rule 12(b)(6) motion to dismiss.” Harris, 524 F. App’x at 591 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[R]egardless of the alleged facts . . . a court may dismiss a complaint on a dispositive issue of law.” Clark v. Governor’s Office of Planning & Budget, 2013 WL 4718371, at *3 (N.D. Ga. Sept. 3, 2013). “In analyzing the sufficiency of the complaint, [the Court] limit[s its] consideration 3 The Prior Complaint erroneously styles both Apollo’s FBPA and Breach of Contract claims as Count IV and omits a Count V. Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 7 of 26 - 8 - to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” La Grasta v. First Union Secs., Inc., 358 F.3d 840, 845 (11th Cir. 2004). Applying this standard, Apollo’s claims should be dismissed. I. Plaintiffs Impermissibly Duplicate Their Claims Filed in the Prior Action. This action should be dismissed, or alternatively consolidated, with the Prior Action because Plaintiffs impermissibly duplicate the claims they filed in the Prior Action. “The claim-splitting doctrine . . . ensures that a plaintiff may not ‘split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which relief is sought, and leave the rest to be presented in a second suit, if the first fails.’” Vanover v. NCO Fin. Servs., Inc., 857 F.3d 833, 841 (11th Cir. 2017) (quotation omitted). In short, “[t]he rule against claim-splitting requires a plaintiff to assert all of its causes of action arising from a common set of facts in one lawsuit.” Id. In order to determine whether a plaintiff impermissibly split claims between two lawsuits, the court analyzes “(1) whether the cases involve the same parties and their privies, and (2) whether separate cases arise from the same transaction or series of transactions.” Id. Cases arise from the same transaction where “the two actions are based on the same nucleus of operative facts.” Id. Upon a finding of Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 8 of 26 - 9 - claim splitting, a court may “dismiss a duplicative later-filed action . . . stay that action pending resolution of the previously filed action . . . enjoin the parties from proceeding with it, or . . . consolidate both actions.” Adams v. California Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007). There is no doubt that Plaintiffs impermissibly split their claims between this case and the Prior Action. First, both lawsuits involve the same Plaintiffs (Apollo and its affiliated entities) and Defendants (BCBSHP and BCBSGA). See Vanover, 2017 WL 2129557, at *6 (“The district court correctly found that the first prong of the claim- splitting analysis is satisfied, as the parties are identical in Vanover I and Vanover II.”) Second, both actions seek reimbursement for harm incurred in overlapping time periods for the same alleged conduct. Vanover, 2017 WL 2129557, at *6 (finding the second prong of claims-splitting test was satisfied where both actions concern the same debt-collection practices by defendant). The Prior Action asserts claims based on Defendants’ alleged “unfair and illegal reimbursement practices.” (Prior Compl. ¶ 19.) Plaintiffs allege that Defendants were “systemically underpaying claims . . . or otherwise denying tens of thousands of claims, which Plaintiff properly submitted for payment.” (Id. ¶ 21.) This action similarly alleges that Defendants have “consistently ignored” their payment obligations by underpaying and outright denying claims, and imposing improper coverage Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 9 of 26 - 10 - limitations. (Compl. ¶¶ 28-31, 49, 63.) The Prior Action seeks damages for unpaid and underpaid claims from December 30, 2010 to the present; this action seeks damages from December 2015 to the present. (Prior Compl. ¶ 19; Compl. at p. 20.) Finally, both actions assert the same causes of action based on this alleged conduct-breach of contract, fraud, and violation of the FBPA. In sum, “the factual bases for both lawsuits are related in time, origin, and motivation”; accordingly, Plaintiffs’ new action should be dismissed or consolidated with the Prior Action. See Vanover, 2017 WL 2129557, at *6 (affirming dismissal of complaint based on claim splitting); Khan v. H & R Block E. Enters., Inc., 2011 WL 3269440, at *7 (S.D. Fla. July 29, 2011) (dismissing claims “because the parties are the same . . . and the claims derive from the same operative facts”). II. Plaintiffs’ Breach of Contract Claim (Count One) Fails for Vagueness. Plaintiffs’ breach of contract claim should be dismissed because it does not plead sufficient facts to “apprise [Defendants] of the facts underlying Plaintiffs’ claims” or “permit Defendants to craft . . . a responsive pleading.” Sanctuary Surgical Ctr., Inc. v. UnitedHealthcare, Inc., 2011 WL 6935289, at *3 (S.D. Fla. Dec. 30, 2011). Plaintiffs allege that Defendants breached the Hospital Agreement by “failing and/or willfully refusing to make reasonable and appropriate payments to Plaintiff Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 10 of 26 - 11 - as required by said contractual agreements [sic].” (Compl. ¶ 49.) In some instances, Defendants allegedly denied payment entirely, whereas in others, Defendants paid part of the claim. (Id. ¶¶ 30, 49, 63.) Although the Complaint seeks damages for all “services rendered to all patients that have been seen by Plaintiff since December 2015,” Compl. at 19-20, Plaintiffs fail to identify a single claim that Defendants have not paid pursuant to the terms of the Hospital Agreement. Nor do Plaintiffs identify the date of any claim, the services allegedly rendered, the amount allegedly owed, or any other fact that would identify the claims. Defendants are left to guess which of the myriad claims submitted by Plaintiffs are at issue here. Such generalized, conclusory allegations have repeatedly been found insufficient by courts in the Eleventh Circuit, as they neither apprise defendants of the claims at issue nor permit them to draft a responsive pleading. See Fields v. Medex Transport Inc., 2013 WL 12138554, at *2 (S.D. Fla. May 24, 2013) (dismissing FLSA claim that failed to specify the duration of plaintiff’s employment or the time period during which she was underpaid); Sanctuary Surgical, 2011 WL 6935289, at *3 (dismissing ERISA claim where plaintiff failed to identify ERISA plans it was suing under). Plaintiffs’ breach of contract claim suffers from the same defects and should be dismissed. Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 11 of 26 - 12 - III. Plaintiffs’ FBPA Claim (Count Two) Fails Because It Is Based on a Business-to-Business Insurance Dispute, and Plaintiffs Have Not Pled Reliance. Plaintiffs allege that Defendants violated the FBPA by failing to reimburse Plaintiffs at the rates set forth in the Hospital Agreement and by “providing misleading statements about their willingness to resolve the [reimbursement] issue[].” (Compl. ¶¶ 62-65.) Plaintiffs’ FBPA claim should be dismissed because: (a) this business-to-business dispute is not covered by the FBPA, and (b) the FBPA does not apply to disputes regarding heavily-regulated industries such as insurance. A. The FBPA Does Not Apply to Business-to-Business Transactions. Plaintiffs’ FBPA claim should be dismissed because Defendants’ payments to Plaintiffs are private transactions between two businesses which are not covered by the FBPA. “[T]he purpose of the . . . FBPA is to protect consumers against that limited class . . . of consumer transactions and consumer acts or practices in trade or commerce which involve unfair and deceptive practices within the consumer marketplace.” Brogdon ex rel. Cline v. Nat’l Healthcare Corp., 103 F. Supp. 2d 1322, 1336 (N.D. Ga. 2000) (emphasis added). “Consumer acts or practices’ means acts or practices intended to encourage consumer transactions . . . primarily for personal, family, or household purposes.” Id. at 805 (quoting O.C.G.A. §§ 10- 1-392(a)(3), (a)(2.1)) (emphasis added). Because “recovery under the [FBPA] Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 12 of 26 - 13 - requires at least that the plaintiff be a consumer,” the FBPA does not apply to “essentially private transactions” between businesses. O’Brien v. Union Oil Co. of Calif., 699 F. Supp. 1562, 1570 (N.D. Ga. 1988); accord Saulsberry v. Morinda, Inc., 2008 WL 416933, at *3 (N.D. Ga. Feb. 13, 2008). Plaintiffs allege that they dealt with Defendants in their capacity as businesses, not as consumers. (See, e.g., Compl. ¶¶ 6-9, 15, 18, 20, 24-29.) Because the claims and payments at issue “were for business, not for personal, household, or family, purposes,” Plaintiffs’ FBPA claim should be dismissed. See Pasternak & Fidis, P.C. v. Recall Total Info. Mgmt., Inc., 95 F. Supp. 3d 886, 909 (D. Md. 2015) (dismissing FBPA claim premised on private transactions between law firm and company specializing in document storage because the transactions were “not for personal, household, or family[] purposes”); Wingate Inns Int’l, Inc. v. Swindall, 2012 WL 5252247, at *5-6 (D.N.J. Oct. 23, 2012) (dismissing FBPA claim stemming from sale of hotel business; “offending statements were [not] disseminated to the public” and thus not aimed at the “consumer marketplace”).4 4 Courts construing similar consumer protection laws of other states have recognized that payment disputes between medical providers and health insurers are “in the nature of a private dispute” that do not implicate consumers. See, e.g., Josephson v. United Healthcare Corp., 2012 WL 4511365, at *8 (E.D.N.Y. Sept. 28, 2012) (dismissing claim under New York’s consumer protection statute); Mbody Minimally Invasive Surgery, P.C. v. Empire Healthchoice HMO, Inc., 2014 WL 4058321, at *7 (S.D.N.Y. Aug. 15, 2014) (same). Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 13 of 26 - 14 - B. The FBPA Does Not Apply to Regulated Areas Such As Insurance. Georgia’s “legislature ‘intended that the . . . FBPA have a restricted application only to the unregulated consumer marketplace and that the FBPA not apply in regulated areas of activity, because regulatory agencies provide protection or the ability to protect against the known evils in the area of the agency’s expertise.’” Brogdon, 103 F. Supp. 2d at 1336. “Accordingly, the FBPA does not apply in extensively regulated areas of the marketplace such as . . . insurance transactions.” Id. at 1336; accord Ferguson v. United Ins. Co. of Am., 293 S.E.2d 736, 737 (Ga. Ct. App. 1982) (“[I]nsurance transactions are among those types of transactions which are exempt from the [FBPA].”). Plaintiffs’ FBPA claim falls squarely within this exemption, as Plaintiffs allege that this dispute stems entirely from insurance transactions among a provider and “health insurers and health coverage providers.” (See Compl. ¶ 10, 15-18; id. ¶ 29 (“Instead of meeting their obligations under the specific language of the Hospital Agreement . . . Defendants have provided reimbursement to Plaintiffs for covered medical services which were rendered to their insureds, at different amounts, significantly lower than what was required.”). Further, the subject matter of this dispute, reimbursement for medical care, is extensively regulated by state and federal statutes and regulations and other applicable rules. As such, Plaintiffs’ Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 14 of 26 - 15 - claims cannot be asserted under the FBPA and must be dismissed. See Brogdon, 103 F. Supp. 2d at 1336 (dismissing FBPA claim because the defendants’ “long- term care facility participates in the Medicare and Medicaid Programs, the degree of care provided to plaintiffs is regulated by state and federal agencies”); James v. Bank of Am., N.A., 772 S.E.2d 812, 816 (Ga. Ct. App. 2015) (dismissing FBPA claim because the transactions “are regulated by both state and federal law”). IV. Plaintiffs’ Fraud Claim (Count Three) Fails Because Plaintiffs Have Not Plead an Actionable Fraud Claim. Plaintiffs allege that Defendants defrauded them by making misrepresentations about past and future payments under the Hospital Agreement to induce Plaintiffs to perform and continue performing medical services to Defendants’ members. (See, e.g., Compl. ¶¶ 70-79.) In particular, Plaintiffs allege that Defendants fraudulently misrepresented that they would make and have made “reasonable and appropriate payments” to Plaintiffs for medical services, and that they would investigate and fix any purported issues causing Defendants to make allegedly deficient payments. (Id.) Plaintiffs allegedly relied on Defendants’ representations and were damaged when they received less money than they expected. (Id. ¶ 79.) Plaintiffs’ fraud claim, however, should be dismissed because (a) the claim is based upon a purported breach of a promise to pay amounts required by the Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 15 of 26 - 16 - Hospital Agreement and not some independent legal duty; and (b) Plaintiffs do not plead their fraud claim with particularity necessary to satisfy Rule 9(b)’s heightened pleading requirements. A. Plaintiffs’ Fraud Claim Fails As a Matter of Law Because It Is Based on Performance of Promises Arising from the Hospital Agreement. “Georgia Courts have consistently held that mere failure to perform a contract does not constitute a tort. A tort claim will only lie where the defendant breaches some independent duty imposed by law.” City of Monroe, Ga. v. U.S. Bank Nat’l Ass’n, 2015 WL 12867019, at *3 (N.D. Ga. Feb. 4, 2015) (dismissing plaintiff’s fraud claim that was based upon a purported breach of a contractual duty) (internal quotations omitted); see also Milks v. Software AG USA, Inc., 2010 WL 11440937, at *7-8 (N.D. Ga. Apr. 13, 2010) (dismissing fraud claim where the defendant allegedly “falsely represented that [the plaintiff’s] compensation for the deal would be based on the [contract] and that [the defendant] knew at the time it entered into the [contract] . . . that it would not compensate him according to the terms of the [contract]”). Here, Plaintiffs allege that they performed and continued to perform under the Hospital Agreement based on Defendants’ representations that they “would make reasonable and appropriate payments to [them] for medical services provided to covered patients.” (Compl. ¶¶ 70-77.) Plaintiffs further allege that Defendants Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 16 of 26 - 17 - breached the Hospital Agreement by failing to live up to these promises. (Id. ¶¶ 49, 76) (alleging that Defendants breached the Hospital Agreement by “failing and/or willfully refusing to make reasonable and appropriate payments to Plaintiff[s] as required by [the Contract]”). Plaintiffs’ fraud theory similarly is based upon this same duty, which was a contractual promise to pay Plaintiffs “reasonable and appropriate payments to Plaintiff[s] for medical services provided to covered patients . . .” (Id.) Plaintiffs’ fraud claim is not based upon any duty arising outside of the contract. Thus, the claim should be dismissed. See City of Monroe, 2015 WL 12867019, at *3. B. Plaintiffs Fail to Allege Their Fraud Claim with Particularity. Even if Plaintiffs’ fraud claim was based upon a duty arising outside of the contract, their claim still should be dismissed because Plaintiffs have not pled sufficient facts to support such a claim. Federal Rule of Civil Procedure 9(b) requires that fraud claims be pled with particularity. Lopez v. Bank of Am., N.A., 2013 WL 3878952, at *5 (N.D. Ga. July 26, 2013). Rule 9(b) is satisfied if the complaint alleges “(1) precisely what statements were made in what documents or oral representations . . . (2) the time and place of each such statement and the person responsible for making . . . same, [] (3) the content of such statements and the Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 17 of 26 - 18 - manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.” Id. Plaintiffs fail to satisfy Rule 9(b) for three reasons. First, Plaintiffs do not identify any precise statements by Defendants, either oral or written. Instead, Plaintiffs allege generally that Defendants made various misrepresentations without specifying any particular statements or how they were communicated to Plaintiffs. (Compl. ¶¶ 70-75.) These vague allegations fail to satisfy Rule 9(b). See Centennial Bank v. Noah Grp., LLC, 445 F. App’x 277, 278-79 (11th Cir. 2011) (affirming dismissal of fraud claim because the plaintiff failed to allege “how [the fraudulent statements] were communicated (orally or in which documents)”); West v. Ocwen Loan Servicing, LLC, 2014 WL 12479992, at *5 (N.D. Ga. June 25, 2014) (dismissing fraud claim for the plaintiff’s failure to plead “precisely what statements or omissions were made”). Second, Plaintiffs do not distinguish between the two defendants in the Complaint or identify the specific person(s) who made the allegedly fraudulent statements. This “group pleading” runs afoul of Rule 9(b). See Henderson v. Sun Pharm. Indus., 2011 WL 4024656, at *6 (N.D. Ga. Jun. 9, 2011) (dismissing fraud claim for the plaintiff’s failure to distinguish between defendants or specify who made the statements); Harris v. F.D.I.C., 885 F. Supp. 2d 1296, 1310 (N.D. Ga. 2012) (same). Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 18 of 26 - 19 - Third, Plaintiffs do not specify the time or location of the alleged fraudulent statements. See Centennial, 445 F. App’x at 278-79 (dismissing fraud claim for the plaintiff’s failure to allege “where the fraudulent statements were made” or “when the statements were made”); West, 2014 WL 12479992, at *5 (same). Accordingly, Plaintiffs’ fraud claim should be dismissed. V. Plaintiffs’ Injunction Claim (Count Four) Should Be Dismissed. Count Four of the Complaint asserts a cause of action for an “interlocutory injunction, preliminary injunction & permanent injunction” based on Defendants’ purported failure to reimburse Plaintiffs. (Compl. ¶¶ 83-91.) This claim should be dismissed because an injunction is a remedy, not a separate cause of action. Moreover, Plaintiffs’ monetary loss does not qualify as “irreparable harm,” a necessary requirement for injunctive relief. A. An Injunction Is a Form of Relief, Not a Separate Cause of Action. The Eleventh Circuit has made clear that a suit for injunction must be based on some underlying claim, stating: [A] traditional injunction5 must be predicated upon a cause of action, such as nuisance, trespass, the First Amendment, etc., regarding which a plaintiff must show a likelihood or actuality of success on the merits. 5 A “traditional injunction” is an injunction that “may be issued as either an interim or permanent remedy for certain breaches of common law, statutory, or constitutional rights. . . . [S]uch injunctions fall within the long-recognized, inherent equitable powers of the court.” Klay, 376 F.3d at 1097. Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 19 of 26 - 20 - There is no such thing as a suit for a traditional injunction in the abstract. For a traditional injunction to be even theoretically available, a plaintiff must be able to articulate a basis for relief that would withstand scrutiny under Fed. R. Civ. P. 12(b)(6) (failure to state a claim). Klay v. United Healthgroup, Inc., 376 F.3d 1092 1097 (11th Cir. 2004) (emphasis added) (reversing district court’s grant of an injunction). Flouting this requirement, Plaintiffs have fashioned their claim for an injunction as a standalone count in the Complaint. (See generally Compl. ¶¶ 83- 91.) Although Count Four repeats some of the allegations from the breach of contract claim in Count One, Plaintiffs do not expressly state the underlying cause of action for which they seek injunctive relief. Because an injunction is a form of relief, and not a separate claim, Count IV should be dismissed. See Forum Healthcare Grp., Inc. v. Ctrs. for Medicare & Medicaid Servs., 495 F. Supp. 2d 1321, 1326-27 (N.D. Ga. 2007) (dismissing the plaintiffs’ standalone claim for an injunction because they “failed to identify any cause of action or independent legal right that [the] [p]laintiffs contend [that the] [d]efendants have violated”).6 6 To the extent that Count Four purports to seek injunctive relief for Defendants’ alleged breach of contract, dismissal is also appropriate because Count Four is duplicative of Count One. (See Compl. at p. 13, Wherefore Clause (on breach of contract claim, seeking “any and all other relief to which Plaintiff may be justifiably entitled under the law including, but not limited to, other injunctive relief as may be appropriate”) (emphasis added); Eisenberg v. Shendell & Assocs., P.A., 2011 WL 1233253, at *5 (S.D. Fla. Mar. 31, 2011) (dismissing claim with prejudice because it was “merely duplicative” of another claim in the complaint). Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 20 of 26 - 21 - B. Plaintiffs Cannot Demonstrate Irreparable Harm Because Monetary Damages Are Adequate to Compensate for Any Alleged Injury. Plaintiffs’ claim for an injunction should also be dismissed because Plaintiffs do not allege that they have suffered or will suffer irreparable injury. A plaintiff seeking injunctive relief must demonstrate that it has suffered or will suffer irreparable harm if the injunction does not issue. See eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006) (“[A] plaintiff seeking a permanent injunction must . . . demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury . . .”). “Monetary injury alone does not justify an injunction.” Bellam v. Clayton Cty. Hosp. Auth., 758 F. Supp. 1488, 1494 (N.D. Ga. 1990) (citing Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983)); see also Cate, 707 F.2d at 1189 (“An injury is ‘irreparable’ if it cannot be undone through monetary remedies.”). Plaintiffs seek an injunction “to ensure that the Defendants properly reimburse Plaintiff for all care that their physicians and staff provide.” (Compl. ¶ 90.) In other words, Plaintiffs seek monetary damages. Because Plaintiffs can be fully compensated for their alleged injury, they are not entitled to either permanent or preliminary injunctive relief. See Bellam, 758 F. Supp. at 1495 (citing Sampson v. Murray, 415 U.S. 61, 92 n.68 (1974)) (denying the plaintiffs’ request for a Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 21 of 26 - 22 - preliminary injunction because “[a] temporary loss of income . . . does not support finding an irreparable injury”). VI. Plaintiffs’ Claims for Non-Payment Regarding ERISA-Governed Benefit Plans Are Preempted by ERISA. As discussed at length in Defendants’ removal petition, Plaintiffs’ claims concerning the non-payment of reimbursement claims are completely preempted by ERISA § 502(a). See Dkt. No. 1. In “the Eleventh Circuit, if a claim is completely preempted, it must also be defensively preempted” pursuant to ERISA § 514(a) and dismissed. See SP Acquisition Corp. v. Beaulieu Grp., LLC, 2013 WL 11319835, at *2 (N.D. Ga. Oct. 22, 2013). “ERISA’s express preemption clause, § 514(a), provides that ERISA preempts ‘any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.’” Id. (quoting 29 U.S.C. § 1144(a)). Both common law and statutory claims may be preempted. Swerhun v. Guardian Life Ins. Co. of Am., 979 F.2d 195, 198-99 (11th Cir. 1992). When a court finds ERISA preemption, the state law claims should be dismissed. Ferree v. Life Ins. Co. of N. Am., 2006 WL 2025012, at *6 (N.D. Ga. July 17, 2006). “The phrase ‘relate to’ [in § 514(a)] has been broadly interpreted to preempt state-law claims having ‘a connection with or reference to’ an employee benefits plan.” Beaulieu, 2013 WL 11319835, at *2. Further, “state-law claims ‘relate to’ Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 22 of 26 - 23 - an ERISA plan for preemption purposes whenever the alleged conduct at issue is intertwined with the refusal to pay benefits.” Id. Although Plaintiffs studiously avoid identifying any of the alleged plans that they are suing under, ApolloMD specifically alleges in the Prior Action, which involves the same claims (breach of contract, fraud, and violation of the FBPA) by the same plaintiffs (ApolloMD and its affiliates) against the same defendants (BCBSHP and BCBSGA) for the same time period and the same conduct (underpaying and denying claims), that ApolloMD is suing under ERISA plans and that it obtained assignments from its patients to assert its ERISA claims. (Prior Compl. ¶ 113) (“Plaintiff brings this Complaint as an assignee of its patients’ rights to sue under ERISA as participants or beneficiaries.”). It logically follows that this action, which seeks to recover for the same claims, is similarly asserting claims related to plans governed by ERISA. Accordingly, these state law claims are completely preempted by ERISA to the extent they seek recovery for the denial of claims, and should be dismissed. Plaintiffs’ breach of contract and injunction claims allege, in part, that Defendants entered into the Hospital Agreement with Plaintiffs, and breached that agreement by denying claims rendered to Defendants’ members. (See Compl. ¶¶ 29-30; 49, 85.) An interpretation of the members’ ERISA benefit plans is required Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 23 of 26 - 24 - to adjudicate these claims because the plans specify when a member is entitled to care, and the member’s share of the costs. Accordingly, these claims are preempted by ERISA and should be dismissed. Beaulieu Group, LLC, 2013 WL 11319835, at *3 (holding that a breach of contract claim asserted by hospital against insurer was preempted by ERISA because payment under the contract requires interpretation of the individual ERISA plans). Plaintiffs’ FBPA and fraud claims similarly implicate the members’ ERISA benefit plans and are thus preempted. Plaintiffs’ FBPA claim asserts that Defendants are “hiding reimbursement . . . acting in an intentional fashion to deny appropriate and lawful reimbursement . . . all in violation of their respective contracts and other applicable rules governing such reimbursement.” (Compl. ¶ 62.) Plaintiffs’ fraud claim alleges that “Defendants willfully refused to make reasonable and appropriate payments to Plaintiff for medical services provided.” (Id. ¶ 76.) Although couched as common law and statutory consumer fraud claims, these claims seek damages for the denial of coverage and other benefits, which cannot be resolved without reference to the relevant ERISA plans governing the entitlement to such benefits. Plaintiffs even allude to the fact that ERISA governs their FBPA claim by alleging that Defendants’ conduct violates “other applicable rules governing such reimbursement” which includes the rules found in the ERISA Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 24 of 26 - 25 - benefit plans. (Id. ¶ 62.) Accordingly, these claims are also preempted and should be dismissed. See Nat’l Renal Alliance, LLC v. Blue Cross and Blue Shield of Ga., Inc., 598 F. Supp. 2d 1344, 1360-61 (N.D. Ga. 2009) (dismissing fraud and FBPA claims as preempted by ERISA where “the court would be required to analyze that [ERISA] policy” to adjudicate the claim). CONCLUSION Defendants respectfully request that the Court grant their motion and dismiss the Complaint with prejudice, or alternatively consolidate this action with the Prior Action, and grant such additional relief as the Court deems just and appropriate. Respectfully submitted, this 23rd day of June, 2017. REED SMITH LLP Martin J. Bishop (application for admission pro hac vice to be filed) Bryan M. Webster (application for admission pro hac vice to be filed) 10 S. Wacker Drive, 40th Floor Chicago, IL 60606 Tel: 312.207.1000 Fax: 312.207.6400 Email: mbishop@reedsmith.com Email: bwebster@reedsmith.com TROUTMAN SANDERS LLP /s/ Jaime L. Theriot Jaime L. Theriot (GA Bar No. 497652) 600 Peachtree Street, NE, Suite 5200 Atlanta, Georgia 30308 Tel: 404.885.3534 Fax: 404.962-6748 Email: jaime.theriot@troutmansanders.com Attorneys for Defendants Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 25 of 26 - 26 - LOCAL RULE 7.1D CERTIFICATION Counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font, in compliance with Local Rule 5.1B. This 23rd day of June, 2017. /s/ Jaime L. Theriot Jaime L. Theriot (GA Bar No. 497652) jaime.theriot@troutmansanders.com * * * * * CERTIFICATE OF SERVICE I hereby certify that the foregoing Brief in Support of Defendants’ Motion to Dismiss Complaint was electronically filed with the Clerk of Court using the CM/ECF system, which automatically serves notification of such filing to all counsel of record. This 23rd day of June, 2017. /s/ Jaime L. Theriot Jaime L. Theriot (GA Bar No. 497652) jaime.theriot@troutmansanders.com Case 1:17-cv-02264-RWS Document 5-1 Filed 06/23/17 Page 26 of 26 Exhibit 1 Case 1:17-cv-02264-RWS Document 5-2 Filed 06/23/17 Page 1 of 39 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF THE STATE OF GEORGIA APOLLOMD BUSINESS ) SERVICES, L.L.C., individually, ) And as a representative of and for ) all, of its affiliated and/or subsidiary ) entities/companies, which are operated ) by/under/through, ApolloMD, et.al., ) ) Plaintiffs, ) ) vs. ) CASE NO.: 1:16-CV-04814-RWS ) AMERIGROUP CORPORATION ) (DELAWARE); BLUE CROSS BLUE ) SHIELD HEALTHCARE PLAN OF ) GEORGIA, INC.; BLUE CROSS AND ) BLUE SHIELD OF GEORGIA, INC.; ) HEALTH VALUE MANAGEMENT, INC. ) d/b/a CHOICECARE NETWORK; ) HUMANA EMPLOYERS HEALTH PLAN ) OF GEORGIA, INC.; HUMANA HEALTH ) PLAN, INC.; HUMANA INSURANCE ) COMPANY; PEACH STATE HEALTH ) PLAN, INC.; UNITEDHEALTHCARE OF ) GEORGIA, INC; and, ) UNITEDHEALTHCARE COMMUNITY ) PLAN OF GEORIGA, INC., ) ) Defendants. ) AMENDED COMPLAINT FOR LEGAL DAMAGES, DEMAND FOR TRIAL BY JURY AND DEMAND FOR EQUITABLE, DECLARATORY AND INJUNCTIVE RELIEF COME NOW THE PLAINTIFF, ApolloMD Business Services, L.L.C., and its affiliates/subsidiaries, et al., (collectively, “ApolloMD” or “Plaintiff”), and pursuant to Ruile 15 (b) of the Federal Rules of Civil Producure hereby file this Amended Complaint for Legal Damages, Demand for Trial by Jury, and Demand for Equitable, Declaratory and Injunctive Relief, as to Defendants and/or their affiliated companies, stating as follows: Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 1 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 2 f 9 2 I. JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction under 28 U.S.C. § 1331, because all stated federal causes of action arise under the laws of the United States. 2. Venue in this Court is proper under 28 U.S.C. § 1391(e)(1), because substantially all of the Defendant entities conduct business in the Northern District of Georgia, and a substantial part of the events or omissions giving rise to the claims occurred in the Northern District of Georgia. Plaintiff, ApolloMD Business Services, L.L.C., is a domiciled resident of the Northern District of Georgia, with its registered address being 5665 New Northside Drive, Atlanta, Georgia, 30028. 3. This Complaint is timely filed under 28 U.S.C. § 2401(a). II. PARTIES 4. ApolloMD Business Services, L.L.C. (“ApolloMD”), is a Limited Liability Company, lawfully organized and created within the State of Georgia. Plaintiff is domiciled within, and is a legal resident of, the Northern District of Georgia, with its registered address being 5665 New Northside Drive, Atlanta, Georgia, 30028. 5. Plaintiff staffs the emergency departments and provides various staffing needs at numerous hospitals throughout the United States, including a significant number of emergency departments at a number of hospitals located specifically within the City of Atlanta and the Northern District of Georgia. Such hospitals are located within the jurisdiction of this Honorable Court. 6. Defendants, as named and delineated herein, are insurers, health coverage providers, and/or Medicaid Care Management Organization (CMO) entities, all of whom engage Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 2 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 3 f 9 3 in the unfair and illegal practices delineated herein throughout the United States, including the State of Georgia. 7. Upon information and belief, Amerigroup Corporation (Delaware) is a corporation, lawfully organized and created within the State of Delaware, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Virginia, with its registered principal office address being 4425 Corporation Lane, Virginia Beach, Virginia 23462. 8. Upon information and belief, Blue Cross Blue Shield Healthcare Plan of Georgia, Inc. is a corporation, lawfully organized and created within the State of Georgia, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Indiana, with its registered principal office address being 120 Monument Circle, Indianapolis, Indiana 46204. 9. Upon information and belief, Blue Cross and Blue Shield of Georgia, Inc. is a corporation, lawfully organized and created within the State of Georgia, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Indiana, with its registered principal office address being 120 Monument Circle, Indianapolis, Indiana 46204. 10. Upon information and belief, Health Value Management, Inc. d/b/a ChoiceCare Network is a corporation, lawfully organized and created within the State of Delaware, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Kentucky, with its registered principal office address being 500 West Main Street, Louisville, Kentucky 40202. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 3 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 4 f 9 4 11. Upon information and belief, Humana Employers Health Plan of Georgia, Inc. is a corporation, lawfully organized and created within the State of Georgia, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Georgia, with its registered principal office address being 1200 Ashwood Parkway, Suite 250, Atlanta, Georgia 30338. 12. Upon information and belief, Humana Health Plan, Inc. is a corporation, lawfully organized and created within the State of Kentucky, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Kentucky, with its registered principal office address being 321 West Main Street, 12th Floor, Louisville, Kentucky, 40202. 13. Upon information and belief, Humana Insurnace Company is a corporation company, lawfully organized and created within the State of Wisconsin, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Kentucky, with its registered principal office address being 500 West Main Street, Louisville, Kentucky 40202. 14. Upon information and belief, Peach State Health Plan, Inc. is a corporation, lawfully organized and created within the State of Georgia, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Missouri, with its registered principal office address being 7700 Forsyth Boulevard, Suite 800, St. Louis, Missouri 63105. 15. Upon information and belief, Unitedhealthcare of Georgia, Inc., is a corporation, lawfully organized and created within the State of Georgia, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 4 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 5 f 9 5 State of Georgia, with its registered principal office address being 3720 Davinic Court, Suite 300, Norcross, Georgia 30092. 16. Upon information and belief, Unitedhealthcare Community Plan of Georgia, Inc., is a corporation, lawfully organized and created within the State of Georgia, doing business in the State of Georgia. This Defendant is domiciled within, and is a legal resident of, the State of Georgia, with its registered principal office address being 3720 Davinic Court, Suite 300, Norcross, Georgia 30092. 17. Defendants have engaged, and continue to engage, in these activities with intent to damage Plaintiff. III. BACKGROUND SUMMARY AND FACTS 18. ApolloMD staffs and manages various groups of professional medical providers who provide medical services in emergency medicine and other medical specialties. Plaintiff, through its management relationship with these providers, bills and collects payment on behalf of these providers. 19. Plaintiff is informed and believes, and upon said information and belief, alleges that Defendants have subjected, and continue to subject, Plaintiff to a pattern of unfair and illegal reimbursement practices. In this action Plaintiff is complaining about the reimbursement practices of the Defendants during the past six (6) years, starting on December 30, 2010. 20. Defendants are insurance carriers, health coverage plans/providers, or similar such entities, various Medicaid Care Management Organizations (“CMOs”) who are contracted with a Medicaid plan, and are responsible for reimbursing Plaintiff for medical services which Plaintiff’s providers rendered to Defendants’ insureds or covered members. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 5 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 6 f 9 6 21. Defendants are liable for systemically underpaying claims submitted by Plaintiff for services rendered by intentionally down-coding, retroactive coding, erroneous coding, or otherwise failing to reimburse Plaintiff at the required legal rate, or otherwise denying tens of thousands of claims, which Plaintiff properly submitted for payment. 22. These improper and illegal activities involve the systematic and intentional underpayment or outright denial of claims submitted by Plaintiff, which have been processed for Defendants’ insureds and/or covered patients who received medical treatment by Plaintiff’s contracted medical providers. A. Claims Reimbursement Process 23. When a patient sustains injuries in a car accident, suffers a heart attack, or is otherwise seriously ill, injured, or requires emergent care, he or she is most often transported to the nearest emergency department and treated by an emergency physician. This physician is often associated with, working through, and/or contracted with Plaintiff. 24. Pursuant to all applicable State and Federal law, the emergency physician on duty in the emergency department is required to, and will, treat the patient immediately upon presentation, without regard to the patient’s ability to pay. 25. While the physician is bound by his or her ethical duty to render professional emergent care, he or she is similarly bound to provide said care pursuant applicable state and federal laws, including EMTALA, Emergency Medical Treatment & Labor Act’ (EMTALA), 42 U.S.C.S. § 1395dd, which specifically requires immediate and timely stabilizing treatment for emergency medical conditions, without regard to the patient’s ability to pay. 26. Where Defendants insure that same patient, or if that patient is covered by Medicaid or any other similar and applicable health coverage provider, Plaintiff submits a bill to Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 6 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 7 f 9 7 that that health insurance or other coverage provider, requesting that said provider reimburse the physician for the services said physician rendered to the patient. 27. This bill is separate and distinct from the bill generated by the hospital or any other medical provider who treated the patient during the patient’s visit to the hospital. 28. Defendants named herein, as part of their pattern of unlawful and illegal reimbursement practice, will use any manner of systematic and organized deceitful, overt acts to reimburse Plaintiff at an amount substantially lower than the true and actual amount of the properly submitted bill, without regard to their legal requirements. B. Defendant’s Illegal Conduct and Business Practice 29. A patient usually presents to the emergency room with conditions a reasonable and prudent person would consider as critical, life altering, or an emergency medical crisis. As stated above, Plaintiff’s emergency room physician provides emergency treatment to the presenting patient regardless of the patient’s ability to pay. Plaintiff ultimately prepares a bill or claim for its contracted physician’s services, and submits said bill to Defendants for processing and payment. Said bill or claim form contains a discharge diagnosis for the treated and covered patient. 30. Defendants, as stated above, never reimburse Plaintiff for the actual billed amount. This is consistently true regardless of what kind of insurance plan or other health coverage the individual patient might have in place. This is consistently true no matter which of the Defendants health care coverage providers is involved in the payment process. 31. Defendants universally utilize all manner of illegal methods (as set forth below) to lower the ultimate amount of financial reimbursement they send to Plaintiff. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 7 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 8 f 9 8 32. Again, this is true even though the emergency medical services were rendered to the patient in good faith, often under a situation of crisis, and even though such services perhaps resulted in the patient’s life being saved. 33. Defendants arbitrarily decide exactly what amount they will pay as reimbursement to the emergency physician. They exercise unilateral and complete control over the amount of reimbursement. 34. Defendants’ determination of this issue is without regard to the actual bill, which would be the amount due, absent Defendants’ illegal methodology, requirements and/or involvement. 35. In other words, Defendants unilaterally, and with indifference to the regulatory guidelines, determine the appropriate payment for services Plaintiff is required by law, to provide. It matters not that the bill may have been based at least in part, upon the value of the work, the effort undertaken, the time involved, or any other market forces, etc., but instead, Defendants decide on their own, and pursuant to their analysis and discretion, exactly what they will pay. 36. Defendants dictate the entire claim submission and claims payment process, and summarily adjudicate every issue in this regard to their favor. Defendants determine exclusively what they will pay, when they will pay, the manner in which they will pay, and the method they will follow in paying. They also delineate the exact and specific process that the emergency physician must follow to have any ultimate hope of any reimbursement of any kind. 37. Defendants indiscriminately determine, by their use of algorithm or software, exactly how they will handle and analyze these payments. Any perceived, alleged, or imagined failure on the part of Plaintiff in the overall billing process will result in an immediate denial of Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 8 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 9 f 9 9 payment, subject to an arcane and deliberate, dysfunctional appeals process. Defendants’ deliberate use and enforcement of a byzantine claim processing system, by design, effectively forces Plaintiff and similarly situated providers to expend an exorbitant amount of resources to appeal denials of payment for which Plaintiff is rightfully entitled. 38. In fact, any alleged or perceived failure of any kind on the part of Plaintiff, such as in the specific treatment selected, the paperwork submitted, the coding used, or literally anything else that the Defendants’ software, agent, or policies, envision as being appropriate, will result in the modification or denial of payment, and the emergency physician will be left with literally no option, other than a lengthy, difficult and completely convoluted appeals process, which is of almost no practical value in the real world. 39. Defendants are keenly aware of this fact. It is for this reason that they developed this convoluted and byzantine system, simply so as to enrich themselves. Defendants’ every intent is to keep the money which has been entrusted to them, rather than pay the lawful bills of the emergency physician, and any excuse they can use to deny the bill or lower the amount of reimbursement will result in the complete denial of the bill, or the extreme modification of payment, with little real recourse available to the emergency physician. 40. Defendants’ archaic claims processing software, algorithms, and individual claim processors care not whether the patient’s life was saved, nor whether the patient was pleased with the services provided. Defendants care not how long the physician worked, how hard the physician worked, nor really what results the physician obtained. Defendants’ claims processing guidelines and business models serve only to exact maximum profit at the expense of Plaintiff and similarly situated providers. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 9 of 34Case 1:17-cv-02264-RWS Document 5-2 il 6/23/ 10 of 39 10 41. This system process is designed to cause, has caused, and continues to cause, Plaintiff and other providers substantial financial damages. Said damages continue to mount. 42. Defendants, using the illegal methodologies and schemes as further set forth below, denied thousands of claims Plaintiff lawfully submitted for payment, underpaid voluminous amounts of claims to be determined in discovery, and caused Plaintiff financial damages to be determined in discovery. 43. Furthermore, Plaintiff is informed and believes, and upon said information and belief, alleges that Defendants have engaged, and continue to engage, in the patently unfair practice of denying lawful claims for reimbursement, after the fact, by claiming that the emergency department encounter itself was really never an actual emergency, and so, they belatedly argue that the patient should have sought treatment elsewhere, or under different circumstances. C. Defendant’s Violation of the Law 44. Plaintiff is informed and believes, and upon said information and belief, alleges that Defendants have engaged, and continue to engage, in a systematic practice of retroactively reclassifying emergency department encounters as “non-emergent”, and thereby, denying payment for the services which were rendered, even though such payment is rightfully owed in full. 45. Pursuant to the ‘Emergency Medical Treatment & Labor Act’ (EMTALA), 42 U.S.C.S. § 1395dd, the ‘Patient Protection and Affordable Care Act,’ 42 U.S.C. § 18001 et seq. (2010) and the Consolidated Omnibus Budget Reconciliation Act (COBRA), Plaintiff is obligated to provide certain medical evaluations and management services to patients who present to the hospital emergency department for emergency medical treatment and the Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 10 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 1 f 9 11 Defendants are liable, under the law, to reimburse such providers appropriately for the provision of such services to the patients who are covered. 46. Plaintiff’s physicians routinely provide professional emergency medical services to evaluate, treat and stabilize patients who present to hospital emergency departments where they provide service. Pursuant to the requirements of the EMTALA, et.al., such Plaintiff cannot and does not screen patients seeking emergency treatment to a) determine if they are covered by health insurance or any other type of similar health coverage plan; b) determine if they are Medicaid CMO beneficiaries, or c) otherwise inquire and/or make a determination about their ability to pay for the professional services to be rendered. 47. Instead, as required by EMTALA, et.al., ethical guidelines and professional duty, Plaintiff’s medical providers immediately evaluate, stabilize and treat patients who present to the hospital emergency departments without regard to their ability to pay for such services, and without any other precondition for treatment and stabilization. This unqualified access to emergency care is guaranteed by the Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010). 48. Pursuant to federal law, and/or Plaintiff’s contract with any health insurer or Defendants, Defendants must ensure that coverage, and payment, is provided for emergency services without regard to prior authorization or the emergency care provider’s contractual relationship with the organization or manager, and such action must comply with federal guidelines established in relation to coordination of post-stabilization care. 42 USC § 1396u- 2(b)(2)(B). 49. Further, pursuant to federal law, and/or any State’s contract with a Medicaid Care Management Organization (“MCO”), Defendants must ensure that coverage is provided for Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 11 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 2 f 9 12 emergency services without regard to prior authorization or the emergency care provider’s contractual relationship with the organization or manager, and again, must comply with federal guidelines established in relation to coordination of post-stabilization care. 42 USC § 1396u- 2(b)(2)(B). 50. Defendants may not arbitrarily, capriciously, or with callous indifference to Plaintiff’s and patient’s rights, define an emergency medical condition on the basis of a list of symptoms or diagnoses. Defendants’ use of software or algorithm to automatically down code or retroactively code conditions as non-emergent to allow Defendants to reimburse Plaintiff at a lower rate unjustly deprives Plaintiff and its physicians of the value of their services rendered to Defendants’ insured or covered patients. 51. Rather, the “prudent layperson” standard must be applied to the patient’s decision to seek emergency medical treatment. The treating provider alone is responsible for determining whether a given patient is stabilized and ready for either transfer or discharge. Defendants must accept this determination and accept responsibility for coverage and payment. 42 CFR § 438.114 52. Regardless of state laws, contractual agreements, or Medicaid health care delivery arrangements, hospital providers and Defendants administering claims for emergency medical treatment under the government sponsored Medicaid and Medicare programs are bound by EMTALA, found at sections 1866 and 1867 of the Social Security Act and implemented at 42 CFR 489.20 and 489.24. 53. Thus, Defendants’ illegal design to retroactively reclassify claims submitted by Plaintiff is unlawful, causing Plaintiff and other similarly situated providers substantial damages. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 12 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 3 f 9 13 54. Defendants’ use of software and algorithm to reclassify claims to circumvent and override physician judgment to unjustly enrich themselves at the expense of Plaintiff and other similarly situated providers is unconscionable. 55. EMTALA requires such hospitals having emergency departments to provide a medical screening examination to every individual who “comes to the emergency department” seeking examination or treatment, and when necessary, stabilizing treatment by qualified medical personnel or appropriate transfers for any individual determined to have an emergency medical condition. 56. Regarding compliance with these federal statutes, CMS has specifically cautioned states, Defendants, and the CMO’s with which they all contract, to be sensitive to the potential that methodologies intended to affect provider or beneficiary behavior in the emergency department, if not designed properly, could create provider EMTALA compliance issues. See CMCS Informational Bulletin, January 16, 2014. (See Exhibit “A” attached hereto). 57. Further, The Balanced Budget Act of 1997, originally set forth standards for Medicaid CMOs to follow in paying providers for claims for emergency medical services provided to persons covered under the Medicaid CMO plans. Soon thereafter, the US Department of Health and Human Services (“HHS”) Centers for Medicare and Medicaid Services (“CMS”) began issuing its interpretation of the meaning of the law through State Medicaid Director letters. 58. Generally, the letters describe the requirements for States to implement in their contracts with Medicaid CMOs. Several key points were clarified in the letters: (a) Emergency services were defined to mean a broad array of inpatient and outpatient services; Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 13 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 4 f 9 14 (b) a CMO is to look to the presenting diagnosis in determining whether a service constitutes an emergency medical condition according to the judgment of a prudent layperson; (c) a CMO is not to retroactively deny a claim for emergency services when the condition, which appeared prospectively to be potentially emergent under the prudent layperson standard, is later determined to be non-emergent; (d) prior authorization is not to be required for treatment of emergency medical conditions; (e) payers may approve (but not deny) coverage on the basis of an ICD code; and, (f) payers cannot deny coverage on the basis of ICD codes and then require the claim to be resubmitted as part of an appeals process. (See Exhibit “B” hereto attached). 59. On April 18, 2000, CMS issued a letter to State Medicaid Directors regarding mandatory coverage of emergency services by State Medicaid and Medicaid Managed Care Organizations (MCOs). (Attached as Exhibit “B”). 60. The letter sets forth, with specificity, the requirements of Medicaid CMOs to pay for claims when patients deem it necessary from the viewpoint of a prudent layperson to visit a hospital emergency department, and that such treatment must be reimbursed based on the presenting symptoms rather than MCOs making a retroactive determination of the level of service based upon the final diagnosis or ICD code. (See Exhibit “B” hereto attached). 61. There is a clear and express presumption that encounter visits coded with CPT 99283 and higher are appropriately deemed an emergency visit as defined by federal law. Such Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 14 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 5 f 9 15 encounters are not to be retroactively denied via mere allegation that the ultimate diagnosis was not a true emergency, and thus, avoid the Defendant’s payment obligations. 62. The attached CMS letter, states in pertinent part: “1. Federal law requires that MCOs must cover (i.e. pay for) emergency services without prior authorization; 2. Emergency services must be covered, regardless of where the enrollee obtains service; 3. An “emergency medical condition” is defined as: A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. (See 42 USC § 1396u-2(b)(2)(B)) 4. States are required to cover (i.e. pay for) emergency services in exactly the same manner as are MCOs. 5. Federal law requires that a Medicaid and CMO beneficiary be permitted to obtain emergency services immediately at the nearest provider when the need arises; 6. When the prudent layperson standard is met, no restriction may be placed on access to emergency care; 7. Limits on numbers of visits are not allowed; 8. Payers may not deny coverage solely on the basis of ICD codes; 9. Payers are barred from denying coverage on the basis of ICD codes and then requiring resubmission of the claim as part of an appeals process. This bar applies even if the process is not labeled as an appeal; 10. Whenever a payer (whether an MCO or a State) denies coverage or modifies a claim for payment, the determination of whether the prudent layperson standard has been met: a. must be based on all pertinent documentation, b. must be focused on the presenting symptoms (and not on the final diagnosis); and, c. must take into account that the decision to seek emergency services was made by a prudent layperson (rather than a medical professional). Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 15 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 6 f 9 16 11. We strongly believe that, unless an MCO or a State has a reason to believe that a provider is “up-coding” or engaging in activity violating program integrity, all claims coded as CPT 99283 through CPT 99285 are very likely to be appropriately regarded as emergency services for purposes of federal law and should be approved for coverage regardless of prior authorization. This should not be taken to imply that claims coded as CPT 99281 and CPT 99282 will not also meet the definition [of emergency services]; they may, but as opposed to those claims involving the higher CPT codes, there may be instances in which payers have a reasonable basis to disagree. (See CMS letter, attached as Exhibit “B”, Emphasis added). 63. In fact, many insurers have agreements with Plaintiff which specifically provide that an emergency medical service shall not be defined or limited based upon a list of diagnoses or symptoms. These contracts instead require the insurance companies to pay for all medically necessary emergency services until the member is stabilized and any screening examination performed to determine if an emergency medical condition exists is also a coverage requirement. 64. These contracts also require that payors, such as Defendants, base any coverage decision for emergency services on the severity of symptoms, at the time of the presentation, and also confirm that the Defendants shall cover all emergency services when the presenting symptoms are of sufficient severity to constitute an emergency medical condition from the judgment of a prudent layperson. 65. Plaintiff is informed and believes, and based upon said information and belief, alleges that Defendants continue to pay a significant number of claims with CPT codes 99283- 99285, at the triage rate, rather than the customary emergency rate at which they were billed and submitted. 66. Plaintiff is informed and believes, and upon said information and belief, alleges that a substantial percentage of these claims were eventually paid at the properly billed emergency room rate, but only after the payor was asked to reconsider, or a formal appeal was pursued, etc. This practice is patently illegal under federal law. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 16 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 7 f 9 17 67. The law is clear that Defendants may not routinely deny the level of service deemed appropriate by the medical provider and require appeal and submission of individual medical records as an administrative methodology to underpay claims for emergency services. 68. Because Defendants engage in a pattern and/or practice of routinely denying or underpaying claims and requiring providers to exhaust all administrative remedies on a claim-by- claim basis, in illegal circumvention of federal law, they jeopardize the access to emergency care guaranteed by EMTALA, cause pecuniary damage to healthcare providers and render the grievance/appeals process futile. 69. Plaintiff is informed and believes, and upon said information and belief, alleges that Defendants, by their unlawful design and as a part of their operating practice, deliberately operate a claim submission, payment, and appeal process so byzantine, inconsistent, inefficient, and arbitrary to unjustly enrich themselves by creating an unreasonable and unlawful administrative burden on Plaintiff. In so doing, Defendants schemed to deprive Plaintiff of earned fees by erroneously underpaying or denying claims, then forcing Plaintiff to make a business decision to either expend countless hours of human and financial resources (which outweighs the value of the individual claim) to appeal thousands of claims ranging from de minimis amounts, to hundreds of dollars, individually. No provider, including Plaintiff, has the resources to pursue each and every individually denied claim. Thus, most providers abandon the appeal process, and Defendants continue to unjustly enrich themselves with monies they owe Plaintiff and would be required to pay, but for their unlawful design and schemes. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 17 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 8 f 9 18 V. COUNT I-VIOLATION OF: EMERGENCY MEDICAL TREATMENT & LABOR ACT (EMTALA), THE ‘PATIENT PROTECTION AND AFFORDABLE CARE ACT, (ACA) and THE CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT’ (COBRA), et.al. 70. Plaintiff hereby adopts and reavers all of the preceding paragraphs, numbered One through Sixty-eight (Paragraphs No.: 1-67), as if fully set out and reavered herein in full. 71. As set forth herein, in the course of their work, Plaintiff has staffed, and continues to staff, emergency departments with expertly trained emergency physicians. These physicians skillfully examine and treat patients who present themselves in the various emergency departments, believing they require emergency care. 72. Following said care and treatment, Plaintiff submits the appropriate bills for payment to the Defendants, because Defendants were/are, in fact, to be responsible for such bills as a result of the health coverage that they provided to their respective members/insureds/patients. 73. Pursuant to the “Emergency Medical Treatment & Labor Act” (EMTALA), 42 U.S.C.S. § 1395dd, the "Patient Protection and Affordable Care Act,” (ACA), 42 U.S.C. § 18001 et seq. (2010) and the Consolidated Omnibus Budget Reconciliation Act (COBRA), Plaintiff is obligated to provide certain medical evaluations and management services to these patients that present to the hospital emergency department for emergency medical treatment and the Defendants, whatever type entities they may claim to be, are liable under these laws, and are liable under their respective contracts, to reimburse such providers appropriately for provision of such services to the patients who are covered. 74. Plaintiff’s physicians provided, and continue to provide, professional emergency medical services to evaluate, treat and stabilize patients who present to hospital emergency departments where they provide services. Pursuant to the requirements of the EMTALA, et.al., Plaintiff cannot and does not screen patients seeking emergency treatment to: a) determine if Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 18 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 9 f 9 19 they are covered by health insurance; b) determine if they are Medicaid CMO beneficiaries or c) otherwise inquire and/or make a determination about their ability to pay for the professional services rendered. 75. Instead, as required by EMTALA, et al., ethical guidelines and professional duty, Plaintiff’s providers evaluate, stabilize and treat patients who present to the hospital emergency departments without regard to their ability to pay for such services and without any other precondition for treatment and stabilization. This unqualified access to emergency care is guaranteed by the Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010). 76. Pursuant to federal law cited herein, and/or Plaintiff’s contract with any health insurer or Defendant named herein, Defendants must ensure that coverage is provided for emergency services without regard to prior authorization or the emergency care provider’s contractual relationship with the organization or manager, and such action must comply with federal guidelines established in relation to coordination of post-stabilization care. 42 USC § 1396u-2(b)(2)(B). 77. Further, pursuant to federal law, and/or any State’s contract with a Medicaid Care Management Organization (“MCO”), Defendants must ensure that coverage is provided for emergency services without regard to prior authorization or the emergency care provider’s contractual relationship with the organization or manager, and again, must comply with federal guidelines established in relation to coordination of post-stabilization care. 42 USC § 1396u- 2(b)(2)(B). 78. Nonetheless, instead of reimbursing Plaintiff pursuant to the bills which have been submitted for the services which were provided, Defendants retroactively categorize the emergency visits, after the fact, as non-emergent, and have either denied the claims outright, or Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 19 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 20 f 9 20 instead, have underpaid such claims by reimbursing the emergency medical providers at a reduced non-emergent “triage” rate, in express violation of federal statutes, their respective contracts, and other applicable rules governing such reimbursement. 79. By engaging in this illegal and systematic activity, Defendants flagrantly disregarded long-standing federal law, and/or their own contracts, both of which require appropriate and reasonable reimbursement for such treatment rendered for the evaluation and management of such conditions which are deemed emergent by patients under the “prudent layperson” standard. 80. Moreover, Defendants engaged, and continue to engage, in these activities knowingly and willfully, with every intent of damaging Plaintiff. 81. As such, Defendants are liable for intentionally violating EMTALA, the ACA, and COBRA, and further, for breaching their own contracts with Plaintiff, if applicable, and thus, causing substantial damages to Plaintiff. 82. As a result of their intentional and wrongful actions, as set forth and delineated herein, Defendants caused Plaintiff damages. VI. COUNT II - ILLEGAL AND UNFAIR MINIMIZATION OF REIMBURSEMENT OWED FOR “OUT-OF-NETWORK” CARE 83. Plaintiff hereby adopts and reavers all of the preceding paragraphs, numbered One through Eighty (Paragraphs No.: 1-80), as if fully set out and reavered herein in full. 84. With regard to the amount of reimbursement allowed and the analysis for determining same, health insurers such as Defendants, and other payors, create networks of health care providers in which the insurer/payor negotiates rates for particular services with providers in advance. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 20 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 1 f 9 21 85. Thereafter, when a patient receives health care from a provider in the network, the patient’s out-of-pocket co-insurance will be less than if the patient received care from a provider outside the insurer’s network. 86. For a patient who requires emergency care, however, he or she is usually transported to the nearest hospital emergency department to receive immediate care. The patient will often be unconscious or otherwise incapacitated. In any event, that patient is almost never in the position of being able to sort through the myriad details of trying to analyze and select from a list of emergency physicians that happen to be approved in advance as an “in-network” provider by Defendants. Therefore, in practically all relevant cases, the patient is unable to choose an in- network hospital/emergency physician for his or her care, and really, that patient is not, as a practical matter, in a position to be able to ask for an in-network emergency physician. 87. As such, it is quite typical that a patient when seeking emergency services, will present to an emergency provider that is not in the patient’s insurance network or selected from a list of ‘approved’ providers. In that case, the emergency physician will be reimbursed by Defendants, at Defendants’ “out-of-network” rate. As the name implies, this “out-of-network” rate is not negotiated in advance by the Plaintiff and the insurer, and is, therefore, subject to the whim of Defendants. 88. Plaintiff’s contracted emergency physician, as he or she is working in the hospital’s emergency department, is most often not a member of Defendants’ contracted network of providers, pursuant to the applicable provisions of the specific health plan or coverage, as obtained by the patient. 89. Unfortunately, and by design and unlawful operation, Defendants commonly claim that the treating physician is not a member of the insurer’s contracted network of providers, Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 21 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 2 f 9 22 and so, classify the treatment provided to the patient in the emergency department, as “out of network care”. In doing this, Defendants knowingly attempt to greatly reduce the amount of reimbursement that they will send to the emergency physician. 90. Rather than pay the true and accurate bill that was generated by Plaintiff’s emergency physician from the encounter in the emergency department, through this process, Defendants knowingly and to the detriment of Plaintiff, lower the reimbursement rate allowed for alleged “out-of-network” care, to the same level of reimbursement as that of Medicare, or even lower. 91. This practice is unlawful. 92. It should be axiomatic, that this nation’s critically important network of emergency room services cannot be maintained, unless these emergency physicians receive adequate, reasonable and appropriate payment, for these “out-of-network” emergency medical services. 93. Currently, if a health insurer covers hospital emergency services, the Patient Protection and Affordable Care Act requires that Defendants also cover out-of-network emergency services, and reimburse the provider at a reasonable rate. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 10101(h), 124 Stat. 119, 888-90 (2010) (codified at 42 U.S.C. § 300gg-19a (2014)) (the “Affordable Care Act” or “ACA”). 94. The ACA specifically forbids insurers from imposing coverage limitations on “out-of-network” emergency services that are more restrictive than any limitations imposed on in-network emergency services. 42 U.S.C. § 300gg-19a(b)(1)(C)(ii). 95. The ACA also mandates equal patient cost-sharing for in-network and out-of- network emergency services. 42 U.S.C. § 300gg-19a(b)(1)(C)(ii). Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 22 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 3 f 9 23 96. In 2010, the Department of Health and Human Services, (HHS), et.al., issued an interim final rule with comment period to implement the ACA’s out-of-network emergency services provisions. Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections, 75 Fed. Reg. 37,188 (June 28, 2010) (codified at 26 C.F.R. pt. 54; 29 C.F.R. pt. 2590; 45 C.F.R. pt. 147). 97. The interim final rule established a “greatest of three” methodology for determining payment for out-of-network emergency services in which the insurer must pay the greatest of the following: 1) the insurer’s in-network amount; 2) the usual, customary, and reasonable (“UCR”) amount; or 3) the Medicare amount. Id., at 37, 194. 98. In almost all instances, the highest of these three amounts will be the UCR amount. 99. Defendants have undermined, and continue to undermine, manipulate, understate, and prevent public verification of the UCR amounts. Defendants’ intentional conduct ensures that the UCR analysis results in the lowest potential rate of reimbursement. Such action should be found unconscionable in a civilized society. Defendants have not, and continue to refuse to reimburse Plaintiff at the “greatest of three”. 100. As stated above, Defendants have manipulated, and continue to manipulate, healthcare data to downwardly adjust reimbursement rates. Instead of using publicly available or verifiable data, Defendants have manipulated, and continue to organize, manipulate, or otherwise suppress, healthcare data with the intent to harm Plaintiff by reimbursing Plaintiff at the lowest available rate, contrary to law. 101. Absent an immediate Order from this Court requiring Defendants’ compliance with the enforcement of “greatest of three” methodology using publicly available data and Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 23 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 4 f 9 24 requiring Defendants to reimburse Plaintiff’s emergency physicians for out-of-network care that they provide, Defendants will continue to dramatically underpay Plaintiff’s physicians. By their past behavior, Defendants and other insurers have proven that they will continue to manipulate UCR amounts downward if given any opportunity to do so. 102. Furthermore, absent an immediate Order from this Court requiring reasonable reimbursement of Plaintiff’s emergency physicians for out-of-network care that they provide, Plaintiff’s emergency physicians are now left with absolutely no minimum payment protection in states that prohibit balance billing. 103. Absent an immediate Order from this Honorable Court, there is absolutely no protection or guarantee that Plaintiff’s emergency physicians will receive reasonable payment for out-of-network emergency services as required by the ACA. 42 U.S.C. § 300gg-19a(b)(1)(C)(ii). VII. COUNT III-VIOLATION OF: EMERGENCY MEDICAL TREATMENT & LABOR ACT (EMTALA), THE ‘PATIENT PROTECTION AND AFFORDABLE CARE ACT, (ACA) and THE CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT’ (COBRA), et.al. “GREATEST OF THREE” RULE 104. Plaintiff hereby adopts and reavers all of the preceding paragraphs, numbered One through One Hundered One (Paragraphs No.: 1-101), as if fully set out and reavered herein in full. 105. The statutory provision at 42 U.S.C. § 300gg-19a requires that Defendants pay a “reasonable amount” for emergency services, determined by an objective standard. Final Rules for Grandfathered Plans, 80 Fed. Reg. at 72,213. 106. The “objective standards” criteria, require that Defendants reimburse Plaintiff’s physicians pursuant to the “greatest of three” methodology for “out-of-network” care and treatment rendered in the emergency department. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 24 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 5 f 9 25 107. As Plaintiff briefly discussed above, the “greatest of three” methodology holds that Defendants must reimburse Plaintiff at the greatest of the following: (A) The amount negotiated with in-network providers for the emergency service furnished, excluding any in-network copayment or coinsurance imposed with respect to the participant, beneficiary, or enrollee. . .. (B) The amount for the emergency service calculated using the same method the plan generally uses to determine payments for out-of-network services (such as the usual, customary, and reasonable amount), excluding any in-network copayment or coinsurance imposed with respect to the participant, beneficiary, or enrollee. . .. (C) The amount that would be paid under Medicare… 26 C.F.R. § 54.9815-2719AT(b)(3); 29 C.F.R. § 2590.715-2719A(b)(3); 45 C.F.R. § 147.138(b)(3). 108. Instead of following these requirements and provisions, however, Defendants have simply chosen to reimburse Plaintiffs at which ever rate is the lowest, usually the Medicaid/Medicare rate, without regard to whether such reimbursement would constitute the “greatest of the three”. They have done so with every intent of damaging Plaintiff’s business and to illegally maximize their own profit. 109. Defendants are liable to Plaintiff for the amount to be determined in discovery that they would and should have paid in proper reimbursement, as required by the applicable law and its valid interpretations, etc. 110. Defendants are further liable to the Plaintiff for failing to reimburse Plaintiff at the proper UCR rate, as should have been lawfully established, utilizing the appropriate and applicable, Fair Health Data. Use of the Fair Health Data in their analysis of reimbursement, would be the only way to ensure that Plaintiffs are reimbursed pursuant to an “objective standard”, as required by the ACA. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 25 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 6 f 9 26 111. Again, the use of the Fair Health Data would be the only method and manner allowed by the ACA, and the applicable governmental regulations, etc., which would ensure that the Defendant payors utilize data from a ‘transparent, verifiable database’, for determination of the UCR amount. 112. Instead of utilizing the Fair Health Data for determination of the UCR, and thereafter, reimbursing Plaintiff properly for the services which were rendered, Defendants have utilized, and continue to utilize, all manner of other illegal and inappropriate methodologies so as to lower the ultimate reimbursement and unjustly enrich themselves at Plaintiff’s expense. 113. The Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. (2010) is part of ERISA by incorporation. ERISA Section 502(a)(3) allows “a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.” 29 U.S.C. § 1132(a)(3). The “subchapter” that may be enforced through Section 502(a)(3) includes Section 715, which incorporates by reference the ACA provisions upon which this Complaint seeks to enforce. While Plaintiff does not allege to be an ERISA participant, beneficiary or fiduciary in its own right, Plaintiff brings this Complaint as an assignee of its patients’ rights to sue under ERISA as participants or beneficiaries. 114. Pursuant to the above and foregoing, Defendants are liable to Plaintiff for each and every emergency patient that has been seen, and as to which they failed to properly reimburse Plaintiff, pursuant to the applicable ACA law and its interpretation, et.al. 115. Defendants are liable to the Plaintiff for punitive damages, treble damages and/or civil penalties, as to each and every patient, in that their conduct has been intentionally destructive and damaging. Furthermore, Defendants engaged, and continue to engage, in this Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 26 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 7 f 9 27 conduct with full knowledge that their actions are likely beyond the capacity of most parties to remedy. Defendants have acted, and continue to act, intentionally, with malice and the aim of unjustly enriching themselves by withholding money owed. As such, punitive actions must be ordered by this Honorable Court, so as to remedy this injustice and stop such from occurring in the future. 116. Pursuant to the above, an Order from this Honorable Court is imminently necessary, prayed for, and lawfully required for the future, to ensure that the Defendants properly reimburse Plaintiff for all out-of-network emergency care that they provide. Such an Order must reflect specifically that Defendants are to utilize only the “Fair Health” data when analyzing and/or determining the UCR amount as well as when finalizing the proper amount of reimbursement that they will provide to Plaintiff for out-of-network emergency services. This Honorable Court has the power and the authority to issue such an Order, and Plaintiff prays for such relief, pursuant to the foregoing. 117. Plaintiff prays for such other relief as this Honorable Court deems proper and as allowable by law. VIII-COUNT IV-VIOLATION OF FAIR BUSINESS PRACTICES ACT 118. Plaintiff hereby adopts and reavers all of the preceding paragraphs, numbered One through One Hundred Sixteen (Paragraphs No.: 1-116), as if fully set out and reavered herein in full. 119. The Georgia Fair Business Practices Act, Ga. Code Ann. §§ 10-1-390 through 10-1- 407, broadly prohibits unfair and deceptive business practices. 120. Defendants have violated the Fair Business Practices Act by retroactively categorizing emergency visits, after the fact, and either denying the claims outright, or instead, Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 27 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 8 f 9 28 underpaying such claims by reimbursing the emergency medical providers at a reduced non- emergent “triage” rate, in express violation of federal statutes, their respective contracts, and other applicable rules governing such reimbursement. 121. Defendants have violated the Fair Business Practices Act by imposing coverage limitations on “out-of-network” emergency services that are more restrictive than any limitations imposed on in-network emergency services. 122. Defendants have violated the Fair Business Practices Act by continuing to utilize all manner of other illegal and inappropriate methodologies rather than utilizing the Fair Health Data for determination of the UCR, and thereafter lowering the ultimate reimbursement to the Plaintiff in order to unjustly enrich the Defendants at Plaintiff’s expense. 123. Defendants continue to engage in these activities knowingly and willfully, with every intent of damaging Plaintiff. 124. Pursuant to Ga. Code Ann. §§ 10-1-390 through 10-1-407, Defendants are liable to the Plaintiff for compensatory damages, punitive damages, treble damages, and/or civil penalties, as to each and every patient. Defendants have engaged, and continue to engage, in this conduct with full knowledge that their actions are likely beyond the capacity of most parties to remedy. Defendants have withheld money owed to Plaintiff intentionally, deceptively unfairly, with malice and the aim of unjustly enriching themselves. As such, punitive actions must be ordered by this Honorable Court, so as to remedy this injustice and stop such from occurring in the future. 125. Pursuant to Ga. Code Ann. §§ 10-1-390 through 10-1-407, Defendants are liable to the Plaintiff for attorney fees, costs and expenses incurred as a result of this litigation. 126. Based upon the foregoing, including, but not limited to, Ga. Code Ann. §§ 10-1-390 through 10-1-407, Plaintiff prays for compensatory damages, punitive damages, treble damages, Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 28 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 9 f 9 29 interest, and/or civil penalties, as well as attorney fees, costs and expenses arising from this litigation. Additionally, Plaintiff prays for such other relief as this Honorable Court deems proper and as allowable by law. IX-COUNT IV - BREACH OF CONTRACT 127. Plaintiff hereby adopts and reavers all of the preceding paragraphs, numbered One through One Hundred Twenty-four (Paragraphs No.: 1-124), as if fully set out and reavered herein in full. 128. Defendants voluntarily entered into contractual agreements to make reasonable and appropriate payments to Plaintiff for medical services provided to covered patients by Plaintiff. 129. Plaintiff has provided medical services to covered patients according to said contractual agreements and has met all obligations required under said contractual agreements. 130. Plaintiff would show unto the Court that Defendants have violated and breached express and implied terms of said contractual agreements by failing and/or willfully refusing to make reasonable and appropriate payments to Plaintiff as required by said contractual agreements. 131. As a result of the Defendants’ conduct, Plaintiff has been severely damaged and has suffered extreme loss. Specifically, as a result of the Defendants’ conduct and breaches of contract, Plaintiff has lost revenue and interest due for medical services Plaintiff has provided in conjunction with said contractual agreements. The Defendants, thus, have been unjustly enriched while the Plaintiff has been deprived of reasonable and appropriate monetary payment. Plaintiff has been substantially damaged as a result. 132. Wherefore Plaintiff hereby demands judgment against the Defendants for any and all compensatory damages to which it is entitled and as to which it may plead and prove at trial. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 29 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 30 f 9 30 Plaintiff demands damages in the amount necessary, as well as possible, to make it whole. Plaintiff otherwise demands interest, attorneys fees, and the costs of this action, as well as any and all other relief to which Plaintiff may be justifiably entitled under the law including, but not limited to, other injunctive relief as may be appropriate. XI-COUNT VI - FRAUDULENT MISREPRESENTATION, FRAUDULENT INDUCEMENT 133. Plaintiff hereby adopts and reavers all of the preceding paragraphs, numbered One through One Hundred Thirty (Paragraphs No.: 1-130), as if fully set out and reavered herein in full. 134. Defendants have fraudulently misrepresented to Plaintiff that Defendants would make reasonable and appropriate payments to Plaintiff for medical services provided to patients by Plaintiff. 135. Defendants have willfully refused to make reasonable and appropriate payments to Plaintiff for medical services provided to patients by Plaintiff. 136. At the time Defendants made representations to Plaintiff that Defendants would make reasonable and appropriate payments to Plaintiff for medical services provided to patients by Plaintiff, Defendants knew reasonable and appropriate payments would not be made to Plaintiff, as falsely represented by Defendants. 137. Plaintiff relied on the Defendants’ fraudulent misrepresentations to the Plaintiff’s detriment and provided medical services to covered patients. In said reliance on the Defendants’ fraudulent misrepresentations, Plaintiff has suffered financial damages by providing medical services at reimbursement rates significantly lower than Plaintiff is entitled to receive, and substantially lower than Defendants represented to Plaintiff. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 30 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 1 f 9 31 138. Defendants are liable to the Plaintiff for compensatory damages, punitive damages, treble damages and/or civil penalties, as to each and every patient, in that their conduct has been intentionally destructive and damaging. Furthermore, Defendants engaged, and continue to engage, in this conduct with full knowledge that their actions are likely beyond the capacity of most parties to remedy. Defendants intentionally, with malice and the aim of unjustly enriching themselves by withholding money owed. As such, punitive actions must be ordered by this Honorable Court, so as to remedy this injustice and stop such from occurring in the future. 139. Pursuant to the above, an Order from this Honorable Court is imminently necessary, prayed for, and lawfully required for the future, to ensure that the Defendants properly reimburse Plaintiff for all emergency medical care its physicians provide. Such, an Order must reflect specifically that Defendants are to utilize only the “Fair Health” data, when analyzing and/or determining the UCR amount as well as when finalizing the proper amount of reimbursement that they will provide to Plaintiff for out-of-network emergency services. This Honorable Court has the power and the authority to issue such an Order, and Plaintiff prays for such relief, pursuant to the foregoing. 140. Plaintiff prays for such other relief as this Honorable Court deems proper and as allowable by law. XII -PRAYER FOR RELIEF WHEREFORE, Plaintiff ApolloMD Business Services, L.L.C., prays for judgment and relief as follows: 1. Compensatory damages, consequential damages, and punitive damages, as well as appropriate penalties, treble damages, interest, costs and attorney’s fees. Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 31 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 2 f 9 32 2. A Judgment/Order, declaring that the Payor Defendants must immediately compensate Plaintiff for the services rendered to all patients that have been seen in the last five years, and as to all patients to be seen in the future, pursuant to a judicially established rate which utilizes Fair Health Data in analyzing and determining the UCR and consequently, the amount of overall compensation owed for out-of-network services/treatment; 3. Pre- and post-judgment interest; 4. Such other legal and equitable relief as requested in this Complaint and as the Court may deem necessary or appropriate. XIV DEMAND FOR TRIAL BY JURY COME NOW THE PLAINTIFF, ApolloMD Business Services, L.L.C., and/or affiliates/subsidiaries, and hereby DEMAND A TRIAL BY JURY as to any and all issues and causes of action so triable. Plaintiff further demands equitable relief, as just and appropriate, including the Order of the Court, reflected above. RESPECTFULLY DONE AND SUBMITTED, this the 6th day of Februarry, 2017. /s/ Richard E. Crum, Esq. Richard E. Crum, Esq. (CRU012) Georgia Bar No.: 199200 Attorney for Plaintiffs, ApolloMD Business Services, L.L.C., et al., OF COUNSEL SHEALY, CRUM, & PIKE, P.C. 2346 W. MAIN STREET DOTHAN, ALABAMA 36302-6346 (334) 677-3000 Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 32 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 3 f 9 33 Please serve Defendants: Amerigroup Corporation (Delaware) Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Blue Cross Blue Shield Healthcare Plan of Georgia, Inc. Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Blue Cross and Blue Shield of Georgia, Inc Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Health Value Management, Inc. d/b/a ChoiceCare Network Registered Agent - Corporation Service Company 40 Technology Parkway South, Suite 300 Norcross, Georgia, 30092 Humana Employers Health Plan of Georgia, Inc. Registered Agent - Corporation Service Company 40 Technology Parkway South, Suite 300 Norcross, Georgia, 30092 Humana Health Plan, Inc. Registered Agent - Corporation Service Company 40 Technology Parkway South, Suite 300 Norcross, Georgia, 30092 Humana Insurance Company Registered Agent - Corporation Service Company 40 Technology Parkway South, Suite 300 Norcross, Georgia, 30092 Peach State Health Plan, Inc. Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Unitedhealthcare of Georgia, Inc. c/o Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 33 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 4 f 9 34 Unitedhealthcare Community Plan of Georgia, Inc. c/o Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 This the 6th day of February, 2017. /s/ Richard E. Crum, Esq. Of Counsel Case 1:16-cv-04814-RWS Document 10 Filed 02/06/17 Page 34 of 34s : 7-cv- 226 - c t 5-2 il 6/23/ 5 f 9 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the __________ District of __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Civil Action No. Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 1:16-cv-04814-RWS Document 10-1 Filed 02/06/17 Page 1 of 2 Northern District of Georgia ApolloMD Business Services, L.L.C., et al., Amerigroup Corporation (Delaware); Blue Cross Blue Shield Healthcare Plan of Georiga, Inc.; Blue Cross and Blue Shield of Georgia, Inc.; Health Value Management, Inc., d/b/a ChoiceCare Network; et al., Unitedhealthcare of Georgia, Inc. c/o Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Richard E. Crum, Esq. Shealy, Crum & Pike, P.C. Post Office Box 6346 Dothan, Alabama 36302 rcrum@scplaw.us; csizemore@scplaw.us (334) 677-3000 February 6, 2017 Case 1:17-cv-02264-R S Docu ent 5-2 Filed 06/ 3/17 Page 36 of 39 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ’ I personally served the summons on the individual at (place) on (date) ; or ’ I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or ’ I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or ’ I returned the summons unexecuted because ; or ’ Other (specify): . My fees are $ for travel and $ for services, for a total of $ . I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Case 1:16-cv-04814-RWS Document 10-1 Filed 02/06/17 Page 2 of 2Case 1:17-cv-02264-R S Docu ent 5-2 Filed 06/ 3/17 Page 37 of 39 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the __________ District of __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Civil Action No. Defendant(s) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 1:16-cv-04814-RWS Document 10-2 Filed 02/06/17 Page 1 of 2 Northern District of Georgia ApolloMD Business Services, L.L.C., et al., Amerigroup Corporation (Delaware); Blue Cross Blue Shield Healthcare Plan of Georiga, Inc.; Blue Cross and Blue Shield of Georgia, Inc.; Health Value Management, Inc., d/b/a ChoiceCare Network; et al., Unitedhealthcare Community Plan of Georgia, Inc. c/o Registered Agent - CT Corporation System 1201 Peachtree Street, NE Atlanta, Georgia 30361 Richard E. Crum, Esq. Shealy, Crum & Pike, P.C. Post Office Box 6346 Dothan, Alabama 36302 rcrum@scplaw.us; csizemore@scplaw.us (334) 677-3000 February 6, 2017 Case 1:17-cv-02264-R S Docu ent 5-2 Filed 06/ 3/17 Page 38 of 39 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ’ I personally served the summons on the individual at (place) on (date) ; or ’ I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or ’ I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or ’ I returned the summons unexecuted because ; or ’ Other (specify): . My fees are $ for travel and $ for services, for a total of $ . I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Case 1:16-cv-04814-RWS Document 10-2 Filed 02/06/17 Page 2 of 2Case 1:17-cv-02264-R S Docu ent 5-2 Filed 06/ 3/17 Page 39 of 39