FLORIDA APPEALS COURT UPHOLDS CONSTITUTIONALITY OF by yaosaigeng

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									  FLORIDA APPEALS COURT UPHOLDS CONSTITUTIONALITY OF STATEWIDE
   PROVIDER AND HEALTH PLAN CLAIM DISPUTE RESOLUTION PROGRAM

                                                by:
                                        I. Paul Mandelkern
                           Lowndes, Drosdick, Doster, Kantor & Reed, P.A.



        In the recent case of Blue Cross and Blue Shield of Florida, Inc., et al. v. Outpatient
Surgery Center of St. Augustine, et al., a three-judge panel of the First District Court of
Appeals, in a two to one split decision, upheld the constitutionality of Florida’s provider and
health plan dispute resolution program (the “Program”). The Program was enacted by the
Florida Legislature in 2000 to resolve claims disputes between health care providers and
managed care plans, and it is administered by the Agency for Health Care Administration
(AHCA) pursuant to Section 400.7057 of the Florida Statutes and corresponding administrative
rules. As mandated by that statute, AHCA has contracted with a private dispute resolution
organization called Maximus. In the case under review several health care providers who were
out-of-network with Blue Cross and Blue Shield of Florida and its HMO, Health Options,
asserted that their claims had been underpaid, and they submitted their disputes to Maximus for
resolution pursuant to the Program. Maximus made a recommendation to AHCA favorable to
the providers and, as required by the statute, AHCA entered a final order approving Maximus’
recommendation. Blue Cross then appealed AHCA’s final order to the Court of Appeals, and it
claimed that the Program and its mandated procedure were unconstitutional because they
violated due process and certain other constitutional rights.

        The majority of the appeals court panel ruled that the Program and its mandated
procedure are constitutional because the Program is voluntary. In so ruling the majority
interpreted the relevant statute to mean that Blue Cross could have opted out of the dispute
resolution process at any time prior to the recommendation by Maximus by filing a lawsuit in
state or federal court. The dissenting judge, in a lengthy opinion, strongly disagreed with the
majority’s ruling, and in particular their view that the statute permitted Blue Cross to opt out of
the dispute resolution process once it began. The dissenting judge agreed with Blue Cross’
position that the Program is unconstitutional because, in his view, the “opt out” alternative read
into the statute by the majority is not a real alternative.




 ____ So.3d ____, 36 Fla. Law Weekly D805 (Fla 1st DCA 4/15/11)



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