SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0916-19

THE PLASTIC SURGERY

CENTER, P.A., as Delegated

Authorized Representative and 

Assignee for M.K.,

Petitioner-Appellant,

v.

STATE HEALTH BENEFITS

COMMISSION and HORIZON

BLUE CROSS BLUE SHIELD

OF NEW JERSEY,

Respondents-Respondents.

____________________________

Argued June 30, 2021 – Decided July 13, 2022

Before Judges Accurso and DeAlmeida.

On appeal from the State Health Benefits Commission, 

Department of the Treasury.

Michael M. DiCicco argued the cause for appellant 

(Maggs, McDermott & DiCicco, LLC, attorneys;

James A. Maggs, of counsel and on the briefs; 

Michael M. DiCicco and Stephanie L. DeLuca, on the 

briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Amy Chung, Deputy Attorney General, argued the 

cause for respondent State Health Benefits 

Commission (Matthew J. Platkin, Acting Attorney 

General, attorney; Melissa H. Raksa, Assistant 

Attorney General, of counsel; Amy Chung, on the 

brief).

Michael E. Holzapfel argued the cause for respondent 

Horizon Blue Cross Blue Shield of New Jersey

(Becker LLC, attorneys, join in the brief of respondent 

State Health Benefits Commission).

The opinion of the court was delivered by

ACCURSO, J.A.D.

The Plastic Surgery Center, P.A. appeals from a December 12, 2019 

final agency decision of the State Health Benefits Commission concluding 

Surgery Center lacked standing to appeal to the Commission from a decision 

by Horizon Blue Cross Blue Shield of New Jersey denying Surgery Center 

reimbursement for out-of-network medical services to M.K., a State Health 

Benefits Program member.1 We affirm, essentially for the reasons expressed 

in the Commission's fully-explained and well-reasoned decision.

1

 Surgery Center contends its appeal is from "the September 30, 2019 Final 

Administrative Determination" of the Commission. There is no administrative 

determination, final or otherwise, of September 30, 2019. The Commission 

wrote a one-page letter dated August 22, 2019, to Surgery Center's counsel

advising "[p]roviders do not have standing to appeal to the Commission." 

Counsel avers he did not receive that letter until September 30, 2019. While 
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The essential facts are not disputed. Surgery Center submitted a claim to 

Horizon for services rendered to M.K. at the Center on December 16, 2014,

which was denied through two levels of internal appeal at Horizon, and by an 

external review by an independent review organization. Following those 

denials, Surgery Center submitted an appeal request to the Commission. In a 

comprehensive seven-page decision, the Commission explained why it does 

not accept appeals from providers, or indeed from anyone other than the 

member directly. 

Specifically, the Commission explained NJ DIRECT is a preferred 

provider organization (PPO) self-insured plan offered to SHBP members and 

administered by Horizon. Horizon provides plan participants a network of 

providers who agree to provide services per contract with Horizon at 

discounted rates with no balance billing. In addition to providing members 

care by participating "in-network" providers, NJ DIRECT also allows members 

to use out-of-network providers subject to the member's payment of 

that may be so, it does not render the August 22 letter the Commission's "Final 

Administrative Determination" of September 30, 2019. The only decision of 

the Commission appealable as of right in this matter pursuant to Rule 2:2-

3(a)(2) is the Commission's December 12, 2019 decision. The August 22, 

2019 letter is interlocutory, thus requiring our leave to appeal, see Rule 2:5-6, 

which plaintiff has neither sought nor received. 
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deductibles and co-insurance and the understanding that the plan's payment to 

out-of-network providers is limited to reimbursement of reasonable and 

customary costs with the member responsible for any balance. 

The Commission explained that "allowing out-of-network providers to 

appeal reimbursement amounts undermines Horizon's ability to recruit innetwork providers" willing to provide services at discounted rates in exchange 

for direct payment by the plan and increased patient volume resulting from 

plan referrals. "If a provider can appeal to receive additional payments beyond 

what the plan prescribes, it removes one of the important incentives for 

providers to participate in the network." 

As the Commission explained, Surgery Center is an out-of-network 

provider, thus members such as M.K. who choose to have procedures 

performed there instead of at an in-network hospital "choose[] to be 

responsible for the co-insurance and any charge above the reasonable and 

customary allowance." While members and providers, with the written 

consent of the member and only to the extent the adverse determination 

involves medical judgment, may pursue internal appeals to Horizon and, 

following that, an independent review organization, only the member may 

further appeal to the Commission pursuant to regulation and plan guidelines. 
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The Commission explained that when providers such as Surgery Center 

advise patients such as M.K. they will not balance bill the patient and instead 

attempt to appeal a reimbursement policy to the Commission the member does 

not object to, they undermine legislative policy by eliminating the financial 

incentive to use in-network providers and increase the cost of the plan for all 

members and their public employers. Thus, the Commission concluded that 

allowing an out-of-network provider standing to appeal that reimbursement 

policy "would be inimical to the purpose of the SHBP," and could even "serve 

to facilitate fraud against the program by permitting providers and members to 

consort to waive the co-insurance requirements set forth under the governing 

law."

As to Surgery Center's claim of derivative standing based on an 

assignment of benefits executed by M.K. three months before the procedure at 

issue, the Commission explained it "does not recognize an assignment of 

benefits as legal representation of a member" because it is contrary to the 

statute that "requires reimbursement be made only to SHBP members," 

N.J.S.A. 52:14-17.29, and the member guidebook providing that the member 

will be paid directly for services rendered by out-of-network providers, and is 

otherwise not permitted by the SHBP's contract with Horizon. The 
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Commission observed that permitting out-of-network providers with no 

standing to appeal directly to the Commission to appeal indirectly through 

assignment would obviously undermine the plan design by allowing them to 

gain advantages over in-network providers contractually prohibited from such 

appeals.

Surgery Center appeals, reprising the same arguments it made to the 

Commission, including that it is an "interested person" within the meaning of 

the Administrative Procedures Act, N.J.S.A. 52:14B-1 to -31 , entitled to a 

declaratory ruling from the Commission, notwithstanding it never sought a 

declaratory ruling from the Commission, and that the statute leaves any such 

declaratory ruling to the agency's discretion. 

Having reviewed the record in light of our limited role in reviewing 

administrative agency action, Russo v. Bd. of Trs., Police & Firemen's Ret. 

Sys., 206 N.J. 14, 27 (2011), we are convinced none of these arguments is of 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

The law is clear only SHBP members may pursue appeals to the level of 

the Commission. N.J.A.C. 17:9-1.3(a). We agree with the Commission that 

allowing out-of-network providers to evade that limitation by assignment is 

contrary to the public interest. As we have noted previously, anti-assignment 
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clauses "advance the overarching public interest in limiting health care costs 

for, if the patient could assign his or her rights to payment to outside medical 

providers, it would undercut the pre-arranged costs with in-network providers 

that are relied upon by non-profit health services corporations in deciding the 

premium amount." Somerset Orthopedic Assocs., P.A. v. Horizon Blue Cross 

& Blue Shield of N.J., 345 N.J. Super. 410, 417-18 (App. Div. 2001). As we 

noted in Somerset with respect to Horizon, "the general policy favoring full 

alienability of choses in action embodied in N.J.S.A. 2A:25-1 must bend to the 

far more specific expression of legislative intent in N.J.S.A. 17:48E-1 to -48." 

Id. at 423.

Affirmed.