P.E.L. v. Premera Blue Cross
| Decision Date | 21 November 2022 |
| Docket Number | 82800-2-I |
| Citation | 520 P.3d 486 |
| Parties | P.E.L.; and P.L. and J.L, a married couple and parents of P.E.L., Appellants, v. PREMERA BLUE CROSS, Respondent. |
| Court | Washington Court of Appeals |
Daniel S. Gross, Eleanor Hamburger, Sirianni Youtz Spoonemore Hamburger PLLC, 3101 Western Avenue, Suite 350, Seattle, WA, 98121, Marlena Grundy, PNW Strategic Legal Solutions, PLLC, 1408 140th Pl. Ne Ste. 170, Bellevue, WA, 98007-3964, for Appellants.
Gwendolyn C. Payton, John R. Neeleman, Kilpatrick Townsend & Stockton LLP, 1420 5th Ave. Ste. 3700, Seattle, WA, 98101-4089, Adam H. Charnes, Kilpatrick Townsend & Stockton LLP, 2001 Ross Avenue, Suite 4400, Dallas, TX, 75201-2924, for Respondent.
Emily Elisabeth Brice, Janet Chantal Varon, Northwest Health Law Advocates, 101 Yesler Way Ste. 300, Seattle, WA, 98104-2552, for Amicus Curiae on behalf of Northwest Health Law Advocates.
¶1 Fifteen-year-old P.E.L. attended a residential wilderness program for mental health treatment through Evoke Therapy Programs. P.E.L.’s health insurer Premera Blue Cross denied coverage for P.E.L. because her policy excludes wilderness programs as nontreatment. P.E.L. sued Premera, claiming it breached its contract by not complying with the Washington State mental health parity act (WPA), RCW 48.44.341, and the federal parity act (FPA), 29 U.S.C. § 1185a, in violation of the Patient Protection Affordable Care Act (ACA), 42 U.S.C. § 300gg-26, and the state Consumer Protection Act (CPA), chapter 19.86 RCW. P.E.L. also sued for insurance bad faith and negligence. The trial court dismissed P.E.L.’s claims on summary judgment. P.E.L. appeals, arguing the trial court erred by granting Premera's motions for summary judgment. We conclude that the trial court erred because genuine issues of material fact remain as to whether Premera's exclusion of wilderness programs is a separate treatment limitation that applies to only mental health services. The trial court also erred by dismissing P.E.L.’s insurance bad faith claim for failure to show objective symptomatology of emotional distress. We otherwise affirm. We reverse in part and remand.
¶2 In 2016, P.L. and J.L bought health insurance under Premera's "Premera Blue Cross Preferred Gold 1000" plan (Plan) from the Washington Health Benefit Exchange. The Plan also covered their then-15-year-old daughter P.E.L., who was diagnosed with major depressive disorder
, anxiety disorder, and posttraumatic stress disorder. The Plan covered some mental health services such as "[i]npatient, residential treatment," "outpatient care to manage or reduce the effects of the mental condition," and "[i]ndividual or group therapy." But it excluded others, including "[o]utward bound, wilderness, camping or tall ship programs or activities." The Plan also excluded coverage for nontreatment facilities, or facilities such as prisons or nursing homes "that do not provide medical or behavioral health treatment for covered conditions from licensed providers," but it did cover "medically necessary medical or behavioral health treatment received in th[o]se locations."
¶3 In February 2016, P.E.L. was hospitalized for acute suicidal ideation
. After the hospital released her to her parents, P.L. and J.L. sent P.E.L. to Evoke in Bend, Oregon, for treatment. The therapy programs at Evoke included a wilderness program licensed as an "outdoor youth program" and "child caring agency." Evoke describes the program as "a licensed adolescent treatment program that utilizes the experiential opportunities of a wilderness setting with a clinically focused intervention."1 Evoke holds its wilderness participants to a structured schedule—they must complete daily chores and learn skills like fire making, shelter building, and food preparation. Trained field instructors supervise the participants and licensed mental health therapists meet with them twice a week. And they participate in team building activities and psychoeducational groups to learn healthy development and relationship management, assertive communication, problem solving, empathy, and awareness building. P.E.L. stayed at Evoke for 63 days from April 27 to June 28, 2016, where she "displayed significant progress ... over time."
¶4 In July 2016, Evoke billed Premera for P.E.L.’s stay. In September, Premera denied the claim, stating, "Our medical staff reviewed this claim and determined this service is not covered by your [P]lan." P.E.L. submitted an internal appeal, arguing Premera's decision violated the WPA and FPA. Premera denied the appeal and upheld its denial of coverage. It explained that the "decision was made based on [P.E.L.]’s [P]lan language, which specifically excludes coverage for outward bound, wilderness, camping or tall ship programs or activities." It determined the exclusion complies with the FPA because the Plan "excludes wilderness programs for both mental health conditions and medical conditions." Premera later explained that it excludes wilderness programs under the Plan as a nontreatment facility.2
¶5 P.E.L. requested review by an independent review organization (IRO).3 She argued that the clinical efficacy of programs like Evoke are "supported by evidence published in peer-reviewed journals," and that Premera must cover the service to comply with the FPA.4 The IRO upheld Premera's determination that the Plan did not cover P.E.L.’s stay at Evoke. It also determined the exclusion "does not clearly violate" the FPA.
¶6 P.E.L. and her parents (collectively P.E.L.) sued Premera. She asserted claims of breach of contract and failure to comply with the WPA and FPA in violation of the ACA and CPA, insurance bad faith under RCW 48.01.030, and negligent claims management. In November 2020, the parties cross moved for summary judgment. The court granted Premera's motion in part, dismissing P.E.L.’s WPA related claims with prejudice. In May 2021, the parties again cross moved for summary judgment. The court granted Premera's motion and dismissed the rest of P.E.L.’s claims with prejudice.
¶7 P.E.L. appeals.
¶8 P.E.L. argues the trial court erred by granting Premera's motions for summary judgment.
¶9 We review rulings on summary judgment de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wash.2d 715, 722, 853 P.2d 1373 (1993). Summary judgment is appropriate only where "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).
¶10 The moving party "has the initial burden to show there is no genuine issue of material fact." Zonnebloem, LLC v. Blue Bay Holdings, LLC, 200 Wash. App. 178, 183, 401 P.3d 468 (2017). A moving defendant can meet this burden by establishing that there is a lack of evidence to support the plaintiff's claim. Id. Once the defendant has made such a showing, the burden shifts to the plaintiff to show a genuine issue of material fact. Id. Summary judgment is appropriate if a plaintiff fails to show sufficient evidence to establish a question of fact as to the existence of an element on which the plaintiff will have the burden of proof at trial. Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co., 176 Wash. App. 168, 179, 313 P.3d 408 (2013). We consider all facts submitted and all reasonable inferences that we can draw from those facts in the light most favorable to the nonmoving party. Ellis v. City of Seattle, 142 Wash.2d 450, 458, 13 P.3d 1065 (2000).
¶11 P.E.L. argues the trial court erred by granting summary judgment on her breach of contract claim because genuine issues of material fact remain about whether Premera breached its contract by not complying with the WPA and FPA in violation of the ACA when it denied coverage for her stay at Evoke.5 Premera argues that P.E.L. has no viable cause of action for breach of contract. In the alternative, it maintains that its denial of coverage for wilderness programs complies with state and federal parity requirements.
¶12 Premera argues that P.E.L. cannot sue for breach of contract alleging a violation of the ACA because the ACA affords no private cause of action.6 P.E.L. argues that she is not suing under the ACA to enforce compliance with the act. Rather, she seeks only to enforce Premera's contractual promise that it would comply with the ACA through a common-law breach of contract claim.7 We agree with P.E.L.
¶13 Washington courts have not yet considered whether a party may bring a breach of contract claim to enforce the ACA. But the United States District Court for the Northern District of Illinois addressed the issue in Briscoe v. Health Care Service Corp., 281 F. Supp. 3d 725 (N.D.Ill. 2017). In that case, the court recognized that the ACA does not preempt consumers "from vindicating their rights under state contract law." Id. at 739. It determined that courts should "presume that states may continue regulating when Congress has not spoken to the contrary on an issue." Id. And "[g]iven the absence of any indication that Congress intended the ACA to preempt breach of contract claims," courts should permit plaintiffs to pursue claims to enforce a promise to comply with the ACA under the terms of a health plan.8 Id.; see also R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 281, 773 A.2d 1132 (2001) (). We conclude that the reasoning in Briscoe is sound, and we adopt it here.
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