STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT

Transcription

1 EXPEDITE No hearing is set. Hearing is set: Date: June, 0 Time: :00 a.m. Judge: Hon. Anne Hirsch 0 0 NANCY MAXSON, individually and on behalf of a class of similarly situated persons; RODNEY SAUER, individually and on behalf of similarly situated persons, v. STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT Plaintiffs, WASHINGTON STATE HEALTH CARE AUTHORITY'S PUBLIC EMPLOYEE BENEFITS BOARD PROGRAM; and the UNIFORM MEDICAL PLAN, Defendants. NO DEFENDANTS ANSWER TO PLAINTIFFS AMENDED CLASS ACTION COMPLAINT The Defendants Washington State Health Care Authority s Public Employee Benefits Board Program and the Uniform Medical Plan answer Plaintiffs Amended Class Action Complaint by admitting, denying, and alleging as follows. Defendants deny all allegations in Plaintiffs Amended Class Action Complaint not expressly admitted or qualified herein. I. PARTIES. Defendants deny that Nancy Maxson is a current enrollee of Uniform Medical Plan (UMP), but admit that she is a former enrollee of UMP and former state employee. Defendants are without knowledge and information sufficient to admit or deny that Nancy Maxson currently resides in Thurston County. With respect to all remaining allegations, NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

2 0 0 Defendants are without knowledge or information to form a belief as to their truth or falsity, and therefore deny the same.. Admit.. Defendants deny the allegation in Paragraph and affirmatively allege that the Health Care Authority (HCA) is a Washington state agency within the executive branch, located in Thurston County, Washington; that the Public Employee Benefits Board is an appointed board created pursuant to RCW.0.0; and that UMP is one of several medical plan options offered by the Public Employee Benefits Board to eligible enrollees. II. JURISDICTION AND VENUE. The entirety of Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants state the Court has subject matter jurisdiction for matters set forth in RCW Defendants deny that Plaintiffs have standing to assert a claim or controversy that can be decided upon by the Superior Court.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that this Court has personal jurisdiction over Defendants and Plaintiffs Nancy Maxson and Rodney Sauer. Defendants deny that this Court has personal jurisdiction over any other individual or class of individuals.. The entirety of Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that Thurston County is the proper venue if jurisdiction is established. III. FACTS RELATING TO NANCY MAXSON. Defendants admit that Ms. Maxson was employed by the State of Washington beginning at least in October 00, and that she was eligible to enroll in UMP beginning in November 00. Defendants deny that Ms. Maxson is currently enrolled in UMP. Defendants are without knowledge and information sufficient to form a belief as to the truth or falsity of the remaining allegations in Paragraph, and therefore deny. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

3 . Defendants admit that Ms. Maxson was enrolled in UMP from November 00 through November 0. Defendants admit that UMP is a self-insured health plan offered through the HCA s Public Employee Benefits Board Program, and affirmatively state that HCA contracts with Regence BlueShield for some services as a third-party administrator for the UMP. Defendants deny that UMP is insurance and deny that Ms. Maxson was insured.. Defendants deny the allegations in Paragraph. 0. Defendants admit that they have received documents indicating that Ms. Maxson has a history of back pain. Defendants also admit that in 0, a person 0 0 purporting to be Ms. Maxson s physician submitted a preauthorization request to treat Ms. Maxson s chronic neuropathic pain with spinal cord stimulation. Defendants are without knowledge and information sufficient to form a belief as to the truth or falsity of the remaining allegations in Paragraph 0, and therefore deny the same.. Defendants deny that spinal cord stimulators are safe, effective, and generally accepted for treating neuropathic pain. Defendants are without knowledge and information sufficient to form a belief as to the truth or falsity of the remaining allegations in Paragraph, and therefore deny.. Defendants admit that in May 0, a request was submitted on Ms. Maxson s behalf seeking preauthorization from UMP to treat a chronic neuropathic pain condition using spinal cord stimulation. Defendants deny the allegations in Paragraph to the extent the use of the phrase sought coverage implies that Ms. Maxson submitted a claim for a service rendered or appealed the denial of the preauthorization request. Defendants deny all other allegations in Paragraph.. Defendants admit that during 0 the rights of persons covered by UMP were governed at least in part by the 0 Uniform Medical Plan Certificate of Coverage. With respect to the contents of the Certificate of Coverage, Defendants state this document speaks for itself. Defendants deny all remaining allegations in Paragraph. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

4 0. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, the Defendants admit that UMP implemented the Health Technology Clinical Committee s (HTCC) non-coverage determination for spinal cord stimulators for chronic neuropathic pain on July, 0, and deny the remaining allegations in Paragraph.. The entirety of Paragraph contains legal conclusions and therefore no response is. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants deny that there is any question as to whether, under UMP, spinal cord stimulation was medically necessary for Ms. Maxson to treat a chronic neuropathic pain condition because that treatment is not medically necessary as a matter of law. Defendants admit that by letter dated May, 0, Defendants denied the 0 preauthorization request submitted on Ms. Maxson s behalf to treat a chronic neuropathic pain condition using spinal cord stimulation. Defendants are without knowledge or information sufficient to form a belief as to the truth or falsity as to the remaining factual allegations contained in Paragraph, and therefore deny.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants deny. To the extent Paragraph sets out factual allegations, Defendants are without knowledge and information sufficient to form a belief as to the truth or falsity of those allegations, and therefore deny the same. IV. FACTS RELATING TO RODNEY SAUER. Defendants reincorporate their responses to paragraphs - in this Answer.. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph and therefore deny the same. 0. Defendants admit that Rodney Sauer has been enrolled in UMP since January 0. Defendants deny all other allegations in Paragraph 0. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

5 0 0. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph, and therefore deny the same.. Defendants admit that in 0, a request was submitted to UMP on behalf of Mr. Sauer for prior authorization to treat a chronic neuropathic pain condition using spinal cord stimulation. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the remaining allegations in Paragraph and therefore deny the same.. Paragraph contains legal conclusions for which no response is required, but to the extent a response is required, Defendants deny the same. Defendants deny that there is any question as to whether, under UMP, spinal cord stimulation was medically necessary for Mr. Sauer to treat a chronic neuropathic pain condition because that treatment is not medically necessary as a matter of law. Defendants admit that by letter dated November, 0, Defendants denied the preauthorization request submitted on Mr. Sauer s behalf to treat a chronic neuropathic pain condition using spinal cord stimulation. As to the remaining factual allegations contained in Paragraph, Defendants are without knowledge or information to form a belief as to their truth or falsity, and therefore deny the same.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that Mr. Sauer utilized some, but not all, of the mandatory appeals processes with respect to Defendants denial of his spinal cord stimulation preauthorization request. Defendants admit that the appeals Mr. Sauer utilized were denied. With respect to all remaining allegations, Defendants are without knowledge or information to form a belief as to their truth or falsity, and therefore deny the same. V. HEALTH TECHNOLOGY CLINICAL COMMITTEE. Defendants admit the allegations in the first sentence of Paragraph. Defendants deny the allegations in the second sentence of that paragraph. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

6 0. The entirety of Paragraph contains legal conclusions for which no response is required. To the extent a response is required, the Defendants state that the text of the law speaks for itself.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that the HTCC is comprised of members, appointed by the HCA Administrator in consultation with participating state agencies, who review health technologies to determine the conditions, if any, under which the health technology will be included as a covered benefit in health care programs of participating agencies, and, if covered, the criteria which the participating agency administering the program must use to decide whether the technology is medically necessary or proper and necessary treatment.. The entirety of Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that the Health 0 Technology Clinical Committee determines the conditions, if any, under which the health technology will be included as a covered benefit in health care programs of participating agencies, and, if covered, the criteria which the participating agency administering the program must use to decide whether the technology is medically necessary or proper and necessary treatment.. Defendants are without knowledge or information sufficient to form a belief about the truth or falsity of the allegations in Paragraph, and therefore deny. 0. Paragraph 0 contains Plaintiffs characterization of the case as well as legal conclusions for which no response is required. Defendants deny. To the extent a response is required,. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants deny. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

7 0 0. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that the Legislature exempted the HTCC from the Administrative Procedure Act and admit that the Legislature did not provide a statutory mechanism for an individual person to challenge medical necessity in the case of an individual patient for a health technology not included as a covered benefit or for which a condition for coverage established by the HTCC is not met. Defendants deny all remaining allegations stated in this paragraph.. Paragraph contains legal conclusions regarding the reviewability of HTCC decisions for which no response is required. To the extent a response is required, Defendants admit that the Governor vetoed a portion of the Legislature s bill establishing the HTCC and the content of the bill section that was vetoed speaks for itself.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants deny.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants deny.. Defendants admit to the allegations contained in the first sentence of Paragraph. Defendants are without sufficient knowledge or information as to the truth or falsity of the remaining allegations, and therefore deny the same.. Paragraph contains legal conclusions for which no response is required. To the extent a response is a required, Defendants deny.. Paragraph consists entirely of legal conclusions for which no response is. Paragraph consists entirely of legal conclusions for which no response is 0. Paragraph 0 contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that a participating agency shall comply NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

8 0 0 with a determination of the HTCC unless HTCC s determination conflicts with an applicable federal statute or regulation or applicable state statute. For all other allegations contained in this paragraph, the Defendants deny.. Paragraph contains conclusions of law for which no response is required. To the extent a response is required, Defendants deny.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that HCA directed Regence BlueShield to implement the HTCC spinal cord stimulator decision, that the agreed upon implementation date was July, 0, that Regence denied preauthorization to Nancy Maxson in May 0, and that some UMP members were covered for spinal cord stimulation in 0. To all other allegations in this paragraph, the Defendants deny.. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants admit that the HTCC determination for vertebroplasty, kyphoplasty, and sacroplasty (VKS) was implemented by UMP on September, 0. To all other allegations in this paragraph, the Defendants deny.. Paragraph consists entirely of legal conclusions for which no response is. Paragraph consists entirely of legal conclusions for which no response is. Paragraph consists entirely of legal conclusions for which no response is. Paragraph contains legal conclusions for which no response is required. To the extent a response is required, Defendants lack knowledge or information sufficient to form a belief about the truth or falsity of the factual allegations asserted in this paragraph and therefore deny. For all other allegations in this paragraph, Defendants deny. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

9 0 0 VI. CLASS ALLEGATIONS. Paragraph in its entirety contains Plaintiffs description of a putative umbrella class and consists of legal assertions to which no response is required. To the extent a response is required, Defendants deny an Umbrella Class exists.. Paragraph in its entirety contains Plaintiffs description of a putative Breach of Contract Subclass and consists of legal assertions to which no response is required. To the extent a response is required, Defendants deny a Breach of Contract Subclass exists. 0. Paragraph 0 contains legal conclusions for which no response is required. To the extent a response is required, Defendants lack knowledge or information sufficient to form a belief about the truth or falsity of the factual allegations contained therein and therefore Defendants deny.. Paragraph contains conclusions of law to which no response is required. To the extent a response is necessary, Defendants admit that Nancy Maxson and Rodney Sauer were members of UMP in 0 and that Ms. Maxson and Mr. Sauer were denied preauthorization for spinal cord stimulation in 0. For all other allegations in this paragraph, Defendants deny.. Paragraph consists of legal conclusions to which no response is required. To the extent a response is required, Defendants deny.. Paragraph consists of legal conclusions to which no response is required. To the extent a response is required, Defendants deny.. Paragraph consists of legal conclusions to which no response is required. To the extent a response is required, Defendants deny.. Paragraph consists of legal conclusions to which no response is required. To the extent a response is required, Defendants deny. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

10 0 0. Paragraph consists of legal conclusions to which no response is required. To the extent a response is required, Defendants deny.. Paragraph consists of legal conclusions to which no response is required. To the extent a response is required, Defendants are without knowledge and information sufficient to form a belief as to the truth or falsity of the factual allegations in Paragraph, and therefore deny. VII. CAUSES OF ACTION. Paragraph consists entirely of legal conclusions to which no response is. Paragraph consists entirely of legal conclusions to which no response is 0. Paragraph 0 consists entirely of legal conclusions to which no response is. Paragraph consists entirely of legal conclusions to which no response is VIII. [PLAINTIFFS ] PRAYER FOR RELIEF. No response is required to the Plaintiffs Prayer for Relief. To the extent a response is required, Defendants deny that Plaintiffs are entitled to the relief sought in paragraphs VIII. through VIII. or that Plaintiffs are entitled to any relief. IX. FURTHER ANSWER, DEFENSES, AND AFFIRMATIVE DEFENSES By way of further answer, defenses, and affirmative defenses, the Defendants allege as follows:. Plaintiffs claims are not justiciable.. Plaintiffs lack standing.. Defendants were, at all times, acting in accordance with legal requirements and contractual obligations and consistent with law. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

11 0 0. Plaintiffs failed to exhaust administrative and/or contractual remedies within the required timelines.. Plaintiffs are not entitled to coverage for non-medically necessary services.. Plaintiffs are not entitled to an individualized medical necessity determination for a technology that the HTCC has determined is not a covered benefit.. An HTCC non-coverage determination is a determination that a technology is not medically necessary as a matter of law.. If Plaintiffs suffered harm, recovery is barred by their failure to mitigate said harm.. To the extent Plaintiffs seek recovery in tort, Plaintiffs have failed to file a notice of tort claim with the state. 0. Sovereign immunity, to the extent such defense is not abrogated by law or expressly waived.. The Defendants at all times acted in good faith in performance of their duties.. HTCC non-coverage determinations cannot be challenged in an action against HCA, PEBB, or UMP.. HTCC non-coverage determinations can be reviewed by the superior court through a petition for constitutional writ.. The HTCC determination for spinal cord stimulation was not arbitrary, capricious, or contrary to law.. The HTCC determination for VKS was not arbitrary, capricious, or contrary to law.. The HTCC statutes are constitutional.. Collateral estoppel is not applicable to this case.. The Defendants did not violate Plaintiffs constitutional rights.. Attorneys fees are not justified under state or federal law. NO ATTORNEY GENERAL OF WASHINGTON Cleanwater Dr SW PO Box 0 Olympia, WA 0-0 (0) -

12 ' 0 X. DEFENDANTS' PRAYER FOR RELIEF Having answered Plaintiffs' Amended Class Action Complaint and asserted their defenses, Defendants request the following relief:. Plaintiffs' Amended Complaint be dismissed in its entirety, with prejudice, and that Plaintiffs not recover any fees or costs;. Defendants be awarded all costs and attorney fees allowed by equity, statute, and applicable law; and. Defendants be awarded any other relief that is otherwise equitable and just. By way of further answer, the Defendants reserve the right to amend their Answer and to assert additional defenses. DATED this -day of May, 0. ROBERT W. FERGUSON Attorney General 0 ANGEf,A COATS MCCARTHY, WSBA No. KATY HATFIELD, WSBA No. 0 JACOB P. PHILLIPS, WSBA No. 0 Assistant Attorneys General Attorneys for Washington State Health Care Authority Office of the Attorney General Cleanwater Drive SW P.O. Box 0 Olympia, WA 0-0 Telephone: (0) - Fax: (0) - s: An g el aq atg.wa.gov KatyKIgat.wa.gov JacobP@atg.wa.gov DEFS' ANSWER TO AMENDED NO ATTORNEY GENERAL OF WASHINGTON Cleamvater Dr SW PO Box 0 Olympia, WA 0-0 (0)-

13 PROOF OF SERVICE I certify that I served a copy of this document on all parties or their counsel of record on the date below as follows: US Mail Postage Prepaid via Consolidated Mail Service Facsimile Electronic Mail State Campus Delivery ABC/Legal Messenger Hand delivered by WILLIAM SMART ISAAC RUIZ KATHRYN M. KNUDSEN GABRIEL E. VERDUGO KELLER ROHRBACK L.L.P. 0 0 THIRD AVENUE, SUITE 00 SEATTLE, WA 0-0 s: wsmalt@kellerroh-rback.com iruiz@kellerrohrback.com kknudsengkellerrohrback.com gverdugogkellerrohrback.com I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this day ^ of May, 0, at Tumwater, Washington. A k ;~T t NICOLE BECK-THORNE Legal Assistant 0 DEFS' ANSWER TO AMENDED ATTORNEY GENERAL OF WASHINGTON t Ctea water SW PO Box x0 NO Olympia, WA 0-0 (0) -