O.S.T. v. Regence BlueShield ( 2014 )

IN THE SUPREME COURT OF THE STATE OF WASHINGTON
O.S.T, by and through his parents, G.T. )
and E.S.; and L.H., by and through his )
parents, M.S. and K.H., each on his own ) No. 88940-6
behalf and on behalf of all similarly situated )
individuals, ) En Bane
)
Respondents, )
) Filed OCT 0 9 2014
-----------------
V. )
)
REGENCE BLUESHIELO, a Washington )
corporation, )
)
Appellant. )
)
WIGGINS, J.-Today's controversy arises from the enactment of two laws:
the neurodevelopmental therapies mandate, RCW 48.44.450, and the mental health
parity act, RCW 48.44.341. In 1989, the Washington Legislature mandated
coverage for neurodevelopmental therapies (neurodevelopmental therapies or NOT)
(speech, occupational, and physical therapy) in employer-sponsored group plans for
children under age seven (the neurodevelopmental therapies mandate or NOT
mandate). RCW 48.44.450. In 2005, the legislature enacted the mental health parity
act, which mandates coverage for "mental health services." RCW 48.44.341. We
hold that the statutes do not conflict-neurodevelopmental therapies may constitute
"mental health services" if the therapies are medically necessary to treat a mental
O.S. T. by and through his parents, G. T. and E.S. eta/.
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disorder identified in the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders (4th rev. ed. 2000) (DSM-IV- TR). Therefore,
the blanket exclusions of neurodevelopmental therapies in the plaintiffs' health
contracts are void and unenforceable.
FACTS
The two named plaintiffs in this case are O.S.T. and L.H. O.S.T. was six years
old at the time this law suit commenced. When he was just six months old, he began
having difficulties feeding and was diagnosed with a feeding disorder. Problems with
O.S.T.'s health worsened as he got older. "He went from having normal language
development to nearly no language at all." By his third birthday, therapists believed
that O.S.T. was autistic. Between 2006 and 2008 he received speech, physical, and
occupational therapy from Boyer Children's Clinic. 1 After leaving the Boyer
Children's Clinic, he continued to receive neurodevelopmental therapies from
Children's Communication Corner; the Hearing, Speech and Deafness Center; and
Seattle Children's Hospital. In 2009, the autism diagnosis was confirmed following
an evaluation with Seattle Children's Hospital.
The second named plaintiff, L.H., was two years old when this suit began. He
is diagnosed with expressive language disorder, myotubular myopathy, profound
hypotonia, and severe hydrocephalus. He receives speech, occupational, and
physical therapy from Boyer Children's Clinic.
1 Thesetherapies were subsidized by the Boyer Children's Clinic. At the age of three, O.S.T.
was no longer eligible for the subsidy.
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Both plaintiffs either are or have been insured under health policies issued by
Regence BlueShield that contain blanket exclusions for neurodevelopmental
therapies. Regence BlueShield did not cover O.S.T.'s therapies, so O.S.T.'s parents
paid for the services. It is unclear whether Regence BlueShield denied any of L.H.'s
claims.
The plaintiffs filed a class-action complaint, alleging breach of contract;
declaratory relief; violation of the Washington Consumer Protection Act, chapter
19.86 RCW; and seeking injunctive relief. Judge Erlick granted partial summary
judgment to the plaintiffs on December 12, 2012. He held that "any provisions
contained in Regence BlueShield policies issued and delivered to Plaintiffs O.S.T.
and L.H. on or after January 1, 2008[ 21that exclude coverage of neurodevelopmental
therapies regardless of medical necessity are declared inValid, void and
unenforceable by Defendant and its agents." He further certified the order for
interlocutory review under RAP 2.3(b)(4). The Court of Appeals granted
discretionary review, and we accepted transfer.
ANALYSIS
We hold the neurodevelopmental therapies mandate and the mental health
parity act do not conflict. The mental health parity act requires insurers to provide
NOT coverage in individual plans when the therapies are medically necessary to
2 This is the date the mental health parity act became applicable to individual health
plans. See LAWS OF 2007, ch. 8, § 1.
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treat mental disorders recognized in the DSM-IV-TR if the insurance contract covers
medical and surgical services. 3 We also affirm the trial court's order granting partial
summary judgment.
A Standard of Review
We review matters of statutory interpretation de novo. Oep't of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). We use that same
standard to review grants of summary judgment. Camicia v. Howard S. Wright
Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014).
B. Statutory Interpretation
Our fundamental goal in statutory interpretation is to "discern and implement
the legislature's intent." State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201(2007). If a statute's meaning is plain on its face, we "give effect to that plain meaning
as an expression of legislative intent." Campbell & Gwinn, LLC, 146 Wn.2d at 9-10.
We derive the plain meaning from the language of the statute and related statutes.
/d. "When the plain language is unambiguous-that is, when the statutory language
adt11its of only one meaning-the legislative intent is apparent, and we will not
construe the statute otherwise." State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 3183 Regence BlueShield argues that there is no justiciable issue before the court, so a
declaratory judgment would be inappropriate. We reject this argument. O.S.T and L.H. are
both diagnosed with mental disorders recognized in the DSM-IV- TR, Regence BlueShield
insures both of them on individual plans, both of their contracts contain blanket exclusions
for neurodevelopmental therapies, and both need neurodevelopmental therapies. Regence
BlueShield has denied coverage to O.S.T. While Regence BlueShield has not denied claims
for L.H., the risk of it doing so is more than merely hypothetical or speculative. Diversified
Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 814,.15, 514 P.2d 137 (1973).
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(2003). However, when the statute is ambiguous orthere are conflicting provisions,
"we may arrive at the legislature's intent by applying recognized principles of
statutory construction." !d.
We begin with an analysis of the plain language of the NOT mandate. The
legislature passed the mandate in 1989. LAWS OF 1989, ch. 345; RCW 48.44.450.
It provides:
(1) Each employer-sponsored group contract for comprehensive
health care service[s] shall include coverage for
neurodevelopmental therapies for covered individuals age. six and
under.
(2) Benefits provided under this section shall cover the services of
those authorized to deliver occupational therapy, speech therapy, and
physical therapy ....
(3) Benefits provided under this section shall be for medically
necessary services as determined by the health care service
contractor. Benefits shall be payable for services for the maintenance
of a covered individual in cases where significant deterioration in the
patient's condition would result without the service. Benefits shall be
payable to restore and improve function.
RCW 48.44.450 (emphasis added).
The plain language of the mandate suggests legislative intent to expand
coverage for therapies, but to do so in a limited way. It mandated expanded
coverage only for group insurance plans and, within those plans, only for children
under age seven. /d.
Sixteen years later, the legislature enacted another mandate, which requires
health insurers to provide coverage for "mental health services." See RCW
48.44.341. The legislature passed the mandate after finding that the cost of leaving
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mental disorders untreated is significant. See LAWS OF 2005, ch. 6, § 1. Costs
include:
[d]ecreased job productivity, loss of employment, increased. disability
costs, deteriorating school performance, increased use of other health
services, treatment delays leading to more costly treatments, suicide,
family breakdown and impoverishment, and institutionalization,
whether in hospitals, juvenile detention, jails, or prisons.
The mental health parity act provides:
(2) All health service contracts providing health benefit plans
that provide coverage for medical and surgical services shall provide:
(b) For all health benefit plans[ 5l delivered ... on or after
January 1, 2008, coverage for:
4 The legislature also found:
Treatable mental disorders are prevalent and often have high impact
on health and productive life. The legislature finds that the potential benefits
of improved access to mental health services are significant. Additionally, the
legislature declares that it is not cost-effective to treat persons with mental
disorders differently than persons with medical and surgical disorders.
Therefore, the legislature intends to require that insurance coverage
be at parity for mental health services, which means this coverage be
delivered under the same terms and conditions as medical and surgical
services.
/d.
5Originally, the mental health parity act covered only group health benefit plans for groups
of more than 50 employees. LAWS OF 2005, ch. 6, § 4. However, in 2007, the legislature
expanded the scope of the mental health parity act to cover all health benefit plans. LAWS
OF 2007, ch. 8, § 3.
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(i) Mental health services[61....
RCW 48.44.341. The legislature defined "mental health services" as "medically
necessary outpatient and inpatient services provided to treat mental disorders
covered by the diagnostic categories listed in the most current version of the
diagnostic and statistical manual of disorders .... " RCW 48.44.341 (1 ). 7
The language of the mental health parity act evidences legislative intent to
require health insurers to cover treatment for mental health disorders and to do so
in parity with the medical and surgical services it covers. Expressive language
disorder and autistic disorder are mental disorders recognized in the DSM-/V- TR at
pages 58-61 and 70-75. By the plain language of the mental health parity act, the
legislature did not create an exception for autism (or expressive language disorder)
or the neurodevelopmental therapies that treat these disorders. See RCW
48.44.341 (1 ). Therefore, under the language of the statute, the mental health parity
6 RCW 48.44.341 (2)(i) continues:
The copayment or coinsurance for mental health services may be no more
than the copayment or coinsurance for medical and surgical services
otherwise provided under the health benefit plan. Wellness and preventive
services that are provided or reimbursed at a lesser copayment, coinsurance,
or other cost sharing than other medical and surgical services are excluded.
from this comparison. If the health benefit plan imposes a maximum out-of-
pocket limit or stop loss, it shall be a single limit or stop loss for medical,
surgical, and mental health services . . . . ·
7The legislature expressly excluded certain services from the definition of "mental health
services." See RCW 48.44.341 (1) ("(a) Substance related disorders; (b) life transition
problems ... ; (c) skilled nursing facility services, home health care, residential treatment,
and custodial care; and (d) court ordered treatment unless the health care service
contractor's medical director or designee determines the treatment to be medically
necessary").
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act requires coverage for medically necessary neurodevelopmental therapies if they
are used to treat a mental disorder recognized in the DSM-IV- TR.
The NOT mandate and mental health parity act are unambiguous and do not
conflict. 8 The scope of each is different. One statute addresses neurodevelopmental
therapies generally and does not require that they be used to treat a mental disorder
recognized in the DSM-IV-TR. See RCW 48.44.450. The other broadly mandates
coverage for all medically necessary treatment for mental disorders recognized in
the DSM-IV- TR, except as expressly excluded (provided the contract covers medical
and surgical services). See RCW 48.44.341 (1 ), (2).
Under the plain language of the statute, we conclude that the NOT mandate
creates a minimum level of required coverage for neurodevelopmental therapies.
However, when neurodevelopmental therapies are medically necessary to treat
mental disorders in the DSM-IV-TR, the mental health parity act requires additional
coverage. Insurers must meet the requirements of both acts. 9
8 Because the statutory language is unambiguous, we find it unnecessary to inquire
into legislative history or failed, subsequent bills. See Campbell & Gwinn, LLC, 146 Wn.2d
at 12.
9 Regence BlueShield asks us to attach significance to the fact that the Washington
State Office of the Insurance Commissioner (OIC) has never disapproved Regence
BlueShield's NOT exclusion. We decline to do so. Assuming that this constitutes an agency
interpretation, we afford the agency interpretation deference only if the interpretation is not
contrary to the plain language of the statute. Port of Seattle v. Pollution Control 1-lr'gs Bd.,
151 Wn.2d 568, 612, 90 P.3d 659 (2004). According to the plain language of the mental
health parity act, insurers must provide coverage for mental health services, including
neurodevelopmental therapies, if they are medically necessary to treat mental disorders
recognized in the DSM-IV-TR. RCW 48.44.341. Regence BlueShield's exclusion was
contrary to the plain language of the mental health parity act, and OIC's action (or inaction)
is irrelevant.
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C. Regence BlueShield's Arguments
Regence BlueShield makes several failing arguments. It first argues that
neurodevelopmental therapies are an exception to the mental health parity act. It
arrives at this conclusion using the statutory maxim expressio unius est exclusio
alterius. Applying this maxim, Regence BlueShield argues that the NOT mandate
has both positive and negative requirements. The positive is that employer-
sponsored plans must provide NOT coverage to children through age six. See RCW
48.44.450(1 ). The negative is that no employer-sponsored plan is required to cover
NOT to children over age six, and no other health plan is required to provide NOT
benefits. See RCW 48.44.450(1 ). Under this interpretation, Regence BlueShield
argues that the two statutes conflict-the mental health parity act requires coverage
not required by the NOT mandate. Regence BlueShield concludes that the NOT
mandate is the more specific statute and, therefore, controls. Consequently, O.S.T.
and L.H. are not entitled to coverage.
Regence BlueShield's argument is unpersuasive. It would make sense to
apply the maxim expressio unius est exclusio alterius if the statutory language was
ambiguous and the legislature never had enacted the mental health parity act.
However, once the legislature passed the mental health parity act, the statute
requires coverage regardless of the NOT mandate. The statutory maxim is
subordinate to the primary rule of statutory interpretation, which is to follow legislative
intent. See De Grief v. City of Seattle, 50 Wn.2d 1, 12, 297 P.2d 940 (1956). The
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legislature's clear intent is to require coverage for all medically necessary services
that treat mental disorders.
Regence BlueShield's reliance on the general-specific rule of statutory
interpretation is also misplaced. We will not apply the rule because the statutes do
not conflict. The rule of statutory construction applies only if, after attempting to read
statutes governing the same subject matter in pari materia, we conclude that the
statutes conflict to the extent they cannot be harmonized. In re Estate of Kerr, 134
Wn.2d 328, 343, 949 P.2d 810 (1998); Residents Opposed to Kittitas Turbines v.
State Energy Facility Site Evaluation Council, 165 Wn.2d 275, 308-10, 197 P.3d
1153, 1170 (2008) (EFSEC). Under the principle of statutory construction, the
specific statute prevails over a general statute. Kerr, 134 Wn.2d at 343; EFSEC,
165 Wn.2d at 308-310. In situations where the legislature enacts a general statute
after a specific statute, we construe "the original specific statute as an exception to
the general statute, unless expressly repealed." EFSEC, 165 Wn.2d at 309. The
statutes do not conflict, so there is no need to apply the rule of statutory construction.
Second, Regence BlueShield argues that our interpretation of the mental
health parity act constitutes an implicit repeal. "Repeal by implication occurs when
an act not purporting to repeal any prior act is wholly or partially inconsistent with a
prior statute . . . . " 1A NORMAN J. SINGER & J.D. SHAMBlE SINGER, SUTHERLAND
STATUTORY CONSTRUCTION § 22:22, at 320-21 (7th ed. 2007). We disfavor repeals
by implication, and will not find repeal by implication "where earlier and later statutes
may logically stand side by side and be held valid." Bellevue Sch. Dist. No. 405 v.
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Brazier Constr. Co., 103 Wn.2d 111, 123, 691 P.2d 178 (1984 ); see Tardiff v.
Shoreline Sch. Dist., 68 Wn.2d 164, 166, 411 P.2d 889 (1966); Our Lady of Lourdes
Hosp. v. Franklin County, 120 Wn.2d 439, 450, 842 P.2d .956 (1993) ("Under the 2-
pronged test for such repealer, the later act must cover the entire subject matter of
the earlier legislation, be complete in itself, and be intended to supersede prior
legislation on the subject; and the two acts must be so clearly inconsistent and so
repugnant to each other that they cannot be reconciled."). "Where an amendment
may be harmonized with the existing provisions and purposes of a statutory scheme,
there is no implicit repeal." Gilbert v. Sacred Heart Med. Ctr., 127 Wn.2d 370, 375,
900 P.2d 552 (1995); see 1A SUTHERLAND STATUTORY CONSTRUCTION, supra, § 23:9,
at 468-69 ("[l]f the 'inconsistency between a later act and an earlier one is not fatal to
the operation of either, the two may stand together and no repeal is effected.").
Here, the statutes may stand side by side and fulfill their respective purposes.
The NOT mandate changed common law. Insurers may limit their liability, unless the
exclusion is inconsistent with public policy or a statutory mandate. Carr v. Blue Cross
of Wash. & Alaska, 93 Wn. App. 941, 948, 971 P.2d 102 (1999). By enacting the
NOT mandate, the legislature changed the law as applied to employer-sponsored
plans for children under age seven, thus setting the floor on required coverage
concerning employer-sponsored plans. Almost two decades later, the legislature
added another coverage mandate-this time requiring parity for mental health
services. The effect of the later statute does not nullify the effects of the former. The
express language of the NOT mandate simply requires coverage for group plans with
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children under age seven. The mental health parity act created a different floor for
medically necessary treatments for mental disorders. Therefore, the mental health
parity act does not implicitly repeal the NOT mandate ..
Finally, Regence BlueShield. argues that . because "providers of
neurodevelopmental therapies-occupational, speech, and physical therapists-
may not provide mental-health services, those therapies cannot be considered
mental-health services, and the [mental health] Parity Act does not apply." Appellant
Regence BlueShield's Opening Br. at 18. It reaches this conclusion by exporting
from another chapter of the statute the definition of "mental health care practitioners."
See RCW 48.43.087. Regence BlueShield's reasoning is flawed. The definition was
only "for purposes of [the] section" of the statute that allows insurance enrollees to
agree to contract for other services at their own expense. RCW 48.43.087(1 )(c), (2).
An additional red flag is that RCW 48.43.087(1 )(d) provides a definition for "mental
health services" that is different from the one provided in the mental health parity act.
Clearly, the definitions in RCW 48.43.087 do not apply to the mental health parity
act.
D. Summary Judgment
Having interpreted the statutes, we now analyze whether the trial court
properly granted summary judgment. Summary judgment is appropriate only if
"there is no genuine issue as to any material fact and ... the moving party is entitled
to a judgment as a matter of law." CR 56(c). We grant motions only if reasonable
people could reach one conclusion based on the evidence when viewing the facts in
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the light most favorable to the nonmoving party. Korslund v. DynCorp Tri-Cities
Servs., Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Here, the trial court
appropriately granted summary judgment on the declaratory judgment claim.
Under the Uniform Declaratory Judgments Act, chapter 7.24 RCW, "[c]ourts
of record within their respective jurisdictions shall have power to declare rights,
status and other legal relations whether or not further relief is or could be claimed."
RCW 7.24.01 0. "A person interested under a deed, will, written contract or other
writings constituting a contract, or whose rights, status or other legal relations are
affected by a statute [or] contract . . . may have determined any question of
construction or validity arising under the instrument, statute, ordinance, contract or
franchise and obtain a declaration of rights, status or other legal relations
thereunder." RCW 7.24.020. Here, the plaintiffs ask the court to determine the
validity of a provision in their health contracts under Washington law.
Under the mental health parity act, all health benefit plans must provide
coverage for "mental health services" if they provide coverage for medical and
surgical services. RCW 48.44.341(2)(c). Neurodevelopmental therapies qualify as
"mental health services" if they are medically necessary to treat a mental disorder
covered by the DSM-IV- TR. RCW 48.44.341.
Regence BlueShield is a health care service contractor, it entered into
contracts with O.S.T. and L.H. for individual policies, and neither party questions that
the plans provide coverage for medical and surgical services. The plans contain a
blanket exclusion for all neurodevelopmental therapies, meaning that the plans
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exclude therapies regardless of whether they are medically necessary. Therefore,
the blanket exclusion violates the mental health parity act if neurodevelopmental
therapies may be medically necessary to treat mental disorders.
"Medically necessary" is defined under Regence BlueShield contracts:
MEDICALLY NECESSARY: Means health care services or supplies
that a Physician or other health care provider exercising prudent clinical
judgment, would provide to a Member for the purpose of preventing,
evaluating, diagnosing or treating an illness, injury, disease or its
symptoms and that are:
1.17.1 In accordance with generally accepted standards of medical
practice;
1.17.2 Clinically appropriate, in terms of type, frequency, extent, site
and duration, and considered effective for the Member's illness, injury
or disease; and
1.17. 3 Not primarily for the convenience of the Member, Physician or
other health care provider, and not more costly than an alternative
service or sequence of services, or supply at least as likely to produce
equivalent therapeutic or diagnostic results as to the diagnosis or
treatment of the Member's illness, injury or disease.
For these purposes, "generally accepted standards of medical practice"
• means standards that are based · on credible scientific evidence
published in peer-reviewed medical literature generally recognized by
the relevant medical community, Physician Specialty Society
recommendations and the views of Physicians practicing in relevant
clinical areas and any other relevant factors ..
(Emphasis added.)
Regence BlueShield argues that there is a genuine issue of material fact
concerning whether neurodevelopmental therapies may be "medically necessary."
However, there is no real disagreement that neurodevelopmental therapies meet the
definition of "medically necessary" in Regence BlueShield's own contract By the
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terms of the contract, a service may be "medically necessary" if it treats the
symptoms of a disease or illness (and meets other enumerated qualifications). The
service does not need to cure the illness; it is sufficient to treat the symptoms of the
illness.
The executive medical director at Regence BlueShield, Dr. Joseph Gifford,
recognizes, "[Autism Spectrum Disorder (ASD)] is a complex disorder, the exact
cause of which is unknown. Most services are focused on improving physical, social,
and functional problems that impact the functional status of individuals." 10
The plaintiffs submitted declarations from Dr. Charles Cowan, the medical
director of Seattle Children's Hospital Autism Center and a clinical professor in
pediatrics and psychiatry at the University of Washington School of Medicine. He
states:
Neurodevelopmental therapies (such as speech, occupational, and
physical therapies) are a critical component of treating autism. Often,
these therapies are the only specialized medical interventions provided
to young children with autism. In Washington [S]tate, it is a standard
medical practice to have young children suspected of having autism
evaluated by neurodevelopmental therapists, and if such evaluations
reveal significant delays, treated with speech, occupational and
physical therapy.
Dr. Cowan additionally states:
[T]he medical community has embraced the conclusion that
neurodevelopmental therapies treat ASD as well as many other
developmental disorders. Like insulin therapy for diabetics,
neurodevelopmental therapies address the fundamental symptoms of
10Dr. Gifford also states that neurodevelopmental therapies do not actually treat the autism.
He does not consider treatment to include services that improve the function of the
beneficiary. However, such services meet Regence BlueShield's definition of "medically
necessary."
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the conditions and can dramatically improve those symptoms. The
purpose of neurodevelopmental therapies ... is to attempt to restore a
child's functional capacity to develop in a manner more consistent with
the normal pattern of human development. With these therapeutic
interventions, a child with ASD may be restored to the normal curve of
developmental milestones, or as near normal as possible.
Despite Regence BlueShield's contention, there is no genuine issue
preventing summary judgment-reasonable minds could not differ when viewing the
evidence in the light most favorable to the defendant. Neurodevelopmental
therapies may be medically necessary under Regence BlueShield's broad definition
of the term because neurodevelopmental therapies treat the symptoms of autism (a
mental disorder recognized in the DSM-IV-TR). Therefore, blanket exclusion of
these therapies violates the mental health parity act.
CONCLUSION
We affirm the trial court's order of partial summary judgment. Regence
BlueShield's blanket exclusion of neurodevelopmental therapies in its individual
policies violates the mental health parity act. If neurodevelopmental therapies are
medically necessary to treat mental disorders (and the contract provides coverage
for medical and surgical services), Regence BlueShield must provide coverage for
the therapies. The exclusion is void and invalid as a matter of VVashington law.
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WE CONCUR.
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