BAHMAN VOJDANI, D.M.D. VS. AETNA LIFE INSURANCE COMPANY (L-0741-17, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5000-17T2

BAHMAN VOJDANI, D.M.D.,
COMPREHENSIVE DENTAL OF
LINCOLN PARK LLC, GERALD
S. CONVISSAR, D.D.S., P.A.,
JOSEPH W. WOLENSKI, D.M.D.,
P.A., DAN C. PULLEN, D.D.S.,
P.A., and SAMIR RANA, D.M.D.,

Plaintiffs-Appellants,

v.

AETNA LIFE INSURANCE
COMPANY,

Defendant-Respondent.
______________________________

Argued March 12, 2019 – Decided April 29, 2019

Before Judges Yannotti, Rothstadt and Gilson.

On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0741-17.

Arthur C. Meisel argued the cause for appellants.
 Paul D. Kelly argued the cause for respondent (Craig,
Annin & Baxter, LLP, attorneys; Paul D. Kelly, on the
brief).

PER CURIAM

Plaintiffs Dr. Bahman Vojdani, Comprehensive Dental of Lincoln Park,

LLC (CD), Dr. Gerald S. Convissar, Dr. Joseph W. Wolenski, Dr. Dan C. Pullen,

and Dr. Samir Rana appeal from orders entered by the trial court on May 23,

2018, which granted summary judgment in favor of defendant Aetna Life

Insurance Company (Aetna), and denied plaintiffs' motion for leave to file an

amended complaint. We affirm.

We briefly summarize the relevant facts, which are drawn from the record

before the trial court. Plaintiffs are individuals who practice dentistry in New

Jersey. In April 2015, Dr. Vojdani submitted to Aetna a request for benefits in

the amount of $6400 for orthodontic services he provided to A.J.M., who had

been a dependent enrollee under a self-funded, dental-benefits plan.

In April 2015, Aetna made an initial payment to Dr. Vojdani of $800, and

thereafter issued payments totaling $1010.46, for services deemed to have been

provided in April through November 2015. In April 2016, A.J.M. informed

Aetna that she had not seen Dr. Vojdani since June 2015; however, Dr. Vojdani

advised Aetna that he last treated A.J.M. in August 2015. In May 2016, Aetna

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made requests to Dr. Vojdani to recover benefits paid to him totaling $480. Dr.

Vojdani did not respond to Aetna's requests. Thereafter, Aetna recovered $480

it paid on the claims.

Dr. Rana practices dentistry through CD, which submitted claims to Aetna

for services provided to A.A. from May 2016 to June 2016. A.A. had been

enrolled as a dependent beneficiary in a group benefits plan for which Aetna

served as claims administrator. Aetna paid CD $7612.40 on the claims. After

Aetna made these payments, it determined that A.A. was not an eligible enrollee

in the plan as of May 21, 2016. In September 2016, Aetna issued a request to

CD for the return of the payments made for services provided to A.A., but CD

did not respond to the request. Aetna thereafter recovered overpayments totaling

$6084.40.

Dr. Convissar submitted a request for benefits to Aetna in the amount of

$189 for services he provided in December 2015 to K.M., who had been enrolled

in a fully-insured benefits plan. Aetna paid Dr. Convissar $149 on the claim,

but later determined that K.M. was not eligible for benefits when the services

were provided. In February 2017, Aetna requested that Dr. Convissar return the

payment, but received no response. In May 2017, Aetna recovered $149.

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 In addition, Dr. Wolenski submitted a claim for benefits to Aetna for

services he provided in November 2015 to A.C., who had been enrolled in a

fully-insured benefits plan. Aetna paid Dr. Wolenski $241 on the claim. After

Aetna made the payment, it determined that A.C. was not eligible for benefits

under the plan when Dr. Wolenski provided the services. In February 2017,

Aetna requested repayment, but Dr. Wolenski did not respond to the request.

Thereafter, Aetna recovered the $241 it paid to Dr. Wolenski.

Dr. Pullen submitted a claim for benefits to Aetna for services he provided

in October 2016 to K.P., who had been a dependent enrollee in an insured group

benefit plan. Aetna paid Dr. Pullen $179 on the claim. After Aetna made the

payment, it learned that K.P. was not eligible for benefits when Dr. Pullen

provided the services. Aetna requested repayment, but Dr. Pullen did not

respond to the request. Aetna thereafter recovered the $179 it paid on the claim.

In June 2017, plaintiffs filed a complaint in which they alleged that Aetna

had wrongfully recovered the payments it made on the submitted claims by

offsetting the amounts paid against future claims submitted by plaintiffs for

services provided to other patients. Plaintiffs sought, among other relief, the

return of the monies recovered on the claims from Dr. Vojdani and CD. They

also sought a declaration that Aetna could not recover the amounts paid on

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claims submitted after coverage for the patients was terminated. Aetna filed its

answer in July 2017, in which it asserted, among other things, that plaintiffs

were not entitled to any relief on their complaint.

In March 2018, following the completion of discovery, the parties filed

motions for summary judgment. Plaintiffs also sought leave to amend their

complaint to add new claims regarding two other dentists. In May 2018, the

judge heard oral argument and thereafter placed his decision on the record.

The judge decided that the material facts were not in dispute, and Aetna

was entitled to judgment as a matter of law. The judge found that Aetna's

reimbursements of its payments were expressly authorized by the Health Claims

Authorization, Processing and Payment Act (HCAPPA), specifically, N.J.S.A.

17B:27-44.2(d), the section of HCAPPA which applies to health insurers. The

judge also decided that plaintiffs would not be permitted to amend their

complaint, because "it would not have any effect on the [c]ourt's [d]ecision."

The judge memorialized his decision in orders dated May 23, 2018, which

granted Aetna's motion for summary judgment, and denied plaintiffs' motions to

amend their complaint and for summary judgment. This appeal followed.

On appeal, plaintiffs argue that: (1) the overpayment recovery provisions

in HCAPPA do not apply to "stand-alone" or "dental-only" benefit plans; (2) the

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overpayment reimbursement provisions in HCAPPA do not apply to benefits

paid to persons who were not covered on the date of service; (3) HCAPPA does

not empower a payer to effect an overpayment reimbursement for covered

services and thereafter inform the covered person that it has no obligation to pay

the provider; (4) Aetna's payments to plaintiffs are not recoverable under the

law of restitution or by self-help recoupment; and (5) if the trial court's orders

on the summary judgment motions are reversed, plaintiffs should be permi tted

to amend their complaint.

When reviewing a trial court's order granting summary judgment, we

apply the same standard that the trial court applies when ruling on a summary

judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Therefore, we must consider whether there are any

genuine issues of material fact and the moving party is entitled to judgment as a

matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995). Here, the material facts are not in dispute.

As noted, plaintiffs argue that the overpayment recovery provisions in

HCAPPA do not authorize Aetna to recover benefits paid on "stand-alone" or

"dental-only" plans. We reject that argument for the reasons stated in our

opinion filed this day in In re Adoption of Amendments to N.J.A.C. 11:22-1.1,

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__ N.J. Super. , (App. Div. 2019). There, we concluded that the paying

entities were authorized by HCAPPA to recover overpayments of benefits paid

under "stand-alone" or "dental-only" plans. Id. at (slip op. at 11).

Plaintiffs further argue that HCAPPA does not permit Aetna to recover

payments made to providers on claims of persons who were not covered on the

dates of service. As we have explained, plaintiffs submitted certain claims to

Aetna for payment, and Aetna initially paid the claims, based on the

understanding that the patients were covered on the dates of services. Later,

Aetna learned that the patients did not have coverage.

Plaintiffs note that HCAPPA requires health insurers to pay certain

submitted claims promptly. Indeed, N.J.S.A. 17B:28-44.2(d)(1) states that a

health insurer must remit payment no later than thirty calendar days after receipt

of the claim or the time established by 42 U.S.C. § 1395(u)(c)(2)(B) for payment

of Medicare claims, whichever is earlier, and no later than forty days after

receipt if the claim is submitted by other than electronic means. In addition, a

health insurer is required to pay the claim if:

(a) the health care provider is eligible at the date of
service;

(b) the person who received the health care service was
covered on the date of service;

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 (c) the claim is for a service or supply covered under
the health benefits plan;

(d) the claim is submitted with all the information
requested by the payer on the claim form . . . ; and

(e) the payer has no reason to believe that the claim has
been submitted fraudulently.

[N.J.S.A. 17B:27-44.2(d)(1).]

Plaintiffs contend that because N.J.S.A. 17B:27-44.2(d)(10) states that the

health insurers may seek reimbursement for claims "previously paid pursuant

to" this section, the insurer may only seek reimbursement for the payment of

claims that met the eligibility standards specified in subsection (1). We cannot

agree.

Where, as occurred here, the insurer pays a claim based on the assumption

that the person is covered under a benefits plan, but later learns that the person

did not have coverage on the date of service, the insurer has made an

"overpayment" for purposes of HCAPPA and it is entitled to recover the amount

mistakenly paid. As the trial court aptly observed, this is precisely the situation

the Legislature sought to address in HCAPPA's reimbursement provisions,

particularly since the insurers are required to make eligibility determinations

and pay claims promptly and in doing so, may make mistakes as to coverage.

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 Plaintiffs also argued that HCAPPA does not authorize a payer to effect a

reimbursement of an overpayment by withholding a payment due to a provider

for a claim submitted on behalf of a different patient. In support of this

argument, plaintiffs rely upon N.J.S.A. 17B:27-44.2(d)(11)(a)(iii), which states

in part that

[t]he payer may collect the funds for the reimbursement
request by assessing them against payment of any
future claims submitted by the health care provider
after the [forty-fifth] calendar day following the
submission of the reimbursement request to the health
care provider or after the health care provider's rights
to appeal set forth under [N.J.S.A. 17B:27-44.2(e)(1)
and (2)] have been exhausted if the payer submits an
explanation in writing to the provider in sufficient
detail so that the provider can reconcile each covered
person's bill.

Although HCAPPA requires the payer to submit a written explanation to

the provider to allow the provider to "reconcile each covered person's bill," this

does not limit the payer's ability to collect the funds for the reimbursement by

assessing that amount "against payment of any future claims submitted by the

health care provider." As we conclude in In re Amendments to N.J.A.C. 11:22-

1.1, the term "any future claims" includes future claims related to patients other

than the patient for whom the overpayment was made. __ N.J. Super. at __ (slip

op. at 15).

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 Plaintiffs further argue that the payments that Aetna made to them are not

recoverable under the law of restitution or by self-help recoupment. In this case,

however, Aetna did not assert claims against plaintiffs for restitution. Aetna

exercised its right under N.J.S.A. 17B:27-44.2(d)(11) for reimbursement of the

overpayments it made to plaintiffs on claims submitted in respect of persons

who were not entitled to coverage.

Furthermore, even if the common law were interpreted and applied as

plaintiffs claim, the reimbursement provisions of HCAPPA abrogate the

common law and provide the payer entities, like Aetna, the right to recoup

overpayments from future claims submitted by the provider, including any

claims for services provided to other patients. See In re Amendments to

N.J.A.C. 11:22-1.1, N.J. Super. at (slip op. at 14-15).

In view of our decision, we need not consider plaintiffs' argument that the

trial court erred by denying their motion to amend the complaint.

Affirmed.

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