CHIEF JUSTICE: ALL RIGHT. WE HAV E Q UI TE A C RE W HER E FOR THE L AST C AS E. THE LAST CASE O N T HI S MORNING'S DOCKET IS FOU ND ATIO N H EALTH V ER SU S WESTS IDE E KG ASSOCIATES. AS YOU SEE , JUS TI CE C ANTE RO I S RECUSED O N T HI S CAS E . AND I SEE T HA T - - LET M E B E SUR E WE HAVE THIS. YOU ARE SPLITTING YOUR TIME. WHY DON'T YOU COME UP , MIS S G REGOIRE, AND THE N I W IL L FIGURE THE TIME THI NG O UT .

GOOD MORNING, YOUR HONOR. NANCY GREGO IR E HER E O N B EHALF OF HEALTH O PT IO NS , A ND MR. ANDREW BER MA N H ERE O N BEHALF OF H UM AN A. I WILL BE S PEAKING FOR NIN E MINUTES. MR. BERMA N WILL BE SPEAKING FOR SIX MINUTES AND W E WILL RES ERVE FIVE M AKING IT H IG HL Y COMPLEX .

CHIEF JUSTICE: THE Y EL LO W LIGHT WILL COME ON A T 1 5 MINUTES. SO I WILL REM IN D Y OU W HE N Y OU ARE FINISHED WIT H NIN E MINUTES.

THANK YOU, AND I WOU LD A LSO LIKE TO I NTRO DUCE G LE N W AL DMAN HO IS HER E O N B EH AL F O F F OUNDATION AND VISTA A ND EDWARD MCENTIR E , M Y PAR TNER W HO I S A LSO H ER E O N BEHALF O F HEALTH OPTIONS. THIS IS A CERTIFIED Q UESTION FROM THE 4TH D IS TR ICT COURT O F APPEAL, AND THE Q UESTION I S WHETHER THE P RO MP T P AY PROVISION IN FLORIDA'S HMO ACT IS ENF ORCEAB LE BY A H EA LT H CARE PROVI DE R T HR OUGH T HE INCORPORATION OF C ON TR AC T PRINCIPLES THAT BRING INT O T HE CON TRACT T HE S TA TUTE .

CHIEF J USTICE: DOES T HE THI RD PARTY BENEFICIARY HAVE CONTRACTUAL RIGHTS?

THIS T HIRD -PAR TY BEN EFICIARY DOES N OT H AV E - - OUR POSITION , YOUR HONOR , I S THAT THIS THIRD-PARTY B ENEFICIARY DOES NOT HAVE CONTRACTUAL RIGHT S. THE WAY T HE HMO A CT I S STRUC TURED AND THE WAY THE H MO ACT I NT EN DS FOR HMO P LA NS T O BE STRUCTURED IS T HAT THERE I S A CON TRAC T P ROVIDER , A D OC TOR , A HOSPITAL , T HE RE I S A LS O A N EMP LOYER AND THEN T HERE I S T HE PLAN. THE PLA N C ON TRAC TS WIT H THE E MPLOYER AND WIT H THE P ROVI DE R , AND THE P ROVIDER B Y V IR TUE O F ITS CONTRACT WITH T HE P LA N PROVIDES M ED IC AL S ERVI CE S T O A SUBSCRIBER. USUALLY THE SUBSCRIBER I S T HE E MPLOYEE .

CHIEF JUSTICE : I GUE SS J US T SORT OF CUT TING TO THE C HA SE , IF T HE Y W ER EN 'T T RY ING T O GET THE ADVANTAGE OF THE P RO MP T PAY PROVISION, IS THERE A NY CAUSE OF A CTIO N T HA T THE WESTSIDE E KG A SS OCIA TE S W OU LD H AVE O R N OT RECEIVI NG P AY MENT FOR SERVICES R ENDE R ED A GAIN ST SOM EBODY WITHIN THE H MO ? > > WESTSIDE IS OUT SIDE T HA T TRIANGLE. WESTSIDE IS WHA T IS CALLE D A NON PARTY PROVIDER SO IT H AS N O CONTRACT THAT IT CAN ENFORCE WITH THE PLA N .

JUSTICE: COULD T HEY HAV E PURSUED THE SUBSCRIBER?

WESTSIDE CAN P UR SUE T HE SUBSCRIBER, E XC EP T F OR THE PROVISIONS O F 641 .3 154. B UT THIS IS THE W AY I T WOR KS : WESTSIDE HAS NO C ON TRACT A ND WESTSIDE DIDN'T T AKE AN ASSIGNMENT. WESTSIDE I S V EHEM EN T T HA T I T HAS NO A SSIGNMENT. YOU KNOW, I N P IP THE WAY THE PROVIDERS ARE HERE IS BEC AUSE THEY TAKE AN ASS IGNMENT O F T HE CONTRACT RIGHTS O F THE INSURED.

JUSTICE: IS THERE A NY PROHIBITION AGAINST THE NONCONTRACT PROVIDER FROM TAKING AN ASSIGNM EN T O F BENEFITS?

IN THIS R ECORD THERE IS N O SUCH PROHIBITION . THIS RECORD -- ONE O F THE ISSUES HERE WAS W HE THER B LU E CRO SS' PLAN WAS B EFORE T HE COURT.IT, IN FACT , W AS BEF ORE T HE COURT BUT THE COU RT , T HE LOW ER C OURT IN THE 4TH D IS TR IC T DIDN'T DECIDE ON THE BASIS OF THE PLAN. IT DECIDED ON THE BASIS OF T HE ALLEGATIONS.

CHIEF JUSTICE: YOU DON 'T MEAN BLUE CROSS, DO YOU?

HEALTH OPTIONS .

CH IEF JUSTICE: I THOUGHT YOU SAID BLUE CROSS.

BLUE CROSS I S THE PAREN T COMPANY, HEALTH OPT IO NS I S THE HMO ARM OF B LU E C RO SS .

JUSTICE: H OW ABOUT GIVING US A SIM PL E S CH EMATIC O F WH AT HAPPENS ON THE GROUN D? GIVE US A WOR D P IC TURE OF , YOU K NOW, A P AT IE NT GOE S TO HEA LT H CARE P RO VIDE R , H EALT H CAR E PROVI DER DOES S OM ET HING , CHARGES A FEE FOR IT. THE F EE C HA RG ED I S R EP ORTE D T O W HOM A ND W HO M PAY S W HO M? GIVE US T HE S IM PL E S CHEM AT IC OF WHAT ACTUALLY HAP PE NS O N THE GROUND HOP EF UL LY T HA T H AS SOME C OMMONALITY TO ALL T HREE OF THESE SITUA TI ON S , B UT G IVE US A SIM PL E S CH EMAT IC , Y OU KNOW, BEFORE WE GET INTO T HE CONTRACT PROV ISION.

ABSOLUTELY, J US TI CE .

JUSTICE: WOULD YOU DO THAT FOR US?

SUBSCRIBER GOES T O C ON TRACT PROVIDER FOR SERVICES . C ONTRACT PROVIDER P RO VI DE S SERVICES T HA T ARE W ITHI N T HE PLAN, REMEMBER THIS IS A CONTRACT. THAT ARE WITHIN THE PLAN. FROM THAT POI NT , S UB SCRIBE R MAY PAY A C OP AY , $25 , $ 30 COPAY. SUBSCRIBER IS OUT OF THE PICTURE. I F PROVIDER , C ON TRACT P ROVI DE R HAS A PROBLEM WIT H T HE P LA N , CONTRACT PROVIDER HAS A CONTRACT ACT IO N A GA INST T HE PLAN. POSSI BLY AGAINST THE EMPLOYER , BUT USUALLY AGAINST THE P LAN. SO THAT'S S CH EMATIC ONE . SCHEM ATIC 2 I S WHE RE F OR S OM E REASON THE S UBSC RI BE R GOE S OUT SIDE T HE P LA N.

JUSTICE: HAS T HI S B EE N AUTHORIZED IN THIS CASE?

THIS HAS B EEN A UTHO RIZE D.

JUSTICE: SO THE Y H AVE B EEN AUTHORIZED TO GO TO SOMEONE OUTSIDE THE PLAN?

ABSOLUTELY.

JUSTICE: PLEASE KEEP GOING BECAUSE I N EEDE D T HA T CLARIFICATION.

FOR INSTANCE , W ITHIN T HE COMMUNITY WHERE THE SUBSCRIBER LIVES THERE IS NOT THIS SPECIALTY. SUBSCRIBER CAN BE A UTHORI ZE D TO GO OUTSIDE . SUBSCRIBER HAS TO GO T O A H OSPITAL FOR E MERG ENCY SERVICES, AND PART OF THE EMERGENCY SERVICES ARE PROVIDED BY N ONCO NT RACT PROVIDERS . S O THEN T HE STA TUTE , 641 .315 4 PROVIDES T HA T T HE PRO VI DE R , EVEN NON CONT RA CT P RO VI DER A ND THE P LA N W IL L D ECIDE W HAT T HE PRO VIDER IS GOING TO B E P AID , BUT IF T HE P RO VI DE R IS FOR A NY REA SON U NH APPY ABO UT W HAT THE PROVIDER IS GOING TO BE PAID , THEN THE QUESTION I S W HAT IS THE PROVI DE R' S R EMEDY , A ND THAT'S WHAT B RINGS US HERE TODAY. THIS PROVIDER C LAIM S T HAT BECAUSE IT TRE ATED A SUBSCRIBER, IT I S A THIRD-PARTY BENEF IC IARY O F THAT SUBSCRIBER' S C ONTRACT , AND IT CAN S UE ON T HE C ON TRAC T TO ENF ORCE T HE S TA TU TE B EC AU SE THE S TA TUTE I S BRO UGHT I NT O THE CONTR AC T . THIS COURT HAS S AID N OT W ITH THE HMO ACT . > > CHIEF JUSTICE: AGAIN I W ANT TO MAKE SURE. SO Y OU G AV E T HE SCH EM AT IC O F WHE RE THE C ON TR ACT PRO VIDER CAN SUE THE PLAN, THEY HAVE A CAUSE OF ACTION.

EXACTLY.

CHIEF JUSTICE: IN THAT SITUATION WOULD THEY BE ABLE TO TAKE A DVANTAGE O F T HE PROMPT PAY PROVISIONS?

NO , OUR POS IT ION I S T HE RE I S NO I NC OR PORA TI ON OF THE HMO.

CHIEF JUSTICE: ANYWAY?

FOR ANYONE.

CHIEF JUSTICE: SO THE N T HE SCHEMATIC, WHAT IS A NONCONTRACT PROVIDER D O WHO I S AUTHORIZED BY THE HMO ? WHO DO THE Y G ET T O SUE ?

FIRST OF A LL IF THE NONCONTRACT PROVIDER TAKES AN ASSIGNMENT, WHICH IS DONE IN P IP, THE FOU RTH D IS TRIC T LIKENED THIS TO PIP, BUT Y OU WON'T FIND A CASE IN P IP T HA T USES A T HI RD -PAR TY B EN EFIC IARY THEORY. YOU FIND CASES I N P IP T HA T S AY T HE INSURED GIVES THE P ROVI DE R AN ASSIGNMENT. THEN THE P ROVIDER S UES ON T HE CONTRACT. THAT'S NOT THIS C AS E . > > JUSTICE: BUT THE FAC TS T HA T THE H MO HAS G IV EN AUT HORI TY T O THIS NON CO NT RACT P ERSO N T O , I N F ACT , GIV E S ER VI CES TO T HE PROVIDER, DOESN 'T C HA NG E? I MEAN, I COULD SEE Y OU R P OINT IF THE SUB SCRI BE R WENT TO A NONCONTRACT PERSON ON THEIR OWN BUT IF THE H MO A CT UA LL Y AUTHORIZES THEM TO DO THAT , DOESN'T T HAT CHA NG E THI S SCENA RIO?

BUT THE AUT HORIZATION, YOUR HONOR, IS J US T , Y ES , T HI S P ERSON IS C OVERED B Y T HE P LA N OR, Y ES, T HI S S ER VICE I S COVERED BY THE PLAN. T HE A UT HO RIZATION I S NOT , A ND YOU CAN CHA RG E W HATE VE R Y OU WAN T AND YOU CAN D O WHA TEVER YOU WANT.

JUSTICE: BUT THE AUTHORIZATION IS THAT YOU CAN GO TO THIS PERSON?

YOU CAN TREAT T HI S P ER SO N , YES. > > CHIEF JUSTICE: SO AGAIN FINISH THE -- SO T HERE I S N O ASSIGNMENT SO WHAT R EM ED Y DOE S THE N ONCONTRACT P RO VI DER HAVE?

ACCORDING TO THE ACT ITSELF , AND THIS B ECAM E VER Y M ED DL E SOME FOR T HE F OURT H D ISTRICT. ACCORDING TO THE ACT ITSELF , A SUBSCRIBER COULD SUE THE P LA N BECAUSE A S UB SC RI BER H AS RIGHTS UNDER THE P LAN. A CON TR AC T P RO VIDE R CAN S UE THE PLAN BECAUSE A CON TRAC T PROVIDER HAS ITS OWN R IG HT S UNDER ITS C ON TR AC T. A N ONCO NTRA CT PRO VI DE R , A ND THAT IS WESTS ID E , W ITHOUT A N ASSIGNMENT, AND THAT IS WESTSIDE , HAS T O G O T HR OUGH MAXIMUS. THAT IS T HE L EG ISLA TI VE REMED Y.YOUR HONORS IN THE L AST ARGUMENT WERE TALKING - -.

JUSTICE: L ET'S REDUCE IT DOWN IS THAT THE HEA LT H C ARE PROVIDER HAS N O DIR EC T C AUSE OF ACTION A GA IN ST EIT HE R T HE CITIZEN WHO GOES IN , THE PATIENT, OR THE H MO U NDER SOM E COMMON LAW THE ORY. THAT'S WHA T THA T S TATEMENT, WHAT YOU JUST SAI D , CORRECT?

AS LONG AS THE SUB SC RIBER IS COVERED BY THE PLAN. IF YOU LOOK A T 3 15 4 I T GIV ES YOU A --

YOU DON'T HAVE TO G O FURTHER. > > THAT'S EXACTLY RIG HT. THERE IS THIS NON PA R PRO VIDE R MAY N OT G O INT O C OURT A ND S UE ON THE S UBSC RI BE R' S C ONTR AC T UNDER A THI RD -P AR TY BENEFICIARY THEORY . B ECAUSE --.

JUSTICE: SO THEN THE PROVIDERS H AVE NO REMEDY A T ALL? IF THEY CAN'T SUE THE P ATIENT FOR THE B IL L A ND THE Y C AN'T SUE THE HMO FOR T HE B IL L T HE N THEY HAVE LOST THEIR RIGHT S T O GO INTO C OURT FOR REC OV ER Y , AND YOU ARE SAYING T HAT THERE IS SOME O THER R EM EDY IN I TS PLACE?

I'M SAYING I F T HE SUBSCRIBER IS NOT COVERED BY THE PLAN FOR S OME O DD R EASO N , THERE IS NO COVERAGE U NDER THE PLAN, THE PROVIDER CAN D O WHATEVER THE PROVIDER WANTS.

JUSTICE: WELL, HERE THEY ARE COVERED, CORRECT?

OKAY. IF THERE IS COVERAGE UNDER THE PLAN BUT THE PROVIDE R I S A NON PAR PRO VIDER THE N T HA T PROVIDER MUST GO THROUGH MAXIMUS, BECAUSE T HAT'S W HAT THE LEGISLATURE HAS SAID.

JUSTICE: A ND THAT'S THE ALTERNATIVE TO A C OMMO N L AW ACTION, CORRECT?

E XACTLY . THERE A RE C OMMON- LA W ACT IO NS THAT IS PROVIDE R M AY H AV E . IF THERE WERE F RA UD P RO BABL Y THE PROVIDER WOULD HAVE A N ACTION FOR FRAUD. BUT N OT T O E NFOR CE THE P ROMP T P AY STA TUTE .

CHIEF JUSTICE: WELL, AGAIN, I THINK YOU SAID EARLIER E VEN IF IT WAS A C ONTRAC T P ROVI DER , YOUR P OSIT IO N I S T HA T T HE Y C OULD S UE B RE AC H O F CONTR AC T , YOUR POSITION IS P RO MP T P AY PRO VISION IS NOT INC OR PORA TE D INTO ANY CAUSE OF A CT ION?

UNLESS THE P RO VI DE R HAS CHOSEN TO PUT EXACTLY T HA T LANGUAGE IN I TS S TATU TE I N WHICH CASE IF I WERE T HE CONTRACT PROVIDER I COULD ENF ORCE IT.

CHIEF JUSTICE: SO YOU HAVE TWO P ROBLEMS WITH THE FOU RTH DISTRICT. ONE IS YOU DON'T T HI NK T HA T THIS P LAIN TIFF O R APP EL LE E SHOULD BE IN COURT A T A LL .

THAT'S RIGHT.

CHIEF JUSTICE: THAT SHE SHOULD BE IN COURT A T A LL , THEY CAN'T TAKE A DVAN TA GE O F THE STATU TO RY P RO VISION?

THAT'S E XACTLY RIGHT, YOUR HONOR.I'M S AYING THAT Y OU C AN NOT - - YOU CANNOT T AKE A N A CT THA T HAS NO P RIVATE R IGHT O F A CTIO N , INC ORPORATE IT INTO A CON TR AC T AND CREATE IT PRIVATE RIGHT OF ACTION.

CHIEF JUSTICE: T HERE ISN'T A C ONSTITUTIONAL A RGUM EN T BEING MADE BY W ES TSID E EKG A SS OCIATES THAT SOM E R EMED Y WAS TAKEN A WAY WIT HO UT A P ROPER ALT ER NA TI VE ? THAT'S NOT BEFORE US?

NO, AND I N F AC T T HE O PINI ON R ECOGNIZES THAT AND IN T HE FOOTNOTE IT MENTIONS K LU GE R VERSUS WHITE AND CONSTITUTIONALITY.THAT WAS NEVER RAISED. THAT'S NOT AN ISSUE B EFORE T HE COURT. THE TWO I SSUES ARE C AN Y OU TAKE THIS ACT THAT H AS N O PRIVATE RIGHT OF ACTION AND PUT IT INT O A C ON TRACT AND CREATE A PRIVATE RIGHT OF ACTION AND T HEN MAKE A THIRD-PARTY BENEFICIARY.

JUSTICE: IT IS AN I MP LIED C ONTRACT IF AT ALL. I MEAN, CERTAINLY E VE RYON E AGREES THERE IS NO WRITT EN CONTRACT OR SPECI FIC A GREEMENT , CORRECT? > > THERE IS N O W RITTEN C ONTRACT THAT WAS BEFORE THE COURT IN DECIDING THI S C AS E O R BEFORE THE 4TH DISTR IC T.

JUSTICE: THAT'S WHAT I M EA N THE H EALTH CARE PROVI DER IS NOT OPERATING PUR SU ANT T O S OM E WRITTEN EXPRESS CONTRACT TO THE PATIENT?THEY ARE PROVIDI NG SERVICES T O A PATIENT PURSU ANT TO SOM E KIND OF A UTHORIZATION FROM A HMO SAYING , YES , THE Y A RE A MEMBER O F T HI S HMO A ND I T I S GOING TO B E A N IMPLI ED CONTRACT IF ANYTHING, IT IS NOT AN E XPRE SS WRITT EN CONTRACT THAT CONTROLS THIS , CORRECT?

THAT'S EXACTLY RIGHT A ND O UR POSITION IS Y OU CANNO T APPLY THE CONTRACT.

CHIEF JUSTICE: Y OU NOW H AV E 8 :2 0 L EF T T OTAL .

I SEE THAT , YO UR HON OR . I W OU LD L IKE T O C AL L O N M R. BERMAN.

CHIEF JUSTICE: AND MR. BERMAN IS GOING TOCONTINUE WITH ANSWERING O UR QUESTIONS BECAUSE YOU HAVE THE SAME INTEREST, RIGHT?

MAY IT PLEASE T HE C OU RT , ANDREW BERMAN F OR H UM ANA. THE COURT IS O BVIOUS LY CONCERNED W ITH WHETHER OR NOT THIS PROVIDER IS SOMEHOW BOXED INTO A CORNER AND UNA BL E T O EFFECT ANY REMEDY AND I THINK WHAT YOU NEED T O UNDERSTAND IS SOME OF THE HISTORY OF THI S CASE. THIS CASE B EGAN WITH THE ACTION FILED IN BROWA RD C OUNTY CIRCUIT COURT. THE DEFENDANTS T HE N W ER E M OVED TO F EDERAL COURT O N THE B ASIS OF ARI SSA A RG UI NG T HA T THE REMOVE PAPERS W IT HO UT A N ATTACHMENT ARE IN T HE REC OR D BUT THE P LEADING MAKES C LEAR THAT IT A PPEARED T HAT AS T O C IGNA AND AS T O HUM AN A A S W ELL , WESTSIDE E KG T OO K A SSIG NMEN TS UNDER THESE A RR AN GEMENTS WHICH MEANS THAT BECAUSE OF THA T THEY ARE BASICALLY STEPPING INTO THE SHOES OF THE SUBSCRIBER.

CHIEF JUSTICE : MIS S GREGOIRE WAS SAYING THERE WERE NO ASSIGNMENTS.

THE C IGNA P AP ER S SAY T HE RE WERE ASSIGNMENTS. IN ORDER TO GET THE FED ER AL JUDGE TO REMAND THE S TA TE T O STATE COURT BECAUSE THERE WOULD BE NO ARI SS A JURIS DICTION UNLESS THEY WERE STEPPING INTO THE SHOES OF THE SUBSCRIBERS SO THEY HAVE BOXED THEMSELVES I NTO COR NE R SAY IN G THEY DON'T WANT TO BE IN FEDERAL COURT SO WE ARE G OING TO DISTANCE OURSELVES FROM THESE ASSIGNMENTS. THEY HAVE THERE FORE L EF T THEMSELVES WITH W HAT DO WE HAVE LEFT? WE TRIED THE THI RD -PAR TY BENEFICIARY THEORY, THEY T RI ED DIRECT ACTION UNDER THE STATUTE, THEY'VE TRI ED DECLARATORY JUDGMENT. THE O VERARC HI NG I SS UE HER E I N OUR JUDGMENT IS WHETHER OR NOT THE HMO A CT , I F I T D OE S W E D ON'T HAVE TO S TRET CH A ND STRAIN THE LAW TO FIND A REMEDY FOR THESE PEOPLE. THEY CAN BRING A D IREC T ACT IO N UNDER STATUTE.

JUSTICE: I DIDN'T THINKTHAT THE 4TH DISTRICT WAS APPLYING A S EP ARAT E S TATU TORY CAUSE O F ACTION. IT SEEMS AS T HOUG H THEY WERE APPLYING A COMMON LAW KIND O F THEORY IN LOOKING TO THE STATUTE FOR WHAT THE PARAMETERS OF THE RELATIONSHIP NEEDED TO BE ; IS THA T INCORRECT?

THAT'S WHAT THEY WERE DOING, BUT THEY DID THAT B EC AUSE T HEY STRETCHED AND STRAINED TO FIGURE OUT TO TRY TO FIND A REMEDY FOR THESE PEO PL E .

JUSTICE: BUT T HE COURT DID PROCEED ON A COMMON LAW THEOR Y , THAT'S THE THEORY, AND LOO K T O THE STATUTE FOR WHAT THE REQUIREMENTS MAY BE BETWE EN THESE PARTIES , IS THAT A FAI R STATEMENT?

YES .

JUSTICE: YOU S AY T HEY CAN'T LOOK TO THAT STATUTE?

THE P RI NCIPLE W E A RE TRAVELING UNDER IS YOU NEED TO LOOK AT LEGIS LA TIVE I NTEN T T O DETERMINE WHETHER OR NOT THEREIS A PRIVATE RIGHT OF S TA TU TE. YOU S AID SO I N M UR TH Y AND R ECENTLY IN A RAMA RK .

JUSTICE: YOU ARE AGA IN ASSUMING THAT THE C OURT WENT ON A S TATU TORY CAUSE O F A CTIO N AND THEY DID NOT.

I'M GETTING TO THA T P OINT. I APOLOGIZE. IF YOU C ONCLUDE THA T THERE IS NO LEGISLATIVE INTEN T F OR A PRIVATE RIGHT OF ACTION YOU CANNOT GO THROUGH THE BACK DOOR UNDER A THI RD -P AR TY BENEFICIARY THEORY IN ORD ER TO BE ABLE TO DO I NDIREC TL Y T HA T WHICH YOU CANNOT DO DIR EC TLY. A NUMBER OF CASES WE H AV E CITED FROM OUT OF STATE W HE RE THERE WERE A NUMBER OF DIFFERENT STATUTE OOS CROSS THE COUNTRY, BOT H F ED ER AL A ND STATE DESIGNED TO PROTECT INDIVIDUALS AND IN EACH ONE OF THOSE CASES THEY TRIED B EC AUSE THEY KNEW T HEY COULDN'T BRING A DIRECT ACTION UNDER T HE STATUTE TO BRING A THIRD -PAR TY BENEFIC IARY CLAIM. IN EACH INSTANCE T HE C OU RT HELD YOU COULD NOT DO INDIRECTLY THAT WHI CH YOU CANNOT DO DIRECTLY BECAUSE THE THEORY AND THE THESIS O F THIRD-PARTY B ENEFICIARY IS INCONSISTENT WITH T HE CONCLUSION THAT YOU CAN'T SUE DIRECTLY UNDER THE STATUTE.

JUSTICE: LET ME ASK YOU A QUESTION. I N V ILAZ ON T HE RE W AS N O INT EN T F OR PRIVATE LAW CAUSE O F ACTION, BUT IF THERE WAS COMMON LAW, YOU COULD BRING IT. COULD YOU SPEAK T O THAT PART OF IT?

THE C OMMON L AW C AU SE S O F ACTIONS WE DON'T BEL IE VE INCORPORATED THE PROVISIONS OF THE STATUTE . THE C OM MON L AW STA TU TE S SPO KEN IN V IL L. Z ON O R W ER E GEN ERAL C ONTRACT CLAIMS. THEY ARE SAYING T YP ICALLY I N THESE A RRANGEMENTS BECAUSE THE HMO M ODEL C ON TE MP LA TE S A N ETWORK OF P ROVIDERS, TYPICALLY YOU HAVE A C ONTR AC T AND THIS DOESN'T ARISE .

JUSTICE: LET'S ASS UME T HA T YOU COULD INCOR PO RATE T HE STATUTORY P ROVISIONS , DO Y OU ALSO I NC ORPO RA TE A LL O F T HE CONTRACTUAL PROVISIONS OF T HE PLAN, ALL OF THE STA TU TE S , T HE RIGHTS AS WELL AS THE AVAILABLE REMEDIES ADMINISTRATIVELY AND O THERWI SE IF YOU WERE TO DO THAT?

IF YOU CAN I NC ORPORA TE T HE STATUTE INTO THIS C ON TR AC T WHERE IT IS NOT THERE I TS EL F YOU WOULD I NC ORPO RA TE EVERYTHING AND WE CONTE ND INCLUDING THE PROVISION BECAUSE OF LACK OF LEGISLA TI VE INTENT TO BE ABLE T O A VA IL YOURSELVES OF THE PROVISIONS OF THE STATUTE I N O RD ER T O GIVE RIS E T O - -.

JUSTICE: MY POINT IS IF YOU BRING ACTION AS A THIRD P ARTY BENEFICIARY AM I INCORRECT THAT A THIRD PARTY BEN EFICIA RY IF THEY ARE S UING UNDER T HE CONTRACT IS LIMITED TO THE R IGHTS AND O THER S A VAIL ABLE UNDER THE CONTRACT?

YES.

JUSTICE: AND IF THEY DO THAT THE H MO PLA N , T HE CONTRACT ITSELF AND THE STATUTE DEALS WITH THE REMEDIES OF THE SUBSCRIBER?

WELL, I DISAGREE THERE. I THINK THE C ONTRACT DEALS WITH THE REMEDIES OF T HE PROVIDER. THE HMO A CT , T HE L EGIS LA TURE MADE A P OL ICY J UDGMENT T HAT WE ARE GOING TO LEAVE IT TO THE REGULATORY AGENCIE S T O KEE P THE HMO'S I N COM PL IANC E W IT H ALL PROVISION S OF THE A CT . > > CHIEF JUSTICE: YOU ARE IN YOUR COMBINED R EB UTTAL A ND I DON'T WANT TO STO P THE QUESTIONING BUT IF YOU WANT TO SAVE SOMETHING FOR REBUTTAL.

I T HI NK THE S OLOM AN C AS E OUT OF PEN NSYLVANIA IS T HE CLOSEST ON POINT H ERE BEC AU SE THEY HAD THEIR HMO ACT AND I N THAT CASE THE PLAINTIFF SOU GH T BOTH A D IRECT ACTION UNDER THE ACT AS WELL AS A T HI RD-P AR TY BENEFICIARY CLAIM AND IN BOTH INSTANCES THEY SAID THEY COULDN'T DO IT SO WE WILL RESERVE THE REST OF THE TIME FOR REBUTTAL .

M AY I T P LEASE THE COURT , I'M P HILLIP BURLI NG TON , I 'M LEER FOR THE RESPONDENT , WESTSIDE EKG. WITH ME IS S TE PH AN IE A LEXA NDER WHO R EPRE SENTS S OM E AMI CI I W HO IS GOING TO SHARE THE TIME WITH ME AND OVER THE RE I S MR. LI DPCHLT G IO WHO IS TRI AL COUNSEL.I WANT TO CLARIFY THERE ARE N O ASSIGNMENTS IN THIS CASE, THERE NEVER HAVE BEEN , W E N EVER ALLEGE THAT A S A B ASIS . IT IS A THI RD P AR TY BENEFICIARY IN A BREACH O F CONTRACT ACTION . THE H MO A CT I S VER Y C LE AR T HAT R EGARDLESS OF WHETHER YOU ARE A CONTRAC T O R N ON CO NT RA CT PROVIDER IF YOU PROVIDE SERVICES TO T HE SUB SCRI BER THAT ARE A UT HO RI ZE D T HE H MO I S LIABLE FOR P AY MENT TO T HE PROVIDER.

JUSTICE: LET ME ASK YOU A QUESTION. DO YOU AGREE OR ARE DISAGREE THAT IF YOU PURSUE A THIRD-PARTY BENEFICIARY 'S CAUSE OF ACTION THA T Y OU S TE P IN THE SHOES OF THE S UBSC RI BE R IN THIS CAS E? TO THE RIGHTS A ND REM ED IE S AVAILABLE TO THE SUBSCRIBER?

YES, YOU ARE SUBJECT TO T HE WRITTEN CONTRACT, WHICH INCORPORATES THE ACT, AND WE BELIEVE THAT IS C LE AR F RO M T HE ACT ITS ELF W HICH S PE CIFICALLY SAYS THAT THE CONTRACT H AS T O COMPLY WITH THE ACT A ND I F IT DOES NOT IT HAS TO BE CONSTRUED AS THOUGH IT D ID . > > JUSTICE: AND U NDER T HE ACT WHAT RIGHTS WOU LD A SUBSCRI BER HAVE UND ER THE SE CIRCUMSTANCES?

THE P RO MP T P AY P RO VISION I S VERY CLEAR THAT THEY ARE ENTITLED TO HAV E THO SE CLA IM S PAID ACCORDING TO A S ET S CHEDULE OR I NTEREST TO B E D UE ON PAYMENTS THAT A RE L ATE.

JUSTICE: IF I LOOK A T 6 41.185 WHEN IT TALKS A BOUT THE RIGHTS OF S UB SCRIBE RS I T SAYS THAT THE SUBSCRIBER SHOULD RECEIVE PRO MPT PAYMENT FROM AN ORGAN IZATION P UR SUAN T TO THE SECTION THAT YOU ARE TALKING ABOUT . THAT SUBSECT IO N 1E. S UBSECTION 2 OF THAT S EC TION SAYS THIS SECTION SHA LL NOT B E CON STRUED AS C REATING A CIVIL CAUSE O F A CT IO N B Y A NY S UBSCRIBER OR PROVIDER A GA INST ANY HEALTH MAINT ENAN CE ORGANIZATION. SO IF THE A CT ITS EL F S AYS THAT THE RIGHT I S THE S UB SC RIBE R' S TO RECEIVE P RO MP T P AYMENT UNDER THIS PROVISION, AND I T S PECIFICALLY SAYS T HA T S ECTION SHALL NOT BE CONST RU ED T O CREATE THE C IVIL C AU SE O F ACTION BY A SUBSCRIBER O R PROVIDER, THE N D OESN 'T T HA T L OCK Y OU INTO THE ADMINISTRATIVE --

NO , B ECAUSE THAT IS L IMITED TO THAT PARTICULAR STATUTE. THE P ROMPT PAY S TATUTE I S 3 15 4 , AND CASE LAW IS V ER Y CLE AR T HAT P ROVIDE RS A RE T HIRD P AR TY BENEFICIARIES OF HEALTH INSURANCE CONTRACTS, BECAUSE OF THE VERY NATURE OF T HE CONTRACT IS TO PROVIDE PAY MENT TO THEM ON BEH AL F O F T HE S UBSCRIBER. THE SUBSCRIBER DOES NOT G ET PAY MENT IN T HESE S ITUA TI ON S A S THE ACT MAK ES CLEAR , T HE SUBSCRIBER AND IT IS T O THE BENEFIT OF THE S UB SCRI BE R T O WHERE T HERE IS COVERAGE T O BE OUT OF THE E NTIR E F IGHT A ND I T IS BETWEEN THE H MO A ND THE PROVIDER. AND T HE P ROVI DER I S E NT ITLE D , UNDER THE ACT, T O B E P AI D WITHIN A SET PERIOD OF TIM E AND THERE I S --.

JUSTICE: SO THE STA TUTE I S IN ERROR WHEN IT SAYS THE SUBSCRIBER SHOULD RECEIVE PROMPT PAYMENT FROM T HE ORGANIZATION PURSUANT T O 6 41.3155?

WELL , THERE I S N O S IT UA TION WHERE IT APPEARS U NDER T HE ACT THAT THE SUBSCRI BE R I S ENTITLED TO BRING AN ACT IO N I F THE P ROVIDER IS THE ONE WHO I S PROVIDING THE S ER VICE S AND I T IS AUTHORIZED.

CHIEF JUSTICE: BECAUSE BASICALLY THE WHOLE OR FROM THE SUBSCRIBER'S POINT O F V IEW THE BEAUTY OF THE H MO S YS TE M IS THAT THEY P AY - - T HE Y KNO W WHAT THEY ARE GOING TO P AY A ND THEN THEY DON'T HAVE TO W OR RY ABOUT ANYONE SUING THEM FOR ADDITIONAL SERVICES SO WHAT YOU ARE SAY ING IS T HA T I F T HE P ROVIDER D OE SN 'T H AV E A REM ED Y , BAS ICALLY NO ONE HAS A R EM ED Y?

CORRECT. AND WHEN THEY TALK ABO UT A N A DMIN ISTRATIVE REMEDY AS WE HAVE MADE CLEAR AND THEY HAV E NEVER ADDRESSED , M AX IMUS UND ER THE STATUTE IS V OL UN TA RY , I T IS NOT I N A R EQ UIRE D A DMINISTRATIVE PRO CEEDING. NUMBER TWO, I T S PECI FICALL Y DOES NOT APPLY TO LAT E PAYMENTS. IT SPECIFICALLY DOES NOT A PPLY TO INTEREST PAYMENTS. SO IT COULD NOT A DDRESS T HE SE CLAIMS, AND T HE RE I S N O EXPLANATION EVE R BEE N G IV EN AND IN FACT THEY INC LUDED THE 2004 ANNUAL REPOR T O F M AXIM US IN THEIR A PP EN DIX , N UM BER 8 FOR H EALTH O PTIONS , AND I T SPECIFICALLY SAYS T HEY HAVE N O AUTHORITY TO HANDLE CLA IM S REGARDING LATE PAYMENTS OR INTEREST PAYMENTS.

CHIEF JUSTICE: IF THE STATUTE DOESN'T APPLY , A GA IN LET ME UNDERSTAND WHAT THE UND ERLYING C AUSE O F A CT IO N THAT YOU HAVE. WHAT IS THE C OM MON- LA W C AU SE OF ACTION?

WELL , A DDRE SS IN G THE STATUTE HE MENTIONED I T IS N OT A STA TUTORY CAUSE OF ACT ION , AND WE BELIEVE THAT'S THE WAY THAT STATUTE IS CON STRU ED . IT IS A C ONTR AC T ACT IO N , COMMON LAW CONTRACT A CT IO N. > > CHIEF JUSTICE: BUT YOU H AV E NO CONTRACT?

BUT VIA H AV E A T HIRD -PAR TY B ENEFICIARY S TATU S W HI CH FRANKLY HAS NOT SERIOUSLY BEEN CHALLENGED IN THE SENSE OF EXISTING CASE L AW C ON SI ST ENT LY H OLDS THERE IS THE O RION INS URANCE CASE THAT WAS A HMO PROVIDER CASE AND THEY SPECIFICALLY SAID THERE WERE THIRD-PARTY B ENEFICIARIES. WE HAD T HE V EN CO R H OS PITA L CASE THAT SPECIFI CALL Y SAY S HEALTH CARE PROVIDERS ARE THIRD PARTY BENEFIC IARY !!IES UNDER HEALTH INSUR ANCE POLICIES BECAUSE THEY ARE THE PERSONS WHO ARE S UPPOSED TO BENEFIT FROM THE P AYMENT OF THE MONEY A ND ULT IM AT EL Y BENEFITS THE INSURED OR THE SUBSCRIBER. THAT CASE LAW IS V ERY , V ER Y CLEAR, AND THEY H AV EN 'T C ITED ANY CASE TO THE C ON TR AR Y. WHAT THEY ARE TRYING TO DO I S TO CREATE AN I MM UN IT Y FOR THEMSELVES AS T O N ON CONTRA CT PROVIDERS.

JUSTICE: W HAT ABOUT THIS PENNSYLVANIA CASE?

EXCUSE ME?

JUSTICE: WHAT A BOUT THE PENNSYLVANIA CASE HE JUST CITED?

THE PENNSYL VANIA CASE, THERE IS NO DISCUSSION IN THERE A S TO W HE THER T HERE I S ANY PROVISION SUCH A S I N THE HMO ACT FOR THE C ON SENT - - CONTENTS OF THE CON TRACT TO INCORPORATE THE STATUTORY PROVISIONS AND THERE IS NO DISCUSSION IN THERE REGAR DI NG WHE THER P EN NS YL VANIA RECOGNIZES THAT FLO RIDA HAS FOR 75 YEA RS T HAT C ONTRAC TS THAT ARE REGULATED B Y S TA TU TE S NECESSARILY INCOR PORA TE THE PROVI SIONS OF THE STATU TE INT O THE C ONTRAC T .

JUSTICE: WHAT P THE THIRD-PARTY BENEFICIARY ISSUE , WHETHER OR NOT THE PRO VIDER IS A T HI RD-P ARTY B EN EFICIA RY O F A HEALTH INSURANCE CONTRACT?

THAT IS THE ONLY CASE T HAT GOES TO THE CONTR ARY A ND T HEY DID IT STRICTLY UNDER T HE IR HMO ACT.

CHIEF JUSTICE: S O B UT T HE Y CONTEND THAT EVEN IF THIS WAS A CON TRACT P RO VIDE R , A ND T HE Y A GREE THERE WOULD BE A C AUSE OF ACTION U NDER THE P LA N , THA T T HAT CAUSE O F ACTIO N WOUL D N OT ALLOW THE M T O O R A LLOW THE CONTRACT PRO VIDE R T O AVA IL I TSELF OF T HE S TATU TO RY P ROMP T PAY P RO VISION, W OULD Y OU S PEAK TO THAT?

WELL, THERE I S A P ROVISION THAT WAS ADDED IN 2 00 2 T O T HE PROMPT PAY S TA TUTE T HAT SPECIFICALLY SAYS THAT THE PROVISIONS OF T HAT STATUTE CANNOT BE W AIVE D B Y C ONTR AC T AGREEMENT AND CAN'T B E V OI DED AND NUL LIFIED. I THINK THE LEG IS LA TURE H AS MADE IT CLEAR THAT IT INT ENDS THOSE R IGHTS TO EXIST F OR B OT H CONTRACT AND NONCONTRACT PROVIDERS, AND THEY DID N OT INTEND TO E NA CT A MEA NI NG LESS STATUTE THAT COULD BE E NF OR CED BY NOBODY BECAUSE THE DEPARTMENT OF INSURANCE HAS N O AUTHORITY TO ENFORCE PAYMENT. WHAT THEY HAVE A UTHORI TY TO DO IS IMPOSE FINES , W HI CH A S THE FLORIDA PHYSICIANS UNION CAS E NOTED HAVE B EEN E NT IR ELY INEFFECTIVE AND IN FAC T T HE BREAKDOWN OF THE HMO S YS TEM IS NOT DUE TO HEALTH C ARE PROVIDERS WHO ARE ATTEMPTING TO HAVE THE STA TUTE C OM PLIE D WITH.

JUSTICE: WELL , A SS UM IN G THAT'S TRUE . A ND WE I NCORPO RATE T HE STATUTORY PROVISIONS IN T HERE. DO YOU, AND L ET'S SAY THE P LA N AGREEMENT S AYS T HAT I F THERE IS A COMPLAI NT T HA T THE SUBSCRIBER HAS TO GO THROUGH A GRIEVANCE PROCEDURE SET UP BY THE O RGANIZ AT IO N O R P ROVIDE OTHER REM ED IE S O TH ER T HA N CIVIL, DIR ECTL Y F IL ING A C IVIL SUIT. THEN IF Y OU STEP INT O THE SHOES OF THE SUBSCRIBER , WOULDN'T YOU HAVE TO A T L EA ST A LLEGE E XHAUST IO N O R COMPLETION OF THO SE GRI EVAN CE PROCEDURES AND OTHER REMED IE S BEFORE YOU WOULD HAVE STA ND ING TO BRING THE CIVIL CAU SE O F ACTION?

THAT'S NEVER BEEN A N ISSUE IN THIS CASE , A ND - -.

JUST ICE: I MEAN I F Y OU CONTRACT BETWEEN THE SUBSCRIBER AND THE PRO VI DER SAYS YOU HAVE TO D O X , Y , Z BEFORE YOU CAN BRING A C IVIL SUIT, WHY WOULDN'T Y OU A S A PROVIDER HAVE T O D O THO SE STEPS ALSO?

WHAT I O FF T HE TOP OF MY HEAD WHAT I AM SAYIN G I S THAT A C OMMON LAW C ONTR AC T ACTION , YES, YOU WOULD HAVE TO C OM PLY WITH C ONTR AC TUAL P ROVI SION. ASSUMING THEY DIDN'T I NTER FERE WITH TH E STATUTO RY SCHEME AND I CAN'T TELL YOU OFF THE TOP OF MY HEA D W HETHER THERE WAS ANYTHING IN THE STATUTORY SCHEME THAT MIGHT BE INCONSISTENT WITH CREATING SHALL WE S AY H UR DL ES T O A CONTRACT ACTION? SO I THI NK I B EL IEVE YOU A RE RIGHT BUT I DON'T WANT TO STAND HERE AND TELL YOU.

JUSTICE: PART OF M Y C ONCERN IS READING THE COMPLAINT THERE IS NO ALLEGATION IN THE COMPLAINT AS I READ THEM T HA T ALL C ON DITI ON S PRE CE DE NT T O THE CONTRACT W ER E FIL ED AND A LL P RO CE DURE S F OL LOWED P RIOR TO BRINGING THIS ACTION SO IF YOU ARE BRI NGING IT A S A T HI RD PARTY BENEFICIARY ABSENT T HO SE ALLEGATIONS THEN THE SUMMARY JUDGMENT WAS CORRECT?

NO, IT WAS N OT B EC AU SE I T WAS NEVER RAISED AS A N I SSUE BY THE DEFENSE AND THI S W AS A JUDGMENT ON HAD T HE P LEAD INGS , NOT A JUD GMENT , E XC US E ME , A SUMMARY JUDGMENT . BUT BASED O N T HE P LEAD IN GS THAT WAS NEVER RAI SED A S A N ISSUE SO WE NEVER H AD A N OPPORTUNITY TO ADDRESS IT NOR WAS ANY EVIDENCE E VE R PRESENTED.

JUSTICE: BUT YOU AGREE UNDER THE COMMON LAW IF YOU ARE PROCEEDING UNDER THE COMMON LAW THAT WOULD BE A CONDITION PRESEND ENT ?

IT CO ULD BE A C ON TRACTU AL CONDITION PRESEND ENT. WHETHER IT W OULD B E C ONSI ST EN T WITH THE ACT I CAN'T TELL YOU .

CHIEF JUSTICE: WHAT'S THE CRUX, J UST R EFRE SH M Y R ECOLLECTION ON W HA T WAS I T I N ALL OF THESE CASES T HA T T HE HMO IS NOT DOING? I MEAN DID THE Y EVE NTUA LL Y PAY?

THEY ARE NOT T IM EL Y PROCESSING THE C LAIMS. THEY ARE NOT PAYING I NT EREST WHEN THEY ARE LATE , AND T HEY ARE NOT T RE AT ING C LA IM S T HA T ARE NOT R ES PO ND ED T O ONE W AY OR ANOTHER IN 120 D AY S A S U NCONTESTABLE. AND WE HAVE A BSOL UT EL Y NO REMEDY THAT THE, YOU KNO W , T HE D EPARTMENT OF INS URAN CE H AS N O AUTHORITY OTHER THAN TO SANCTION THEM AND, IN FACT , HEALTH OPTIONS WAS ONE O F THE HMO'S S ANCTIONED IN 1 99 9.

CHIEF JUSTICE: WHEN YOU GO INTO THESE, AND T HIS MAY B E , BEYOND THE SCOPE OF THE PLEADING, B UT JUST TRYIN G T O UNDERSTAND ABOUT WHETHER YOU'VE BEEN D EP RI VE D O F YOU R REM ED IES.YOU COULD DECIDE AND SAY I 'M NOT GOING TO DEAL WITH T HI S H MO ANY MORE , BEC AUSE THE Y DON'T PAY PROMPTLY. I MEAN, YOU C OULD MAK E T HA T DECISION THAT WE DON'T L IKE THE W AY, WHA T T HE IR P AY MENT PRACTICES ARE SO IN THE FUTURE WE'RE NOT GOING TO -- Y OU K NOW , I MEAN YOU ARE NOT A CAPTI VE A UDIENC E LIK E THE S UB SC RI BER IS. CORRECT?

CORRECT .

CHIEF JUSTICE: AND WHEN Y OU ENTER -- IS T HERE ANY TH ING THAT HAPPENS? I MEAN WHEN THE SUB SC RIBER COMES TO E KG , W ESTS IDE E KG , H AS THERE A LREA DY BEE N , I MEA N THERE IS NO CONTRACT , B UT W HA T HAPPENS SO THA T EKG , W ESTS ID E E KG KNOWS THAT IT I S G OING TO HAVE TO LOOK TO THE H MO F OR PAYMENT? IS THERE S OME --

THERE I S A N AUT HO RI ZA TION PROCESS THAT HAS T O O CC UR PRIOR TO THE PATIENT B EING TREATED. AND TO BE HONES T WITH Y OU SINCE WE NEVER GOT P AS T THE PLEADINGS THERE IS NOTHING IN THE RECORD AND I COULDN'T TELL YOU E XACTLY HOW THAT I S PROCESSED , BUT T HE L EGIS LA TU RE OBVIO USLY RECOGNIZED THAT THE ONLY WAY FOR THIS SYSTEM TO WORK E FF EC TIVELY WAS T O H AV E TIMELY P AY ME NT S A S IND IC ATED IN THE PROMP T P AY S TATUTE AND WHAT THEY ARE TELLING YOU IS THAT WE HAVE A BS OL UTELY N O REMEDY.

JUSTICE: WHY W AS T HERE NO ASSIGNMENTS?

EXCUSE ME?

JUSTICE: WHY ARE T HERE N O ASSIGNMENTS?I MEAN YOU MAKE A BIG T HING - - > > THERE ARE N O ASS IG NMENTS IN THE RECORD. I'M NOT SUR E WHY T HE RE ARE NONE.

JUSTICE: WELL , I'M T RYIN G TO UNDERSTAND , A S JUS TI CE PARIENTE SAID, THAT T HE FUL L R AMIFICATION OF ALL OF THI S. AND W HY W OULD N' T THE P ROVI DE R TAKE A N ASS IGNM EN T?

WHY W OULD A P ROVI DE R T AKE ONE?

JUSTICE: WHY NOT?

OH, WHY NOT? I HON ESTLY D O N OT KNO W. PERHAPS THEY BELIEVE THEY WEREN'T NECESSARY BECAUSE T HE CASE LAW HAS L ONG E XIST ED H OLDING THE THI RD P ARTY BENEFICIARIES ENTITLED TO ENFORCE THE UNDER LYIN G CONTRACT.

JUSTICE: W ELL , WE D ON'T KNOW IN THESE INSTANCES WHETHER ASSIGNMENTS WERE TAKEN OR NOT, D O YOU?

WELL , WE HAV E N OT A LLEGED IT. > > JUSTICE: I R EALIZE YOU ARE NOT RELYING O N A N A SS IG NMEN T , YOU KNOW. I G UESS ALL O F U S P RO BA BL Y HAVE THE IMAGE THA T I T WOU LD BE HIGHLY UNU SU AL T HA T A NY PROVIDER WOULD N OT J US T A S PART OF STANDARD O PERATING P ROCE DURE AND F ORMS A ND A LL O F THAT KIND OF THING H AV E WHOEVER IS COMING FOR THE S ERVICE ALS O A SSIG N T HE IR LIVES AWAY A S FAR A S ASSIGNMENTS ARE CONCERNED. THE POINT HERE IS THAT W HAT YOU ARE SAYING I S T HAT Y OU ARE IN NO WAY R EL YING O N A N A SSIGNMENT AS A L EGAL BAS IS FOR THE CLAIMS YOU A RE ASS ERTING .

THAT IS CORRECT AND I 'M SURE IF WE HAD O BT AI NED ASSIGNMENTS THEY WOULD BE UP HERE MAKING THE SAM E ARGUMENT THAT THERE IS NO RIGHT T O ENFORCE THE CONTRACT BECAUSE ALL WE ARE DOING IS A B AC K DOOR STA TUTORY RIGHT OF ACTION.

CHIEF JUSTICE: THE QUESTIONI HAVE FOLLOWING UP ON JUSTICE ANSTEAD IS T HAT A RE Y OU I N THE E XACT SITUATION AS Y OU W OULD BE, I MEAN Y OU A LLEG E Y OU WOULD BE IN T HE EXACT SAM E SITUATION AS IF THERE WERE ASSIGNMENTS , AND SIN CE T HE RE ARE NO A TT OR NE Y' S , I DON 'T KNOW, CAN YOU GET A TTORNE Y' S FEES?

THERE IS A STA TU TO RY PROVISION THAT A PARTY THAT PREVAILS IN A H MO C ON TRAC T I S ENTITLED, IT IS A TWO -WAY STREET TO ATTORNEY'S F EES.

CHIEF JUSTICE: B UT NOT 627.428 FEES. IN OTHER WORDS S O YOU A RE SAYING THERE IS N O D IF FERE NC E IN YOU R S TA TUS V IS-A -V IS T HE HMO WHETHER Y OU H AV E A N ASS IGNMENT OR NOT?

CORRECT.

CHIEF JUSTICE: IT IS AN IDENTICAL RIGHT?

BECAUSE THE EXISTING C AS E LAW HOLDS THAT WE ARE A THIRD-PARTY BENEFIC IARY , A ND THAT IS REALLY THE C OMMO N L AW B ASIS AND WHE THER OR NOT ASSIGNMENTS ARE EVEN PER MITT ED UNDER THEIR CONTRACTS WE DON'T KNOW.

JUSTICE: SO WHAT IS THE CASE YOU ARE RELYING UPO N F OR THE PROPOSITION THAT YOU ARE A THIRD-PARTY BENEFICIARY AND PAYMENT FROM THE INSURANCE COMPANY? > > EXCUSE ME?

JUSTICE: E NTITLED TO PAYMENT FROM A H MO INS UR AN CE COMPANY, NOT ANOTHER TYPE O F INSURANCE COMPANY?

WELL , THE O RION I NSUR ANCE COMPANY CASE OUT OF THE 3 RD S PECIFICALLY SAID THA T I N A HMO SITUATION A PROVIDER W AS SUING THAT THEY WERE A THIRD PARTY BENEFICIARY AND FRA NK LY THEY DID IT WITHOUT ANY LENGTHY DISCUSSION I THINK BECAUSE IT IS SO O BV IO US A ND TO CONSISTENT WITH T HE C OM MO N LAW.

J US TICE: U NDER T HE COM MO N LAW OR ANY OF T HIS S TATUTE IF YOU ARE T HE PHYSICIAN AND YOU PROVIDE ME SERVI CES , A ND YOU BILL ME AND I DON'T PAY I T , WHO DO YOU S UE ?

YOU CAN S EE T HE INS UR ANCE COMPANY.

JUSTICE: UNDER THE COMMON LAW YOU W OULD T YP ICAL LY S UE M E BECAUSE I'M THE R EC IPIE NT O F T HE S ERVICES REN DE RED , CORRECT?

I COULD S UE YOU O R T HE INSURANCE COMPANY.IT IS QUITE L IK ELY T HE CLIENT , THE PATIENT M IGHT NOT B E R ECOVERABLE BUT YOU W OULD G O OF THE INSURANCE C OM PA NY A ND THE VENCOR H OS PITAL CASE HAS APP LEN GTHY DISCUSSION OF HOW IT IS C RY ST AL C LEAR T HA T A GA IN V ENCOR IS A TYP ICAL M ED IC AL INSURANCE S IT UATI ON T HA T T HE HEALTH CARE PROVIDERS ARE THIRD PARTY BENEFICIARIES A ND THEY SAY THAT IT I S CRY ST AL CLE AR AND THAT'S THE WAY THE SYSTEM IS S UPPOSED TO W OR K . I AM I NVAD IN G T HE TIM E O F MIAMI C USS HER E . > > CHIEF JUSTICE: -- O F M Y AMICUS H ER E .

CHIEF JUSTI CE : MIS S A LEXANDER?

STEPHANIE ALE XA NDER F OR T HE FLORIDA H OSPITAL ASSOCIATION, THE FLORIDA MEDICAL ASSOCIATION, THE FLORIDACOLLEGE OF EMERGENCY PHYSICIANS, THE AMERICAN COLLEGE OF EMERGENCY PHYSICIANS AND THE A ME RI CAN MEDICAL ASS OCIATION. I JUST WANT TO RESPOND T O A FEW OF THE QUEST IONS BY THE COURT . THERE WAS AN ISSUE O F WH ET HE R OR NOT THE PROMPT PAY PROVISIONS IN THE STATUTE W ER E INCORPORATED INTO CONTRACT. A ND AS C O-COUN SE L POI NT ED OUT IN SUBSECTION 9 O F 6 41 .315 5 , T HESE P ROTECT IONS CANNO T B E CONTRACTED AROUND W HI CH M EANS THAT THE LEGISLA TURE H AS DETERMI NED THAT THEY HAVE T O GOVERN THE REL AT IO NSHI P BETWEEN THE HMO'S AND T HE PROVIDERS. THAT'S NUMBER ONE. AND NUMBER T WO A S A PRA CTIC AL MATTER IF YOU NEGOTIA TE A CONTRACT WITH A HMO, B AKEL Y NOW WHAT EVERY BO DY S AY S I S , WELL, WE CAN'T C ON TRACT AROUND THE STATUTE AND T HE PROVISIONS GENERALLY COME IN. THAT'S THE FIRST THING. AND THERE WAS A Q UEST IO N F RO M JUSTICE BELL, I THINK, ABO UT WHETHER OR NOT T HE PRO MP T PAY PROTECTIONS RAN TO THE SUBSCRIBER AND HE WAS QUO TI NG 641.185. THERE IS A PROVISION IN 641 .3155, THE P ROMP T P AY STATUTE THAT SAYS FOR A C LA IM S FOR EXAMPLE THA T A SUBSCRI BE R SUBMITS DIRECTLY , Y OU K NO W , LIKE YOU MAY HAVE GONE T O A PROVIDER THAT DOESN'T ACCEPT INSURANCE AND YOU GET THE RECEIPT AND YOU HAVE TO SEND IT IN , T HA T T HOSE A RE GOV ER NED BY THE SAME PROMP T P AY STATUTES. THEY WOULD JUST RUN TO T HE STRIBER IN THAT INSTANC E AN D NOT TO THE P ROVI DE R. W ITH RESPECT TO 6 41 --.

CHIEF JUSTICE: I'M NOT SURE I UNDERST OOD Y OUR L AST EXP LANATION.

OKAY. THE QUEST ION W AS W HE N WOU LD S UBSCRIBERS EVER HAVE PRO MP T PAY RIGHTS? IF THE I SSUE WAS PAYIN G THE PROVIDER. AND I N T HOSE I NS TA NC ES W HE N SUBSCRIBERS SUB MI T T HE CLAIM TO THE INSURANCE C OMPANY DIRECTLY, BECAUSE THEY HAVE GONE TO A P RO VI DE R THA T DOESN'T TAKE I NSURANCE FOR EXAMPLE , O R D OE SN 'T F IL E INSURANCE CLAIMS FOR THEM , THEY WOULD FILE THE C LAIM WITH THE INSURANCE COMPANY AND THE INSURANCE COMPANY, THE H MO WOULD HAVE TO COMPLY WITH T HE SAME STATU TORY P ROVISI ONS. IN TIME IN TERMS O F I NT EREST AND THINGS LIKE THAT .

CHIEF JUSTICE: SO THERE A RE CIRCUMSTANCES WHERE A SUBSCRIBER I S STI LL O N T HE HOOK?

RIGHT.

CHIEF JUSTICE: EVEN THOUGH THEY ARE AUTHORIZED THEY ARE GOING TO AN A UTHO RIZE D PROVIDER?

WELL, THE P OI NT WAS S IM PL Y THAT IF THE Y SEND IT I N DIRECTLY , THE N IN T HE HMO VIOLATES THE STATUTE T HE N T HE SUBSCRIBER MIGHT HAVE A REMEDY THAT DOESN'T HAPPEN VERY O FTEN , BECAUSE 9 9. 9% O F THE CLA IM S G O T HROUGH.

JUSTICE: NOW, IS I T Y OUR POSITION THAT YOU CAN TOTALLY IGNORE THE MED IA TI ON PROVISIONS WITHIN THE ACT? PRIOR TO FIL IN G CIVIL SUIT?

IF YOU A RE R EFERRING TO T HE MAXIMUS PROCEEDING , YES, I THINK IT IS P RE TTY CLE AR THAT THE MAX IMUS P ROCE ED IN G WAS INT ENDED TO BE V OLUN TA RY PROCEEDING. OFFERED AS A METHO D FOR T HE HMO AND THE PROVIDE R T O G O T O AN A LTER NATE DIS PUTE RESOLUTION. IT WAS E NACTED . > > JUSTICE: IF T HA T' S T RUE HOW DO YOU RELATE TO THE 100 % LIABILITY VERSUS THE 5 % DIF FERENTIAL ? > > I T HI NK T HA T THE Y A RE COMPLETELY DIFFERENT ISSUES. IN TERMS OF T HE E NFOR CE MENT SCHEME, THA T' S S ET O UT FOR T HE OFFICE OF I NS UR ANCE REG UL ATIO N , WHAT THE STATUTE SAYS IS THAT A 5% M ARGI N O F E RROR I S OKAY. THAT THEY ARE NOT GOING T O G O AND FIND A H MO I F I T IS W ITHI N A C ERTA IN D IM INIM US PRO CE SSIN G OF CLAIMS. IT DOESN'T SAY AT ALL AND I THINK WE ARE ALL MISSING T HE ISSUE IN THAT THE PROMP T P AY STATUTE SAYS CLEARLY AFTER 120 DAYS, T HE CLA IM S B EC OM E UNCONTESTABLE OBLIGATIONS O F THE HMO. THE L EGISLATURE W AS V ER Y C LE AR , UNCONTESTABLE OBLIGATIONS MEANS THAT IT IS BASIC AL LY A C ONFESSION OF J UDGMENT AND IT IS A CLAIM THAT CAN N O L ON GE R BE DISPUTED. IN ADDITION, THE STA TUTE PROVIDES THAT T HERE I S 1 2% I NTEREST ON T HOSE CLA IMS THAT ARE PAID LATE . THERE IS NO DEF ENSE. NOW, THE ISSUE T HE N FUNDAMENTALLY THAT WE HAVE TO TRY TO RESOLVE I S T HE N I F T HE LEGISLATURE SAYS THAT THESE CLAIMS HAVE TO BE PAID O R T HA T THEY BEC OME INC ONTEST AB LE A ND INTEREST HAS TO B E PAID , T HE N HOW A RE WE GOING T O C OLLECT THEM? R IGHT? AND THEY ARE SAY ING THAT T HERE IS ABSOLUTELY NO MECHANI SM AT ALL.

JUSTICE: LET M E PUT THE OTHER SHOE ON THAT FOOT. IF W E A CC EPT Y OU R POS ITIO N THEN YOU ARE IN A BET TE R POSITION THAN THE S UB SCRI BE R A S FAR AS THE ABILITY T O IMMEDIATELY FILE A CIVIL SUIT?

ME AS WHO, YO UR H ON OR ?

JUSTICE: THE N ON CO NT RACTIN G PROVIDER.

NO , THE S TATUTE , 3 61.3 45 5 PUTS THE CONTRACTED AND THE NONCONTRACTED P ROVIDERS ON AN EVEN BASIS, A ND SO O UR POSITION IS T HA T T HE LEGISLATURE WAS V ERY CLEAR T HE ACT WAS ENACT ED I N 1 99 8. IT WAS AMENDED IN 199 9. TO FURTHER PRO HI BI T HMO PRA CTICES IN 2 00 0 , I N FAC T , THE IN C ON TE ST ABLE L AN GUAGE COMES IN AND THE INTERES T R AT E I S INCRE ASED. AND IN 2 00 2 , T HE L EG ISLATU RE SAYS THESE ARE S O I MPOR TA NT THAT THEY C AN NO T B E W AI VE D . YOU CAN'T W AIVE THEM , N ULLI FY T HEM BY CONTRACT SO THE I SSUE IS CLEARLY T O M E R EA DI NG THE V ERY P LAIN TERMS OF THA T STATUTE THAT CLEARLY THE LEGISLATURE CONTEMPLATES T HA T THOSE CLAIM S ARE G OING TO B E PAID, THE INTEREST IS GOING TOBE COLLECTABLE , A ND T HE IR ARGUMENT HERE TODAY IS T HA T THEY ARE BASICALLY IMMUN E UNDER THAT STATUTE. THERE WOULD BE NO REASON F OR THESE CLAIMS TO BE INCONTESTABLE. NO REASON FOR THE CLAIMS NOT TO BE WAIVE ABLE I F I T W AS N'T E NFORCEABLE.

J USTICE: DO YOU A GREE O R DISAGREE THEY WOULD BE SUBJECT TO $ 25,000 F IN ES P ER VIO LA TION UNDER ADMINIS TRATIVE R EMEDY B Y THE E XECUTIVE BRANC H? IT MAY NOT SOLVE YOUR PROBLEM WITH INTEREST FEES I N GET TI NG PAID BUT T HEY WOULD BE S UB JE CT TO S IGNIFICANT F IN ES AND LOS S OF CERTIFICATE, CORRECT?

I THINK THAT'S VER Y CLEAR. IN FACT, IN 1 99 9 , T WO O F T HE PARTIES HERE WERE, IN FACT , THE SUBJECT O F PROMP T P AY VIOLATIONS AND THEY W ER E FIND BY THE OFFICE OF INS UR AN CE.

JUSTICE: SO THERE ARE REMEDIES AVAILABLE. THE QUESTION IS WHETHER IT IS A PRIVATE REMEDY?

RIGHT. THERE A REN'T ANY R EM ED IE S T O US. IT IS V ERY CLEAR IN THE STATUTES THAT THE OFFICE OF INSURANCE REGULATION DOESN'T HAVE THE AUTHORITY TO C OL LE CT I NDIVIDUAL C LAIMS O N B EHAL F O F PROVIDERS OR INTEREST. SO T HE O NL Y P ARTI ES W IT H A NY A BILITY T O C OL LE CT T HE SE CLAIMS HAS T O B E T HE PROVIDERS.

CHIEF JUSTICE: YOU ARE SUBSTANTIALLY OUT OF TIME. THANK YOU VERY MUCH , MISS ALEXANDER.

THANK YOU.

CHIEF JUSTICE: NOW M IS S G REGOIRE.

THAN K YOU , YOUR HONOR. FIRST OF ALL, I WOULD L IK E T O DISCUSS T HE I MMUN IT Y U ND ER T HE STATUTE THAT WE JUST H EARD . IN VIL LAZO N THI S C OU RT SAI D T HERE I S I MMUN IT Y UND ER T HI S STATUTE.

IT D IDN'T SAY THERE I S IMM UNITY UNDER T HE STATU TE . EXCUSE ME. IT SAID THAT A N ONDE LEGA BL E DUTY ASPECT O F THE S TATU TE CANNOT CREATE A SEP ARAT E TOR T CAUSE OF ACTION.

THAT T HE A CT D OES N OT EITHER IMP LY O R STR ES SL Y - - EXPRESSLY PROVIDE FOR A NON CAUSE OF ACTION.

JUSTI CE : A C AUSE O F ACTIO N AND TORT, R IGHT . E XCEPT FOR S AYING THAT , PLE ASE CONTINUE.

IF A PARTY CANNO T SUE DIRECTLY UNDER THE ACT WHICH I BELIEVE IS WHAT V ILLAZO N S AY S THEN WHAT W E ARE SAY IN G H ERE , WHAT WESTSIDE IS SAYING HERE I CAN'T SUE UNDER THE ACT BUT I CAN BACK DOOR INTO T HE ACT