ORDER
INTRODUCTION
The court has before it three pending motions. Dkt. ## 15, 28, 29. On November 29, 2012, defendants Regence BlueShield and Cambria Health Solutions, Inc., f/k/a The Regence Group (“Defendants”) filed a Fed. R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Dkt. # 15. Plaintiffs J.T. and S.A. (“Plaintiffs”) oppose the motion. Dkt. # 18. While that motion was pending, Plaintiff S.A. filed a motion for class certification, as well as a motion for partial summary judgment for declaratory and injunctive relief. Dkt. ##28, 29. Defendants oppose those motions. Dkt. ## 52-1, 53-1.
BACKGROUND
Plaintiffs filed suit on January 17, 2012, alleging that Defendants have failed to comply with Washington’s Mental Health Parity Act (“Parity Act”). Dkt. # l.
A. Plaintiff J.T.
J.T., who was 10 years old when Plaintiffs filed this case, is the son of K.T. and R.T. Dkt. #10 ¶ 1. J.T. is a beneficiary of the Puget Sound Energy, Inc. Health Plan, which was underwritten and administered by Regence BlueShield (“Regence”) until December 31, 2011. Id. ¶¶ 1, 5. J.T. has been diagnosed with Articulation Disorder and Re-eeptive/Expressive Language Disorder, conditions included in the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed.
B. Plaintiff S.A.
S.A. is the daughter of A.K. Dkt. #20 (A.K. Deck) ¶ 2. She is a beneficiary of the Disability Rights Washington (“DRW”) Health Benefit Plan, which is underwritten and administered by Regence. Dkt. # 10 ¶¶ 2, 5. She was born with Down Syndrome. Dkt. #20 ¶ 2. S.A’s health care plan provides coverage for neurodevelopmental therapy only to beneficiaries “age six and under with a neurodevelopmental delay.” Dkt. # 17-2 (Ex. D to Garrett Deck) at 22. The plan defines “neurodevelopmental delay” as “a delay in normal development that is not related to any documented Illness or Injury.” Id. “Illness” is defined as “a congenital malformation that causes functional impairment; a condition, disease, ailment, or bodily disorder.” Id. at 74. S.A.’s plan also provides coverage for rehabilitation services, which are described as “physical, occupational, and speech therapy services ... necessary to restore or improve lost function caused by Injury or Illness.” Id. at 24. Both benefits place an annual cap on coverage for outpatient services at $1500. Id. at 22,24.
In July 2010, A.K. wrote to Regence and asked whether her health plan would cover speech therapy for her 16-year-old “daughter with Down syndrome.” Dkt. # 20-1 at 8 (Ex. C to A.K. Deck). She received no response. Dkt. #20 ¶ 4. In November 2010, S.A. obtained a “School-Age Speech & Language Evaluation” from the Evergreen Speech & Hearing Clinic (“ESHC”). Dkt. # 20-1 at 2-4 (Ex. A to A.K. Deck). Kara Leach, a Speech-Language Pathologist at ESHC, diagnosed S.A. with Developmental Articulation Disorder and Expressive/Reeep-tive Language Disorder, both of which are mental health disorders included in the DSM-IV-TR.
On February 16, 2011, A.K. again wrote to Regence, stating that she had never received a response to her July 2010 letter. Dkt. #20-1 at 10 (Ex. D to A.K. Deck). She stated that she considered Regence’s lack of response to be a denial of her request for speech therapy for S.A., and asked that “Re-gence reconsider its decision and provide [her] daughter with speech therapy services.” Dkt. # 20-1 at 10. She enclosed a copy of the ESHC Evaluation, as well as the medical prescription for speech therapy. Dkt. # 20-1 at 10. Regence responded on February 22, 2011, stating that their “records indicate that there is not an adverse determination at this time,”
ANALYSIS
A. Parity Act
Prior to 2005, no Washington state law mandated that insurance providers include coverage for mental health services in their health benefit plans. See Dkt. # 19-1 at 137 (S.B. Rep., S.H.B. 1154 (Wash. 2005)). The legislature addressed this lack of coverage in the Parity Act, finding that “the costs of leaving mental disorders untreated or under-treated are significant,” and that “it is not cosLeffective to treat persons with mental disorders differently than persons with medical and surgical disorders.” See Dkt. # 19-1 at 104-05 (S.H.B. 1154, 59th Leg., 2005 Reg. Sess. (Wash. 2005)). The Parity Act’s objective was to achieve coverage for mental health services “under the same terms and conditions as medical and surgical services.” See id. at 105. The Parity Act defines “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 mental disorders.” ROW 48.44.341(1). The Act sets forth a five-year, three-phase implementation process. See ROW 48.44.341(2)(a)-(e).
The first phase of the Act, applicable to health benefit plans “delivered, issued for delivery, or renewed on or after January 1, 2006,” required that “[a]ll health service contracts providing health benefit plans that provide coverage for medical and surgical services shall provide ... [m]ental health services.” ROW 48.44.341(2)(a)(i). Additionally, the copayment for such services could be no greater than the copayment for medi
Phase two, applicable to health plans delivered, issued, or renewed on or after January 1, 2008, incorporated the mandates of phase one and added the requirement that any health benefit plan that imposed a maximum out-of-pocket limit or stop loss must impose a single limit or stop loss for medical, surgical, and mental health services. RCW 48.44.341(2)(b)(i).
The final phase, applicable to plans delivered, issued, or renewed on or after July 1, 2010, incorporates the mandates of the previous two phases and adds the condition that that any deductible requirement include mental health, medical, and surgical services. Additionally, this phase adds the provision that “[tjreatment limitations or any other financial requirements on coverage for mental health services are only allowed if the same limitations or requirements are imposed on coverage for medical and surgical services.” RCW 48.44.341(2)(e)(i).
B. Subject Matter Jurisdiction — Fed. R. Civ. P. 12(b)(1)
A challenge to subject matter jurisdiction may be either facial or factual. Savage v. Glendale Union High School,
1. J.T.
Defendants argue that this court lacks subject matter jurisdiction over J.T.’s claims because J.T.’s health plan was not delivered, issued, or renewed on or after July 1,2010. See Dkt. # 151 at 1-2. They contend that Regence’s policy of limiting coverage for neurodevelopmental therapy to patients age six and younger constitutes an age-based “treatment limitation,” and that treatment limitations were permitted until the third phase of the Parity Act went into effect. Dkt. # 15 at 4. Thus, they conclude that J.T. “was not denied benefits under a plan that was subject to the Parity Act’s treatment limitations mandate.” Dkt. # 15 at 6. Plaintiffs dispute Defendants’ characterization of the age-based restriction on neurodevelopmental therapy, arguing that it constitutes an exclusion from coverage rather than a treatment limitation. Dkt. # 18 at 19. They contend that such exclusions have been impermissible since the inception of the Parity Act in 2006. Dkt. # 18 at 19.
Defendants rely in part on Z.D. v. Group Health, Case No. C11-11 19-RSL,
A court’s objective in interpreting a statute is to effectuate the legislature’s intent. See Bostain v. Food Exp., Inc.,
The clause at issue here states that “[tjreatment limitations or any other financial requirements on coverage for mental health services are only allowed if the same limitations or requirements are imposed on coverage for medical and surgical services[.]” See ROW 48.44.341(2)(c)(i). The use of the phrasing “other financial requirements” indicates that “treatment limitations” are a type of financial requirement, such as monetary caps on benefits. Additionally, the inclusion of the phrase “on coverage” presumes that coverage exists, which is consistent with the original mandate of the Parity Act to provide coverage. See ROW 48.44.341(2)(a)(i). Reading RCW 48.44.341 as a whole indicates that although the coverage mandate originated in phase one, it was permissible to impose certain financial limits or requirements on that coverage until full parity was achieved in phase three. What was not permissible in phase one was to completely exclude coverage for an entire class of beneficiaries.
The provision in J.T.’s health plan regarding neurodevelopmental therapy services states that “[t]he benefits described below will be provided for the treatment of neuro-developmental delay when treatment is performed for the purpose of restoring and improving function for children age six and under.” Dkt. # 17 at 26. This provision necessarily means neurodevelopmental therapy will not be provided for beneficiaries age seven and over. See id. Dr. Richard Rai-ney, executive medical director for Regence and Defendants’ Fed.R.Civ.P. 30(b)(6) witness, confirmed that Regence “follows its contract language and excludes care for individuals that are over the age of six for neuro-developmental therapies.” Dkt. # 19-1 at 6 (Rainey Dep. at 18:6-11) (emphasis added); id. at 3 (6:19-7:1), 4 (10:18-11:3); see also id. at 8 (27:11-20), 14 (49:18-50:10). J.T.’s health plan did not merely limit the coverage available to him for his medically necessary speech therapy; it provided him with no coverage whatsoever. J.T. thus has standing to pursue his claims against Defendants.
2. S.A.
Defendants contend that S.A. has not established a redressable injury causally connected to Defendants’ actions, and thus does not have constitutional standing to bring her claims. They cite the fact that Regence paid the only claim that S.A. submitted, and the fact that they have repeatedly indicated that S.A. is eligible for coverage under the rehabilitation benefit. Dkt. # 15 at 15. Preliminarily, the court notes that the relief that S.A. seeks, and thus her underlying arguments, have been something of a moving target. Initially, it appeared that S.A. sought only to abolish the age restriction
Just like any other plaintiff, a plaintiff bringing an ERISA claim must have standing pursuant to Article III of the United States Constitution. Paulsen et al. v. CNF, Inc., et al,
a. First Claim for Relief — ERISA § m(A)(l)
A beneficiary of an ERISA-governed plan may bring an action against a fiduciary of that plan. 29 U.S.C. §§ 1109, 1132(a)(2). A fiduciary who breaches his duties “shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate.” 29 U.S.C. § 1109(a). Any relief sought for a breach of
Again, S.A.’s arguments supporting her claim have evolved over the course of this litigation. In the FAC, S.A. stated that she seeks “recovery of all losses to the Plans, including (but not limited to) relief compelling Regence to restore to the Plans all losses (including interest) arising from Regenee’s breaches of fiduciary duties.” Dkt. # 10 ¶ 38. In her demand for relief, she requested that the court “[ejnter judgment on behalf of the Plans, plaintiffs and the class for losses sustained by such Plans due to Regence’s breaches of fiduciary duties.” Dkt. # 10 at 13 ¶ 2. Yet, S.A. has not alleged that the plan in fact suffered any losses. However, in her response to Defendants’ motion to dismiss, S.A. argued that remedies are available even where a plan has suffered no losses, and that, as a beneficiary of the plan, she has standing to pursue “injunctive relief that would permit her to finally receive the neurodevelopmental therapy she requires.” Dkt. # 18 at 27. She cited the alleged breach as Defendants’ issuance of “policies that purported to exclude neurodevelopmental therapies for insureds over six.” Dkt. # 18 at 27. Then, in her motion for summary judgment, she stated that she seeks, pursuant to the “equitable and remedial relief’ provision of § 502(a)(2), “a permanent injunction (a) precluding Re-genee from denying neurodevelopmental therapy benefits to treat individuals with DSM-IV-TR mental health conditions because they are over the age of six; and (b) requiring that Regence cover neurodevelop-mental mental health services under its mental health benefit.” Dkt. # 29 at 22-24. But then, in her reply in support of that motion, S.A. asserted that she “is not seeking the payment of benefits under [§ 502(a)(2) ],” but that she is invoking this provision merely “to enjoin Regence from issuing plans with illegal and misleading plan terms.” Dkt. #42 at 14. The court will thus consider whether she has standing to pursue this particular relief.
Regence is a fiduciary under ERISA. See Aetna Health Inc. v. Davila,
b. Second Claim for Relief — ERISA § 502(a)(1)(B)
Pursuant to ERISA § 502(a)(1)(B), a beneficiary of an ERISA-governed plan may bring an action “to recover benefits due to him under the terms of his plan, to enforce his.rights under the terms of the plan, or to clarify his rights to future benefits under the
The requisite injury-in-faet pursuant to Article III must be actual or threatened, and not merely speculative. See Lujan,
Under the circumstances of this case, the court finds that S.A’s lack of action is not evidence that she is disinterested in treatment or that the harm she faces is purely speculative. The prescribed course of therapy requires sessions two times per week for four to six months, and A.K. has stated that she cannot afford this expense until she has assurances that Regenee will reimburse her. Dkt. ## 20 ¶ 5; 20-1 at 4. Due to the frequency of the therapy, A.K. stands to incur the costs of several of S.A.’s sessions before Regenee could even consider her claims. The injury that S.A. faces is thus not purely hypothetical or speculative.
S.A. also meets Article Ill’s causation and redressability requirements. She alleges that Defendants’ practice of covering neurodevelopmental therapies to treat DSM-IV conditions under plan provisions other than the mental health services benefit violates the Parity Act, and that this violation impedes her access to medically necessary treatments. She contends that an order from this court requiring Defendants to provide coverage for her therapies under the mental health services benefit will redress this injury. Without commenting on the merits of these contentions, the court finds that they are sufficient to establish Article III standing.
e. Third Claim for Relief — ERISA § 502(a)(3)
An ERISA beneficiary may also seek equitable relief via 29 U.S.C. § 1132(a)(3), and S.A. has done so here. Again, Defendants contend that S.A. has not suffered an injury sufficient to confer Article III standing. See Dkt. # 22 at 11-12. However, for all of the reasons set forth above, the court finds that she has sufficiently established the requisites to pursue equitable relief as allowed by this provision.
C. Class Certification
“The class action is ‘an exception to the usual rale that litigation is conducted by and on behalf of the individual named parties only.’ ” Comcast Corp. et al. v. Behrend et al., — U.S. —,
A plaintiff seeking class certification has the burden of demonstrating that the
Numerosity is satisfied where joinder would be impracticable. Smith v. Univ. of Wash. Law Sch.,
The typicality requirement of Rule 23(a) ensures that the interests of the named plaintiff align with those of the class. Fed.R.Civ.P. 23(a)(3); Hanon v. Dataproducts Corp.,
Here, S.A.’s claims are not typical. She has been diagnosed with Down Syndrome, and, as illustrated above, this diagnosis has implications for her claims. S.A. has conceded that she is not eligible for the DRW plan’s neurodevelopmental therapy benefit (regardless of her age), which renders her without standing to challenge the age restriction contained therein. Additionally, S.A. and Defendants dispute whether S.A. has even been properly diagnosed with a DSM-IV mental disorder. Compare Dkt. ## 20-1 at 2, uñth 50 ¶ 4. S.A.’s claims are thus not typical of potential class members who have only DSM-I V diagnoses, or are otherwise undisputedly eligible for coverage under the neurodevelopmental therapy benefit but are excluded due to age.
To meet the commonality requirement, a plaintiff must demonstrate that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). The Supreme Court has explained that this requirement is better understood as an inquiry into “ ‘the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.’ ” Wal-Mart Stores v. Dukes, — U.S. —,
In her motion for class certification, S.A. presented the common question as: “Does Regenee’s exclusion of neurodevelopmental therapies for its insureds over the age of six with DSM-IV-TR mental conditions violate the Mental Health Parity Act?” Dkt. # 28 at 12. Yet, as discussed above, the resolution of this question is not applicable to S.A. (and thus not common to her), given that she is ineligible for that benefit regardless of her age. In her reply in support of her motion for class certification, S.A. presented a new version of the common question: “Must Re-gence provide coverage for speech, oecupa-
The adequacy requirement under Rule 23(a) has two components: (1) whether any conflicts of interests exist between plaintiffs and their counsel and other class members, and (2) whether plaintiffs and their counsel will vigorously prosecute the action on behalf of the class members. Fed. R.Civ.P. 23(a)(4); Hanlon v. Chrysler Corp.,
D. Partial Summary Judgment — Declaratory and Injunctive Relief
Summary judgment is appropriate where no genuine issue of material fact exists and judgment is appropriate as a matter of law. Fed.R.Civ.P. 56(c). The moving party has the initial burden of proving each element of her claims or defenses and that no genuine issue of fact exists. Celotex Corp. v. Catrett,
In her motion for partial summary judgment, S.A. asks this court to clarify the rights of S.A. and the class by (1) enjoining Regence from applying its neurodevelopmen-tal therapy exclusions for persons over the age of six; (2) ordering Defendants to cover neurodevelopmental therapies to treat DSM-IV conditions under the “mental health services” benefit; and (3) ordering immediate corrective notice to class members and reformation of Defendants’ ERISA plan documents. Dkt. # 29 at 8-9, 29.
1. Neurodevelopmental Therapy Exclusion
Citing 29 U.S.C. 1132(a)(1)(B), S.A. first asks this court to “declare that Regence may not exclude medically necessary neurodevel-opmental therapies to treat DSM-IV-TR conditions for individuals in its insured ERISA plans, such as S.A., based on the insured’s age.” Dkt. # 29 at 21. However, as the court explained above, S.A. has conceded that her speech therapy would not be covered under this benefit even if it contained no age restriction, and thus she does not have a redressable injury. S.A. therefore may not contest the neurodevelopmental therapy provision.
2. Coverage Under the Mental Health Services Benefit
Next, S.A. asks this court to order Defendants to cover neurodevelopmental therapies to treat DSM-IV conditions under the “mental health services” benefit. Dkt. # 29 at 21. She contends that when neurodevelopmental
S.A. states that she is entitled to summary judgment on this issue because “[i]t is undisputed that [her] recommended speech therapy is designed to treat her DSM-IV-TR mental health conditions.” Dkt. #42 at 8. However, S.A’s contention that this is “undisputed” is incorrect. Defendants have presented evidence disputing S.A.’s expert, and calling her DSM-IV diagnoses into question. Dkt. # 50 (Stein Deck) ¶¶ 4, 6. S.A. is thus not entitled to judgment as a matter of law.
Even if this issue were undisputed, the court finds the recent rulings in this District and in King County Superior Court persuasive. The Z.D. court and the King County Superior Court recently considered and rejected similar arguments regarding limitations on neurodevelopmental therapies. Z.D.,
The court rejected this argument, finding that what the plaintiffs were asking for was “more than parity.” Id. The court held that “the therapies covered under Group Health’s rehabilitation benefit — occupational, physical, and speech therapies — are exactly the same therapies Plaintiffs want covered when medically necessary to treat mental disorders,” and thus “in this case, where Group Health has a specific benefit addressing the exact therapies for which Plaintiffs seek coverage, that benefit is not too narrow a comparator.” Id. The court ultimately held that Group Health’s visit limits on neurodevelopmental therapies did not violate the Parity Act. Id. at *3.
In O.S.T., the court considered the propriety of annual monetary caps on neurodevel-opmental therapy services. Dkt. # 62-1 at 2 (O.S.T. at 2). The court followed the Z.D. court’s reasoning and concluded that “Re-gence’s cap on neurodevelopmental therapies to treat mental health disorders is allowed under the [Parity] Act because Regence applies the exact same cap on coverage to those therapies when used to treat physical health conditions.” Dkt. #62-1 at 5 (O.S.T. at 5).
Here, S.A. contends that the issue of treatment limits is not before this court, and that “[w]hether Regence might attempt to impose such limits under its contracts is an issue for another day.” Dkt. # 59 at 3. However, the result that she seeks (a court order requiring Regence to provide coverage under its limitless mental health services benefit) necessarily invokes the same principles at issue before the Z.D. and O.S.T. courts. This court finds their reasoning persuasive. The Parity Act requires parity. It does not require that persons seeking treatment for DSM-IV conditions be treated more favorably than persons seeking treatment for physical conditions.
CONCLUSION
For all of the foregoing reasons, the court finds as follows:
(1) The court DENIES Defendants’ motion to dismiss for lack of subject matter jurisdiction.
(2) The court DENIES Plaintiff S.A’s motion to certify the class.
(3) The court DENIES Plaintiff S.A’s motion for partial summary judgment.
Notes
. Defendants’ initial opposition briefe were filed at Dkt. ## 35 and 36. They subsequently filed corrected briefs. Dkt. ## 52-1, 53-1.
. S.A. was not named as a plaintiff in the original complaint, but was added to the amended complaint ("FAC") filed March 8, 2012. See Dkt. ## 1, 10.
. The neurodevelopmental therapies relevant to this case are speech, occupational, and behavioral therapy.
. Defendants dispute that this is a proper diagnosis. See Dkt. # 50 (Stein Decl.) ¶ 4.
. It appears that Lisa provided the International Classification of Diseases, 9th Revision, Clinical ModiScation ("ICD-9-CM”) codes rather than the DSM-IV diagnosis codes, but that the codes she provided correspond with Leach’s diagnoses. See Dkt. ##20-1 at 2; 34-1 at 20; 40-1 at 7-13 (Ex. 1 to Marisseau Deck).
. S.A. does not allege that A.K. was aware that this conversation took place.
. Regence contends that it did not receive the July 2010 letter until A.K. sent a copy of it with her February 2011 letter. Dkt. #17 at 3 ¶ 8 (Garrett Deck).
. The Parity Act’s requirements apply to five types of insurance plans: plans administered by the Washington State Health Care Authority, plans provided by disability insurers, plans provided by health care services contractors, plans provided by health maintenance organizations, and benefits provided by the Washington Basic Health Plan. Dkt. # 19-1 at 141 (Final H.R. B. Rep., S.H.B. 1154 (Wash. 2005)). RCW 48.44 relates to plans provided by health care service contractors, the type of plan at issue here.
. Defendants also argued in their motion to dismiss that J.T. does not have standing to pursue prospective relief because he is no longer insured by Regence. Dkt. #15 at 2. However, Plaintiffs have since clarified that J.T. is seeking only retrospective relief. Dkt. # 18 at 8 n. 3.
. The mental health services benefit “coverfs] Mental Health Services for treatment of Mental Health Conditions," which it defines as "Mental Disorders in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders." Dkt. # 17-2 at 22. It defines "mental health services” to include "Medically Necessary outpatient services." Id. The benefit does not contain an annual monetary cap on coverage like the neurodevelopmental therapy or rehabilitation benefits do. Id. at 22, 24.
. Defendants pointed out at oral argument that S.A.'s contentions regarding coverage under the mental health services benefit is a new argument that was not expressly identified in the complaint. Defendants’ point is well taken, and the court is well aware of the evolving nature of S.A.'s arguments thus far. However, the court finds that although S.A. did not expressly raise this particular issue in the FAC, the FAC did give Defendants sufficient notice that Plaintiffs would challenge Regence's "policies or practices that wholly exclude or impermissibly limit services to treat conditions listed in the DSM-IV-TR, including neurodevelopmental and behavioral therapies.” Dkt. # 10 at 13 ¶ 3. S.A.'s current argument that neurodevelopmental therapies to treat DSM-IV conditions must be covered under the mental health services benefit in order to comply with the Parity Act falls under this umbrella.
. Defendants argue that, as a threshold requirement, the Plaintiffs must demonstrate that the class they seek to certify is "ascertainable.” Dkt. # 52-1 at 6-7. However, Defendants cite no Ninth Circuit authority for this proposition, nor is the court aware of any. Although some other circuits and lower courts have imposed an "as-certainability” requirement, the court believes that this concept is encompassed within the prerequisites in Rule 23 and does not require a separate analysis.
. Plaintiffs contend that another potential class member, B.S., could substitute in as class representative if this court has concerns about S.A. Dkt. # 28 at 15 n. 3. However, they have presented no motion on that issue and thus the court declines to address substitution at this time.
. The court notes that Defendants have made numerous representations regarding S.A.’s eligibility for coverage under the rehabilitation benefit. The court thus expects that, should S.A. pursue coverage under this benefit, she will not encounter any problems in doing so.