IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CLASS ACTION COMPLAINT & DEMAND FOR JURY TRIAL

SOUTH BROWARD HOSPITAL

DISTRICT, D/B/A MEMORIAL

HEALTHCARE SYSTEM,

on its own behalf and on

behalf of other similarly

situated healthcare facilities,

Plaintiff,

vs.

ELAP SERVICES, LLC,

a Pennsylvania limited liability company,

and GROUP & PENSION ADMINISTRATORS,

INC., a Texas corporation,

Defendants

__________________________________/

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TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................ 1

PARTIES ....................................................................................................................................... 3

JURISDICTION AND VENUE................................................................................................... 4

FACTUAL BACKGROUND....................................................................................................... 4

I. The Genesis of ELAP’s Deceptive and Illegal Scheme...................................................... 4

A. ELAP’s use of Reference Based Pricing results in lower payments to hospitals and

greater patient financial responsibility.................................................................................... 5

B. ELAP’s use of Reference Based Pricing in its business model violates federal law...... 8

C. ELAP’s marketing ropes employers into ELAP’s web. ................................................. 9

D. ELAP pays itself millions of dollars at the expense of providers, and leaves patients

holding the bag...................................................................................................................... 12

II. ELAP’s Conduct Deceives Healthcare Providers like Plaintiff........................................ 14

A. ELAP conceals its identity and Reference Based Pricing on insurance cards.............. 15

1. The ID card conceals ELAP’s name and role........................................................... 15

2. The ID card references a PPO network familiar to providers to trick them into

expecting fair compensation. ............................................................................................ 16

B. ELAP conceals its role as “Designated Decision Maker.” ........................................... 19

C. ELAP’s front man, GPA, lends legitimacy to ELAP’s scheme.................................... 20

D. ELAP deceives and misleads providers throughout the claim adjudication process.... 20

E. ELAP reveals itself as the decision maker during the appeal process, but refuses to

meaningfully discuss resolution of the claims...................................................................... 21

F. ELAP defends patients to obstruct and deter providers’ collection efforts. ................. 22

G. ELAP directs plan members to ignore providers and breach their Patient Agreements...

....................................................................................................................................... 23

III. Plaintiff and the Proposed Classes Have Been Damaged by ELAP and GPA’s Scheme.

....................................................................................................................................... 24

CLASS ALLEGATIONS ........................................................................................................... 25

CLAIMS FOR RELIEF ............................................................................................................. 30

DEMAND FOR JURY TRIAL.................................................................................................. 40

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Plaintiff South Broward Hospital District d/b/a Memorial Healthcare System (“Memorial”

or “Plaintiff”) sues ELAP Services, LLC (“ELAP”) and Group and Pension Administrators, Inc.

(“GPA”) (collectively “Defendants”), and alleges as follows:

INTRODUCTION

1. ELAP touts its service as a way for businesses to save money on healthcare by

fighting expensive hospital bills. ELAP convinces its clients — employers with self-funded

insurance plans — to let ELAP handle the administration of their employees’ healthcare claims,

including the decisions on how, and in what amount, each employee’s healthcare claim will be

paid.

2. ELAP refers to its service as a “fair” promotion of “responsible and sustainable

management of healthcare costs.”

3. There is nothing fair, responsible, or sustainable about ELAP’s service.

4. ELAP has devised a scheme to make tens of millions of dollars off the backs of

hospitals and healthcare facility providers while adding zero value to the provider – patient – health

insurance relationship.1

5. The crux of the scheme is ELAP’s systematic method of underpaying healthcare

providers, like Plaintiff, for the healthcare services provided to ELAP’s clients. ELAP refers to its

underpayment scheme as a healthcare reimbursement model called “Reference Based Pricing.”

6. ELAP’s application of Reference Based Pricing is arbitrary, uniform, and

unilateral. ELAP relies on this Reference Based Pricing to direct its employer clients to pay

healthcare providers a fraction of the reasonable value of their services for each healthcare claim

1 For clarity, Plaintiff and the putative classes of healthcare facility providers will generally be

referred to simply as hospitals or providers.

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that ELAP reviews. Remarkably, while ELAP holds itself out as responsibly managing healthcare

costs by fighting excessive hospital bills, ELAP is actually compensated based on a percentage of

the very hospital bills it claims are excessive.

7. ELAP knows that, because of its extreme underpayment scheme, no healthcare

provider would knowingly or voluntarily do business with ELAP. So ELAP conceals its

involvement in the patient-provider process, and exploits state and federal laws that require

hospitals to treat patients in emergency situations without inquiring about their ability to pay.

8. ELAP conspires with two other ostensibly legitimate companies to perpetrate its

scheme. First, it directs its clients to contract with Defendant GPA, a third-party claims

administrator that is familiar to healthcare providers like Plaintiff.

9. ELAP then creates insurance cards for its clients’ members that not only omit any

reference to ELAP or Reference Based Pricing, but also include the logos for both GPA and

another established healthcare company, MultiPlan. MultiPlan operates a well-known health

insurance network with contracts and pre-negotiated rates with many healthcare providers,

including Plaintiff.

10. The GPA and MultiPlan logos dupe healthcare providers like Plaintiff, which

contracts with MultiPlan and is in MultiPlan’s paid provider network, into providing treatment

under the belief that they will be reimbursed at their contracted rates with MultiPlan.

11. But the hospitals will never receive payment at the MultiPlan rates, because ELAP

directs its clients to honor the MultiPlan rates only for physician and healthcare professionals; for

the actual hospitals, ELAP directs its clients to pay a fraction of the MultiPlan rates. This means

that the doctors get paid their MultiPlan rates, while the hospitals get paid whatever ELAP decides

using its Reference Based Pricing.

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12. ELAP only reveals its involvement to the providers once the healthcare services

have already been provided and billed, and after ELAP has unilaterally and arbitrarily decided how

much the provider will be paid — at a fraction of the reasonable value of the provider’s services.

13. When a provider tries to combat ELAP’s deceit by appealing the arbitrary payment,

ELAP responds with uniform boilerplate denials, forcing the healthcare provider to seek full

reimbursement from the patient.

14. But if the provider actually seeks reimbursement from a patient, ELAP sends

intimidating and threatening attorney letters designed to deter the hospital from obtaining full

payment for its services.

15. ELAP’s scheme funnels hard-earned revenues from healthcare providers like

Plaintiff into ELAP’s pocket.

16. ELAP has made hundreds of millions of dollars as a result of this scheme.

17. This is a class action to expose ELAP’s deception.

18. Plaintiff, on behalf of itself and the putative class, seeks to recover the millions of

dollars that ELAP and GPA have stolen from healthcare providers like Plaintiff, and to enjoin

ELAP and GPA from their continued deceptive and unfair trade practices.

PARTIES

19. Plaintiff is an independent special tax district and healthcare system in Broward

County, Florida, consisting of various healthcare facilities and providers, including hospitals,

physicians, and outpatient facilities.

20. ELAP is a limited-liability company organized and existing under the laws of

Pennsylvania, with its principal place of business in Chesterbrook, Pennsylvania.

21. GPA is a corporation organized and existing under the laws of Texas, with its

principal place of business in Dallas, Texas.

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JURISDICTION AND VENUE

22. This Court has original jurisdiction over this class action pursuant to the Class

Action Fairness Act (“CAFA”) and 28 U.S.C. § 1332(d) because members of the proposed Class

are citizens of states different from ELAP’s and GPA’s home states of Pennsylvania and Texas,

and upon information and belief the total amount in controversy in this action exceeds $5,000,000

exclusive of interest and costs. This Court has supplemental jurisdiction over Plaintiff’s state law

claims under 28 U.S.C. § 1367.

23. This Court has personal jurisdiction over Defendants pursuant to Florida Statutes

§§ 48.193(1)(a)(1) and (1)(a)(2) because (i) Defendants operate, conduct, engage in, or carry on

business in this state; and (ii) Defendants have committed tortious acts within this state. This Court

also has personal jurisdiction over Defendants pursuant to Florida Statutes § 48.193(2) because

Defendants engage in substantial and not isolated activity within this state.

24. Venue is proper in this Court under 28 U.S.C. § 1391 because Plaintiff is domiciled

and resides in this judicial district and it is where a substantial part of the events giving rise to this

action occurred.

25. All conditions precedent to this action have occurred, been performed, or have been

waived.

FACTUAL BACKGROUND

I. The Genesis of ELAP’s Deceptive and Illegal Scheme

26. ELAP holds itself out as providing healthcare claims auditing, repricing, and legal

support services to self-funded plans.

27. A “self-funded” plan is a healthcare plan where an employer assumes the financial

risk of providing healthcare benefits to its employees. Because employers lack the knowledge and

resources to determine how to process and pay their employees’ health insurance claims, they often

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outsource claims handling functions to third-party administrators, such as GPA, who handle the

administration of the policies.

28. ELAP contracts with Defendant GPA to provide third-party administrator services

for the ELAP-designed self-funded plans. GPA touts itself, together with ELAP, as “leaders and

co-founders of metric based pricing.”

29. What ELAP and GPA refer to as “metric based pricing” is more commonly known

as Reference Based Pricing.

A. ELAP’s use of Reference Based Pricing results in lower payments to hospitals

and greater patient financial responsibility.

30. Reference Based Pricing is a payment model that some health plans are

implementing in lieu of traditional PPOs.

31. In a Reference Based Pricing regime, the health plan sets an arbitrary amount it will

pay healthcare providers. This arbitrary amount is referred to as the “allowed amount.” Plans that

use Reference Based Pricing unilaterally determine the maximum amount they will pay, and then

the patient is financially responsible for paying the difference between the provider’s charges and

the allowed amount.

32. Transparent and fair Reference Based Pricing is not inherently wrong, but requires

the plan to (1) set a reimbursement level that providers would actually accept, and (2) disclose the

reimbursement level before service to allow the member to either shop for a provider who will

accept the reimbursement amount, or plan to pay the difference between the reimbursement

amount and what the provider will accept. Transparent and fair Reference Based Pricing also

complies with applicable state and federal laws, rules, and regulations regarding reimbursement

for emergency services, which are designed to prevent patients from being forced to pay excess

amounts of money out of their own pocket.

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33. ELAP does not operate or apply a transparent and fair Reference Based Pricing

model. ELAP designed and operates a deceptive and unfair Reference Based Pricing model that

fails to comply with applicable laws, sets unreasonably low reimbursement levels, conceals

information from providers and members, stonewalls providers that attempt to resolve billing

disputes, and cheats everyone involved in the process to enrich itself.

34. ELAP’s Reference Based Pricing structure typically sets their allowed amount at

120%-125% of what Medicare pays.

35. ELAP’s reliance on Medicare cannot serve as a reasonable foundation for fair

reimbursement, because those payment rates are set by federal law, rather than through an arm’slength negotiation process as with private insurers.2

36. In a January 2019 fact sheet entitled “Underpayment by Medicare and Medicaid”

published by the American Hospital Association, Medicare and Medicaid payment rates are

“currently set below the costs of providing care, resulting in underpayment.”3In the aggregate,

both Medicare and Medicaid payments fall below costs:

 Combined underpayments were $76.8 billion in 2017. This includes a shortfall

of $53.9 billion for Medicare and $22.9 billion for Medicaid.

 For Medicare, hospitals received payment of only 87 cents for every dollar

spent by hospitals caring for Medicare patients in 2015.

2 While hospital participation in Medicare is technically voluntary, Medicare and Medicaid

account for more than 60 percent of all care provided by hospitals, so very few hospitals can elect

not to participate in these programs. See UNDERPAYMENT BY MEDICARE AND MEDICAID, AHA

(Jan. 2019), https://www.aha.org/system/files/2019-01/underpayment-by-medicare-medicaidfact-sheet-jan-2019.pdf.

3

See id. Underpayment means the difference between the expected reimbursement and the

payment for delivering care to patients. Underpayment occurs when the payment received is less

than the reasonable value of the healthcare services provided.

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 In 2017, 66 percent of hospitals received Medicare payments less than cost.4

37. Medicare-based pricing methodologies like Reference Based Pricing employed by

ELAP (1) have no bearing on commercial claims, (2) are far lower than what is usual and

customary in the industry, and (3) are drastically below the reasonable value of the healthcare

services that hospitals provide.

38. Patients with ELAP’s Reference Based Pricing plans believe they have insurance

that will cover their treatment and are often surprised by large medical bills after the services are

rendered. These surprise medical bills create conflict between the healthcare providers and their

patients. The patient and the healthcare provider do not and cannot discover this unilateral and

arbitrary allowed amount until after the services are rendered.

39. Patients frequently cannot afford the medical bills created by ELAP’s Reference

Based Pricing, and the result is that the healthcare providers are inadequately compensated for the

care they furnish.

40. Conversely, under the traditional PPO model, healthcare providers like Plaintiff

enter into participation agreements with PPOs that are composed of insurance companies, thirdparty administrators, and rental networks.

41. These PPO participation agreements include discounted reimbursement rates that

the self-funded plans agree to pay healthcare providers, so payment of the pre-negotiated rate

constitutes payment in full. And under these participation agreements, healthcare providers are

not permitted to “balance bill” patients for the difference between the discounted rate and the

healthcare provider’s full billed charges.

42. Self-funded plans contract with PPOs to ensure their members have access to the

4

See id.

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PPO’s network and quality healthcare at a more cost-effective price. Providers agree to discount

their charges for PPOs for a variety of reasons, including prompt payment of their bills, payment

certainty, and increased volume of patients that a PPO can supply.

43. Patients whose plans do not have a participation agreement with a healthcare

provider (i.e., they are out-of-network) do not receive discounts on healthcare goods and services.

Rather, the patients’ payment obligations are governed by the patient agreements entered into

between the providers and the patients prior to rendering services.

B. ELAP’s use of Reference Based Pricing in its business model violates federal

law.

44. ELAP’s business model uses Reference Based Pricing to shift financial

responsibility for healthcare services from employer to employee/patient. But patient

responsibility is regulated — and capped — under the Patient Protection and Affordable Care Act

(“ACA”). ELAP nevertheless designs its benefit plans in a way that end runs clear prohibitions of

the ACA.

45. The ACA requires self-insured welfare plans like ELAP’s plans to limit their

members’ cost-sharing obligations (i.e., out-of-pocket) to a certain maximum amount. See 42

U.S.C. § 18022(c)(1). In 2019, this maximum amount was $7,900.00 for an individual and

$15,800.00 for a family.

46. The United States Departments of Labor, Health and Human Services, and the

Treasury anticipated that Reference Based Pricing might result in increased patient financial

responsibility, so they only allowed the use of Reference Based Pricing if it “[d]oes not function

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as a subterfuge for otherwise prohibited limitations on coverage.”5

47. Thus, according to the Departments, plans cannot use Reference Based Pricing for

emergency services because doing so end runs the ACA’s cost-sharing maximum requirement.

48. But ELAP’s plans do exactly what the Departments tried to prohibit: they end run

the ACA’s cost-sharing maximum requirement.

49. ELAP has developed a template benefit plan that uses Reference Based Pricing to

come up with an arbitrary allowed amount. Under ELAP’s plans, plan members are financially

responsible for any amounts in excess of the allowed amount. Because ELAP’s allowed amounts

are well below the reasonable value of the providers’ services, plan members are stuck with outof-pocket obligations exceeding what is permitted by the ACA.

50. All of ELAP’s violations further its deceptive and unfair scheme to the detriment

of healthcare providers like Plaintiff.

C. ELAP’s marketing ropes employers into ELAP’s web.

51. ELAP’s clients are employers with self-funded benefit plans that pay ELAP to

administer and audit their healthcare claims.

52. To further its scheme, ELAP regularly markets its Reference Based Pricing

strategy to prospective and current clients as a “fair” pricing methodology. ELAP markets itself as

empowering “employers, employees, and their families to get the most value from their health

spend — while bringing clarity, consistency, and fairness to the entire plan experience.”6

5 ACA FAQ 21 (October 10, 2014), https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/ouractivities/resource-center/faqs/aca-part-xxi.pdf.

6 A DECADE OF SUCCESS WITH REFERENCE BASED PRICING, ELAP,

https://www.elapservices.com/10-year-trend-report/ (emphasis added).

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53. According to ELAP, “[t]he health plan documentation defines pricing limits upon

which claims will be paid, ensuring that fair prices are paid for medical services,” and ELAP builds

“meaningful connections with employers, members, and hospitals and health systems to ensure a

fair price for quality healthcare.”7 ELAP’s marketing material include the following:

54. ELAP also tells prospective and current clients that they “can be confident that

7 MANAGING HEALTHCARE COSTS, A TRANSFORMATIVE SOLUTION, ELAP,

https://www.elapservices.com/managing-healthcare-costs-a-transformative-solution/ (emphasis

added).

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medical facilities will be compensated fairly and promptly.”8 Even ELAP’s mission statement

touts alleged fairness: “[t]o recognize a medical provider’s actual cost in delivering services and

to allow a fair margin above that cost.”9

55. GPA markets itself as a third-party administrator that is “small enough to care, but

large enough to deliver.” According to GPA, it “combines industry leading technology and tools

with ‘high-touch’ patient care to deliver the healthiest employees and the ‘healthiest’ bottom line.”

GPA also advertises that (a) employees will not be denied care by facilities; (b) employees’ credit

will not be impaired due to non-payment of medical bills in excess of the allowed amount; and

(c) the plan and plan members are protected.

56. As part of ELAP’s marketing ploy, it promises plans and plan members that they

will not be held responsible for any charges above what ELAP sets as the plan’s allowed amount.

ELAP tells prospective and current clients that its services will reduce the risk of balance billing

“because the solution is focused on fair payment to medical providers,” so providers will be

unlikely to seek additional payment from the plan member.10

57. ELAP knows there is no law that prohibits providers like Plaintiff from balance

billing self-funded employer group plan members11; and there is no federal law that prohibits

8 ELAP OVERVIEW WITH BLINDED SAVINGS DATA (July 6, 2015),

https://houstonbch.starchapter.com/images/downloads/Program_Presentations/hbch_june_24___

elap_presentation.pdf.

9

Id.

10 DEBUNKING THREE MYTHS ABOUT REFERENCE-BASED PRICING, ELAP,

https://www.elapservices.com/debunking-three-myths-about-reference-based-pricing/ (emphasis

added).

11 There are certain state laws that prohibit balance billing, which typically do not apply because

they are preempted by ERISA.

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providers from balance billing plan members for emergent and non-emergent services.

58. ELAP goes a step further, however, and directs plan members not to enter any

payment arrangements with providers like Plaintiff, or agree to make upfront payments. ELAP

advises plan members to “NEVER sign a payment plan at a facility/hospital as this will take ELAP

out of the process, due to the facility/hospital now having that YOU (the member) are taking

responsibility for any outstanding balance. If you are asked to do such an act, please contact GPA

immediately.”12 ELAP also advises subscribers that “[s]ince ELAP will often reduce the amount

you owe after auditing a bill, you could overpay by paying up front and the facility will not

reimburse you.”13

59. ELAP’s deceptive marketing practices mislead employers into believing that they

can use ELAP’s plans to save millions of dollars, unaware that the Reference Based Pricing

methodology is unfair, deceptive, misleading, and in many cases, in violation of the ACA.

D. ELAP pays itself millions of dollars at the expense of providers, and leaves

patients holding the bag.

60. ELAP’s scheme has caused irreparable harm to the provider-patient relationship,

and left countless patients holding the bag while ELAP has made millions off the backs of

providers like Plaintiff.

61. Ironically, ELAP claims that the amounts billed by providers are excessive and

inflated despite the fact that ELAP is paid based solely on those amounts. That is to say, ELAP

12 U.S. Cotton, Your 2019 Benefits, http://www.explainmybenefits.com/wpcontent/uploads/2018/11/Final-US-Cotton-2019-OE-Guide-11.13.18v2.pdf.

13 FREQUENTLY ASKED QUESTIONS, ELAP, https://www.explainmybenefits.com/wpcontent/uploads/2018/11/ELAP_EMPLOYEE_FAQs2_FINAL-NoCrops-10.26.17.pdf.

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charges its clients 12% of the provider’s total billed charges for any claim. So, as providers’ billed

charges go up, the more ELAP gets paid by its clients.

62. GPA is paid in various ways, including the number of enrolled employees, access

fees, a percentage of the plan’s savings, or a fee for administering the claims. Defendants

accordingly profit exponentially as more members are enrolled and providers like Plaintiff are paid

less.

63. Defendants have no incentive to reduce the billed charges they claim are

“unconscionable,” because that would hurt their bottom line.

64. To the contrary, their scheme is designed to underpay providers, take high fees from

their clients (e.g. 12% of billed charges), and stick patients with the remaining balance of billed

charges, leaving patients exposed to collection efforts and lawsuits, and unable to access providers

for non-emergent care.

65. Defendants are aware that providers may refuse non-emergent services to plan

members who have a balance with the provider because of Defendants’ actions. Yet Defendants

do nothing to rectify the billing dispute because they have already made their money. Instead, they

simply direct the plan member to another provider who similarly falls victim to Defendants’

systemic scam.

66. Ultimately, Defendants make millions of dollars in profits as a result of their

scheme, leave plan members exposed to balance billing, and, in some cases, unable to get nonemergent services from a provider because of Defendants’ actions.

67. The only entities that benefit from Defendants’ business model are the Defendants

themselves. Patients lose out on care and are exposed to balancing billing and legal action. The

self-funded plans fail to provide comprehensive medical care for their members and fail to provide

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the quality of coverage they promise. And providers are forced into a Hobson’s choice of eating

massive underpayments or balance billing unsuspecting patients, either eroding the overall quality

of care they can provide or destroying the relationship they have with individual patients.

68. Upon information and belief, GPA’s revenue in 2018 was approximately $150

million and ELAP’s revenue was approximately $180 million.

II. ELAP’s Conduct Deceives Healthcare Providers like Plaintiff.

69. Once ELAP has duped plans into buying ELAP’s services, ELAP sets its sights on

its true victims — healthcare providers like Plaintiff.

70. When a self-funded plan member goes to a provider like Plaintiff, or any other class

member, for medical treatment, he or she provides an identification card. The identification card

is a representation to the provider that the patient is covered by insurance issued by his or her selffunded plan. The identification card identifies the self-funded plan’s third-party administrator, and

usually instructs the provider to submit the patient’s claim for payment to that third-party

administrator.

71. The identification card also shows the provider whether the patient has access to

PPO networks, and providers like Plaintiff rely on this information to determine whether the

services are “in-network” and will be paid at a pre-negotiated contractual rate.

72. Providers like Plaintiff are not required to seek authorization from a self-funded

plan for emergent services. But for non-emergent claims, the provider contacts the plan’s thirdparty administrator to obtain prior authorization and to ensure the healthcare services are covered.

The third-party administrator’s authorization induces the provider to provide non-emergent

services to the patient, who could otherwise receive healthcare services at another location.

73. When a self-funded plan member seeks services at a facility like Plaintiff’s, he or

she enters into a contract with the hospital called the “Patient Agreement.” Under the Patient

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Agreement, the plan member agrees to pay the provider’s billed charges as a precondition to

receiving services, and to be legally responsible for billed charges in the absence of a predetermined discount.

74. After the provider provides its services, it submits a claim form to the third-party

administrator for processing which describes the services it provided to the patient. The claim

contains the provider’s standard billed charges. If the provider is in-network with the self-funded

plan, the provider is entitled to payment at the pre-negotiated (discounted) contractual rate. But if

the provider is out-of-network with the plan, the provider is entitled to payment at its full billed

charges.

75. Once the provider submits a claim, the third-party administrator must respond to

the provider, explaining whether the plan denied or approved each billed procedure code and the

reasons for any denial. If the self-funded plan is in-network, the process to appeal a denial or

underpayment is controlled by the applicable participating provider agreement.

76. ELAP’s scheme deceives and frustrates providers like Plaintiff from the moment

ELAP’s plan members walk through the facility doors until providers attempt to collect payment

on their medical services.

A. ELAP conceals its identity and Reference Based Pricing on insurance cards.

77. ELAP designs the insurance ID cards that plan members present to providers like

Plaintiff. The cards are designed to deceive providers in a number of ways.

1. The ID card conceals ELAP’s name and role.

78. First, ELAP omits its name or any connection to Reference Based Pricing on the

identification card.

79. ELAP knows that if it revealed itself to providers on the ID card, no reasonable

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provider would provide medical treatment — beyond treatment it is legally obliged to provide —

to an ELAP plan member without securing payment up-front.

2. The ID card references a PPO network familiar to providers to trick

them into expecting fair compensation.

80. Second, ELAP uses a third-party PPO network called Multiplan (also sometimes

referred to as PHCS) to dupe providers like Plaintiff into expecting reimbursement for its services

at agreed “in-network” contract rates.

81. Multiplan is a PPO which enters into contracts with numerous health care providers

including Plaintiff.

82. These providers agree to provide services to Multiplan clients at discounted rates.

The group of providers as a whole is referred to as the PPO network.

83. Multiplan also enters into agreements with health insurance companies and

administrators, including ELAP and GPA, which gives these companies and administrators access

to the discounted rates of the PPO network.

84. The insurance companies offer incentives to their members to use participating

providers like Plaintiff in the form of lower co-pays and deductibles.

85. In exchange for agreeing to a discounted rate, these providers receive an increase

in the number of patients, as the majority of the patients will seek medical services from providers

in the PPO network.

86. When one of these providers renders services to a member of one of Multiplan's

clients, Multiplan “reprices” the claim to reflect the discounted rate.

87. ELAP’s deception with MultiPlan works as follows: providers like Plaintiff

contract with MultiPlan to offer discounted healthcare goods and services to MultiPlan’s clients,

which include self-funded plans like ELAP’s clients. GPA also contracts with MultiPlan and

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offers its clients access to MultiPlan’s network. As a result, these plans are permitted to access

discounted healthcare services from the provider through its contract with MultiPlan.

88. The relationship between the provider (here Plaintiff), MultiPlan, and ELAP’s selffunded plans is represented by the below diagram:

89. MultiPlan’s clients place the MultiPlan/PHCS logo on their insurance identification

cards:

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Front of Insurance Card Back of Insurance Card

90. This represents to providers like Plaintiff that the plan is part of the MultiPlan

network and that the provider will be paid the contracted rate. That contracted rate applies to both

(1) facility services, i.e., healthcare goods and services provided at a healthcare facility, such as a

hospital; and (2) physician services, i.e., healthcare goods and services provided by a physician.

91. ELAP uses its and/or GPA’s relationship with MultiPlan to trick providers like

Plaintiff into expecting reimbursement at the MultiPlan rate for facility services through a twostep process.

92. First, ELAP requires its plans to only contract with MultiPlan for physician services

— not facility services.

93. This ensures that the MultiPlan logo will appear on the patient insurance ID card,

and gives providers like Plaintiff a reasonable business expectation — upon seeing the ID card

with the MultiPlan logo — that they will be paid at the rates contained in their MultiPlan contract

for any client listed on MultiPlan’s client list.14

14 The reasonableness of the provider’s expectation is bolstered by the fact that (1) MultiPlan does

not have a separate “physician only” network, and (2) healthcare providers like Plaintiff have

contracts with MultiPlan that do not permit MultiPlan to carve out services for physicians.

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94. ELAP’s tactics result in providers like Plaintiff receiving payments far below the

level consistent with the terms of their MultiPlan contract.

95. As Step Two, ELAP directs its plans to refuse to honor the provider’s contract with

MultiPlan for facility services, so that ELAP can pay these “facility” claims at its arbitrary

Reference Based Pricing allowed amount.

96. The result is that a physician rendering services at the healthcare facility will be

fully compensated for his work at the MultiPlan-contracted amount, but the provider — the facility

— will be drastically underpaid.

97. At the time of service, providers like Plaintiff reasonably expect their services will

be paid in accordance with their contract with MultiPlan and have no knowledge that the patient

is covered by a plan that uses Reference Based Pricing or that the plan will not honor the rates in

the provider’s MultiPlan contract.

B. ELAP conceals its role as “Designated Decision Maker.”

98. ELAP also conceals its involvement as the plan’s “Designated Decision Maker.”

99. When ELAP creates (or modifies) a benefit plan for one of its clients, it designates

itself as the decision maker. Through this alleged authority, ELAP purportedly audits the claims

line-by-line. Using Reference Based Pricing, ELAP reprices Plaintiff’s claims, and the claims of

other providers like Plaintiff, unilaterally deciding the allowed amount, and directs the plan to pay

Plaintiff in that amount.

100. By concealing ELAP’s involvement as the plan’s decision maker, providers like

Plaintiff are unable to make an informed decision as to whether to provide non-emergent services

to ELAP plan members or whether to seek advance payment before providing care. ELAP

conceals its involvement as the decision maker because it knows providers like Plaintiff will not

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voluntarily treat ELAP plan members for non-emergent services because ELAP’s model is

designed to deceive and underpay them.

C. ELAP’s front man, GPA, lends legitimacy to ELAP’s scheme.

101. In addition to ELAP’s deceptive conduct vis-à-vis the insurance cards, ELAP uses

GPA to misrepresent the plans’ benefits to providers.

102. For non-emergent claims, plan members’ identification cards direct providers like

Plaintiff to contact the plans’ third-party administrator to determine if prior authorization is

required for the services.

103. GPA, ELAP’s third-party administrator, tells Plaintiff, and other providers like

Plaintiff, that prior authorizations are not required for the services and there are no limits on outof-network benefits. GPA fails to disclose to the provider that the services will be paid using

Reference Based Pricing and that the rates in the provider’s contract with MultiPlan will not be

applied to facility services (as opposed to physician services).

104. GPA uniformly omits this information, which induces the provider to provide nonemergent services to patients in ELAP-operated self-funded plans. If the provider knew that ELAP

was making the decision to pay it at the Reference Based Pricing rate for the services, and not in

accordance with its contract with MultiPlan, it would not provide non-emergent services to an

ELAP plan member without prepayment.

D. ELAP deceives and misleads providers throughout the claim adjudication

process.

105. Once ELAP has deceived providers into providing medical services, it continues

its deceptive practices during the claim adjudication and payment processes.

106. After Plaintiff, or a similarly situated provider, submits a claim to GPA as the thirdparty administrator, as described in paragraph 74 above, GPA sends an underpayment and an

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explanation of that payment to the provider’s lockbox account/address, rather than directly to the

provider. Lockbox banking is a service provided by banks to companies for the receipt of payment

from customers. Under the service, the payments made by customers are directed to a special post

office box instead of going to the company. The bank goes to the box, retrieves the payments,

processes them, and deposits the funds directly into the company’s bank account.

107. Accordingly, the provider does not see the explanation of payment until weeks later

— after the underpayment has already been deposited by the bank.

108. ELAP deceptively adds a sentence in the explanation of payment that the payment

— which has already been deposited in the provider’s lockbox account — amounts to an accord

and satisfaction of the claim, even though the provider had no prior knowledge of the Reference

Based Pricing rate and did not have the ability to decline payment.

109. ELAP also provides explanations of payment that are confusing, deceiving, and

misleading to further delay the process. The explanation of payment does not identify ELAP or

provide any reasons why a particular service was denied or reduced, and does not give providers

like Plaintiff sufficient information to articulate an informed response in an initial appeal.

110. The explanation of payment does disclose, for the first time in the entire providerpatient relationship, that the claim is being repriced based on Medicare rates. This, of course,

ignores the fact that the billed rates are governed by contract, such as participation agreements like

Plaintiff’s contract with MultiPlan or its Patient Agreement with members of ELAP’s self-funded

plans. Even though the claims have nothing to do with Medicare, ELAP misleadingly uses

Medicare as its illegitimate justification for underpaying providers.

E. ELAP reveals itself as the decision maker during the appeal process, but refuses

to meaningfully discuss resolution of the claims.

111. When a provider like Plaintiff appeals the plan’s underpayments, it receives a

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response from ELAP, at which point ELAP finally announces its involvement and reveals to the

provider that ELAP is the decision maker.

112. ELAP uniformly replies to providers with the same generic template response that

does not address the provider’s specific arguments in its appeal.

113. For example, ELAP’s generic response includes language that the provider accepts

ELAP’s determination and waives any right to recover expenses from the plan member if it

participates in the appeal.

114. These letters are designed to create a catch-22 for providers — they can either

exhaust administrative remedies by appealing the plan determination, which could potentially

waive their right to collect from the patient, or they can forego their right to take legal action

against the plans and pursue the balance due from the patient. Unbeknownst to the providers,

ELAP never changes its arbitrary determination — and the appeals process is a sham.

115. The generic response letters also claim there is no contract between the facility and

plan, even though the plans are subject to PPO participation agreements, and the plan members

are subject to the Patient Agreements.

116. ELAP’s template responses are designed to wear down providers like Plaintiff, and

drive up providers’ administrative costs.

F. ELAP defends patients to obstruct and deter providers’ collection efforts.

117. ELAP knows there is no law that prohibits providers like Plaintiff from balance

billing self-funded employer plan members, but nevertheless deceptively advises plans and plan

members that they will not be financially responsible for amounts beyond the allowed amount.

118. If the provider does balance bill the patient, ELAP pays for a legal defense to deter

further collection activity. ELAP’s attorneys, purporting to act on behalf of the plan members (but

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being paid by and taking direction from ELAP), send the same template demand letter to providers,

without addressing any of the issues the provider raised in its appeals. The template letter asserts

the provider cannot balance bill the plan member because the provider’s billed charges are

purportedly “unconscionable, deceptive, and discriminatory.”

119. ELAP’s business model is built around the expectation that providers, like Plaintiff,

will give up and accept ELAP’s insufficient payment because the cost to collect exceeds the

outstanding balance.

120. For example, GPA boasts that from July 2008 to April 2016, there were only 171

lawsuits filed against GPA’s plan customers who used the Reference Based Pricing model, and

claims that all lawsuits were successfully defended.

121. For ELAP, providing the legal defense for plans and plan members relating to the

Reference Based Pricing scheme is a small cost of doing business because they are making millions

in return.

G. ELAP directs plan members to ignore providers and breach their Patient

Agreements.

122. Pursuant to the Patient Agreement that all patients receiving treatment sign,

members of self-funded plans (both ELAP and non-ELAP plans) agree to pay Plaintiff’s billed

charged for healthcare goods and services received at Plaintiff’s facilities.

123. ELAP encourages its plan members to obtain healthcare services at providers’

facilities, knowing they will not pay in full for the services rendered.

124. ELAP advises plan members that they can obtain care wherever they like regardless

of cost. ELAP tells plan members that they are not responsible for costs in excess of their co-pay,

coinsurance, or deductible; and directs them not to pay any upfront money to providers like

Plaintiff other than these amounts.

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125. ELAP knows its plan members have entered into the Patient Agreement with

providers like Plaintiff. ELAP still encourages its plan members to disregard the terms of their

Patient Agreements by misrepresenting that they are not required to pay the balance of the bill,

directing plan members to ignore provider collections requests, and promising to pay for legal

counsel to defeat the provider’s efforts to collect.

126. ELAP thus interferes with the provider’s ability to enforce the Patient Agreements

and collect anything beyond ELAP’s unilaterally established allowed amount. ELAP knows that

once valuable care has been received, the entirety of the benefit of the health care transaction has

been bestowed on the plan member, leaving the provider with the burden of trying to collect the

amount the plan member already agreed to pay.

III. Plaintiff and the Proposed Classes Have Been Damaged by ELAP and GPA’s Scheme.

127. Plaintiff and the proposed Class members provided emergent and nonemergent

healthcare services to Defendants’ plan members.

128. Plaintiff and the proposed Class members provided these services because they

trusted that they would be reimbursed for the reasonable value of their services — not the allowed

amount arbitrarily and unilaterally imposed by ELAP.

129. As a result of Defendants’ conduct, Plaintiff and the proposed Class members were

harmed and have suffered actual damages in the form of the difference between the reasonable

value of the medical services, and the allowed amount arbitrarily and unilaterally imposed by

ELAP.

130. Plaintiff and the proposed Class members were deprived of the benefit of their

bargain. They did not receive the actual and reasonable value of the healthcare services they

provided to ELAP plan members, as a direct result of ELAP’s deceptive and unfair conduct.

131. ELAP and GPA have each unjustly benefited from their scheme, and Plaintiff and

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the proposed Class members were deprived of the actual and reasonable value of the healthcare

services they provided to ELAP plan members, as a direct result of ELAP and GPA’s deceptive

and unfair conduct.

132. Plaintiff brings this action on behalf of itself and the putative Class members to

recover their actual damages and their lost benefit of the bargain, and to enjoin ELAP and GPA

from their continued deceptive and unfair trade practices.

CLASS ALLEGATIONS

Class Definitions:

133. Plaintiff brings this action on its own behalf, and on behalf of all healthcare

providers similarly situated, pursuant to Rules 23(a) and (b)(2) or (b)(3) of the Federal Rules of

Civil Procedure. This action satisfies the numerosity, commonality, typicality, adequacy,

predominance, and superiority requirements of those provisions.

134. Plaintiff brings this class action and seeks to certify and maintain it as a class action

under Rules 23(a) and (b)(2) or (b)(3) of the Federal Rules of Civil Procedure on behalf of itself

and the following proposed Nationwide classes, and Florida state subclasses.

The Nationwide Emergent Class:

135. Plaintiff alleges a nationwide class on behalf of:

All healthcare facility providers in the United States with underpaid

emergent claims for healthcare services provided to ELAP plan

members.

The Nationwide Nonemergent Class:

136. Plaintiff alleges a nationwide class on behalf of:

All healthcare facility providers in the United States with underpaid

non-emergent claims for healthcare services provided to ELAP plan

members.

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The Florida Emergent Subclass:

137. Plaintiff alleges a Florida statewide class action claim on behalf of:

All healthcare facility providers in Florida with underpaid emergent

claims for healthcare services provided to ELAP plan members.

The Florida Nonemergent Subclass:

138. Plaintiff alleges a Florida statewide class action claim on behalf of:

All healthcare facility providers in Florida with underpaid nonemergent claims for healthcare services provided to ELAP plan

members.

139. Excluded from each class are Defendants, their employees, officers, directors, legal

representatives, heirs, successors, and wholly or partly owned subsidiaries or affiliated companies;

Class Counsel and their employees; and the judicial officers and their immediate family members

and associated court staff assigned to this case.

140. Plaintiff reserves the right to modify, expand, or amend the definitions of the

proposed classes following the discovery period and before the Court determines whether class

certification is appropriate, including as to particular issues or subclasses pursuant to Rule

23(c)(4)–(5).

141. Certification of Plaintiff’s claims for class-wide treatment is appropriate because

Plaintiff can prove the elements of its claims on a class-wide basis using the same evidence as

would be used to prove those elements in individual actions alleging the same claims.

Numerosity

142. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(1). There are

thousands of healthcare facility providers nationwide who have been deceived by Defendants,

including hundreds in Florida. Individual joinder of all Class members is impracticable.

143. The identity of Class members is ascertainable, as the names and addresses of all

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Class members can be identified in Defendants’ or their agents’ books and records. Plaintiff

anticipates providing appropriate notice to each certified class in compliance with Fed. R. Civ. P.

23(c)(2)(A) and/or (B), to be approved by the Court after class certification, or pursuant to court

order under Fed. R. Civ. P. 23(d).

Commonality

144. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(2) and 23(b)(3)

because there are questions of law and fact that are common to each of the classes. These common

questions predominate over any questions affecting only individual Class members. The

predominating common or Class-wide fact questions include, without limitation:

a. Whether Defendants’ unilateral, arbitrary, and uniform application of

Reference Based Pricing is likely to deceive or mislead reasonable

healthcare facility providers;

b. Whether Defendants’ unilateral, arbitrary, and uniform application of

Reference Based Pricing constitutes an unfair, deceptive, unlawful, and/or

fraudulent act or practice;

c. Whether Defendants’ unilateral, arbitrary, and uniform application of

Reference Based Pricing compensates healthcare facility providers for the

reasonable value of the facility provider’s services;

d. Whether Defendants’ uniform omissions and concealment of identity and

application of Reference Based Pricing on insurance ID cards is likely to

deceive or mislead reasonable healthcare facility providers;

e. Whether Defendants’ uniform omissions and concealment of identity and

application of Reference Based Pricing on insurance ID cards constitutes an

unfair, deceptive, unlawful, and/or fraudulent act or practice;

f. Whether ELAP’s conduct throughout the claims adjudication process

constitutes unfair, deceptive, unlawful and/or fraudulent acts or practices;

g. Whether ELAP’s legal defense of patients to obstruct and exhaust collection

efforts constitutes unfair, deceptive, unlawful, and/or fraudulent acts or

practices;

h. Whether ELAP’s direction to plan members to not respond to facility

providers and violate patient agreements constitutes unfair, deceptive,

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unlawful, and/or fraudulent acts or practices;

i. Whether a reasonable healthcare facility provider likely would be misled by

Defendants’ conduct; and

j. Whether Plaintiff and the facility provider classes suffered damages as a

result of Defendants’ unfair, deceptive, unlawful and/or fraudulent acts or

practices.

Typicality

145. This action satisfies the requirements of Fed. R. Civ. P. 23(a)(3) because Plaintiff’s

claims are typical of the claims of each of the Class members, as all Class members were and are

similarly affected and their claims arise from the same wrongful conduct of Defendants. Each

Class member provided healthcare services to ELAP plan members and as a result has sustained,

and will continue to sustain, damages in the same manner as Plaintiff in the form of underpayment

of those claims. The relief Plaintiff seeks in this action is typical of the relief sought for the absent

Class members.

Adequacy of Representation

146. Plaintiff will fairly and adequately protect the interests of the Class members.

Plaintiff is committed to the vigorous prosecution of this action and there is no hostility or conflict

between or among Plaintiff and the unnamed Class members. Plaintiff anticipates no difficulty in

the management of this litigation as a class action.

147. To prosecute this case, Plaintiff has chosen the undersigned law firms, who have

substantial experience in the prosecution of large and complex class action litigation and have the

financial resources to meet the costs associated with the vigorous prosecution of this type of

litigation. Plaintiff and their counsel will fairly and adequately protect the interest of all Class

members.

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Superiority

148. This action satisfies the requirements of Fed. R. Civ. P. 23(b)(3). A class action is

superior to other available methods for the fair and efficient adjudication of the rights of the Class

members. The joinder of individual Class members is impracticable because of the vast number

of healthcare facility providers who have been deceived by Defendants’ conduct.

149. Because the monetary damages suffered by each individual Class member may be

relatively small, the expense and burden of individual litigation would make it difficult or

impossible for individual Class members to redress the wrongs done to each of them individually,

such that most or all Class members would have no rational economic interest in individually

controlling the prosecution of specific actions. The burden imposed on the judicial system by

individual litigation, and to the Defendants, by even a small fraction of the Class members, would

be enormous.

150. In comparison to piecemeal litigation, class action litigation presents far fewer

management difficulties, far better conserves the resources of both the judiciary and the parties,

and far more effectively protects the rights of each Class member. The benefits to the legitimate

interests of the parties, the court, and the public resulting from class action litigation substantially

outweigh the expenses, burdens, inconsistencies, economic infeasibility, and inefficiencies of

individualized litigation. Class adjudication is simply superior to other alternatives under Fed. R.

Civ. P. 23(b)(3)(D).

151. Plaintiff is unaware of any obstacles likely to be encountered in the management of

this action that would preclude its maintenance as a class action. Rule 23 provides the Court with

the authority and flexibility to maximize the efficiencies and benefits of the class mechanism and

reduce management challenges. The Court may, on motion of Plaintiff or on its own determination,

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certify nationwide and statewide classes for claims sharing common legal questions; use the

provisions of Fed. R. Civ. P. 23(c)(4) to certify particular claims, issues, or common questions of

law or of fact for class-wide adjudication; certify and adjudicate bellwether class claims; and use

Fed. R. Civ. P. 23(c)(5) to divide any Class into subclasses.

Requirements of Fed. R. Civ. P. 23(b)(2)

152. Defendants have acted or failed to act in a manner generally applicable to the Class

members in the Nationwide Classes and the Florida Subclasses, thereby making appropriate final

injunctive relief or corresponding declaratory relief with respect to any or all of the classes.

CLAIMS FOR RELIEF

COUNT I

VIOLATION OF FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT

(“FDUTPA” ), Fla. Stat. § 501.201 et seq.

against Defendants on behalf of Plaintiff and the Florida Subclasses

153. Plaintiff incorporates by reference paragraphs 1 – 152 as though fully set forth

herein.

154. Plaintiff and the members of the Florida subclasses are “consumer[s]” engaged in

“trade or commerce” within the meaning of FDUTPA. Fla. Stat. § 501.203 (7), (8).

155. Defendants engage in “trade or commerce” within the meaning of FDUTPA. Fla.

Stat. § 501.203(8).

156. FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Fla.

Stat. § 501.204(1).

157. Each Plaintiff and Class member is an “aggrieved” person under § 501.211, Fla.

Stat. and so has standing to pursue this claim.

158. Defendants engaged in unfair and deceptive trade practices that violated FDUTPA,

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including but not limited to the following:

a. ELAP and GPA concealed ELAP’s identity and the application of Reference Based

Pricing throughout the patient admission process;

b. ELAP concealed its identity and the application of Reference Based Pricing on

insurance ID cards;

c. ELAP and GPA concealed the fact that facility services, such as the healthcare

services provided by hospitals like Plaintiff, will not be reimbursed in accordance

with the terms of the facility provider’s contract with MultiPlan;

d. ELAP deceived and misled facility providers throughout the claim adjudication

process;

e. ELAP provided a legal defense for patients to obstruct facility providers’ collection

efforts; and

f. ELAP directed plan members to not respond to facility providers and violate patient

agreements.

159. ELAP and GPA’s unfair or deceptive acts or practices, including concealing,

omitting, or suppressing material facts about its involvement in the patient-provider relationship

and its boilerplate application of Reference Based Pricing, had a tendency or capacity to mislead;

tended to create a false impression in healthcare facility providers; and were likely to, and did in

fact, deceive reasonable healthcare facility providers, including Plaintiff and the members of the

Florida subclasses, about GPA and ELAP’s role in the patient-provider relationship; ELAP’s

application of Reference Based Pricing; and ELAP’s efforts to obstruct and exhaust collection

efforts from patients.

160. ELAP and GPA knew or should have known that its conduct violated FDUTPA.

161. Plaintiff and the members of the Florida subclasses were and are injured as a result

of GPA and ELAP’s conduct because Plaintiff and the members of the Florida subclasses provided

healthcare services anticipating reimbursement at contractually agreed upon rates and instead

received underpayments resulting from ELAP’s arbitrary and uniform application of Reference

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Based Pricing.

162. ELAP and GPA’s failure to disclose, and active concealment of, their role in the

patient-provider relationship was material to Plaintiff and the members of the Florida subclasses.

Healthcare services provided to plan members that are reimbursed at contractually agreed upon

rates are reimbursed at higher rates than those decided by ELAP using its arbitrary application of

Reference Based Pricing.

163. Plaintiff and the members of the Florida subclasses have suffered ascertainable

losses as a result of GPA and ELAP’s misrepresentations and failure to disclose information about

their role in the patient-provider relationship and their use of Reference Based Pricing. Had they

been aware of ELAP’s role and application of Reference Based Pricing, Plaintiff and the members

of the Florida subclasses would not have provided the healthcare services to ELAP plan members

without seeking prepayment. Plaintiff and the members of the Florida subclasses did not receive

the benefit of their bargain due to GPA and ELAP’s misconduct.

164. As a direct and proximate result of GPA and ELAP’s violations of FDUTPA,

Plaintiff and the members of the Florida subclasses have suffered injury-in-fact and actual

damages.

165. Plaintiff and the members of the Florida subclasses are entitled to recover their

actual damages under Fla. Stat. § 501.211(2) and attorneys’ fees under Fla. Stat. § 501.2105(1).

166. Moreover, Defendants’ deceptive and unfair conduct is continuing, and continues

to harm consumers in Florida and throughout the United States.

167. Section 501.211(1), Florida Statutes, states:

Without regard to any other remedy or relief to which a person is entitled, anyone

aggrieved by a violation of this part may bring an action to obtain a declaratory

judgment that an act or practice violates this part and to enjoin a person who has

violated, is violating, or is otherwise likely to violate this part.

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168. Plaintiff is entitled to declaratory and injunctive relief pursuant to Section

501.211(1), Florida Statutes, declaring that Defendants’ deceptive and unfair conduct violates

FDUTPA and harms the consuming public of Florida and the United States, and enjoining

Defendants from further such violations.

169. Plaintiff, on behalf of itself and the members of the Florida subclasses, accordingly

request that the Court award them actual damages and issue an order enjoining Defendants’

conduct and requiring ELAP to notify the members of the Florida subclasses of its role in the

patient-provider relationship and its arbitrary application of Reference Based Pricing, awarding

Plaintiff and the members of the Florida subclasses’ attorneys’ fees; and any other just and proper

relief available under FDUTPA.

COUNT II

FRAUD BY CONCEALMENT

against Defendants on behalf of Plaintiff, the Nationwide Nonemergent Class, and the

Florida Nonemergent Subclass

170. Plaintiff re-alleges and incorporates by reference paragraphs 1 – 152 as if fully set

forth herein and further alleges as follows.

171. Plaintiff brings this claim on behalf of Plaintiff and the members of the Nationwide

Nonemergent Class and the Florida Nonemergent Subclass under the common law of fraudulent

concealment, as there are no true conflicts of law (case-dispositive differences) among the various

states. In the alternative, Plaintiff brings this claim against Defendants under the laws of Florida

where Plaintiff and the Florida Nonemergent Subclass members were damaged by Defendants. To

the extent this claim is brought on behalf of the Florida Nonemergent Subclass, it is pled in the

alternative to Count I.

172. Defendants concealed and suppressed material facts concerning their involvement

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in the patient-provider relationship and their boilerplate application of Reference Based Pricing,

including, but not limited to, ELAP’s identity, Reference Based Pricing on insurance cards, and

the application of Reference Based Pricing throughout the patient admission process. Defendants

knew these representations and omissions were false when made.

173. Defendants had a duty to disclose their involvement because they consistently

represented that healthcare services would be reimbursed at contractually agreed upon rates, when

in truth ELAP’s arbitrary and uniform application of Reference Based Pricing was known only to

Defendants, who had superior knowledge and access to the facts, and knew that the facts were not

known to or reasonably discoverable by Plaintiff and the members of the Nationwide Nonemergent

Class and the Florida Nonemergent Subclass. These omitted and concealed facts were material

because they directly impacted the reimbursement of the healthcare services provided by Plaintiff

and the members of the Nationwide Nonemergent Class and the Florida Nonemergent Subclass,

and Plaintiff and the members of the Nationwide Nonemergent Class and the Florida Nonemergent

Subclass’s willingness to provide those services to ELAP’s plan members.

174. Defendants actively concealed or suppressed these material facts, in whole or in

part, to induce Plaintiff and the members of the Nationwide Nonemergent Class and the Florida

Nonemergent Subclass to provide valuable healthcare services to ELAP’s plan members, at the

expense of Plaintiff and the members of the Nationwide Nonemergent Class and the Florida

Nonemergent Subclass.

175. Plaintiff and the members of the Nationwide Nonemergent Class and the Florida

Nonemergent Subclass were unaware of these omitted material facts and would not have acted as

they did had they known of the concealed or suppressed facts. Plaintiff’s and the members of the

Nationwide Nonemergent Class and the Florida Nonemergent Subclass’s actions were reasonable

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and justified.

176. Representative examples of Defendants’ misconduct include the following:

Patient “CS”

177. Patient CS sought nonemergent healthcare services from Plaintiff in March 2019.

178. Patient CS presented an identification card to Plaintiff identifying Defendant GPA

as the third party administrator, and including the MultiPlan logo.

179. Before providing such healthcare services, Plaintiff sought and received “preadmit”

authorization from Defendant GPA via telephone to provide the services on or around March 6,

2019.

180. Defendant GPA provided authorization for the services to Plaintiff, but omitted

from Plaintiff that ELAP was responsible for determining Plaintiff’s reimbursement and would

arbitrarily reimburse Plaintiff for only a fraction of the reasonable value of Plaintiffs’ services to

Patient CS by applying ELAP’s arbitrary Reference Based Pricing model.

181. Based on these omissions, Plaintiff provided nonemergent healthcare services to

Patient CS on March 7, 2019.

182. Plaintiff’s billed charges for the healthcare services provided to Patient CS totaled

$19, 389.00.

183. On March 29, 2019, Defendant GPA delivered to Plaintiff a Notice of Adverse

Benefit Determination, advising Plaintiff that of its $19,389.00 in billed charges, the allowed

amount for its reimbursement had been reduced to $2,743.99.

184. On April 24, 2019, Plaintiff delivered an appeal letter to Defendant GPA regarding

this underpayment.

185. On May 14, 2019, Defendant ELAP revealed itself to Plaintiff for the first time,

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delivering a boilerplate letter to Plaintiff identifying itself as the Designated Decision Maker.

186. Plaintiff delivered an appeal letter to ELAP on August 7, 2019.

187. ELAP responded to Plaintiff’s appeal letter on September 9, 2019 with a boilerplate

response letter denying Plaintiff’s appeal.

Patient “MJ”

188. Patient MJ sought nonemergent healthcare services from Plaintiff in April 2019.

189. Patient MJ presented an identification card to Plaintiff identifying Defendant GPA

as the third party administrator, and including the MultiPlan logo.

190. Before providing such healthcare services, Plaintiff sought and received “preadmit”

authorization from Defendant GPA via telephone to provide the services on or around April 22,

2019.

191. Defendant GPA provided authorization for the services to Plaintiff, but omitted

from Plaintiff that ELAP was responsible for determining Plaintiff’s reimbursement and would

arbitrarily reimburse Plaintiff for only a fraction of the reasonable value of Plaintiffs’ services to

Patient CS by applying ELAP’s arbitrary Reference Based Pricing model.

192. Based on these omissions, Plaintiff provided nonemergent healthcare services to

Patient CS on April 23, 2019.

193. Plaintiff’s billed charges for the healthcare services provided to Patient CS totaled

$32,327.32.

194. On May 30, 2019, Defendant GPA delivered to Plaintiff a Notice of Adverse

Benefit Determination, advising Plaintiff that of its $32,327.32 in billed charges, the allowed

amount for its reimbursement had been reduced to $9,047.48.

195. On June 25, 2019, Plaintiff delivered a letter to Defendant GPA regarding its

Case 0:20-cv-61007-AHS Document 1 Entered on FLSD Docket 05/21/2020 Page 38 of 42
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underpayment.

196. On July 30, 2019, Defendant ELAP revealed itself to Plaintiff for the first time,

delivering a boilerplate letter to Plaintiff identifying itself as the Designated Decision Maker.

197. Plaintiff delivered an appeal letter to ELAP on August 7, 2019.

198. ELAP responded to Plaintiff’s appeal letter on September 9, 2019 with a boilerplate

response letter denying Plaintiff’s appeal.

Defendants’ Continued Misconduct Causes Damage

199. Defendants still make no disclosure of their role or their application of Reference

Based Pricing, despite having knowledge that healthcare facility providers are deceived and

induced to provide such services to ELAP’s plan members.

200. Because of the concealment or suppression of the facts, Plaintiff and the members

of the Nationwide Nonemergent Class and the Florida Nonemergent Subclass sustained damages

because they did not receive the benefit of their bargain and the value of their healthcare services

has not been reimbursed, which is a direct result of Defendants’ wrongful conduct.

201. Defendants’ acts were done oppressively, deliberately, with intent to defraud, and

in reckless disregard of Plaintiff’s and the members of the Nationwide Nonemergent Class and the

Florida Nonemergent Subclass’s rights and well-being to enrich itself. Defendants’ conduct

warrants an assessment of punitive damages in an amount sufficient to deter such conduct in the

future.

COUNT III

UNJUST ENRICHMENT

against Defendants on behalf of Plaintiff and the Nationwide Classes

202. Plaintiff re-alleges and incorporates by reference paragraphs 1 – 152 as though fully

set forth herein.

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203. Plaintiff brings this claim on behalf of itself and all Nationwide Class members

under the common law of unjust enrichment, as there are no true conflicts (case-dispositive

differences) among various states’ laws of unjust enrichment. In the alternative, Plaintiff brings

this claim under the laws of Florida where Plaintiff and the members of the Florida Subclasses

were damaged by Defendants. To the extent this claim is brought on behalf of the Florida

Subclasses, it is pled in the alternative to Count I.

204. Defendants have received and retained a benefit from Plaintiff and the Nationwide

Class members and inequity has resulted.

205. Plaintiff and the Nationwide Class members directly conferred benefits on

Defendants by providing plan members with medical services at a discounted rate pursuant to PPO

agreements such as Plaintiff's agreement with MultiPlan.

206. Plaintiff and the Nationwide Class members also conferred benefits on Defendants

by rendering services to plan members, which Defendants and their plans are legally and

contractually obligated to provide and pay for.

207. Plaintiff and the Nationwide Class members provided healthcare services to

Defendants’ plan members in reliance on Defendants’ representations and omissions. Plaintiff and

the Nationwide Class members would not have provided their healthcare services as they did, if

not for these representations.

208. Defendants benefitted through their unjust conduct by receiving, inter alia, 12% of

the facilities’ total billed charges, a percentage of the plans’ savings (i.e. the amount the facility is

underpaid), and valuable medical services rendered to plan members.

209. It is inequitable for Defendants to retain these benefits. Defendants will be unjustly

enriched if they are allowed to retain the aforementioned benefits, and each Nationwide Class

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member is entitled to recover the amount by which Defendants were unjustly enriched at their

expense.

210. Plaintiff does not have an adequate remedy at law.

211. The amount of Defendants’ unjust enrichment should be disgorged, in an amount

to be proven at trial.

212. Plaintiff, on behalf of itself and all similarly situated Nationwide Class members,

seeks an award against Defendants in the amount by which it has been unjustly enriched at

Plaintiff’s and the Nationwide Class members’ expense, and such other relief as this Court deems

just and proper.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of itself and all other similarly situated Class

members, requests that the Court enter judgment against Defendants as follows:

1) Declare this action to be a proper class action maintainable under Rule 23(b)(2) and

Rule 23(b)(3) of the Federal Rules of Civil Procedure and designate and appoint Plaintiff as class

and subclass representative and Plaintiff’s chosen counsel as Class Counsel;

2) Declare that Defendants’ conduct as alleged herein is unlawful, deceptive,

fraudulent, or unfair and issue an order temporarily and permanently enjoining Defendants from

continuing the unlawful, deceptive, fraudulent, and unfair business practices alleged in this action;

3) Declare that Defendants must disgorge, for the benefit of Plaintiff and the Class

members, all or part of the ill-gotten gains they received from their misconduct, or make full

restitution to Plaintiff and Class members;

4) Award Plaintiff and Class members actual, compensatory, and punitive remedies

and damages and statutory penalties, including interest, in an amount to be proven at trial under

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the applicable claims;

5) Award Plaintiff and Class members their reasonable attorneys’ fees and costs, as

allowed by law;

6) Award Plaintiff and Class members pre-judgment and post-judgment interest as

provided by law; and

7) Award Plaintiff and Class members any further and different relief as this case may

require or as determined by this Court to be just, equitable, and proper under the circumstances.

DEMAND FOR JURY TRIAL

Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a jury trial for any and all issues triable

by a jury.

Respectfully submitted: May 21, 2020.

/s/Gail McQuilkin

Gail McQuilkin, Esq.

gam@kttlaw.com

Fla. Bar No.:969338

Tal J. Lifshitz, Esq.

tjl@kttlaw.com

Fla. Bar No.:99519

KOZYAK TROPIN &

THROCKMORTON LLP

2525 Ponce de Leon Blvd., 9th Floor

Coral Gables, FL 33134

Telephone: (305) 372-1800

Facsimile: (305) 372-3508

Counsel for Plaintiff

/s/ Douglas A. Wolfe

Douglas A. Wolfe, Esq.

doug@wolfepincavage.com

Fla. Bar No.:28671

Danya J. Pincavage, Esq.

danya@wolfepincavage.com

Fla. Bar No.:14616

Omar Ali-Shamaa, Esq.

omar@wolfepincavage.com

Fla. Bar No.: 121461

WOLFE | PINCAVAGE

2937 SW 27th Ave.

Suite 302

Miami, FL 33133

Telephone: (786) 409-0800

Counsel for Plaintiff

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