For affirmance -- Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- None.
In this proceeding plaintiffs attack the authority of the Commissioner of Banking and Insurance to grant temporary emergency increases, averaging 28.5%, in Hospital Service Plan (Blue Cross) rates. The increases which were approved by the Commissioner on August 25, 1969 became effective on December 1, 1969 and will expire on April 30, 1970.
On May 28, 1969, Blue Cross filed with the Commissioner of Banking and Insurance proposed rate increases which
were to become effective on October 1, 1969. The increases averaging approximately 44.3% related to certain hospital service contracts. The action was taken pursuant to N.J.S.A. 17:48-6.5 and 17:48-9 which require the filing of a full schedule of rates to be charged by the Plan before any contracts are entered into with subscribers. It is to be noted that the cited sections of the statute do not require express approval of the rates by the Commissioner before they become effective. Both sections say that after the rate schedule is filed the "Commissioner may disapprove [it] at any time if he finds that such rates are excessive, inadequate or unfairly discriminatory." It would thus appear that, unless the Commissioner disapproves, a rate schedule of the type involved here would become operative on filing subject to the giving of the prescribed 90-day notice to certain contract subscribers, N.J.S.A. 17:48-6(a).
The statute contains neither mandate nor provision for a hearing on such a rate schedule.*fn1 The Commissioner's brief informs us, however, that it has been his policy to hold public hearings thereon. Moreover, to assist him in seeking a just result at such hearings the Attorney General with the approval of the Governor appoints a "Public Defender." N.J.S.A. 52:17A-13. Pursuant to that salutary policy and after notice to all interested parties, as well as to the public generally, a hearing on the fairness and adequacy of Blue Cross's proposed rate increases was scheduled for and began on July 30, 1969. At that time more than 20 witnesses were heard; substantial expert and informed lay witnesses described the Hospital Service Plan's difficult financial condition and the urgent need for upward revision of its subscriber rates. Testimony of its officers revealed that the Plan's reserve balance which was $12,000,000 on December 31, 1968 had declined to
$3,200,000 by March 31, 1969 and stood at minus $3,009,641 on June 30, 1969. One officer predicted a deficit of $17,000,000 by the end of 1969, while another estimated it at $15,000,000. The principal producing cause of the difficulty was said to be the ever-rising per diem hospital care costs which accounted for 80% of the overall requested rate increases. It was said that increased hospital costs alone required a rate increase of 36.3%. No contrary testimony was produced by the objectors.
The hearing was recessed until August 20. In the meantime the Commissioner indicated that the renewed proceeding would concern itself primarily with the need for some emergency relief in the form of temporarily increased rates. It seems obvious from the record that one reason for consideration of interim relief was the fact that the Public Defender's investigation and study of the matter -- particularly of the rising hospital costs -- could not be completed for some time.
On August 20 evidence was adduced to show that under existing rates as of December 1, 1969, the earliest date on which a rate increase would be possible (N.J.S.A. 17:48-6(a)), Blue Cross would have a projected deficit of $15,000,000. Further testimony indicated that it was technically insolvent and that it was presently operating in violation of N.J.S.A. 17:48-10 which requires a minimum reserve of not less than $100,000. An actuary in the Department of Banking and Insurance was questioned by the Public Defender. Although this witness was somewhat critical of the accounting methods followed by the Plan, he conceded that Blue Cross was in serious financial distress, and that its assets were substantially less (i.e. $3,009,641) than its liabilities. His opinion was that as of December 1, the Blue Cross deficit would be between 10 and 15 million dollars. In answer to the Commissioner's inquiry, he said that to stabilize the deficit from December 1, 1969 through March 31, 1970, the estimated earliest possible date at which it was thought the Public Defender could complete his study, a rate increase of about 28% would be required.
At the close of this portion of the hearing, the Public Defender suggested that the Commissioner approve an interim rate increase sufficient to freeze Blue Cross's current deficit pending completion of his investigation and that a hearing be held later after all the facts had been assembled at which time the matter would be ripe for a decision as to the proper permanent rates. The President of the Plan argued for a more substantial increase than would be required to merely freeze the deficit pending final hearing. He contended that the Commissioner was charged by the statute with the continuing obligation of insuring the solvency of the Plan. In commenting on the various arguments the Commissioner indicated his thinking about the pressing nature of the problem. He said:
"* * * [d]uring this period when we are proceeding to make the studies deemed necessary to eliminate a number of questions in the minds of the public, we intend to give such relief as will keep you in business and we expect to have a final determination which will to the extent possible reflect the ...