Patten v. State
Decision Date | 02 September 2015 |
Docket Number | A155862.,13C13249 |
Citation | 273 Or.App. 476,359 P.3d 469 |
Parties | Michael Van PATTEN, Mark Banks, Carl Ralls, William McGill and Dan Russ, Plaintiffs–Appellants, v. STATE of Oregon and Kelly Ballas, Defendants–Respondents, and Oregon Health Department, Department of Corrections, Oregon State Police and Bruce Goldberg, Defendants. |
Court | Oregon Court of Appeals |
Richard Myers, Portland, argued the cause for appellants. On the briefs were Thomas K. Doyle and Bennett, Hartman, Morris & Kaplan, LLP.
Matthew J. Merritt, Assistant Attorney General, argued the cause for respondents. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVORE, Presiding Judge, and GARRETT, Judge, and SCHUMAN, Senior Judge.
Plaintiffs are state employees who hold state-subsidized health insurance policies administered by the Public Employees' Benefit Board (PEBB). They brought this action against the state and the then-PEBB administrator, Kapowich,1 contending that one aspect of the insurance program, a self assessment questionnaire, requires them to disclose disabilities, and, in so doing, violates a provision of the Americans with Disabilities Act, 42 USC § 12112(d)(4)(A) (2009) (ADA), and its Oregon analog, ORS 659A.136. They also contend that the assessment amounts to an unconstitutional search and a violation of their constitutional right to the privacy of personal information. Defendants moved for summary judgment on the ground that the assessment does not contain “disability inquiries”; that, even if it does contain such inquiries, they fall within statutory “safe harbor” provisions that permit certain inquiries used by insurance providers; and that the assessment was neither a search nor an unlawful invasion of any constitutionally protected privacy interest. The trial court agreed with defendants' arguments and granted their motion for summary judgment. Plaintiffs appeal. We affirm.
Because there are no disputed issues of fact—plaintiffs protestations to the contrary notwithstanding, as we explain below—we review the trial court's grant of summary judgment to determine whether defendants are entitled to a judgment as a matter of law. ORCP 47(C) ; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). The legal questions revolve around one part of PEBB's insurance program, a “Health Engagement Model” that urges state employees who want to obtain (or maintain) state-subsidized health insurance to fill out an on-line “health risk assessment” questionnaire provided by one of two health plan providers, Kaiser Permanente or Providence Health & Services.2 The questionnaires both contain questions that are highly personal and could indicate the presence of a disability—for example, whether the employee has cancer
, hepatitis B, a sexually transmitted infection, depression, or a host of other conditions. Employees are informed, however, that they do not need to answer all of the questions, although they are urged to do so.3
The assessment is filled out privately, on line, and then automatically forwarded to one of two private, for-profit administrators (treated as state agents for purposes of the ADA), who aggregate the responses, securely store the individual questionnaires until they are destroyed, and forward the aggregated data to PEBB. PEBB and state employers receive only a list of employees who have taken the assessment and a summary of the aggregated, “anonymized” or “de-identified” data. Importantly, neither PEBB nor any state employer receives the results of an individual's assessment, and the employee's health care provider receives the information only if the employee affirmatively so authorizes.
Kaiser, Providence, and the two private administrators are all subject to the elaborate client security measures required by the federal Health Insurance Portability and Accountability Act (HIPAA). PEBB uses the aggregated results to help in the design of future health plan offerings.
It also uses the program itself as a way to encourage employees to adopt beneficial health habits, thereby, presumably, reducing insurance costs. It does so by requiring each assessment taker to agree to undertake two “health actions.” The agreement is not policed. Assessment takers are simply asked to report whether they took the health actions. They are not required to submit proof or to identify which actions they took. As PEBB states on its webpage explaining the health action aspect of the HEM, “You choose your own health actions, you track them any way you want, and there's no reporting involved.”
Although an employee's eligibility for state sponsored health insurance does not depend on whether the employee has completed the assessment, those who do not complete it pay more for their insurance than those who do.4 The difference is currently $17.50 per month for individuals or $35.00 per month for couples. Nonparticipants also currently have a deductible that is $100.00 larger than participants. The parties agree that, because of this financial disincentive, participation in the assessment is not “voluntary” as that term is defined in the ADA.5 They also agree that defendants' use of private third-party administrators to convert individual responses into aggregated data does not insulate the state and PEBB from ultimate legal responsibility for the program.
Plaintiffs insist that two—and only two—of these facts are disputed in the record on summary judgment. First, they argue that a fact issue remains as to whether PEBB uses the aggregated data to design future health plan offerings. We disagree. Kapowich, PEBB's administrator, stated in a sworn declaration that the That statement stands uncontradicted by anything in the record.
Second, plaintiffs argue that there is a disputed issue of fact as to whether an employee's responses to the assessment are revealed to defendants. In their brief, plaintiffs suggest a hypothetical scenario in which, through a series of unlikely events, an unscrupulous supervisor might discern that a particular employee has a particular disability by matching the supervisor's updated lists showing which employees have taken the assessment, with an updated report of aggregated data. This hypothetical scenario is farfetched; more importantly, Kapowich stated on the record that the individual assessments are private, are secure, and that they are “de-identified” before defendants—or any other state employee—ever sees them. Again, plaintiffs presented no facts to the trial court that dispute those assertions. Even on appeal, they present only speculation about what they suppose could, hypothetically, happen. Such hypothetical musings do not create a disputed issue of fact.
We therefore turn to an analysis of plaintiffs' primary legal argument that requiring employees to take the HEM risk assessment questionnaire violates 42 USC § 12112(d)(4)(A), which provides:
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