Michigan Optometric Association v. Blue Care Network, No. 289705 (Mich. App. 5/20/2010), No. 289705.
| Decision Date | 20 May 2010 |
| Docket Number | No. 289705. |
| Parties | MICHIGAN OPTOMETRIC ASSOCIATION and JOHN NAMETZ, OD, Plaintiffs-Appellants, v. BLUE CARE NETWORK, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Ingham Circuit Court, LC No. 07-000239-CK.
Before: Shapiro, P.J., and Jansen and Donofrio, JJ.
UNPUBLISHED
Plaintiffs appeal as of right the dismissal of a portion of their complaint under MCR 2.116(C)(4) (), and the remainder of their complaint under MCR 2.116(C)(10) (). Plaintiffs brought this action to challenge defendant's alleged discrimination in favor of ophthalmologists and against optometrists.1 Although the trial court erred when it held that it lacked subject matter jurisdiction to decide the entire case, because defendants were entitled to summary disposition on all counts in any event, we affirm.
Plaintiff Michigan Optometric Association (MOA) is a voluntary trade association representing the business interests of Michigan optometrists. Plaintiff Nametz is an optometrist. Defendant Blue Care Network (BCN) is a health maintenance organization (HMO).2 Counts I, II, and V of the complaint sought declaratory and injunctive relief and money damages, respectively, for defendant's alleged practices of: (1) "discriminating against optometrists in favor of ophthalmologists in the formation of provider networks," and (2) placing a Provider Search Directory on its website that includes ophthalmologists but not optometrists.3 Counts III and IV of the complaint sought declaratory and injunctive relief, respectively, for defendant's alleged practice of reimbursing optometrists at a lower rate than ophthalmologists for the same procedures.
As an HMO, BCN contracts with a number of health care providers (referred to collectively as a "provider network"). MCL 500.3501(f). When a BCN enrollee (a consumer of health services) receives services from a provider within BCN's provider network, BCN is responsible for paying the provider. Plaintiffs allege that Nametz meets BCN's criteria for joining BCN's provider network, but that he was denied admission because he is an optometrist and not an ophthalmologist. Plaintiffs further claim that BCN's policies on adding providers have a discriminatory effect against optometrists in favor of ophthalmologists. According to Alison Pollard, BCN's vice president for provider affairs, BCN's policy favors providers who affiliate with other providers who are already in BCN's network over providers who do not. Because, plaintiffs allege, there are more ophthalmologists than optometrists in the network already, and because it is easier for ophthalmologists to affiliate with other ophthalmologists, the effect of the policy is to make it easier for ophthalmologists to join the network than for optometrists.
Plaintiffs also challenge BCN's policies with respect to paying optometrists. The BCN Commercial Professional Fee Schedule (the fee schedule) lists medical services with prices and provides the basis for how much BCN will pay providers for performing those services. For a given service that may be performed by an optometrist or an ophthalmologist, plaintiffs allege that BCN will pay an optometrist 80 to 85 percent of the amount listed on the fee schedule, but will pay an ophthalmologist the full fee schedule amount.
The trial court interpreted plaintiffs' claim regarding BCN's alleged discrimination in the formation of its provider network as an attack on the adequacy of the network. The trial court held that such a challenge was within the jurisdiction of the insurance commissioner, and, as a result that the trial court did not have jurisdiction over the subject matter. Accordingly, the trial court dismissed the first two counts under MCR 2.116(C)(4). The trial court further found that BCN was entitled to summary disposition on the remaining counts because the statute did not prohibit the discrimination plaintiffs alleged.
This Court reviews a trial court's disposition of a motion for summary disposition de novo. Potter v McCleary, 484 Mich 397, 410; 774 NW2d 1 (2009). This Court also reviews the legal question of whether the trial court had subject matter jurisdiction over a claim de novo. Rudolph Steiner School of Ann Arbor v Ann Arbor Charter Twp, 237 Mich App 721, 730; 605 NW2d 18 (1999).
Plaintiffs first argue on appeal that the trial court erred when it held that it lacked subject matter jurisdiction over the matter when the Insurance Code of 1956, MCL 500.100 et seq., does not grant the insurance commissioner exclusive jurisdiction over plaintiffs' claims regarding defendant's discriminatory practices in the formation and maintenance of its provider network. Plaintiffs specifically contend that although the circuit court would not have jurisdiction over a challenge to the adequacy of BCN's provider network, plaintiffs made no such challenge, rather, they were challenging BCN's discriminatory practice of favoring ophthalmologists over optometrists in forming its network. In response, defendant characterizes plaintiffs' suit as a challenge to the adequacy of BCN's provider network, and therefore it falls within the range of claims to which the statute gives exclusive authority to the Office of Financial and Insurance Regulation (OFIR) Commissioner. In the alternative, defendant asserts that even if the circuit court does have jurisdiction over the claim, defendant is entitled to judgment as a matter of law because it has not violated the statute.
"The power and authority to be exercised by boards or commissions must be conferred by clear and unmistakable language, since a doubtful power does not exist." Churella v Pioneer State Mut Ins Co, 463 Mich 993, 993; 624 NW2d 725 (2001). This Court has found such "unmistakable language" in, for example, the Michigan Gaming Control and Revenue Act, MCL 432.201 et seq. Papas v Michigan Gaming Control Bd, 257 Mich App 647, 659-661; 669 NW2d 326 (2003). "Reviewing the act under the above referenced rules of construction," Pappas reasoned, "we conclude that the Legislature vested the [Michigan Gaming Control] board with exclusive jurisdiction over all matters relating in any way to the licensing, regulating, monitoring, and control of the non-Indian casino industry." Id. Pappas noted the Legislature had not only invested the board with a nonexhaustive list of powers, including investigative powers, but also specifically addressed the issue of jurisdiction: " " Id. at 660, quoting MCL 432.204a(1) (alteration by Pappas).
The language in the health maintenance organization act, MCL 500.3501, et seq., is not as "clear" or as "unmistakable." The act sets forth the powers of the commissioner in several sections. See MCL 500.3507, MCL 500.3509(3), MCL 500.3513, MCL 500.3529, MCL 500.3530, and MCL 500.3531. Clearly, the statutory scheme provides the OFIR Commissioner with considerable authority over HMOs. The commissioner is empowered to regulate the "delivery aspects" of HMOs to, in part, assure that an "acceptable quality of health care" is being provided, MCL 500.3513(1), and to determine the sufficiency of the "numbers and [] types of affiliated providers" under contract with an HMO to provide timely "covered services" offered by the HMO, MCL 500.3530(1). Nonetheless, even though ophthalmology and optometry are, arguably, different but associated "health-related disciplines,"4 see Stedman's Medical Dictionary (26th ed), pp 1253, 1256 (), the commissioner is only empowered to "encourage [HMOs] to utilize a wide variety of health-related disciplines." MCL 500.3513(1). Further, the statutory scheme does not contain a broad grant of authority to the commissioner to ensure that an HMO is complying with the act, in order to effectuate the purposes of the act. In contrast to the Michigan Gaming Control and Revenue Act, MCL 432.201 et seq., the act at issue, by its terms, does not state that the commissioner "shall have jurisdiction over and shall supervise" HMOs like BCN, nor does it grant the commissioner "all powers necessary and proper" to carry out his duties. For these reasons, because the statute did not use the clear and unmistakable language required to grant exclusive jurisdiction to the commissioner, the circuit court did have subject matter jurisdiction over the matter.5
Although the trial court erred in finding that it lacked jurisdiction over the subject matter, it nevertheless should have dismissed the case under MCR 2.116(C)(10). Where the question presented is one of law, and the necessary facts are before this Court, this Court "can resolve the issue without the benefit of a ruling by the trial court." Paul v Wayne Co Dep't of Public Serv, 271 Mich App 617, 620; 722 NW2d 922 (2006).
Plaintiffs' challenge to BCN's policy is based on several sections of the Insurance Code, MCL 500.100, et seq. MCL 500.2243, which plaintiffs read as broadly prohibiting discrimination against optometrists, provides that, "if the policy or contract provides for reimbursement for any optometric service that is within the lawful scope of practice of a duly licensed optometrist, a subscriber . . . shall be entitled to reimbursement for such service, whether the service is performed by a physician or a duly licensed optometrist." MCL 500.2243(1). By its terms, this section does not prohibit discrimination in general, nor does it prohibit the specific discrimination of which plaintiffs complain. Rather, it simply provides that an individual receiving certain optometric services is entitled to reimbursement regardless if the service is provided by an ophthalmologist or an...
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