Genesis Center v. BCBSM, Docket No. 214867.

• Citation: 625 N.W.2d 37,243 Mich. App. 692
• Decision Date: 14 February 2001
• Docket Number: Docket No. 214867.
• Parties: GENESIS CENTER, PLC, Floyd Goodman, M.D., Gregory Messenger, M.D., Dave Detrisac, M.D., Greg Uitvlugt, M.D., Joe Mashni, M.D., Frank Rosenbaum, M.D., Harold Sterling, JR., D.P.M., John Throckmorton, D.P.M., Urvish Shah, M.D., Kenneth Stephens, D.O., Carol Beals, M.D., Divyakant Gandhi, M.D., Herbert Ross, D.O., Kurt Richardson, M .D., Richard Ferro, D.O. and Phillip Storm, M.D., Plaintiffs-Appellants, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

625 N.W.2d 37

243 Mich. App. 692

GENESIS CENTER, PLC, Floyd Goodman, M.D., Gregory Messenger, M.D., Dave Detrisac, M.D., Greg Uitvlugt, M.D., Joe Mashni, M.D., Frank Rosenbaum, M.D., Harold Sterling, JR., D.P.M., John Throckmorton, D.P.M., Urvish Shah, M.D., Kenneth Stephens, D.O., Carol Beals, M.D., Divyakant Gandhi, M.D., Herbert Ross, D.O., Kurt Richardson, M .D., Richard Ferro, D.O. and Phillip Storm, M.D., Plaintiffs-Appellants, v. BLUE CROSS AND BLUE SHIELD OF MICHIGAN, Defendant-Appellee.

Docket No. 214867.

Court of Appeals of Michigan.

Submitted October 18, 2000, at Detroit.

Decided December 15, 2000, at 9:30 a.m.

Released for Publication February 14, 2001.

Linda S. Fausey, Lansing, for the plaintiffs.

Joseph W. Murray, Detroit, for the defendant.

Before BANDSTRA, C.J., and SAAD and METER, JJ.

PER CURIAM.

Plaintiffs appeal as of right from a circuit court order denying their motion for partial summary disposition and granting defendant Blue Cross and Blue Shield of Michigan's (BSBSM) motion for summary disposition pursuant to MCR 2.116(C)(8) and (I)(2). We affirm.

I. FACTS AND PROCEDURE

Plaintiff Genesis Center, P.L.C. (Genesis) is a freestanding outpatient surgical center in Lansing whose physician-owners (the individual plaintiffs) perform nonemergency surgeries, which are billed in two separate components: a surgeon's fee and a facility charge. Although the physicians' services are payable under BCBSM policies, Genesis' facility charges are not covered because Genesis is not a participating provider facility. As a result, Genesis applied to BCBSM to participate in its surgical facility program. BCBSM denied Genesis' application, finding that Genesis did not show "evidence of necessity" (EON) because "there remains an excess of operating room capacity in Ingham County." Plaintiffs then filed a complaint and a request for declaratory judgment, alleging that BCBSM's action violated its enabling statute, the Nonprofit Health Care Corporation Reform Act, M.C.L. § 550.1101 et seq.; MSA 24.660(101) et seq. After plaintiffs filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10), defendant moved for entry of summary disposition pursuant to MCR 2.116(C)(8) and (I)(2), arguing, inter alia, that (1) the Nonprofit Health Care Corporation Reform Act does not provide for a private cause of action against a nonprofit health care corporation by a health care provider; (2) the EON requirement does not conflict with the Public Health Code; (3) the act expressly authorized BCBSM to establish standards such as EON for provider participation, and (4) such authorization does not constitute an illegal delegation of governmental authority.¹ The trial court denied plaintiffs' motion for partial summary disposition and granted defendant's motion for summary disposition. The court ruled as a matter of law that plaintiffs did not have standing because they had no private right of action against BCBSM.

II. ANALYSIS

We conclude that the trial court did not err in holding that plaintiffs could not sue BCBSM for an alleged violation of the Nonprofit Health Care Corporation Reform Act, M.C.L. § 550.1101 et seq.; MSA 24.660(101) et seq. Under BPS Clinical Laboratories v. Blue Cross & Blue Shield of Michigan (On Remand), 217 Mich.App. 687, 698, 552 N.W.2d 919 (1996), Detroit Area Agency on Aging v. Office of Services to the Aging, 210 Mich.App. 708, 716-717, 534 N.W.2d 229 (1995), and M.C.L. § 550.1402(11); MSA 24.660(402)(11), plaintiffs did not have standing to bring a cause of action directly against BCBSM to enforce the act. We agree with, and adopt as our own, the following analysis of this identical issue, set forth in this Court's recent decision in Blakewoods Surgery Center v. BCBSM, unpublished opinion per curiam of the Court of Appeals, issued July 14, 2000 (Docket No. 213666):

In BPS Clinical Laboratories v. Blue Cross & Blue Shield of Michigan (On Remand), 217 Mich.App. 687, 698, 552 N.W.2d 919 (1996), this Court, citing M.C.L. § 550.1619(2) and (3); MSA 24.660(619)(2) and (3), held that "[o]nly the Attorney General and the Insurance Commissioner are entitled to enforce the [NHCCRA] directly against a health care corporation." The panel further ruled that "[t]he only private right of action directly against a health care corporation authorized by the [NHCCRA] is an action by a subscriber against a health care corporation for damages." Id., citing M.C.L. § 550.1402(11); MSA 24.660(402)(11). If a health care provider claims that a health care corporation has violated the act, the recourse provided in the statute is to "commence an action in the Ingham Circuit Court to compel the Insurance Commissioner to enforce the act." Id. Additionally, a health care provider can petition the attorney general to commence an action to enjoin violations of the act. See M.C.L. § 550.1619(1) and (2); MSA 24.660(619)(1) and (2). The act contains no provision, however, for a private right of action such as that brought in the instant case.

Moreover, the NHCCRA created new rights and duties that did not exist at common law. In such situations, this Court has held:

"Where a new right or a new duty is imposed by statute, the remedy provided...