THE ASSOCIATION OF NEW JERSEY CHIROPRACTORS, INC., DR. MARK NAJAAR, DC, and DR. THOMAS BRUNO, DC, Plaintiffs-Appellants,
HORIZON HEALTHCARE SERVICES, INC., d/b/a HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY, INC., and CARE CORE NATIONAL, LLC, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-215-12.
Law Office of Jeffrey Randolph, L.L.C., attorney for appellants (Jeffrey B. Randolph, on the briefs).
DLA Piper LLP (US), attorneys for respondent Horizon Blue Cross Blue Shield of New Jersey, Inc. and Greenberg Traurig, LLP, attorneys for respondent CareCore National, LLC (Andrew O. Bunn and David E. Sellinger, of counsel and on the joint brief; Kristin A. Pacio and Theodore McEvoy, on the joint brief).
Before Judges Ostrer, Kennedy and Mantineo.
This appeal involves a challenge to a "privileging policy" promulgated by Horizon Blue Cross Blue Shield of New Jersey (Horizon). The policy limited the kinds of diagnostic imaging services, including x-rays, that Horizon would reimburse if performed in an office setting by members of its participating provider network. Two chiropractors who are members of the Horizon network, and a non-profit association of chiropractors, challenged the policy. They alleged Horizon's privileging policy violates N.J.S.A. 17B:27-51.1, a 1975 law that requires group health policies to cover services performed by chiropractors if the services are also reimbursed when performed by other health care professionals. Plaintiffs also alleged a breach of contract and the covenant of good faith and fair dealing; and a violation of the monopolization provision of the New Jersey Antitrust Act, N.J.S.A. 56:9-4(a). Plaintiffs included as a defendant Care Core National, LLC (CCN), a benefit management firm that assisted Horizon in developing the privileging policy.
The trial court granted defendants summary judgment and dismissed plaintiffs' amended complaint with prejudice. Judge Yolanda Ciccone held that plaintiffs had no private right of action under N.J.S.A. 17B:27-51.1. Moreover, Horizon did not violate the statute, because it governs group health insurance policies, not provider agreements, which the privileging policy amended. The court also found no breach of contract, as the provider agreement authorized Horizon to determine covered services. Finally, the court held that plaintiffs failed to allege sufficient facts to support their antitrust claims.
Having reviewed plaintiffs' arguments in light of the record and applicable law, we affirm in part, and remand in part.
We comment first on the procedural setting of the trial court's order. In lieu of an answer, defendants filed a motion to dismiss plaintiffs' complaint pursuant to Rule 4:6-2(e). Aside from providing the court with various unpublished judicial and administrative decisions, defendants included with their motion only the referenced privileging policy and the participating provider agreements between Horizon and the two plaintiff-chiropractors, Mark Najaar, D.C., and Thomas Bruno, D.C.
Inclusion of documents referenced in a complaint does not convert a motion to dismiss into a motion for summary judgment. See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (stating that in evaluating a motion to dismiss, a court may consider documents upon which the claim is based); N.J. Citizen Action, Inc. v. Cnty. of Bergen, 391 N.J.Super. 596, 605 (App. Div.) (stating that "consideration of the documents referred to in the complaint . . . does not convert defendants' R. 4:6-2(e) motions into motions for summary judgment"), certif. denied, 192 N.J. 597 (2007). Nonetheless, plaintiffs responded that defendants' motion should be deemed one for summary judgment, asserting the contracts and the unpublished authority constituted matters outside the pleadings. However, in opposing defendants' motion, plaintiffs did not present the court with any cognizable evidence. See R. 1:6-6 (discussing evidence on motions). They did file an amended pleading, which deleted a claim under the Unfair Claims Settlement Practices Act, N.J.S.A. 17B:30-13.1, and clarified that the association did not join in the contract claim. The trial court consequently treated defendants' motion as one for summary judgment.
Dr. Bruno and Dr. Najaar are participating Horizon chiropractors pursuant to participating provider agreements. Plaintiffs do not dispute that Dr. Bruno's provider agreement, originally entered into in 1983, required him to accept such rates for services as Horizon determined. Since 2005, pursuant to a specialty provider agreement, Dr. Bruno consented to abide by rules and procedures that would limit the types of services he could provide for reimbursement, and Horizon could amend those rules and procedures at any time. The specialty provider agreement states:
You [Dr. Bruno] warrant that You have reviewed the policies, rules and procedures of Horizon and Affiliates as set forth in the applicable provider manual that Horizon will provide to You which is incorporated herein by reference and made a part hereof. You acknowledge that such policies, rules and procedures may be revised from time to time . . . . You agree to participate in, cooperate with and comply with all applicable administrative policies, rules and procedures established or to be established by Horizon and Affiliates . . . . In addition, You acknowledge that Horizon or its designee shall have final authority to determine whether a service is a Covered Service . . . .
. . . .
You acknowledge that You shall not be paid under the following circumstances: . . . services You performed when you failed to comply with Horizon's or an Affiliate's policies, rules and procedures, including but not limited to services which Horizon's or an Affiliate's policies, rules and procedures require to be directed to other Participating Providers, even if You typically could have performed such services in Your office. You agree to accept an adjustment in Payment imposed in connection with any of Horizon's or an Affiliate's quality improvement, utilization management and provider incentive programs, and similar programs.
The record includes a less extensive agreement between Horizon and Dr. Najaar. He agreed to be a participating provider, and to abide by Horizon's bylaws, rules and regulations. The agreement addresses payment rates for in-hospital services and other professional services. The agreement governed what he could charge "when [he] perform[ed] any professional services that are eligible under any of our contracts[.]"
First effective November 30, 2009, but revised as recently as December 22, 2010, Horizon's privileging policy on diagnostic imaging "designate[d] which imaging procedures are permitted in [a] Primary Care Physician[']s, Specialty Physician[']s and Other Health Care Professional's office by provider practice specialty." The policy describes the permitted imaging procedures, and identifies them by Current Procedural Terminology (CPT) codes. The policy covers a range of provider specialties, including not only chiropractors, but also, among many others, primary care physicians, cardiologists, surgeons of various kinds, oncologists, obstetricians and gynecologists, orthopedists, podiatrists, and urologists. Within some specialties, the policy permitted certain diagnostic imaging procedures only if the specialist possessed additional credentials, such as a board certification. The policy permitted chiropractors to perform "spine imaging, " and referenced various spine-imaging CPT codes.
The policy stated, "Diagnostic imaging services that are not listed under the ordering physician's specialty must be referred to either a participating freestanding radiology site or a participating hospital outpatient setting." The policy advised participating providers, "[Y]ou must ensure compliance to [sic] the above mentioned policy as this could affect what radiology services you would be privileged to perform." The policy excluded certain Horizon ...