Bruce Pleasant And Kimberly Pleasant v. Regence Blue Shield ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BRUCE PLEASANT and KIMBERLY No. 69143-1-1
PLEASANT, a marital community,
DIVISION ONE
Appellants,
v. ORDER GRANTING MOTION
TO PUBLISH
REGENCE BLUE SHIELD,
Respondent.
Respondent Regence Blue Shield filed a motion to publish the opinion filed on
March 31, 2014 in the above case and the appellants have filed an answer to the
motion. A majority of the panel has determined that the motion should be granted;
Now, therefore, it is hereby
ORDERED that respondent's motion to publish the opinion is granted. It is further
ORDERED that the motion for sanctions set May 23, 2014 is stricken.
DATED this 16th day of May, 2014.
FOR THE COURT:
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' 150 Wash. 2d
478, 483, 78 P.3d 1274 (2003). Summary judgment is appropriate ifthere is no genuine
5 Below, Pleasant claimed the $4,000 limit for inpatient rehabilitative care violated public policy.
In his brief on appeal, although Pleasant identifies as an issue whether the health care plan is void as
against public policy, because he provides no argument or citation to authority, we do notconsider this
argument. See RAP10.3(a)(6); Cowiche Canvon Conservancv v. Boslev. 118Wn.2d 801, 809, 828 P.2d
549 (1992) (assignments of error unsupported by referenceto the record or argumentwill not be
considered on appeal).
8
No. 69143-1-1/9
issue as to any material fact and the moving party is entitled to a judgment as a matter
of law. CR 56(c). By filing cross motions for summary judgment, the parties concede
there were no material issues of fact. Tiger Oil Corp. v. Dep't of Licensing. 88 Wash. App.
925, 930, 946 P.2d 1235 (1997).
Interpretation of an insurance contract is also a question of law that we review de
novo. Overton v. Consol. Ins. Co., 145 Wash. 2d 417, 424, 38 P.3d 322 (2002); Quadrant
Corp. v. Am. States Ins. Co.. 154 Wash. 2d 165, 171, 110 P.3d 733 (2005). Because
insurance policies are contracts, the principles of contract interpretation apply.
Quadrant. 154 Wash. 2d at 171. If the language in an insurance contract is not
ambiguous, the court must enforce it as written and may not modify the contract or
create an ambiguity where none exists. State Farm Mut. Auto. Ins. Co. v. Ruiz. 134
Wash. 2d 713, 721, 952 P.2d 157 (1998). A provision is ambiguous if, on its face, it is
fairly susceptible to more than one reasonable interpretation. Quadrant, 154 Wash. 2d at
171.
The party seeking to establish coverage bears the initial burden of proving
coverage under the policy has been triggered. Diamaco. Inc. v. Aetna Cas. &Sur. Co.,
97 Wash. App. 335, 337, 983 P.2d 707 (1999). The insurer bears the burden of
establishing an exclusion to coverage. Diamaco. 97 Wash. App. at 337. We construe any
ambiguity in an exclusion against the insurer. McDonald v. State Farm Fire &Cas. Co..
119 Wash. 2d 724, 733, 837 P.2d 1000 (1992).
Inpatient Rehabilitation
Pleasant contends the policy covers all medically necessary nonrehabilitative
expenses he incurred while an inpatient at the ARU at Swedish, including x-rays, blood
No. 69143-1-1/10
draws, laboratory work, and medications. Regence argues the health care contract
expressly limits the benefit Pleasant is entitled to receive as an inpatient admitted for
rehabilitation. We agree.
The Regence individual health care plan provides benefits subject to specific
limitations and exclusions. Article 8 defines benefits the insured is entitled to receive.
Section 8.2 states Regence agrees to provide benefits for medically necessary services
"subject to all limitations, exclusions, and provisions of this Contract."6
The "Limitations and Exclusions" section excludes treatment for rehabilitative
care "including speech therapy, physical therapy, or occupational therapy, except as
specified in the .. . Rehabilitative Benefits of Article 8." Article 6 provides, in pertinent
part:
ARTICLE 6 LIMITATIONS AND EXCLUSIONS; WAITING
PERIODS
SECTION 6.1 LIMITATIONS AND EXCLUSIONS. No Benefits will
be provided for any of the following conditions,
treatments, services, or supplies, or for any direct
6 Article 8 provides, in pertinent part:
ARTICLE 8 BENEFITS
SECTION 8.1 AGREEMENT TO PROVIDE BENEFITS. The Company agrees
to provide coverage to the Member, whilethis Contract is in
force, for the services of Preferred Plan and Participating
Providers as specified in this Article that are within the scope of
their practice....
SECTION 8.2 BENEFIT PROVISIONS. The Benefits of this Article for
Medically Necessary services, will be provided at the payment
levels specified in the Payment Schedule in the Guide to Using
Your Benefits, subject to all limitations, exclusions, and
provisions of this Contract.
SECTION 8.5 COVERED BENEFITS. The Benefits described in this Article
will be provided at the payment level specified in the Payment
Schedule in the Guide to Using Your Benefits. All Benefits are
subject to the preadmission approval provision described in this
Article, and to all conditions and limitations stated in the Benefit
sections below or elsewhere in this Contract, as determined by
the Company. All services and supplies must be Medically
Necessary as defined in Article 1, except as provided in this
Article for preventive care services.
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No. 69143-1-1/11
complications or consequences thereof, unless
otherwise specified... .
6.1.34 Treatment for rehabilitative care,
including speech therapy, physical
therapy, or occupational therapy, except
as specified in the Home Health,
Hospice, and Rehabilitation Benefits of
Article 8.
Pleasant relies on Section 8.7, "Hospital. . . Inpatient Benefits," to argue he is
entitled to coverage for all the medical expenses he incurred while at the ARU at
Swedish. Section 8.7 states, in pertinent part:
SECTION 8.7 HOSPITAL FACILITY.
8.7.1 INPATIENT BENEFITS. When the
Member is confined as an Inpatient,
Benefits will be provided for services and
supplies provided by a Hospital.
Regence relies on Section 8.29, "Inpatient Rehabilitation," to argue that under the
terms of the policy, benefits are limited to $4,000 for the expense incurred while an
inpatient at the ARU. Section 8.29 states, in pertinent part:
SECTION 8.29 REHABILITATION. The Benefits described below will
be provided when Medically Necessary to restore and
improve function that was previously normal but lost
following a documented injury or illness:
8.29.1 INPATIENT. The Professional, Inpatient
Hospital, and Skilled Nursing Facility
Benefits of this Article will be provided to
an Inpatient for an Inpatient Rehabilitation
Admission for physical therapy, speech
therapy, and occupational therapy, to a
maximum of $4,000 per Year.[7]
The unambiguous terms of the health care plan and the undisputed record do not
support Pleasant's argument that he was entitled to coverage for nonrehabilitative
7 (Emphasis added.)
11
No. 69143-1-1/12
expenses he incurred while an inpatient at the ARU at Swedish.8 Contrary to Pleasant's
argument, coverage under the terms of the Regence health care plan turns on his
admission to the ARU for "Inpatient Rehabilitation."
The provision Pleasant relies on, Section 8.7.1, applies only when the Member is
"confined" in the hospital as an "Inpatient."9 Section 1.13 defines "Inpatient" as "[a]
person confined overnight in a Hospital or other facility as a regularly admitted bed
patient to whom a charge for room and board is made in accordance with the Hospital's
or facility's standard practice."10 By contrast, Section 1.14 defines an "Inpatient
Rehabilitation Admission" as "[a]n inpatient admission to a Company approved facility
specifically for the purpose of receiving speech, physical, or occupational therapy in an
inpatient setting."
There is no dispute that Pleasant's admission was an inpatient rehabilitation
admission. After suffering a stroke on March 18, Pleasant was discharged from
Swedish on April 5 to a skilled nursing care facility. On May 5, Pleasant was admitted
to the ARU for elective rehabilitation for physical, occupational, and speech therapy, not
as a "regularly admitted" hospital inpatient. Neither the medical records nor the
declaration of Dr. Clawson suggest that the inpatient admission at the ARU was for any
purpose other than rehabilitation. The elective inpatient admission to the ARU was
8We grant Regence's motion to strike "Exhibit G," a map of Swedish Medical Center, because
the document was not submitted below or considered by the trial court. See RAP 9.12 (on review of
order granting summary judgment, "appellate court will consider only evidence and issues called to the
attention of the trial court").
9 (Emphasis added.)
10 There is no dispute that Swedish is a hospital facility. Section 1.12 defines "hospital" as "[a]n
accredited general Hospital that is a provider covered under this Contract."
12
No. 69143-1-1/13
"specifically for the purpose of receiving speech, physical, or occupational therapy in an
inpatient setting."11
The two cases Pleasant relies on, Dobias v. Service Life Insurance Co. of
Omaha. 469 N.W.2d 143 (Neb. 1991), and National Family Care Life Insurance Co. v.
Kuvkandall. 705 S.W.2d 267 (Tex. App. 1986), are distinguishable.
In Dobias, the insured's 18-year-old daughter fractured a vertebra when she was
thrown from a truck. The spinal cord injury resulted in paralysis from the waist down
and a number of serious complications. Dobias. 469 N.W.2d at 144. The daughter
remained at Methodist Hospital in Omaha for 15 days following surgery. The doctors
then transferred her to the rehabilitation center at Immanuel Medical Center to receive
"24-hour acute nursing care and treatment for the complications from the spinal cord
injury and paralysis." Dobias. 469 N.W.2d at 144.
The health insurance company paid for treatment at Methodist but denied the
claim for care at Immanuel on the grounds that the policy did not provide coverage for
rehabilitative care. Dobias. 469 N.W.2d at 144. The policy defined "hospital" to mean
"'a place which: . . . (b) is primarily engaged in providing medical, diagnostic, and
major surgical facilities on its own premises ... ; (c) has continuous 24-hour nursing
services . . . ; [and] (d) has a staff of one or more doctors available at all times.'"
Dobias. 469 N.W.2d at 144-45. The health insurance policy also expressly states that
"hospital" does not mean "convalescent, nursing, rest, custodial, self-care, educational,
or rehabilitative homes or units of hospitals used for such care." Dobias. 469 N.W.2d at
145.
11 We note there are separate health care plan provisions addressing coverage for prescription
drugs. Section 8.25.1 provides, "Benefits for Prescription Drugs as described below will be provided to an
annual maximum of $2,000."
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No. 69143-1-1/14
The insureds sued the health insurance company arguing the policy did not
unambiguously exclude coverage for the care their daughter received at Immanuel.
Dobias. 469 N.W.2d at 145. Following a trial, the court found that the definition of
"hospital" excluded coverage for the care the daughter received at Immanuel. Dobias.
469 N.W.2d at 145.
On appeal, the court reversed. The court held that the evidence established the
care the daughter received at Immanuel met the criteria for the definition of"hospital."
Dobias. 469 N.W.2d at 146. The court concluded, in pertinent part:
When [the daughter] was transferred to Immanuel, she was still in
need of acute medical care in order to keep her alive. Any rehabilitative
care which she received at Immanuel was incidental to the acute hospital
care necessary to avoid the life-threatening complications she faced as a
result ofthe spinal cord injury and paralysis. She received the services
while she was a patient on a particular floor of a hospital which met the
requirements of the hospital definition in the insurance policy. Ahospital,
by any other name, still provides acute medical care, and [the daughter]
received acute medical care at Immanuel. It follows that Immanuel
qualifies as a hospital underthe policy definition.
Dobias. 469 N.W.2d at 146.
In Kuvkandall. the insured was diagnosed with a pulmonary embolus and
hospitalized in the ICU. Kuvkandall, 705 S.W.2d at 269. After three days, the doctor
transferred the insured from the ICU to a community hospital to continue to receive
intensive care "in a like environment." Kuvkandall, 705 S.W.2d at 269-70. The
insurance company denied coverage for medical care the insured received at the
community hospital in the coronary care unit (CCU). The health care policy excluded
coverage for confinement in a CCU. Unlike an ICU, the policy did not define a CCU.
Kuvkandall. 705 S.W.2d at 269-70. Ajury found the policy covered the expenses
incurred at the CCU. Kuvkandall. 705 S.W.2d at 269.
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No. 69143-1-1/15
On appeal, the court noted the ambiguity in the policy and held that
overwhelming evidence supported the jury verdict. Kuvkandall. 705 S.W.2d at 270-71.
The evidence showed the exclusion for care in a CCU applied only if it did not meet the
standards for an ICU; that the intensive care the insured received at the CCU was
" 'interchangeable'" with the care at the ICU; and based on the diagnosis, the hospital
changed the billing to reflect ICU care. Kuvkandall. 705 S.W.2d at 270.
Here, unlike in Dobias and Kuvkandall, the health care plan is not ambiguous.
The health care plan makes a clear distinction between benefits for a hospital inpatient
and inpatient rehabilitation. Further, the record establishes that Pleasant was admitted
to the ARU after his release from Swedish for treatment of his stroke and 30 days of
care at a skilled nursing facility. Patients are admitted to the ARU for rehabilitation only
if they are medically stable. The medical records establish his admission to the ARU
was a "Physician Referral (Non-health care Facility Point of Origin)" and was "Elective."
The "Primary Service" is identified as "Rehab" and the "Secondary Service" as "None."
Pleasant also argues Regence improperly denied coverage for the medications
he received while at the ARU. Pleasant relies on Section 6.1.11 to argue he is entitled
to coverage for the drugs he received as an inpatient at the ARU. The unambiguous
terms of the health care plan do not support his argument. Section 6.1.11 states that
the plan covers the cost ofdrugs "for the Inpatient who is receiving the Benefits ... for
that confinement, unless otherwise excluded under this Contract."12
12 Section 6.1.11 provides, in pertinent part:
6.1.11 [No Benefitswill be provided for] Drugs, except as follows:
a. Drugs will be provided for the Inpatient who is receiving the
Benefits of this Contract for that confinement, unless otherwise
excluded under this Contract.
(Emphasis added.)
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No. 69143-1-1/16
We conclude the court did not err in concluding the health care plan limited the
amount Pleasant was entitled to receive for inpatient rehabilitation at the ARU.
Mechanical Embolectomy
Pleasant also claims he is entitled to coverage for the mechanical embolectomy
procedure. Pleasant argues Regence failed to meet its burden to show the mechanical
embolectomy was an investigational procedure.
Consistent with the Washington Administrative Code (WAC), the individual health
care plan addresses whether a procedure is investigational. See WAC 284-44-043(1)
("[e]very health care service contract. . . must include ... a definition of experimental or
investigational" services excluded under contract).13 The WAC also requires the insurer
to "establish a reasonable procedure under which denials of benefits or refusals to
preauthorize services because of an experimental or investigational exclusion or
limitation may be appealed." WAC 284-44-043(4)(a).14
Here, the health care plan excludes coverage for "investigational services or
supplies." The health care plan defines "Investigational Service or Supply" and the
criteria to determine whether a procedure is "investigational." Section 1.15 states:
SECTION 1.15 INVESTIGATIONAL SERVICE OR SUPPLY: A
service or supply (including but not limited to drugs,
devices, and other items) that is determined by the
Company to meet any one of the following:
13 WAC 284-44-043(2) states, in pertinent part:
The definition of experimental or investigational services must include an identification of
the authority or authorities which will make a determination of which services will be
considered to be experimental or investigational. If the health care service contractor
specifies that it, or an affiliated entity, is the authority making the determination, the
criteria it will utilize to determine whether a service is experimental or investigational must
be set forth in the contract and any certificate of coverage issued thereunder.
14 The health care plan provides an appeal process for denial of coverage based on a
determination that the procedure is investigational. There is no dispute that Pleasant did not appeal the
determination that the mechanical embolectomy was investigational.
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No. 69143-1-1/17
1.15.1 Any service or supply classified as
experimental and/or investigational by the
national Blue Cross Blue Shield
Association, an association of independent
Blue Cross and Blue Shield Plans, as
adopted by the Company. The national
Blue Cross Blue Shield Association's
determination is based on the following
criteria:
a. The scientific evidence must permit
conclusions concerning the effect of
the technology on health outcomes
(which means significant
measurable improvement in length
of life, ability to function, or quality of
life);
b. The technology must improve the
net health outcome (as defined
above);
c. The technology must be as
beneficial as any established
alternatives;
d. The improvement must be
attainable outside the laboratory or
clinical research setting; and
e. Items must have been approved by
the U.S. Food and Drug
Administration (FDA) as being safe
and efficacious for general
marketing, and permission must
have been granted by the FDA for
commercial distribution; or
1.15.2 Any service or supply classified as
experimental or investigational by the
Company. The Company's determination
is based on the criteria specified under
Paragraph 1.15.1.
Pleasant ignores both the WAC and the language of his individual health care
plan. The health care plan complies with WAC 284-44-043 by setting forth the criteria
Regence uses to determine whether a procedure is investigational. The Medical Policy
describes the studies Regence relied on to determine a mechanical embolectomy used
17
No. 69143-1-1/18
to treat acute stroke is investigational.15 Regence also produced as evidence the
medical studies it relied on in making that determination.
In the alternative, Pleasant claims Regence violated the CPA and acted in bad
faith by failing to provide any reasonable explanation supporting the basis for denial of
the mechanical embolectomy procedure. "[A] reasonable basis for denial of an
insured's claim constitutes a complete defense to any claim that the insurer acted in bad
faith or in violation of the Consumer Protection Act." Dombrosky v. Farmers Ins. Co. of
Wash.. 84 Wash. App. 245, 260, 928 P.2d 1127 (1996).
Here, Regence sent Pleasant an "Explanation of Benefits" and a follow-up letter
explaining why it considered the mechanical embolectomy to be investigational. The
July 8, 2010 letter explaining its denial of coverage for the mechanical embolectomy
states, in pertinent part:
Our Regence Medical Policy Mechanical Embolectomy for Treatment of
Acute Stroke, Surgery 158, considers the above service(s) to be
investigational. Your member contract includes a definition for
investigational services or supplies. The contract also outlines that your
health plan excludes coverage for investigational services! or]
supplies. . . . Coverage of the requested service is denied because
Regence Medical Policy considers this service to be investigational. The
published clinical evidence is insufficient to conclude that mechanical
embolectomy improves health outcomes of patients with acute stroke.
The Regence Medical Policy detailing the rationale for this determination
is published at http://blue.regence.com/trgmedpol/surgery/sur158.html. If
you disagree with our decision, you have the right to request a review
either verbally or in writing.
15 Pleasant also argues the court erred in denying his motion to exclude the Medical Policy, the
medical studies, and Dr. Rainey's declaration. Pleasant cites King County Local Civil Rule 26(k)(4)
requiring exclusion of witness testimony "not disclosed in compliance with this rule." But the undisputed
record shows Regence provided Pleasant with the Medical Policy, produced the medical studies in
compliance with a court order extending the date to respond to discovery, and that Regence was entitled
to submit Dr. Rainey's declaration. We also note that in his declaration, Dr. Rainey largely restates
information from the health care plan or the Medical Policy.
18
No. 69143-1-1/19
We conclude Regence complied with the requirements of WAC 284-44-043 and
provided a reasonable basis for denial of the claim for the mechanical embolectomy.
Reasonable minds could not differ that its denial of coverage was based upon
reasonable grounds. Smith. 150 Wash. 2d at 486.
We affirm summary judgment dismissal of the lawsuit against Regence.
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WE CONCUR:
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19