SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0314-17T2

THE ASSOCIATION OF NEW 

JERSEY CHIROPRACTORS, INC.,

and ROBERT BLOZEN, DC,

Plaintiffs-Appellants,

v.

HORIZON HEALTHCARE

SERVICES, INC., d/b/a 

HORIZON BLUE CROSS BLUE

SHIELD OF NEW JERSEY, INC.,

Defendant-Respondent.

_____________________________

Submitted February 6, 2019 – Decided June 5, 2019

Before Judges Accurso and Moynihan.

On appeal from Superior Court of New Jersey, Law 

Division, Somerset County, Docket No. L-1211-16.

Jeffrey B. Randolph, attorney for appellants.

White and Williams LLP, attorneys for respondent

(Michael Oliver Kassak, Andrew I. Hamelsky, Edward 

Michael Koch, and Luke A. Repici, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0314-17T2

PER CURIAM

The Association of New Jersey Chiropractors, Inc. (the Association), a 

non-profit group consisting of chiropractic physicians licensed to practice in 

New Jersey, and one such chiropractor, Robert Blozen, (collectively, plaintiffs) 

appeal from the trial court's order dismissing their complaint with prejudice in

granting defendant Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross 

Blue Shield of New Jersey, Inc.'s motion to dismiss under Rule 4:6-2(e). We 

affirm the dismissal.

Plaintiffs challenged Horizon's OMNIA Plan (OMNIA), a health care plan

which created two tiers of providers available to Horizon-insured consumers. 

Consumers who received care from in-network Tier One providers realized 

reduced deductible, co-insurance and co-pay obligations as compared to 

consumers who chose an in-network Tier Two health care provider.1 Plaintiffs' 

complaint averred Horizon unilaterally classified only eighty-eight of the 13732

in-network chiropractors as Tier One providers. They claimed OMNIA's tiering 

 

1

 We affirmed the decision of the Department of Banking and Insurance (the 

Department) approving the plan. Capital Health Sys., Inc. v. Dep't. of Banking 

& Ins., 445 N.J. Super. 522 (App. Div. 2016).

2

 In their merits brief, plaintiffs, without explanation, changed the number of 

Tier One chiropractors to ninety-five of 1392. The variance is inconsequential 

to our decision. 
3

A-0314-17T2

violated the Health Care Quality Act of 1997 (the Act), N.J.S.A. 26:2S-1 to -25. 

Specifically, plaintiffs alleged a regulation, N.J.A.C. 11:24A-4.10(b)(2),

promulgated under the Act "require[s] carriers to have a sufficient number [of 

specialist providers], as applicable to the services provided in-network, to assure 

access within [forty-five] miles or one hour driving time, whichever is less, of 

[ninety] percent of covered persons within each county or approved sub-county 

service area." Plaintiffs also alleged OMNIA violated N.J.S.A. 17B:27-51.1,

because Horizon failed to reimburse Tier Two chiropractors "for services within 

their scope of practice that fall within the Tier Two patient cost obligations." 

The trial court determined a private cause of action could not be maintained 

under the Act or N.J.S.A. 17B:27-51.1 and dismissed plaintiffs' complaint.

Our standard of review on appeal of a dismissal of a complaint for failure 

to state a claim under Rule 4:6-2(e) is de novo; we apply the same legal standard 

as the trial court when reviewing its reasoning. Donato v. Moldow, 374 N.J. 

Super. 475, 483 (App. Div. 2005). That well-established legal standard requires 

us to give plaintiffs the benefit of all their allegations and all favorable 

inferences in determining if a cause of action has been made out. Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). Although we 

recognize the liberality accorded plaintiffs' allegations, without concern for
4

A-0314-17T2

plaintiffs' ability to prove the facts alleged in the complaint, ibid., a complaint 

must be dismissed if it fails to articulate a legal basis entitling plaintiffs to relief, 

see Camden Cty. Energy Recovery Assocs., LP v. N.J. Dep't of Envtl. Prot., 320 

N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001).

We agree with the trial court that neither the Act nor N.J.S.A. 17B:27-

51.1, nor their concomitant regulatory provisions, create a private cause of 

action that would allow plaintiffs to maintain an action for enforcement. Neither 

statute expressly authorizes private enforcement actions. "New Jersey courts 

have been reluctant to infer a statutory private right of action where the 

Legislature has not expressly provided for such action." R.J. Gaydos Ins. 

Agency v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271 (2001). Thus we examine 

whether there is an implied private right of action utilizing the tripartite test our 

Supreme Court adopted in Gaydos, 168 N.J. at 272.

To determine if a statute confers an implied private 

right of action, courts consider whether: (1) plaintiff is 

a member of the class for whose special benefit the 

statute was enacted; (2) there is any evidence that the 

Legislature intended to create a private right of action 

under the statute; and (3) it is consistent with the 

underlying purposes of the legislative scheme to infer 

the existence of such a remedy.
5

A-0314-17T2

We review both pieces of legislation under those factors, recognizing the Court's 

prescription that, although each factor may be given varying weights, "the 

primary goal has almost invariably been a search for the underlying legislative 

intent." Id. at 272-73 (quoting Jalowiecki v. Leuc, 182 N.J. Super. 22, 30 (App.

Div. 1981)).

Plaintiffs are not "member[s] of the class for whose special benefit," id.

at 272, either piece of legislation was enacted. The Act's purpose was to 

"provide[] various consumer safeguards with respect to health insurance and the 

operation of managed care plans." S. Health Comm. Statement to S. 269 1 (Mar. 

14, 1996). As plaintiffs concede in their merits brief, the Act "clearly benefits 

patients in the [S]tate by mandating minimum coverage requirements of 

insurance networks." 

The Legislature required the Commissioner of the Department to 

promulgate rules and regulations "necessary to carry out the purposes of [the 

Act]. The regulations shall establish consumer protection and quality standards 

governing [health insurance] carriers" offering managed care plans. N.J.S.A. 

26:2S-18. The regulation plaintiffs contend is violated by OMNIA, N.J.A.C. 

11:24A-4.10(b)(2) – mandating carriers afford proximate services to ninety 
6

A-0314-17T2

percent of covered insureds in designated geographic areas – illustrates that 

consumers, not providers, are the class the Act is intended to benefit. 

The purpose of N.J.S.A. 17B:27-51.1 is to afford insured consumers 

reimbursed medical services provided by licensed chiropractors. See Sponsor's 

Statement to A.23 (L. 1975, c.125) ("The purpose of this bill is to provide the 

health care consumer who is insured by a group health policy with payment by 

the company issuing the health insurance policy, for medical services rendered 

to him by a licensed chiropractor within the scope of his license."); see also

Sponsor's Statement to A.22 (L. 1975, c.119); Pub. Hearing on A. Nos. 21, 22, 

and 23 Before S. Comm. on Labor, Indus. & Professions, 196th Leg., at 2 (1975)

(statement of Joseph A. LeFante, Assemblyman) (According to bill sponsor, 

Assemblyman Joseph A. LeFante, the purpose of bill was "to give the consumer

in New Jersey, who elects to use chiropractic services, reimbursement for his 

expenditures."). 

The first prong of the Gaydos test focuses on the class which the

Legislature intended to benefit. The applicable statutes were enacted for the 

benefit of consumers, not providers. Thus, we reject plaintiffs' contention that 

they "'step into the shoes' of their chiropractic patients as assignees of the 
7

A-0314-17T2

patients' health care contract with Horizon." A private cause of action is not 

engendered by any ancillary benefits accorded chiropractors by the legislation. 

Turning to the second Gaydos prong, in their merits brief plaintiffs do not 

advance that there is any evidence the Legislature intended to create a private 

cause of action under the Act. And we reject plaintiffs' contention that N.J.S.A. 

17B:27-51.1 "was intended as a sword for consumers, and their chiropractic 

doctors, to compel payment for chiropractic care." The statute compels 

reimbursement to consumers in connection with their insurance contracts with a 

carrier. As Assemblyman LeFante stated in support of the 1975 legislation, the 

purpose of the bill was to provide a healthcare insured "with payment by the 

company issuing the health insurance policy." Sponsor's Statement to A.23 (L. 

1975, c.125). Thus, while licensed chiropractors may provide medical services, 

they are not the object of the Legislature's protection. There is no evidence the 

Legislature intended to grant chiropractors, or any other healthcare provider, a 

private right of action.

 We reject plaintiffs' argument, addressing the third Gaydos prong, that 

"it may clearly be inferred that the purpose of the legislation is promoted by 

permitting parties to obtain a prospective declaratory judgment under the 

statutes cited, specifically through the mechanism of the New Jersey Declaratory 
8

A-0314-17T2

Judgment Act." We note a declaratory judgment is a form of equitable relief, 

subject to judicial discretion. In re Resolution of State Comm'n of Investigation, 

108 N.J. 35, 46 (1987). A declaratory judgment claim cannot substitute an 

appeal. State v. Eatontown Borough, 366 N.J. Super. 626, 637 (App. Div. 2004).

Plaintiffs cannot circumvent Gaydos's third prong by presenting a declaratory 

judgment claim. They have not demonstrated their claim is consistent with the 

underlying purposes of either enactment's legislative scheme to infer the 

existence of a private right of action, no matter the form. 

Inasmuch as the Department extensively regulates group health insurance 

policy forms, see N.J.S.A. 17B:25-18.2; N.J.S.A. 17B:27-49; N.J.S.A. 17:48E13.2, and the Act and regulations promulgated thereunder, N.J.A.C. 11:24A-1.1 

to -5.3, include civil administrative enforcement provisions, see N.J.S.A. 26:2S9.3, -16, we heed the Court's observation that "New Jersey courts have generally 

declined to infer a private right of action in statutes where the statutory scheme 

contains civil penalty provisions," Gaydos, 168 N.J. at 274.

Specifically, as to insurance contracts, the Court added:

our courts have similarly concluded that where there is 

no discernable legislative intent to authorize a private 

cause of action in a statutory scheme that already 

contains civil penalty provisions, the courts will not 

infer a private cause of action. As the Appellate 

Division noted in In re Commissioner of Insurance's 
9

A-0314-17T2

March 24, 1992 Order, 256 N.J. Super. 158, 176 . . .

(App. Div. 1992), aff'd, 132 N.J. 209 (1993),

[w]henever the Legislature intended to 

create civil penalties for violations of 

insurance statutes, regulations, and 

Department orders, it knew how to do so 

. . . . Implied remedies are unlikely to be 

intended by a Legislature that enacts a 

comprehensive legislative scheme 

including an integrated system of 

procedures for enforcement.

[Gaydos, 168 N.J. at 275 (first alternation in original).]

Both statutory enactments involve a great deal of oversight by the Department, 

including enforcement, militating against a private cause of action. See ibid. at 

274. 

We also note that consumers – the persons intended to be protected by 

both enactments – are not named plaintiffs in this suit. See N.J.S.A. 2A:16-56 

("When declaratory relief is sought, all persons having . . . any interest which 

would be affected by the declaration shall be made parties to the proceeding."); 

Med. Soc'y of N.J. v. Amerihealth HMO, Inc., 376 N.J. Super. 48, 56 (App. Div. 

2005).

Finally, we observe plaintiffs are seeking to enforce rights which the Act 

and N.J.S.A. 17B:27-51.1 do not confer upon them. In their complaint, plaintiffs 

pray for: injunctive relief restraining Horizon from "improper tiering of 
10 A-0314-17T2

chiropractic physicians"; a declaration that the "improper tiering of 

chiropractors [under] OMNIA or other similar plans is arbitrary, capricious, 

and/or void as violative of New Jersey law and/or public policy"; restraints 

against Horizon from denying chiropractors participation as Tier One providers. 

Again, the enactments were for consumers' benefit. OMNIA is not inconsistent 

with those aims. Consumers may select an in-network provider, whether Tier 

One or Two, depending on the consumer's preference for a particular doctor or 

economic circumstance. Plaintiffs do not contend any geographic areas are 

underserved by in-network chiropractors; hence, there is no evidence the Actrelated regulation cited by plaintiffs, N.J.A.C. 11:24A-4.10(b)(2), is violated by 

the tiering scheme. And there is no evidence the tiering scheme has had any 

impact on the reimbursement of consumers, implicating N.J.S.A. 17B:27-51.1. 

In short, plaintiffs are not persons "whose rights, status or other legal relations 

are affected by a statute" who "may have determined any question of 

construction or validity arising under the . . . statute" by means of a declaratory 

judgment action. N.J.S.A. 2A:16-53.

Plaintiffs' claim that a private cause of action is required under New Jersey 

public policy to address critical access to healthcare issues in light of the opioid 

drug crisis was not raised before the trial court and will not be considered on 
11 A-0314-17T2

appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). To the extent 

not addressed in this decision, plaintiffs' other arguments are without sufficient 

merit to warrant discussion. R. 2:11-3(e)(1)(E). 

We determine, after giving plaintiffs' pleading the benefit of all favorable 

inferences, Printing Mart-Morristown, 116 N.J. at 746, that plaintiffs failed to 

state a cause of action and, therefore, their complaint was correctly dismissed.

Affirmed.