RIVER PARK HOSPITAL, INC. v. BLUECROSS BLUESHIELD OF TENNESSEE, INC., and VOLUNTEER STATE HEALTH PLAN, INC., d/b/a BLUECARE
No. M2001-00288-COA-R3-CV
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
Filed October 11, 2002
November 6, 2001 Session; An Appeal from the Chancery Court for Warren County, No. 7266, Charles D. Haston, Chancellor
This case involves a dispute over rates paid to a TennCare health care provider. The plaintiff hospital had been a participating provider for the defendant TennCare managed care organization (“MCO”) for several years, being paid an agreed contractual rate for services provided to the MCO’s enrollees. When the parties’ contract expired, it was not renewed. After expiration of the contract, the hospital continued to provide emergency services to the MCO’s enrollees, as it was required to do under federal law. For those emergency services, the hospital billed the MCO at its full, standard rates. The MCO refused to pay the hospital’s standard rates, and instead paid the hospital the same rate it had paid under the parties’ expired contract. This was the same rate the MCO paid hospitals that were participating providers. The hospital filed this lawsuit against the MCO, seeking to recover its full, standard rates for the emergency services provided to the MCO’s enrollees after expiration of the parties’ contract. After hearing proof on liability, but not damages, the trial court initially denied recovery on all grounds. The hospital moved for reconsideration and to reopen the proof. The trial court granted the motion and ultimately determined that the MCO had been unjustly enriched by the hospital’s provision of services to its enrollees. Both parties appealed. We affirm, finding a contract implied in law, and remand to the trial court to determine a reasonable rate for services provided by the hospital and, based on this, for a determination of damages.
HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.
Steven A. Riley and Taylor A. Cates, Nashville, Tennessee, for the appellee, River Park Hospital, Inc.
William E. Young and William B. Hubbard, Nashville, Tennessee, for amicus curie, Tennessee Hospital Association.
Andrew Yarnell Beatty, Nashville, Tennessee, for amicus curie, Tennessee Medical Association.
OPINION
Plaintiff/Appellee River Park Hospital, Inc. (“River Park”), is a Tennessee corporation that operates a 127-bed hospital in McMinnville, Tennessee. Defendant/Appellant BlueCross BlueShield of Tennessee, Inc. (“BlueCross”), is a Tennessee not-for-profit corporation with its principal place of business in Chattanooga. Defendant/Appellant Volunteer State Health Plan, Inc. (“Volunteer State”), a Tennessee-licensed Health Maintenance Organization (“HMO”), is a subsidiary of BlueCross. Through Volunteer State, BlueCross participates as a managed care organization (“MCO”) in TennCare, under the trade name “BlueCare.”1
TennCare is Tennessee’s Medicaid program. Medicaid was established by the federal government in 1965 to provide health coverage for low-income individuals, as opposed to the Medicare program designed to provide health coverage to the elderly.2 State ex rel. Pope v. Xantus Healthplan of Tennessee, Inc., No. M2000-00120-COA-R10-CV, 2000 Tenn. App. LEXIS 319, at *3 (Tenn. Ct. App. May 17, 2000). Under traditional “fee-for-service” Medicaid programs, the State pays health care providers directly for services administered to eligible individuals. Reimbursement rates for services provided to Medicaid enrollees are established by the State. The individual Medicaid enrollee is free to utilize the physician, hospital, or other health care provider of his choice. Likewise, the health care provider is free to accept or decline to treat Medicaid patients.
TennCare is different from the traditional fee-for-service Medicaid program, in that it is a managed care Medicaid system.3 Under TennCare, the State of Tennessee enters into Contractor Risk Agreements (“risk agreements”) with private MCOs. Id. at *7. Under the risk agreements, the MCO receives a monthly payment from the State known as a “capitation payment” for each eligible
individual enrolled with that MCO (“enrollee”). In return for this capitation payment, the MCO must arrange for the provision of medically necessary services to its enrollee. Id. at *7-*8. In order to do this, each MCO develops a “network” of health care providers and negotiates with the health care providers to accept discounted rates for the services provided. Id. at *8. If the MCO pays less in provider fees than the total amount received in capitation payments, it earns a profit. If the amount spent on care exceeds the capitation payments, the MCO bears the loss. In this way, the MCOs, not the State, bear the financial risk involved in the administration of health care services to persons eligible for TennCare. Id.
Each eligible TennCare recipient enrolls with the MCO of his choice.4 The MCO assigns each enrollee in its plan to a primary care physician, also referred to as the “PCP” or “gatekeeper.” The MCO pays the PCP a per capita rate to perform his “gatekeeping” function, to ensure that each enrollee receives only medically necessary health care services and to refer the enrollee to other health care providers for the medically necessary health care services that the PCP could not provide, including hospitalization. If the MCO enrollee has an emergency situation, he may go directly to a hospital emergency room without first getting approval from his PCP. Under the federal Emergency Medical Treatment and Active Labor Act,
BlueCare entered into a risk agreement with the State of Tennessee to become a TennCare MCO.5 When the TennCare program began in 1994, BlueCare contracted with River Park for River Park to become a participating provider in the BlueCare network. The most recent version of BlueCare’s contract with River Park, known as the “BlueCare Attachment” to the River Park Institution Agreement, was effective on October 1, 1996. The parties operated under the BlueCare Attachment from October 1, 1996, through December 31, 1999.
During the course of River Park’s contractual relationship with BlueCare, River Park became dissatisfied with the rate of reimbursement paid by BlueCare. River Park was also frustrated with the amount of time and money required to follow BlueCare’s elaborate “utilization management procedures” or “utilization review guidelines.” BlueCare required compliance with these procedures in order to obtain payment for services rendered. In 1999, River Park lost $2.3 million on BlueCare enrollees. Consequently, by letter dated July 26, 1999, River Park gave notice to BlueCare that River Park would terminate its BlueCare Attachment effective January 1, 2000. River Park sought to renegotiate its contract with BlueCare to obtain a higher rate of reimbursement and simpler
reimbursement procedures. Through a series of meetings and conference calls, the parties’ negotiations continued from October 1999 through March 2000.
Ultimately, the parties could agree to continue under the former contract only with respect to obstetrical services. Otherwise, the parties could not reach an agreement. Therefore, River Park became an out-of-network provider as of January 1, 2000. During the negotiations, BlueCare told River Park several times that if the parties could not agree on a new contract, BlueCare would pay River Park only the rate of reimbursement it had paid under the old contract, because BlueCare maintains a policy of paying out-of-network hospitals the same rate that it pays in-network hospitals. River Park refused to be bound by the terms of the old contract after January 1, 2000. River Park repeatedly insisted that if the parties could not reach a new agreement, River Park would charge BlueCare the hospital’s reasonable, standard rates for services provided to BlueCare enrollees by River Park after that date. River Park told BlueCare that its acceptance of any payment by BlueCare “does not waive our right to full and complete payment required by law.”
On March 2, 2000, the parties engaged in their last meaningful conference call in an attempt to settle their dispute. At that time, River Park told BlueCare that it would accept BlueCare’s regular in-network rates for in-patient services, but said that it would require 48% of the full, standard charges for out-patient services provided during January and February 2000. For the period of March 1 through June 30, 2000, River Park said it would agree to accept BlueCare’s regular in-network rate for all services, provided BlueCare would agree to pay River Park for all claims
On March 8, 2000, River Park filed this lawsuit. In its original complaint, River Park sought (1) a declaratory judgment that, pursuant to
On July 7, 2000, River Park was permitted to amend its complaint to add an additional theory of recovery based on the Tennessee Consumer Protection Act.6 River Park also sought attorney’s fees under
On July 27, 2000, the court entered an order bifurcating the trial into separate liability and damages phases. The liability phase of the trial took place on July 31 and August 1, 2000. During that phase, the parties presented the testimony of several witnesses regarding the business relationship between River Park and BlueCare, and regarding the system by which BlueCare paid River Park and other health care providers for services rendered to BlueCare patients. Terry Gunn, the CEO of River Park, testified two times during the hearing. He asserted that River Park had allowed its contract with BlueCare to expire because the hospital lost $2.3 million in caring for BlueCare patients in 1999. Gunn explained that this loss was caused by BlueCare’s low reimbursement rates and its burdensome utilization review procedures. Gunn said that River Park repeatedly told representatives of BlueCare
At the conclusion of the proof, on August 29, 2000, the trial court entered an order on the issue of liability. The trial court described the sequence of events after the negotiations between BlueCare and River Park had reached an impasse:
Blue Care informed its PCP’s to admit patients to other facilities. However, the PCP’s only had admitting privileges at Riverpark. The PCP’s called Blue Care on each of the [2]400 admissions in question and after showing a medical necessity, were authorized to admit to Riverpark, a now “non contract” provider. Riverpark had the right to refuse the admission of each patient, but chose to admit after informing Blue Care that it expected it’s [sic] full regular payment, and informing Blue Care that it could transfer the patient to a participating facility. Blue Care did not transfer nor did it agree to pay any rate other than the old contract rate. The patient was treated and Blue Care disallowed all 2400 claims, necessitating
Riverpark to rebill and appeal its decision to obtain any payment, even though the admission was pre-approved. Blue Care reevaluated the admissions and undertook to show that many were not medically necessary.
(Emphasis added). Thus, the trial court’s August 29 order was premised on its finding that River Park had the right to refuse to admit the patients at issue. The trial court denied River Park’s request for a declaratory judgment that BlueCare was required to notify its enrollees that its contract with River Park was terminated, finding that River Park lacked standing to seek a declaratory judgment under
The Court finds that while there is no contract, expressed or implied, the Court does take note of
Tenn Care Regulation 1200-13-1208 . Riverpark is now under no contract and because the parties have not agreed on any rate, nothing less than the provider contract applies. Blue Care, by preapproving the enrollee admission as medically necessary, should be estopped from using its constructual [sic] utilization guidelines to later disapprove payment after service has been rendered as there is no contract.
The trial court concluded that “Riverpark is entitled to be paid for the preapproved, medically necessary admissions and Blue Care’s arbitrary refusal to pay has caused Riverpark unnecessary expense and appeal. Riverpark’s request for damages
On September 6, 2000, BlueCare filed a motion for additional findings on its counterclaims, which it claimed were not addressed in the trial court’s August 29 order. On September 18, 2000, River Park filed a motion to set a trial date for the damages phase. Also on that date, River Park filed a motion for additional findings of fact and to modify the August 29, 2000 order, and River Park sought as well as to have the August 29 ruling certified as a final order so that the parties could appeal. In its motion for additional findings, River Park requested findings regarding the rate at which BlueCare must pay River Park for services rendered to persons who are deemed to be “emergencies” who, according to federal law, may not be refused by the hospital. Responding to BlueCare’s motion for additional findings, River Park asserted that BlueCare was not entitled to seek additional findings on their counterclaims, because those claims were nonmeritorious. BlueCare responded to River Park’s motions, stating that the original order had already addressed the issues presented by River Park, and that River Park had not presented any new facts or evidence that warranted reconsideration of the trial court’s initial conclusions. On September 29, 2000, River Park
filed an amended motion for additional findings, asking the trial court to reopen the proof regarding the provision of emergency services to BlueCare enrollees. BlueCare opposed that motion on the grounds that all of the proof on that issue had been available at the trial on the liability phase, and thus River Park had provided the trial court with no basis for reopening the proof. BlueCare also sought discretionary costs under
On November 27, 2000, the trial court held a hearing on all of the parties’ post-trial motions. The trial court granted River Park’s motion to reopen the proof and, at the hearing, allowed River Park to call two additional witnesses. River Park presented testimony from Dr. Otis Campbell, a local physician serving as a PCP for BlueCare. Dr. Campbell testified that all of his patients admitted to River Park after January 1, 2000, were emergencies, and that all other BlueCare enrollees admitted to River Park by other physicians since January 1, 2000, were also emergencies. River Park also presented additional testimony from Terry Gunn, the CEO of River Park, who had testified at the July 31 trial. Gunn testified that all of River Park’s admissions of BlueCare enrollees since January 1, 2000, were emergency admissions, and that River Park had directed all elective BlueCare patients to other facilities since that date.
On December 14, 2000, the trial court entered an order that superceded the August 29 order. As in the August 29 order, the trial court rejected River Park’s request for a declaratory judgment that BlueCare was required to notify enrollees, River Park’s assertion that BlueCare breached an express or implied contract, its claim of conversion, and its claims under the Tennessee Consumer Protection Act. The trial court, however, changed its ruling on River Park’s claim of unjust enrichment and held in favor of River Park. The trial court determined that, contrary to its initial findings in the August 29 order, River Park did not have the right to refuse the admission of each BlueCare patient. Rather, the trial court found that, for the 127 inpatient admissions at issue, “River Park had no choice but to provide these patients with hospital services” because
Between January 1, 2000 and June 30, 2000, there were 1799 visits by BlueCare enrollees to River Park’s emergency room. Since June 30, 2002, there have been many more. BlueCare has only paid River Park amounts calculated at BlueCare’s old contract rate for those visits and refused to pay River Park’s bills at is regular, customary rates as invoiced. By federal law River Park must provide these emergency services to any patient without regard to insurance until the patient is stabilized. BlueCare is legally obligated by its contract with the State to pay for emergency medical services provided to its enrollees. There was no agreement concerning the amount of payment for these emergency services.
Based on these new findings, the trial court held that BlueCare had been unjustly enriched by receiving services provided to its enrollees by River Park after January 1, 2000.8 BlueCare’s counterclaims based on disparagement and the Consumer Protection Act were rejected, and the trial court denied BlueCare’s motion for discretionary costs. The December 14 order was certified as final for purposes of appeal pursuant to
BlueCare first argues that the trial court erred in reopening the proof and in making additional findings of fact because all of the proof was available prior to the July 31 hearing on liability. BlueCare also claims that it was error to admit River Park’s post-trial evidence because it violated the personal knowledge, hearsay, and best evidence rules. BlueCare claims as well that the evidence should be excluded because River Park violated the discovery rules by failing to disclose information. On the trial court’s ruling that BlueCare was unjustly enriched by receiving River Park’s treatment of its enrollees, BlueCare maintains that even if BlueCare were enriched, such enrichment was not unjust. BlueCare also argues that the trial court erred in denying its counterclaims based on disparagement and the Consumer Protection Act. Finally, BlueCare asserts that the trial court erred in rejecting its claim for discretionary costs.
River Park appeals as well, arguing that the trial court erred in dismissing its breach of contract, conversion, and Consumer Protection Act claims. However, River Park asks this Court to affirm the trial court’s conclusion that BlueCare was unjustly enriched, its denial of BlueCare’s counterclaims, and its denial of BlueCare’s motion for discretionary costs. In their amicus briefs, the Tennessee Hospital Association and the Tennessee Medical Association join in the arguments made by River Park on the claim of unjust enrichment. The Tennessee Hospital Association argues that the rate of reimbursement for an out-of-network provider such as River Park is governed by the common
We review the trial court’s findings of fact de novo upon the record, accompanied by a presumption of correctness of those findings unless the preponderance of the evidence is otherwise.
At the outset, BlueCare argues at length that the trial court abused its discretion in reopening the proof to allow for the admission of additional evidence and in changing its decision based on that
evidence. BlueCare emphasizes that all of the additional evidence submitted by River Park was available at the time of the July 31 hearing, and argues that, under Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000), River Park has shown no justification for re-opening the proof. BlueCare has a valid point; however, assuming arguendo that the trial court erred in reopening the proof, any error in this regard would be harmless error. The additional testimony admitted in the November 27 hearing only reiterated the point argued by counsel in the July 31 hearing, namely, that River Park sought reimbursement only for services rendered in emergency cases, and established that the 127 inpatient cases listed in Exhibit 31 should be included in the category of emergency cases. River Park submitted substantial evidence at the July 31 hearing regarding the effects of EMTALA.10 Moreover, it is undisputed that River Park is obligated under EMTALA to render services to emergency patients without regard to insurance. Therefore, the trial court’s initial conclusion that River Park “had the right to refuse the admission of each patient” authorized by BlueCare was obviously wrong. Clearly, the trial court could correct its erroneous factual finding, and it could have done so without the benefit of additional evidence. The trial court indicated at the November 27 hearing that it was inclined to reconsider its earlier finding, commenting that it had “had second thoughts about the issue of unjust enrichment” prior to the rehearing.11
One of the trial court’s revised findings may have been based on the additional testimony, namely, that the 127 inpatient admissions listed in Exhibit 31 were emergency cases. This proof, however, is not determinative of the overall issue of whether River Park is entitled to receive additional compensation for providing emergency services to BlueCare enrollees. Rather, it is pertinent to the amount of additional compensation to which River Park is entitled, i.e., the damages. Thus, had the trial court not heard this testimony at the November 27 hearing, it could hear the evidence in the damages phase of the bifurcated proceedings.12 Under all of
Both parties argue issues related to their claims based on contract. River Park argues that the trial court erred in finding that the parties had no implied agreement that BlueCare would pay River Park its full standard rate for out-of-network emergency services provided to BlueCare enrollees. BlueCare maintains that the rate to be paid an out-of-network provider such as River Park is established by regulation, Rule 1200-13-12-.08, and that since this rule establishes the rate BlueCare paid, there was no unjust enrichment. We address first the regulation relied upon by BlueCare, and then discuss the existence of a contract.
BlueCare argues that it was authorized to pay River Park its in-network rates by
(1) In situations where a managed care organization authorizes a service rendered by a provider who is not under contract with the managed care organization, payment to the provider cannot be less than the amount that would have been paid to a provider under contract with the managed care organization for the same service. As a condition of payment, non-contract providers shall accept payment from managed care organizations as payment in full except for applicable deductibles, co-payments and special fees.
(2) Participation in the TennCare program will be limited to providers who:
(a) Accept, as payment in full, the amounts paid by the managed care organization, including enrollee cost-sharing, or the amounts paid in lieu of the managed care organization by a third party (Medicare, insurance, etc.) . . . .
River Park argues that the “shall accept” provision in the regulation is intended to be a prohibition on “balance billing,” the practice of the provider billing the enrollee for any amount charged by the provider but not paid by the MCO. River Park asserts that the regulation requires the provider to accept payment from the MCO “as payment in full” only as against
In support of its argument that the regulation relied upon by BlueCare is intended to prohibit balance billing, River Park notes that a Tennessee statute requires that TennCare provider contracts include a clause prohibiting billing the MCO enrollee for anything except “reasonable copayment and uncovered expenses.”
Considering the language in Indeed, BlueCare’s interpretation would be anomalous to the whole TennCare scheme, whereby the State has disavowed the task of setting provider rates but instead seeks to rely on market forces. In setting up TennCare, the State submitted to the federal government a waiver request, seeking to waive certain Medicaid requirements in order to establish the TennCare program. In the TennCare Waiver Application, the State asserts that TennCare will use “traditional market forces to assure acceptable levels of price, quantity and quality of service.” The Waiver Application states that “[t]he State will no longer be involved in setting the rates for individual providers.” It would be contrary to this avowed goal to interpret the regulation as involving the State in setting maximum provider rates. Moreover, BlueCare’s interpretation produces an inequitable result, giving BlueCare undue leverage in establishing reimbursement rates. BlueCare argues that the rate is set by “negotiation” and market leaving BlueCare’s network. On the whole, we conclude that Consequently, we next address the issues related to breach of contract and unjust enrichment. River Park argues that the circumstances warranted a finding of at least an implied agreement, if not an express agreement, that BlueCare would pay River Park its full standard rates for emergency health care services provided to BlueCare enrollees. BlueCare maintains that the trial court did not err in finding there was no agreement, express or implied, that BlueCare would pay River Park’s full standard rates, but argues that the trial court erred in finding unjust enrichment. BlueCare’s argument is based in part on the regulation discussed above; in addition, BlueCare asserts that it repeatedly “advised” and “informed” River Park that BlueCare would pay no more than its standard in-network rates, as set out in the BlueCare provider services manual, and that this practice is consistent with “industry custom” for MCOs in Tennessee. Generally, contracts can be either express, implied in fact, or implied in law. Express contracts and contracts implied in fact result from a meeting of the minds of the contracting parties; the parties mutually assent to the contract’s terms. See Whitmore v. Jones, No. 02A01-9901-CV-00002, 1999 Tenn. App. LEXIS 430, at *7-*8 (Tenn. Ct. App. July 2, 1999) (citing Johnson v. Central Nat’l Ins. Co. of Omaha, 356 S.W.2d 277, 281 (Tenn. Ct. App. 1962)). In order to be enforceable, such contracts must be sufficiently definite and must be based on consideration. Id. The primary difference between an express contract and a contract implied in fact is the manner in which the parties manifest their assent. 7 TENN. AM. JUR. 2D Contracts § 98 (1997). In an express contract, the parties assent to the terms of the contract by means of words, writings, or some other mode of expression. See Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 735 (Tenn. Ct. App. 1989). In a contract implied in fact, the conduct of the parties and the surrounding circumstances show mutual assent to the terms of the contract. See Angus v. City of Jackson, 968 S.W.2d 804, 808 (Tenn. Ct. App. 1997). In contrast, contracts implied in law “are created by law without the assent of the party bound, on the basis that they are dictated by reason and justice.” Id. The Tennessee Supreme Court has recognized that contracts implied in law are also discussed in terms of unjust enrichment, quasi contract, and quantum meruit: Actions brought upon theories of unjust enrichment, quasi contract, contracts implied in law, and quantum meruit are essentially the same. Courts frequently employ the various terminology interchangeably to describe that class of implied obligations where, on the basis of justice and equity, the law will impose a contractual relationship between the parties, regardless of their assent thereto. Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 154 (Tenn. 1966) (emphasis added); see also Whitehaven Cmty. Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn. 1998) (stating that “[u]njust enrichment is a quasi-contractual theory under which a court may impose a contractual obligation on the parties where one does not otherwise exist”). In order to establish a claim based on this type of contract, the plaintiff must show that (1) a benefit has been conferred upon the defendant; (2) the defendant appreciated the benefit; and (3) acceptance of the benefit under the circumstances would make it inequitable for the defendant to retain the benefit without paying the value of the benefit. Angus, 968 S.W.2d at 808 (quoting Paschall’s, 407 S.W.2d at 155). First, River Park argues that the trial court should have found that these parties had an express agreement, or at least an agreement implied in fact, for River Park to provide services to BlueCare enrollees at the hospital’s standard rates. River Park asserts that such a contract was formed each time BlueCare gave an authorization number to its PCP, authorizing treatment at River Park. River Park points out that EMTALA requires the hospital to treat emergency patients, and BlueCare’s contract with the State requires BlueCare to pay for those emergency services. See Contractor Risk Agreement ¶¶ 2-3.m.1, 2-3.w. River Park emphasizes that it told BlueCare on numerous occasions that it expected full payment for services rendered to BlueCare enrollees after January 1, 2000. Because BlueCare knew of this expectation, and because River Park never agreed to accept reduced rates, River Park claims that BlueCare either expressly or impliedly agreed to pay River Park its full, standard rates. As noted above, both express contracts and contracts implied in fact require mutual assent of the parties. See Jamestowne on Signal, Inc. v. First Fed. Sav. & Loan Ass’n, 807 S.W.2d 559, 564 (Tenn. Ct. App. 1995). In this case, the parties engaged in months of negotiations and attended several meetings in an attempt to agree on a mutually acceptable reimbursement rate for treatment provided after January 1, 2000. On occasion, River Park offered to accept discounted rates of reimbursement under certain conditions; in fact, River Park’s final offer included an agreement to accept BlueCare’s in-network rates if BlueCare would agree to waive its utilization management procedures. BlueCare, however, never agreed to any of River Park’s proposals. BlueCare repeatedly told River Park that it maintained a policy of not negotiating rates with individual hospitals, and that it intended to pay its own in-network rates for any services provided to BlueCare patients. The fact that BlueCare authorized its PCPs to attempt to admit patients to River Park is unavailing, because these admissions were for emergency patients and therefore were based on medical necessity. BlueCare’s authorization of these admissions was not an implied agreement to pay River Park’s standard rates. Under these circumstances, we cannot find that BlueCare either expressly or impliedly assented to pay River Park’s standard rates for services provided to BlueCare enrollees. There being no mutual assent between the parties on this point, we affirm the trial court’s determination that there was no express or implied agreement between the parties for the rate of reimbursement for emergency care provided to BlueCare enrollees after January 1, 2000. See Johnson, 356 S.W.2d at 281. We next address the finding that BlueCare was unjustly enriched. The trial decision was its revised finding that River Park sought recovery only for the “emergency” patients, which it was required to treat under EMTALA. The trial court emphasized this factor, stating more than once that “River Park had no choice but to provide these [emergency] patients with hospital services.”13 Other factors noted by the trial court were that: (1) six of the PCPs for BlueCare had admitting privileges only at River Park; (2) each time BlueCare authorized an admission to River Park, a River Park representative informed BlueCare that it expected full customary payment for any services provided; (3) though River Park gave BlueCare the opportunity, BlueCare did not instruct its PCPs to transfer the emergency patients to an in-network hospital; and (4) BlueCare disallowed all of River Park’s claims when they were filed, requiring River Park to expend time and money in rebilling and appealing in order to obtain any payment, and that this pattern continued from the July 31 hearing to the November 27 hearing. As noted above, the terms “unjust enrichment” and “contract implied in law” are used virtually interchangeably. See Paschall’s, 407 S.W.2d at 154. In this case, both parties were required to deal with one another; neither had any choice. When presented with an emergency patient, either through the emergency room or through admission by a PCP, under the EMTALA, River Park has no choice except to treat the patient, regardless of whether the patient is a BlueCare enrollee. Likewise, under its risk agreement with the State, BlueCare is required to pay for emergency medical services for its enrollees, whether the services are provided by an in-network provider or by an out-of-network provider such as River Park. The Contractor Risk Agreement provides: The CONTRACTOR [BlueCare]’s plan shall include provisions governing utilization of any payment by the CONTRACTOR for emergency medical services received by an enrollee from non-contract providers . . . . Coverage of emergency medical services shall not be subject to prior authorization by the CONTRACTOR. * * * The Contractor shall be required to pay for all emergency medical services which are medically necessary until the clinical emergency is stabilized. This includes all medical services that may be necessary to assure, within reasonable medical probability, that no material deterioration of the patient’s condition is likely to result from, or occur during, discharge of the patient or transfer of the patient to another facility. Thus, while neither of these parties may have wanted to deal with the other, both were left with no choice. Under these circumstances, we must find a contract Under these circumstances, the trial court must determine a reasonable rate of reimbursement for all of the emergency admissions at issue. River Park argues that it is entitled to its full standard rate because it repeatedly insisted on this rate with BlueCare. River Park’s standard rate for its services is pertinent to the determination of a reasonable rate, but hardly conclusive. Likewise, BlueCare maintains that its reimbursement rate for in-network providers is clearly a reasonable rate, and relies heavily on its BlueCare provider services manual was well as on “industry custom” among MCOs of paying all providers, both in-network and out-of-network, the same rate. Again, evidence of BlueCare’s in-network rates, as well as evidence of industry custom, is pertinent but certainly not determinative. In assessing a reasonable reimbursement rate, the trial court may take into account all of these factors, as well as others that may be pertinent, such as whether the rate for in-network providers is appropriate for out-of-network providers, given the difference in the volume of BlueCare enrollees treated. Moreover, the trial court may consider factors that increase the provider’s costs, such as BlueCare’s repeated automatic disallowance of claims previously authorized, apparently onerous and costly appeal and approval procedures, and delays in payment. Therefore, the cause must be remanded for a determination of a reasonable rate of reimbursement for River Park’s provision of medical services to BlueCare enrollees who were “emergency” patients.”14 River Park also argues that the trial court erred in dismissing its claims for conversion and its claims under the Tennessee Consumer Protection Act. With respect to the conversion claim, the trial court refused to allow River Park to amend its complaint to include a claim based on that theory of recovery. Nevertheless, in the order that is the subject of this appeal, the trial court rejected River Park’s conversion claim, concluding that “no ‘conversion’ has taken place.” Conversion is “the appropriation of the thing to the party’s own use and benefit, by the exercise of dominion over it, in defiance of plaintiff’s right.” Mammoth Cave Prod. Credit Ass’n v. Oldham, 569 S.W.2d 833, 836 (Tenn. Ct. App. 1977) (quoting Barger v. Webb, 391 S.W.2d 664, 665 (Tenn. 1965)). River Park argues that BlueCare converted its services to its own use when it refused to pay the full price for such services. Intangible services, however, are not subject to conversion under Tennessee law.15 See B & L Corp. v. Thomas & Thorngren, Inc., 917 S.W.2d 674, 680 (Tenn. Ct. App. 1995). Therefore, we affirm the trial court’s rejection of the claim of conversion. In addition, we affirm the trial court’s rejection of River Park’s Consumer Protection Act claim, because River Park did not adduce evidence that BlueCare engaged in “unfair or deceptive acts BlueCare argues that the trial court erred in rejecting its two counterclaims brought under the Consumer Protection Act, one for disparagement under Finally, we affirm the trial court’s denial of discretionary costs to BlueCare under In sum, we find that any error by the trial court in reopening the proof was harmless. We find that The decision of the trial court is affirmed and remanded for further proceedings not inconsistent with this Opinion. Costs of this appeal are taxed equally to the appellants, BlueCross BlueShield of Tennessee, Inc. and Volunteer State Health Plan, Inc., d/b/a Blue Care, and their surety and the appellee, River Park Hospital, for which execution may issue, if necessary. HOLLY KIRBY LILLARD, JUDGE