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 behalf and on behalf of all similarly situated individuals, Respondents, V. REGENCE BLUESHIELO, a Washington corporation, Appellant.
No. 88940-6
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
OCT 09 2014
WIGGINS, J.
En Banc
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WIGGINS, J.-Today‘s controversy arises from the enactment of two laws: the neurodevelopmental therapies mandate,
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.
The plaintiffs filed a class-action complaint, alleging breach of contract; declaratory relief; violation of the Washington Consumer Protection Act,
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
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. Id. “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 318 (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.” Id.
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;
(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.
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.
Sixteen years later, the legislature enacted another mandate, which requires health insurers to provide coverage for “mental health services.” See
[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.
Id.4
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 plans5 delivered . . . on or after January 1, 2008, coverage for:
(i) Mental health services6 . . . .
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-IV-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
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
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
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
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
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. 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
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
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
Under the Uniform Declaratory Judgments Act,
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.
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
“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
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
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.
Wiggins, J.
Madsen, C. J.
Stephens, J.
Johnson, J.
Gonzalez, J.
Owens, J.
Fairhurst, J.
Gordon McCloud, J.
Yu, J.
Notes
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.
Id.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 . . . . ·