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IN THE UNITED STATES DISTRICT COURT FOR THE

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.

_______________________________/

ORDER GRANTING MOTION TO DISMISS

Under a recently enacted Florida law, “[a] health insurance policy must 

require a health insurer to provide reasonable reimbursement to an air ambulance 

service.” Ch. 2020-177, Laws of Fla. § 1; see also id. § 2.1 The same law precludes 

balance billing; it forbids air-ambulance services from seeking additional payment 

from someone whose insurer made “reasonable reimbursement.” Fla. Stat. 

§ 627.42397(2) (“Such reasonable reimbursement may be reduced only by 

applicable copayments, coinsurance, and deductibles. Payment in full by the insured 

of his or her applicable copayment, coinsurance, or deductible constitutes an accord 

1 The new enactment’s sections 1 and 2 deal with health insurance policies 

and health maintenance organizations, respectively. They are otherwise substantially 

identical. They create Florida Statutes § 627.42397 (for health insurers) and 

§ 641.514 (for HMOs). For simplicity, this order will treat the two provisions as one 

but cite to § 627.42397.

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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.”).

The principal issue in this case is whether federal law—specifically the 

Airline Deregulation Act of 1978 (ADA)—preempts this new Florida law. Plaintiff 

Air Methods Corporation, an air-ambulance service provider, contends it does. See

ECF No. 1 (Compl.).

2

It separately contends that the law is void for vagueness. Id.

But before considering those questions, I must ensure that there is subject-matter 

jurisdiction. See Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1245 (11th Cir. 

2020).

For this court to have subject-matter jurisdiction, a plaintiff must have 

standing. Id. And to have standing, a plaintiff must have “(1) an injury in fact that 

(2) is fairly traceable to the challenged action of the defendant and (3) is likely to be 

redressed by a favorable decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560-61 (1992)). It is the plaintiff’s burden to show subject-matter jurisdiction, 

and at the motion-to-dismiss stage, a plaintiff must allege facts that would support 

2 Air Methods operates through its wholly owned subsidiary, Rocky Mountain 

Holdings LLC, which is also a plaintiff. Compl. ¶ 12. This order refers to the two 

plaintiffs collectively as “Air Methods.” 

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standing. Lujan, 504 U.S. at 561. I conclude Air Methods has not done that, so I will 

grant the motion to dismiss, with leave to amend.

I.

As Air Methods explains, the law would limit its ability to bill users for 

anything beyond “reasonable reimbursement,” as defined by Florida law. Without 

the law, Air Methods would have no such limitation. Thus, Air Methods argues, it 

will suffer a prospective economic injury. 

The defendant suggests this injury is speculative, that any reduced receipts 

may never come to pass. And indeed, although Air Methods alleged it is a licensed 

air-ambulance provider with 14 bases in Florida, averaging one or two emergency 

transports from each base daily, Compl. ¶¶ 16-27, it has not alleged that it regularly 

balance bills (or will balance bill) those it transports. In short, although it alleges in 

general terms that the new law “will likely result in significant economic losses,” id.

¶ 34, Air Methods has not adequately alleged an “actual or imminent” injury, Lujan, 

504 U.S. at 560.3

3 The law says it does not “restrict the ability of an air ambulance service . . . 

to contract to provide nonemergency and emergency services.” Ch. 2020-177, Laws 

of Fla. § 3. The law would therefore apply only to out-of-network services. The 

complaint alleges nothing about the incidence of out-of-network services, or whether 

balance billing is routinely involved. At the hearing, Air Method’s counsel said that 

the providers always try to negotiate a resolution but that the new statute gives 

insurers a disincentive to negotiate. If that disincentive constitutes the injury, Air 

Methods needs additional factual allegations to support it.

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The bigger issues, though, are traceability and redressability. The lone 

defendant is the Commissioner of Florida’s Office of Insurance Regulation, David 

Altmaier, sued in his official capacity. Compl. ¶ 15. The Commissioner’s job 

responsibilities, the parties agree, include approving insurance policy language. See

Hrg. Trans. And the new law requires policies to include the “reasonable 

reimbursement” provision. Fla. Stat. § 627.42397(2). As Air Methods argues, it is 

up to the Commissioner to compel insurers to include the required coverage in all 

policies. See ECF No. 15 at 8 (“OIR administers insurance regulations (including 

HB 747) and ensures compliance by the insurers in incorporating the text of the new 

law into their insurance policies.”). But this is largely beside the point because—

aside from its vagueness argument, addressed below—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.

Air Methods’s real complaint is with the no-balance-billing provision. That 

provision provides that an insured’s payment of his copay, coinsurance, and 

deductibles “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.” Fla. Stat. 

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§ 627.42397(2). In other words, the law flatly prohibits Air Methods from balance 

billing insured patients.

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 no-balance-bill provision is not 

traceable to him, and any such injury is not redressable through him.

Air Methods responds to this by saying the two provisions work together—

that the overall scheme is to reduce patient costs by requiring insurers to cover 

“reasonable reimbursement” and simultaneously precluding providers from 

collecting anything extra. ECF No. 15 at 10-11 & n.5. And indeed, both provisions 

support the legislative goal. But they are still separate provisions. And the one that 

the Commissioner enforces is not the one that could harm Air Methods. 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.

Air Methods also points to the new law’s severability provision. See Ch. 2020-

177, Laws of Fla. § 5 (“If any provision of section 627.42397, Florida Statutes, or 

section 641.514, Florida Statutes, as created by this act, is determined to be invalid 

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or inoperative for any reason, the remaining provisions thereof shall be deemed to 

be void and of no effect.”). The argument is that even if this court cannot enjoin 

enforcement of the no-balance-bill provision (because the Commissioner does not 

enforce it) the provision would fall. But that would be a matter of state law. Zobel v. 

Williams, 457 U.S. 55, 65 (1982). And without standing to challenge either

provision, Air Methods cannot secure a ruling about the state-law (severability) 

consequences of a ruling that one provision is invalid. 

Moreover, 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 validity. See 

Lewis v. Governor of Ala., 944 F.3d 1287, 1303 (11th Cir. 2019). So I cannot find it 

significantly likely that the requested injunction would redress the asserted injury. 

Presumably, the validity would be resolved in a lawsuit against the insured: Air 

Methods would sue the insured for an unpaid balance; the insured would assert the 

Act’s provision as a defense; and Air Methods would challenge that defense, 

asserting preemption. Indeed, in Bailey v. Rocky Mountain Holdings, LLC, 889 F.3d 

1259 (11th Cir. 2018)—the principal case Air Methods relies on for its preemption 

argument—the underlying litigation was between balance-billed patients and airambulance providers. Id. at 1263; cf. also Lewis, 944 F.3d at 1301 (“Plaintiffs could 

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have sued their employers, who refused to pay the ordinance-prescribed $10.10 

wage—and thereby (and perhaps most obviously) caused their injury.”).

Air Methods cites other cases, but those are different when it comes to 

redressability. In Air Evacs v. Cheatham, 910 F.3d 751 (4th Cir. 2018), the state law 

set a services fee schedule and prohibited balance billing, much like here. But the 

challenge at issue was to “the fee schedules and other regulations used to cap

reimbursement rates covered by the [defendant Public Employees Insurance Agency 

and defendant Office of the Insurance Commissioner].” Id. at 759. The PEIA 

administered West Virginia’s “program for paying the medical expenses of its own 

government employees,” and the OIC managed the worker’s compensation system, 

which covered private employees. Id. at 758. The defendants, then, included offices 

responsible for managing payments (and setting rates for payments) directly to airambulance providers. Id. at 759 (“The separate prohibition on balance-billing was 

only challenged in the alternative if the PEIA and OIC regulations were upheld.”). 

That is unlike our case, where the Commissioner has no alleged responsibility for 

overseeing payments to Air Methods or other providers. 

Air Methods also cites Air Evac EMS, Inc. v. Texas, Department of Insurance, 

Division of Workers’ Compensation, 851 F.3d 507 (5th Cir. 2017), which is likewise 

distinguishable. In that case, the defendants “set the reimbursement rates insurers 

[were] allowed to pay”; oversaw the administrative process for resolving disputes; 

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and—most critically—were “charged with enforcing the balance-billing 

prohibition.” Id. at 514. That case therefore did not have the traceability and 

redressability issues we face. See also EagleMed LLC v. Cox, 868 F.3d 893, 897 

(10th Cir. 2017) (suit against state officials from department “charged with 

managing the workers’ compensation fund and paying covered compensation from 

the fund”). 

At bottom, Air Methods has not alleged facts to show traceability or 

redressability as to its ADA preemption claim. 

II.

Air Methods separately seeks a declaration that the “reasonable 

compensation” language is unconstitutionally vague. ECF No. 1 at 15. I conclude 

Air Methods lacks standing for this claim too. 

Air Methods has not alleged any constitutional injury flowing from the alleged 

vagueness. “The court reviews statutes for vagueness concerns only when a litigant 

alleges a constitutional harm.” Indigo Room, Inc. v. City of Fort Myers, 710 F.3d 

1294, 1301 (11th Cir. 2013) (cleaned up) (quoting Bankshot Billiards, Inc. v. City of 

Ocala, 634 F.3d 1340, 1349 (11th Cir. 2011)). There are two types of harm, neither 

of which applies here. First, there is harm when someone is charged with violating 

a vague law. Id. The other type is when a person not yet subject to enforcement (like 

Air Methods) “is chilled from engaging in constitutionally protected activity.” Id.

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(quoting Bankshot). Here, the law has not been applied to Air Methods, and Air 

Methods has not alleged that it is chilled from anything at all. It has thus not alleged 

any injury as to its vagueness claim.4

Finally, even if Air Methods had standing, dismissal would still be necessary. 

“A law that does not reach constitutionally protected conduct and therefore satisfies 

the overbreadth test may nevertheless be challenged on its face as unduly vague, in 

violation of due process. To succeed, however, the complainant must demonstrate 

that the law is impermissibly vague in all of its applications.” Vill. of Hoffman Ests.

v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 497 (1982). Air Methods argues that 

the reasonable-reimbursement provision could be difficult to apply, but it has not 

argued—much less shown—that the law “is impermissibly vague in all of its 

applications.” Id.; cf. also Wright v. City of Roanoke Redevelopment & Hous. Auth., 

479 U.S. 418, 431 (1987) (rejecting argument that “provision for a ‘reasonable’ 

allowance for utilities is too vague and amorphous to confer on tenants an 

enforceable ‘right’”).

4

In the section of its response addressing vagueness, Air Methods cites two 

cases. One, Wilson v. State Bar of Georgia, 132 F.3d 1422 (11th Cir. 1998), involved 

a claim of chilled First Amendment rights. The other, Georgia Pacific Corporation

v. Occupational Safety & Health Review Commission, 25 F.3d 999 (11th Cir. 1994), 

involved a post-enforcement challenge. Air Methods’s challenge is unlike either. 

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III.

For all of these reasons, the Commissioner’s motion to dismiss (ECF No. 13) 

is GRANTED. This is with leave to amend, and Air Methods has 14 days to file an 

amended complaint. 

One final note: At the hearing, Air Methods’s counsel noted that Congress 

was considering a “No Surprises Act,” which address air-ambulance billing among 

other things. Congress has now enacted that law. See H.R. 133, 116th Congress

(2021); see also ECF No. 28. The new law provides a payment-dispute resolution 

process and prohibits, at least in some instances, balance billing. This new law may 

affect the standing analysis. If, for example, the challenged law imposes limitations 

now imposed by federal law, it is not clear that the Florida law would cause injury. 

Those issues will have to be addressed later, but in repleading, Air Methods should 

consider the impact of the No Surprises Act.

SO ORDERED on March 24, 2021. 

s/ Allen Winsor

United States District Judge

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