Blue Shield of Massachusetts, Inc. v. Board of Review in the Division of Insurance
Blue Shield of Massachusetts, Inc. v. Board of Review in the Division of Insurance
Opinion of the Court
After hearing, Blue Shield of Massachusetts, Inc. (Blue Shield), acting by its Central Professional Services Committee, struck Martin M. Grossack from its roster of participating psychologists, effective October 15, 1978. Blue Shield’s reasons were that Grossack “ha[d] violated Rule 2 of the Blue Shield Rules and Regulations and ha[d] submitted improper claims to Blue Shield for compensation.”
On this appeal the principal questions are whether, on the dates in question,
We review the pertinent facts and proceedings. Grossack is a licensed psychologist. In 1975, he entered into a participating psychologist’s agreement with Blue Shield, a medical service corporation organized under G. L. c. 176B.
For those infractions, the board thought, permanent expulsion from the ranks of providers was an excessive sanction. The board ordered that “Dr. Grossack is to be reinstated as a participating Blue Shield provider of psychological services on October 15, 1983. The reinstatement is conditioned on Dr. Grossack’s restitution of all Blue Shield payments made for incomplete services or upon false certifications as found in this decision.”
1. Applicability of rule 2. Grossack’s contract with Blue Shield bound him to “all by-laws and rules and regulations of [Blue Shield].” In the form in which they were printed when distributed to Grossack, those rules and regulations refer to the obligations of participating physicians and participating dentists and no other providers of service. As a matter of elementary contract construction, Grossack argues, rules and regulations for physicians and dentists do not apply to psychologists. Consequently, he has violated no rule or regulation and, the argument continues, the foundation of Blue Shield’s disciplinary proceeding collapses. If the argument were correct, no rules or regulations of any kind would have applied to psychologists, because the rules and regulations Grossack disavows were the only rules and regulations there were. Thus, in addition to the restrictive aspect of rule 2,
The application of the rules and regulations to this particular psychologist is buttressed by the parties’ actions after the execution of the contract. See Martino v. First. Natl. Bank, 361 Mass. 325, 332 (1972); Bourgeois v. Hurley, 8 Mass. App. Ct. 213, 215-216 (1979). The board found that: As a new, participating psychologist Grossack had received a set of the rules and regulations, which he discussed with a Blue Shield professional relations representative. With that representative (Mary Peters), Grossack explored how aspects of his practice fit within the strictures of rule 2. He attended a meeting in
2. The board’s authority to adjust the discipline imposed on a provider. On the second major issue, the parties are in different alignment. Blue Shield is on one side while the board and Grossack are united in the view that G. L. c. 176B, § 12, confers upon the board authority to modify the sanctions imposed by Blue Shield on an errant provider. It will be recalled that the Superior Court judgment was to the contrary, i.e., that the board, in tempering the sanction imposed on Grossack, had exceeded its authority.
In support of that judgment, Blue Shield argues that, since the statutory basis in G. L. c. 176B, § 4, for contracting with psychologists is permissive, what Blue Shield may grant, it may take away. Moreover, Blue Shield suggests, the legislative history of G. L. c. 176B, § 13, discloses a legislative intent to vest rights of participation in physicians, chiropractors, and nurse midwives which other health care providers, such as psychologists, do not enjoy. Above all, Blue Shield contends, G. L. c. 176B, § 7, as amended by St. 1981, c. 623, § 2, authorizes a medical service corporation to “terminate its agreement with . . . any other participating provider of health services ... (a) for failure to comply with . . . reasonable rules and regulations ... or (b) for presenting any fraudulent, unreasonable, or improper claim for payment, or compensation.” Relying on that language, Blue Shield claims an untrammeled
Analysis of the text of G. L. c. 176B, § 12, which establishes the board, does not suggest the limitation on the board’s powers which Blue Shield asserts. In assessing the powers of an administrative body, it is useful to look to the instrument which created it. Celia, Administrative Law and Practice § 1 (1986). Section 12 provides that “Any dispute or controversy . . . may ... be submitted by any person aggrieved to [the] board ... for its decision with respect thereto (emphasis supplied).” Plain language, of course, is the beginning of wisdom about legislative purpose. Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977). On the basis of the plain language of the statute, the board’s powers of review are very broad. So they were viewed in Nelson v. Blue Shield of Mass., Inc., 377 Mass, at 753, in which the court commented, “A complete administrative remedy is provided by G. L. c. 176B, § 12.” See also, Kartell v. Blue Shield of Mass., Inc., 384 Mass. 409, 422 (1981).
In this case a literal reading of § 12 does not, unless one strains, produce dissonance with other portions of c. 176B. The design of c. 176B is to authorize the organization of nonprofit medical service corporations which, in return for exemption from taxes and other benefits, are subject to comprehensive public supervision. Rose v. Board of Review in the Div. of Ins., 346 Mass. 581, 585 (1964). Nelson v. Blue Shield of Mass., Inc., 377 Mass, at 751. Apart from the absence of any words of limitation, it does not strike us as plausible that the Legislature intended to confer on the board power to decide rights between the contracting parties but to restrict the board from having anything to say about the remedy.
Nothing in Godfrey v. Massachusetts Med. Serv., 359 Mass. 610 (1971), upon which the Superior Court judge relied and upon which Blue Shield now places reliance, strikes us as being to the contrary. In that case seven podiatrists brought a class action in which they asserted a right to get a foot in the door with Blue Shield as participating health care providers. The court held that the Legislature had rationally limited entitlement to participation to physicians (so the statute then stood) and as to other health care coverage, Blue Shield could, on the basis of its assessment of need and cost, decide whether to include such care in its insurance system. Godfrey does not stand for the proposition that, if Blue Shield were to allow a discrete class of health care providers who have specified credentials to participate in the Blue Shield system, it would enjoy discretion to make contracts with some in the designated class and not others. As applied to the case at hand, Godfrey affords Blue Shield discretion whether to enter into contacts with
Finally, we consider the argument that the final sentence of § 7 in some manner overrides or limits the scope of review of the board under § 12. That sentence provides, “A [medical service] corporation may terminate its agreement with any . . . participating provider of health services” for failure to comply with rules and regulations or for presenting an improper claim for payment. Blue Shield says that if it has statutory authority to terminate its agreement with a participating provider, the board is limited to reviewing whether the provider has committed an offense justifying termination.
For some of the reasons already expressed, e.g., the broad administrative review role of the board and the interdependence of rights and remedies, we do not think the board is foreclosed from reviewing the level of sanction.
We consider the arrangement of the statute. As § 7 precedes the dispute resolution question in § 12, we may infer that the latter, especially in view of the “any dispute” language contained in it, comprehends any dispute raised under preceding sections. See 2A Sands, Sutherland Statutory Construction § 46.05, at 92 (4th ed. 1984). Indeed, penalties which include termination are likely to be a fertile source of submissions for review to the board. A provider may be prepared to admit to an infraction and make restitution (the record here reflects some willingness on Grossack’s part, at an early stage of the proceedings, so to do) if only he can be restored to grace as a participating provider. In light of the widespread reliance on third-party payments for medical care, expulsion from Blue Shield is of profound economic consequence to a provider in a class covered by Blue Shield.
Termination may be permanent, long, or short. An infraction, after all, could be an isolated one or relatively inconsequential. We are of opinion that the gravity of the sanction may be reviewed by the board under § 12 consistently with the language of § 7 which authorizes termination of agreements . Were review to be denied, there would be the possibility of arbitrary or inappropriate penalties imposed without review in what we have already described as an activity subject to comprehensive public supervision. Cf. Silver v. New York Stock Exch., 373 U.S. 341 (1963), in which the court held that a self-regulating organization, because of its quasi public function in governing aspects of dealer access to a major securities market, was bound by due process standards and subject to judicial review. Among the functions of administrative review is to filter out arbitrary treatment and thereby develop a degree of consistency in the disposition of like cases. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765 (1969). Distrigas of Mass. Corp. v. FPC, 517 F.2d 761, 765 (1st Cir. 1975); Celia, Administrative Law and Practice § 13, at 47 (1986).
For the reasons stated, the judgment in No. 63161 is affirmed. The judgments in Nos. 65777 and 62549 are reversed, and judgments are to be entered in those cases affirming the order of the board, viz., that Grossack is to be reinstated as a participating Blue Shield provider of psychological services, conditioned on his restitution to Blue Shield of all Blue Shield payments made for incomplete services or upon false certifications as found in the board’s decision.
So ordered.
August 23, 1976, through May 23, 1978.
An account of legislative history of G. L. c. 176B and that statute’s purposes appears in Kartell v. Blue Shield of Mass., Inc., 384 Mass. 409, 420-421 (1981).
The text of the rule, at the times material, was as follows: “To be eligible to receive payment for services, the participating physician or participating dentist must perform such services in person which shall be deemed to
General Laws c. 176B, § 12, as amended through St. 1981, c. 623, § 3, provides, “Any . . . controversy arising between a medical service corporation and any . . . participating provider of health services . . . may ... be submitted by any person aggrieved to a board serving in the division of insurance.” That board consists of the Commissioner of Insurance, the chairman of the board of registration and discipline in medicine, and the Attorney General, or their respective designees.
Rule 2 is not entirely a rule of limitation. Fundamentally, it is expansive because it authorizes Blue Shield payment for services delivered through a surrogate. But for rule 2, there is doubt whether a contractor with Blue Shield could recover fees for such services.
In 1981, Blue Shield amended its rules and regulations so that they now apply explicitly to all health care providers.
In this context, we mean remedy to include the idea of sanctions.
It appears that when Nelson v. Blue Shield of Mass., Inc., 377 Mass. 746 (1979), was decided, Blue Shield covered about 60% of Massachusetts
Case-law data current through December 31, 2025. Source: CourtListener bulk data.