THENEW JERSEY SPINE SOCIETY v. NEW JERSEY SMALL EMPLOYER HEALTH BENEFITS PROGRAM BOARD

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1723-16T4

THE NEW JERSEY SPINE SOCIETY,
APPROVED FOR PUBLICATION
Petitioner-Appellant,
January 31, 2018
v.
APPELLATE DIVISION
NEW JERSEY SMALL EMPLOYER
HEALTH BENEFITS PROGRAM BOARD,

Respondent-Respondent.
__________________________________

Argued January 23, 2018 – Decided January 31, 2018

Before Judges Fisher, Fasciale and Moynihan.

On appeal from the New Jersey Department of
Banking and Insurance, Small Employer Health
Benefits Program Board.

Keith J. Roberts argued the cause for
appellant (Brach Eichler, LLC, attorneys;
Keith J. Roberts, of counsel and on the
brief; Shannon Carroll, on the brief).

Jeffrey S. Posta, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Jeffrey S. Posta, on the brief).

The opinion of the court was delivered by

FASCIALE, J.A.D.

In exercising its executive-agency technical expertise, the

New Jersey Department of Banking and Insurance (the Department),
Small Employer Health Benefits Program Board (the SEH Board)

engaged in rulemaking in accordance with the expedited procedure

established by N.J.S.A. 17B:27A-51 (Section 51), rather than

pursuant to the Administrative Procedure Act (APA),
N.J.S.A.

52:14B-1 to -31. The New Jersey Spine Society (the Society)

appeals from the SEH Board's repeal of N.J.A.C. 11:21-7.13

(Section 7.13) as part of its re-adoption of N.J.A.C. 11:21-1.1

to -23.6 (the Re-adoption). The SEH Board, not the Department,

invoked its Section 51 expedited rulemaking powers because

N.J.A.C. 11:21-1.1 to -23.6 was due to expire. This case

addresses whether Section 51 authorized the SEH Board to repeal

Section 7.13, whether the SEH Board complied with Section 51's

procedural safeguards, and whether the SEH Board's final

decision was arbitrary.

Section 7.13 pertained to out-of-network benefits under

certain health insurance plans. The repeal did not eliminate

the benefits but merely eliminated reliance on what the SEH

Board argues are obsolete standards for determining the amount

of an allowable charge for voluntary use of out-of-network

services. In the aftermath of the repeal, certain carriers are

now required to disclose their basis for permitting allowable

charges for voluntary use of out-of-network benefits. The SEH

Board maintains that such a requirement promotes competition in

2 A-1723-16T4
the small employer health market, and empowers employees of

small employers to make informed decisions about whether to

voluntarily seek services from an out-of-network provider.

The Society argues the SEH Board erred by relying on

Section 51. Instead, the Society contends that the APA governs

the repeal of Section 7.13, which the Society asserts the SEH

Board violated. In urging us to reverse the final decision, the

Society contends that the repeal amounts to an arbitrary

decision because the SEH Board purportedly contravened its own

mission statement and the intent of the enabling statute.

Section 51 empowers the SEH Board to expedite rulemaking as

to certain defined "actions." The legal issue is whether the

repeal of Section 7.13 constituted an "action" under Section 51.

We hold that the repeal of Section 7.13, at a minimum, modified

certain small employer health benefits and policy plans, two of

the enumerated "actions" in Section 51. As a result, the SEH

Board correctly relied on Section 51. The SEH Board complied

with the procedural safeguards of Section 51, properly repealed

Section 7.13, and adhered to its mission statement and enabling

statute. We therefore affirm the final agency decision, and

uphold the Re-adoption and the repeal.

3 A-1723-16T4
I.

We begin by briefly addressing the SEH Board's fundamental

statutory rulemaking powers. Doing so informs our conclusion

that the SEH Board properly relied on and followed Section 51 to

repeal Section 7.13. It also provides further support for our

holding that the repeal amounted to an "action" under Section 51

because, at a minimum, it constituted a modification of health

benefits and policy plans.

In 1992, the Legislature enacted
N.J.S.A. 17B:27A-17 to -

56, currently known as the Small Employer Health Benefits Act

(Benefits Act), to improve New Jersey's small employer health

insurance marketplace. The Benefits Act created the Small

Employer Health Benefits Program (the Program) pursuant to

N.J.S.A. 17B:27A-28. The Program "assure[s] the availability of

the standardized health benefits plans to New Jersey small

employers, their full-time employees and the dependents of those

full-time employees, on a guaranteed issue basis." N.J.A.C.

11:21-2.1(a). The SEH Board administers the Program.
N.J.S.A.

17B:27A-28.

Although the SEH Board falls under the umbrella of the

Department, the Legislature granted the SEH Board specific

powers to accomplish its statutory obligation to administer the

Program. One of these powers is expedited rulemaking. Here, we

4 A-1723-16T4
are reviewing not the Department's repeal, but rather, the SEH

Board's repeal of Section 7.13.

Pursuant to Section 51, the Legislature authorized the SEH

Board to adopt certain actions in its administration of the

Program. To highlight this point, in 1993, the Legislature

repealed N.J.S.A. 17B:27A-46, which had stated

"[n]otwithstanding any other provision of law to the contrary,

all regulations concerning any health benefits plan subject to

this act shall be promulgated pursuant to this act." The

Legislature repealed
N.J.S.A. 17B:27A-46 because it found it

obsolete with the implementation of the more specific public

notice requirements of Section 51. S. Health & Human Servs.

Comm. Statement to S. 1686 2 (L. 1993, c. 162). In other words,

Section 51 imposed significant notice obligations, which

afforded appropriate due process associated with the SEH Board's

statutory expedited rulemaking procedures.

Although the Legislature did not "prohibit the [SEH B]oard

from adopting any action pursuant to the provisions of the

[APA]," see
N.J.S.A. 17B:27A-51(g), the Legislature empowered

the SEH Board to adopt "actions" pursuant to the provisions of

Section 51(a), which states:

a. For the purposes of this section,
"action" includes, but is not limited to:

5 A-1723-16T4
(1) the establishment and modification
of health benefits plans;

(2) procedures and standards for the:
(a) assessment of members and the
apportionment thereof; (b) filing of
policy forms; (c) making of rate
filings; (d) evaluation of material
submitted by carriers with respect to
loss ratios; and (e) establishment of
refunds to policy or contract holders;
and

(3) the promulgation or modification of
policy forms.

"Action" shall not include the hearing and
resolution of contested cases, personnel
matters and applications for withdrawal or
exemptions.

[
N.J.S.A. 17B:27A-51(a) (emphasis added).]

If the SEH Board chooses to exercise its statutory right to

engage in rulemaking under Section 51, and the contemplated

action – here, the repeal of Section 7.13 – constitutes an

"action" pursuant to Section 51, then prior to the adoption of

that action, the SEH Board must follow Section 51's procedural

safeguards. We emphasize that the Legislature empowered the SEH

Board to act pursuant to Section 51, "notwithstanding the

provisions of [the APA]."
N.J.S.A. 17B:27A-51(a).

II.

Interpreting the rulemaking language of Section 51 is

critical in this dispute. In arguing that the SEH Board

erroneously relied on Section 51, the Society maintains that the

6 A-1723-16T4
Re-adoption and the repeal do not constitute an "action" as

defined by Section 51. As a result, it maintains that the APA,

not Section 51, governs the Re-adoption and the repeal. To

resolve this contention, we must interpret and apply Section

51's definition of "action."

"In matters of statutory interpretation, our review is de

novo." Verry v. Franklin Fire Dist. No. 1,
230 N.J. 285, 294

(2017). "The Legislature's intent is the paramount goal when

interpreting a statute and, generally, the best indicator of

that intent is the statutory language." DiProspero v. Penn,
183 N.J. 477, 492 (2005). A court should "ascribe to the statutory

words their ordinary meaning and significance, and read them in

context with related provisions so as to give sense to the

legislation as a whole." Ibid. (citations omitted). "[I]f

there is ambiguity in the statutory language that leads to more

than one plausible interpretation, we may turn to extrinsic

evidence, 'including legislative history, committee reports, and

contemporaneous construction.'" Id. at 492-93 (quoting Cherry

Hill Manor Assocs. v. Faugno,
182 N.J. 64, 75 (2004)).

By its own terms, Section 51 applies to "actions" adopted

by the SEH Board. In Section 51, the Legislature clearly

described what "action" does and does not mean. Because the

7 A-1723-16T4
text of Section 51 is unambiguous, we need not consider

extrinsic evidence to discern its meaning.

As to what "action" does not mean, it is undisputed that

the Re-adoption and the repeal of Section 7.13 do not pertain to

"the hearing and resolution of contested cases, personnel

matters and applications for withdrawal or exemptions."

N.J.S.A. 17B:27A-51(a). Thus, the Re-adoption and the repeal do

not fall under the category of what "action" is not. We focus,

instead, on whether the Re-adoption and the repeal of Section

7.13 constitute what "action" is, as defined by Section 51. We

do so by analyzing whether the repeal falls under one of the

three enumerated examples of "action," or if not, whether the

repeal constitutes an "action" not expressly defined in Section

51.

As to this last point, we are not constrained by the

examples of "action" listed in Section 51. We acknowledge that

the Legislature did not intend to limit its definition of what

constitutes "action" to the definitions it identified in Section

51(a)(1), (2) and (3). That is so because in defining "action,"

the Legislature used the words "includes, but is not limited

to."
N.J.S.A. 17B:27A-51(a). The use of such a phrase

demonstrates that the three examples – Section 51(a)(1), (2) and

(3) – are non-exhaustive. See United States v. Philip Morris

8 A-1723-16T4
USA, Inc.,
566 F.3d 1095, 1115 (D.C. Cir. 2009) (explaining that

the term "includes" indicates a non-exhaustive list, but "adding

'but not limited to' helps to emphasize the non-exhaustive

nature").

By providing examples of what "action" does not constitute,

the Legislature provided further support for our conclusion that

the definition of "action" is not limited to Section 51(a)(1),

(2) and (3). We reach that conclusion based on the plain

language of Section 51. Nevertheless, the Re-adoption and the

repeal of Section 7.13 constitute "action" as expressly defined

by Section 51(a)(1) and (3).

Under Section 51(a)(1), "action" includes "the

establishment and modification of health benefits plans."

Pursuant to
N.J.S.A. 17B:27A-17, "health benefits plans" means

"any hospital and medical expense insurance policy or

certificate; health, hospital, or medical service corporation

contract or certificate; or health maintenance organization

subscriber contract or certificate delivered or issued for

delivery in this State by any carrier to a small employer group

pursuant to section 3 of [N.J.S.A. 17B:27A-19]." The repeal of

Section 7.13 modified health benefits plans because it changed

the manner in which certain health insurers must disclose

allowed charges for voluntary use of out-of-network providers.

9 A-1723-16T4
A closer look at the repealed regulation illustrates this

point. The repealed Section 7.13 falls under subchapter 7,

which is entitled "Program Compliance." "This subchapter sets

forth the standards all carriers must meet in offering, issuing

and renewing all health benefits plans to any small employer,

the small employer's full-time employees, and the dependents of

those full-time employees." N.J.A.C. 11:21-7.1. Section 7.13

stated:

(a) Except as stated in (b) below for
prosthetic and orthotic appliances, in
paying benefits for covered services under
the terms of the small employer health
benefits plans provided by health care
providers not subject to capitated or
negotiated fee arrangements, small employer
carriers shall pay covered charges for
services, using either the allowed charges
or actual charges. Allowed charge means a
standard based on the Prevailing Healthcare
Charges System profile for New Jersey or
other state when services or supplies are
provided in such state, incorporated herein
by reference published and available from
the Ingenix, Inc., 12125 Technology Drive,
Eden Prairie, Minnesota 55344.

1. The maximum allowed charge shall be
based on the 80th percentile of the
profile.

2. Carriers shall use the profile
effective as of July 1993, and shall
update their databases within 60 days
after receipt of periodic updates
released by the Prevailing Healthcare
Charges Systems.

10 A-1723-16T4
(b) In paying benefits for prosthetic and
orthotic appliances as required by P.L.
2007, c. 345, reimbursement shall be at the
same rate as reimbursement for such
appliances under the Federal Medicare
reimbursement schedule, whether the benefits
are provided on a network or out-of-network
basis. However, if the carrier's contract
rate with a network provider of orthotic and
prosthetic appliances exceeds the Medicare
reimbursement rate, the carrier's contract
rate should be paid.

[N.J.A.C. 11:21-7.13 (repealed 2016).]

Section 7.13 mandated small employer health benefits plans to

determine the allowed charge for an out-of-network service using

Ingenix. See Franco v. Conn. Gen. Life Ins. Co.,
289 F.R.D. 121, 136 n.4 (D.N.J. 2013). The repeal of Section 7.13 modified

health benefits plans, satisfying the definition of "action" in

Section 51(a)(1), by mandating that specific carriers designate

– instead of using the obsolete prevailing healthcare charges

system – the basis on which they determined the allowed charge

for voluntary out-of-network services.

The Society incorrectly contends that because Section 7.13

fell under the subchapter that "sets forth the standards all

carriers must meet in offering, issuing and renewing all health

benefits plans," N.J.A.C. 11:21-7.1, the only enumerated

"action" on which the SEH Board may rely is Section 51(a)(2),

which pertains to

11 A-1723-16T4
procedures and standards for the: (a)
assessment of members and the apportionment
thereof; (b) filing of policy forms; (c)
making of rate filings; (d) evaluation of
material submitted by carriers with respect
to loss ratios; and (e) establishment of
refunds to policy or contract holders.

[N.J.S.A. 17B:27A-51(a)(2).]

The Society concludes that the SEH Board improperly relied on

Section 51 to repeal Section 7.13 because in its view, the

repeal did not modify the procedures and standards listed in

Section 51(a)(2).

But the SEH Board's ability to engage in expedited

rulemaking pursuant to Section 51 is not dependent on its

ability to demonstrate its adoption of an act that constitutes

"action" as described in each of the three examples, Section

51(a)(1), (2) and (3). Section 51 defines "action" in the

disjunctive not conjunctive, which means that the SEH Board must

show that its adoption constitutes, but is not limited to, one

of the enumerated definitions of "action." The SEH Board relies

on Section 51(a)(1), which we have analyzed, and Section

51(a)(3), which we will now address.

Pursuant to Section 51(a)(3), "action" includes "the

promulgation or modification of policy forms."
N.J.S.A.

17B:27A-51(a)(3). By repealing Section 7.13, the SEH Board

mandated that carriers express their standards for permitting an

12 A-1723-16T4
allowed charge for voluntary out-of-network services. The

modification of the policy form is readily apparent by looking

at the SEH Board's basis for proposing the repeal of Section

7.13.

The SEH Board proposes an amendment to
the definition of allowed charge to replace
the text referring to a standard approved by
the [SEH] Board with direction to carriers
to specify the methodology for determining
allowed charges and requiring carriers to
explain how a consumer can learn the allowed
charge for services to be received. [The
SEH Board proposes t]his amendment to the
standard plans . . . for the reasons already
stated with respect to the proposed repeal
of [Section 7.13]. In addition, the SEH
Board proposes removing the statement that
the section of the standard plans discussing
coordination of benefits contains a distinct
definition of allowed charge, because this
statement unnecessarily emphasizes the fact
that the coordination of benefits provision
contains specific definitions.

[
48 N.J.R. 1564(a) (Aug. 15, 2016).]

The repeal changed the definition of "allowed charge" and

effected the substance of the plans and policy forms by

directing carriers to specify the methodology for determining

allowed charges, rather than using the repealed standard

previously approved by the SEH Board. Thus, this modification

constitutes an "action" under Section 51(a)(3).

Finally, as to whether the SEH Board adopted an "action" as

defined by Section 51, the SEH Board has the authority as it

13 A-1723-16T4
reasonably sees fit to administer the Program in a manner that

furthers small employer health benefits plans. Even if the Re-

adoption and the repeal of Section 7.13 did not qualify as an

"action" pursuant to Section 51(a)(1) or (3), which is not the

case, we conclude that the "but is not limited to" language of

Section 51 authorized the SEH Board to otherwise treat the Re-

adoption and the repeal as constituting an "action." That is so

because, as the SEH Board argues, it amended its rules by

repealing Section 7.13 to reflect what it concluded were

outdated laws and market practices. In our view, this is the

type of "action" the Legislature contemplated by using the "but

is not limited to" language of Section 51.

III.

In empowering the SEH Board to engage in expedited

rulemaking under Section 51, the Legislature detailed the

procedure it must follow. The Legislature explained the

procedural requirements for rulemaking in Section 51(b) through

(f). We reject the Society's alternate argument that even if

Section 51 applied to the Re-adoption and the repeal of Section

7.13, the SEH Board failed to follow these procedures.

At its April 20 and May 18, 2016 open session meetings, the

SEH Board discussed the proposed Re-adoption. Notice of the

meeting complied with the Open Public Meetings Act. At a May

14 A-1723-16T4
25, 2016 open session meeting, the SEH Board voted to propose,

through its Section 51 expedited rulemaking authority, the Re-

adoption, including the repeal of Section 7.13. The scheduled

expiration of N.J.A.C. 11:21-1.1 to -23.6 on August 18, 2016,

prompted the expedited rulemaking resulting in the Re-adoption.

On July 7, 2016, the SEH Board provided notice of the

proposal to three newspapers, emailed the notice to various

trade and professional organizations, and forwarded the notice

to the Office of Administrative Law (OAL) for publication. In

accordance with
N.J.S.A. 52:14B-5.1(c)(2), because the notice of

the proposal was filed with the OAL prior to the regulation's

expiration date, the expiration date was extended 180 days to

February 14, 2017.

On August 15, 2016, the New Jersey Register published the

proposal,
48 N.J.R. 1564(a) (Aug. 15, 2016), and the SEH Board

conducted a public hearing on August 18, 2016. The SEH Board

accepted comments on the notice of proposal through August 22,

2016, during which time the SEH Board heard from six commenters,

including the Medical Society of New Jersey. The Society did

not provide any comments, although it had the opportunity to do

so.1

1 On December 29, 2016, a few days before the effective date of
the Re-adoption and the repeal, the Society filed a motion with
(continued)

15 A-1723-16T4
At the SEH Board's September 21, 2016 open session meeting,

it adopted the Re-adoption. The SEH Board subsequently filed a

notice of adoption with the OAL on October 12, 2016, which

became effective on that date. On November 7, 2016, the New

Jersey Register published the notice of adoption.
48 N.J.R.
2360(a) (Nov. 7, 2016). The operative date was January 1, 2017.

Section 51(b) requires the SEH Board to "publish notice of

its intended action in three newspapers of general circulation

in this State," and "provide the notice of intended action and a

detailed description of the intended action by mail, or

otherwise, to affected trade and professional associations."

N.J.S.A. 17B-27A-51(b). Furthermore, "[t]he notice of intended

action shall include procedures for obtaining a detailed

description of the intended action and the time, place and

manner by which interested persons may present their views."

Ibid. The SEH Board shall forward the notice and description to

the OAL for publication in the New Jersey Register. Ibid. The

SEH is required to hold a hearing "on the establishment and

modification of health benefits plans," and the notice of a

hearing shall be included in the notice of intended action.

(continued)
the SEH Board seeking a stay. The SEH Board denied that motion
and issued an extensive written decision dated January 18, 2017.
We too denied a stay.

16 A-1723-16T
4 N.J.S.A. 17B:27A-51(c). Additionally, "[w]ritten comments shall

be submitted to the [SEH B]oard within the time established by

the [SEH B]oard in the notice of intended action, which time

shall not be less than 20 calendar days from the date of

notice."
N.J.S.A. 17B:27A-51(d). This deadline starts when the

SEH Board provides notice and description to the OAL for

publication.

The SEH Board satisfied these requirements. On July 7,

2016, the SEH Board provided notice of the proposal to The Star-

Ledger, The Times of Trenton, and The Courier-Post; emailed the

notice to various trade and professional organizations; and

forwarded the notice and description to the OAL for publication.

The twenty-day deadline for written comments started on July 7,

2016.

The notice explained the proposal; informed the public that

the SEH Board would hold a hearing on August 18, 2016; and

required commenters to provide written comments by August 22,

2016. On August 15, 2016, the New Jersey Register published the

proposal, and the SEH Board conducted the public hearing on

August 18, 2016. The SEH Board then closed the comment period

on August 22, 2016. The twenty-day deadline imposed by Section

51(d) began on July 7, 2016, the date of the "notice of intended

action." Instead of allowing the minimum period for comments,

17 A-1723-16T4
twenty days, the SEH Board provided a forty-five day period,

from July 7, 2016 to August 22, 2016.

The Society erroneously asserts that the date of notice

should be August 15, 2016, the date on which the New Jersey

the notice obligations imposed under Section 51(b): "[t]he Board

shall forward the notice of intended action and the detailed

description of the intended action concurrently to the [OAL] for

publication in the New Jersey Register."
N.J.S.A. 17B:27A-51(b)

(emphasis added). Section 51(b) expressly requires that the SEH

Board forward the notice and description to the OAL

concurrently, which is exactly what the SEH Board did. Section

51(d) requires the twenty-day period to run "from the date of

notice," not publication by the New Jersey Register.

IV.

We have already determined that the SEH Board correctly

relied on and followed the procedural requirements for expedited

rulemaking outlined in Section 51. The Society argues, however,

that even if that is the case, we should still set aside the

repeal of Section 7.13. It contends that the repeal of Section

7.13 purportedly violated the SEH Board's mission as well as the

intent of the Benefits Act. The Society therefore asserts that

the SEH Board rendered an arbitrary final agency decision.

18 A-1723-16T4
We reject this contention because our scope of review of an

administrative regulation is limited. Lewis ex rel. Lewis v.

Catastrophic Illness in Children Relief Fund,
336 N.J. Super.
361, 369 (App. Div. 2001). Administrative regulations have a

presumption of validity and we afford them great deference. In

re Freshwater Wetlands Prot. Act Rules,
180 N.J. 478, 488-89

(2004). The challenging party "bears the burden of proving that

the regulations are arbitrary, capricious or unreasonable."

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

158 N.J. 211, 222 (1999). "[J]udicial deference to

administrative agencies stems from the recognition that agencies

have the specialized expertise necessary to enact regulations

dealing with technical matters and are 'particularly well

equipped to read and understand the massive documents and to

evaluate the factual and technical issues that . . . rulemaking

would invite.'" Ibid. (second alteration in original) (quoting

Bergen Pines Cty. Hosp. v. N.J. Dep't of Human Servs.,
96 N.J.
456, 474 (1984)). The court's deference to the agency, however,

is not without limit. "A regulation 'must be within the fair

contemplation of the delegation of the enabling statute,'" ibid.

(quoting N.J. Guild of Hearing Aid Dispensers v. Long,
75 N.J.
544, 561-62 (1978)), and an agency "may not under the guise of

interpretation . . . give the statute any greater effect than

19 A-1723-16T4
its language allows," Kingsley v. Hawthorne Fabrics, Inc.,
41 N.J. 521, 528 (1964).

The Society argues the repeal violates public policy

because the SEH Board and the carriers deprived insureds of

their bargained-for benefits – specifically, a meaningful out-

of-network benefit, limited risk of balance billing, and a

meaningful maximum out-of-pocket limit. The SEH Board explained

its mission statement in N.J.A.C. 11:21-1.6:

The mission of the [SEH Board] is to
administer the . . . Program in a manner
aimed at increasing access to coverage,
protecting consumers, educating key
stakeholders in the marketplace and other
interested parties, and promoting carrier
participation in the market. This includes
establishment and modification of standard
plans for marketing to small employers and
establishing and administering assessment
mechanisms. It also includes the regulation
of small employer health coverage carriers
in conjunction with [the Department] and New
Jersey Department of Health.

Thus, its mission is essentially to protect consumers and expand

health benefits plan options in the market. The Re-adoption and

the repeal did just that by increasing access to health

coverage, and promoting competitive carrier participation in the

small employer market to ensure that consumers have a meaningful

choice of health benefits plans. The repeal of Section 7.13

protected consumers because carriers must now give their basis

for determining allowed charges for voluntary out-of-network

20 A-1723-16T4
services. This transparency enables consumers to exercise

choice, market competition, and premium reduction.

The SEH Board's reasons for deleting the term "allowed

charge" as it appeared in N.J.A.C. 11:21-1.2, and eliminating

the SEH Board-designated reimbursement standard, by repealing

Section 7.13, comports with its stated mission. The SEH Board

took this action in part because the number of insurance plans

that featured out-of-network providers had substantially

decreased; network providers provide most health care; the

prevailing healthcare charges system operated by Ingenix no

longer existed, making the database obsolete; some carriers did

not offer plans with out-of-network benefits; and it expanded

employer choice and reduced premiums. The repeal, as the SEH

Board explained, "encourage[d] small employer carriers to make

more plans with out-of-network benefits available," and "would

be more equitable for the small employer market as a whole."
48 N.J.R. 1564(a) (Aug. 15, 2016). We have no credible basis to

second guess the SEH Board's technical reasons, and conclude the

SEH Board adhered to its mission statement, especially because

the Re-adoption and the repeal are "within the fair

contemplation of the delegation of" the Benefits Act. N.J.

State League of Municipalities,
158 N.J. at 222 (quoting Long,

75 N.J. at 561-62).

21 A-1723-16T4
The Society argues that the SEH Board ignored its purpose

and the intent of the Benefits Act by creating an extremely

narrow small employer health benefits market without a real out-

of-network option. As we have stated, the Legislature created

the Benefits Act to improve New Jersey's small employer health

insurance marketplace. The Benefits Act created the Program,

"to assure the availability of the standardized health benefits

plans to New Jersey small employers, their full-time employees

and the dependents of those full-time employees, on a guaranteed

issue basis." N.J.A.C. 11:21-2.1(a). Thus, just as the Re-

adoption and the repeal did not violate the SEH Board's mission

statement or public policy, it did not contravene the Benefits

Act.

Finally, the Society argues that the upshot of the repeal

means that out-of-network benefits no longer provide adequate

coverage to consumers; patients are subject to high balance

bills; access to health care is limited; and maximum out-of-

pocket protections no longer exist. We conclude these

contentions are completely misplaced and are entirely without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(D), (E). We nevertheless add these brief comments.

As to its balance bills argument, the Society contends that

patients will be subject to high balance bills if the repeal

22 A-1723-16T4
remains in effect. But its assertion pertains to emergency

services, services performed at in-network hospitals, and

services referred to or approved by insurance companies. These

examples are substantially different than someone who

voluntarily seeks services by an out-of-network provider. In

other words, these arguments are inapplicable to the repeal of

Section 7.13 and the Re-adoption. As the SEH Board pointed out,

no definition of "allowed charge" in its rules will eliminate a

balance on a bill unless the allowed charge equals the amount on

a bill invoiced by the provider.

Affirmed.

23 A-1723-16T4

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