Before Judges King, Lefelt and Axelrad.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from a Final Determination of the State Health Benefits Commission.
Petitioner John A. Murray is a County College professor insured under the State Health Benefits Plan ("State Plan"). Rather than selecting one of several Health Maintenance Organizations or a "point of service plan" available under the State Plan for State employees, Murray has chosen the traditional plan. This plan provides partial indemnification to eligible employees and permits participants to select their own doctors and apply for payment to providers or reimbursement of incurred medical expenses that are covered by the plan. In this appeal, Murray seeks $170 reimbursement for colonic hydrotherapy treatments that were denied by the State Health Benefits Commission ("Commission") because the treatments were experimental, not medically necessary, for general health maintenance, and administered by an unauthorized provider. Colonic hydrotherapy is also called colonic irrigation and is similar to an enema, with the difference being the mechanism used and the magnitude of the volume infused. This therapy apparently was known to ancient Egyptians and Romans and has been available in this country for centuries. Murray hopes to establish that treatments, like colonic hydrotherapy, thought to be safe and effective by complementary or alternative physicians, should be reimbursable under the State Plan like treatments that are prescribed by traditional doctors. This appeal, however, is a poor vehicle to accomplish such a result, and we affirm, but nevertheless express some concerns about the rationale the Commission utilized to find that colonic irrigation was an experimental treatment.
Before discussing Murray's treatments, we first explain the basic administrative structure of the State Plan. The Commission was established by N.J.S.A. 52:14-17.25 - 45, The New Jersey State Health Benefits Program Act, to administer a program providing comprehensive health care benefits for eligible public employees, retirees and their dependents at reasonable cost. The Commission is composed of the State Treasurer, the Commissioner of Insurance and the Commissioner of Personnel. N.J.S.A. 52:14- 17.27. The Commission has entered into a contract with Blue Cross Blue Shield to administer the traditional plan. Previously, Prudential Insurance Company administered the traditional plan. Neither Blue Cross Blue Shield nor Prudential acts as insurers; rather, the State self-insures the cost of the traditional plan, and the plan administrator reviews and pays claims according to the plan. The Commission pays an administrative fee and reimburses the administrator for paid claims. The Commission retains final authority and financial responsibility for the State Plan.
The traditional plan, that was selected by Murray, is described in a booklet entitled "New Jersey State Health Benefits Program Medical Plans Information Handbook." The Commission has statutory authority to establish "such limitations, exclusions, or waiting periods as the commission finds to be necessary or desirable to avoid inequity, unnecessary utilization, duplication of services or benefits otherwise available . . . ." N.J.S.A. 52:14-17.29(B). The Commission's contract with Blue Cross Blue Shield establishes the types of services and supplies that are covered as eligible services. Under N.J.A.C. 17:9-2.16, the Commission has adopted by reference all of the policy provisions in the contract "to the exclusion of all other possible coverages." No benefits may be paid unless they are "stipulated in the contracts held by the [Commission]." N.J.S.A. 52:14- 17.29(B).
Under the contract, the traditional plan pays only eligible charges. An eligible charge is defined, in relevant part, as a charge for services that: "are medically needed and appropriate treatment for the medical condition; are listed in 'Services and Supplies' [in another section of the contract]; are ordered by a doctor (as defined by the plan) for treatment of illness or injury;. . . and are not specifically excluded. . . ." Furthermore, we explained in Heaton v. State Health Benefits Comm'n, 264 N.J. Super. 141, 151 (App. Div. 1993) that the State Plan was not to be considered a commercial insurance policy. The Commission must balance its obligations of meeting the health care needs of its members with a fiduciary obligation to make the program cost effective. Consequently, interpretation of the State Plan provisions is not approached as if we were analyzing language in commercial insurance policies. Any ambiguous provisions in the State Plan will not be construed against the State as a contract of adhesion, which is the approach taken with commercial policies. Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 482 (1961).
The first colonic hydrotherapy was prescribed for Murray by Dr. Oscar Kruesi as treatment for dysbiosis (microbiologic abnormality in the colon or small intestine). A registered nurse, Susan Richter, administered the treatment in her office on June 21, 1995. Richter's charge for the treatment was $130. Murray submitted a claim for reimbursement to the State Plan together with Dr. Kruesi's prescription. Prudential, the claims administrator at the time, paid the claim in full.
The second colonic hydrotherapy was prescribed by doctor Rita Foss Morgan for recurring dysbiosis. It was administered by Richter on October 7, 1996, fifteen months after the first treatment. The charge was $100. Murray's claim for reimbursement again was submitted with the doctor's prescription this time to Blue Cross, which had replaced Prudential as the claim administrator on January 1, 1996. Payment of the claim was first deferred but later paid.
Dr. Kruesi prescribed the third treatment for Murray's vitamin and mineral deficiencies and malabsorption. Richter administered this treatment on January 17, 24 and 31, 1997, three-and-one-half months after the second treatment. Richter's charge was $270. Payment of this claim was again deferred initially by Blue Cross but later paid.
The fourth, and last, treatment was again prescribed by Dr. Kruesi to treat Murray for allergies, dysbiosis, malabsorption and vitamin and mineral deficiencies. Richter administered this treatment on July 24, 1997, six months after the third treatment, and approximately one month after Blue Cross Blue Shield had notified Murray that "your New Jersey State Health Benefits Program does not provide benefits for Colonic Irrigation." Because this treatment came after Murray had been advised that these treatments were not covered, Blue Cross denied Murray's reimbursement claim for Richter's $170 bill. This charge remains unpaid and is the only monetary issue between the parties. It is important to note also that Blue Cross Blue Shield has provided coverage for all charges billed by Murray's doctors in connection with their prescribing these treatments.
Murray requested a hearing before the Commission, and the matter was transferred to the Office of Administrative Law ("OAL"). After conducting a plenary hearing, Administrative Law Judge R. Jackson Dwyer concluded that Richter was not an eligible provider, and that Murray's treatments after June 27, 1997 were administered merely to maintain his overall health and thus were ineligible maintenance treatments. He further concluded that although colonic hydrotherapy was prescribed by a doctor, the prevailing medical opinion within the appropriate specialty was that such services were not safe and effective. Consequently, colonic hydrotherapy was not a medically needed service. Finally, Judge Dwyer concluded that colonic hydrotherapy could not be considered experimental or investigational under the applicable State Plan definition.
The Commission adopted Judge Dwyer's initial decision completely except it modified his determination that colonic hydrotherapy was not experimental or investigational. The Commission ...