*1 521 post-trial present nothing motion, these enumerations for review.17
Judgment Ellington, J., Miller, J., C. concur. affirmed. 29, 2012 Decided March April 2012 Reconsideration denied appellants. Durant, M. Katherine Davis, for Quigley, Quigley, Thiry,
Matthews & Ron L. Matthew R. Elmankabady, Mina Parker, Hudson, A. Dobbs, Rainer & Vincent J. Arpey, appellees. for
A11A1871. NORTHEAST CARE, GEORGIA CANCER LLC
v. BLUE CROSS AND BLUE GEORGIA, SHIELD OF
INC. et al. A11A1872. HUDGENS v. BLUE CROSS AND BLUE SHIELD OF
GEORGIA, INC. et al. (726 714) SE2d Judge.
Adams, Relying “AnyWilling on the Provider” statute codified at OCGA (the statute”), Georgia’s § 33-20-16 “AWP Commissioner ofInsurance Georgia, ruled (“Blue that Blue Cross”) Cross and Blue Shield of Inc. required “any willing provider” was join to admit that wished to preferred provider arrangement, and that Blue Cross Blue Shield Georgia, (“BC Healthcare”) Healthcare required Plan of Inc. was “any willing provider” join admit that wished to its health maintenance orga superior court reversed the Commissioner. nization.1 Georgia Northeast Care, Cancer LLC and the Commissioner then sought discretionary review of the order, court’s and we granted applications, leading companion appeals. tо these Based and upon plain language and structure of the Insurance giving proper ruling deference to Commissioner, we con correctly clude that the Commissioner concluded that the 17 See, e.g., Bank, Community Williams App. v. United (722 440) 313 Ga. 708 SE2d (2012) (“An specific ruling error of law has as its basis a made having the trial court. There rulings been no appeal, the trial court on rulings the issues raised on there are no to review legal error.”) (citation punctuation omitted); Cox, State Farm Mut. Auto. Ins. Co. v. 233 App. 296, (2) (502 778) (1998). Ga. SE2d appearance This is the second of this case before us. See Northeast Ga. Cancer Care v. Ga., Blue Cross & (676 428) Blue Shield (2009) (“Northeast I”). In I, parties’ dispute Northeast we concluded application over of the AWP statute had to he submitted to the Commissioner for resolution in the first instance. See id. at 30-32 to Blue Cross’s statute of the AWP not bar
Code does the AWP by applying he erred But arrangement. provider HMO network. to BC Healthcare’s sepa- two facts. undisputed certain The record reflects Blue Cross. Appellee and created merged companies rate healthcare of Insurance Commissioner by Georgia’s was licensed *2 what is now by corporation” governed “health care nonprofit a Blue things, other Among Title 33. of the Insurance Chapter 20 Code, offers a 30 of the by Chapter Cross, as authorized as insureds, it refers to which plan to network provider 1985, Blue Cross PPO. In or Organization” Provider “Preferred a owned subsid- for-profit wholly capitalized a created, and organized, Healthcare, opera- began which BC BC Healthcare. iary, Appellee as operate licensed the Commissioner 1986, separately tion in is Healthcare offers BC (“HMO”). organization maintenance a health to its insureds. plan network an HMO for-profit organization converted to a Blue Cross amend- legislative As a result of the Commissioner. approval corpo- licensed as a “health
ments, continued to be Blue Cross Code. See OCGA of the Insurance by Chapter 20 governed ration” As 33-20-31; 33-20-34; p. L. 745. Ga. (12) (B); §§ subsidiary wholly a owned Blue Cross became process, the conversion In December Companies, Inc. formed Cerulean newly of the ownership interest percent its 100 Blue distributed Cerulean Cross owned Healthcare, corporation wholly latter a making the in BC an affiliate of Cross. of Cerulean and subsidiary Care, LLC is a medical Cancer Georgia Northeast Appellant North- oncologists. medical and radiation consisting of practice group I, 2007, Northeast was an east From 2002 to at 29. Ga. in the PPO offered plan care provider health approved However, dispute Id. by BC Healthcare. and the HMO offered lead- parties, reimbursements arose between payments over with Blue Cross provider terminate its contracts Northeast ing and, dispute, as The settled their parties in 2007. Id. BC Healthcare con- settlement, negotiating provider new they began part of Northeast’s individual Blue Cross allowed Ultimately, Id. tracts. network, but not in its PPO providers as participate physicians North- BC Healthcare allowed practice. as a medical group Northeast providers as oncologists participate radiation individual east’s practice or its network, group as a medical but not Northeast its HMO dispute unresolved remaining This oncologists. medical individual led to HMO networks to the PPO and over access parties between litigation. the instant parties’ dispute Georgia’s
At the heart of the provides: 33-20-16, Every every surgery, medicine, doctor of doctor of dental every podiatrist, every provider health care within a approved by appro- class the health care who is priately practice reputable good licensed to and who is and in standing right participating shall have to become a physician approved provider health care for medical or surgical care, both, be, as the case under such terms imposed participating physi- or conditions as are on other approved providers approved cians or health care within such class under similar chapter. circumstances accordance with this parties disagree over whether the AWP statute PPO network offered Blue Cross and to the HMO network offered by BC Healthcare. against
Northeast filed suit in Blue Cross and BC seeking, among things, declaratory judgment Healthcare, other right participate *3 provider to its as a in the PPO network and the superior HMO network under the AWP statute. The court dismissed declarаtory judgment the count and several of Northeast’s other ruling inapplicable. claims, that the AWP statute was In the earlier appeal, superior we affirmed the dismissal, court’s order of but in ground on the alternative that Northeast had failed to exhaust its I, administrative remedies. See Northeast at 30-31 required dispute We held that Northeast was first to submit its over the of the AWP statute to the Commissioner. See id.
Accordingly, petition Northeast filed a with the Commissioner. procedural 17, 2009, On December order, in a the Commissioner legal January bifurcated the 27, factual issues. On 2010, the hearings: Commissioner ordered that there would be two the first on legal evidentiary hearing days issues followed an within 30 ruling thereafter; he ordered that no final would be issued until the parties opportunity present February had an evidence. On receiving parties, 2010, after submissions from the the Commis- hearing; expressly beginning sioner held the first he stated at the hеaring taking during the hearing, that he was not evidence. Later the going
however, the Commissioner stated that he was Department’s consider the file in order to address four factual rulings April points.2 “on issued two 7, 2010, the Commissioner On parties.” presented legal first, the In the to me the the issues applied Blue Cross’s the AWP statute concluded Commissioner applied second, it to BC Health- he concluded network; in the PPO ruling expressly his limited The Commissioner HMO network. care’s upon request, April 19, 2010, the entities. On to the two Blue Cross clarifying rulings were effec- that his issued an order Commissioner stay rulings pending April an 2010; not the that he would as of tive appealed, appeal; schedule the contem- if one he would and that no May evidentiary hearing by plated con- 2010. The Commissioner evidentiary hearing appeal timely filed, the “If an cluded with this: (b) provisions stayed the the of 5 in accordance with shall be rulings, however, the will not Thе effectiveness of Procedural Order. remaining hearing stayed.” purpose is unclear ofthe be The intended the record. from appealed two Healthcare the Commissioner’s
Blue Cross and BC stay rulings, rulings superior moved for a of those court and granted. superior superior court later reversed rulings language and structure of the both based on composed superior Although order was court’s written Code. single page, lengthy ruling incorporated by at a reference its oral it discretionary sought prior hearing. Northeast and the Commissioner granted applications. superior order, court’s and we review of No. AllA1871 Case error, Northeast contends 1. In related enumerations of several by failing appropriately defer to the court erred interpretation including of the Insurance Commissioner’s by concluding statute did not AWP in either situation.3
how BC Healthcare was holding wаs transferred from Blue Cross course of business of the receive as a result of that its brief and thus has abandoned it. See Court for-profit promises obtain In a The Commissioner special that “a health made status. separate treatment under the by But Northeast does not address enumeration of Cross capitalized; Department indicated that he was transfer. insurer/HMO during Georgia Cerulean; error, (2) of Insurance.” the how Cerulean was hearings regarding Northeast asserts that insurance can walk of going this enumeration in the Appeals (4) He stated that he intended to consider what away laws”; accept compensation, Rule 25 capitalized; from Northeast was its conversion “all documents in the promises the (a) (3) (3) how if argument it made in order to referring any, from (c) BC did Blue Cross court erred (2) nonprofit Healthcare (i). section of *4 ordinary alleged (1) complete thorough review оf a standard of of the A discussion by recently agency by out the been set has an administrative decision Supreme Court: requires the administrative decision review of an
Judicial by findings supported of fact are to determine that the court “any the conclu- the soundness of and to examine evidence” upon findings the of fact. OCGA that are based sions of law (h) step, (h). § 50-13-19 As to the first § 50-13-19 judgment provides substitute its “[t]he court shall not agency weight on of the evidence that of the modify may questions or . .. reverse [but] [t]he of fact rights appellant have been if of the the decision substantial findings prejudiced . . . are: . . . the administrative because prevents (5) [c]learly “Thus, a de the statute erroneous....” evidentiary questions leaving the novo determination of by only the of the facts found a determination whether ” [agency] supported by ‘any [Cit.] evidence.’ (h) parameters out the of a OCGA 50-13-19 also sets legal agency in thе court’s review of the conclusions made accepts findings judiciary if decision. the of fact While findings, “may support there the court evidence modify [agency] decision if substantial reverse or rights prejudiced appellant been because of have (1) in of decision[ ] [is]: administrative . . . . . . violation statutory provisions; (2) of the constitutional or statutory authority excess (3) upon agency;
of the made unlaw- (4) procedure; ful affected other error of law.” OCGA (h). § 50-13-19 Corp. Dept. Community Health, 158, 160-161
Pruitt v. Ga. 223) statutorily required (3) (664 (2008).4 sum, In “the court is (h) The full text of OCGA 50-13-19 is as follows: agency judgment for that of the as to the The court shall not substitute its may weight questions affirm the decision ofthe of the evidence on of fact. The court proceedings. modify agency further The court reverse or or remand the case for appellant prejudiced rights have been because the the decision if substantial inferencеs, conclusions, (1) findings, or decisions are: violation administrative statutory authority statutory provisions; (2) In ofthe constitutional or excess of law; procedure; (4) (5) agency; (3) upon Made unlawful Affected other error of reliable, Clearly probative, evidence on the erroneous in view ofthe and substantial record; (6)Arbitrary capricious or characterized abuse of discretion whole or clearly of discretion. unwarranted exercise *5 526
to examine the soundness of the conclusions of law drawn from the findings supported by any evidence,
of fact and is authorized to modify agency upon reverse or decision a determination that the agency’s of the law to the facts is erroneous.” Id. In this legal case, our review will focus on conclusions and the factual questions the Commissioner considered. Supreme explained proper Court also amount of defer- applied agency’s interpretation
ence to be of relevant statutes regulations: and rules and agency subject an
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Following hearing, the Commissioner held that the AWP statute applied agree plain to Blue Cross’s PPO network. We and unambiguous language together, statutes, of the relevant when read comports with the Commissioner’s decision. interpretations
“In all statutes, the courts shall look dili gently Assembly[.]” (Citation for the intention of the General and punctuation omitted.) Moore-McKinney, App. Moore v. 703, 297 Ga. (1) (678 152) (2009). language 706 SE2d ‘When the of a statute is plain unambiguous leading and not result, to an absurd it legislative evidences the intent which is not to be contravened.” Ga. Dept. Transp. (499 321) (1998). Evans, 400, v. 269 Ga. 401 SE2d give meaning We also must endeavor “to each of the statute language surplusage” avoid constructions that make some mere meaningless. (Citation omitted.) Cook, J. Weaver, Kinson Inc. v. 252 App. (1) (556 831) (2001). Footstar, Ga. 870 SE2d See Inc. v. Liberty (637 692) (2006). Co., Mut. Ins. SE2d Furthermore,
[a] statute must be in construed relation to other statutes of part, relating which it is a and all statutes to the same subject-matter, briefly pari materia,” called “in statutes together, possible, construed and harmonized wherever so legislative give as to ascertain the intendment and effect thereto. Pope, omitted.) City punctuation (Citations Buchanan v. Finally, 53) (1996). (1) (476
Ga. provides: particular relating kind of to a this title
Provisions of particular type particular of insurer or to a to a insurance or gen- provisions relating prevail to insurance over matter general. eral or to insurers Commissioner, admits that it “is and noted
As *6 Department by founding Insurance] [of has been licensed since its Chapter corporation’ 20 of the Insurance under a ‘health care following: plain reading shows the ofthe relevant statutes Code.”Our Chapter Code, and of 20 of the Insurance statute is a AWP corporations. expressly applies 33-20-16. § health care OCGA it corporations one or more are authorized to administer Health care (2); plans.” 33-20-4; A 33-20-5. health OCGA§§ 33-20-3 “health care plan arrangement plan under which health is defined as “a or care expense health care at the of a services are or be rendered... care (Emphasis periodical payments. .. .” of in consideration plain (3). supplied.) under the word- 33-20-3 It follows that § OCGA ing Chapter 20, to Blue Cross and its of question operated plans. the PPO Thе next is whether health care something separate plans of those Blue Cross constitutes one governed is not the AWP statute. types
Chapter plans, along several other 20 health care with specifically the Insurance defined “insurers” established “health under the Preferred Provider insurer[s]” as authorized care Arrangements (PPAAct) Chapter 30, Article 2. OCGA Act found specified (3).5 act, Under that health care insurer is § 33-30-22 preferred provider “arrangements,” authorized to enter into providers: (a), simply contracts with § 33-30-23 which are defined as arrangement” provider “Preferred means a contract between preferred and a or on behalf of the health care insurer odd, plan equated Although referring health as an insurer sounds the term is to a care frequently policies quite in the Insurance Code. For with an insurer or issuer of insurance “Hospital nonprofit example, Chapter “insurer” аnd adds that service 1 of the Code defines associations, plans, corporations, nonprofit corporations, burial health care medical service meaning (Emphasis organizations are within the of this title.” health maintenance insurers (a) (6); (4). (b) (2); (4); supplied.) also 33-9-3 33-20B-2 33-24-21.1 33-1-2 See OCGA§§ OCGA§ 33-24-28.3; (e) (1); (e) (1); (a) (3); (d); (d); 33-24-29.1 33-24-21.2 33-24-28.1 33-24-28.2 (c); (c); (e); (a), (c); (e); and others. 33-29-3.3 33-30-4.1 33-30-4.2 33-30-4.3 33-29-3.1 33-29-3.2
provider complies requirements with all the of this article. (7). “preferred provider” simply Likewise, §
OCGA 33-30-22 is “provider group providers provide who have contracted to specified (6). Finally, covered services.” OCGA 33-30-22 a “health plan” “policy agree- benefit under the PPA Act is the or subscriber policyholder ment between the . . . and the health care insurer. . . .” Thus, OCGA 33-30-22 Act, insurers, under the PPA health care including plans operated by corporations health care health care governed by Chapter preferred provider arrange- 20, can enter into providers plans, policies ments with i.e., enter into health benefit agreements, people desiring type plan. or subscriber It necessarily corporation, Cross, follows that Blue a health care authorized to administer a health care that is in fact a provider arrangement, relationship per- and that the with covered plan.”6 sons is the associated “health benefit nothing suggest provi- Next, there is 20 to that its including preferred provider sions, the AWP do not arrangements operated by Chapter corporations. 20 health care We interpretation also defer to the Commissioner’s of the AWP statute: language employed managed therein is consistent with plans, such as Blue Cross’s PPO. In the words of the Commissioner: *7 provider” “participating
[T]he [AWP]statute references and approved,” concepts “classes which are terms and that are at managed plan, the heart of a care such as those described seq. §[ ] OCGA 33-30-20 et This is no coincidence. [Blue long express authority HCC, Cross], as an has had the to providers payment create different classes of and different participating nonparticipating levels for and facilities. See OCGA§ 33-20-13. plans);
by the providers provider organization Code define the “preferred provider organization.” the PPA Act does not establish an 33-24-59.15 33-24-59.3 33-24-56.1 subject administered To be more 33-21-2 or a (a); (a) (1); provision (a) (3); “plan” (health 33-24-59.6 term, although Commissioner. See OCGA 33-8-1. 33-24-56.2 by Chapter clear, 33-24-72 for the covered is used elsewhere in the Insurance of the Code. maintenance the PPA Act (b) (1); (a) (2); (a) (3); it is 20 health care 33-24-59.7 See, e.g., The term is not even used in the PPA Act. In other entity, i.e., 33-30A-5 persons organizations). frequently 33-24-56.4 neither defines nor establishes OCGA 33-9-3 that a “health care (c) (1) (A); (3); an corporation, may provide. used to describe insurer, (b) (2); §§ Rather, Compare 33-24-59.9 33-24-57.1 that must be licensed and (6.1) (A); it is an (b) (1), (2); but nowhere does the Insurance insurer,” one “arrangement” 33-46-2 (c) (1); (a) (2); §§ 33-20A-9.1 the kinds of insurers such 33-20-8 something The term 33-24-59.12 33-24-58.2 aas health care with certain (health (d) (2) (C); regulated preferred called a (a) (2); (b) (5); words, care caveat, Chap- Moreover, provides, express PPA Act without all other comply 2 health care insurers must ter Article the Insurance Code: provisions of applicable be defined in this article shall Health care insurers other comply be with all subject required to and shall regulations this title and rules and provisions of applicable to this title. promulgated pursuant meaning of this Code plain unambiguous and 33-30-26.7
OCGA§ 20 allows that the AWP statute Chapter when read with section corporations, including pre- care their 20 health obviously conclusion would encom- provider arrangements. ferred This i.e., its PPO. preferred provider arrangement, Blue Cross and its pass remains is the idea that of the AWP stаtute to What inconsistent with preferred provider arrangements fundamentally arrangements Specifi- the nature of such as defined the PPA Act. incon- cally, appellees argue that OCGA 33-30-25 reveals section, sistency. expressly permits But that Code which insurers lim- operating preferred provider arrangements place reasonable the number preferred providers, plainly its on or classes of only upon approval that insurers do so unambiguously provides may the Insurance Commissioner: Subject approval of the Commissioner under such procedures may develop, as he health care insurers place reasonable limits on the number or classes of providers satisfy the standards set forth the health insurer, provided against that there be no discrimination race, color, the basis national providers religion, origin, on sex, status, age, corporate providеd, or marital or fur- ther, providers that all health care within defined qualified service area who are licensed and to render preferred provider arrangement services covered who the standards set forth the health care satisfy opportunity be and to given insurer shall provider. a preferred become *8 7 express in The lack of caveats this Insurance Code section stands contrast to OCGA (a), incorporation Chapter applicable a similar statute found in to health § caveats, organizations, emphasized
maintenance in which there are two infra. provision § OCGA 33-30-25. This can be construed in a manner duty- consistent and harmonious with AWP as we are Co., bound to do. Ramos-Silva v. State Farm Mut. Ins. (686 345) (2009).
699, 702 Health care insurers who are Chapter plans/corporations administering preferred 20 health care provider arrangements subject statute AWP unless and they advantage until § take of the terms of OCGA 33-30-25 seeking approval of the Insurance Commissioner for reasonable proffered providers. limits on the number or classes of Under approved portion limitations, such the final OCGA 33-30-25 though approved kicks in: even the Insurance Commissioner has a providers, providers limitation on the number of all health care meeting statutorily given opportu- defined criteria “shall be nity preferred provider,” they and to become a cannot be against specified improper discriminated for the reasons. Although strongly argues that an insurer cannot operate limiting a PPO without the number or classes of providers, plain language Chapter actually allows an just Nothing requires insurer to do implement that. in the PPA Act an insurer to appear such limits. And it would that an insurer could begin by offering plan a without such limits and later decide to seek approval pursuant thе Commissioner’s for reasonable limitations approval 33-30-25; or it could seek the Commissioner’s of a plan approval pre- with such limitations when it seeks initial of a provider arrangement. ferred Here, it is not clear from the record how operates regard, prior Blue whether, Cross its PPO in this nor precipitated litigation, prohibited provider events that this it ever joining from its network. agree conclusion, we with the Insurance Commissioner’s
interpretation of the relevant statutes and his conclusion that corporation operating Cross, as a 20 health care a health plan preferred provider arrangement is, fact, autho- by Chapter approval rized Article must seek of limits on the preferred providers procedures developed number or classes of under require- the Insurance Commissioner in order to deviate from the Therefore, ments of the AWP statutе. we reverse the uphold ruling nothing and statutory the Commissioner’s that there is in the prohibiting application
scheme of the AWP statute to the PPO offered Blue Cross. (b) By The HMO Network BC Healthcare. The Commis- Offered applied
sioner determined the to the HMO network *9 though by Healthcare is not a even BC BC Healthcare offered corporation. Chapter First, the rea- Commissioner 20 health care (a), any provision pursuant in Title 33 § 33-21-28 soned that to OCGA applied provisions Chapter 21 the of that did not conflict with Second, conflict. the Commissioner HMOs; and he found no such capitalized organized that because BC Healthcare was concluded subject itself, Cross, it to the same statutes as was separate including regardless statute, it of whether was the AWP prior for-profit entity. Third, the Commissioner viewed this Court’s controlling apply ultimately I its decision to decision in Northeast as aspects find of the the statute to the HMO network. We AWP legally anаlysis to be flawed. Commissioner’s principally by Chapter (i) governed 21 of the Insur- HMOs are seq. important An distinction with § ance Code. See OCGA 33-21-1 et analysis regarding preferred provider arrangements is the above provisions express provision Chapter 21, that, other of the an of applicable are to HMOs such as AWP only they only “[ejxcept provided by law” and if are “not as otherwise [Chapter 21]”: in conflict with provisions
Except provided by law, all of this as otherwise chapter apply shall title which are not conflict with this persons organizations and all other health maintenance subject chapter, specifically, requirements to this 33-20A-7, 33-20A-6, and restrictions of Code Sections apply 33-20A-8, and 33-20A-9.1 shall to health maintenance subject chapter. organizations persons other to this and all (a).8 pointed provision above, As out the similar of § OCGA Act, 33-30-26, § the PPA OCGA contains no such caveаt.9 application plain reading A statutes shows that relevant network offered BC Healthcare is AWP statute HMO prohibited by inapplicable law because the AWP statute is otherwise for-profit corporations, Healthcare,10 BC that are not such as statutorily “surviving corporations.” Specifically, defined tion Act of that ments (I.1), (J); [8] require Another It is 33-20-8; undisputed many certificates of §§ important 33-20A-6; 33-20A-7; 33-20A-8; OCGA§ types 33-21-2. Preferred that BC Healthcare of insurers 33-20A-1 authority distinction et from the Insurance Commissioner. See OCGA 33-8-1 provider arrangements is that HMOs and health care seq. offer. is and and 33-20A-9.1 always has been a are simply corporations for-profit corporation. of the Patient Protec contractual §§ are entities arrange (1) provides provisions “in must be accor- chapter,” Chapter i.e., dance with this 20 of Insurance Code. See expressly provisions OCGA 33-20-16. states that its govern any corрoration organized “shall not to nor which is contemplates profit any pecuniary gain to its shareholders “surviving corporation.” members,” unless always OCGA 33-20-31. Because BC Healthcare has been a for- profit entity, “surviving corporation”: we turn to the definition of
“Surviving corporation” corpora- means a health care tion which is:
(A) surviving corporation merger The in a which includes corporations; one or more health care (B) corporation A health care which has amended its incorporation corporation governed by articles of Chapter to become a “Georgia Corporation
2 of Title the Business Code”; or
(C) subsidiary corporation of a in described sub- paragraph (A) (B) paragraph. of this (Emphasis supplied.) (12).11 plain Thus, § OCGA 33-20-3 the lan- guage qualify “surviving corporation,” corpora- shows that to as a a corporation”; satisfy tion must first be a “health care thеn it must also (A)-(C). one of the three conditions set forth in subsections corporation” A “health care is defined as “a estab- provisions [Chapter lished in accordance with the 20] of to administer plans.” undisputed one or more health care § OCGA 33-20-3 It is Chapter that BC Healthcare is not and has never been a 20 health corporation; for-profit entity care it ais licensed as a health mainte- organization. Accordingly, surviving nance BC Healthcare is not a corporation, plain language (a) and the § of OCGA 33-21-28 bars the of the AWP statute to the HMO network offered BC prohibited by Healthcare because it is otherwise law. if Even we were requirement surviving corpo- to read out of the definition the that a corporation, argument ration must be a health care the that BC to use this fact to alter the construction of the is clear and does not lead to absurd or not be used to other amendments conducted employed.” (Citation Comm., Northeast asserts that the as support of its efforts to convert to a Chapter a construction that adds punctuation omitted.) (176 SE 20 of the Insurance Code as a result of legislature 1) (1934). impracticable for-profit corporation enacted the statute. Standard Oil Co. consequences, takes from the But “surviving corporation” provision “[w]here of in the Kentucky the significance lobbying by legislative history may 1990s; language v. State Revenue and it of the words of a statute Blue Cross attempts (C) corporation” “surviving under subsection of Healthcare is a subsidiary longer is no because BC Healthcare also fails definition Blue Cross. meaning clear, Insurance of the statute Because the applies to BC that the AWP conclusion Commissioner’s clearly erroneous. was Healthcare problem, Perhaps get
(ii) the Commissioner around this organized created, BC Healthcare was that because concluded fact,12 capitalized it Cross, as a matter of was which he found including subject itself, Blue Cross the same statutes as and is legal for this no basis But the Commissioner offered AWP statute. provisions Chapters citing 20 and 21 of than conclusion other question, directly and there answer the Code that do not Similarly, Northeast owe no deference to that determination. fore we corporation subject simple argues fact that a health (like, may operate through an affiliate13 an HMO the AWP statute Healthcare), alleges, operates BC means it agree subject But, as well. we affiliate is superior provides legal nothing basis separate legal ignoring identities of Blue Cross and BC Health the the (a).14 purpose applying sum, care for applies to Health and to what extent the AWP statute BC whether (a). specifically care is answered OCGA 33-21-28 (iii) Finally, by concluding that our the Commissioner erred question I of whether the AWP decision Northeast controls *11 purport I, did not to BC Healthcare. In Northeast we statute underlying rather, action; to address the substantive merits of we — simply pursuant that, the admin- § concluded to OCGA 33-20-30 provision15 required to exhaust istrative exhaustion was —Northeast 12 2, supra. See note 13 provides: OCGA§ any Notwithstanding other law which be inconsistent with this Code section, insurer, nonprofit corporation, nonprofit hospital a medical an a service may directly corporation, corporation in this state service or a health care licensed subsidiary organize operate through health maintenance or affiliate and a or organization. separate legal rely upon any principles ignoring law for Northeast does not common Healthcare, corporаte ego piercing veil and such as an alter identities of Blue Cross BC theory liability. of provides: OCGA 33-20-30 § Any dispute arising purview chapter reference to the within the of this days supervision regulation within 30 after and health care shall aggrieved person dispute be submitted to the Commissioner such arises thereto, nothing provided in this Code section shall his decision with reference rights require the to determine the contractual between authorize or Commissioner submitting dispute
its administrative remedies first with Blue I, Cross BC Healthcare to the Commissioner. Northeast 297 Ga. App. at 30-32 appears
The Commissioner to have concluded that in Northeast implicitly I this Court determined that BC Healthcare was a “sur- viving corporation” under § OCGA 33-20-31because otherwise OCGA (a) application
§ 33-21-28 would have barred § of OCGA 33-20-30 in this case. But “surviving corporations,” I did Northeast not discuss § OCGA 33-20-31 or “[q]uestions merely lurk in the brought upon, record, neither to the attention court nor ruled having are not to be considered as been so decided as to constitute precedents.” (Citations punctuation omitted.) City Jackson v. College (1) (496 777) (1998). Park, provi-
Furthermore, 33-20-30, § unlike the substantive merely jurisdictional sions of 20 such as the AWP provision addressing disputes how to handle that arise over the statutory imposed by Chapter including framework whether the disputes fall into that framework. It follows that the Commissioner assuming any bearing erred in application that OCGA 33-20-30 had on the parties’ dispute
of OCGA 33-20-31 to the in this case. correctly above, For the reasons set forth the Commissioner application concluded that the Insurance Code does not bar of the plan. by applying AWP statute to Blue Cross’s PPO But it erred AWP statute to BC Healthcare’s HMO network. We therefore affirm part superior and reverse in the decision of the court and remand this case to that court with instruction tо remand the case proceedings, necessary, the Insurance Commissioner for further if opinion. consistent with this
Case No. A11A1872 companion appeal, argues 2. In this the Commissioner likewise by failing appropriately court erred defer to his interpretation by concluding ofthe Insurance Code and that the AWP did not to the relevant PPO or HMO network. The arguments Commissioner raises the same essential as Northeast. agree For the reasons set A11A1871, forth in Case No. we correctly Commissioner concluded that the Insurance Code does not plan. bar of the AWP statute to Blue Cross’s PPO But it *12 parties corporations. proper the any in hearing, interested such After notice and pursuant chapter decisions and order of the Commissioner made to this shall binding persons
be provided by on the involved unless set aside on review as this Code section. by applying network. HMO to BC Healthcare’s the AWPstаtute erred part part of the in the decision reverse affirm in and We therefore superior with instruction this case to that court court and remand proceed- further Insurance Commissioner remand the case to the ings, opinion. necessary, with this if consistent part, part Judgments in and cases in and reversed affirmed Doyle, Ellington, Blackwell, J., J.,P. and C. with direction. remanded part Phipps, J., Miller, J., Barnes, J., concur in J., P. and concur. P. part. dissent in dissenting Judge, concurring part Presiding in in BARNES, part. superior part majority and holds that reverses the court Georgia, “any willing and Blue Shield of Inc. must admit Blue Cross plan utilizing preferred provider arrange- provider” into its health (“PPO plan”). the Preferred Provider ment But OCGA 33-30-25 of clearly permits Arrangements health like Blue Act care insurers place number classes of their reasonable limits on the Cross Georgia’s preferred providers. Furthermore, of Insur- Commissioner require not to health has exercised his discretion and chosen ance they preapproval of the limits wish care insurers to seek and obtain preferred providers. impose on the number or classes of their to Under these Georgia’sAny Willing (“AWP”) circumstances, Provider inapplicable Cross, as the is to the PPO offered statute superior properly should concluded. Because the court respectfully issue, affirmed the PPO I dissent be on companion appeals.16 majority’s decision in these reviewing agency interpretations courts defer to While they charged administering, of the statutes deference with applies only agency interpretation as far as the agencies the statute. Administrative consistent with not by interpretation, change a statute or establish different that are established standards within a statute not body. judicial legislative pendently inde- . . . The branch determines correctly аgency’s interpretation
whether language comports plain reflects the of the statute and legislative intent. holds that the AWP statute health maintenance Georgia, Inc. Division 2 to the extent Specifically, I dissent organization to Division 1 to Blue Cross’s PPO operated by majority (a) holds that and to Division plan. I concur Blue Shield Healthcare Plan of to the extent statute is fully in Division 1 inapplicable majority (b) *13 punctuation omitted.) Palmyra Hosp.
(Citations and Park v. Phoebe App. (1) (714 71) (2011). Center, 487, Sumter Med. 310 491 SE2d Ga. (670 (c); Powell, OCGA§ See 62) (2008). 33-2-28 Handel v. SE2d Ga. interpreting “apply statute, When this court must the funda- statutory require mental rules of statute meaning, surplusage.” (Punctuation construction that us to construe the according give plain ordinary terms, its words their and language
and to avoid a construction that makes some mere omitted.) and footnote Ga. Transmission Corp. Worley, (720 305) (2011). v. 312 Ga. SE2d prevail Moreover, conflict, when two statutes “later statutes over sрecific govern general statutes, earlier and statutes over more (Citations omitted.) R, Inc., statutes.” 866-867 Glinton v. And (524 481) (1999). In the context of conflicts within the “[provisions relating particular . . . to a kind of particular type particular insurance or to a prevail of insurer or to a matter provisions relating general over to insurance in or to insurers general.” OCGA§ 33-1-5. parties’ dispute statutory interpretation At the center ofthe over provides: 33-20-16, is the OCGA which Every every surgery, medicine, doctor of doctor of dental every podiatrist, every provider health care within a approved by appro- class priately the health care who is practice reputable good
licensed to iswho and in standing right participating shall have the to become a physician approved provider health care for medical or surgical may care, both, be, case under such terms imposed participating physi- or conditions as are on other approved providers approved cians or health care within such class under similar circumstances in accordance with this chapter. parties disagree
The over whether the AWP statute to Blue plan. concluding Cross’s PPO court was correct in apply. the AWP statute does not Georgia plans governed principally by law,
Under PPO Arrangements seq. (the Preferred Act, Provider OCGA§ 33-30-20 et Act”). enacting “Preferred Provider When Act, Preferred Provider Assembly encourage the General announced its intent “to health care preserving quality by allowing cost containment while care insurers to enter into of care health
preferred provider arrangements.” OCGA Assembly expressed words, § 33-30-21. In other the General intention that health care insurers be allowed to contract with their specified “preferred” providers services, than to offer covered rather provider, required “every” qualified as would be be forced to admit under the AWP statute. spelled Assembly is further out
The intent of the General 33-30-25, “Reasonable limits on number or classes entitled preferred providers,” which states: Subject approval ofthe Commissioner under such develop, may procedures as he health care insurers place reasonable limits on the number or classes of providers satisfy the standards set forth the health provided against insurer, that there be no discrimination providers religion, origin, race, color, on the basis of national age, corporate provided, sex, status, or marital or fur- providers ther, all health care within defined *14 qualified service area who are licensed and to render the preferred provider arrangement services covered the satisfy who the stаndards set forth the health care given opportunity insurer shall be the to and to preferred provider. become a
There is a clear conflict between the AWP statute and OCGA requires “every” quali- § 33-30-25: the AWP statute the admission of provider, permits fied § while OCGA 33-30-25 health care insurers offering plans impose PPO to reasonable limits on the number or preferred providers. Furthermore, classes of their the statute qualified providers “right” participate, affords with the to while only “opportunity” participate § OCGA 33-30-25 affords an to in a plan. express authority given sum, PPO In to health care insurers providers in participating § OCGA 33-30-25 to limit the number or classes of plans in their PPO cannot be reconciled with the notion “any willing provider” right participate. that a has light
In
ofthis clear conflict between the AWPstatute and OCGA
precedence
33-30-25,
§
the terms of
§
OCGA 33-30-25 must take
in
preferred provider arrangements.
given
the сontext of
First,
specific
addressing
§
OCGA 33-30-25 is the more
restrictions
placed
preferred providers
that can be
on the number or classes of
in
plans,
prevail
general
PPO
its terms must
over those of the more
§ 33-1-5; Glinton,
AWP statute. See OCGA
Second,
The 33-30-25, should OCGA§ rather than under which AWP by Chapter corpora- applied plans health care offered be to PPO majority upon reaching conclusion, relies the initial In this tions. — approval phrase “Subject to the of the Com- § of OCGA 33-30-25 — procedures may develop” argue under as he missioner an insurer cannot ers such preferred provid- limit the number or classes preapproval. until it first seeks and obtains the Commissioner’s majority plan then reasons that the AWPstatute to a PPO corporation (such Cross) by Chapter offered a 20 health care as corporation preapproval obtains from the unless health place limit the number or of its Commissioner to on classes preferred providers pursuant words, § OCGA 33-30-25. other majority’s statutory view, the AWP statute serves as the default by Chapter framework for a PPO offered 20 health care corporation gives preapproval unless and until the Commissioner his specific impose limitations seeks under § OCGA 33-30-25. disagree majority requires
I with the because OCGA 33-30-25 preapproval health care insurers to seek and obtain missioner for the from the Com- specific they impose limitations wish to on their preferred provider arrangements only if the Commissioner exercises preapproval necessary. his discretion and decides that phrase The initiаl placed of OCGA 33-30-25 states that the reasonable limits health care insurers on the number or classes of their providers “[s]ubject approval of the Commissioner under procedures may develop.” (Emphasis supplied.) such he “may” permissiveness, § 33-30-25. The word is a term of develop preapproval authorizes the Commissioner his discretion to procedures require generally McCorquo- but does not him to do so. See *15 (3) (211 577) State, dale Hence, v. SE2d the deciding agency Commissioner is afforded discretion in whether preapproval specific placed by of the limitations health care insurers preferred providers on the number or classes of their should be required. undisputed promulgated
It is that the Commissioner has not procedures, pursuant requiring OCGA§ 33-30-25, administrative preapproval specific health care insurers to seek and obtain of the they place limitations preferred providers. wish to on the number or classes of their Commissioner, therefore, has exercised his require preapproval. Accordingly, discretion and chosen not to health required preapproval care insurers are not to seek and obtain from the Commissioner because the Commissioner has chosen not to require precondition imposing specific it as a to an insurer limitations Hence, the preferred providers. the number or classes of on like corporations Chapter 20 health care majority’s argument the of the Commis- preapproval must seek and obtain statute to their AWP sioner avoid misplaced. provider arrangements 33-30-25, with OCGA sum, directly conflicts AWP health and other corporations 20 health care permits the number or classes of reasonable limits on impose
care insurers And “any willing provider.” rather than preferred providers their the Commissioner the discretion while OCGA 33-30-25 affords limits, not the Commissioner has chosen require preapproval of those superior properly require preapproval. Consequently, statute did not to the PPO offered concluded conclu- majority opposite Blue Cross. Because the arrives at sion, respectfully I dissent. Presiding Judge Phipps Judge
I am authorized to state that join Miller in this dissent. Decided March April
Reconsideration denied III, Eames, & James Boswell M. King Spalding, W. Jessica Varner, D. Chilton appellant (case A11A1871). for no. Olens, General, Burns,
Samuel S. Attorney Amy M. Assistant General, Attorney appellant (case A11A1872). no.
McKenna, Washburn, & Long Aldridge, Jeffrey James A. R. Baxter, Weissman, Nowack, Wilco, Blumenthal, Nelson, Curry & Ned Mullins, Riley Scarborough, Jeffrey Mapen, & L. for appellees. Moseley,
Lawson & Matthew I. Holland & Dowling, Knight, Whitworth, Highsmith, Robert S. Elizabeth C. amici curiae. A11A1916. BANK THE OF OZARKS v. DKK DEVELOPMENT
COMPANY.
(726 608)
BARNES, Presiding Judge.
DKK Development Company petitioned court for a declaratory judgment against Oglethorpe Company, Bank Holding Bank, Inc. (the “Holding Company”) Oglethorpe seeking to have $930,000 against DKK’s debt to the bank set off DKK’s million loan $2 After a Holding Company. hearing, granted trial court DKK declaratory judgment, finding equitable was entitled to an