1. Case Name: O.S.T. et al., v. Regence Blue Shield, Supreme Court of Washington, October 9, 2014. 181 Wn.2d 691, 335 P.3d 416
- Counsel for Plaintiff: Eleanor Hamburger, Richard Spoonemore, Sirianni Youtz Spoonemoore Hamburger
- Counsel for Defendant: Timothy J. Parker, Jason W. Anderson, and Gregory M. Miller, Carney Badley Spellman PS
3. Format: Published opinion affirming the trial court’s order of partial summary judgment.
- Type of Treatment Services Denied: Plaintiff’s claims for outpatient neurodevelopmental therapy was denied.
- ERISA Claim? No.
- Class Action/or Individual Action: Class action.
- Defendant: Defendant is Regence BlueShield, the Plaintiff’s insurance issuer.
- Type of Insurance Plan: Unclear.
- Type of Coverage Denial: Administrative denial – both Plaintiff O.S.T. and Plaintiff L.H. were denied coverage based on a categorical blanket exclusion in the policy.
- Causes of Action: The Plaintiff’s complaint alleges breach of contract, declaratory relief, violation of the Washington Consumer Protection Act and seeks injunctive relief.
5. Legal Pointer: Plaintiff’s insurance policy contained a blanket exclusion of neurodevelopmental therapy. The Plaintiffs, 6-year-old O.S.T. who suffers from autism, and 2-year-old L.H. who is diagnosed with expressive language disorder, challenge this exclusion.
6. Legal Issues and Causes of Action: The Plaintiff’s complaint alleges breach of contract, declaratory relief, violation of the Washington Consumer Protection Act and seeks injunctive relief.
- Ruling: The trial court granted partial summary judgment to the Plaintiffs, holding 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 that exclude coverage of neurodevelopmental therapies regardless of medical necessity are declared invalid, void and unenforceable by Defendant and its agents.” Here, the Court affirms the trial court’s order and finds that the categorical exclusion violates Washington’s Mental Health Parity Act.
7. Narrative Case Description: There are two named Plaintiffs – six-year-old O.S.T. and two-year-old L.H. O.S.T. was diagnosed with autism and receives speech, physical and occupational therapy and continued to receive neurodevelopmental therapies. L.H. was diagnosed with expressive language disorder, myotubular myopathy, profound hypotonia, and severe hydrocephalus. L.H. also receives speech, occupational, and physical therapy. Both Plaintiffs are, or were, insured by Defendant. Both Plaintiffs’ policies contained blanket exclusions for neurodevelopmental therapy.
The Defendants argued that the Washington Mental Health Parity Act and the WA Neurodevelopmental Therapies Mandate conflict. The Court examined this question first by looking at the plain language of the NDT mandate which suggests a legislative intent to expand coverage for neurodevelopmental therapies in a limited manner. Later, the legislature passed the Parity Act which expanded coverage for mental health/substance use disorders more broadly. These two statutes were found to be unambiguous and not to conflict.
In support of its argument that the two statutes do conflict, Defendants argue that the neurodevelopmental therapies are an exception to the Parity Act based on the statutory maxim expression unius est exclusion alterius. In its application, the Defendants argue that the NDT mandate has positive and negative requirements and that ultimately, the NDT statute conflicts with the Parity Act. The Court does not find this argument persuasive because the statutory language is not ambiguous.
The Defendants also argue that where the legislature adopts a general statute after a specific statute, the original specific statute is an exception to the general statute unless repealed. However, again, the statutes do not conflict. The Court also states that it disfavors repeals by implication and that in this case, the two statutes can stand side-by-side and both be held valid.
Finally, the Defendants argue that providers of neurodevelopmental therapy are not considered mental health care practitioners and thus, the therapy cannot be considered mental-health services. The Defense developed this argument based on exporting the definition of mental health care providers from another chapter of the statute. The Court does not find this argument persuasive.
Ultimately, the Court finds that summary judgment was proper and that the blanket exclusion violates the WA Parity Act.
8. Additional Comments: None.
9. Website: http://www.courts.wa.gov/opinions/pdf/889406.pdf
10. Practical Implications and Lessons Learned: A blanket exclusion of services is found to be invalid.
11. All Legal Theories Presented in Case: Violation of WA Parity Law
12. Successful Legal Theories in Case: Violation of WA Parity Law