IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

AIR METHODS CORPORATION AND 

ROCKY MOUNTAIN HOLDINGS LLC,

Plaintiffs,

v. Case No. 4:20-cv-462-AW-MAF

DAVID ALTMAIER, in his official 

capacity as Commissioner of the 

Office of Insurance Regulation,

Defendant.

_________________________________________/

DEFENDANT COMMISSIONER ALTMAIER’S MOTION TO 

DISMISS PLAINTIFFS’ AMENDED COMPLAINT FOR 

DECLARATORY AND INJUNCTIVE RELIEF AND 

INCORPORATED MEMORANDUM OF LAW

Defendant David Altmaier, in his official capacity as Commissioner of the 

Office of Insurance Regulation (“Commissioner”), pursuant to Federal Rule of Civil 

Procedure 12(b)(1), hereby moves for an order dismissing Plaintiffs’ Amended 

Complaint for Declaratory and Injunctive Relief (“Amended Complaint”). Doc. 33. 

For the reasons set forth below, the Amended Complaint should be dismissed for 

lack of Article III jurisdiction.

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 1 of 15
2

Introduction and Background

At issue in this case is Florida House Bill 747, passed by the Legislature 

during the 2020 legislative session. It was later enacted as chapter 2020-177, Laws 

of Florida, on September 18, 2020, and is now codified at sections 627.42397 and 

641.514, Florida Statutes (“HB 747”).

1 HB 747 was enacted to address the high cost 

of air ambulance services while minimizing insurer disputes with air ambulance 

providers, and to ensure that insureds continue to have ready access to air ambulance 

services.2 

HB 747 requires that health insurance policies and contracts with health 

maintenance organizations (“HMOs”) to include language stating that insurers and 

HMOs must provide “reasonable reimbursement” to air ambulance services for 

covered nonemergency and emergency services. HB 747, §§ 1(2), 2(2) (2020). 

“Reasonable reimbursement” is defined as:

reimbursement that considers the direct cost to provide the air 

ambulance transportation service to the subscriber, the operation of an 

air ambulance service by a county which operates entirely within a 

designated area of critical state concern as determined by the 

1 The bill that was actually passed was Committee Substitute for Committee 

Substitute for House Bill 747 (CS/CS/HB 747), but HB 747 is used herein for ease 

of reference. 

2 Fla. H.R. Comm. on HHS, CS/CS/HB 747 (2020) Staff Analysis (final Sept. 22, 

2020) at 2-3, 5 (on file with comm.), 

https://www.myfloridahouse.gov/Sections/Documents/

loaddoc.aspx?FileName=h0747z1.HMR.DOCX&DocumentType=Analysis&BillN

umber=0747&Session=2020 (hereinafter “Staff Analysis”).

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 2 of 15
3

Department of Economic Opportunity, and in-network reimbursement 

established by the health maintenance organization for the specific 

contract. The term does not include the amount of billed charges for the 

cost of services rendered.

Id. HB 747 further states that “[p]ayment in full by the insured of his or her 

applicable copayment, coinsurance, or deductible constitutes an accord and 

satisfaction of, and constitutes a release of, any claim for additional moneys owed 

by the insured to the health insurer or to any person or entity in connection with the 

air ambulance service.” Id.

3

Plaintiffs, Air Methods Corporation, and its wholly-owned subsidiary, Rocky 

Mountain Holdings, LLC (“AMC”), 4filed an initial complaint is action just days 

after the law became effective. Doc. 1. On March 24, 2021, the Court dismissed the 

initial complaint, without prejudice, on standing grounds, finding that AMC’s causes 

of action were not ripe and that the alleged injuries were neither traceable to the 

Commissioner nor were likely to be redressed by a favorable judgment against the 

Commissioner. Doc. 30. The Amended Complaint timely followed. 

3 The legislation at issue in this case applies to both to health insurance policies and 

HMO contracts. The provisions of that law at issue here are identical, so for 

convenience, the term “insurer” will collectively refer to both health insurers and 

HMOs. Likewise, the term “insured” will collectively refer to insureds under a 

health insurance policy or subscribers to an HMO contract.

4 For convenience, Plaintiffs will be referred to collectively as AMC.

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 3 of 15
4

While the Commissioner’s motion to dismiss, Doc. 13, was pending, 

Congress passed the Consolidated Appropriations Act, 2021. Pub. L. No. 116-260, 

134 Stat. 1182 (2020). Included in this act is the “No Surprises Act.” Id. at Div. BB, 

Title I §§ 101-118. Section 105 of the No Surprises Act is titled “Ending Surprise 

Air Ambulance Bills,” and becomes effective January 1, 2022.

5

 Section 105 creates 

section 2799A-2 to part D of title 19 XXVII of the Public Health Service Act (42 

U.S.C. 300gg, et seq.). Section 2799A-2 will require insurers to make payment, or 

issue a denial of payment, to out-of-network providers of air ambulance services 

within 30 days of receiving a bill. § 2799A-2(a)(3). The amount of payment is to be 

determined pursuant to section 2799A-1(a)(3)(K).6 That section defines the out-ofnetwork payment rate as either (1) the amount determined according to state law in 

a state that has a specific law governing out-of-network rates; (2) the amount 

negotiated by the provider and insurer, either directly or through a dispute resolution 

process; or (3) an amount approved by the state in a state that has an All-Payor Model 

Agreement under section 1115A of the Social Security Act. § 2799A-1(a)(3)(K). 

Should an air ambulance service provider be dissatisfied with the amount 

tendered by an insurer, the provider or the insurer initiate a dispute resolution 

process. § 2799A-2(b). This process begins with a 30-day open negotiation period. 

5 § 105(a)(4). Sections 101 – 118 comprise the “No Surprises Act.” 

6 Section 2799A-1 is created by section 102(a)(1) of the No Surprises Act. 

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 4 of 15
5

§ 2799A-2(b)(1)(A). Should those negotiations fail, the insurer or provider may then 

access a formal dispute resolution process. § 2799A-2(b)(1)(B). Detailed provisions 

governing the establishment and operation of this process are included in the statute. 

§ 2799A-2(b)(2)-(9).

Section 105 also contains a provision that prohibits balance billing by air 

ambulance service providers stating that they “shall not bill, and shall not hold liable, 

such participant, beneficiary, or enrollee for a payment amount for such service 

furnished by such provider that is more than the cost-sharing amount7for such 

service. . . .” Pub. L. No. 116-260, § 105(a)(4). 

In its Amended Complaint, AMC claims that HB 747 is preempted by the 

Airline Deregulation Act, 49 U.S.C. § 40101 (ADA), and that it violates the 

Supremacy Clause of the United States Constitution. AMC seeks a declaratory 

judgment, as well as preliminary and final injunctive relief. As was the case with its 

initial complaint, AMC fails to show that this Court has subject-matter jurisdiction 

over this matter. The Court lacks subject-matter jurisdiction because AMC has no 

standing to sue the Commissioner in this case. Accordingly, the Court should 

dismiss the Amended Complaint.

7 Deductible and co-pay.

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 5 of 15
6

MEMORANDUM OF LAW

Federal Rule of Civil Procedure 12(b)(1) requires that a complaint be 

dismissed if a federal court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 

Because Article III confers federal court jurisdiction only on cases or controversies, 

a federal court lacks subject matter jurisdiction over a complaint that fails to make 

plausible allegations of standing. Stalley ex rel. United States v. Orlando Reg'l 

Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). Standing is a threshold 

matter that must be satisfied before a federal court may consider merits of a case. 

Bochese v. Town of Ponce Inlet, 405 F.3d 964, 514 (11th Cir. 2005) (citing Dillard 

v. Baldwin County Com'rs, 225 F.3d 1271, 1275 (11th Cir. 2000). The party 

invoking federal jurisdiction bears the burden of establishing a court’s Article III 

standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 

To satisfy this standing burden, a plaintiff must minimally allege: 1) an 

injury-in-fact that is concrete, particularized, actual or imminent; 2) a causal 

connection between the injury and the challenged conduct (traceability); and 3) that 

the injury will likely be redressed by a favorable decision (redressability). United 

States v. Hays, 515 U.S. 737, 742-43 (1995), citing Lujan, 504 U.S. at 560-61. 

The fact that AMC seeks declaratory and injunctive relief does not lessen its 

burden to establish jurisdiction. See Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co.,

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 6 of 15
7

68 F.3d 409, 414 (11th Cir. 1995). Where this relief is sought, a plaintiff must, 

“...demonstrate that he is likely to suffer future injury; second, that he is likely to 

suffer such injury at the hands of the defendant; and third, that the relief the plaintiff 

seeks will likely prevent such injury from occurring.” Cone Corp. v. Florida Dept. 

of Transp., 921 F.2d 1190, 1203-04 (11th Cir. 1991). A generalized grievance 

against alleged governmental conduct is insufficient and the Court cannot speculate 

on the facts needed to be alleged by a plaintiff to demonstrate standing. See Hays, 

515 U.S. at 743-44; Bochese, 405 F.3d at 976.

I. AMC AGAIN FAILS TO DEMONSTRATE TRACEABILITY AND

REDRESSABILITY

In its Amended Complaint, AMC still fails to establish that any injuries it may 

suffer are traceable to the Commissioner, or that the declaration and injunction it 

prays for against the Commissioner would redress those injuries. 

As noted above, there are two main provision of HB 747. The first states that 

health insurance policies and HMO contracts must include language requiring 

insurers to pay reasonable reimbursement for air ambulance services. §§ 

627.42397(2), 641.514(2), Fla. Stat. Second, HB 747 provides that, once insured 

pay all applicable copays and deductibles, they are released from any liability to air 

ambulance providers for those services. Id. With respect to traceability, the Court 

found, in its order dismissing the original complaint, that the responsibilities of the 

Commissioner under HB 747 are limited to ensuring that health insurance policies 

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 7 of 15
8

and HMO contracts include reasonable reimbursement language. Doc. 30 at 4-5. 

The Court also noted that “Air Methods has alleged no harm from the requirement 

that insurers provide air-ambulance coverage. And how could it? It is surely no 

worse off with insurers forced to cover its services than with insurers who may or 

may not cover its services.” Id. at 4. The Court also found that the Commissioner

has no role to play with respect HB 747’s balance-billing prohibition:

But the Commissioner does not enforce this provision. As the parties 

acknowledged at the hearing, if Air Methods did balance bill a patient 

notwithstanding this provision, the Commissioner would be powerless 

to do anything about it. He could not stand in Air Methods’s way or 

punish it after the fact. For this reason, any injury flowing from the nobalance-bill provision is not traceable to him, and any such injury is not 

redressable through him.

Id. at 5. 

These findings equally apply to the Amended Complaint. With respect to the 

reasonable reimbursement provision, AMC attempts to address traceability by 

alleging that “[b]y ensuring that these rate-setting terms are incorporated in every 

insurance policy, the Commissioner is causing harm to Air Methods through 

implementation of those terms, and therefore Air Methods (i) will never receive a 

reimbursement that is equal to its billed charges and (ii) since the law took effect, 

has consistently received reimbursements below the average payments received 

prior to the law’s enactment.” Doc. 33 at 12. By way of example, AMC claims that 

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 8 of 15
9

in the aftermath of the passage of HB 747, its average first primary payment from 

one insurer dropped from $34,360 to $8,342. Doc. 33 at 12. 

The problem with this allegation is that the Commissioner has not begun 

enforcing HB 747. Reasonable reimbursement language was not included in health 

insurance policies and HMO contracts for 2021. Declaration of John Reilly at para. 

7. If AMC’s allegation regarding insurance payments is accurate, it could not 

possibly have been caused by any action of the Commissioner, because the 

Commissioner has taken no action to enforce HB 747. AMC’s injuries, if any, were 

caused by third parties who are not before this Court. If AMC has in fact been 

damaged by lower payments from insurers, the cause was the insurers themselves. 

The Commissioner has no role in setting or enforcing reimbursement rates paid by 

insurers pursuant to HB 747. Reilly Dec. at para. 6. Additionally, if reimbursement 

rates from insurers have, in fact, dropped following the passage of HB 747 without 

the Commissioner enforcing it, when and if the required language is included in 

insurance policies and HMO contracts, AMC will be unable to show that any damage 

caused by lower reimbursement rates would be traceable to the Commissioner.8 

8

Indeed, even if rates have not in fact already dropped, and they did so after 

the reasonable reimbursement provision started applying to insurers, AMC would be 

unable to establish traceability. The reasonable reimbursement provision merely 

requires insurers to “cover [AMC’s] services.” Doc. 30 at 4. If an insurer tried to 

wield the provision as an excuse to pay lower rates to AMC, AMC’s dispute would 

(Footnote Cont’d . . .)

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 9 of 15
10

Therefore, AMC’s alleged past and future injuries in the form of lower 

reimbursement rates are not traceable to the Commissioner.

With respect to the balance-billing prohibition, the Amended Complaint 

contains no allegation tying that provision to the Commissioner. AMC can only 

allege that “the ‘reasonable reimbursement’ provision results in lower payments to 

Air Methods, and the prohibition on ‘balance billing’ acts as a final cap on such 

payments.” Even if this were true, it does not change the fact that, as AMC has 

previously acknowledged, the Commissioner has no role to play in ensuring that 

providers do not balance-bill for air ambulance services. Doc. 30 at 5; Reilly Dec. at 

para. 11. Further, to the extent that this allegation is an attempt to argue that the two 

provisions somehow work together, such an argument is a non-starter. This is 

because, as the Court has previously found, [a] plaintiff must have standing for each 

claim he brings, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 351 (2006), so an 

injury from one provision cannot provide standing to challenge another.” Id.

For the same reasons that AMC has not demonstrated traceability to the 

Commissioner, the injuries alleged by AMC would not in any way be redressed by 

a judgment against the Commissioner. Since AMC alleges that it has already been 

harmed by the implementation of HB 747 without any enforcement action by the 

be with the insurer, not the Commissioner. The proper recourse for AMC would be 

to sue the insurer and contest its interpretation of the provision.

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 10 of 15
11

Commissioner, a declaration or injunction against the Commissioner cannot 

logically address the issue of lower payments from insurers. A declaration or 

injunction would have no effect on insurers as non-parties to the litigation. Insurers 

would continue to make what they consider reasonable reimbursement to AMC 

regardless of whether there were an injunction in place prohibiting the 

Commissioner from enforcing HB 747. And because, as the Court has previously 

acknowledged, the Commissioner does not enforce the balance billing prohibition, 

Doc. 30 at 5, a declaration or injunction against it would do nothing to preclude 

insureds from using the prohibition as a defense against payment demands from air 

ambulance providers. 

The relief AMC seeks in this litigation must be obtained against insurers and 

insureds, not against the Commissioner. If AMC takes issue with a payment from 

an insurer, its remedy lies with that insurer, not the Commissioner, and nothing in 

HB 747 prevents AMC from taking such legal action. Reilly Dec. at para. 10. 

Likewise, AMC’s issue with the balance billing prohibition must be resolved 

through litigation with insureds who do not pay what AMC demands. See Doc. 30 

at 6 (finding that “an injunction against the Commissioner would not stop any 

insured from asserting rights under the no-balance-billing provision. As nonparties 

here, they would not be bound by this court’s determination about the law’s 

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 11 of 15
12

validity.” (citing Lewis v. Governor of Ala., 944 F.3d 1287, 1303 (11th Cir. 2019)); 

see also Reilly Dec. at para. 11.

II. AMC’S CLAIMSWITHRESPECTTOTHE NOSURPRISES ACTARE

NOT RIPE.

While AMC has included in its Amended Complaint new allegations 

concerning specific harm it has suffered as a result of the enactment of HB 747, it 

also alleges that HB 747 conflicts with the federal No Surprises Act, and as such 

violates the Supremacy Clause. This claim is not ripe and should be dismissed in 

the event the Court does not dismiss the entire complaint on traceability and 

redressability grounds.

“The purpose of the ripeness doctrine is to prevent the courts, through

avoidance of premature adjudication, from entangling themselves in abstract

disagreements.” Cheffer v. Reno, 55 F.3d 1517, 1524 (11th Cir. 1995). The doctrine

requires a court to consider “whether there is sufficient injury to meet Article III’s

requirement of a case or controversy and, if so, whether the claim is sufficiently

mature, and the issuessufficiently defined and concrete, to permit effective decisionmaking by the court.” Elend v. Basham, 471 F.3d 1199, 1210–11 (11th Cir. 2006)

(quotations omitted).

Any claim by AMC that it is entitled to declaratory and injunctive relief due 

to an alleged conflict between HB 747 and the No Surprises Act is simply not ripe. 

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 12 of 15
13

The pertinent provisions of the No Surprises Act are not due to go into effect until 

January 1, 2022. Pub. L. No. 116-260 §105(a)(4). At this point, seven months before 

the effective date, any claims as to the effect of the No Surprises Act and its interplay 

with HB 747, as well as the ADA, would be mere speculation. In any event, AMC 

fails to include any allegations concerning the nature of the purported conflict. As 

noted above, the No Surprises Act includes a provision that may very well 

incorporate HB 747 into the calculation of out-of-network air ambulance rates.

§2799A-2(a)(3)(B).9 Until the Act goes into effect, and likely for many months 

following the effective date, its actual impact cannot be determined. Accordingly, 

any claims related to the No Surprises Act are not ripe and must be dismissed. 

CONCLUSION

As set forth above, AMC has not shown that it has standing to assert its claims 

in its Amended Complaint, and that its claims regarding the No Surprises Act are 

not ripe. AMC has therefore not established that the Court has jurisdiction under 

Article III to adjudicate this matter. Wherefore, because AMC has not established 

9 As discussed supra p. 4, the cited provision incorporates § 2799A-1(a)(3)(K) that 

defines an out-of-network payment rate, inter alia, as the rate determined by state 

law if the state has such a law. If HB 747 is deemed to be qualifying state law, it 

would be incorporated into the No Surprises Act rather than being preempted by it. 

In addition, the balance billing prohibition in HB 747 is essentially identical to the 

prohibition contained in the No Surprises Act, and as such, a declaration that HB 

747’s prohibition is preempted would be a futile gesture at best.

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 13 of 15
14

Article III jurisdiction, Commissioner Altmaier respectfully requests that the Court 

enter an order dismissing AMC’s Amended Complaint for lack of subject matter 

jurisdiction.

Respectfully submitted,

ASHLEY MOODY 

ATTORNEY GENERAL

/s/ William H. Stafford III 

WILLIAM H. STAFFORD III

Senior Assistant Attorney General

Florida Bar No. 70394

/s/ Elizabeth Teegen

ELIZABETH TEEGEN

Chief Assistant Attorney General

Florida Bar No. 833247

Office of the Attorney General

PL-01, The Capitol

Tallahassee, Florida 32399-1050

Tel: 850-414-3300

william.stafford@myfloridalegal.com

elizabeth.teegen@myfloridalegal.com

Counsel for Commissioner Altmaier

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 14 of 15
15

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1

I hereby certify that the text of this motion, as calculated in accordance with 

the requirements under Local Rule 7.1 of the Northern District of Florida, contain

2923 words.

/s/ William H. Stafford III 

CERTIFICATE OF SERVICE

I hereby certify that on May 26, 2021, a true and correct copy of the foregoing 

was filed with the Court’s CM/ECF system, which will serve a copy via email on 

the following counsel of record:

Tiffany A. Roddenberry, Esq.

Holland & Knight LLP

315 South Calhoun Street, Suite 600

Tallahassee, FL 32301

tiffany.roddenberry@hklaw.com

Judith R. Nemsick, Esq.

Holland & Knight LLP

31 West 52nd Street

New York, NY 10019

judy.nemsick@hklaw.com

Philip E. Rothschild, Esq.

Holland & Knight LLP

515 East Las Olas Boulevard, 12th Floor

Fort Lauderdale, FL 33302-4070

philip.rothschild@hklaw.com

/s/ William H. Stafford III .

Case 4:20-cv-00462-AW-MAF Document 36 Filed 05/26/21 Page 15 of 15