Opinion
DOCKET NO. A-6014-10T3
05-30-2012
NEW JERSEY DENTAL ASSOCIATION; TOMAS J. BARRIOS, D.D.S.; MANOLIS G. MANOLAKAKIS, D.M.D., d/b/a THE CENTER FOR ADVANCED ORAL & FACIAL PAIN; and EDWARD M. JACKSON, D.M.D., Plaintiffs-Appellants, v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY and UNITED HEALTHCARE INSURANCE COMPANY, Defendants-Respondents.
Arthur Meisel argued the cause for appellants. James P. Flynn argued the cause for respondent Horizon Blue Cross Blue Shield of New Jersey (Epstein Becker & Green, P.C., attorneys; Amy E. Hatcher, on the brief). Francis X. Manning argued the cause for respondent United Healthcare Insurance Company (Stradley Ronon Stevens & Young, LLP, attorneys; Ian M. Long, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Department of Banking and Insurance (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine DiMarzio, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino, Ashrafi and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-52-11.
Arthur Meisel argued the cause for appellants.
James P. Flynn argued the cause for respondent Horizon Blue Cross Blue Shield of New Jersey (Epstein Becker & Green, P.C., attorneys; Amy E. Hatcher, on the brief).
Francis X. Manning argued the cause for respondent United Healthcare Insurance Company (Stradley Ronon Stevens & Young, LLP, attorneys; Ian M. Long, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Department of Banking and Insurance (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine DiMarzio, Deputy Attorney General, on the brief). PER CURIAM
Plaintiffs, the New Jersey Dental Association (NJDA) and three individual dentists (plaintiffs), appeal from two orders dated July 21, 2011 dismissing their complaint with prejudice against Horizon Blue Cross Blue Shield (Horizon) and United Healthcare Insurance Company (United)(collectively defendants). The judge determined that the NJDA lacked standing to file the complaint and the individual dentists failed to state a claim upon which relief can be granted. We reverse in part and remand for further proceedings.
Tomas J. Barrios, D.D.S. (now deceased), Manolis G. Manolakakis, D.M.D., and Edward M. Jackson, D.M.D. (collectively the individual dentists).
We conclude that the NJDA had standing to file its complaint. We also remand the matter to address plaintiffs' argument, raised for the first time on appeal, that N.J.S.A. 17B:27-44.2d(10) and (11) of the Health Claims Authorization, Processing and Payment Act (the Act), and N.J.S.A. 17:48E-10.1d (10) and (11) of the Prompt Payment Statute, apply to health benefit plans, rather than to insurance plans providing dental- only coverage. Because the NJDA seeks to modify all Explanation of Dental Plan Reimbursement (EOB) forms to remove any mention that patients are not obligated to satisfy insurer overpayments inadvertently made on their behalf, we direct the judge to address whether the Department of Banking and Insurance (DOBI) has primary jurisdiction to address that contention, potentially through administrative regulations.
We invited the Attorney General to attend oral argument before us because plaintiffs' contentions questioned the general recoupment procedure employed by defendants and the EOB forms authorized by the DOBI. The Attorney General's post-argument brief states that "[a]lthough the [DOBI] has not adopted rules implementing the . . . statutory language [of N.J.S.A. 17B:27-44.2d(10) and (11)], the [DOBI] has issued multiple bulletins to provide guidance on this issue," including "Bulletin No. 06-16 to clarify concerns and questions regarding [the Act]." The Act was passed in 2006, and there have been no regulations promulgated. When an agency "is concerned with 'broad policy issues' that affect the public-at-large or an entire field of endeavor or important areas of social concern, or the contemplated action is intended to have wide application and prospective effect, rulemaking becomes the suitable mode of proceeding." Crema v. N.J. Dep't of Envtl. Prot., 94 N.J. 286, 299 (1983); see also Metromedia, Inc. v. Dir., Div. of Tax., 97 N.J. 313, 331 (1984) (indicating that "an agency determination must be considered an administrative rule when all or most of the relevant features of administrative rules are present and preponderate in favor of the rule-making process").
The parties essentially dispute whether defendants are entitled to recoup overpayments that defendants mistakenly paid to the out-of-network individual dentists. The individual dentists performed dental work, properly charged the patients, and issued bills to defendants for services rendered. It is undisputed that defendants erred by overpaying the individual dentists because defendants mistakenly believed that the patients in question were eligible to receive benefits. Defendants contend that they are entitled to seek recoupment of those overpayments statutorily by withholding payment on subsequent claims made by the individual dentists, who argue that they are innocent third-parties allowing them to retain the overpayments. The NJDA seeks to enjoin defendants from informing future ineligible patients for whom overpayments are made that those patients have no responsibility to pay the dentists the amount recouped by defendants.
The relevant facts concerning the individual dentists are as follows. Dr. Jackson provided dental services to four patients insured by United, but was not a United provider when he performed those services. He then submitted claims to United seeking payment of any insurance benefits to which the patients were entitled. United paid Dr. Jackson for his services within days of receiving the claims, but thereafter determined that the four patients were ineligible to receive benefits. United requested that Dr. Jackson reimburse it, he refused, and United then recovered the overpayment by withholding it from payments for subsequent claims made by Dr. Jackson for dental services he rendered on different patients.
Similarly, Dr. Barrios and Dr. Manolakakis provided dental services to patients insured by Horizon. Neither Dr. Barrios nor Dr. Manolakakis participated in Horizon's network of providers when they performed their dental work on those patients. Horizon paid Dr. Barrios and Dr. Manolakakis for dental services rendered, and then Horizon realized that it had overpaid the dentists. Horizon requested that Dr. Barrios and Dr. Manolakakis refund the difference. When they refused, Horizon recovered the overpayment amount, just as United did, by withholding it from payments for future claims made by Dr. Barrios and Dr. Manolakakis for dental services rendered on different patients.
Plaintiffs then filed their complaint, which sought money damages and declaratory relief. The individual dentists sought damages for the overpayments recouped by defendants. In its "representational capacity" on behalf of its members, the NJDA sought to enjoin defendants from "seek[ing in the future] reimbursement from dentists who are innocent third party creditors."
Defendants then filed motions to dismiss, relying upon Rule 4:6-2(e). Defendants contended that (1) the NJDA lacked standing to pursue its claim for future injunctive relief, and (2) they complied with the Act and the Prompt Pay Statute, which defendants argue authorizes an insurer's recoupment of overpayments from future payments owed to other patients. The NJDA maintained that it had standing because it sought to enjoin defendants from using their existing recoupment procedures in the future. The individual dentists contended that they were innocent third-party creditors which allowed them to retain the overpayment.
The judge conducted oral argument, issued a twelve-page written decision, and granted the motions dismissing the complaint with prejudice. First, in determining that the NJDA lacked standing, the judge stated:
This [c]ourt is convinced that the NJDA lacks associational standing because it cannot satisfy the third prong of the associational standing test as described in Hunt [v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383, 394 (1977)]. Specifically, the NJDA has failed to show that the relief it seeks does not require the individual participation of its members for relief to be granted. This [c]ourt finds that the relief requested with regard to the EOB forms is a highly individualized and fact-sensitive inquiry that must be conducted on a case-by-case basis because it requires an examination of each individual insured's policy and the corresponding EOB form that was sent to the insured as a result of the claim filed. Therefore, the NJDA's [c]omplaint is dismissed for lack of standing.Second, in finding that the individual dentists failed to state a claim upon which relief can be granted, the judge stated:
N.J.S.A. 17:48E-10.1 and N.J.S.A. 17:48E-10.2 specifically allow for the actions taken by [defendants] in an effort to recoup overpayments made to healthcare providers. Since the alleged conduct is authorized by statute and the statute has been complied with, the [c]omplaint should be dismissed.This appeal followed.
On appeal, plaintiffs argue that the judge erred by dismissing the complaint with prejudice, and that (1) the Act does not apply to dental-only plans (not raised below); (2) the overpayment provisions of the Act were not intended to abrogate the innocent third-party creditor exception to the law of restitution; and (3) the NJDA possessed standing to file its lawsuit. We focus on the NJDA's contention that the judge erred by finding that the NJDA lacked standing to file its complaint seeking future injunctive relief.
Judicial determinations regarding standing are accorded de novo review. NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp, 421 N.J. Super. 404, 444 (App. Div.), certif. granted, 209 N.J. 96 (2011); People for Open Gov't v. Roberts, 397 N.J. Super. 502, 508 (App. Div. 2008). In considering whether a plaintiff has standing at the motion to dismiss stage of the proceedings, the courts should be particularly indulgent and grant plaintiffs "every reasonable inference." Foulke Mgmt. Corp, supra, 421 N.J. Super. at 442.
The importance of representative standing as an efficient procedural vehicle for addressing the common rights and grievances of association members is well-recognized in New Jersey. See Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 109 (1971) (overruling N.J. Bankers Ass'n v. Van Riper, 1 N.J. 193 (1948), as "incompatible with our current procedural philosophies and with our justly liberal holdings in the field of standing"); N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 415 (App. Div. 1997) (stating that "New Jersey courts take a broad and liberal approach to standing"). The United States Supreme Court enunciated the criteria required under federal law to establish associational standing when it stated:
[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.Similarly, our own Supreme Court has recognized associational standing where there was no question of individual members' "stake and adverseness[,] . . . there would have been no attack on standing if individual [members] had joined in the complaint," and the complaint was "confined strictly to matters of common interest and [did] not include any individual grievance which might perhaps be dealt with more appropriately in a proceeding between the individual [member] and the [defendant]." Crescent Pk. Tenants Ass'n, supra, 58 N.J. at 108-09.
[Hunt, supra, 432 U.S. at 343, 97 S. Ct. at 2441, 53 L. Ed. 2d at 394.]
Members of the NJDA "have standing to sue in their own right," as the individual dentists have demonstrated here. Hunt, supra, 432 U.S. at 343, 97 S. Ct. at 2441, 53 L. Ed. 2d at 394. "[T]he interests [the NJDA] seeks to protect," that is, promoting "quality, ethical oral healthcare for the public," undoubtedly "are germane to the organization's purpose," ibid., because appropriate, fair reimbursement schemes benefit dentists and, by extension, patients who would therefore have increased access to quality oral healthcare. Thus, the NJDA satisfied prongs one and two of the Hunt analysis. The judge focused, as do we, on the third prong of Hunt.
We conclude that neither the NJDA's asserted claim nor its requested relief "requires the participation of individual [NJDA] members in the lawsuit." Ibid. Generally, a claim asserting damages requires individual participation, whereas a claim that seeks injunctive relief typically does not. Pa. Psychiatric Soc'y v. Green Spring Health Servs., 280 F.3d 278, 284 (3d Cir.), cert. denied, 537 U.S. 881, 123 S. Ct. 102, 154 L. Ed. 2d 138 (2002); see also Hunt, supra, 432 U.S. at 343, 97 S. Ct. at 2441, 53 L. Ed. 2d at 394 (stating that when an "'association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured'" (quoting Warth v. Seldin, 422 U.S. 490, 515, 95 S. Ct. 2197, 2213, 45 L. Ed. 2d 343, 364 (1975))). Here, the NJDA sought injunctive relief prospectively, without the need for individual participation by its members.
More specifically, in its complaint, the NJDA "request[ed] that the [c]ourt enter judgment ordering Horizon and [United] (1) to cease seeking reimbursement from dentists who are innocent third party creditors, and (2) to cease withholding benefits from covered persons to recoup amounts they claim were mistakenly 'overpaid' to other unrelated covered persons." On appeal, NJDA explained that it was seeking an order from the trial court that "prohibit[s] defendants from informing their insureds that [the insureds] have no patient responsibility to pay to the dentist the amount recouped by the insurer." As such, the NJDA seeks solely injunctive relief. Its members, therefore, are not required to participate in the lawsuit, and the NJDA has satisfied prong three of Hunt.
In his analysis regarding prong three, the judge focused on insurers' individual acts of reimbursement and the corresponding individualized EOB forms. He stated:
[E]ach act of reimbursement, and whether or not it was proper, is a fact-sensitive inquiry. Moreover, the [EOB] that the NJDA alleges is confusing . . . is an individualized form. While the NJDA attempts to argue that the process used by the [i]nsurers itself is the problem, and not the individualized EOB form that goes out to a particular patient, this [c]ourt is not persuaded by that argument.The NJDA does not, however, seek damages for specific past "overpayment" reimbursements. Instead, it seeks to prevent, prospectively, all insurance companies from using the current reimbursement procedures. Similarly, the NJDA does not seek to recover damages suffered as a result of faulty EOB forms, but rather seeks to mandate prospectively that all EOB forms cease recognizing recovered overpayments as satisfaction of an obligation to pay for dental services. Thus, "neither the claim[s] asserted, nor the relief requested, requires the participation of [the] individual [NJDA] members in the lawsuit." Hunt, supra, 432 U.S. at 343, 97 S. Ct. at 2441, 53 L. Ed. 2d at 394.
Finally, we decline at this juncture to address plaintiffs' contentions, raised for the first time on appeal, that the Act and the Prompt Payment Statute are inapplicable to insurance plans providing dental-only coverage. The judge was unable to make the appropriate findings of fact and conclusions of law because the NJDA did not make the argument. We also need not presently reach plaintiffs' remaining argument, that the overpayment provisions of the Act were not intended to abrogate the innocent third-party creditor exception to the law of restitution, because whether the Act abrogates any rights of the individual dentists is dependant on the applicability of the statutes. On remand, we direct the judge to address plaintiffs' new contention that the statutes are inapplicable. We also direct the judge to address whether DOBI has primary jurisdiction to address NJDA's request to change the EOB forms prospectively. We intimate no views about the merits of these arguments, and our remand should not be considered a definitive endorsement or repudiation of the trial judge's analysis of the substantive issues that were originally presented to him. Nothing in this opinion precludes the NJDA or any individual dentists from seeking prospective relief administratively from DOBI, including a petition for rulemaking pursuant to N.J.S.A. 52:14B-4(f).
We direct that the parties and the Attorney General provide to the trial judge, within thirty days, courtesy copies of their post-argument briefs on this issue. We leave it to the judge whether to require additional briefing on remand.
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Reversed and remanded. We do not retain jurisdiction.