Scull v. Doctors Groover, Christie & Merritt, P.C.

BERGER, J. This case arises from an Order of the Circuit for Montgomery County granting appellee Doctors Groover Christie & Merritt, P.C.’s (“GCM”) motion to dismiss. Appellant David Scull (“Scull”) filed a two count amended complaint against GCM. Thereafter, GCM filed a motion to dismiss the amended complaint. The Circuit Court for Montgomery County granted the motion to dismiss and ordered Scull’s complaint dismissed with prejudice.

Scull filed a timely appeal and presents four issues for our review, which we have rephrased as follows: 1. Whether the trial court erred in ruling that the Maryland HMO Act precludes a private cause of action against a health care provider. 2. Whether the trial court erred in ruling that GCM, a medical provider, was exempt from the Maryland Consumer Protection Act. 3. Whether the trial court erred in ruling that GCM’s billing practices did not constitute an unfair and/or deceptive business practice under the Consumer Protection Act. 4.

Whether the trial court erred in ruling that GCM was not unjustly enriched by Scull’s payment of a bill after GCM refunded the money to Scull after it discovered the payment was made in error. For the reasons set forth below, we affirm the judgment of the Circuit Court for Montgomery County. ⁵⁷² FACTS AND PROCEDURAL BACKGROUND Scull is an enrollee in the United Healthcare Select HMO 1 offered by the Montgomery County Government. In May 2008, Scull was referred to GCM by an orthopedic specialist for x-rays on his knee. That day, an employee of GCM completed the required x-rays.

After the x-ray procedure concluded, Scull believed his interactions with GCM had ceased. Scull understood that his insurance policy with United Healthcare (“UHC”) fully covered payment for the x-ray procedure. Approximately one year later, in May 2009, Scull received an invoice from GCM. 2 The invoice reflected that the x-rays taken on Scull’s knee cost $242.00. The amount due was reduced to $121.00 because of an “adjustment” and payment received by GCM from Scull’s insurance provider.

The invoice provided that Scull was to pay the remaining $121.00 because GCM was “unable to collect from [his] insurance because, [his] insurance states [he has] other primary coverage.” The invoice also instructed Scull to contact Health Care Management Group (“HCMG”), GCM’s billing agent, if he had any questions or concerns about the bill. After reviewing the invoice, Scull contacted HCMG. An HCMG employee informed Scull that UHC reversed the payment it made to GCM. As a result, HCMG recommended that Scull submit his claim to Medicare.

Scull, thereafter, contact ⁵⁷³ ed UHC because he believed the x-rays were fully covered and paid for by UHC. Scull testified that UHC informed him that it “had paid GCM for the covered service.” 3 Subsequently, Scull sent an email to HCMG explaining his initial call with HCMG and his call with UHC. An employee of HCMG responded to Scull’s email advising him to disregard any invoices and informing Scull that his account was adjusted to reflect a $0.00 balance. Approximately one week later, Scull received an additional copy of the initial invoice reflecting a balance due of $121.00.

Despite being told by HCMG to disregard any statements and that his account had a $0.00 balance, Scull did not contact HCMG to determine whether this invoice was inadvertently sent. Instead, Scull sent GCM a check for the balance because he feared that GCM would report him to credit rating agencies if he did not pay the amount due. Two to three months later, Scull received a check from GCM in the amount of $121.00. This check was accompanied with a letter stating that GCM discovered Scull’s overpayment through an audit and was refunding the balance due to Scull.

Believing “GCM adjusted his account and sent him a check because he discovered [GCMj’s practice of balance billing, [ 4 ]” Scull elected not to cash the check. 5 Instead, he filed a class ⁵⁷⁴ action complaint in the Circuit Court for Montgomery County. His complaint alleged three claims, namely: a violation of the Maryland HMO Act; 6 a violation of the Maryland Consumer Protection Act; 7 and a claim that GCM was unjustly enriched through its “unlawful balance billing practices.” Soon thereafter, GCM moved to dismiss Scull’s complaint. After a hearing, the circuit court granted GCM’s motion to dismiss all three counts. The circuit court dismissed Scull’s claims without prejudice so that he could amend the complaint, if necessary.

Scull, subsequently, amended his initial complaint to add additional facts and remove the claim for a violation of the HMO Act. Thereafter, GCM moved to dismiss the amended complaint. The circuit court held a hearing on GCM’s motion to dismiss after which it dismissed Scull’s claims with prejudice. Scull timely filed an appeal of the circuit court’s dismissal of all three claims.

STANDARD OF REVIEW It is well settled that the “[djismissal [of a claim] is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371, 1373 (1997) (citing Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624, 630 (1995)). An appellate court “review[s] the grant of a motion to dismiss as a question of law.” Shenker v. Laureate Educ., Inc., 411 Md. 317, 334 , 983 A.2d 408, 418 (2009). When we evaluate such a dismissal, “we inquire whether the well-pleaded allegations of fact contained in the complaint, taken as true, reveal any set of facts that ⁵⁷⁵ would support the claim made.” Id. at 335 , 983 A.2d at 418 (internal citations omitted). In completing this evaluation, “[a] court must assume the truth of all well-pleaded relevant and material facts as well as all inferences that reasonably may be drawn therefrom, and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff, i.e., the allegations do not state a cause of action.” Id.

(internal citations omitted). Furthermore, “[a]ny ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the pleader.” Id. We need not consider “conclusory charges that are not factual allegations.” Id. Finally, an appellate court must view “all well-pleaded facts and the inferences from those facts in a light most favorable to the plaintiff, the non-moving party.” Id.

(internal citations omitted). DISCUSSION I. Scull initially claims that GCM violated HG § 19-710(p)(l) when it sent him a bill for services that he believed were fully covered by his HMO. HG § 19—710(p) provides: (1) Except as provided in paragraph (3) of this subsection, individual enrollees and subscribers of health maintenance organizations issued certificates of authority to operate in this State shall not be liable to any health care provider for any covered services provided to the enrollee or subscriber. (2) (i) A health care provider or any representative of a health care provider may not collect or attempt to collect from any subscriber or enrollee any money owed to the health care provider by a health maintenance organization issued a certificate of authority to operate in this State.

(ii) A health care provider or any representative of a health care provider may not maintain any action against any subscriber or enrollee to collect or attempt to collect any money owed to the health care provider by a health ⁵⁷⁶ maintenance organization issued a certificate of authority to operate in this State. (3) Notwithstanding any other provision of this subsection, a health care provider or representative of a health care provider may collect or attempt to collect from a subscriber or enrollee: (i) Any copayment or coinsurance sums owed by the subscriber or enrollee to a health maintenance organization issued a certificate of authority to operate in this State for covered services provided by the health care provider; (ii) If Medicare is the primary insurer and a health maintenance organization is the secondary insurer, any amount up to the Medicare approved or limiting amount, as specified under the Social Security Act, that is not owed to the health care provider by Medicare or the health maintenance organization after coordination of benefits has been completed, for Medicare covered services provided to the subscriber or enrollee by the health care provider; or (in) Any payment or charges for services that are not covered services. HG § 19-710(p). Scull maintains that his HMO paid for the x-ray services and, therefore, GCM violated HG § 19-710(p)(l) by sending an invoice for a service covered by his HMO.

Scull further contends that there is no explicit method of recovery for violations of HG § 19-710(p). As a result, he argues that an implied private cause of action should be read into the statute. GCM counters that the HMO Act does not apply to it because it is not an HMO and the HMO Act only applies to certified HMOs. In the alternative, GCM argues, assuming arguendo, that the HMO Act applies to it, the HMO Act does not contain an implied private cause of action.

Accordingly, GCM contends that Scull should have followed the express grievance procedures contained in the HMO Act which do not ⁵⁷⁷ authorize the filing of a private suit against GCM for alleged violations of the HMO Act. The circuit court rejected GCM’s first contention, finding that the HMO Act applies to GCM. The circuit court further found that the HMO Act does not contain a private cause of action. The circuit court, therefore, granted GCM’s motion to dismiss the HMO Act claim finding: I think that, contrary to the contention that [GCM] raises, that [the HMO Act] doesn’t apply to medical providers, I certainly think, based on my review, that I could find it applies to medical providers, as well as to HMO’s.

Having reviewed the Sugarloqf case and the cases that are cited in there, the Widgeon case, the 1VTX case, and the other cases that are cited in that as well, I just don’t see how—I think I agree with [GCM’s] counsel that—and Sugarloqf actually cites the United States Supreme Court decision in Transamerica Mortgage Advisors, Inc. v. Lewis, where they’re saying that it’s improbable that—and they’re referring in this case to Congress—that Congress would absentmindedly forget to mention an intended private action. Looking at the legislative history, the purpose of the statute, looking at the identity of the class for whose particular benefit the statute was passed, and the existence of expressed statutory remedies, I’m not inclined to find that there is a private right to pursue an action. So at this point I’m going to dismiss Count 1. The circuit court did not err in finding that the HMO Act applies to providers in addition to HMOs.

GCM accurately maintains that, “Subtitle 7 of Title 19 of the Health-General Article is dedicated to the formation of Health Maintenance Organizations.” Riemer v. Columbia Med. Plan, Inc., 358 Md. 222, 242 , 747 A.2d 677, 688 (2000). Nevertheless, the dedication of the act to the formation and regulation of HMO’s does not preclude its application to other groups that have interactions with HMOs. Clearly, the language in HG § 19- ⁵⁷⁸ 710(p) reflects that the HMO Act applies to providers.

Specifically, HG § 19—710(p)(2) describes actions that health care providers (not merely HMOs) are forbidden from taking. See HG § 19-710(p)(2). Therefore, it is clear that the General Assembly intended the HMO Act to apply not only to HMOs but, in certain situations, to others involved in HMO practice. We now turn to whether the circuit court erred in finding that no private cause of action, express or implied, exists in the HMO Act.

The Court of Appeals has explained that three factors must be evaluated when determining whether an implied private cause of action may be read into a statute. These factors include: 1) “presence or absence of an indication of legislative intent to create a private remedy;” 2) “whether the plaintiff is one of the class for whose special benefit the statute was enacted;” and 3) “whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.” Erie Ins. Co. v. Chops, 322 Md. 79, 90-91 , 585 A.2d 232, 237 (1991). Of these factors, our “primary focus in resolving such a question is the legislative intent.” Sugarloaf Citizens Assoc., Inc. v. Gudis, 78 Md.App. 550, 556 , 554 A.2d 434, 437 (1989) (internal citations omitted).

When examining legislative intent in this context, we must evaluate various factors: including the legislative history and purposes of the statute, the identity of the class for whose particular benefit the statute was passed, the existence of express statutory remedies to serve the legislative purpose, and the traditional role of the states in affording the relief claimed. Id. at 557 , 554 A.2d at 437 . The legislative history of the HMO Act is silent concerning any intent to create a private cause of action. Typically, legislative silence weighs against reading an implied cause of action into a statute.

IVTX, Inc. v. United Healthcare of the Mid-Atlantic, Inc., 112 F.Supp.2d 445, 447 (D.Md.2000) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 571 , 99 S.Ct. 2479 , 61 L.Ed.2d 82 (1979)). This, however, typically only applies on the federal level. ⁵⁷⁹ As we noted in Sugarloaf, supra, “[g]iven the vast differences in legislative record-keeping between Congress and a municipal or local government, we hesitate to place such great weight on the fact that the legislative history available to us is silent as to ... creating] an implied private right of action.” Sugarloaf, supra, 78 Md.App. at 558 , 554 A.2d at 438 . While in Sugarloaf we analyzed a county ordinance, not a state statute, the same analysis applies here. See IVTX, supra, 112 F.Supp.2d at 447 (“Given a similar comparative sparsity of legislative history accompanying Maryland state legislation [and municipal rule making], the Court agrees that this first factor is entitled to little weight”).

We, therefore, must analyze the other factors in greater detail to determine whether the General Assembly intended a private right of action to exist under the HMO Act. HG § 19-702 specifically describes the General Assembly’s intent and policy when it enacted the HMO Act: (a) Statement of intent.—In adopting this subtitle, the General Assembly intends to: (1) Provide alternative methods for the delivery of health care services to residents of this State, with a view toward achieving greater efficiency and economy in providing these services; (2) Encourage the formation of health maintenance organizations that provide health care services to subscribers or groups of subscribers who contract for these services under a system of prepayments; and (3) Encourage the formation of health maintenance organizations by ... diverse groups.... (b) Policy.—To carry out the intent of subsection (a) of this section, the policy of this State is to: (1) Provide one overall State law that: (i) Regulates health maintenance organizations; (ii) Allows flexibility for the many forms these health maintenance organizations may take; and ⁵⁸⁰ (iii) Facilitates public understanding and uniform administration of the rules and regulations that are adopted under this subtitle.... HG § 19-702 (emphasis added).

Moreover, the Court of Appeals