David Scull, et al.
Groover, Christie & Merritt, P.C.
Barbera, C.J. Harrell Battaglia Greene Adkins McDonald [*] Bell, JJ.
A health maintenance organization ("HMO") provides a form of health care insurance in which a member of the HMO pays a periodic fee to the HMO and the HMO finances health care services for the member without further charge to the member except for certain fees specified in the HMO plan. To support this form of health care insurance, the Maryland Health Maintenance Organization Act establishes the ground rules for HMOs, HMO members, and health care providers. Among those ground rules is one that prohibits health care providers from "balance billing" – i.e., charging an HMO member a fee for covered services in addition to those allowed by the HMO plan or statute.
This case concerns what, if any, remedy an HMO member has when a health care provider allegedly violates that prohibition. In particular, does the HMO member have an implied private cause of action against the health care provider under the HMO Act? In addition, while there is an explicit private cause of action under the Consumer Protection Act, are medical billing practices exempt from that Act under exclusions for the "professional services" of medical practitioners?
We hold that an HMO member who has been billed by a provider for a covered service does not have an implied private cause of action under the HMO Act. But the HMO member is not precluded from bringing an action under the Consumer Protection Act.
The X-Ray, the HMO, and the Bill
The following facts are alleged in the complaint that initiated this action.
In 2008, Petitioner David Scull, an attorney who resides in Bethesda, Maryland, was having problems with his knee. At that time, Mr. Scull had health care insurance as a member of the United Healthcare Select HMO ("the HMO"). Among the services covered by the HMO were outpatient laboratory and x-ray services.
Mr. Scull visited his orthopedist, who was a member of the HMO's physician network. The orthopedist referred him to Respondent Groover Christie & Merritt, P.C. ("GCM"), a radiology practice in Bethesda, for an x-ray of the knee. On May 23, 2008, GCM took x-ray images of Mr. Scull's knee.
Nearly a year later, on May 22, 2009, GCM sent Mr. Scull a bill for $121.00 for the x-ray exam. To arrive at that charge, the bill indicated an initial charge of $242.00, with credits in the amounts of $91.73 and $29.27 for "Adjustments" and "Insurance Payment" respectively. At the bottom of the bill in all capital letters was the following: "Message: We are unable to collect from your insurance because, [sic] your insurance states you have other primary coverage." Elsewhere the bill listed a phone number and website to make payments or to provide insurance information.
Mr. Scull called the phone number on the bill and found himself communicating with GCM's billing agent, which told him that the HMO had reversed the payment it had made to GCM and that he should submit his claim to Medicare. When he contacted the HMO, however, it informed him that he was covered for the x-ray exam and that payment had in fact been made to GCM. He relayed this information by e-mail to GCM's billing agent, which responded on May 26, 2009, that he should "disregard any statement or erroneous information" and that his account had been adjusted to "a $0.00 balance."
Nonetheless, in June 2009, Mr. Scull received another bill from GCM with respect to the x-ray exam for $121.00. This time, Mr. Scull paid the bill by sending GCM a check for $121.00 a few days later.
Three months later, on September 4, 2009, Mr. Scull received in the mail a check from GCM for $121.00 and a note indicating GCM had conducted an audit and found a credit owing to Mr. Scull. Mr. Scull did not cash the refund check. In Mr. Scull's view, GCM had refunded the money only because it knew he is an attorney and was attempting to moot any potential litigation "which would challenge GCM's practice of balance billing."
On January 19, 2010, Mr. Scull filed this action in the Circuit Court for Montgomery County. The complaint alleged that the bills that GCM sent to Mr. Scull were an illegal attempt to "balance bill" an HMO member in violation of State law. The complaint asserted two theories of recovery relevant to this appeal. The first count of the complaint sought judicial recognition of an implied private right of action under the State HMO law for a violation of the provision of that statute that prohibits "balance billing" of HMO members for services covered by the HMO. The second count of the complaint alleged that the bills constituted an "unfair and deceptive practice" in violation of the Consumer Protection Act and was brought under Maryland Code, Commercial Law Article, §13-408 – the provision of the Consumer Protection Act that authorizes civil actions by consumers. The complaint sought certification as a class action under Maryland Rule 2-231 "on behalf of all enrollees of all health maintenance organizations licensed in Maryland who have been balanced-billed by [GCM] and who have paid [GCM] all or part of the billed amount during the last three years...."
GCM filed a motion to dismiss the complaint for failure to state a claim on which relief could be granted. Following a hearing on September 30, 2010, the Circuit Court granted that motion as to all counts and dismissed the complaint without prejudice. Mr. Scull then filed an amended complaint that omitted the count asserting an implied right of action under the HMO law and that elaborated on the claim under the Consumer Protection Act for unfair and deceptive practices. The Circuit Court dismissed the amended complaint with prejudice.
Mr. Scull appealed and the Court of Special Appeals affirmed in a reported opinion. 205 Md.App. 567, 45 A.3d 925 (2012). First, with respect to an implied private cause of action for violation of the prohibition against balance billing in the State HMO law, the intermediate appellate court held that there is no such cause of action and that, in any event, GCM's invoice fit within an exception related to Medicare patients. Second, with respect to the claim under the Consumer Protection Act, the court held medical that billing practices are not subject to the Consumer Protection Act because they qualify as "professional services" of a medical or dental practitioner and are therefore excluded from the purview of that Act.
We granted Mr. Scull's petition for a writ of certiorari to review both of those holdings. We agree that there is not an implied private right of action under the HMO law. We hold, however, that medical billing is not a "professional service" exempt from the Consumer Protection Act. Accordingly, on ...