NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1211-15T3

CAPITAL HEALTH SYSTEM, INC., CENTRASTATE MEDICAL CENTER, APPROVED FOR PUBLICATION HOLY NAME MEDICAL CENTER, INC., THE COMMUNITY HOSPITAL GROUP, June 7, 2016 INC., t/a JFK MEDICAL CENTER, KENNEDY HEALTH, OUR LADY OF APPELLATE DIVISION LOURDES HEALTH CARE SERVICES, INC., ST. FRANCIS MEDICAL CENTER, INC., ST. LUKE'S WARREN HOSPITAL, INC., TRINITAS REGIONAL MEDICAL CENTER, VALLEY HEALTH SYSTEM, and VIRTUA HEALTH, INC.,

Plaintiffs-Appellants,

v.

NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE,

Defendant-Respondent.

Argued May 25, 2016 – Decided June 7, 2016

Before Judges Alvarez, Accurso and Haas.

On appeal from the New Jersey Department of Banking and Insurance.

Kerri Ann Law (Kramer Levin Naftalis & Frankel, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellants (Greenberg Dauber Epstein & Tucker; Steven M. Goldman; Daniel Goldman (Kramer Levin Naftalis & Frankel, LLP) of the New York bar, admitted pro hac vice; and Ms. Law, attorneys; Michael H. Freeman, Steven Goldman, Daniel Goldman and Ms. Law, of counsel; Linda G. Harvey, of counsel and on the briefs).

Richard E. Wegryn, Jr., Deputy Attorney General, argued the cause for respondent Department of Banking and Insurance (Robert Lougy, Acting Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Mr. Wegryn, on the briefs).

Jeffrey S. Chiesa argued the cause for respondent Horizon Blue Cross Blue Shield of New Jersey (Chiesa Shahinian & Giantomasi, PC, attorneys; Mr. Chiesa, on the briefs).

Melinda Martinson, General Counsel, Medical Society of New Jersey and Edith M. Kallas, Joe R. Whatley, Jr., Ilze C. Thielmann (Whatley Kallas, LLP) attorneys for amicus curiae Medical Society of New Jersey (Ms. Martinson, of counsel and on the brief; Ms. Kallas, Mr. Whatley and Mr. Thielmann, on the brief).

Howard R. Rubin, Robert T. Smith and Eric T. Werlinger (Katten Muchin Rosenman, LLP) of the District of Columbia bar, admitted pro hac vice, and Scott A. Resnik (Katten Muchin Rosenman, LLP) attorneys for amicus curiae New Jersey Patient Care and Access Coalition (Mr. Rubin, Mr. Smith and Mr. Werlinger, of counsel; Mr. Resnik, of counsel and on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

2 A-1211-15T3 Appellants, a group of ten New Jersey hospitals,1 appeal

from the September 18, 2015 final decision of the New Jersey

Department of Banking and Insurance (the Department), approving

Horizon Blue Cross Blue Shield of New Jersey's (Horizon's)

application to establish the OMNIA Health Alliance (OMNIA)

network. OMNIA is a health benefits plan that contains a two-

tiered network of hospitals and physicians under which a

member's cost-share (deductibles, co-insurance, and co-payments)

are lower if the member elects to use a Tier 1 provider.

Horizon designated appellants as Tier 2 hospitals under the

OMNIA tiered plan.

Appellants argue that the Department acted arbitrarily,

capriciously and unreasonably in approving the OMNIA network

because: the hospital network did not comply with the statutory

and regulatory geographic access and availability standards

(time and distance standards) for network adequacy; the hospital

network is contrary to the public interest; the Department

1 The ten hospitals are Capital Health System, Inc., Centrastate Medical Center, Holy Name Medical Center, Inc., The Community Hospital Group, Inc., t/a JFK Medical Center, Kennedy Health, Our Lady of Lourdes Health Care Services, Inc., St. Francis Medical Center, Inc., Trinitas Regional Medical Center, Valley Health System, and Virtua Health, Inc. An eleventh hospital, St. Luke's Warren Hospital, Inc., withdrew its appeal on May 24, 2016.

3 A-1211-15T3 failed to conduct a meaningful analysis of the hospital network;

and the approval was not supported by substantial evidence.

After evaluating these contentions in light of the record

and the applicable law, we affirm the Department's decision in

all respects.

I.

The Department is vested with the authority to administer

and enforce the insurance laws of this State. N.J.S.A. 17:1-1.

It has "a statutory obligation to protect the interests of New

Jersey's insurance consumers and to regulate and oversee the

operations of the insurance industry." N.J.S.A. 17:1C-19(a)(1);

see Richardson v. Standard Guar. Ins. Co.,

(App. Div. 2004) (citing N.J.S.A. 17:1C-19(a)(1)); In re

Markel Ins. Cos.,

(App. Div. 1999)

(insurance companies subject to strict regulatory control of the

Department).

Among other things, the Legislature has granted the

Department the authority to regulate fully insured health

benefit plans sold in commercial markets, including the OMNIA

plan offered by Horizon, a health service corporation. N.J.S.A.

17:48E-44. In accord with its statutory authority, the

Department issues licenses to carriers seeking to transact

health insurance business in the State, N.J.S.A. 17:48E-4;

4 A-1211-15T3 reviews insurance products and rates for compliance with

existing regulations, N.J.S.A. 17:48E-13, -13.1; monitors the

financial solvency of licensees to ensure product availability

in the marketplace, N.J.S.A. 17:48E-37; responds to consumer

complaints and inquiries; and educates consumers about insurance

products and issues. See, e.g., N.J.S.A. 26:2S-4 (carrier shall

disclose to subscriber terms and conditions of health benefits

plan).

Under the Health Care Quality Act (the HCQA), N.J.S.A.

26:2S-1 to -28, the Department is also charged with reviewing

"managed care plans." N.J.S.A. 26:2S-2 defines a "managed care

plan" to mean

a health benefits plan that integrates the financing and delivery of appropriate health care services to covered persons by arrangements with participating providers, who are selected to participate on the basis of explicit standards, to furnish a comprehensive set of health care services and financial incentives for covered persons to use the participating providers and procedures provided for in the plan.

Tiered benefit plans, like the OMNIA plan that is the

subject of this appeal, fall within this broad statutory

definition, and have been offered over the past several years by

a number of New Jersey carriers, including Horizon. Under a

two-tiered benefit plan, the carrier provides a network of

providers in both the preferred tier, (Tier 1), where consumers

5 A-1211-15T3 pay less than the standard level of cost-sharing, and the non-

preferred (Tier 2), standard cost-sharing tier. If the consumer

elects to use a Tier 1 provider, the cost-share is lower than

the standard cost-share for a Tier 2 provider.

As defined in N.J.S.A. 26:2S-2, the term "carrier" includes

a "health service corporation" like Horizon. In setting up a

tiered benefit network, the carrier "may establish criteria and

standards for providers of health care services with which it

desires to contract, and may establish its own contracting

criteria for the providers as it shall determine[.]" N.J.S.A.

17:48E-10(d). Once the carrier determines its proposed network,

it submits an application to the Department seeking its

approval.

N.J.S.A. 26:2S-18 grants the Department the authority to

promulgate regulations to carry out the purposes of the HCQA.

In this regard, N.J.A.C. 11:24A-4.10(a) states:

A carrier shall maintain an adequate network . . . of [primary care providers (PCPs)], specialists and other ancillary providers to assure that covered persons are able to access services in-network and take full advantage of the in-network benefits levels when the policy or contract specifies that there is a differential between the in- network and out-of-network benefits levels for one or more covered services . . . .

As applied to an application for approval of a tiered network,

the Department has interpreted this regulation to require the

6 A-1211-15T3 Department to review each tier to determine the "adequacy of the

provider network with respect to the scope and type of health

care benefits provided by the carrier, the geographic service

area covered by the provider network and access to medical

specialists[.]" N.J.S.A. 26:2S-18.

Under the Department's regulations, the carrier must meet

specific time and distance standards for the various types of

providers as to each plan offered. N.J.A.C. 11:24A-4.10(b).

With respect to hospitals or "institutional providers," N.J.A.C.

11:24A-4.10(b)(3) provides that:

For institutional providers, the carrier shall maintain contracts or other arrangements acceptable to the Department sufficient to meet the medical needs of covered persons, and maintain geographic accessibility of the services provided through institutional providers, subject to no less than the following:

i. The carrier shall have a contract or arrangement with at least one licensed acute care hospital with licensed medical- surgical, pediatric, obstetrical and critical care services in any county or service area that is no greater than [twenty] miles or [thirty] minutes driving time, whichever is less, from [90%] of covered persons within the county or service area.

ii. The carrier shall have a contract or arrangement with surgical facilities, including acute care hospitals, licensed ambulatory surgical facilities, and/or Medicare-certified physician surgical practices available in each county or

7 A-1211-15T3 service area that are no greater than [twenty] miles or [thirty] minutes driving time, whichever is less, from [90%] of covered persons within the county or service area.

iii. The carrier shall have a contract or otherwise agree to cover medically necessary trauma services at a reasonable cost with all Level I or II trauma centers designated by the Department of Health and Senior Services, with the provision of benefits at the in-network level.

iv. The carrier shall have contracts or arrangements for the provision of the following specialized services at in-network benefit levels (if covered by one or more of the carrier's health benefits plans in network, and determined to be medically necessary), so that services will be available within [forty-five] miles or [sixty] minutes average driving time, whichever is less, of [90%] of covered persons within each county or service area:

(1) At least one hospital providing regional perinatal services;

(2) A hospital offering tertiary pediatric services;

(3) In-patient psychiatric services for adults, adolescents and children;

(4) Residential substance abuse treatment centers;

(5) Diagnostic cardiac catheterization services in a hospital;

(6) Specialty out-patient centers for HIV/AIDS, sickle cell disease, hemophilia, and cranio-facial and congenital anomalies; and

8 A-1211-15T3 (7) Comprehensive rehabilitation services.

According to the Department, its analysis of network

adequacy is an "iterative and continual process," because it is

"rare that a network submission is complete or adequate upon the

initial filing." Thus, the Department frequently asks carriers

for additional information necessary to complete the network

adequacy review. If the carrier successfully demonstrates that

its proposed tiered benefit network is "adequate" under N.J.A.C.

11:24A-4.10(b)(3), the Department will approve the carrier's

plan. Once a network is approved, the Department continues to

monitor the adequacy of the network and if a network deficiency

is detected, it takes corrective action. See N.J.S.A. 26:2S-16;

N.J.A.C. 11:24A-2.7.

II.

Beginning in January 2014, Horizon offered its subscribers

a tiered benefit plan known as the Advance Tiered Network ("the

Advance plan"). The network had 87,211 subscribers and was

comprised of thirty-one hospitals in Tier 1, and thirty-seven

hospitals in Tier 2. There was one Tier 1 hospital located in

every county in New Jersey under the Advance plan, except

Somerset and Cumberland counties. Appellants were participating

providers in the Advance plan network: four hospitals were

designated as Tier 1 (Kennedy, Lourdes, St. Francis, and

9 A-1211-15T3 Trinitas), and the other six hospitals were designated as Tier 2

(Capital, Centrastate, Holy Name, JFK Medical Center, Valley

Health, and Virtua).

On June 25, 2015, Horizon submitted its application to the

Department for network adequacy approval of the OMNIA two-tiered

provider network.2 OMNIA's hospital network was comprised of

thirty-five hospitals in Tier 1 and thirty-two hospitals in Tier

2 (including all ten appellants). There is one Tier 1 hospital

located in each county in New Jersey, except Warren and

Burlington counties. At the time of the application, Horizon

projected that 250,000 consumers would enroll in the OMNIA plan,

which would represent approximately 6.6% of its total statewide

market-share.3

Over the course of the next three months, the Department

reviewed the adequacy of Horizon's OMNIA network pursuant to

N.J.S.A. 26:2S-18 and N.J.A.C. 11:24A-4.10. The application

ultimately comprised thousands of pages of documents, including:

spreadsheets of PCPs, specialists, and hospitals; enrollment

projections by geographic area; and geo-access reports detailing

time and distance requirements to designated Tier 1 providers

2 The OMNIA plan was intended to replace the Advance plan. 3 Horizon provides health benefits to more than 3.8 million members.

10 A-1211-15T3 for the projected enrollment in the geographic service areas of

concern.

Initially, Horizon only submitted its proposed physician

network to the Department for review, not its proposed hospital

network. As a result, by letter dated August 25, 2015, the

Department asked Horizon to provide the completed General Acute

Care Hospital tables ("hospital tables"), in addition to other

information regarding physicians and specialists.

On September 3, 2015, the Department again asked Horizon to

submit a completed copy of the hospital tables for the OMNIA

plan. The Department stated that it assumed that the OMNIA and

Advance hospital networks were identical, but if they were not,

Horizon should provide a comparison of the networks under the

plans. Horizon provided the Department with the completed

hospital tables for both plans on that same date and, on

September 11, 2015, Horizon submitted information regarding the

proposed networks compliance with the adequacy standards.

Horizon explained that the OMNIA and Advance networks were

similar in that they each included a Tier 1 hospital in all but

two counties and met geographic access requirements, but

differed in that the Tier 1 hospitals in the Advance plan were

"mostly small systems," while the Tier 1 hospitals in the OMNIA

network were "the largest systems in the State."

11 A-1211-15T3 Based on its review, the Department found a substantive

deficiency in the OMNIA Tier 1 hospital network; obstetrical

services in the Burlington County area only reached 88% of the

projected membership, not the 90% required under N.J.A.C.

11:24A-4.10(b)(3)(i). By email dated September 15, 2015,

Horizon committed to curing this deficiency, and indicated that

it wanted the "latitude" to proceed under one of two options,

including the option it ultimately implemented, that is,

applying Tier 1 benefits for Tier 2 obstetrical services in

Burlington County. Based on this commitment, the Department

concluded "that the OMNIA Network met the time and distance

requirements of N.J.A.C. 11:24A-4.10 and qualified for statewide

approval." The Department further found that

[w]ith regard to the acute care hospital requirements at N.J.A.C. 11:24A- 4.10(b)[(3)(1)], the OMNIA Network satisfied the adequacy standard with [thirty-five] hospitals in Tier 1 and [thirty-two] additional in-network hospitals in Tier 2. This means that the OMNIA Network has at least one acute care hospital with medical- surgical, pediatric, obstetrical, and critical care services, within [twenty] miles or [thirty] minutes driving time for 90[%] or more of the OMNIA plans' projected enrollment in each county or service area.

In a final decision issued on September 18, 2015, the

Department's Chief of the Office of Managed Care, wrote that the

Department had completed its review of Horizon's

12 A-1211-15T3 application to establish the OMNIA Network. This network is approved [statewide] as of September 15, 2015. On that date, the Department advised the Centers for Medicaid and Medicare Services that it was revising the QHP [qualified health plan] certification to indicate that the OMNIA network was approved.

Overall, any change in operations from those descriptions filed with this application are subject to prior review and approval by the Department. Horizon shall be subject to all provisions of N.J.S.A. 26:2S-1 et seq. and N.J.A.C. 11:24A-1 et seq. . . . .4

On November 19, 2015, appellants filed their notice of

appeal from the Department's September 18, 2015 final decision.

Appellants also filed a motion for a stay of that decision with

the Department. On November 30, 2015, the Department denied

appellants' motion, and issued a comprehensive forty-page

written decision that thoroughly explained its decision

approving Horizon's application and determining that the OMNIA

plan met all applicable network adequacy requirements.5

4 On September 30, 2015, Horizon provided the Department with additional information about the OMNIA plan, including updated hospital tables adding two new Tier 1 hospitals, and responses to the Department's August 25, 2015 request for more information about physicians and specialists. 5 Pursuant to Rule 2:5-1(b), we have treated the Department's November 30, 2015 decision as its findings of fact and conclusions of law concerning the Horizon application.

13 A-1211-15T3 On December 7, 2015, we denied appellants' emergent motion

for a stay of Horizon's implementation of the OMNIA tiered

network plan, but granted appellants' motion for acceleration.

III.

Established precedents guide our task on appeal. Our scope

of review of an administrative agency's final determination is

limited. In re Stallworth,

(2011). "An

appellate court affords a 'strong presumption of reasonableness'

to an administrative agency's exercise of its statutorily

delegated responsibilities." Lavezzi v. State,

(2014) (quoting City of Newark v. Nat. Res. Council, Dep't

of Envtl. Prot.,

, cert. denied,

,

,

(1980)). "Particularly in the

insurance field, the expertise and judgment of the [Department]

may be allowed great weight." In re Comm'r's Failure to Adopt

861 CPT Codes,

(App. Div. 2003). "The

party challenging agency action bears the burden of overcoming

these presumptions."

Moreover, "[a]n agency's interpretation of its own rule is

owed considerable deference because the agency that drafted and

promulgated the rule should know the meaning of that rule."

N.J. Healthcare Coal. v. N.J. Dep't of Banking & Ins.,

(App. Div.) (quoting In re Freshwater Wetlands

14 A-1211-15T3 Gen. Permit No. 16,

(App. Div.

2005)), certif. denied,

(2015). A reviewing court

"may not second-guess those judgments of an administrative

agency which fall squarely within the agency's expertise." In

re Stream Encroachment Permit, Permit No. 0200-04-0002.1 FHA,

(App. Div. 2008).

"An agency's determination on the merits 'will be sustained

unless there is a clear showing that it is arbitrary,

capricious, or unreasonable, or that it lacks fair support in

the record.'" Saccone v. Bd. of Trs. of Police & Firemen's Ret.

Sys.,

(2014) (quoting Russo v. Bd. of Trs.,

Police & Firemen's Ret. Sys.,

(2011)). In

determining whether agency action is arbitrary, capricious, or

unreasonable, an appellate court must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Stallworth, supra,

(quoting In re Carter,

(2007)).]

We are not, however, in any way "bound by the agency's

interpretation of a statute or its determination of a strictly

15 A-1211-15T3 legal issue." Mayflower Sec. Co. v. Bureau of Sec.,

(1973).

Applying these principles, and for the reasons that follow,

we discern no reason to disturb the Department's decision

approving the OMNIA plan.

A.

Appellants argue that the OMNIA network did not meet the

network adequacy requirements set forth in N.J.A.C. 11:24A-

10(b)(3), because at the time of approval Horizon did not have

"signed agreements" with all of the Tier 1 hospitals, thereby

making it impossible for the Department to determine if the

hospital network complied with the regulatory standards. We

disagree.

N.J.A.C. 11:24A-10(b)(3) provides that "[f]or institutional

providers, the carrier shall maintain contracts or other

arrangements acceptable to the Department sufficient to meet the

medical needs of covered persons, and maintain geographic

accessibility of the services[.]" (emphasis added). The

carrier shall have a "contract or other arrangement" with

certain specific providers, including acute care hospitals,

trauma centers, and specialists within a certain time and

distance from 90% of the covered subscribers. N.J.A.C. 11:24A-

10(b)(3)(i)-(iv).

16 A-1211-15T3 Horizon was statutorily authorized to enter into contracts

with the hospitals or "participating" providers. N.J.S.A.

17:48E-10; N.J.A.C. 11:24A-4.15. The contracts required the

hospitals "to accept agreed-upon payments for specified services

as payment in full, thus relieving the subscriber of any further

financial burden and, in turn, require[d] Horizon to pay each

participating provider directly, this doubtlessly to encourage

greater participation in the network." Somerset Orthopedic

Assocs., P.A. v. Horizon Blue Cross & Blue Shield of N.J.,

(App. Div. 2001).

It is undisputed that at the time of the Department's

approval, Horizon had automatically renewable contracts

("Network Hospital Agreements") in place with all of the

hospitals participating in the OMNIA network, including all the

Tier 1 hospitals, as well as appellants and the other hospitals

in Tier 2. As the Department explained in its November 30, 2015

decision, it was "important to note that . . . all of the Tier 1

and Tier 2 hospitals participating in the OMNIA Network were

already contracted with Horizon and considered in-network.

Establishment of the OMNIA Network did not require re-

contracting with these hospitals."

Thus, contrary to appellants' assertions, Horizon fully

complied with N.J.A.C. 11:24A-10(b)(3). At the time of the

17 A-1211-15T3 Department's approval of the OMNIA plan, Horizon had standard

contracts in place with all of the provider hospitals in the

network, under which the hospitals agreed to participate in

Horizon's health services plan and to receive payment directly

from Horizon on a set-fee basis. The existence of these

contracts was sufficient to enable the Department to ensure

adequate consumer access to necessary medical care and providers

so that the benefits provided under the OMNIA plan were not

illusory.

Further, the Department properly found that "N.J.A.C.

11:24A-4.10 does not require carriers to have contracts with

network providers that specif[y] a particular cost-sharing tier

for consumers in order to meet network adequacy. The rules

merely provide that the carrier have a contract or other

arrangement acceptable to the Department." The Department

explained that a carrier could, for example, satisfy this

requirement by: contracting with a provider for inclusion in a

network at a specific cost-sharing tier; entering into a general

contract that is not network or plan-specific and does not

specify the cost-sharing for consumers, thereby requiring a

hospital to participate in all of its networks without regard to

tier assignments; and applying Tier 1 cost-sharing for consumers

at certain facilities and/or providers to expand access or meet

18 A-1211-15T3 network adequacy standards. Thus, the Department found that the

general contracts between Horizon and the in-network OMNIA

providers met the regulatory requirement. The Department's

interpretation of its own rule is owed considerable deference.

N.J. Healthcare Coal., supra,

.

Therefore, we reject appellants' contention on this point.

B.

Appellants next argue that at the time of the approval the

OMNIA Tier 1 hospital network did not meet the adequacy

standards, set forth in N.J.A.C. 11:24A-4.10(b)(3)(i), for

hospital obstetrical services in Burlington County. This

contention lacks merit.

As noted above, N.J.A.C. 11:24A-4.10(b)(3)(i) requires

carriers to have "a contract or arrangement" with at least one

licensed acute care hospital with obstetrical services "in any

county or service area that is no greater than [twenty] miles or

[thirty] minutes driving time, whichever is less, from [90%] of

covered persons within the county or service area." During its

review, the Department initially determined that the OMNIA Tier

1 hospital network was deficient in that obstetrical services in

Burlington County reached only 88% of the projected membership,

not 90% as required by the rule.

19 A-1211-15T3 Although the OMNIA hospital network did not initially meet

the adequacy requirements, Horizon responded to the Department's

determination by committing to apply Tier 1 cost-sharing for

obstetrical services at Virtua, a Tier 2 hospital located in

Burlington County. Thus, contrary to appellants' contention,

there was no longer a deficiency in the OMNIA network because at

the time of the Department's approval, Horizon had an agreement

with Virtua -- a licensed Tier 2 hospital located within twenty

miles or thirty minutes driving time of 90% of the persons

covered -- to provide obstetrical services to Burlington County

subscribers. N.J.A.C. 11:24A-4.10(b)(3)(i). That arrangement

clearly met the regulatory requirements for network adequacy,

curing the previous inadequacy prior to the Department's

approval.

C.

Appellants next contend that the OMNIA Tier 1 hospital

network failed to meet the network adequacy standards

established by the Department for trauma centers. Again, we

disagree.

The Department of Health has designated three hospitals in

New Jersey as Level I trauma centers (UMDNJ-University Hospital,

Robert Wood Johnson University Hospital, and Cooper

Hospital/University Medical Center), and seven hospitals as

20 A-1211-15T3 Level II trauma centers (Hackensack University Medical Center,

St. Joseph's Hospital and Medical Center, Jersey City Medical

Center, Morristown Memorial Hospital, Capital Health, Jersey

Shore Medical Center, and AtlantiCare Regional Medical Center).

N.J.A.C. 11:24A-4.10(b)(3)(iii) provides that "[t]he carrier

shall have a contract or otherwise agree to cover medically

necessary trauma services at a reasonable cost with all Level I

or II trauma centers designated by the Department of Health and

Senior Services, with the provision of benefits at the in-

network level."

Horizon fully satisfied this requirement. Horizon

contracted with the ten trauma centers to place them in-network;

eight trauma centers were designated as Tier 1 providers (RWJ,

Cooper, Jersey City Medical Center, Hackensack, Jersey Shore

Medical Center, Morristown Memorial, St. Joseph's Hospital, and

AtlantiCare); and two trauma centers were designated as Tier 2

providers (Capital Health and UMDNJ).

Contrary to appellants' contention, and as the Department

expressly found, "[n]othing in the regulation requires that all

trauma centers be placed in the most preferred tier, only that

they be in-network." It is undisputed that Horizon has a

contract with the ten trauma centers to provide benefits at the

"in-network level" as required by N.J.A.C. 11:24A-

21 A-1211-15T3 4.10(b)(3)(iii). Therefore, the Department properly found that

the OMNIA network was adequate for trauma services.6

D.

Appellants assert that before determining whether the OMNIA

network was adequate, the Department was required to consider

and make a specific finding that the public interest would be

served by approving Horizon's proposal. Appellants contend that

OMNIA's two-tiered hospital network "endangers" them and the

other hospitals that Horizon selected for Tier 2, and interferes

with the "continuity of patient care." Appellants also complain

that Horizon was not "transparent" with regard "to the OMNIA

plan's tiering decisions," which "makes informed health care

choices impossible." These contentions lack merit.

The Department's role in approving a health service

corporation's proposed tiered benefit network is limited by the

HCQA to the establishment of standards for the "adequacy of the

provider network with respect to the scope and type of health

care benefits provided by the carrier, the geographic service

area covered by the provider network[,] and access to medical

6 It is also important to note that N.J.A.C. 11:4-37.3(b)(2) specifically requires a health benefits plan, like the OMNIA network, to "provide that the cost sharing applied to the covered person for emergency care shall be the same regardless of whether the services were rendered by network or out-of- network providers."

22 A-1211-15T3 specialists, when appropriate[.]" N.J.S.A. 26:2S-18. The

Department established these required network adequacy standards

when it promulgated N.J.A.C. 11:24A-4.10. As discussed in

detail above, the Department carefully applied these standards

and determined that the OMNIA network was adequate.

It is well established that an administrative agency, like

the Department, may "only act reasonably within the scope of its

delegated authority." Jersey Cent. Power & Light Co. v. Melcar

Util. Co.,

(2013). Thus, "an agency may not

issue a regulation that is outside 'the fair contemplation of

the delegation of the enabling statute,' or that is otherwise

'inconsistent with [its] legislative mandate.'" N.J. Healthcare

Coal., supra,

(citation omitted) (quoting

N.J. State League of Municipalities v. Dep't of Cmty. Affairs,

(1999)).

Turning to the arguments raised by appellants in this

portion of their brief, there is no provision in any of the

governing statutes that requires the Department to make a

specific finding that a tiered benefit network is "in the public

interest" before it can be approved. Indeed, none of the

statutory provisions cited by appellants that mention the

"public interest" relate to network adequacy. For example,

appellants cite N.J.S.A. 17:1C-19, which provides that

23 A-1211-15T3 "establishing a dedicated funding mechanism for the operations

of the New Jersey Real Estate Commission," to enable the

Department to "maintain an adequate level of financial

oversight" is "in the public's interest." Other laws cited by

appellants require the Department to issue a certificate of

authority, N.J.S.A. 17:48E-4(a), and a certificate of

incorporation, N.J.S.A. 17:48-5, to a health service corporation

if the Department is satisfied that the issuance "would not be

contrary to the public interest." See Radiological Soc. of N.J.

v. Sheeran,

(App. Div. 1980)

("Commissioner has been given broad powers" under N.J.S.A.

17:48A-3 "to 'supervise' a medical service corporation so that

its 'condition or methods of operation are not such as would

render its operations hazardous to the public or its

subscribers'"), certif. denied,

(1981).

However, the HCQA contains no similar requirement. Thus,

the Department is not currently statutorily authorized to review

Horizon's selection of network providers under the amorphous

"public policy" standard asserted by appellants.

That having been said, we recognize that "the public

interest is an added dimension in every administrative

proceeding . . . , and, in a sense, the public is an omnipresent

party in all administrative actions." City of Hackensack v.

24 A-1211-15T3 Winner,

(1980). However, the public interest is

plainly served when an administrative agency follows the

governing statutes and regulations, conducts a prompt and timely

review of an applicant's proposal, and renders a fully

supported, thoughtful final decision that withstands appellate

review. That is the case here.

Appellants' other arguments on this point also lack merit.

The Legislature has not authorized the Department to review a

carrier's hospital selection criteria for a tiered benefit

network, except to ensure that subscribers have sufficient

access to care under the plan because the network is adequate.

See Radiological Soc. of N.J., supra,

(Commissioner "has not been given the power to become so

involved in Blue Shield's activities that he [or she] controls

the way the plan operates").

There is also no statutory or regulatory procedure for the

Department to determine the financial impact of the tier

designation on a hospital, or to compel carriers to include, for

example, all faith-based or urban hospitals in Tier 1. In fact,

"the Legislature specifically recognized the right of Horizon to

enter into provider contracts wherein it could exercise some

leverage as to price in return for direct payment." Somerset

Orthopedic Assocs., supra,

. Nor, as the

25 A-1211-15T3 Department correctly points out, does it have the authority to

require Horizon to allow appellants to apply for Tier 1 status.

The Legislature only requires carriers to grant pharmacies and

pharmacists "the right to participate as a preferred provider or

as a contracting provider, under the same terms and conditions

currently applicable to all other preferred or contracting

providers[.]" N.J.S.A. 17:48-6j(2). The Legislature has not

extended that right to hospitals.

Contrary to appellants' next contention, the HCQA does not

require the Department to consider possible "continuity of care

issues" when it reviews an application for approval of a tiered

benefit network. However, because provider networks are fluid,

N.J.S.A. 26:2S-9.1 already protects covered persons under

certain situations when their in-network physician or hospital

leaves the network. This statute provides for varying lengths

of covered treatment (post-operative, oncology, psychiatric, and

obstetrical), including services in an acute care hospital, in

the event the in-network physician "is no longer employed by or

under contract with the carrier[.]"

Moreover, before purchasing a tiered product like OMNIA,

the consumer has the ability to review the hospitals and health

care providers in each network tier. N.J.S.A. 26:2S-4 and -5.

26 A-1211-15T3 Thus, consumers are fully aware what hospitals and providers

they can use when they select a tiered benefit network.

There is also no requirement in the HCQA that a carrier

publicly disclose the criteria it used to evaluate the hospitals

for inclusion in, or exclusion from, a particular tier.

Instead, N.J.S.A. 26:2S-5 requires carriers to disclose to

subscribers specific information about the provider network,

including a directory of participating providers. OMNIA

complied with this requirement in the present case. Therefore,

we reject appellant's contention on this point.

E.

Finally, appellants assert that the Department conducted a

rushed review of Horizon's application, did not fully explain

its decision, and improperly failed to permit their input. We

disagree.

The record reflects that the Department's review of

Horizon's application was both extensive and deliberate.

Horizon submitted its application on June 25, 2015 and the

Department did not complete its review and approve the OMNIA

network until September 18, 2015. During this period, the

Department obtained the necessary information to conduct a

meaningful review of the adequacy of the hospital network under

N.J.S.A. 26:2S-18 and N.J.A.C. 11:24A-4.10, including the

27 A-1211-15T3 hospital tables and geo-access reports. It posed questions to

Horizon and reviewed the carrier's responses. While the

Department's September 18, 2015 final decision did not detail

the agency's findings of fact and conclusions of law, it

subsequently rendered a forty-page written decision fully

explaining the factual and legal basis for its approval of the

OMNIA network.

Contrary to appellants' contention, the fact that an entity

may be impacted by an agency decision does not, in and of

itself, give rise to a right to notice and participation in the

administrative process. Elizabeth Fed. Sav. & Loan Ass'n v.

Howell,

(1957). Moreover, an administrative

agency must conduct a "contested case" hearing only when "the

legal rights, duties, obligations, privileges, benefits[,] or

other legal relations of specific parties are required by

constitutional right or by statute to be determined by an agency

by decisions, determinations, or orders, addressed to them or

disposing of their interests, after opportunity for an agency

hearing[.]" N.J.S.A. 52:14B-2. Appellants have not

demonstrated the existence of a constitutional or statutory

right to a contested case-type hearing concerning a carrier's

application for approval of a tiered benefit network.

28 A-1211-15T3 As for the balance of any of appellants' arguments not

expressly discussed above, they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and

(E).

IV.

In sum, we conclude that the Department's decision

approving Horizon's application to establish the OMNIA network

was accomplished in strict accordance with the current statutes

and regulations applicable to its review. Under these

circumstances, appellants' contention that the HCQA should be

amended to reflect their view of how tiered benefit networks

should be implemented can only be addressed by the Legislature.

"We do not pass judgment on the wisdom of a law or render an

opinion on whether it represents sound public policy. That is

the prerogative of our elected representatives." Caviglia v.

Royal Tours of Am.,

(2004) (citations

omitted). Stated simply, "courts do not act as a super-

legislature." Trautman ex re. Trautman v. Christie,

(2012) (quoting Newark Superior Officers Ass'n v. City

of Newark,

(1985)).

Having determined that the record fully supports the

Department's decision that the OMNIA network was adequate under

N.J.S.A. 26:2S-18 and N.J.A.C. 11:24A-4.10(b)(3), and that its

29 A-1211-15T3 determination was neither arbitrary, capricious, nor

unreasonable, our task is complete.

Affirmed.

30 A-1211-15T3