N.J. Spine Soc'y v. N.J. Small Emp'r Health Benefits Program Bd.

180 A.3d 333, 453 N.J. Super. 94
CourtNew Jersey Superior Court Appellate Division
DecidedJanuary 31, 2018
DocketDOCKET NO. A–1723–16T4
StatusPublished
Cited by26 cases

This text of 180 A.3d 333 (N.J. Spine Soc'y v. N.J. Small Emp'r Health Benefits Program Bd.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.J. Spine Soc'y v. N.J. Small Emp'r Health Benefits Program Bd., 180 A.3d 333, 453 N.J. Super. 94 (N.J. Ct. App. 2018).

Opinion

FASCIALE, J.A.D.

*97In exercising its executive-agency technical expertise, the New Jersey Department of Banking and Insurance (the Department), Small Employer Health Benefits Program Board (the SEH Board) engaged in rulemaking in accordance with the expedited procedure established by N.J.S.A. 17B:27A-51 (Section 51), rather than pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31. The New Jersey Spine Society (the Society) appeals from the SEH Board's repeal of N.J.A.C. 11:21-7.13 (Section 7.13) as part of its re-adoption of N.J.A.C. 11:21-1.1 to - 23.6 (the Re-adoption). The SEH Board, not the Department, invoked its Section 51 expedited rulemaking powers because N.J.A.C. 11:21-1.1 to - 23.6 was due to expire. This case addresses whether Section 51 authorized the SEH Board to *335repeal Section 7.13, whether the SEH Board complied with Section 51's procedural safeguards, and whether the SEH Board's final decision was arbitrary.

Section 7.13 pertained to out-of-network benefits under certain health insurance plans. The repeal did not eliminate the benefits but merely eliminated reliance on what the SEH Board argues are obsolete standards for determining the amount of an allowable charge for voluntary use of out-of-network services. In the aftermath of the repeal, certain carriers are now required to disclose their basis for permitting allowable charges for voluntary use of out-of-network benefits. The SEH Board maintains that such a requirement promotes competition in the small employer health market, and empowers employees of small employers to make informed decisions about whether to voluntarily seek services from an out-of-network provider.

The Society argues the SEH Board erred by relying on Section 51. Instead, the Society contends that the APA governs the repeal of Section 7.13, which the Society asserts the SEH Board violated. In urging us to reverse the final decision, the Society contends that the repeal amounts to an arbitrary decision because the SEH

*98Board purportedly contravened its own mission statement and the intent of the enabling statute.

Section 51 empowers the SEH Board to expedite rulemaking as to certain defined "actions." The legal issue is whether the repeal of Section 7.13 constituted an "action" under Section 51. We hold that the repeal of Section 7.13, at a minimum, modified certain small employer health benefits and policy plans, two of the enumerated "actions" in Section 51. As a result, the SEH Board correctly relied on Section 51. The SEH Board complied with the procedural safeguards of Section 51, properly repealed Section 7.13, and adhered to its mission statement and enabling statute. We therefore affirm the final agency decision, and uphold the Re-adoption and the repeal.

I.

We begin by briefly addressing the SEH Board's fundamental statutory rulemaking powers. Doing so informs our conclusion that the SEH Board properly relied on and followed Section 51 to repeal Section 7.13. It also provides further support for our holding that the repeal amounted to an "action" under Section 51 because, at a minimum, it constituted a modification of health benefits and policy plans.

In 1992, the Legislature enacted N.J.S.A. 17B:27A-17 to -56, currently known as the Small Employer Health Benefits Act (Benefits Act), to improve New Jersey's small employer health insurance marketplace. The Benefits Act created the Small Employer Health Benefits Program (the Program) pursuant to N.J.S.A. 17B:27A-28. The Program "assure[s] the availability of the standardized health benefits plans to New Jersey small employers, their full-time employees and the dependents of those full-time employees, on a guaranteed issue basis." N.J.A.C. 11:21-2.1(a). The SEH Board administers the Program. N.J.S.A. 17B:27A-28.

Although the SEH Board falls under the umbrella of the Department, the Legislature granted the SEH Board specific *99powers to accomplish its statutory obligation to administer the Program. One of these powers is expedited rulemaking. Here, we are reviewing not the Department's repeal, but rather, the SEH Board's repeal of Section 7.13.

Pursuant to Section 51, the Legislature authorized the SEH Board to adopt certain *336actions in its administration of the Program. To highlight this point, in 1993, the Legislature repealed N.J.S.A. 17B:27A-46, which had stated "[n]otwithstanding any other provision of law to the contrary, all regulations concerning any health benefits plan subject to this act shall be promulgated pursuant to this act." The Legislature repealed N.J.S.A. 17B:27A-46 because it found it obsolete with the implementation of the more specific public notice requirements of Section 51. S. Health & Human Servs. Comm. Statement to S. 1686 2 (L. 1993, c. 162). In other words, Section 51 imposed significant notice obligations, which afforded appropriate due process associated with the SEH Board's statutory expedited rulemaking procedures.

Although the Legislature did not "prohibit the [SEH B]oard from adopting any action pursuant to the provisions of the [APA]," see N.J.S.A. 17B:27A-51(g), the Legislature empowered the SEH Board to adopt "actions" pursuant to the provisions of Section 51(a), which states:

a. For the purposes of this section, "action" includes, but is not limited to:
(1) the establishment and modification of health benefits plans;
(2) procedures and standards for the: (a) assessment of members and the apportionment thereof; (b) filing of policy forms; (c) making of rate filings; (d) evaluation of material submitted by carriers with respect to loss ratios; and (e) establishment of refunds to policy or contract holders; and
(3) the promulgation or modification of policy forms.
"Action" shall not include the hearing and resolution of contested cases, personnel matters and applications for withdrawal or exemptions.
[ N.J.S.A. 17B:27A-51(a) (emphasis added).]

If the SEH Board chooses to exercise its statutory right to engage in rulemaking under Section 51, and the contemplated action-here, the repeal of Section 7.13-constitutes an "action" pursuant to Section 51, then prior to the adoption of that action, the SEH Board must follow Section 51's procedural safeguards. We emphasize *100that the Legislature empowered the SEH Board to act pursuant to Section 51, "notwithstanding the provisions of [the APA]." N.J.S.A. 17B:27A-51(a).

II.

Interpreting the rulemaking language of Section 51 is critical in this dispute. In arguing that the SEH Board erroneously relied on Section 51, the Society maintains that the Re-adoption and the repeal do not constitute an "action" as defined by Section 51. As a result, it maintains that the APA, not Section 51, governs the Re-adoption and the repeal. To resolve this contention, we must interpret and apply Section 51's definition of "action."

"In matters of statutory interpretation, our review is de novo." Verry v.

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Bluebook (online)
180 A.3d 333, 453 N.J. Super. 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nj-spine-socy-v-nj-small-empr-health-benefits-program-bd-njsuperctappdiv-2018.