Horizon Blue Cross/Blue Shield of New Jersey has wrongfully terminated, and continues to systematically terminate, individual radiologists’ Provider Agreement. Horizon claims to be doing this in order to effectuate its policy of contracting with the radiology facility, and not individual radiologists. Simultaneously with the termination, Horizon is advising the terminated radiologist that their radiology facility is not extended the opportunity to participate in the Horizon network, which precludes the facility from even applying to become par with Horizon. This means that Horizon is excluding otherwise eligible providers from its network without even considering their credentials.
Frier Levitt believes that there are some legal theories based on which Horizon’s conduct may be challenged. Specifically, it may be argued that Horizon’s termination of radiologists/exclusion of facilities violates the Covenant of Good Faith and Fair Dealing, which is implied, by law, into every contract in the State of New Jersey. Additionally, Horizon’s conduct may constitute tortuous interference with radiologists’/the facility’s contractual relationship with the patients (patient have a right to treat with a provider of their choosing) and radiologist’s contractual relationship with the facility that employs him or her (radiologists’ livelihood may be effected). Horizon’s conduct may also constitute a violation of Horizon’s Provider Agreement with the, if Horizon failed to comply with the termination provisions thereof, for example. Though Provider Agreements typically include a without cause termination provision, we do not believe that Horizon may ground its termination in such a provision, when the real reason for termination is prohibited by law (e.g., terminating providers for their referral patterns/duplication of tests). Finally, while New Jersey does not have an Any Willing Provider Law (a name designated for a law that would entitle qualified physicians to participate with a plan if they accept the plans terms and conditions), physicians may have an argument that they have a Constitutional right to participate with Horizon, because Horizon is a non-profit organization, which is a quasi-public institution. Courts have traditionally relied on the foregoing premise in holding that physicians have a constitutional right to medical staff privileges at non-profit hospitals.
Since many radiologists/radiology centers have been affected by the termination, the most effective (and cost-efficient) course of action (if Horizon does not agree to reinstate the radiologists/grant in-network status to their center in response to a strong letter) would be to compose a class of radiologists/radiology centers to initiate a Class Action lawsuit against Horizon. Under certain circumstances, if monetary relief is sought, Class Action lawsuits may be handled on a contingent-fee basis.
