1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No.: 1:20-cv-22044-JEM

GOVERNMENT EMPLOYEES INSURANCE

CO., et. al.

Plaintiffs

v.

MIAMI MEDICAL GROUP, INC., et.al.

Defendants

_______________________________________

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO 

FED.R.CIV.PRO. 12(b)(6)

Defendants, Miami Medical Group, Inc., Juan Jimenez, Graciela Jimenez, Jose Marquez, 

M.D., Maria Nodarse, D.C., Yara Vazquez and Hai Uzan (hereinafter collectively “Miami 

Medical”), by and through their undersigned counsel, do hereby Move this Honorable Court 

pursuant to Federal Rule of Civil Procedure 12(b)(6) to Dismiss Plaintiff’s Complaint and in 

support thereof aver as follows:

I. GEICO ALLEGES A BILLING DISPUTE BUT FAILS TO STATE A 

PLAUSIBLE CLAIM FOR FRAUD

GEICO’s overwrought Complaint attempts to elevate a dispute about the technical 

requirements of PIP billing into a salacious RICO conspiracy. It does so solely on the bald 

conclusion that a medical doctor who submits a bill for straightforward physical therapy services,

provided under the doctor’s general or indirect supervision by people specially trained in the 

provision of such services, does so intending to commit criminal fraud. That it takes GEICO 312 

pages to construct this accusation instead of, say, a simple call to the local police department, alone 

exposes its accusation of fraud to be an invention of business consultants and lawyers rather than 

any legitimate controversy.

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The Complaint’s very size alone states the obvious: the level of supervision required by 

Florida law of medical doctors over “incident to” services provided by unlicensed assistants in 

order for the doctor to bill for said services is not clear. It is only after parsing portions of various 

state, federal, and secondary sources that GEICO conclude the level legally required is “direct” 

and that doctors are therefore required to be physically present within the room as incident-to

services are performed in order to bill for them under the doctor’s name. Despite the intricacy of 

the analysis needed to reach it, GEICO blithely announces its conclusion to be so obvious that any 

doctor who acts in contradiction of it is, essentially, John Gotti.

The Complaint attempts to gird itself with a secondary, purely legal conclusion that is just 

plain logically impossible on its face. It posits that the Miami Medical Defendants must have 

committed criminal fraud because each of their records so obviously reflected unnecessary and 

unreasonable care that anyone “legitimately” reviewing any one them would have concluded 

immediately upon doing so that each was entirely fraudulent...except for the GEICO PIP adjusters 

who paid for the treatment over and over and over again.

Every cause of action alleged by GEICO is premised entirely on these implausible 

accusations of criminal fraud.1 As detailed below, however, GEICO’s self-serving legal 

conclusions and circular reasoning fail in all respects to serve as plausible bases for alleging 

intentional fraud, and each one of GEICO’s causes of action therefore fail to state a claim as a 

matter of law.

A. GEICO CONCLUDES THAT “DIRECT” SUPERVISION IS REQUIRED

1 The Counts applicable to Miami Medical are 1 and 28-33 and include a demand for Declaratory Judgment, federal 

and state RICO claims, FDUTPA, Common Law Fraud, and Unjust Enrichment. Each incorporates every prior 

allegation of the Complaint and is entirely premised on the accusation that Miami Medical submitted and received 

payment for knowingly false bills.

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GEICO alleges that Miami Medical violated Florida’s Health Care Clinic Act (Fla. Stat. § 

400.9935), based on the conclusory accusation that its Medical Director, Jose Marquez, M.D. 

“never conducted systematic reviews” of Miami Medical’s billings to ensure “that the billing was 

not fraudulent or unlawful” and permitted Miami Medical to “misrepresent” the identities of the 

treating providers. See ECF 1, ¶147-150. GEICO further alleges that criminal fraud was 

committed because the doctors under whose names “virtually all” of the at issue bills were 

submitted – Feijoo and Nodarse – were “most likely” not physically present in the room when in 

each physical therapy service they had prescribed was provided by their assistants. See ECF, ¶296-

297.

The heart of GEICO’s criminal indictment against Miami Medical is found in paragraphs 

312-316. Therein, GEICO weaves a tale of statutory divination, starting with Florida’s PIP statute, 

moving next to the Medicare Claims Processing Manual, and ending with the Code of Federal 

Regulations. Through this self-serving journey of creative lawyering, GEICO patches together its 

legal conclusion of when and in what form “direct supervision” is required:

312. As set forth herein, the No-Fault Law’s billing requirements provide – among other 

things – that all PIP billing must comply with the instructions promulgated by the Centers 

for Medicare & Medicaid Services for the completion of HCFA-1500 forms. See Fla. Stat. § 

627.736. 

313. All of the billing that the Defendants submitted through Miami Medical to GEICO, 

including the billing for putative physical therapy services, was submitted on HCFA-1500 

forms. 

314. Pursuant to the instructions promulgated by the Centers for Medicare & Medicaid 

Services for the completion of HCFA-1500 forms, the name of the health care provider who 

actually rendered or directly supervised the underlying physical therapy treatment must be 

listed on the HCFA-1500 form. See, e.g., Medicare Claims Processing Manual, Chapter 26 –

Completing and Processing Form CMS-1500 Data Set. 

315. To “directly supervise” a physical therapy treatment, a physician “must be present 

in the office suite and immediately available to furnish assistance and direction throughout 

the performance of the procedure. It does not mean that the physician must be present in the 

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room when the procedure is performed.” See, e.g., Medicare Claims Processing Manual, 

Chapter 26 – Completing and Processing Form CMS-1500 Data Set, citing 42 C.F.R. 410.32. 

316. Pursuant to the instructions promulgated by the Centers for Medicare & Medicaid 

Services for the completion of HCFA-1500 forms, to the extent that a physician is not actually 

“directly supervising” a physical therapy treatment, then the actual name of the person who 

is actually performing the physical therapy treatment must be listed on the HCFA-1500 

form. See, e.g., Medicare Claims Processing Manual, Chapter 26 – Completing and 

Processing Form CMS 1500 Data Set.

As the Court can see, the rabbit in GEICO’s hat is placed there in paragraph 315, wherein 

it simply pronounces that the various statutes, regulations and secondary sources to which it 

generally cites, when taken together, demand “direct” supervision and, further, collectively define 

“direct” supervision as being “present in the office suite.”2 

GEICO is certainly entitled to use this legal opinion, however self-serving it may be, to 

justify its denials of PIP bills. But GEICO goes far further, alleging that Miami Medical, by billing 

for physical therapy services under the names of Dr. Feijoo, and/or Dr. Nodarse when it appears 

that both doctors were not always physically present within the room when each such service was 

rendered by their assistants, committed intentional fraud.

Though GEICO tries to obscure reality with a sheer volume of parties and words, its entire

allegation of fraud boils down to its purely legal conclusion about the level of supervision required. 

Every “fact” pleaded by GEICO is designed solely to show that it is “improbable” that the doctors’

level of supervision met the definition of “direct supervision” which GEICO concludes is so 

obviously required that anyone who bills otherwise is a RICO conspirator. 

But if the level of supervision required of a licensed doctor over therapy treatments 

provided for what GEICO calls “low-severity” injuries is not in fact required to be “direct” as 

GEICO has defined it, then GEICO has failed to plausibly allege even one single false 

2 GEICO actually goes further than this by accusing the doctors of fraud based on the appearance that they were 

not in the same room as each physical therapy service was being provided. See, e.g. ¶734(i-v).

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representation, much less the grand criminal conspiracy it breathlessly accuses Miami Medical of 

masterminding.

This is because, by its own pleading, GEICO concedes that Miami Medical’s bills were 

entirely accurate if in fact Dr. Marquez, Dr. Feijoo and/or Dr. Nodarse provided an appropriate

level of supervision. GEICO admits that every note reflecting the services provided by 

nonphysician personnel was signed and acknowledged to have been entirely provided by the 

nonphysician personnel who performed them. GEICO could therefore never have paid a single 

bill under the false impression that Dr. Marquez, Dr. Feijoo or Dr. Nodarse had performed them 

personally. See ECF 1, ¶320 (i-x). 

By paying Miami Medical’s bills, GEICO acknowledged that if Dr. Marquez, Dr. Feijoo 

and/or Dr. Nodarse provided an appropriate level of supervision, whatever that may be, then all of 

Miami Medical’s were perfectly accurate and GEICO has failed to allege a plausible basis even to 

deny a single bill.

But even if GEICO’s self-serving legal conclusion and definition concerning “direct” 

supervision is ultimately determined to be correct, its allegation of knowing fraud cannot be 

considered plausible. GEICO has, at best, only alleged facts to support an inference that Dr. 

Marquez, Dr. Feijoo and/or Dr. Nodarse were not physically in the room while some undefined

number of more than 23,000 billed services were provided. GEICO has not plead any facts as to 

the level of supervision the doctors actually provided, nor any facts to demonstrate that Miami 

Medical knew they were billing incorrectly (if they even were). In fact, the implausibility of 

knowing fraud is demonstrated by GEICO’s claim not to have known it was fraud, either.

B. FRAUD THAT IS OBVIOUS TO EVERYONE EXCEPT GEICO IS 

IMPLAUSIBLE

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 GEICO alleges criminal fraud on the basis that representations made by Miami Medical

in its treatment notes were so obviously deficient in every respect that any objectively reasonable 

person reviewing them would have seen immediately that they were entirely fraudulent. (See, 

ECF 1, ¶328-331). Yet in paragraph 883, in support of its claim of justifiable reliance, GEICO 

alleges that it was defrauded because it “did rely” on the “facially-valid documents submitted to 

GEICO” in deciding to issue payments. Both of these allegations cannot plausibly be true at the 

same time.

A deeper dive into GEICO’s accusations only adds to the confusion. In paragraph 320(ix), GEICO lists “examples” of how Miami Medical’s records “concealed” the identity of the 

person actually performing the physical therapy services billed under Dr. Feijoo and/or Dr. 

Nodarse’s name. Yet, in every single one of these examples, GEICO admits that the therapy notes 

were signed by the person performing the service “in keeping with the fact that the pertinent 

services were performed” by the person who signed them. 

What GEICO is alleging as fraudulent misrepresentation is obviously nothing of the kind. 

The only plausible way GEICO could have been ‘misled” by a single bill of Miami Medical is by 

never looking at them in the first place. GEICO is thus demanding that the Court accept as a 

reasonable standard of PIP claims adjusting (and consumer conduct in general) of blindly paying

bills for years without reviewing any of the documentation submitted along with them and still be 

free, apparently upon any whim, to later review the same bills and documentation and claim to 

have been “defrauded” by the representations contained therein. In pressing such a standard, 

GEICO is not only asking the Court to excuse insurers from any reasonable diligence, it requires 

the Court to ignore the very regulatory scheme GEICO interprets to arrive at its allegation of

criminal fraud in the first place.

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The PIP statute and other regulations relied upon by GEICO clearly contemplate that 

insurers are meaningfully considering all of the documentation submitted in support of bills for 

services rendered before issuing payment. These statutes and regulations do not exist for insurers 

to cherry-pick portions of them they wish to exploit for their advantage. By attempting to do just 

that, however, GEICO only further exposes the implausibility of its conclusion that records could 

be fraudulent on their face to everyone but GEICO.

C. GEICO HAS STATED NO BASIS FOR ANY CAUSE OF ACTION AGAINST 

YARA VAZQUEZ & HAI UZAN

The only allegations made against Yara Vazquez and Hai Uzan are that they provided 

physical therapy services while employed at Miami Medical at the specific direction of doctors, 

created accurate notes of what they did, and signed their names to every note they created. There 

is not a single averment of fact offered to support that Ms. Vazquez or Mr. Uzan had any role in, 

knowledge of, or responsibility for creating and submitting the HCFA forms which constitute the 

sum total of allegedly false statements made to GEICO. This failure of pleading requires that the 

causes of action against Ms. Vazquez and Mr. Uzan be dismissed in their entirety.

D. GEICO’S CLAIMS ARE INSUFFICIENTLY PARTICULAR

GEICO alleges that 23,636 individual services provided at Miami Medical Health were 

fraudulently billed but offers a potentially different theory as to how for each one by applying

caveats such as “in many cases” and “to the extent the services were provided at all” when 

describing the fraud alleged to have been committed. Such “and/or” types of caveats with respect 

to the critical allegation renders the Complaint insufficiently particular under Rule 9. Should the 

Court determine that GEICO may proceed with some or all of its action, it is respectfully requested 

that it be required to identify the particular fraud it is alleging with respect to each date of service.

MEMORANDUM OF LAW

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To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient 

factual matter, which, if accepted as true, would state a claim to relief that is plausible on its face. 

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged. The court, 

however, is not bound to accept as true a legal conclusion stated as a “factual allegation” in 

the complaint. Asbury v. Slider, 2020 WL 871097, at *2 (M.D. Fla. Feb. 21, 2020), citing 

Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2))(emphases added).

The “plausibility standard requires that the allegations be more than merely conceivable.” 

Pavic v. Laser Spine Inst., LLC, No. 8:13-CV-02578-EAK, 2014 WL 2707953, at *1 (M.D. Fla. 

June 13, 2014), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Application of this 

standard follows two analytical principles. First, the court will not presume the truth of a 

complaint's legal conclusions. Second, a complaint's well-pleaded factual allegations must allow 

the court to infer the plausibility, rather than the mere possibility, that the plaintiff is entitled to 

the relief sought.” Pavic v. Laser Spine Inst., LLC, No. 8:13-CV-02578-EAK, 2014 WL 2707953, 

at *1 (M.D. Fla. June 13, 2014) (emphasis added).

I. THE SIZE OF GEICO’S COMPLAINT ITSELF EXPOSES ITS IMPLAUSIBILITY

Cutting through its voluminous folds, GEICO’s Complaint concedes that Florida law alone

does not clearly define the level of supervision required of a prescribing doctor to bill under his 

name for services provided by nonphysician personnel. There is certainly no provision within the 

PIP statute itself which says as much. This is why GEICO must weave its way across state and 

federal statutes, obscure secondary sources, and the Code of Federal Regulations, to arrive at the 

patchwork of a legal conclusion which is transparently devoted to improving GEICO’s profit 

margin.

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A. Florida’s Health Care Clinic Act

GEICO starts with Florida’s Health Care Clinic Act, Fla. Stat. § 400.9935, the relevant 

portion of which states:

(1) Each clinic shall appoint a medical director or clinic director who shall agree in writing 

to accept legal responsibility for the following activities on behalf of the clinic. The medical 

director or the clinic director shall:

(g) Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent 

or unlawful. Upon discovery of an unlawful charge, the medical director or clinic director 

shall take immediate corrective action. 

A Medical Director accepts “legal responsibility” for the activities of the clinic by 

conducting “systematic reviews” of the clinic’s billings. Importantly, however, “[t]he Clinic Act

does not state exactly how thorough a medical director’s systematic review must be...” 

Allstate Ins. Co. v. Vizcay, 826 F.3d 1326, 1332 (11th Cir. 2016). 

Whatever type of systematic review may actually be required (and not even GEICO 

pretends to know), the Florida Administrative Code clearly contemplates that Medical Directors 

are not required to be, nor are they expected to be, physically present within the clinic as the 

treatment for which they are accepting legal responsibility is provided:

A medical or clinic director may not serve in that capacity for more than a maximum of five 

health care clinics with a cumulative total of more than 200 employees and persons under 

contract with the health care clinic at any given time. A medical or clinic director may not 

supervise a health care clinic more than 200 miles from any other health care clinic 

supervised by the same medical or clinic director.

Fla. Admin. Code Ann. r. 59A-33.013.

By expressly permitting doctors to serve simultaneously as the Medical Director of up to 

5 clinics, which can be as many as 200 miles apart, the legislature clearly did not intend to require 

their physical presence in each office as the treatment they are accepting legal responsibility for is 

being provided. 

B. The PIP Statute 

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GEICO next moves to the PIP statute, which provides in relevant part that an insurer or 

insured is not required to pay a claim or charges:

For medical services or treatment billed by a physician and not provided in a hospital unless 

such services are rendered by the physician or are incident to his or her professional services 

and are included on the physician's bill, including documentation verifying that the 

physician is responsible for the medical services that were rendered and billed.

Fla. Stat. Ann. § 627.736(5)(a)(5)(b.1)(f)(emphasis added).

The PIP statute does not define what the Florida legislature intended by the phrase 

“incident to” but does, as GEICO points out, refer generally in various places throughout the statute 

to Medicare guidelines. As the Court is no doubt aware, however, the legal paper devoted over 

the decades to interpreting the seemingly simple phrase of “incident to” under Medicare guidelines 

could fill an entire wing of every courthouse in the country. Consider just the “definition” cited 

by United States v. Marder, 208 F. Supp. 3d 1296, 1306–07, fn. 11 (S.D. Fla. 2016): “Incident to 

services” are services that are furnished by other employees of the physician—such as a PA or 

NP—incident to the professional services personally rendered by the physician.”

In other words, “incident to” services are those that are...“incident to.”

This lack of clarity within the PIP statute necessarily means that GEICO cannot rely upon 

it to allege that the services provided at Miami Medical were even incorrectly billed, much less 

criminally fraudulent.

C. Medicare Manuals and the CFR

Because the PIP statute does not give GEICO the conclusion it wants, it next turns to a 

Medicare Claims Processing Manual, and from there to the Code of Federal Regulations, 

suggesting that both can be read in conjunction with one another as if they are together this week’s 

People Magazine. Regardless of GEICO’s gloss, however, the complexity of analysis (and 

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ridiculous number of pages) necessary to achieve its legal conclusion alone demonstrates the 

implausibility of alleging criminal fraud based on a transgression of it. 

For example, far from providing the clarity GEICO claims it does, the Medicare Processing 

Manual states with respect to properly filling in box 31 of the HCFA-1500 form:3

In the case of a service that is provided incident to the service of a physician or non-physician 

practitioner, when the ordering physician or non-physician practitioner is directly

supervising the service as in 42 CFR 410.32, the signature of the ordering physician or nonphysician practitioner shall be entered in item 31. When the ordering physician or nonphysician practitioner is not supervising the service, then enter the signature of the physician 

or non-physician practitioner providing the direct supervision in item 31.

Here, for the first time in a guideline conceivably applicable to first party medical bills in 

Florida, we see the word “direct” modifying the word “supervision.” However, in the very next 

sentence, Medicare contradicts itself by eliminating the word “direct” in the first clause. By 

eliminating the word “direct” in the first clause of the next sentence regarding “incident to” 

services, Medicare implies that an ordering physician may be able to supervise an “incident to” 

service without necessarily doing so “directly.”

This is a reasonable inference because 42 CFR §410.32 outlines 3 different types of 

supervision: General, Direct, and Personal:

(i) General supervision means the procedure is furnished under the physician’s overall 

direction and control, but the physician’s presence is not required during the performance 

of the procedure. Under general supervision, the training of the nonphysician personnel who 

actually perform the diagnostic procedure and the maintenance of the necessary equipment 

and supplies are the continuing responsibility of the physician. 

(ii) Direct supervision in the office setting means the physician must be present in the office 

suite and immediately available to furnish assistance and direction throughout the performance of the procedure. It does not mean that the physician must be present in the room when 

the procedure is performed. 

(iii) Personal supervision means a physician must be in attendance in the room during the 

performance of the procedure. 

3

It is critical to note again that the “misrepresentation” alleged by GEICO in every claim at issue is that Dr. Feijoo 

or Dr. Nodarse’s name appeared in box 31 of this form. (ECF 1, ¶296).

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According to the CFR, “incident to” services “must be furnished under at least a general

level of physician supervision as defined” in the statute. By referring generally to this portion of 

the CFR and eliminating the word “directly” in the first clause of the second sentence regarding 

box 31 of the HCFA, the Medicare Manual appears to be stating that a physician providing at least

a general level of supervision may still appropriately bill for services provided by “nonphysician 

personnel” so long as he accepts responsibility for their training and equipment and it is provided 

under his “overall direction and control.” GEICO admits that Dr. Marquez did this much by 

agreeing to act as the Medical Director at Miami Medical Health, and further that Dr. Feijoo and 

Dr. Nodarse actually conducted examinations and prescribed the treatment billed in every instance. 

GEICO’s narrow legal conclusion is that the only circumstance under which a doctor’s name 

may be truthfully inserted in box 31 for “incident to” services rendered by nonphysician personnel 

is if the doctor was in the same room the entire time the services were provided. According to

GEICO, even if Dr. Marquez, Dr. Feijoo and/or Dr. Nodarse were in the room/office suite for some 

portion of the time and/or always immediately available to personally consult within a few minutes 

of being called, and even if the doctors were reviewing Miami Medical’s records and bills on a 

regular basis, Miami Medical was not permitted to place the doctor’s name inbox 31 of HCFA 

bills.

4 GEICO’s fraud accusation alleges that this narrow legal conclusion is so obviously the law 

that Miami Medical and its people knew they were committing criminal fraud by placing the 

doctor’s name in box 31 of HCFA forms. 

4 Here it is important to note that GEICO only broadly alleges that Dr. Feijoo and Dr. Nodarse could not both have 

been in the same room at the same time as every one of the 23,000plus physical therapy services were provided. 

GEICO provides no facts to support that at least one of them was not always present within the office when each 

service was provided.

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But GEICO’s bald legal conclusion is presented as if it is hornbook law without citation to 

caselaw or any statute that specifically stands for it. The obscure and inconsistent mention in a 

two sentence blurb from a Medicare Processing Manual, which actually refers to 3 different kinds 

of supervision, taken in conjunction with multiple state and federal statutes, is not reliable authority 

for the proposition that a doctor must physically be in the room while “incident to services” are 

performed by nonphysician assistants in order for the physician’s name to be inserted into box 31 

of a HCFA form billing for the services.

The plausibility of GEICO’s fraud accusation is tethered completely to its very narrow, 

complex, and technical legal conclusion. Every single “fact” GEICO offers to argue fraud is 

designed solely to show that the doctors did not provide contemporaneous, in-room supervision of 

every individual service allegedly at issue. 

While GEICO’s “facts” may support a plausible inference that Dr. Marquez, Dr. Feijoo 

and/or Dr. Nodarse was not standing in the same room for the entire time that every one of the 

23,636 services billed were performed, GEICO offers no facts which plausibly demonstrate the 

level of supervision any one of the doctors actually provided over these services. It offers no facts 

to plausibly suggest that each doctor was not providing at least a general level of supervision. 

The absence of any allegation as to the level of supervision the doctors actually provided is 

alone fatal to GEICO’s claim. This is because all of its facts are offered to support the plausibility 

of just its narrow legal conclusion. In other words, by alleging facts which only support its own 

narrow legal conclusion, GEICO has, at best, alleged “the mere possibility” that it is entitled to 

the relief it seeks. Pavic v. Laser Spine Inst., LLC, infra. at *1.

Note that GEICO’s failure to allege facts concerning the level of supervision the doctors

actually provided cannot be the result of not knowing them. GEICO alleges in paragraph 882 that 

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“The Defendants have hired law firms to pursue collection of the fraudulent charges for the 

Fraudulent Services from GEICO and other insurers. These law firms routinely file 

expensive and time-consuming litigation against GEICO and other insurers if the charges 

are not promptly paid in full.”

Given all of this allegedly routine “expensive and time-consuming litigation” seeking 

“collection of the fraudulent charges” by the Defendants, there must be a plethora of pleadings, 

deposition testimony, and discovery documents (not to mention summary judgment 

motions/orders) which directly reveal the actual level of supervision the doctors provided over the 

services which are the subject of the allegedly fraudulent charges. GEICO must have reams of 

information at this point about where each doctor actually was and what each doctor was actually

doing on any given day over the course of the last several years when these services were rendered. 

Yet GEICO offers the Court nothing in this regard and limits its factual allegations to those which 

suggest only that it is “improbable” each doctor was physically present as every service billed was 

rendered.

GEICO’s vagueness is clearly intentional. For example, despite clearly not being concerned 

with an economy of words, the best GEICO musters to suggest that Dr. Nodarse could not have 

been physically present for each service billed under her name is paragraph 300, wherein GEICO 

states: “What is more, in keeping with the fact that Nodarse was only occasionally physically 

present at Miami Medical, simultaneous to her ‘employment’ at Miami Medical, Nodarse was 

simultaneously purporting to provide a massive amount of physical therapy services at another 

health care clinic in Florida.” (emphasis added).

Why is GEICO being so vague on such a critical point? Why not add a few more paragraphs 

describing what exactly is this “massive” amount of services and exactly where is this mysterious 

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other clinic? The answers are obvious. GEICO knows that its narrow legal conclusion is exposed 

as absurd if were to acknowledge that the number of services provided by Dr. Nodarse at another 

location are in fact extremely limited and that the other clinic is within a stone’s throw of Miami 

Medical’s office. GEICO’s claim that Dr. Nodarse was trying to commit criminal fraud would be 

entirely undercut if GEICO were to admit such facts, so it carefully crafts its pleading to avoid 

them in order to paint a false picture.

In short, GEICO has offered a naked legal opinion that the only way a licensed physician 

may properly bill under his/her name for “incident to” services provided by nonphysician 

personnel, regardless of what those services may be, is if he/she was in the room when the service 

was performed. If this legal conclusion is wrong, however, then GEICO has not even alleged a 

single false representation (much less fraud). 

Moreover, if it is a reasonable interpretation of the byzantine layers of statutes and 

regulations which apply here that a general level of supervision also permits a licensed medical 

doctor to bill for “incident to” services performed by nonphysician personnel, then GEICO has 

clearly failed to state a plausible claim that Defendants knowingly submitted any false bills.

The scienter component of GEICO’s fraud claim, consisting as it does of interpreting 

Medicare guidelines for the proper submission of bills, is most analogous to those most often made 

in the context of the False Claims Act. The universal holding in evaluating the viability of such 

claims is that “if the defendant's interpretation of a statute or regulation was reasonable, and “if 

there is no authoritative contrary interpretation” of the rule, the relator cannot satisfy the 

knowledge requirement under the False Claims Act. United States v. Space Coast Med. Assocs., 

L.L.P., 94 F. Supp. 3d 1250, 1262–63 (M.D. Fla. 2015)(collecting cases).

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GEICO cannot and does not cite to any authoritative interpretation of the PIP statute which 

defines the level of supervision a licensed physician must provide over nonphysician personnel in 

order to bill for their services under the physician’s name.5 But even if GEICO’s opinion in this 

regard is correct, GEICO has failed to allege any facts which plausibly demonstrate that the Miami 

Medical defendants knew they were doing anything wrong. 

Therefore, even if the Court were to credit GEICO with having plausibly alleged that Dr. 

Feijoo and/or Dr. Nodarse’s name appearing in box 31 of the HCFA forms was actually incorrect

under Florida law, it has still failed to plausibly allege that any such submission was “knowingly” 

false. GEICO points to no notifications provided to Miami Medical, no correspondence, not even 

any denials of payment, in which GEICO or any other insurer suggested that the manner of Miami 

Medical’s billing was incorrect. 

Simply put, the very most GEICO has alleged here is a dispute about the technical accuracy 

of bills. It has alleged no facts which plausibly suggest that any inaccuracy was intentional. 

D. GEICO’S FDUTPA and Unjust Enrichment Claims Cannot Survive the 

Complaint’s Absence of Plausibility

GEICO will likely argue that its claims under the FDUTPA statute (§501.201 et. seq.) and 

Unjust Enrichment can ultimately succeed even in the absence of intentional fraud. This does not, 

however, save the claims from the heightened pleading requirements for a fraud claim.

On June 3, 2019, Chief Judge Moore of the Southern District of Florida dismissed a claim 

by State Farm alleging FDUTPA violations as the result of a physician’s submissions of allegedly 

incorrectly coded bills, and did so pursuant to the heightened pleading requirements for fraud. 

State Farm argued that it need not prove fraud to prevail at trial on its FDUTPA claim. Judge 

5 Along these lines it is worth noting that indirect supervision is expressly allowed by Florida law for chiropractors 

(such as Dr. Nodarse) over registered chiropractic assistants (such as Yara Vazquez) performing essentially the 

same services which are at issue in this case. See Fla. Sta. §460.4165.

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Moore rejected this argument. (See Judge Moore’s Memorandum in State Farm v. Feijoo, et. al., 

18-cv-23329, ECF Doc. #56). This same reasoning obviously applies equally to GEICO’s unjust 

enrichment claim, as it, too, is based upon an alleged unified course of fraudulent conduct.6

The implausibility of GEICO’s FDUTPA claim in this case is demonstrated by its admitted

failure to conduct itself as a reasonable consumer would have under the same circumstances. 

Cluck-U Chicken, Inc. v. Cluck-U Corp., , 2017 WL 10275957, at *9 (M.D. Fla. June 6, 2017), 

citing Cold Stone Creamery, Inc. v. Lenora Foods I, LLC, 332 F. App'x 565, 567 (11th Cir. 2009). 

GEICO’s own Complaint establishes that a consumer acting reasonably in the same circumstances 

would not have been deceived by either Dr. Feijoo or Dr. Nodarse’s name appearing in box 31 of 

the HCFA forms submitted by Miami Medical. 

The only way GEICO could possibly have been “deceived” by either doctor’s name 

appearing in box 31 of the HCFA forms submitted by Miami Medical is if it paid the bills without 

ever reviewing them, given GEICO’s admission that every HCFA bill for therapy was 

accompanied by a therapy note signed by the person who performed the therapy being billed. Not 

only was GEICO’s not the conduct of a reasonable “consumer,” such deliberate myopia directly 

violates the very statutory scheme with which GEICO seeks to blanket itself.

E. GEICO Cannot Cherry-pick Only the Portions of Statutes it Likes

As detailed above, GEICO weaves together portions of various state and federal statutes 

and secondary sources to conjure a legal conclusion on which it bases its allegation of fraud. Yet, 

6

See also Space Coast Credit Union v. Merrill Lynch, Pierce, Fenner & Smith Inc., 295 F.R.D. 540, 545 (S.D. Fla. 

2013), citing United States ex rel. Citizens United to Reduce & Block Fed. Fraud, Inc. v. Metro. Med. Ctr., No. 89–

0592–CIV, 1990 WL 10519617, at *3 (S.D.Fla. Jan. 11, 1990) (holding that unjust-enrichment claim based on 

“fraudulent taking of money ... must satisfy Rule 9(b)”).

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tellingly, GEICO leaves on the cutting room floor large swaths of the statutes which directly clash 

with the strait jacket GEICO is trying to force upon every medical clinic in Florida.

For example, the CFR contains “Documentation and Recordkeeping Requirements” which 

clearly contemplate that the payor (be it the federal government or an insurer) will scrutinize 

documentation submitted alongside a HCFA form and individually determine whether the 

treatment being billed was reasonable, necessary, and otherwise compliant with the requirements 

of the statute, before issuing payment. See 42 C.F.R. § 410.32(d)(2).

This portion of the CFR tracks provisions of Florida’s PIP statute which also clearly 

contemplate that insurers will actually review documentation of services provided before issuing 

payment. Consider § 627.736(6)(b) and § 627.736(4)(i), which detail specific recourse for insurers 

any time they believe a bill has not been submitted with sufficient documentation to justify 

payment.7

Despite the clear expectation that payors will actually review supporting documentation of 

services before issuing payment, the plausibility of GEICO’s fraud claim is entirely dependent 

upon its having done no such thing. GEICO claims to have been “defrauded” by documentation 

its own Complaint describes as so facially deficient that no one could possibly have reviewed them 

and believed they reflected reimbursable care. (See ECF 1, ¶328-331). But GEICO points merely 

to the information contained in the records which were originally submitted as the sole basis for

its accusation, rendering it wholly illogical.

With its circular “facts” GEICO locks itself in an implausible box. The only way GEICO 

could possibly have been “defrauded” by Miami Medical’s bills is if it never looked at them in the 

7 This recourse includes that provided in § 627.736(6)(b)(1)(e), which expressly allows an insurer to deny payment 

of any charge it feels has been inappropriately upcoded or unbundled as GEICO.

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first place. This of course destroys any plausible pretense to “justifiable reliance,”8and further, 

fails to meet the requirements of Rule 9. In order to pass muster thereunder, a Plaintiff must not 

only describe the author, date, and content of alleged misrepresentations, it must specifically allege 

the manner in which they misled the plaintiff. Johnson Controls, Inc. v. Uribazo, 2012 WL 

6652934, at *2 (S.D. Fla. Dec. 21, 2012)(internal citations omitted). According to GEICO’s own 

Complaint, however, the only manner in which it could possibly have been misled by Defendants’ 

bills and records is by not looking at them.

II. GEICO ALLEGES NO FACTS AGAINST YARA VAZQUEZ OR HAI UZAN 

IMPLICATING THEM IN ANY FRAUD

Should the Court not dismiss the Complaint in its entirety, it is respectfully submitted that 

GEICO’s RICO and Common Law Fraud claims against Yara Vazquez and Hai Uzan should be 

dismissed for lack of particularity.

The only specific allegation made against Ms. Vazquez and Mr. Uzan is that they provided 

a limited range of healthcare services and created accurate notes thereof. There is not a single 

averment of fact offered to support GEICO’s allegation that Ms. Vazquez ever made a single false 

representation of any kind, or had any role in or responsibility for creating and submitting the 

HCFA forms which constitute the sum total of allegedly false statements made to GEICO.

Having failed to allege any facts supporting its allegation that Ms. Vazquez or Mr. Uzan

made any false statements or knowingly participated in any aspect of billing, none of GEICO’s 

causes of action against either of them are stated with the required particularity and must be 

dismissed as to them individually. See Brooks v. Blue Cross and Blue Shield of Florida, Inc., 116 

8

See Urdaneta v. JP Morgan Chase Bank, N.A., 2010 WL 11504729, at *3–4 (S.D. Fla. Jan. 22, 2010)(The recipient of 

a fraudulent misrepresentation is not justified in relying upon its truth if he knows that it is false or its falsity is 

obvious to him).

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F.3d 1364, 1380–81(11th Cir.1997)(“[I]n a case involving multiple defendants ... the complaint 

should inform each defendant of the nature of his alleged participation in the fraud.”).

IiI. IF ALLOWED TO PROCEED, GEICO MUST PROVIDE A MORE DEFINITE 

STATEMENT

Exhibit 5 to GEICO’s Complaint purports to identify 23,636 individual services provided 

at Miami Medical, each one of which it alleges to have been fraudulently billed. However, in 

characterizing the fraud alleged to have been committed with respect to each of these services, 

GEICO repeatedly adds the caveats “in many cases” and “to the extent they were provided at all.” 

(See Complaint generally). These caveats create multiple theories of fraud with respect to each 

date of service and render the entire Complaint insufficiently specific. See Urdaneta v. JP Morgan 

Chase Bank, N.A., 2010 WL 11504729, at *2 (S.D. Fla. Jan. 22, 2010)(“By proposing alternative 

theories, Plaintiffs fail to state their fraud claim with specificity.”).

Accordingly, should the Court find that GEICO’s claim may proceed, it is respectfully 

requested that GEICO be ordered to provide a more definite statement as to which specific 

treatments listed on Exhibit 5 it is alleging were not actually provided.

III. CONCLUSION

GEICO’s motive to manufacture a federal fraud case out of a technical PIP billing dispute 

is transparent. GEICO feels its bottom line is disadvantaged by the statutory PIP scheme actually 

enacted by the Florida legislature and overseen by state courts. All it needs to do in order to 

effectively create the PIP scheme it prefers is let every medical provider in Florida know they will 

be professionally and personally ruined by a massive federal lawsuit accusing them of criminal 

fraud unless they hew to GEICO’s standard. Rules 8 and 9 are the only protection against such 

blatant abuses and GEICO’s Complaint should be dismissed in its entirety.

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Respectfully Submitted,

/s/ Kenneth Schurr_________________

Kenneth Schurr, Esq.

2030 S. Douglas Rd.

Coral Gables, FLA 33134

Andrew P. Baratta (Pa. Bar No. 82250)

Pro Hac Vice Pending

Baratta, Russell & Baratta

3500 Reading Way

Huntingdon Valley, Pa. 19006

215-914-2222

215-914-2118 (facsimile)

andrew@barattarussell.com

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