STEVEN SARGESE, MARYANNE KRENZ, and NEW JERSEY PSYCHOLOGICAL ASSOCIATION, Plaintiffs–Respondents, v. HORIZON HEALTHCARE SERVICES, INC. and MAGELLAN HEALTH SERVICES, INC., Defendants–Appellants.
DOCKET NO. A–3954–11T3
-- June 11, 2013
James P. Flynn argued the cause for the appellants (Epstein Becker & Green, P.C., attorneys; Mr. Flynn and Amy E. Hatcher, on the briefs).Bruce D. Greenberg argued the cause for respondents (Lite DePalma Greenberg, L.L.C., attorneys; Mr. Greenberg and Susana Cruz–Hodge, on the brief).Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae State Health Benefits Commission (Melissa H. Raksa, Assistant Attorney General, of counsel; Danielle P. Schimmel, Deputy Attorney General, on the brief).
By leave granted by the Supreme Court, defendants Horizon Healthcare Services, Inc. (Horizon) and Magellan Health Services, Inc. (Magellan), appeal the November 18, 2011 order of the Chancery Division, Essex County denying defendants' motion to dismiss the complaint filed by the New Jersey Psychological Association (NJPA) and two patients covered by the New Jersey State Health Benefits Program (SHBP). Because the Essex court failed to grant preclusive effect to a determination made by a court of concurrent jurisdiction that NJPA lacked standing in an action that raised the same substantive claims, and because the patient plaintiffs failed to exhaust their administrative remedies, we reverse and remand for dismissal of the complaint.
NJPA is a private, non-profit, professional association representing approximately 2100 active and retired psychologists located throughout New Jersey. On October 29, 2010, NJPA and a member psychologist, Barry L. Helfman, filed a declaratory judgment complaint in the Chancery Division, Mercer County (NJPA I), naming Horizon, Magellan and the State Health Benefits Commission (Commission) as defendants. Plaintiffs in NJPA I sought a declaration that Horizon and Magellan violated the New Jersey Practicing Psychology Licensing Act (PPLA), N.J.S.A. 45:14B–1 to –46, by engaging in a practice “requiring psychologists to disclose confidential patient treatment information in connection with the initial precertification process or the process for continuing treatment or approving payment for mental health benefits.” N.J.S.A. 45:14B–28. The complaint also alleged that conduct breached the Commission's policy requiring only minimum necessary when making treatment and payment decisions. Plaintiffs claimed that they were bringing the action as parties in interest, pursuant to N.J.S.A. 2A:16–53. Defendants filed a motion to dismiss, claiming plaintiffs lacked standing.
On January 31, 2011, after hearing oral argument, the Mercer judge found that NJPA had not “shown any actual injury, certainly to itself as an association” and that “third party standing should not be accorded to parties in a breach of contract situation where the parties are not ․ parties to the contract.” The court entered an order dismissing plaintiffs' complaint finding that “neither the [NJPA] nor Dr. Helfmann has standing to bring the claims that were set forth in [the] complaint.”
Plaintiffs filed notice of appeal on March 9, 2011, then apparently reconsidered this course of action. On June 13, 2011, plaintiffs withdrew their appeal and on July 19, 2011, NJPA filed a second declaratory judgment complaint, this time in the Chancery Division, Essex County (NJPA II). The complaint in NJPA II added two patients as plaintiffs, Steven Sargese and Maryanne Krenz, but named only Horizon and Magellan as defendants, not the Commission. Dr. Helfmann was not a party to NJPA II.
Sargese a member of the SHBP, which provides health insurance to state employees. He claims that he was denied treatment because he refused to provide confidential information protected under N.J.S.A. 45:14B–28. In March 2009, Sargese sought mental health. His treating psychologist completed the forms required by defendant, Magellan, and requested authorization for a treatment plan consisting of two sessions per week of seventy-five minutes each. Magellan did not immediately approve the treatment plan and requested that Sargese's treating psychologist submit to a clinical review by a psychiatrist. During this review, Magellan sought additional treatment records pertaining to the underlying cause of Sargese's mental health issues and whether Sargese was taking medication. Sargese did not consent to the release of this information and his treating psychologist would not disclose it. Magellan ultimately denied the psychologist's treatment request and approved only one session per week.
After Sargese filed an internal, Magellan amended its authorization to allow two therapy sessions per week of forty-five to fifty minutes each for four weeks and then one forty-five to fifty minute therapy session per week for the next eight weeks. Sargese underwent the treatment plan recommended by his psychologist and paid for the additional sessions himself.
Maryanne Krenz was also a member of the SHBP and participated in the NJ Direct plan. Krenz claims she was denied treatment based on her refusal to provide confidential information. Specifically, Krenz had been receiving ongoing care from a psychologist for a mental health condition. Initially, Krenz attended two individual therapy sessions per week authorized by Magellan, based on treatment request forms submitted by Krenz's treating psychologist. In 2010, the authorization was reduced to one session per week. Krenz's psychologist was asked to submit to clinical review and additional information was sought. Krenz's psychologist refused to provide the information, and Magellan denied the request to reimburse for the additional visits. Krenz and her treating psychologist submitted Level 1 and Level 2 internal appeals. Magellan requested additional information but Krenz felt the information sought was confidential and refused to disclose it. Magellan then denied Krenz's appeals as well as her request for additional therapy sessions. Krenz failed to exercise her right to appeal the Level 1 and Level 2 denials to the Commission.
The NJPA II complaint sought identical relief as the complaint in NJPA I. H, the claim was brought on behalf of all plaintiffs, while the breach of contract claim was brought on behalf of only the patient plaintiffs.
On September 8, 2011, defendants filed a motion to dismiss, claiming lack of standing, collateral estoppel, failure to exhaust administrative remedies, failure to state a claim and failure to join the Commission as an indispensable party. The Essex court heard oral argument on November 18, 2011, and denied defendants' motion.
After we denied defendants' motion for leave to appeal, defendants sought leave to appeal with the Supreme Court, which was granted on April 3, 2012. The matter was summarily remanded to us. After oral argument, we extended an invitation to the to appear as amicus curie.
On appeal, defendants raise the following points:
UNDER THE APPLICABLE STANDARD OF REVIEW, DISMISSAL IS APPROPRIATE.
NJPA IS PRECLUDED FROM PURSUING IN NJPA II STANDING ISSUES IT HAD A FULL AND FAIR OPPORTUNITY TO LITIGATE IN NJPA I AND THE ESSEX COUNTY CHANCERY DIVISION ERRED WHEN IT CONSIDERED THE SAME CONCLUSIVELY DETERMINED ISSUES AGAIN.
NJPA HAS NO STANDING—DIRECT, ASSOCIATIONAL, OR THIRD PARTY—TO BRING THESE CLAIMS AND THE ESSEX COUNTY CHANCERY COURT ERRED WHEN IT MISAPPLIED THE RELEVANT STANDARD AND DETERMINED THAT NJPA HAS ASSOCIATIONAL STANDING.
A. THE ESSEX COUNTY CHANCERY COURT INCORRECTLY DETERMINED THAT NJPA HAS ASSOCIATIONAL STANDING TO PURSUE THESE CLAIMS.
B. NJPA ALSO LACKS BOTH DIRECT AND THIRD–PARTY STANDING TO PURSUE THESE CLAIMS.
C. DISMISSAL IS APPROPRIATE AT THIS STAGE OF THE LITIGATION BECAUSE ANY DISCOVERY CONDUCTED BY THE PARTIES CANNOT CURE THE MATERIAL DEFICIENCIES IN PLAINTIFFS' CLAIMS, WHICH PRECLUDE A FINDING THAT NJPA HAS STANDING TO PURSUE THESE CLAIMS.
THE PATIENT PLAINTIFFS HAVE NOT EXHAUSTED THEIR ADMINISTRATIVE REMEDIES, AND THE CHANCERY DIVISION, ESSEX COUNTY, ERRED WHEN IT ADOPTED AN OVERLY BROAD READING OF THE “QUESTION OF LAW” EXCEPTION TO THE EXHAUSTION DOCTRINE PERMITTING PLAINTIFFS TO PURSUE THEIR UNEXHAUSTED CLAIMS.
The Commission submitted a brief arguing that the individual plaintiffs should be required to exhaust their administrative remedies.
We first address defendants' claim that NJPA is precluded from relitigating the issue of standing in NJPA II, after it was afforded a full and fair opportunity to contest the issue in NJPA I. he Essex judge found that collateral estoppel did not bar her from deciding the issue of standing even though the Mercer judge had previously ruled on the same matter. The Essex judge even acknowledged that she was being asked to reconsider the de of the Mercer judge, stating, “ a closer question as to whether [plaintiffs] should be allowed to have some reconsideration by this Court as to their standing to bring this case.” The Essex judge noted that while she was “very impressed” with how the Mercer judge ruled, she was not bound by that ruling and had “the right to see it differently.” The judge then reasoned that the Mercer judge's decision was “colored” by the fact that there were no individual plaintiffs in NJPA I, and that adding the two patients as plaintiffs, NJPA attempted to “cure the deficiency” which resulted in the Mercer court finding that NJPA lacked standing. Relying on our decision in NAACP of Camden County East v. Foulke Management Corp., 421 N.J.Super. 404 (App.Div.2011), the Essex judge found that NJPA had standing to bring this action “because they are an organization that has interest in its own right to protect ․ and lobby for, essentially, the interest of its members, to afford them training, continuing education, counseling.”
The doctrines of collateral estoppel and res judicata serve the important policy goals of “finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion and uncertainty; and basic fairness[.]” Hackensack v. Winner, 82 N.J. 1, 32–33 (1980). “If an issue between the parties was fairly litigated and determined, it should not be relitigated.” First Union Nat. Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007). “Issue preclusion requires a similar, yet less demanding, analysis than res judicata.” Ibid. “nlike claim preclusion, issue preclusion can result from a judgment even if that judgment was not rendered on the merits.” Bondi v. Citigroup, Inc., 423 N.J.Super. 377, 42 (App.Div.2011) (quoting Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 422 (1991)), certif. denied, 210 N.J. 478 (2012). “ ‘When an issue of fact or law is actually litigated and determined by a valid and final judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.’ ” Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 659 (1996) (quoting Restatement (Second) of Judgments § 27 (1982)).
In Hennessey v. Winslow Township, 183 N.J. 593, 599 (2005), our Supreme Court outlined the requirements to foreclose relitigation of an issue explaining that “the party asserting the bar” must show that:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
d. (quoting In re Estate of Dawson, 136 N.J. 1, 20–21 (1994)).]
Applying these principl, we find the standing issue raised in NJPA I is identical to the issue in NJPA II. The harm alleged in the two complaints is also. In both complaints, the NJPA claims its members and their patients have been harmed by:
having to spend time and resources responding to increased scrutiny; being hampered in their ability to provide adequate and quality mental health treatment to members due to Defendants' denial or reduction of approval and payment for mental health benefits; and being faced with potential liability for improper disclosure of confidential mental health records.
The Mercer judge determined that the NJPA had not demonstrated that it suffered actual injury and entered a final judgment of dismissal. Where, as here, the issue in NJPA II is identical to the one fully and fairly litigated and resolved in NJPA I, a subsequent proceeding on the same issue is barred unless application of the equitable bar would be unfair. Pace v. Kuchinsky, 347 N.J.Super. 202, 215 (App.Div.2002). The dismissal here is a final order, from which plaintiff could have appealed. R. 2:2–3(a)(1). After filing a notice of appeal, the NJPA I plaintiffs withdrew the appeal and instead filed a second complaint seeking the same relief, alleging the same damage, in a different vicinage, before a different judge. Plaintiffs in NJPA II raise no new issues present no new facts that should change the decision made by the Mercer judge. Based on our review of the above factors, we conclude that the requirements for the application of issue preclusion are satisfied and the Essex judge was precluded from reconsidering the decision of the Mercer judge in NJPA I, that plaintiffs lacked standing.
We do not decide whether NJPA has standing to challenge defendants denial of payments or seek a declaratory ruling under the Administrative Procedure Act, N.J.S.A. 52:14B–1 to –25, as that matter is not before us.
We next turn to defendants' claim that the complaint must be dismissed as to the individual plaintiffs as they have failed to exhaust their administrative remedies. The individual plaintiffs contend that they are not required to exhaust their administrative remedies as the issue involves only a matter of law. Amicus Commission argues that plaintiffs' actions “seek to bind the Commission without providing it the opportunity to rule on the interpretation of its enabling statutes and regulations, the language in its Member Handbook, or the contractual of its third-party administrators when making medical necessity determinations.” We agree.
The SHBP was created by the State Health Benefits Program Act of 1961, N.J.S.A. 52:14–17.25 to .45(Act), which also created the Commission. The Commission was tasked with negotiating and purchasing medical, surgical, hospital, and major medical benefits for participating public employees and their families, “in the best interests of the State and its employees.” N.J.S.A. 52:14–17.27 to .28. The Commission was also given exclusive jurisdiction to determine disputed matters under the plan. Ibid.
he Act grant the Commission sole authority to determine “what types of services and supplies shall be included as eligible medical services under the major medical expense benefits coverage as well as those which shall be excluded from or limited under such coverage.” N.J.S.A. 52:14–17.29(A)(2). The Commission is authorized to impose limitations and exclusions “as the ommission finds to be necessary or desirable to avoid inequity, unnecessary utilization, duplication of services or benefits otherwise available ․ [and] [n]o benefits shall be provided beyond those stipulated in the contracts held by the [Commission].” N.J.S.A. 52:14–17.29( ).
The Commission contracted with Horizon to administer the SHBP and a Magellan subsidiary has subcontracted with to administer the mental health claims under the SHBP. The NJ Direct Member Handbook informs members the eligible services and supplies that are covered by the plan. Under the contract adopted by the Commission, Horizon is required to determine whether a service or supply is “medically needed at the appropriate level of care.” The Handbook provides that “[w]hen there is a question as to medical need, the decision on whether the treatment is eligible for coverage will be made by Horizon․” The Commission relies on the expertise of Horizon and Magellan to make initial coverage determinations. The Handbook outlines the procedure for first and second level appeals for members who are not satisfied with any utilization review decision. If a member is dissatisfied with the results of Horizon's internal appeal process, the member may appeal to the Commission.
The Commission is responsible for interpretation of the SHBP. Murray v. State Health Benefits Comm'n, 337 N.J.Super. 435, 439 (App.Div.2001) (“[t]he Commission retains final authority and financial responsibility for the State Plan”). The Commission has authority to decide questions regarding individual benefit determinations as well as any matter involving interpretation of the Act.
The determination of the Essex, that the individual plaintiffs were not required to exhaust administrative remedies, was based on her reasoning that the Commission traditionally deals with benefits claims and this case involved privilege, an area the Commission did not have experience in:
[This case] is very different than the usual types of issues that make their way through the. And I venture to say that those agencies probably would not even have a clue as to how to analyze a privilege issue if it were presented to them. I say that without compunction because a lot of courts are daunted by them. And we are ․ trained, we are esteemed in the law and yet, the ․ question of how to apply privilege in a particular case is a tough one.
We ․ as lawyers and as Courts deal with attorney client privilege all the time and we apply it and parse it and deal with those issues in the discovery process. [The ] doesn't know what that is. They ․ don't deal with those things. They they're going to look at this with blinders. They're going to look at this in sort of a narrow, cut and dry fashion that, we want thee documents, that's it and ․ and because there's a refusal, end of story.
I mean, I ․ think that they don't have the sophistication frankly and that's not meant insultingly, to handle this․
Amicus Commission responds that if individual plaintiffs had pursued their administrative remedies, the Commission would have been in a position to develop a record to determine whether the information requested by Magellan and Horizon is in accord with the regulation, contracts and lan ocuments. We agree.
The exhaustion requirement serves the following three goals:
(1) the rule ensures that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate resort to the courts.
[City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979).]
“The first goal is particularly important where the ultimate decision rests upon the factual determinations lying within the expertise of the agency or where agency interpretation of the relevant statutes or regulations is desirable.” Triano v. Div. of State Lottery, 306 N.J.Super. 114, 121 (App.Div.1997) (quoting Magliochetti v. State, 276 N.J.Super. 361, 374 (Law Div.1994)). The Commission is authorized by statute to determine what types of services are “eligible medical services.” e find nothing in the record to support the Essex judge's that the Commission does not have the expertise o resolve the question presented. “The expertise of an administrative agency may not be exercised or known until it renders its final decision and usually due deference is accorded such expertise upon judicial review.”,, 276 N.J.Super. at 375.
“The second goal is significant, as we are not a court of record and must depend on a record developed at the trial le.”,, 306 N.J.Super. at 121. The third goal
requires the parties to pursue available procedures to their appropriate conclusion and correlatively await[ ] their final outcome before seeking judicial intervention. This is so because interruption of the administrative process is not justifiable to any greater extent than interference with the trial process by interlocutory appeals.
,, 276 N.J.Super. at 374–75 (citations omitted).]
he exhaustion doctrine “is a rule of practice designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts. Therefore, ․ there is ․ a strong presumption favoring the requirement of exhaustion of remedies.” Brunetti v. New Milford, 68 N.J. 576, 5 (1975) (internal citation omitted). We acknowledge that the doctrine is discretionary rather than jurisdictional, Abbott v. Burke, 100 N.J. 269, 297 (1985), and that it is generally not applied “when only a question of law exists,” or “administrative remedies would be futile.”,, 306 N.J.Super. at 121–22. However, “where the court perceives the agency to be in a special position to interpret its enabling legislation,” a court may still require administrative remedies to be exhausted, despite a question of law being the only dispute.,, 100 N.J. at 298.
The Commission is uniquely suited to resolve the issue presented by plaintiffs. N.J.S.A. 52:14–17.29(A)(2) (“[T]he commission may, by regulation, determine what types of services and supplies shall be included as ‘eligible medical services' under the major medical expense benefits coverage as well as those which shall be excluded from or limited under such coverage.”). Accordingly, the complaint fails to state a claim upon which relief can be granted as patient plaintiffs have failed to exhaust their administrative remedies.
eversed and remanded with instruction to dismiss plaintiffs' complant.
1. FN1. The N.J. Direct Member Handbook provides that if a member is not satisfied with a decision regarding benefits, a First Level internal appeal may be initiated and will be reviewed by Horizon. If the member is not satisfied with the determination made on the First Level appeal, the member may initiate a Second Level appeal, “before other health care professionals selected by Horizon BCBSNJ who were not involved in the initial determination.”