Medical Provider Claims Laws Affecting PIP Reimbursements Cause ‘Threatened’ Constitutional Violation

 

By Matthew Scarfone, Esq.

 

In Gans v. McCarty, a licensed chiropractor, Mark Gans, and his medical facilities operating under a separate legal entity, filed a lawsuit against the Commissioner of the Florida Office of Insurance Regulation and the Attorney General of the State of Florida.  In the complaint, the plaintiffs allege that their federal and state constitutional due process rights are being violated by provisions of the Florida Statutes that have an impact on medical providers’ entitlement to reimbursement for services under the Florida No-Fault Act (“PIP” statute).  The plaintiffs seek a declaration that the provision at issue is unconstitutional, an injunction preventing further enforcement, monetary damages, and attorney’s fees and costs.

The statutory provisions at issue are found in section 400.9905(4)(g), Fla. Stat.  This section provides licensure requirements for health care practitioners, and exempts from such requirements any medical facility that is “wholly owned” by a licensed health care practitioner.  The complaint asserts that “PIP insurance carriers claim entitlement to deny payment” of medical providers’ claims for reimbursement by challenging whether a provider is “wholly owned” by a licensed health care practitioner.  If a provider is not “wholly owned” by a licensed health care practitioner, the provider would not be entitled to reimbursement directly from the injured party’s PIP carrier.  

The plaintiff’s allege that the failure to define the term “wholly owned” renders this statute unconstitutional, and cite to several trial court decisions to demonstrate the varying analyses used by trail courts in determining whether a provider is “wholly owned.”  The plaintiffs allege that the law deprives Mr. Gans of his property rights by “voiding his ownership of MR SERVICES, INC.” and by depriving his facilities of their “property rights in the form of insurance benefits”.  Further, the plaintiffs claim that the statute is vague, such that ordinary people would know what conduct is prohibited.  Thus, plaintiffs claim that they are threatened with potential administrative penalties and criminal charges for violating this vague statute.  Overall, the plaintiffs assert ten separate constitutional challenges to the statute, without providing any real analysis or explanation for each.

Notably, the complaint does not refer to any instance when the plaintiffs were refused reimbursement, assessed any administrative fine, or charged criminally.   In fact, in attempting to allege standing, the plaintiffs qualify their alleged injury, claiming that it is “concrete and actual and/or imminent” and that their rights have been “abrogated and/or threatened“.  Finally, the plaintiffs state that a finding that the facilities are not “wholly owned” would subject them to penalties without knowing what conduct is prohibited.  It appears clear that the plaintiffs have not actually suffered any injury, but seek a judicial opinion as to the validity of a statute that has not been applied to them.

In McCarty v. Myers, under similar circumstances, the First DCA dismissed an action brought by chiropractors and massage therapists seeking a declaration that certain provisions of the PIP statute are unconstitutional.  Like the plaintiffs in Gans, the plaintiffs in Myers had not been refused PIP reimbursement or benefits, but sought a declaration that certain provisions of the PIP statute were unconstitutional.  Although the trail court in Leon County initially granted the plaintiff’s a temporary injunction, the First DCA reversed, finding that the plaintiffs did not allege any actual controversy that would confer standing to challenge the statutory provisions at issue.  Although the plaintiffs in Myers have sought review of the First DCA’s decision in the Florida Supreme Court,  the court has issued an order to show cause why the appeal should not be dismissed for lack of jurisdiction, and it appears that the court will not hear the appeal.

If the First DCA’s decision in Myers is any indication, the Gans case should also be dismissed for lack of standing.  The First DCA has already considered and rejected a medical provider’s purported property rights to insurance benefits through the PIP statutes.  This case does not provide any additional facts demonstrating that the plaintiffs have suffered any actual injury.

 

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