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ALONZA v. BLUE CROSS OF GREATER PHILADELPHIA

May 30, 1984

MARGARET ALONZO, MARIO ALONZO, and ROBERT DATO, all individually and on behalf of all others similarly situated, Plaintiffs,
v.
BLUE CROSS OF GREATER PHILADELPHIA, BLUE CROSS OF WESTERN PENNSYLVANIA, CAPITOL BLUE CROSS, BLUE CROSS OF LEHIGH VALLEY, BLUE SHIELD OF PENNSYLVANIA, and PENNSYLVANIA PSYCHOLOGICAL ASSOCIATION, Defendants


Cahn, J.


The opinion of the court was delivered by: CAHN

This is a class action for treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15, *fn1" alleging violations of section 1 of the Sherman Act, 15 U.S.C. § 1. *fn2" Various state law claims are also alleged. I have jurisdiction over this matter pursuant to 28 U.S.C. § 1337(a). Before me are motions by defendants to dismiss the action for failure to state a claim, under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the action will be dismissed.

 I. Facts

 The facts, construed most favorably to the plaintiffs, are as follows. *fn3" Named plaintiffs Margaret Alonzo and Mario Alonzo are joint subscribers to a prepaid health benefits plan administered by two defendants, Blue Cross of Greater Philadelphia *fn4" and Pennsylvania Blue Shield. *fn5" After obtaining treatment from a psychotherapist, Margaret Alonzo submitted claims to these defendants, and was reimbursed by Blue Cross of Greater Philadelphia for a portion of the services rendered by the psychotherapist. Subsequently, Blue Cross determined that Mrs. Alonzo had been reimbursed in error. An amount equal to the erroneous reimbursement was withheld as a set-off against the Alonzos' joint account. As a result, Mario Alonzo, the husband of Margaret Alonzo, was denied payment for medical bills he had incurred.

 Margaret Alonzo seeks to represent a class of subscribers to Blue Shield and Blue Cross in Pennsylvania, who have incurred costs for treatment by psychotherapists, but who have been denied reimbursement by the "Blue" defendants. Mario Alonzo seeks to represent a class of subscribers who are entitled to reimbursement under the terms of their subscriber contracts with defendants, but are refused payment because defendants' practice is to claim a set-off against subscriber accounts for monies owed to the "Blues" by subscriber spouses or family members. Named plaintiff Robert Dato is a psychotherapist who is certified by a trade association, the National Association for the Advancement of Psychoanalysis, but is not licensed by the State of Pennsylvania. He seeks to represent a class of nonlicensed psychotherapists who are not now receiving payment from the Blue Cross and Blue Shield plans in Pennsylvania for providing mental health services to health plan subscribers.

 Plaintiffs claim that from 1972 to the present, Pennsylvania Blue Shield, the named Blue Cross defendants, and the Pennsylvania Psychological Association, a psychologists' trade association, together with unnamed co-conspirators, agreed and conspired to boycott psychotherapists. The purpose of the alleged boycott was to prevent psychotherapists from receiving compensation from the Blue Cross and Blue Shield defendants for services rendered to Blue Cross and Blue Shield subscribers in Pennsylvania. Plaintiffs allege that as a result of the conspiracy, psychologists, who are licensed by Pennsylvania under 63 Pa. C.S.A. §§ 1201-1215, have gained an unlawful competitive advantage over psychotherapists, who are not licensed. Further, subscribers to the "Blue" plans in Pennsylvania have been "economically coerced to receive psychological services from psychologists to the exclusion and boycott of psychotherapists." Complaint, para. 25, at 11-12. Plaintiffs interpret several Pennsylvania statutes to permit the "Blue" plans to reimburse subscribers for services of psychotherapists, and contend that the refusal of the plans to so reimburse is a "boycott" of psychotherapists and a conspiracy in restraint of trade in violation of section 1 of the Sherman Act, 15 U.S.C. § 1. In addition, plaintiffs assert several pendent state law claims: breach of contract, libel and trespass.

 II. Analysis

 A. The Antitrust Claims

 Counsel for plaintiffs bases his allegations of antitrust violations upon the presumption that the state statutory scheme under which the "Blue" plans are permitted to operate allows the plans to offer subscriber contracts that cover the services of nonlicensed psychotherapists. Plaintiffs' counsel has misinterpreted the relevant statutory provisions, however. Pennsylvania law permits only licensed professionals to participate in Blue Cross and Blue Shield health plans, and thus forbids the reimbursement requested by plaintiffs here. *fn6"

 The Professional Health Services Plan Act, 40 Pa. C.S.A. §§ 6301-6335, defines the types of prepaid health coverage that Pennsylvania Blue Shield *fn7" is authorized to offer to subscribers. The Act provides: "A professional health services corporation shall not provide professional health services for its subscribers otherwise than through health service doctors, duly licensed to practice in their respective fields under the laws of this Commonwealth." 40 Pa. C.S.A. § 6322(c) [emphasis added]. "Health services doctors" are defined in section 6302(a) of the Act as doctors of medicine and dental surgery, optometrists, osteopaths, podiatrists, chiropractors, and licensed physical therapists. Under sections 6322(c) and 6302(a), Pennsylvania Blue Shield was formerly authorized to provide mental health coverage only through doctors of medicine (i.e., psychiatrists), duly licensed to practice under Pennsylvania law.

 In 1978 the Pennsylvania legislature enacted a "Freedom of Choice" law, 40 Pa. C.S.A. §§ 767-769, known as "Act 16," applicable to insurance contracts generally and also to the health services plans offered by Blue Cross and Blue Shield, see 40 Pa. C.S.A. § 767(a)(3). *fn8" Act 16 provides:

 
Whenever a policy, contract or certificate provides for reimbursement for any psychologically necessary service which is within those areas for which the psychologist is licensed pursuant to the act of March 23, 1972 (P.L. 136 No. 52) referred to as the Psychologists License Act, the insured . . . shall be entitled to reimbursement for such service whether the service is ...

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