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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

SOUTH BROWARD HOSPITAL 

DISTRICT, D/B/A/ MEMORIAL 

HEALTHCARE SYSTEM,

on its own behalf and on behalf of other 

similarly situated healthcare facilities,

Plaintiff,

ELAP SERVICES, LLC and GROUP & 

PENSION ADMINISTRATORS, INC.,

Defendants.

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Case No. 0:20-cv-61007-AHS

DEFENDANTS’ MOTION TO COMPEL

PLAINTIFF TO PRODUCE DE-IDENTIFIED MARKET DATA

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Defendants ELAP Services, LLC (“ELAP”) and Group & Pension Administrators, Inc. 

(“GPA”) (collectively, “Defendants”) seek an order compelling Plaintiff South Broward Hospital 

District d/b/a Memorial Healthcare System (“Plaintiff” or “Hospital”) to produce de-identified 

market reimbursement data (the “Motion”). Plaintiff’s data reflecting the amounts that it has 

received and accepted for the same or similar services that are in dispute (“Market Data”) is central 

to a determination of the Plaintiff’s alleged damages. Plaintiff refuses to produce its Market Data

even though it has requested and received data from Defendants of the amounts allowed for the 

same or similar services on health claims submitted by facilities nationwide. The only 

reimbursement information produced by Plaintiff in this case is a 2021 Transparency Report

reflecting reimbursement rates from in-network payers, which make up only a small percentage 

of Plaintiff’s patients. Plaintiff refuses to produce data reflecting the amounts that it was paid for 

the same or similar services during the relevant time period of 2016–2020. For these reasons, and 

others discussed below, the Court should compel Plaintiff to produce its de-identified Market Data

for the relevant time period.

BACKGROUND

I. The Crux of Plaintiff’s Claim Is That It Was Underpaid For Its Services.

The Amended Complaint alleges that Plaintiff was underpaid for the services it provided 

members of healthcare plans that work with Defendants. See generally D.E. 24 (the “Complaint” 

or “Compl.”). Plaintiff itself alleges that the “crux” and the “central and predominant issue at the 

heart of this case” is ELAP’s alleged “systemic 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.’”

Compl. ¶ 5. Plaintiff further alleges that it “received underpayments resulting from ELAP’s 

arbitrary and uniform application of Reference Based Pricing.” Compl. ¶ 173. 

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To determine whether Plaintiff was indeed underpaid, it is critical to obtain Plaintiff’s 

Market Data reflecting the amounts that Plaintiff accepted for the same or similar services to the 

disputed services at issue in this case during the relevant time period. Defendants have previously 

served discovery seeking this information including requests for Plaintiff’s contracts with all 

payers, statements reflecting the amounts charged or accepted for the same or similar services, and 

all documents comparing or analyzing rates charged or accepted for the same or similar services. 

This Court, concerned with the burden on Plaintiff, ordered production of Plaintiff’s 2021 

Transparency Report and directed the parties to work to relate those reimbursement rates to the 

rates paid during the relevant time period of 2016–2020. The Parties were unable to reach a 

stipulation to relate the data on the 2021 Transparency Report to the relevant reimbursement data 

for 2016–2020. Accordingly, Defendants were forced to serve their Third Request for Production 

seeking precisely this information in the least intrusive manner possible – simply a data file (deidentified to address confidentiality concerns) of amounts Plaintiff was paid for the same or similar 

services. Defendants do not seek the underlying documents or any statements or any contracts, 

rather only 1 data file reflecting amounts Plaintiff has accepted for the same or similar services.

II. The Defendants’ Requests For Market Data.

Defendants served Plaintiff with a targeted Third Request for Production seeking Plaintiff’s 

Market Data. Plaintiff objected on numerous grounds which lack merit and must be overruled. 

Specifically, Defendants’ Third Request for Production and Plaintiff’s responses are as follows:

1. Please produce claims-level market reimbursement data reflecting the 

reimbursement Rates and amounts, including discounted Charges, received by Plaintiff 

for medical good or services rendered during the Relevant Time Period from any and 

all Payers, including in-network commercial Payers, out-of-network commercial 

Payers, Medicare Advantage/Managed Medicare or Managed Medicaid, Traditional 

Medicare or Traditional Medicaid, self-pay/uninsured, worker’s compensation Payors 

or administrators, TRICARE, and automobile/indemnity insurance. For each service, 

include a separate line with the Claim number, date of service, CPT Code, HCPCS code, 

modifier, the Federal Tax Identification Number, servicing facility information, 

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servicing location information, policy number, group number, a unique identifier for 

each Payer, the Payer line of business (Commercial, Medicare Advantage, Managed 

Medicaid, Traditional Medicare, Traditional Medicaid, worker’s compensation, 

TRICARE, automobile/indemnity, self-pay, etc.), the number of units, the charge billed, 

the allowed amount, the payment amount, the out-of-pocket patient responsibility, the 

amount collected from the patient, an indicator for whether the service was paid under 

a participating provider network agreement, and an indicator for whether the service 

was paid under a wrap/rental network agreement.

Response: Memorial objects to this request for several reasons.

First, Memorial objects to the term “market reimbursement data” as vague. Without 

further clarification, Memorial is unable to meaningfully respond to that portion of the 

request.

Second, this request is overbroad and not proportional to the needs of the case. This 

case is about claims that ELAP’s plans have underpaid due to ELAP’s reference-based 

pricing scheme. Here, ELAP is seeking reimbursement information on each and every 

claim ever processed at Memorial’s facilities from January 1, 2016 through the present, 

regardless of whether the claim is related to an ELAP plan member, including a 

breakdown by service code for over five million healthcare claims that are not at issue 

in this action. Such information is irrelevant to the to the claims at issue, beyond the 

scope of this matter, and violates the Court’s June 24, 2021, order denying 

Defendants’ motions to compel. (D.E. 73).

Third, U.S. Magistrate Judge Alicia O. Valle already denied Defendants’ prior requests 

for production and interrogatories (e.g., Interrogatory Nos. 5 – 7 and Request for 

Production Nos. 59 – 61) seeking similar reimbursement data. In fact, the Court 

recognized that Defendants’ requests were overbroad and fashioned a compromise by 

ruling that Memorial would only need to provide the 2021 Transparency Report, along 

with the possibility of a stipulation regarding the applicability of the 2021 

reimbursement rates for prior years (i.e., 2016 – 2020). See June 24, 2021, Hr’g Tr. at 

180:13-20. Memorial complied with the Court’s order and provided Defendants with 

the 2021 Transparency Report, which contains over 104,000 lines of 

reimbursements data and millions of data points. Memorial also provided 

Defendants with a declaration as to how the rates have changed in 2016 – 2020, 

along with the data used and relied on to calculate those changes. Memorial even 

provided Defendants with a detailed narrative as to how the calculations were made. 

Defendants now seek more reimbursement data than they originally requested in 

their initial request for production that the Court ruled were overbroad. Id. at 

146:12-14 (“I’m glad that I didn’t have to sit there and rewrite your requests or your 

interrogatories, which were quite overbroad”).

Fourth, this request, as drafted, would require Memorial to divulge proprietary trade 

secrets related to confidential reimbursement rates, discounts, and contract 

information entered into between Memorial and in-network and out-of-network 

payors. Memorial’s pricing methodologies are protected from disclosure by section 

395.3035(2)(c), Florida Statutes, as the Florida Legislature has determined that 

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public hospitals, like Memorial, are exempt from producing it in response to a 

public records request under chapter 119, Florida Statutes, and article I, section 

24(a) of the Florida Constitution. Moreover, Memorial is bound by confidentiality 

agreements that prevent it from disclosing the requested information. Thus, even 

with the Stipulated Confidentiality Agreement and Protective Order (D.E. 43), 

Memorial cannot produce reimbursement information with contracted payers 

without giving them notice and an opportunity to object.

Fifth, reimbursement data and/or rates for Medicare Advantage/Managed Medicare 

or Managed Medicaid, Traditional Medicare or Traditional Medicaid, TRICARE, 

worker’s compensation, or any other government funded plans are overbroad and 

irrelevant under Baker County Medical Services, Inc. v. Aetna Health Management, 

LLC, 31 So. 3d 842 (Fla. 1st DCA 2010). See id. at 844-45 (“In determining the 

fair market value of the services, it is appropriate to consider the amounts billed 

and amounts accepted by provider with one exception. The reimbursement rates for 

Medicare and Medicaid are set by government agencies and cannot be said to be 

‘arm’s length.’”).

Sixth, Memorial objects to this request as harassing and retaliatory. Defendants are 

already in possession of Memorial’s reimbursement data for the relevant time 

period, as described above. Defendants’ request is intended to harass and retaliate 

against Memorial because Memorial has propounded discovery on ELAP’s thirdparty administrators (“TPAs”).1Indeed, Memorial served multiple subpoenas on 

ELAP’s TPAs, some of which are owned by or affiliated with ELAP. Rather than 

provide the information that ELAP allegedly could not, the TPAs have refused to 

cooperate with Memorial whatsoever and have moved to quash Memorial’s 

subpoenas in federal district courts across the county. Five TPAs are presently 

litigating motions to quash subpoenas served by Memorial. Three of those motions 

to quash have been transferred to this Court.2Each of those transfers has been 

subject to appeals that Memorial has moved to dismiss for lack of jurisdiction. One 

of those appeals has already been dismissed for lack of jurisdiction by the Eighth 

Circuit.

2. To the extent not included in response to Request No. 1, please produce claims 

level market reimbursement data reflecting the reimbursement Rates and amounts, 

including discounted Charges, received by Plaintiff for medical services rendered 

during the Relevant Time Period for the CPT codes or HCPCS codes listed on 

Exhibit A from any and all Payers, including in-network commercial Payers, outof-network commercial Payers, Medicare Advantage/Managed Medicare or 

Managed Medicaid, Traditional Medicare or Traditional Medicaid, selfpay/uninsured worker’s compensation Payers or administrators, TRICARE, and

automobile/indemnity insurance. For each service, include a separate line with the 

Claim number, date of service, CPT Code, modifier, the Federal Tax Identification 

Number, servicing facility information, servicing location information, policy 

number, group number, a unique identifier for each Payer, the Payer line of business 

(Commercial, Medicare Advantage, Managed Medicaid, Traditional Medicare, 

Traditional Medicaid, worker’s compensation, TRICARE, automobile/indemnity, 

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self-pay, etc.), the number of units, the charge billed, the allowed amount, the 

payment amount, the out-of-pocket patient responsibility, the amount collected 

from the patient, an indicator for whether the service was paid under a participating 

provider network agreement, and an indicator for whether the service was paid 

under a wrap/rental network agreement.

Response: See Response to RFP No. 1 above.

3. Please produce all Documents and information needed to understand any data produced 

in response to Request Nos. 1 and 2 or any other Requests for Production including, but 

not limited to, data dictionaries and legends for any coded fields and detailed descriptions 

of parameters and filters used to generate data.

Response: See Response to RFP No. 1 above.

See Defendants’ Third Request for Production and Plaintiff’s Response to Defendants’ Third

Request for Production of Documents attached as Exhibit 1 and 2 respectively.

ARGUMENT

I. Plaintiff’s Market Data Is Critical To Ascertaining the Reasonable Value Of The 

Disputed Services.

Plaintiff’s Market Data is relevant to both Plaintiff’s claims and Defendants’ defenses. To 

establish damages on its Fraudulent and Deceptive Trade Practices Act (“FDUTPA”) claim, 

Plaintiff must show that it was paid less than the reasonable value of the goods and services 

provided to ELAP plan members as a result unlawful conduct of Defendants. Florida law is clear 

about the types of information relevant to determining reasonable value of hospital goods and 

services:

A thorough review of the case law from Florida and elsewhere leads to the 

conclusion that no single factor can be used to determine the reasonableness of 

Mercy's hospital charges. Rather, several non-exclusive factors are relevant to the 

inquiry. As discussed in more detail below, those factors include but are not 

necessarily limited to: (1) an analysis of the relevant market for hospital services 

(including the rates charged by other similarly situated hospitals for similar 

services); (2) the usual and customary rate Mercy charges and receives for its 

hospital services; and (3) Mercy's internal cost structure.

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Colomar v. Mercy Hosp., Inc., 461 F. Supp. 2d 1265, 1269 (S.D. Fla. 2006). Denying a motion to 

compel the types of evidence Colomar recognized as relevant to the inquiry of reasonableness of 

charges “departs from the essential requirements of the law.” Giacalone v. Helen Ellis Mem. Hosp. 

Found., 8 So. 3d 1232, 1236 (Fla. 2d DCA 2009).

The requests at issue are evidence of the second Colomar factor, i.e., the usual and 

customary rate Plaintiff charges and receives for its hospital goods and services. Based on a report 

produced by Plaintiff, bates labeled MHS086262, it is clear that the Market Data is available in an 

electronic format that permits complex reports and calculations to be made. Nevertheless, Plaintiff 

refused to produce its Market Data; instead, Plaintiff asserted six objections which lack merit and 

do not justify Plaintiff’s refusal to produce discoverable, relevant evidence of reasonable value.

II. Plaintiff Has Not Produced Reimbursement Data and Defendants’ Requests for 

Plaintiff’s Market Data Is Not Prohibited By this Court’s Prior Orders/Decisions.

The centerpiece of Plaintiff’s objections is its argument that this Court’s prior orders do 

not permit this discovery. Plaintiff argues that this discovery violates the Court’s June 24, 2021 

Order. This assertion is patently wrong. Nothing in this Court’s June 24, 2021 Order prohibits 

future requests. In fact, the June 24, 2021 Order attempted to fashion a compromise that would 

result in the production of sufficient, relevant reimbursement data without undue burden to 

Plaintiff. That compromise contemplated the production of 2021 reimbursement data and a way to 

relate those reimbursement rates to the rates paid in 2016–2020. The June 24, 2021 Order was 

based on Plaintiff’s representations; however, these representations proved to be inaccurate. First, 

Plaintiff represented to the Court that Medicare and Medicaid rates were included on the 2021 

Transparency Report. See Transcript of June 24, 2021 Motions Hearing (“June 24, 2021 Trans.”), 

at 125:21–126:3, 132:16–133:10 attached here as Exhibit 3. In fact, Medicare and Medicaid

reimbursement rates are not included in the Transparency Report. Second, Plaintiff represented 

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that the 2021 Transparency Report contained reimbursement rates Plaintiff received from innetwork and out-of-network payers. See June 24, 2021 Trans., at 106:3–6. In fact, the 2021 

Transparency Report does not contain reimbursement rates from out-of-network payers. As a 

result, several key pieces of data were represented to be included in the Transparency Report are 

not actually included and no discovery has been produced by Plaintiff on these data points.

Not only are key aspects of the reimbursement data missing from the Transparency Report, 

but the Parties have not been able to arrive at a stipulation as to how the reimbursement rates on 

the 2021 Transparency Report relate to the claims at issue in the case, which span from January 1, 

2016, through December 31, 2020. The 2021 Transparency Report pertains to reimbursements in 

2021—not reimbursement received during the class period. Plaintiff provided a declaration from 

Jeffrey Bross (“Bross Declaration”) which states that the “year-to-year weighted average changes 

in expected payment from all payors as compared to the rates in the 2021 Transparency Reports” 

were between 21.9% lower in 2016 and 1.83% lower in 2020. However, these statements are 

useless to Defendants to understand Plaintiff’s reimbursement rates for the relevant time period. 

Plaintiff initially refused to provide any of the underlying documents or information on which the 

Bross Declaration is based until this Court compelled Plaintiff to explain how the weighted average 

changes were calculated and produce the documents relied upon to make the Bross Declaration. 

See December 17, 2021 Order [D.E. 95]. Plaintiff since produced one document and provided an 

explanation. The document produced is a report that was clearly created from the exact same 

information sought by Defendants in this Motion, and the explanation for how the average 

weighted changes were calculated reveal that the average weighted changes cannot be applied to 

the 2021 Transparency Report reimbursement rates. The average weighted changes were 

calculated using all reimbursement rates from all payors, whereas the 2021 Transparency Report 

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only contains reimbursement rates from in-network, private payers. Thus, the average weighted 

changes, which reflect the reimbursement rates from all payers, including government payers and 

out-of-network payers, cannot be applied to the 2021 reimbursement rates for private, in-network 

payers to yield an accurate result of what the reimbursement rates were in 2016–2020. As a result, 

the only reimbursement data produced in this case is 2021 reimbursement rates for in-network 

payers, which make up only a small percentage of Plaintiff’s patients, and there is no way to use 

that data to determine what amounts were paid and accepted by Plaintiff for the same or similar 

services during the 2016–2020 relevant time period. Thus, Plaintiff has not produced any 

meaningful reimbursement data in this case. Nevertheless, it is apparent that Plaintiff maintains 

the data Defendants seek electronically in a readily accessible format.

III. Defendants’ Third Request For Production Is Specific And Targeted.

Plaintiff also objects on the basis that the Third Request for Production is vague, overbroad 

and not proportional to the needs of the case. These objections should also be overruled. 

Defendants explained exactly what they are seeking and Plaintiff clearly knows exactly the 

information that Defendants seek. The amounts Plaintiff received for the same or similar claims is 

clearly discoverable under Colomar. Plaintiff contends that Baker County Med. Servs. v. Aetna 

Health Mgmt., LLC, 31 So. 3d 842 (Fla. 1st DCA 2010) applies rather than Colomar.

1 Even under 

Baker County, the court determined that it was appropriate to consider the amounts billed and 

accepted by a provider. Baker County merely excluded governmental rates that were not the 

product of negotiation; thus, the production of claims-level market reimbursement data for all in1 Baker County is inapposite. It is a statutory interpretation case interpreting a statute that does not 

apply to the goods and services at issue in this case and that only applies to Health Maintenance 

Organizations (“HMOs”). ELAP plans are all self-funded plans, and none of them are HMOs 

within the meaning of statute at issue. 

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network commercial Payers, out-of-network commercial Payers, self-pay/uninsured patients, 

workers compensation Payors or administrators, and automobile/indemnity insurance is required. 

Yet Plaintiff has refused to produce the exact information and detail that Baker County requires.

Furthermore, Baker County is not a discovery decision; it does not limit discovery of the claimslevel market reimbursement data for Medicare Advantage/Managed Medicare or Managed 

Medicaid, Traditional Medicare or Traditional Medicaid or TRICARE. To the extent that Plaintiff 

contends that such information may not be considered in an ultimate determination of the 

appropriate amount of reimbursements, its arguments are preserved.

Next, it is important to note that Plaintiff has requested and Defendants have produced 

exactly the same type of data requested from Plaintiff: the amounts that Defendants “allowed” for 

the same or similar services billed by facilities nationwide. The scope of discovery concerning 

reasonable value is not limited to claims incurred by ELAP plan members. In reality, the Market 

Data Defendants seek is one report. Not millions of documents. Discovery must be a two-way 

street and should not be one-sided. Similar to Defendants producing claims data for claims that are 

not at-issue, Plaintiff must similarly produce its Market Data. 

Plaintiff also objects on the basis that the Market Data is confidential and proprietary; 

however, the Court has entered a protective order to protect the confidentiality of documents 

produced in this case. Plaintiff asserts that it would have to notify third parties and give them a 

chance to object. This is exactly what Defendants did when Plaintiff requested agreements with 

third parties. The contractual obligation to provide a third party notice and an opportunity to object 

is not a valid reason to withhold relevant discoverable documents. Further, this Court has already 

rejected Plaintiff’s argument that discovery of reimbursement information is barred by section 

395.3035(2)(c), Florida Statutes, which merely provides that reimbursement data does not have to 

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be provided in response to public records requests. The requests at issue are not public records 

requests. 

IV. Defendants’ Requests for Plaintiff’s Market Data Is Not “Retaliatory.”

Finally, although not an appropriate objection, Plaintiff contends that Defendants’ request

for its Market Data is supposedly “retaliatory.” Contrary to Plaintiff’s baseless assertion, 

Defendants’ request for Plaintiff’s Market Data has nothing to do with Plaintiff’s non-party 

discovery; it very simply needs this data to evaluate what is the reasonable value for the services 

at issue. Plaintiff’s non-party subpoenas have nothing to do with reasonable value, and the nonparties’ objections to Plaintiff’s subpoenas have nothing to do with Defendants’ right to obtain 

discovery relevant to reasonable value. Plaintiff’s “retaliatory” objection is baseless, meritless, and 

completely irrelevant to the Requests.

REQUEST FOR HEARING

Defendants respectfully request oral argument on this Motion to Compel, due to the 

importance of the issues raised by this Motion and the complexity and significance of this putative 

nationwide class action. Defendants respectfully submit that oral argument will assist the Court in 

its analysis and resolution of the legal and factual issues raised by the Parties’ claims and defenses, 

class certification issues, and Defendants’ objections to Plaintiff’s discovery requests. Defendants 

estimate that the Parties will need approximately thirty minutes of oral argument on this Motion.

LOCAL RULE 7.1(A)(3) GOOD FAITH CERTIFICATION

The undersigned hereby certifies that counsel for Defendants have conferred with

Plaintiff’s counsel in a good faith effort to resolve the issues raised in this Motion as set forth in 

the attached letter dated March 22, 2022 attached here as Exhibit 4. Plaintiff opposes the relief

sought by this Motion.

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Respectfully submitted this 31st day of March, 2022.

FISHERBROYLES, LLP

/s/ Irene Oria

Robert T. Wright, Jr., Esq.

FL Bar No. 185525

Irene Oria, Esq.

FL Bar No. 484570

FisherBroyles, LLP

199 E. Flagler St. #550

Miami, FL 33131

Tel.: (786) 536-2838

Fax: (305) 536-2838

robert.wright@fisherbroyles.com

irene.oria@fisherbroyles.com

Patrick M. Emery, Esq. (pro hac vice)

GA Bar No. 821303 

PA Bar No. 306672

Kris Alderman, Esq. (pro hac vice)

GA Bar No. 179645

FisherBroyles, LLP

945 East Paces Ferry Rd NE, Suite 2000

Atlanta, GA 30326

(404) 793-0652

patrick.emery@fisherbroyles.com

kris.alderman@fisherbroyles.com

Counsel for Defendants

AKERMAN LLP

/s/Irene Bassel Frick

Irene Bassel Frick, Esq.

FL Bar No.: 0158739

401 E. Jackson Street, Suite 1700

Tampa, FL 33602-5250

Phone: (813) 223-7333

Fax: (813) 223-2837

irene.basselfrick@akerman.com

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CERTIFICATE OF SERVICE

I hereby certify that on March 31, 2022, I electronically filed the foregoing with the Clerk 

of the Court by using the CM/ECF system, which will send a notice of electronic filing to all 

counsel of record.

s/Irene Bassel Frick

Irene Bassel Frick, Esq.

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