specially concurring in part and dissenting in part:
In my opinion, the majority has misconstrued section 22(A)(14) of the Act, leading to its erroneous conclusion that HealthLink may impose neither a percentage-based fee nor a flat fee on the physicians who elect to participate in its network. Accordingly, I dissent.
I. ADDITIONAL BACKGROUND
Throughout these proceedings, HealthLink has asserted that it
charges providers an administrative fee to cover services it performs on their behalf. Those services include the following: (1) administering and implementing HealthLink’s policies, procedures, and programs; (2) customer services; (3) utilization review and case management; (4) claims receipt, processing, or repricing; (5) network development and management; (6) provider marketing; (7) credentialing; (8) electronic-claims support services; (9) monthly patient-activity reporting services; and (10) claims-status research and advocacy services.
II. PERCENTAGE-BASED FEE
I disagree with the majority and the First District’s overly broad interpretation of section 22(A)(14) of the Act, as set forth in Lieberman, E&B Marketing, Practice Management, and TLC. The majority and the First District interpret section 22(A)(14) of the Act as if it did not contain the language “for any professional services not actually and personally rendered” (225 ILCS 60/22(A)(14) (West 2002)). Indeed, the majority’s decision would be precisely the same if the legislature amended the statute by deleting this language. When interpreting a statute, a court must give effect to the legislature’s intent, which is best determined by the statute’s plain language. American Federation of State, County, & Municipal Employees, Council 31 v. Ryan, 332 Ill. App. 3d 866, 871-72, 773 N.E.2d 739, 743 (2002). If possible, a statute should be construed so that no term is rendered superfluous or meaningless. American Federation of State, County, & Municipal Employees, 332 Ill. App. 3d at 872, 773 N.E.2d at 743.
The language of section 22(A)(14) of the Act permits physicians to divide fees with an entity for professional services actually and personally rendered. 225 ILCS 60/22(A)(14) (West 2002). As written, the statute contains (1) a general prohibition against a physician’s dividing fees and (2) exceptions to that general prohibition. The exceptions are (1) other physicians with whom the physician practices and (2) other persons who provide professional services that are (a) actually rendered and (b) personally rendered. Because the Act places no limitation on the type of professional services that qualify under the section 22(A)(14) exception, this court should decline to (1) limit the term to professional medical services or (2) ignore the existence of the exception altogether.
The record shows that HealthLink charged the percentage-based fee for administrative services provided for plaintiffs’ benefit. Those services are outlined in the contract between HealthLink and Thatch. Although plaintiffs claim that HealthLink does not perform the services for the providers’ benefit, they do not deny that HealthLink actually performs them.
The majority disparages these services by saying, “It is difficult to accept that HealthLink provides administrative services to physicians. The services HealthLink provides seem identical to the claim-processing functions of insurance companies.” 353 Ill. App. 3d at 936. The majority also deems some of these services as “incidental” benefits. 353 Ill. App. 3d at 936. However, the majority cites no evidence in the record supporting the inference it has drawn — namely, that the contract setting forth the services HealthLink provides is essentially a sham and that the fees physicians pay HealthLink are actually “kickbacks” for HealthLink’s “referral” of patients to physicians in the network. Absent some evidence that HealthLink does not actually provide physicians with the services it purports to provide under the contract, I would conclude that (1) HealthLink provides these services and (2) these services are professional services that fall within the section 22(A)(14) exception.
Throughout the majority’s analysis of the Act, the majority constantly uses the terms “referral” and “referring” to describe the essence of the relationship between Healthlink and the physicians in the network. For instance, in the majority’s concluding paragraph in part II. B. of its opinion, it writes, in pertinent part, as follows: (1) “physicians may not receive a fee for referring a patient to another plrysician,” unless certain circumstances exist; (2) “ [n]onphysicians may never receive a fee from a physician for referring a patient to that physician”; and (3) “[b]y definition it is impossible for a nonphysician to render ‘professional services’ to a patient and thereby qualify to receive a referral fee.” 353 Ill. App. 3d at 935. These are just a few examples of the majority’s use of those terms. What is significant about the use of these terms is that neither “referral” nor “referring” (or any other form of the verb “refer,” for that matter) appears in section 22(A) (14) of the Act, which the majority purports to be construing. Thus, the majority has reached its conclusion by extensively discussing terms that do not appear in the statute while ignoring those that do.
The kind of analysis the majority engages in amounts to judicial legislating. That is, the majority has construed section 22(A)(14) of the Act not as written, but as the majority believes the legislature should have written it. Although I might agree with the policy considerations expressed in the majority’s opinion, my personal preferences regarding what the statute should say and the policies it should further are as irrelevant as are the personal preferences of my colleagues. Instead, our duty is to construe the statute as written, bad policy and all. See In re Application of the County Treasurer & ex officio Collector of Cook County, 323 Ill. App. 3d 1044, 1049, 753 N.E.2d 363, 367 (2001) (a court must construe a statute as written and “may not, under the guise of construction, supply omissions, remedy defects, annex new provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute”).
A new convenience offered by many physicians to their patients is the opportunity to pay their medical bills with a credit card. Companies that permit physicians to offer this convenience typically assess the physician a small percentage of the physician’s billed fee to pay for the service. In my judgment, such “fee splitting” is entirely permissible under section 22 (A) (14) of the Act because these are professional services actually and personally rendered by the credit card company to the physician. When I asked plaintiffs’ counsel at oral argument whether such credit card fee splitting was permissible, they said “yes” but explained that the difference between the credit card company and HealthLink is that the credit card company did not refer patients to certain physicians, whereas HealthLink did. The majority seems to have accepted this argument. Even though I disagree with the claim that HealthLink in fact refers patients to certain physicians, I could concede the point because, as earlier discussed, such a referral is irrelevant. Because the statute does not allude to referrals, the issue of referrals is simply a straw man that plaintiffs and the majority have chosen to knock down.
Further, this contract does not offend Illinois public policy. Health-Link does not refer any specific providers to members; its members are allowed to choose their own provider from within HealthLink’s network or choose a physician not in the network at a higher cost. The majority’s tortured efforts to construe this record so as to find referrals being made by HealthLink constitutes its own best refutation. Although the fees were based on a percentage of each provider’s processed claims, HealthLink has no control over what medical procedures a provider will administer and what procedures the payor will cover. This contract does not jeopardize the medical judgment of providers or threaten the safety of members who sign up with Health-Link. In addition, the goal of the Act is to regulate the licenses of physicians, not to prevent them from entering into legitimate contracts or relieve them of the corollary duty to pay for services actually and personally rendered pursuant to such contracts.
For the reasons stated, I conclude that the trial court erred by determining that the percentage-based fee violated either the Act or Illinois public policy.
III. FIXED FLAT FEE
I also disagree with the majority’s conclusion that the trial court erred by determining that HealthLink’s fixed flat fee does not violate the Act.
In May 2002, HealthLink modified its method for calculating the administrative fee from the percentage-based fee to a fixed flat fee. The flat fee covered the same administrative services covered by the percentage fee. For the reasons set forth in my analysis of the percentage-based fee, I conclude that HealthLink’s flat fee is valid and does not violate the Act or Illinois public policy.
IV RECOVERY OF FEES
I agree with the majority’s decision rejecting the recovery of fees.