1

66959253;1

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.

:

:

:

:

:

:

:

:

:

:

:

:

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

DEFENDANTS’ SECOND MOTION TO COMPEL PLAINTIFF TO PRODUCE DEIDENTIFIED MARKET DATA

Regrettably, Defendants, ELAP Services, LLC, and Group & Pension Administrators, Inc.

(“Defendants”), are once again forced to file a motion to compel Plaintiff, South Broward Hospital 

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

market reimbursement data. The Court has already granted this motion in part, but it did so under 

false pretenses, and Memorial refuses to comply with its obligations.

BACKGROUND

The Court is well-aware of this discovery dispute, as the parties have been litigating this 

specific issue for well over a year and the Court has already granted in part two motions seeking 

Memorial’s reimbursement data. On June 24, 2021, the Court ordered Memorial to produce its 

2021 transparency report and discuss a stipulation that would relate Memorial’s 2021 

reimbursement rates to its reimbursement rates in 2016 through 2020. (Exhibit 1, Transcript of 

June 24, 2021 Hearing and Order.) Memorial produced its 2021 transparency report and a 

declaration—not a stipulation—that identified Memorial’s “year to year weighted average changes 

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 1 of 10
2

66959253;1

in expected payment from all payors.” The parties were not able to enter a stipulation as to the way 

in which the 2016–2020 reimbursement rates related to the 2021 reimbursement rates.

Defendants served new discovery requests seeking Memorial’s actual reimbursement rates 

for 2016–2020, and, eventually, were required to bring a motion to compel responses. (Dkt. 101.) 

This Court heard that motion and overruled each and every objection to the discovery requests, 

but adjourned the hearing at Memorial’s insistence to allow the parties to work out a resolution. 

(Exhibit 2, Transcript of June 29, 2022 Hearing and Order.) The parties were unable to reach a 

compromise, so the hearing was reconvened on June 30, 2022, and the Court entered an order 

based on Memorial’s counsel’s representation that it was impossible for Memorial to generate a 

report that included CPT codes, HCPCS codes, modifiers, and quantities. (Exhibit 3, Transcript of 

June 30, 2022 Hearing and Order.) Based on Memorial’s claim that it was impossible to produce 

CPT/HCPCS codes and its claim that it was unduly burdensome to produce all reimbursement data 

for 2016–2020, which Memorial indicated included approximately five million claims, the Court 

ordered Memorial to produce a random sample of one million claims with the facility name, 

inpatient/outpatient status, unique identifier for the payer, billed charges, payment from insurance, 

patient payment, in/out of network, whether paid under rental/wrap network, hospital account 

number, allowed amount, and out of pocket responsibility. (Exhibit 3, at pp. 14:16–15:12.) The 

Court ordered the parties to meet and confer to develop a random sample of one million claims. 

(Exhibit 3, at p. 12:13–16.) The Court further ordered Memorial to “file an affidavit describing, 

with specificity, how [CPT codes, HCPCS codes, modifiers, and number of units] are 

overburdensome or unfeasible to produce.” (Exhibit 3, at p. 16:3–17.)

Subsequently, Memorial notified Defendants that it was “electing to produce claims-level 

market reimbursement data for all claims from 2016–2020 (excluding Medicare, Medicaid, 

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 2 of 10
3

66959253;1

Workers Comp, and Tricare) instead of providing a random sample.” (Exhibit 4, July 7 email from 

Danya Pincavage.) On July 12, Memorial filed the Declaration of Cheryl Boucher (Boucher 

Declaration); however, the Boucher Declaration did not describe how CPT codes, HCPCS codes, 

modifiers, and number of units were overburdensome or unfeasible to produce. (Document 126-

1.) Contrary to the representations made at the June 29 and 30 hearings, the Boucher Declaration 

stated that Memorial could run a report that included “CPT codes, HCPCS, modifiers, and number 

of units” “for all claims except Medicare, Medicaid, Tricare, and Workers Compensation for the 

years 2016 through 2020.” (Document 126-1, at ¶¶ 5–6.) The next day, Defendants’ counsel 

inquired whether Memorial would agree to produce the report described in the Boucher 

Declaration given the revelation that doing so was neither overburdensome nor unfeasible. (Exhibit 

5, July 13 Email from Kris Alderman to Memorial’s counsel.) After additional follow-up, 

Memorial indicated that it would produce the report described in the Boucher Declaration for all 

claims except Medicare, Medicaid, Tricare, and Workers Compensation for the years 2016 through 

2020. (Exhibit 6, July 22 Email from Danya Pincavage to Kris Alderman, at pp. 2–3.)

Despite the Boucher Declaration establishing that production of the requested data is 

neither overburdensome nor unfeasible and counsel’s agreement to do so, Memorial still refuses 

to produce data for all claims from 2016 through 2020. Memorial produced reimbursement data 

for approximately three million claims. Based on conversations during meetings with Memorial’s 

counsel, Memorial withheld reimbursement data for all claims in which it disputes the amount of 

reimbursement received. In other words, Memorial withheld evidence it does not like and produced 

only the evidence it does like. This is inconsistent with the Court’s prior order. Defendants sought 

to resolve this dispute with Memorial prior to filing this motion, but Memorial continues to refuse 

to comply with its discovery obligations.

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 3 of 10
4

66959253;1

DISCOVERY REQUESTS AT ISSUE

The discovery requests at issue are Requests 1–3 of Defendants’ Third Requests for 

Production:

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, 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-ofpocket 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 

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 4 of 10
5

66959253;1

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 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 third-party administrators (“TPAs”).

Indeed, 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. Each 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 

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 5 of 10
6

66959253;1

Relevant Time Period for the CPT codes or HCPCS codes listed on Exhibit A 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 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, self-pay, etc.), the 

number of units, the charge billed, the allowed amount, the payment amount, the out-ofpocket 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.

ARGUMENT

This is a very simple issue. The Court overruled all Memorial’s objections to the requested 

discovery. The Court did not order full compliance because of Memorial’s counsel’s 

representations at the hearing that compliance was impossible and overly burdensome. Those 

representations were false. Since all objections have been overruled and full compliance is not 

only possible, but also not burdensome, the Court should order Memorial to respond fully to 

Defendants’ Third Request for Production, Requests 1–3.

The Boucher Declaration proves compliance is possible and not burdensome. Boucher 

admitted “Memorial can run a report listing the data maintained on an 837 file for all claims except 

Medicare, Medicaid, Tricare, and Workers Compensation for the years 2016 through 2020.” 

(Document 126-1, at ¶ 5.) The 837 files include CPT codes, HCPCS codes, modifiers, and 

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 6 of 10
7

66959253;1

quantities, (Document 126-1, at ¶ 6). The Boucher Declaration directly contradicts Memorial’s 

counsel’s representations at the hearing and in court-filed documents. See, e.g., Document 121, at 

¶ 4 (“Plaintiff’s counsel confirmed that Plaintiff cannot produce a report with CPT codes, HCPCS 

codes, modifiers, and number of units.”). The fact that Memorial can run a report not only means 

that compliance is possible, but also that compliance is not burdensome—it is as simple as 

generating a report.

Memorial can no longer be allowed to object to full compliance on grounds of burden. The 

Court recognized the need for actual evidence of burden and lack of feasibility, so it ordered an 

affidavit to be filed:

Other than the representations of counsel, I have not seen any evidence to support the 

infeasibility or the fact that the -- producing these items would be overburdensome to the

hospital. Therefore, I'm going to order that the plaintiff must file an affidavit describing, 

with specificity, how these items are overburdensome or unfeasible to produce.

The affidavit must describe, with specificity, the extent, the time, the labor, the system 

capabilities, et cetera, that make production either overburdensome or unfeasible.

(Exhibit 3, at p. 16:3–11.) The affidavit filed pursuant to that Order was the Boucher Declaration, 

which conclusively establishes compliance is not burdensome. Not only does the Boucher 

Declaration state that the information is contained within a report that Memorial can generate, but 

it makes absolutely no effort to describe any lack of feasibility or burden with compliance. 

Memorial elected not to construct a sample, but rather to produce all reimbursement data for claims 

(except Medicare, Medicaid, Tricare, and Workers Compensation claims) from 2016 through 

2020, which further demonstrates the lack of burden associated with producing the reimbursement 

data.

Despite repeatedly representing to the Court that Memorial had approximately five million 

claims from 2016 to 2020, (Exhibit 3, at p. 9:7–11), Memorial selectively produced reimbursement 

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 7 of 10
8

66959253;1

data for only three million claims. Memorial’s counsel indicated that reimbursement data was 

withheld for any claim that Memorial disputes. In other words, Memorial has cherry-picked the 

reimbursement data it wants to disclose and withheld the reimbursement data it does not want to 

disclose. Nothing in the Court’s Order permits Memorial to exclude reimbursement data for claims 

it disputes, nor should the Court allow Memorial to exclude such data. Regardless of a dispute, the 

reimbursement data is relevant and discoverable. Disputed or not, the data is still evidence of what 

was paid in the market. Any purported dispute with respect to reimbursement amounts in this data 

set could be as many as seven years old and at least as much as a year old. If Memorial has not 

been paid more by now, it is unlikely to change. Memorial did not object to the discovery on this 

basis, and, even if it had, all objections were overruled.

Memorial is desperate to avoid disclosing its complete reimbursement data. After being 

forced to support its burden objections with actual evidence of burden, which it could not do, 

Memorial was faced with having to disclose its reimbursement data. Rather than comply with the 

Court’s order and do what it said it would do after filing the Boucher Declaration, Memorial 

cherry-picked the reimbursement it wanted to disclose and concealed the reimbursement rates it 

does not want to share. Memorial is not permitted to withhold evidence that undermines its case. 

Memorial may argue that some reimbursement rates should be given more weight than others, but 

it is not permitted to selectively produce only the reimbursement data that it likes. Defendants are 

entitled to discovery of Memorial’s reimbursement data, including reimbursement rates that are 

purportedly disputed.

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 8 of 10
9

66959253;1

CONCLUSION

This issue has been unresolved far too long. Memorial has evaded motions to compel by 

making inaccurate representations that have now been conclusively disproven by a declaration of 

its own employee. The Court has previously recognized Defendants are entitled to Memorial’s 

reimbursement data, but the question was how much information Defendants were entitled to given 

Memorial’s representations that compliance was burdensome or even impossible. Those 

representations were false. When the Court required an affidavit to support Memorial’s burden 

and feasibility objections, Memorial could not provide one. In fact, the Boucher Declaration 

conclusively established counsel’s representations were false and the data sought by Defendants 

was available in reports that can be generated. Rather than simply produce the reimbursement data 

as promised, Memorial cherry-picked the data it wanted to disclose and withheld the data it did 

not want to disclose. Memorial’s withholding of selected reimbursement data is unjustifiable. 

Accordingly, Defendants seek an order compelling full compliance with Requests for Production 

1 through 3 and an award of reasonable costs and attorneys’ fees incurred to bring 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, and that 

Plaintiff’s counsel has indicated that Plaintiff opposes the relief sought by this Motion. On October

14, 2022, the Parties agreed to mutual seven-day extension to file this motion to compel, which 

extended Defendants’ deadline to file this Motion through October 21, 2022. See L.R. 26.1(g)(1).

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 9 of 10
10

66959253;1

Respectfully submitted this 21st day of October, 2022.

FISHERBROYLES, LLP

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

irene.oria@fisherbroyles.com

LAVENDER HOFFMAN ALDERMAN 

LLC

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

945 East Paces Ferry Rd NE, Suite 2000

Atlanta, GA 30326

(404) 793-0652

patrick.emery@fisherbroyles.com

kris.alderman@fisherbroyles.com

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

Counsel for Defendants ELAP Services, LLC and Group & Pension Administrators, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on October 21, 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.

Case 0:20-cv-61007-AHS Document 130 Entered on FLSD Docket 10/21/2022 Page 10 of 10