Jeanene Harlick v. Blue Shield of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEANENE HARLICK,  No. 10-15595

Plaintiff-Appellant, D.C. No.

v.  3:08-cv-03651-SC

BLUE SHIELD OF CALIFORNIA, ORDER AND

Defendant-Appellee.

 OPINION

Appeal from the United States District Court

for the Northern District of California

Samuel Conti, Senior District Judge, Presiding

Argued and Submitted

May 11, 2011—San Francisco, California

Filed June 4, 2012

Before: William A. Fletcher and N. Randy Smith,

Circuit Judges, and Richard Mills, Senior District Judge.*

Opinion by Judge William A. Fletcher;

Partial Concurrence and Partial Dissent by

Judge N.R. Smith

*The Honorable Richard Mills, Senior District Judge for the U.S. Dis-

trict Court for Central Illinois, Springfield, sitting by designation.

6173

HARLICK v. BLUE SHIELD OF CALIFORNIA 6177

COUNSEL

Lisa S. Kantor, Elizabeth K. Green, KANTOR & KANTOR,

Northridge, California, for the plaintiff-appellant.

Adam Pines, Joanna Sobol McCallum, MANATT, PHELPS

& PHILLIPS, LLP, Los Angeles, California, for the

defendant-appellee.

Ethan P. Schulman, CROWELL & MORING LLP, San Fran-

cisco, California, for amicus curiae California Association of

Health Plans.

John M. LeBlanc, BARGER & WOLEN LLP, Los Angeles,

California, for amicus curiae California Chamber of Com-

merce.

Henry W. Crowle, CALIFORNIA PUBLIC EMPLOYEES’

RETIREMENT SYSTEM LEGAL OFFICE, Sacramento,

California, for amicus curiae California Public Employees’

Retirement System.

6178 HARLICK v. BLUE SHIELD OF CALIFORNIA

Adam Michael Cole, CALIFORNIA DEPARTMENT OF

INSURANCE, San Francisco, California, for amicus curiae

Insurance Commissioner for the State of California Dave

Jones.

ORDER

This court’s opinion filed on August 26, 2011, and pub-

lished at Harlick v. Blue Shield of California, 656 F.3d 832

(9th Cir. 2001), is withdrawn and replaced by the attached

Opinion and Dissent.

With the filing of this new opinion and dissent, Judge

Fletcher and Judge Mills voted to deny the petition for panel

rehearing. Judge Fletcher voted to deny the petition for

rehearing en banc, and Judge Mills so recommended. Judge

Smith voted to grant the petition for panel rehearing and the

petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehear-

ing en banc, filed September 9, 2011, are DENIED.

Subsequent petitions for panel rehearing and/or petitions

for rehearing en banc may be filed with respect to the Opinion

in accordance with the requirements of Fed. R. App. P. 40 and

35.

HARLICK v. BLUE SHIELD OF CALIFORNIA 6179

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff Jeanene Harlick suffers from anorexia nervosa.

The question before us is whether Blue Shield was required

to pay for her care at a residential treatment facility, either

under the terms of her insurance plan or under California’s

Mental Health Parity Act. We conclude that her insurance

plan, considered alone, does not so require, but that the Men-

tal Health Parity Act does so require.

I. Background

A. Harlick’s Treatment at Castlewood

Jeanene Harlick, who is 38 years old, has suffered from

anorexia for more than twenty years. In early 2006, when she

was a clerk at the Pacific Construction & Manufacturing

Company, she relapsed and began intensive outpatient treat-

ment. At that time, she was enrolled in the company’s health

insurance plan through Blue Shield (“the Plan”), which paid

for the treatment.

In March 2006, Harlick’s doctors told her that she needed

a higher level of care than the intensive outpatient treatment

then being provided. Blue Shield employees told Harlick on

the telephone that residential treatment was not covered under

her Plan, but that partial or inpatient (full-time) hospitaliza-

tion would be covered if Blue Shield determined that it was

medically necessary. Blue Shield employees gave Harlick the

names of several facilities where such treatment might be

covered. Harlick and her doctors ultimately determined that

none of the in-network facilities suggested by Blue Shield

could provide effective treatment, so she registered at Castle-

wood Treatment Center, a residential treatment facility in

Missouri that specializes in eating disorders. When Harlick

entered Castlewood, she was at 65% of her ideal body weight.

6180 HARLICK v. BLUE SHIELD OF CALIFORNIA

When she had been there less than a month, a feeding tube

was inserted because her “caloric level needed to gain weight

was so high.” Harlick stayed at Castlewood from April 17,

2006 to January 31, 2007.

According to Castlewood’s website, it is a “Residential

Treatment Facility and Day Hospital program for individuals

needing comprehensive treatment for anorexia nervosa,

bulimia nervosa, and binge eating disorders.” Castlewood

specializes in the treatment of those who, like Harlick, have

multiple mental illnesses and have failed in other treatment

programs. Six levels of care are available at Castlewood. In

increasing order of intensity, they are a community support

group, an outpatient program, an intensive outpatient pro-

gram, day treatment, “Step Down” or partial hospitalization,

and residential care. Every week, patients in residential care

have four sessions with an individual therapist, one session

with a psychiatrist, one session with a nutritionist, and many

hours of group therapy. Castlewood staff members are on-site

twenty-four hours a day. They plan patients’ meals, monitor

patients’ food intake and kitchen use, provide dietary supple-

ments, and maintain feeding tubes. Several staff members at

Castlewood have graduate degrees in psychology, but none of

the staff members is a medical doctor or a nurse.

Castlewood is consistently described as a “residential”

community on its website. In an FAQ section of the website

discussing insurance, potential patients are told to ask their

insurance companies about available benefits for

“[r]esidential, mental health, non-substance abuse” treatment.

The website says that “Castlewood . . . is licensed as a ‘Resi-

dential’ facility, so it is important to obtain the residential

benefit and not simply the ‘inpatient’ benefit, as they might

be different.” The website also says that many states “have

‘parity’ laws, which means that the eating disorder could

potentially be covered on par with medical benefits.”

HARLICK v. BLUE SHIELD OF CALIFORNIA 6181

B. The Plan

For mental illnesses, Harlick’s insurance plan covers inpa-

tient services, limited outpatient services, office visits, psy-

chological testing, and in-person or telephone counseling

sessions. Inpatient services are covered “in connection with

hospitalization or psychiatric Partial Hospitalization (day

treatment).” Inpatient services for treatment of mental ill-

nesses are discussed three times in the Plan. Each time, the

Plan says that “[r]esidential care is not covered.” “Residential

care” is not defined anywhere in the Plan.

For physical illnesses, the Plan covers extensive hospital

treatment, outpatient treatments, and office visits. It also cov-

ers certain forms of “subacute care.” Subacute care is defined

as “skilled nursing or skilled rehabilitation provided in a Hos-

pital or Skilled Nursing Facility to patients who require

skilled care such as nursing services, physical, occupational or

speech therapy, a coordinated program of multiple therapies

or who have medical needs that require daily Registered

Nurse monitoring.” A Skilled Nursing Facility (“SNF”) is

defined as “a facility with a valid license issued by the Cali-

fornia Department of Health Services as a Skilled Nursing

Facility or any similar institution licensed under the laws of

any other state, territory, or foreign country.” The Plan pro-

vides coverage for up to 100 days at an SNF.

C. Blue Shield’s Coverage Decision

Blue Shield paid for the first eleven days of Harlick’s treat-

ment at Castlewood, but then refused to pay for the rest of her

treatment. Blue Shield conducted several internal reviews of

Harlick’s claim, and Blue Shield employees engaged in exten-

sive correspondence with Harlick and her mother, Robin Wat-

son, about her claim.

On September 20, 2006, Blue Shield employee Bruce Berg

reviewed Harlick’s record and recommended denying the

6182 HARLICK v. BLUE SHIELD OF CALIFORNIA

claim in an internal document that was not sent to Harlick or

Watson. Berg wrote, “[T]his appears to be residential care as

stated in the consent to treatment/treatment plan. . . . Residen-

tial treatment is not a benefit.”

On December 8, 2006, Blue Shield employee David Battin

reviewed the claim in another internal document. Battin con-

cluded that “[t]he principal reason” for the denial was that

Harlick’s plan did not cover residential care. A few days later,

on December 12, 2006, Blue Shield employee Risell Tachin-

Salazar wrote to Harlick and denied the claim based on Bat-

tin’s review, explaining that Harlick did not have a benefit for

residential care.

On January 19, 2007, Blue Shield employee Carroll Ceder-

berg reviewed the claim in another internal document. Ceder-

berg again concluded that residential care was not a covered

benefit under Harlick’s Plan.

On March 27, 2007, David Battin reviewed the claim again

in another internal document. He concluded:

The principal reason [for the denial] is that these ser-

vices are not a covered benefit. As per your health

plan’s Evidence of Coverage (EOC); all inpatient

psychiatric hospital care must be prior authorized by

the Mental Health Services Administrator (MHSA),

except for emergency care. Since you specifically

traveled to Missouri to be admitted to this particular

facility, this would not be considered as an emer-

gency admission. You also had amble [sic] time to

contact MHSA for authorization prior to your admis-

sion. In addition; [sic] residential care (room and

board) is not a covered benefit. During the dates of

service 4/28/06 to 8/25/06 the medical necessity of

being treated as an inpatient was not established, you

could have been treated as an outpatient. Since your

EOC does not cover room and board, the facility fees

HARLICK v. BLUE SHIELD OF CALIFORNIA 6183

for your residential treatment . . . are not a covered

benefit.

Battin also wrote that professional fees incurred at Castle-

wood, such as psychologists’ fees, would be covered if Blue

Shield found that the professional treatment was medically

necessary. A few days later, on April 6, 2007, Blue Shield

employee Mary Anne Gomez sent a letter to Harlick that

repeated Battin’s statements nearly verbatim.

On April 30, 2007, Blue Shield employee Carolyn Garner

wrote to Harlick, reiterating that coverage for treatment at

Castlewood had been denied because Harlick’s plan did not

cover residential treatment. Garner corrected two errors in

Gomez’s April 6 letter. First, she explained that the preauthor-

ization requirement did not apply to facilities outside Califor-

nia. Second, she explained that professional fees incurred at

Castlewood would not be covered unless the professionals

billed Blue Shield independently. Since Castlewood charged

a global fee that included professional fees, Blue Shield

would not cover those fees. Finally, in response to an inquiry

from Harlick’s mother, Robin Watson, Garner wrote that Cal-

ifornia’s mental heath parity law did not require Blue Shield

to cover treatment at Castlewood. Garner wrote that the Plan

did not cover any residential treatment, “whether the diagno-

sis is for a mental health condition or a medical condition,”

so there was no violation of the parity law.

On May 2, 2007, according to Watson, Blue Shield

employee Mary Anne Gomez suggested to Watson on the

telephone that Blue Shield might, in fact, cover professional

fees from Castlewood, and told her to separate her claims for

professional fees from her claims for room and board.

On August 3, 2007, Blue Shield employee Joan Russo

wrote a detailed letter to Watson clarifying inconsistencies in

previous letters and reiterating reasons for the denial. She

repeated that the claim had been denied because residential

6184 HARLICK v. BLUE SHIELD OF CALIFORNIA

facilities were not covered. She explained, for the first time,

that Blue Shield had paid for the first eleven days at Castle-

wood because of a “coding error.” According to Russo, the

coder used “a procedure code that did not identify the claim

as a mental health diagnosis,” so it was paid automatically.

Finally, Russo said that professional fees would not be cov-

ered. The letter stated that it was the final decision in Har-

lick’s administrative appeal.

Blue Shield eventually paid for professional fees incurred

at Castlewood. It has never paid for the rest of her treatment

at Castlewood.

D. DMHC Review

Frustrated by Blue Shield’s refusal to pay, Watson filed a

complaint with California’s Insurance Commissioner. Her let-

ter was forwarded to the California Department of Managed

Health Care, where Senior Counsel Andrew George investi-

gated the complaint. George wrote to Blue Shield and asked,

among other things: (1) why Harlick had been told that resi-

dential care was not medically necessary; (2) why Harlick

was told that benefits would be denied because care was not

pre-authorized, even though the Plan clearly stated that lack

of preauthorization resulted only in a $250 penalty; and (3)

whether Castlewood could be covered as an SNF. After talk-

ing to Russo at Blue Shield, George concluded that “although

[Harlick] ha[d] been provided with conflicting information

from the Plan regarding its basis for denial,” Blue Shield had

denied coverage because Harlick’s Plan did not cover residen-

tial care.

E. Proceedings in the District Court

On October 31, 2008, Harlick filed a complaint in federal

district court. On March 4, 2010, the district court granted

Blue Shield’s motion for summary judgment and denied Har-

lick’s motion for summary judgment. The court found that

HARLICK v. BLUE SHIELD OF CALIFORNIA 6185

Harlick’s Plan unambiguously excluded coverage for residen-

tial care and that, while the Plan did cover care at Skilled

Nursing Facilities, Castlewood was not an SNF. The court did

not reach the question whether California’s Mental Health

Parity Act required coverage of Harlick’s residential treat-

ment at Castlewood.

II. Standard of Review

We review de novo the district court’s decision on coverage

provided by an ERISA plan. Nolan v. Heald Coll., 551 F.3d

1148, 1153 (9th Cir. 2009) Like the district court, we review

the plan administrator’s decision whether to grant benefits for

abuse of discretion. Abatie v. Alta Health & Life Ins. Co., 458

F.3d 955, 959 (9th Cir. 2006) (en banc). In the ERISA con-

text, “a motion for summary judgment is merely the conduit

to bring the legal question before the district court and the

usual tests of summary judgment, such as whether a genuine

dispute of material fact exists, do not apply.” Nolan, 551 F.3d

at 1154 (internal quotation marks and citation omitted).

III. Discussion

A. Plan Coverage of Residential Care

For the reasons that follow, we conclude that Harlick’s

Plan, considered alone, does not provide coverage for her res-

idential care at Castlewood.

1. Review for Abuse of Discretion

[1] When we review an ERISA plan administrator’s denial

of benefits, the standard of review depends on whether the

plan explicitly grants the administrator discretion to interpret

the plan’s terms. Abatie, 458 F.3d at 967. The parties agree

that Harlick’s plan did grant Blue Shield such discretion. We

therefore review Blue Shield’s decision for abuse of discre-

tion. Id. However, our review is “tempered by skepticism”

6186 HARLICK v. BLUE SHIELD OF CALIFORNIA

when the plan administrator has a conflict of interest in decid-

ing whether to grant or deny benefits. Id. at 959, 968-69. In

such cases, the conflict is a “factor” in the abuse of discretion

review. Abatie, 458 F.3d at 966-68; accord Metro. Life Ins.

Co. v. Glenn, 554 U.S. 105, 108 (2008). The weight of that

factor depends on the severity of the conflict. Abatie, 458

F.3d at 968; Glenn, 554 U.S. at 108, 115-117.

[2] A conflict arises most frequently where, as here, the

same entity makes the coverage decisions and pays for the

benefits. This dual role always creates a conflict of interest,

Glenn, 554 U.S. at 108, but the conflict is “more important

. . . where circumstances suggest a higher likelihood that it

affected the benefits decision.” Id. at 117. The conflict is less

important when the administrator takes “active steps to reduce

potential bias and to promote accuracy,” id., such as employ-

ing a “neutral, independent review process,” or segregating

employees who make coverage decisions from those who deal

with the company’s finances. Abatie, 458 F.3d at 969 n.7. The

conflict is given more weight if there is a “history of biased

claims administration.” Glenn, 554 U.S. at 117. Our review of

the administrator’s decision is also tempered by skepticism if

the administrator gave inconsistent reasons for a denial, failed

to provide full review of a claim, or failed to follow proper

procedures in denying the claim. See Lang v. Long-Term Dis-

ability Plan, 125 F.3d 794, 798-99 (9th Cir. 1997); Friedrich

v. Intel Corp., 181 F.3d 1105, 1110 (9th Cir. 1999).

Harlick points to four factors that she argues should result

in our review of Blue Shield’s decision being tempered by

skepticism: (1) Blue Shield both makes coverage decisions

and pays benefits; (2) Blue Shield gave inconsistent reasons

for its denial of Harlick’s claim; (3) Blue Shield “never

explained why the California Mental Health Parity Act did

not require payment of [the] claim”; and (4) Blue Shield

excluded “residential treatment” from the Plan’s coverage

without defining the term. We take these factors in turn.

HARLICK v. BLUE SHIELD OF CALIFORNIA 6187

First, Blue Shield concedes that as plan administrator it

both makes coverage decisions and pays benefits. However,

the record before us does not indicate whether Blue Shield has

a history of bias in claims administration or whether it has

taken any steps to promote accurate decisionmaking. See

Glenn, 554 U.S. at 117; Abatie, 458 F.3d at 969 n.7.

Second, Blue Shield also concedes that it gave Harlick

inconsistent information about why it would not pay for her

treatment at Castlewood. But Blue Shield argues that its mis-

takes were minor and quickly corrected. We disagree with

Blue Shield’s characterization of its mistakes. At the begin-

ning of the process, Watson spoke several times to Blue

Shield’s call center employees. According to Watson, they

gave her no useful information about whether treatment at

Castlewood would be covered. When Harlick entered Castle-

wood, Blue Shield paid without complaint for eleven days,

and then abruptly stopped paying. It took more than a year for

Blue Shield to explain that it had paid for the first eleven days

because of a “coding error.” Harlick and Watson received

four letters from four different Blue Shield representatives

explaining why treatment at Castlewood was not covered. The

first letter said that residential treatment was not covered. The

second letter said that residential treatment was not covered,

that treatment was not preauthorized, and that treatment was

not medically necessary, but that professional fees might be

covered. The third letter said that residential treatment and

professional fees were not covered. An employee then told

Watson on the telephone that professional fees might be cov-

ered. The fourth letter said that residential treatment was not

covered and professional fees were not covered. Blue Shield

eventually paid the professional fees. While there is no evi-

dence indicating that Blue Shield changed its explanations in

bad faith, or suggesting that Blue Shield was determined to

deny Harlick’s claim regardless of its validity, the combined

effect of its communications to Harlick and Watson was con-

fusing and frustrating.

6188 HARLICK v. BLUE SHIELD OF CALIFORNIA

Third, Harlick argues that Blue Shield failed to explain why

the Mental Health Parity Act did not mandate coverage. This

argument is contradicted by the record. Carolyn Garner

explained in her April 30 letter why Blue Shield believed that

the Act did not mandate coverage.

Fourth, it is true that Blue Shield denied coverage for “resi-

dential care” without ever defining the term. As discussed

below, however, we discern no real ambiguity in the meaning

of “residential care” in Harlick’s Plan, and there is no indica-

tion that Blue Shield exploited any uncertainty about the

meaning of “residential care.” Compare Grosz-Salomon v.

Paul Revere Life Ins. Co., 237 F.3d 1154, 1162 & n.33 (9th

Cir. 2001) (an employer may not exploit uncertainty that it

has created).

[3] The net effect is that our review of Blue Shield’s denial

of coverage is for abuse of discretion, but tempered by some

skepticism because of Blue Shield’s structural conflict and its

changing explanations for denying coverage.

2. Coverage Under the Plan

Harlick makes two arguments in support of her contention

that the Plan covers her treatment at Castlewood. First, she

argues that the Plan covers residential care. Second, she

argues, in the alternative, that her care at Castlewood qualifies

for coverage as care at a Skilled Nursing Facility. We find

both arguments unpersuasive.

a. Residential Care

An ERISA plan is a contract that we interpret “in an ordi-

nary and popular sense as would a [person] of average intelli-

gence and experience.” Gillam v. Nev. Power Co., 488 F.3d

1189, 1194 (9th Cir. 2007) (internal quotation marks and cita-

tion omitted). We look first to the “explicit language of the

agreement to determine, if possible, the clear intent of the par-

HARLICK v. BLUE SHIELD OF CALIFORNIA 6189

ties,” and then to extrinsic evidence. Id. (internal quotation

marks and citation omitted). Harlick argues that the term “res-

idential care” in the Plan is ambiguous for two reasons. First,

she argues that “residential care” has no defined meaning in

the Plan. Second, she argues that the exclusion of residential

care is unclear because of its placement in the Plan. Specifi-

cally, she points out that the exclusion of “residential care”

occurs in the sections of the Plan that deal with inpatient hos-

pital care, suggesting that Blue Shield intended to exclude

coverage for residential care only in the context of hospitals.

[4] Harlick’s own evidence shows, however, that “residen-

tial care” has a fairly well-established meaning in the context

of the treatment of mental illness, particularly eating disor-

ders. Castlewood’s website calls Castlewood a “residential

treatment facility.” An FAQ on Castlewood’s website

explains that Castlewood “is licensed as a ‘Residential’ facil-

ity, so it is important to obtain the residential benefit.” Harlick

argues in her opening brief that “residential treatment center”

is one of “five critical levels of care which should be consid-

ered for patients with an eating disorder,” and she quotes sev-

eral professional associations opining on the importance of

residential care for eating disorders. A survey done by the

California Department of Managed Health Care, discussed

below, specifically addresses coverage for residential care for

eating disorders. There may be disputes at the margin about

what qualifies as residential care, and it is certainly preferable

for a plan to define key terms. But there is no evidence of

actual confusion in this case about whether treatment at

Castlewood was “residential care.”

We also disagree that the placement of the exclusion was

confusing. Every time the Plan says anything about inpatient

care for mental illness, it specifies that residential care is not

a covered benefit. The Plan states three times that residential

care is not covered. First, it states that “inpatient services” are

covered when they are connected with hospitalization, but

that “[r]esidential care is not covered.” Second, it states that

6190 HARLICK v. BLUE SHIELD OF CALIFORNIA

“[r]esidential care is not covered” in the section describing

payment responsibilities for inpatient professional and physi-

cian services. Third, it states that “[r]esidential care is not

covered” in the section describing payment responsibilities

for inpatient hospital treatment.

[5] Blue Shield could have organized the Plan more clearly

— for example, it could have put an exclusion for residential

care in the “Principal Limitations” section — but the organi-

zation is neither illogical nor misleading. Residential care is

a type of inpatient care. A Plan subscriber wanting to know

whether residential care is covered would go to the sections

of the Plan describing coverage for inpatient care, and would

discover, each time inpatient care is mentioned, a statement

that residential care is not covered. Since the entire section of

the Plan dealing with treatment of mental illness is only six

pages long, these statements are not difficult to find. We

believe that a person “of average intelligence and experience”

would have no trouble concluding that the Plan does not cover

residential care. Compare Saltarelli v. Bob Baker Group Med.

Trust, 35 F.3d 382, 385-87 (9th Cir. 1994) (holding that

placement of exclusion was so inexplicable that exclusion was

unenforceable).

b. Skilled Nursing Facility

[6] Harlick argues, in the alternative, that Castlewood is a

Skilled Nursing Facility under the Plan. Harlick’s Plan covers

a maximum of 100 days of treatment each year at an SNF. A

“Skilled Nursing Facility” is defined in the Plan as “a facility

with a valid license issued by the California Department of

Health Services as a Skilled Nursing Facility or any similar

institution licensed under the laws of any other state, territory,

or foreign country.” The California licensing statute defines

an SNF as “a health facility that provides skilled nursing care

and supportive care to patients whose primary need is for

availability of skilled nursing care on an extended basis.” Cal.

Health & Safety Code § 1250(c). Among other things, an SNF

HARLICK v. BLUE SHIELD OF CALIFORNIA 6191

in California must have “at least one registered nurse or a

licensed vocational nurse, awake and on duty, in the facility

at all times, day and night.” 22 Cal. Admin. Code § 72329(b)-

(d).

Missouri, where Castlewood is located, also licenses SNFs.

Under Missouri law, an SNF is

any premises, other than a residential care facility,

assisted living facility, or an intermediate care facil-

ity, which is utilized by its owner, operator, or man-

ager, to provide for twenty-four (24) hour

accommodation, board and skilled nursing care and

treatment services to at least three (3) residents . . .

Skilled nursing care and treatment services are those

services commonly performed by or under the super-

vision of a registered professional nurse for individu-

als requiring twenty-four (24) hours a day care by

licensed nursing personnel including acts of observa-

tion, care, and counsel of the aged, ill, injured, or

infirm, the administration of medications and treat-

ments as prescribed by a licensed physician or den-

tist, and other nursing functions requiring substantial

specialized judgment and skill.

19 Mo. Code of State Regulations § 30-83.010(49).

[7] Castlewood has no registered nurses, licensed voca-

tional nurses, or other nurses on its staff. It therefore does not

qualify as an SNF under either California or Missouri law.

[8] Harlick points out that the Plan covers SNFs licensed

in California and “any similar institution licensed under the

laws of any other state, territory, or foreign country.” She

argues that Castlewood is a “similar institution” to an SNF,

providing care for mental rather than physical illness. Castle-

wood may provide mental illness care that is analogous to the

physical illness care that is provided in an SNF, but this does

6192 HARLICK v. BLUE SHIELD OF CALIFORNIA

not mean that Castlewood is a “similar institution” to an SNF

within the meaning of the Plan. The most natural reading of

the Plan’s language is that the Plan covers SNFs in California,

as well as institutions in other states that provide around-the-

clock nursing care for physical illnesses, even if they are

given a different name in those states. It was not an abuse of

discretion for the Plan administrator to conclude that Castle-

wood was not an SNF or a “similar institution licensed under

the laws of any other state” within the meaning of the Plan.

B. Mental Health Parity Act

For the reasons that follow, we conclude that the Mental

Health Parity Act mandates that a plan within the scope of the

Act provide all “medically necessary treatment” for “severe

mental illnesses,” and that Harlick’s residential care at Castle-

wood was medically necessary.

1. Overview of the Act

[9] The California Mental Health Parity Act (“Parity Act”

or “Act”) was enacted in 1999. In enacting the statute, the

California legislature found that “[m]ost private health insur-

ance policies provide coverage for mental illness at levels far

below coverage for other physical illnesses.” 1999 Cal. Legis.

Serv. ch. 534 (A.B.88), § 1 (West). The legislature further

found that coverage limitations had resulted in inadequate

treatment of mental illnesses, causing “relapse and untold suf-

fering” for people with treatable mental illnesses, as well as

increases in homelessness, increases in crime, and significant

demands on the state budget. Id.

To combat this disparity, the Parity Act provides, in perti-

nent part:

(a) Every health care service plan contract issued,

amended, or renewed on or after July 1, 2000, that

provides hospital, medical, or surgical coverage shall

HARLICK v. BLUE SHIELD OF CALIFORNIA 6193

provide coverage for the diagnosis and medically

necessary treatment of severe mental illnesses of a

person of any age . . . under the same terms and con-

ditions applied to other medical conditions as speci-

fied in subdivision (c).

(b) These benefits shall include the following:

(1) Outpatient services.

(2) Inpatient hospital services.

(3) Partial hospital services.

(4) Prescription drugs, if the plan contract

includes coverage for prescription drugs.

(c) The terms and conditions applied to the benefits

required by this section, that shall be applied equally

to all benefits under the plan contract, shall include,

but not be limited to, the following:

(1) Maximum lifetime benefits.

(2) Copayments.

(3) Individual and family deductibles.

(d) For the purposes of this section, “severe mental

illnesses” shall include:

....

(8) Anorexia nervosa.

....

6194 HARLICK v. BLUE SHIELD OF CALIFORNIA

Cal. Health & Safety Code § 1374.72 (emphasis added). It is

undisputed that Harlick’s Plan “provides hospital, medical, or

surgical coverage” and so comes within the scope of the Act.

[10] Subsection (a) contains the Act’s basic mandate.

Briefly summarized, subsection (a) states that all plans that

come within the scope of the Act “shall provide coverage for

. . . medically necessary treatment of severe mental illnesses,”

including anorexia nervosa. That is, if treatment for a “severe

mental illness” is “medically necessary,” a plan that comes

within the scope of the Act must pay for that treatment. Sub-

section (a) contains only one limitation on the basic mandate

that coverage be provided for “medically necessary treatment

of severe mental illnesses”: such coverage must be provided

“under the same terms and conditions applied to other medi-

cal conditions as specified in subdivision (c).” The parties

agree that the phrase “terms and conditions” refers to mone-

tary conditions, such as copayments and deductibles. Thus,

plans need not provide more generous financial terms for cov-

erage for severe mental illnesses than they provide for cover-

age of physical illnesses. For instance, if a plan has a twenty

dollar deductible for each office visit to treat a physical ill-

ness, it may also have a twenty dollar deductible for each

office visit to treat a severe mental illness.

Subsection (b) states that “[t]hese benefits” must be offered

by a plan that comes within the scope of the Act, and lists four

specific required benefits. The wording of subsection (b) is

potentially confusing. The phrase “these benefits” suggests

that subsection (b) refers back to subsection (a), but subsec-

tion (a) never uses the word “benefits.” Harlick contends, and

Blue Shield does not dispute, that the phrase “these benefits”

refers to the phrase “coverage for the diagnosis and medically

necessary treatment.” Thus, the required coverage “shall

include” all the benefits listed in subsection (b) — outpatient,

inpatient, and partial hospital services, and, in some circum-

stances, prescription drug services. As we discuss below, the

list of benefits in subsection (b) is not exhaustive.

HARLICK v. BLUE SHIELD OF CALIFORNIA 6195

Subsection (c) gives three illustrative examples of “terms

and conditions” that must apply equally to coverage for men-

tal and physical illnesses: maximum lifetime benefits, copay-

ments, and deductibles. As explained above, the parties agree

that “terms and conditions” refers only to financial terms and

conditions.

Finally, subsection (d) lists nine “severe mental illnesses”

for which coverage for “medically necessary treatment” is

mandated. Mental illnesses that are not “severe” are not

included in the Parity Act. Anorexia nervosa is one of the

listed severe mental illnesses.

[11] In summary, plans that come within the scope of the

Act must cover all “medically necessary” treatment for “se-

vere mental illnesses,” including the nine illnesses specifically

listed, but can apply the same financial conditions — such as

deductibles and lifetime benefits — that are applied to cover-

age for physical illnesses.

2. Benefits Required under the Parity Act

[12] Blue Shield contends that residential care is not a ben-

efit that it must provide under the Parity Act for a severe men-

tal illness, even if such care is medically necessary. The

district court did not reach this question. Because the parties

presented the question both to the district court and to us, and

because the record is developed, it is appropriate for us to

reach it. See Dole Food Co., Inc. v. Watts, 303 F.3d 1104,

1117-18 (9th Cir. 2002).

a. Statutory and Regulatory Text

[13] We begin with the text of the Parity Act and its imple-

menting regulation. See United States v. Nader, 542 F.3d 713,

717 (9th Cir. 2008). Subsection (b) of the Act provides that

“benefits shall include” outpatient services, inpatient hospital

services, partial hospitalization services, and prescription

6196 HARLICK v. BLUE SHIELD OF CALIFORNIA

drugs if the plan includes coverage for prescription drugs.

Thus, the coverage required under subsection (a) must

include, at a minimum, those four treatments. Subsection (b)

does not mention “residential care” as a covered benefit, so a

threshold question is whether the list of benefits in subsection

(b) is an exhaustive list of treatments that can qualify as

“medically necessary.”

Subsection (b) of the Act says that benefits “shall include”

the four listed treatments, but it does not explicitly say

whether the list is exhaustive. By contrast, the list of “terms

and conditions” in subsection (c) of the Act is explicitly char-

acterized as a non-exhaustive list. Cal. Health & Safety Code

§ 1374.72(c) (“The terms and conditions . . . shall include, but

not be limited to, the following.”). At least two district courts

have concluded that the difference in wording means that the

list of benefits in subsection (b) is exhaustive. Wayne W. v.

Blue Cross of Cal., No. 1:07-CV-00035, 2007 WL 3243610,

at *4 (D. Utah Nov. 1, 2007); Daniel F. v. Blue Shield of Cal.,

No. C09-2037, 2011 WL 830623, at *8-9 (N.D. Cal. Mar. 3,

2011).

[14] However, the California Department of Managed

Health Care (“DMHC”), promulgated a regulation imple-

menting the Parity Act in 2003. The regulation makes clear

that the list of benefits in subsection (b) of the Act is not

exhaustive. The regulation provides:

The mental health services required for the diagno-

sis, and treatment of conditions set forth in Health

and Safety Code section 1374.72 [the Parity Act]

shall include, when medically necessary, all health

care services required under the Act including, but

not limited to, basic health care services within the

meaning of Health and Safety Code sections 1345(b)

and 1367(i), and section 1300.67 of Title 28.

28 Cal. Admin. Code § 1300.74.72(a) (emphasis added). The

words “including, but not limited to” in the regulation suggest

HARLICK v. BLUE SHIELD OF CALIFORNIA 6197

that the list of benefits in subsection (b) of the Act, as well as

the “basic health care services” specified in the regulation, are

illustrative rather than exhaustive.

Blue Shield agrees that the list of four benefits specified in

subsection (b) of the Parity Act is not exhaustive and that it

is required to provide additional services under § 1300.74.72

that are not listed in subsection (b). (That is, Blue Shield dis-

agrees with the two district courts, supra, that have concluded

that the list in subsection (b) is exhastive.) Subsection (b) of

the Parity Act specifies only the following as required bene-

fits: “(1) Outpatient services. (2) Inpatient hospital services.

(3) Partial hospital services. (4) Prescription drugs, if the plan

contract includes coverage for prescription drugs.” Cal.

Health & Safety Code § 1374.72(b). Blue Shield recognizes

that the Parity Act’s implementing regulation specifies that all

the benefits listed in California Health & Safety Code

§ 1345(b) are covered by the Parity Act, in addition to the

four benefits specified in part (b) of the Act. Section 1345(b)

was originally passed as part of the Knox-Keene Act of 1975,

which requires basic services appropriate to physical illnesses.

In its current form, § 1345(b) provides:

“Basic health care services” means all of the follow-

ing:

(1) Physician services, including consulta-

tion and referral.

(2) Hospital inpatient services and ambula-

tory care services.

(3) Diagnostic laboratory and diagnostic

and therapeutic radiologic care services.

(4) Home health care services.

(5) Preventive health services.

6198 HARLICK v. BLUE SHIELD OF CALIFORNIA

(6) Emergency health care services, includ-

ing ambulance and ambulance transport

services and out-of-area coverage. . . .

(7) Hospice care pursuant to Section

1368.2.

Despite the mandate in section (a) of the Parity Act of cov-

erage for “medically necessary treatment of severe mental ill-

nesses, and despite its recognition that the list of mandated

benefits in section (b) of the Act is not exhaustive, Blue

Shield argues that the Act and its implementing regulation do

not require coverage of all “medically necessary treatment for

severe mental illnesses.” Blue Shield argues for a three-prong

test that would determine whether a “medically necessary”

treatment must be covered. Blue Shield argues in its brief that

“a particular ‘medically necessary’ treatment must be pro-

vided for the treatment of severe mental illness if: (1) it is a

level of care specified in subsection (b) of the Parity Act; (2)

it is a ‘basic health care service’ required under Cal. Health

& Safety Code § 1345(b) . . . ; or (3) it is an additional (non-

mandated) benefit that the plan has chosen to provide for the

treatment of physical conditions.”

Blue Shield supports its argument by citing the Parity Act’s

implementing regulation, which we quoted above. Blue

Shield writes in its brief that this regulation

states that the mental health services required under

the Parity Act “shall include, when medically neces-

sary, all health care services required under the

[Knox-Keene] Act, including, but not limited to,

basic health care services within the meaning of [the

statutory provisions].”

(quoting § 1300.74.72(a); italics, “[Knox-Keene]”, and “[the

statutory provisions]” added by Blue Shield). The Knox-

Keene Act regulates insurance coverage of physical illness,

HARLICK v. BLUE SHIELD OF CALIFORNIA 6199

without restriction on the type or severity of the illness.

Unlike the Parity Act, it is not limited to “severe” illnesses.

The Knox-Keene Act does not mandate coverage of all medi-

cally necessary treatments for physical illnesses. Cal. Health

& Safety Code §§ 1345(b), 1367(i); 28 Cal. Admin. Code

§ 1300.67. Blue Shield contends that under the regulation,

coverage mandated by the Parity Act for severe mental ill-

nesses is no greater than coverage mandated by the Knox-

Keene Act for physical illnesses.

The regulation implementing the Parity Act does not spec-

ify whether the “Act” to which it refers without specification

is the Knox-Keene Act or the Parity Act. We are willing to

assume, as Blue Shield assumes, that the word “Act” refers to

the Knox-Keene Act. Administrative Code § 1300.45 pro-

vides definitions for terms used in health care regulations.

Section 1300.45(a), promulgated in 1976, defines “Act” to

mean “the Knox-Keene Health Care Service Plan Act of

1975.” See also Arce v. Kaiser Foundation Health Plan, Inc.,

181 Cal. App.4th 471, 492 (2010) (inserting “Knox-Keene” in

brackets when quoting § 1300.74.72(a)). But see Daniel F. v.

California Physicians’ Service, 2009 WL 2581303 at *6

(N.D.Cal. Aug. 20, 2009)) (observing that § 1300.74.72(a)

“provides that the mental health services required under

§ 1374.72 shall include all health care services required under

the Parity Act” (emphasis added)). But it does not follow that

the coverage for severe mental illnesses mandated by the

Mental Health Parity Act is restricted to the coverage for

physical illnesses mandated by the Knox-Keene Act.

The implementing regulation for the Parity Act provides, as

noted above, that the mandated coverage of the Parity Act

“shall include, when medically necessary, all health care ser-

vices required under the Act, including but not limited to,

basic health care services within the meaning of § 1345(b)[.]”

§ 1300.74.72(a) (emphasis added). In quoting the regulation,

Blue Shield plays down the importance of the phrase “includ-

ing but not limited to” by italicizing the words preceding and

6200 HARLICK v. BLUE SHIELD OF CALIFORNIA

following that phrase. But the phrase is critical. It makes clear

that the Parity Act mandates coverage of the “basic health

care services” appropriate to physical illnesses specified in

§ 1345(b), and that the Parity Act’s mandated coverage for

severe mental illnesses includes but is not limited to those

basic health care services.

During the notice-and-comment process leading up to the

promulgation of § 1300.74.72, Blue Shield made the same

argument about the mandated coverage of the Parity Act that

it now makes to us. The DMHC unambiguously rejected Blue

Shield’s argument.

Blue Shield wrote to the DMHC during the comment

period, stating that it was concerned that the Parity Act might

be interpreted to require that a plan cover all “medically nec-

essary treatments.” Blue Shield wrote:

[W]e are concerned that the language in proposed

subsection (a) [of the proposed regulation] could be

construed to require the plan to provide coverage for

any and all medically necessary services for [cov-

ered mental health conditions] notwithstanding that

the services are not basic health services and are not

otherwise covered by the enrollees benefit plan for

other conditions (e.g., residential treatment, prescrip-

tion drugs if not otherwise covered, etc). Therefore,

we would recommend that a more direct approach be

taken with respect to this provision and would offer

the following as replacement language for subsection

(a):

“The health services required to be pro-

vided by a plan for an enrollee with a

severe mental illness . . . shall include all

benefits and services provided to enrollees

under the same subscriber contract as for

other health conditions. Such coverage shall

HARLICK v. BLUE SHIELD OF CALIFORNIA 6201

not otherwise be limited only to basic

health care services within the meaning of

Section 1345(b) of the Act and Section

1300.67 of Title 28.”

Letter from Lyle S. Swallow, Associate General Counsel,

Blue Shield of California, to Curtis Leavitt, Assistant Chief

Counsel, DMHC (Sept. 25, 2002). The language suggested by

Blue Shield is the functional equivalent of the language in the

third prong of the three-prong test for which it has argued

here.

The DMHC responded, rejecting Blue Shield’s suggested

language. It wrote:

REJECT. Health & Safety Code section 1374.72

requires health plans to provide mental health cover-

age for specified mental conditions, to the same

extent as the health plan covers other medical condi-

tions. The regulation must be read and applied so as

to interpret, make specific, or clarify a statute. Given

that the statute requires parity in coverage, the com-

mentator’s concern is without merit; the regulation

requires only that health plans provide mental health

coverage in parity with what the plan provides for

other medical conditions. The draft regulation lan-

guage makes clear that plans cannot limit mental

health coverage to anything less than what is medi-

cally necessary and on parity with other health cov-

erage provided by the plan.

DMHC Mental Health Parity, Responses to Comments, 1st

Comment Period, 8/16 – 9/30/2002, at 1.

The DMHC’s response clearly rejected Blue Shield’s inter-

pretation of the Act, but did not explicitly say that plans had

to cover all medically necessary treatment for the listed men-

tal illnesses. But the DMHC’s response to other comments

6202 HARLICK v. BLUE SHIELD OF CALIFORNIA

was very explicit on this point. One commentator had sug-

gested that DMHC “should look at developing a list of ser-

vices specific to mental health care that will capture all those

services needed for the state to provide full parity coverage.”

Id. at 2. The DMHC wrote in response:

REJECT. It is not appropriate to list all services that

a plan must provide in order to meet the obligations

of section 1374.72 [the Parity Act]. Beyond specify-

ing some of the essential services in the amended

section 1300.74.72(b), it is sufficient to state that the

plans must provide all medically necessary services.

To the extent that certain services are medically nec-

essary, then those services will be provided.

Id. (emphasis added). Another commentator had made a simi-

lar suggestion, and the DMHC gave the same response. See

id. at 18 (“[I]t is not appropriate to list all services, including

‘rehabilitative services,’ that a plan must provide in order to

meet the obligations of section 1374.72. It is sufficient that

plans provide all medically necessary services. To the extent

that certain rehabilitative services are medically necessary,

then those services will be provided.”).

If additional demonstration of the incorrectness of Blue

Shield’s argument is necessary, we point to subsection (b)(4)

of the Parity Act. Subsection (b)(4) provides that plans within

the scope of the Act must cover “[p]rescription drugs, if the

plan contract includes coverage for prescription drugs.” The

Parity Act thus specifies that a plan need not cover prescrip-

tion drugs for severe mental illnesses, even if they are medi-

cally necessary, unless the plan covers such drugs for physical

illnesses. The Parity Act’s specific carve-out from the cover-

age mandate for medically necessary prescription drugs indi-

cates that all other benefits for severe mental illnesses must be

provided whenever they are medically necessary, whether or

not such benefits are covered for physical illnesses.

HARLICK v. BLUE SHIELD OF CALIFORNIA 6203

Further, Blue Shield’s argument lacks support in common

sense. Some medically necessary treatments for severe mental

illness have no analogue in treatments for physical illnesses.

For example, it makes no sense in a case such as Harlick’s to

pay for time in a Skilled Nursing Facility — which cannot

effectively treat her anorexia nervosa — but not to pay for

time in a residential treatment facility that specializes in treat-

ing eating disorders.

Finally, the Parity Act and the Knox-Keene Act operate in

fundamentally different ways. Mandated coverage under the

Parity Act applies to nine specified “severe” mental illnesses.

The Act does not mandate coverage for non-severe mental ill-

nesses. By contrast, the Knox-Keene Act mandates coverage

for all physical illnesses, severe or otherwise. This distinction

explains the difference in required coverage under the Parity

and Knox-Keene Acts. The Parity Act, which applies to a nar-

row subset of mental illnesses, requires coverage for all medi-

cally necessary treatments for those illnesses. It limits insurer

liability by limiting the illnesses to which it applies, not by

limiting medically necessary treatments. The Knox-Keene

Act, on the other hand, contains no limits on the illnesses for

which coverage is required. Rather, it limits insurer liability

by limiting medically necessary treatments. Because the Par-

ity Act applies to severe mental illnesses, some of which are

life-threatening, it makes sense that the Act requires insurers

to cover all medically necessary treatments. It makes equal

sense that the Knox-Keene Act, which applies to the full

range of physical illnesses, does not require insurers to cover

all medically necessary treatments.

Although there is no caselaw directly on point, a recent

opinion by a California Court of Appeal supports our conclu-

sion. In Arce v. Kaiser Foundation Health Plan, the issue was

the certification of a plaintiff class in a suit under the Parity

Act. The court had no occasion to explicitly hold that the

phrase “medically necessary treatment” in the Parity Act

means all medically necessary treatment, but the court’s anal-

6204 HARLICK v. BLUE SHIELD OF CALIFORNIA

ysis appears to assume that this is the meaning of the Act. The

court wrote:

In sustaining [Kaiser’s] demurrer, it appears that the

trial court assumed that Arce could only prove a vio-

lation of the Mental Health Parity Act if he could

demonstrate that the therapies at issue were medi-

cally necessary for the putative class members and

that Kaiser denied coverage based on a determina-

tion that they were not. While that is one means of

establishing a violation [of] the statute, it is not the

exclusive means. It is possible that Arce also could

prove a statutory violation by showing that Kaiser

categorically denies coverage for mental health care

services that may, in some circumstances, be medi-

cally necessary . . . for its individual plan members.

181 Cal. App. 4th at 493.

b. Positions Taken by the Department of Managed Health

Care

[15] Blue Shield contends that the California Department

of Managed Health Care (“DMHC”) has taken the position

that the Parity Act does not mandate that all “medically neces-

sary treatments” for enumerated “severe mental illnesses” be

covered. It is more accurate to say that the DMHC has taken

more than one position on this issue.

Under California law, the deference a court should accord

to an agency’s interpretation of a statute is “fundamentally sit-

uational.” Yamaha Corp. of Am. v. State Bd. of Equalization,

19 Cal. 4th 1, 12 (1998) (emphasis omitted). Judicial defer-

ence to an agency’s interpretation “turns on a legally

informed, commonsense assessment of [its] contextual merit.”

Id. at 14. A court should consider factors “indicating that the

agency has a comparative interpretive advantage over the

courts” and factors “indicating that the interpretation in ques-

HARLICK v. BLUE SHIELD OF CALIFORNIA 6205

tion is probably correct.” Id. at 12 (internal quotation marks

and citation omitted). An agency will have a comparative

advantage over courts, for example, if the subject matter of

the statute is especially technical or complex, or if the agency

is interpreting its own regulation. Id. An agency’s interpreta-

tion is more likely to be correct when the interpretation has

gone through formal notice-and-comment rulemaking, when

there are “indications of careful consideration by senior

agency officials,” or when the agency has maintained a con-

sistent interpretation over time. Id. at 13.

We discussed above the DMHC’s statements during the

notice-and-comment process leading up to the promulgation

of § 1300.74.72 that the Act mandates that plans cover all

“medically necessary treatments” for “severe mental illness-

es.” We will not repeat that discussion here.

Blue Shield contends that the DMHC has taken a contrary

position on three occasions. First, Blue Shield points to Con-

sumer Watchdog v. California DMHC, No. BS121397 (Super.

Ct. Cal. filed June 30, 2009), in which the DMHC demurred

to a complaint seeking coverage of medically necessary treat-

ment for autism by providers not licensed in California. The

DMHC described the question presented as follows:

Petitioners allege the Department must order plans to

cover all medically necessary ABA therapy where it

is provided by a professional who is unlicensed in

California. Does the law command the Department

to order coverage in every such extreme case?

Memorandum of Points and Authorities in Support of Demur-

rer at 1, Consumer Watchdog, No. BS121397 (Super. Ct. Cal.

Aug. 7, 2009). The DMHC argued that the Parity Act did not

require coverage of treatment for autism when the provider

was unlicensed, even if the treatment was medically neces-

sary.

6206 HARLICK v. BLUE SHIELD OF CALIFORNIA

Positions taken by an agency for purposes of litigation ordi-

narily receive little deference under California law. See

Yahama, 19 Cal. 4th at 23-24 (citing Culligan Water Condi-

tioning v. State Bd. of Equalization, 17 Cal. 3d 86 (1976)).

This is particularly so where, as here, the agency adopts a liti-

gating position that is inconsistent with an interpretation it has

previously expressed. See Yamaha, 19 Cal. 4th at 13. More-

over, the DMHC put forth no persuasive arguments in support

of its position in the demurrer. Our skepticism about the

DMHC’s litigating position was shared by the Superior Court,

which overruled the demurrer and held that the Act requires

that plans cover medically necessary treatment by unlicensed

providers “unless they have licensed providers who will pro-

vide the same services.” Decision on Demurrer at 7, Con-

sumer Watchdog, No. BS121397 (Super. Ct. Cal. Oct. 20,

2009). Although somewhat cryptic, a later decision on a writ

of mandate in the same case appears to be consistent with the

decision on the demurrer. Decision Re: Petition for Writ of

Mandate, Consumer Watchdog, No. BS121397 (Super. Ct.

Cal. Dec. 20, 2010).

Second, Blue Shield points to a survey conducted in 2005

by the DMHC as part of a “preliminary analysis on mental

health parity.” Problems identified in the survey included a

lack of high-quality residential treatment centers for eating

disorders, as well as “significant variation” in plan coverage

of residential care for such disorders. Seven plans were stud-

ied, though the coverages of only six were described. One

plan had “made a policy decision that, under parity, [residen-

tial treatment center] services are covered for all age groups

and are comparable to skilled nursing home facility services.”

Four plans covered residential treatment as an optional bene-

fit. One plan did not “routinely” offer residential treatment

coverage; under this plan, residential treatment coverage was

not a benefit “for most enrollees.”

Blue Shield argues that if the DMHC had interpreted the

Parity Act to require residential care, it would have ordered

HARLICK v. BLUE SHIELD OF CALIFORNIA 6207

all seven plans to cover such care. We are not convinced that

this is so. The DMHC was conducting a survey of residential

treatment coverage as part of a larger preliminary study of

mental health parity. The study was not — and was not

designed to be — an enforcement proceeding.

Third, Blue Shield points to the May 25, 2007, letter from

DMHC Senior Counsel Andrew George to Harlick. After

reviewing a complaint from Harlick’s mother Robin Watson

about Blue Shield’s refusal to cover Harlick’s care at Castle-

wood, George wrote:

After reviewing all of the information submitted, we

are unable to direct Blue Shield to cover these ser-

vices. According to the terms of your health plan

contract, . . . residential care is excluded from cover-

age. As Castlewood is licensed as a residential treat-

ment center, rather than an acute in-patient facility,

Blue Shield is not obligated to provide coverage for

this treatment.

Blue Shield argues that George’s letter shows that the Parity

Act does not mandate coverage for medically necessary treat-

ment for anorexia nervosa in a residential care facility.

Blue Shield misunderstands the scope of the DMHC’s

review and the purpose of George’s letter. Upon request, the

DMHC will review a plan’s refusal to cover care based on a

determination that the care was not medically necessary. See

Cal. Health & Safety Code § 1374.30(b), (d). This review is

called an “independent medical review.” Id. Such a review

deals solely with the question whether treatment was medi-

cally necessary for a particular patient. Id. The DMHC does

not decide whether a plan should generally cover a particular

treatment. Id.

It is clear that George’s review of Harlick’s complaint was

an “independent medical review” under § 1374.30. Watson

6208 HARLICK v. BLUE SHIELD OF CALIFORNIA

sent the complaint on April 9, 2007, and it was forwarded to

the DMHC on April 19, 2007. On April 24, 2007, the DMHC

sent Blue Shield an “Independent Medical Review Request

for Health Plan Information” questionnaire. The cover sheet

said, “The Department of Managed Health Care has received

the attached request for an Independent Medical Review.” On

April 30, Blue Shield employee Carolyn Garner sent a letter

to Harlick noting her “understanding that you have submitted

an Application for Independent Medical Review to the Cali-

fornia Department of Managed [H]ealth Care.” On May 15,

George sent a letter of inquiry to Blue Shield. The letter

focused on medical necessity. It never mentioned the Parity

Act. On May 23, Blue Shield employee Joan Russo wrote a

letter to George explaining that the refusal to cover the treat-

ment was based on the terms of the Plan. Her letter never

mentioned the Parity Act. Once George learned that Blue

Shield’s refusal was a coverage decision, he sent a letter ter-

minating the review two days later, on May 25. This letter,

too, never mentioned the Parity Act. George’s May 25 letter

establishes only that the DMHC terminated its “independent

medical review” under § 1374.30 once it determined that Blue

Shield’s denial was not based on a lack of medical necessity.

It does not establish that the DMHC approved of Blue

Shield’s decision not to cover residential care at all.

c. Summary

[16] We conclude that the most reasonable interpretation

of the Parity Act and its implementing regulation is that plans

within the scope of the Act must provide coverage of all

“medically necessary treatment” for “severe mental illnesses”

under the same financial terms as those applied to physical ill-

nesses.

C. Medical Necessity in Harlick’s Case

[17] The remaining question is whether Harlick’s residen-

tial care at Castlewood was medically necessary. Blue Shield,

HARLICK v. BLUE SHIELD OF CALIFORNIA 6209

as the plan administrator, normally makes the medical neces-

sity determination in the first instance. Sarchett v. Blue Shield

of Cal., 43 Cal. 3d 1, 9-10 (1987). Blue Shield did not dispute

that treatment at Castlewood was medically necessary until

supplemental briefing filed after oral argument in this Court.

Blue Shield now argues that it should be allowed to reopen its

administrative process in order to determine whether Har-

lick’s residential care was medically necessary.

An ERISA plan administrator who denies a claim must

explain the “specific reasons for such denial” and provide a

“full and fair review” of the denial. 29 U.S.C. § 1133. The

administrator must also give the claimant information about

the denial, including the “specific plan provisions” on which

it is based and “any additional material or information neces-

sary for the claimant to perfect the claim.” 29 C.F.R.

§ 2560.503-1(g). A plan administrator may not fail to give a

reason for a benefits denial during the administrative process

and then raise that reason for the first time when the denial is

challenged in federal court, unless the plan beneficiary has

waived any objection to the reason being advanced for the

first time during the judicial proceeding.

Nevertheless, Blue Shield contends that remand is required

under Vizcaino v. Microsoft Corporation. 120 F.3d 1006 (9th

Cir. 1997) (en banc). Blue Shield misreads Vizcaino. In that

case, the plan administrator had failed to give a particular rea-

son for its denial of benefits under the plan, but the plaintiffs

explicitly waived, in both the district court and the court of

appeals, any objection to that reason being asserted in federal

court in defense of the administrator’s denial. Indeed, after

initially objecting in the district court, plaintiffs “urged the

magistrate judge to address” the plan administrator’s late-

raised argument. Vizcaino v. Microsoft Corp., 97 F.3d 1187,

1193 (9th Cir. 1996) (panel decision). The plaintiffs took the

same position on appeal. Vizcaino, 120 F.3d at 1013. We

therefore allowed the late-raised reason to be urged in support

6210 HARLICK v. BLUE SHIELD OF CALIFORNIA

of the administrator’s denial, but remanded for the administra-

tor to evaluate the reason in the first instance. Id. at 1014.

[18] The general rule, both before and after Vizcaino, in

this circuit and in others, is that a court will not allow an

ERISA plan administrator to assert a reason for denial of ben-

efits that it had not given during the administrative process.

We wrote recently:

Requiring that plan administrators provide a partici-

pant with specific reasons for denial “enable[s] the

claimant to prepare adequately for any further

administrative review, as well as appeal to the fed-

eral courts.” “[A] contrary rule would allow claim-

ants, who are entitled to sue once a claim has been

‘deemed denied,’ to be ‘sandbagged’ by a rationale

the plan administrator adduces only after the suit has

commenced.”

Mitchell v. CB Richard Ellis Long Term Disability Plan, 611

F.3d 1192, 1199 n.2 (9th Cir. 2010) (quoting Halpin v. W.W.

Grainger, Inc., 962 F.2d 685, 689 (9th Cir. 1992), and Jebian

v. Hewlett-Packard Co., Employee Benefits Org. Income Prot.

Plan, 349 F.3d 1098, 1104 (9th Cir. 2003)). ERISA and its

implementing regulations are undermined “ ‘where plan

administrators have available sufficient information to assert

a basis for denial of benefits, but choose to hold that basis in

reserve rather than communicate it to the beneficiary.’ ” Id.

(quoting Glista v. Unum Life Ins. Co. of Am., 378 F.3d 113,

129 (1st Cir. 2004)).

[19] During the administrative process, Blue Shield never

said that it was denying Harlick’s claims on the ground that

treatment at Castlewood was not medically necessary. Only

once during its extensive communication with Harlick and

Watson did Blue Shield even suggest that medical necessity

might be an issue. In a letter containing other errors, one Blue

Shield employee said that coverage for treatment at Castle-

HARLICK v. BLUE SHIELD OF CALIFORNIA 6211

wood was denied in part because medical necessity had not

been established for a four-month period. But in a letter a few

weeks later, a different Blue Shield employee reiterated that

Castlewood was not covered because it was a residential facil-

ity. From that time on, Harlick was told only that Blue Shield

would not pay for her care at Castlewood because her cover-

age did not extend to residential care. Blue Shield Senior

Manager in the Law Department, Joan Russo, explained in a

letter to Watson:

The Plan is not arguing that Jeanene was not in need

of care and treatment for her condition. However, it

is the Plan’s position that Jeanene was in a residen-

tial treatment program at Castlewood and according

to the terms of her Shield Spectrum PPO Plan, resi-

dential care is not covered.

Blue Shield also told the DMHC that the denial was not

based on medical necessity. During the independent medical

review, George sent Blue Shield a form about the claim

denial. The form began, “The health plan’s reason for the

denial was based on which of the following determinations:

(Check the appropriate boxes) — Benefit/Coverage, Experi-

mental/Investigational Treatment, Medical Necessity,

ER/Urgent Care Reimbursement.” Blue Shield checked “Ben-

efit/Coverage,” but did not check “Medical Necessity.”

George terminated the “independent medical review” because

such a review deals only with medical necessity, and Blue

Shield had not raised any issue of medical necessity.

Blue Shield had discretion to determine whether treatment

was medically necessary during the administrative review

process of Harlick’s claim. But Blue Shield had to tell Harlick

the “specific reasons for the denial” — not just one reason,

if there was more than one — and provide a “full and fair

review” of the denial. 29 U.S.C. § 1133 (emphases added).

Blue Shield told both Harlick and her mother, as well as the

DMHC, that medical necessity was not the reason for its

6212 HARLICK v. BLUE SHIELD OF CALIFORNIA

denial of Harlick’s claim. It cannot now bring out a reason

that it has “held in reserve” and commence a new round of

review. See Mitchell, 611 F.3d at 1199 n.2.

[20] Given that Harlick’s doctors believed that outpatient

treatment was insufficient, that Harlick entered Castlewood at

65% of her ideal body weight, and that Harlick needed a feed-

ing tube while at Castlewood, it appears that inpatient residen-

tial treatment was indeed necessary. But we need not decide

that question. By failing to assert during the administrative

process that medical necessity was a reason for denying Har-

lick’s claim, Blue Shield forfeited the ability to assert that

defense in the litigation now before us.

Conclusion

[21] Harlick’s Plan does not itself require that Blue Shield

pay for residential care at Castlewood for her anorexia ner-

vosa. However, California’s Mental Health Parity Act pro-

vides that Blue Shield “shall provide coverage for the

diagnosis and medically necessary treatment” of “severe men-

tal illnesses,” including anorexia nervosa, for plans coming

within the scope of the Act. It is undisputed that Harlick’s

plan comes within the scope of the Act. Blue Shield is fore-

closed from asserting that Harlick’s residential care at Castle-

wood was not medically necessary. We therefore conclude

that Blue Shield is obligated under the Parity Act to pay for

Harlick’s residential care at Castlewood, subject to the same

financial terms and conditions it imposes on coverage for

physical illnesses.

REVERSED.

N.R. SMITH, Circuit Judge, dissenting in part and concurring

in part:

In our original opinion, we interpreted the word “Act” in

the Parity Act’s 2003 implementing regulation (Cal. Code

HARLICK v. BLUE SHIELD OF CALIFORNIA 6213

Regs. tit. 28, § 1300.74.72(a)) to refer to the “Parity Act.” See

Harlick v. Blue Shield of California, 656 F.3d 832, 845 (9th

Cir. 2011). In my view, this interpretation of the word “Act”

provided the lynchpin for our conclusion that the Parity Act

was not limited by the provisions of the Knox–Keene Act.

Therefore, we determined that the Parity Act mandated cover-

age for all “medically necessary” services by medical insur-

ers. However, in Blue Shield’s Petition for Rehearing and

Petition for Rehearing En Banc, Blue Shield argued for the

first time that California’s Administrative Code Section

1300.45(a) (promulgated in 1976) defines “Act” to mean “the

Knox–Keene Health Care Service Plan Act of 1975.” See Cal.

Code Regs. tit. 28, § 1400.45(a).

After consideration of this argument, the panel now unani-

mously agrees that we incorrectly interpreted the text of the

Parity Act’s implementation regulation in our original opin-

ion. The majority’s amended opinion reflects our change in

interpretation. See Revised Maj. Op. 6199 (“We are willing to

assume, as Blue Shield assumes, that the word ‘Act’ refers to

the Knox–Keene Act.”). Yet despite this significant change in

our textual interpretation, the majority remains convinced that

our original interpretation of the Parity Act was still correct

based on conflicting legislative history and “common sense.”

Revised Maj. Op. 6203.

I see it differently and am surprised by the majority’s con-

clusion. Once we agree that the word “Act” is referencing the

Knox–Keene Act, the majority’s conclusion that “it does not

follow that the coverage for severe mental illnesses mandated

by the Mental Health Parity Act is restricted to the coverage

for physical illnesses mandated by the Knox-Keene Act,” is

a non sequitur. Revised Maj. Op. 6199. This reference acts as

a statutory limit on the type of benefits that insurers are

required to cover. Thus, only the interpretation of the Parity

Act that adheres to this text is appropriate. Under this inter-

pretation, an insurer need only provide services specifically

required under the Parity Act and its implementing regulation,

6214 HARLICK v. BLUE SHIELD OF CALIFORNIA

unless the insurer has voluntarily chosen to provide a non-

mandated benefit for a physical condition and must therefore

offer additional mental health benefits in parity with that cov-

erage. Accordingly, “medical necessity” is necessary, but not

independently sufficient for mental health coverage.

I. The Text of the Parity Act and Its Implementing

Regulation

The Parity Act was passed in 1999, because “most private

health insurance policies provide coverage for mental illness

at levels far below coverage for other physical illnesses.”

1999 Cal. Stat. 3701. Thus, the Parity Act sought to ensure

that mental health coverage would be provided in parity, or

equal measure, as physical health coverage. As the majority

has correctly summarized, all plans (coming within the scope

of the Act) were mandated to provide coverage for “medically

necessary treatment of severe mental illnesses.” Cal. Health &

Safety Code § 1374.72(a). Subsection (b) of Section 1374.72

provides that “benefits shall include” outpatient services,

inpatient hospital services, partial hospitalization services, and

prescription drugs if the plan includes coverage for prescrip-

tion drugs. Thus, the majority correctly notes that the impor-

tant “threshold question is whether the list of benefits in

subsection (b) is an exhaustive list of treatments that can qual-

ify as ‘medically necessary.’ ” Revised Maj. Op. 6196.

The majority notes that at least two district courts have

interpreted language, similar to section (b) language, to indi-

cate an exhaustive list. Revised Maj. Op. 6196 (citing Wayne

W. v. Blue Cross of Cal., No. 1:07-CV-00035, 2007 WL

3243610, at *4 (D. Utah Nov. 1, 2007); Daniel F. v. Blue

Shield of Cal., No. C09-2037, 2011 WL 830623, at *8-9

(N.D. Cal. Mar. 3, 2011)). Specifically, the district court in

Daniel F. arrived at a very similar conclusion to the one that

Blue Shield advocates here. 2011 WL 830623, at *8 (noting

that “the Parity Act does not require that insurers cover resi-

dential treatment, and does not require coverage for all ‘medi-

HARLICK v. BLUE SHIELD OF CALIFORNIA 6215

cally necessary health care service”; rather, only the specific

benefits enumerated under the Parity Act are required, as well

as benefits voluntarily “provided under a given plan”; thus “if

the plan at issue covers hospitalization for physical illness

where medically necessary, it must cover hospitalization for

mental illness where medically necessary”). I agree that this

interpretation is a consistent interpretation of the Parity Act,

because the services specifically required under the Parity Act

and its implementing regulation are exhaustive, unless the

insurer has voluntarily chosen to provide a non-mandated

benefit for a physical condition.

However, our original opinion did not adopt this interpreta-

tion of the Parity Act’s text, given our reading of the Parity

Act’s implementing regulation as referring to the Parity Act

itself, rather than creating a ceiling for benefits to be pro-

vided. Specifically, we stated:

Blue Shield inserted the bracketed phrase “[Knox–

Keene]” in its quotation of the regulation. Based on

its assumption that the regulation refers to the Knox

–Keene Act, Blue Shield argues that coverage under

the Parity Act is intended to parallel coverage under

the Knox–Keene Act. We believe that Blue Shield

misreads the regulation. In our view, the “Act” to

which the regulation refers is the Parity Act. . . .

Without Blue Shield’s alteration, nothing in the text

of the statute or the regulation suggests that the

scope of the Parity Act is equivalent to the scope of

the Knox–Keene Act.

Harlick, 656 F.3d at 845.

We now unanimously agree with Blue Shield that “Knox–

Keene” in fact does appropriately belong within the brackets.

We cannot avoid this interpretation, because California’s

Administrative Code requires that we interpret the word “Act”

6216 HARLICK v. BLUE SHIELD OF CALIFORNIA

as a reference to the Knox–Keene Act.1 Cal. Code Regs. tit.

28, § 1400.45(a). Given this change, there is support for the

interpretation of the Parity Act where “the scope of the Parity

Act is equivalent to the scope of the Knox–Keene Act.” Har-

lick, 656 F.3d at 845. Accordingly, this change in interpreta-

tion should also change our conclusion as to what benefits

insurers are required to provide under the Parity Act.

Nevertheless, the majority rejects this obvious interpreta-

tion of the statutory text based on its interpretation of “includ-

ing but not limited to” language in the implementation

regulation, which reads as follows:

The mental health services required for the diagno-

sis, and treatment of conditions set forth in Health

and Safety Code section 1374.72 [the Parity Act]

shall include, when medically necessary, all health

care services required under the Act including, but

not limited to, basic health care services within the

meaning of Health and Safety Code sections 1345(b)

and 1367(i), and section 1300.67 of Title 28.

1

See also Arce v. Kaiser Found. Health Plan, Inc., 104 Cal. Rptr. 3d

545, 564 (2010) (inserting ‘Knox–Keene’ in brackets when quoting

§ 1300.74.72(a)). Though this definition section was enacted before the

Parity Act’s implementing regulation, California law follows “a presump-

tion that the Legislature is aware of an administrative construction of a

statute,” and this presumption “should be applied if the agency’s interpre-

tation of the statutory provisions is of such longstanding duration that the

Legislature may be presumed to know of it.” Redevelopment Agency of the

City of Long Beach v. Cnty. of L.A., 89 Cal. Rptr. 2d 10, 17 n.5 (1999)

(quoting Moore v. Cal., 831 P.2d 798, 809 (Cal. 1992)). An “administra-

tive construction of a statute over many years, particularly when it origi-

nated with those charged with putting the statutory machinery into effect

and enforcing it, is entitled to great weight and will be followed unless

clearly erroneous.” Robinson v. Fair Emp’t & Hous. Comm’n, 825 P.2d

767, 785 (Cal. 1987) (internal quotation marks omitted); see also Misasi

v. Jacobsen, 359 P.2d 282, 284 (Cal. 1961) (“[C]ourts will generally not

depart from such an [administrative] interpretation unless it is clearly erro-

neous.”).

HARLICK v. BLUE SHIELD OF CALIFORNIA 6217

Cal. Code Regs. tit. 28, § 1300.74.72(a) (emphasis added).

Based on this language alone, the majority argues that the

“regulation suggest[s] that the list of benefits in subsection (b)

of the Act, as well as the ‘basic health care services’ specified

in the regulation, are illustrative rather than exhaustive.”

Revised Maj. Op. 6196-97. However, this reading of the regu-

lation ignores the text surrounding the “including, but not lim-

ited to” language and also ignores fundamental canons of

statutory interpretation.

The text of the Parity Act’s implementing regulation sug-

gests that the first portion of subsection (a) (“services required

. . . shall include, when medically necessary, all health care

services”) is being modified by the second portion of subsec-

tion (a) (“required under the [Knox–Keene] Act . . . .”). Thus,

the second portion of the text limits the scope of the “health

care services” that must be provided to the types of benefits

provided under the Knox–Keene Act. It is undisputed that the

Knox–Keene Act does not require all medically necessary

treatment for physical illnesses. See Kaiser Fdtn. Health Plan,

Inc. v. Zingale, 121 Cal. Rptr. 2d 741, 745 (2002) (“If the

Legislature had intended to require every health care service

plan that offers a prescription drug benefit to cover all medi-

cally necessary prescription drugs or to allow the Department

to impose that requirement, it would have been simple for the

Legislature to say so.”). Thus, viewed in this light, the “when

medically necessary” language operates as a necessary (rather

than sufficient) condition on the type of benefits that must be

provided. In other words, plans must provide the type of bene-

fits the Knox–Keene Act provides when they are medically

necessary for mental health.

The majority’s current interpretation of the regulation reads

out the modifying text: that the benefits must be provided

when “required under the [Knox –Keene] Act . . . .” Such a

reading contradicts California’s longstanding rule against

interpreting portions of statutory or regulatory text to be

superfluous. See Wells v. One2One Learning Found., 141

6218 HARLICK v. BLUE SHIELD OF CALIFORNIA

P.3d 225, 248 (Cal. 2006) (“[I]nterpretations which render

any part of a statute superfluous are to be avoided.”).

The “including, but not limited to,” language (on which the

majority relies) does not contradict this interpretation of the

Parity Act. California courts have explained that, while the

phrase “including, but not limited to” is admittedly a “phrase

of enlargement,” this phrase is “not a grant of carte blanche

that permits all actions without restriction,” and it cannot be

used to create an “unreasonable expansion of the legislature’s

words . . . .” Wainwright v. Superior Court, 100 Cal. Rptr. 2d

749, 752-53 (2000); see also People v. Giordano, 170 P.3d

623, 634 (Cal. 2007) (“Although the phrase ‘including, but

not limited to’ is a phrase of enlargement, the use of this

phrase does not conclusively demonstrate that the Legislature

intended a category to be without limits.” (internal quotation

marks omitted)). Thus, the context surrounding the “includ-

ing, but not limited to” phrase cannot be ignored when deter-

mining the extent of the “enlarging” effect this phrase has on

benefits that § 1300.74.72(a) requires insurance companies to

provide.

In multiple cases, the California Supreme Court has

explained that the “including, but not limited to” phrase must

be given a narrow interpretation when it precedes a list of

illustrative items that have a similar characteristic. For exam-

ple, in People v. Arias, 195 P.3d 103, 109-10 (Cal. 2008), the

California Supreme Court applied the ejusdem generis cannon

of statutory interpretation (meaning “of the same kind”), to

reject a broad interpretation of the “including, but not limited

to” proviso. The California Supreme Court explained that

when “specific words follow general words in a statute or vice

versa . . . the general term or category is restricted to those

things that are similar to those which are enumerated specifi-

cally.” Id. at 109 (internal quotation marks omitted). The

court explained that, to interpret the “including, but not lim-

ited to” phrase to allow items beyond that type, would “render

HARLICK v. BLUE SHIELD OF CALIFORNIA 6219

nugatory the qualifiers that the Legislature purposefully

included in that example.” Id. at 110.

California has other similar cases utilizing the ejusdem

generis cannon to interpret an “including, but not limited to”

statutory phrase in a similar limited fashion. See, e.g., Kraus

v. Trinity Mgmt. Servs., Inc., 999 P.2d 718, 734 (Cal. 2000)

(limiting the “including, but not limited to” phrase when the

legislature “offer[s] as examples peculiar things or classes of

things”), superseded on other grounds by statute as recog-

nized in Arias v. Superior Court, 209 P.3d 923 (Cal. 2009);

Peralta Comty. Coll. Dist. v. Fair Emp’t & Hous. Comm’n,

801 P.2d 357, 360, 363, 367 (Cal. 1990) (a statute authorizing

commission to take “such action” as it believes will effectuate

the purposes of the Fair Employment and Housing Act, “in-

cluding, but not limited to, hiring, reinstatement or upgrading

of employees, with or without back pay, and restoration to

membership in any respondent labor organization,” does not

authorize commission to award compensatory damages,

because that was not “of the same general nature or class as

those enumerated”); Dyna-Med, Inc. v. Fair Emp’t & Hous.

Comm’n, 743 P.2d 1323, 1327, 1329 (Cal. 1987) (holding that

the statute did not extend to cover remedies that were “differ-

ent in kind from the enumerated remedies,” because “[a] more

reasonable reading of the phrase ‘including, but not limited

to,’ . . . permitting only additional corrective remedies com-

ports with the statutory construction doctrines of ejusdem

generis, expressio unius est exclusio alterius and noscitur a

sociis.”).

The Parity Act’s implementing regulation contains a simi-

lar situation, where the “including, but not limited to” phrase

is followed by a reference to a general term (“basic health

care services within the meaning of”) and then a list of three

statutory or regulatory provisions enumerating health ser-

vices. See Cal. Code Regs. tit. 28, § 1300.74.72(a) (emphasis

added). The first two provisions (California Health and Safety

Code §§ 1345(b) and 1367(i)) are from the Knox–Keene Act

6220 HARLICK v. BLUE SHIELD OF CALIFORNIA

itself, and the second provision (§ 1300.67 of Title 28 of the

California Code of Regulations) is a regulation promulgated

under the authority of the Knox–Keene Act. Thus, following

California’s use of the ejusdem generis cannon of statutory

construction, the illustrative health care services listed are ser-

vices mandated by the Knox–Keene Act, which suggests that

other non-listed services would similarly be of the type

required under the Knox–Keene Act. A narrow interpretation

of the implementing regulation comporting with ejusdem

generis mandates only one conclusion: any other services

offered beyond what the Knox–Keene Act requires should be

interpreted narrowly, and would likely only include those ser-

vices specifically mandated by the Parity Act or in parity with

physical health benefits that have voluntarily been provided

by the insurer.

California case law does not support the majority’s textual

interpretation. The original and revised opinion rely on Arce,

104 Cal. Rptr. 3d 545 (2010), arguing that although Arce did

not explicitly touch on this issue, “the court’s analysis appears

to assume” that the Act requires “all medically necessary

treatment . . . .” Revised Maj. Op. 6203-04. While this is not

an unreasonable interpretation of Arce, the Arce holding also

appears to be equally consistent with the interpretation of the

Parity Act which is mandated by its language (as explained

above).

The issue in Arce was whether the insurance company had

engaged in unlawful conduct by “denying coverage for the

diagnosis and treatment of autism spectrum disorders under

the same terms and conditions applied to other medical condi-

tions.” Arce, 104 Cal. Rptr. 3d at 565 (emphasis added). The

insurance company was arguing that a violation of the Parity

Act could only occur if it was demonstrated that the “therapies

at issue were medically necessary for the putative class . . . .”

Id. But the court held that a violation could also be shown if

the insurance company “categorically denie[d] coverage for

mental health care services that may, in some circumstances,

HARLICK v. BLUE SHIELD OF CALIFORNIA 6221

be medically necessary . . . .” Id. However, this analysis was

focused on a denial of mental health services that led to an

unequal provision of coverage compared to physical illnesses,

and thus it says nothing of requiring all medically necessary

benefits regardless of the physical benefits provided.

Finally, under California law, when a statute requiring the

provision of insurance benefits is ambiguous, the statute is not

necessarily construed in favor of the insured. Rather, “the

statute must be construed to implement the intent of the Leg-

islature and should not be construed strictly against the

insurer (unlike ambiguous or uncertain policy language).”

Prudential–LMI Commercial Ins. v. Superior Court, 789 P.2d

1230, 1236 (1990) (citing Interinsurance Exch. v. Marquez,

172 Cal. Rptr. 263, 264 (Cal. 1981)); see also Ichthys Inc. v.

Guarantee Ins. Co., 57 Cal. Rptr. 734, 737 (1967)); Zaragoza

v. Ibarra, 95 Cal. Rptr. 3d 264, 270 (2009).

The purpose of the Parity Act supports an interpretation of

the statute requiring only that mental health coverage pro-

vided be linked to the physical health coverage provided

under the Knox–Keene Act. As discussed above, the Parity

Act was enacted in 1999 to address the perceived problem

that private health insurance policies provided coverage for

mental illness at levels far below coverage for other physical

illnesses. See 1999 Cal. Stat. 3701. This problem would not

be rectified by requiring insurance policies to provide more

mental health coverage than physical health coverage. Fur-

ther, the word “parity” itself means “[e]quality, as in amount,

status, or value.” The American Heritage College Dictionary

993 (3d ed. 1997). Therefore, the rationale (and even the

name of the Parity Act) indicates that the legislature’s goal

was to ensure parity in the scope of coverage for services that

plans must offer for physical and mental illness.

II. The Conflicting Legislative History

Because the Parity Act’s statutory and regulatory text no

longer supports the majority’s interpretation, the majority now

6222 HARLICK v. BLUE SHIELD OF CALIFORNIA

relies primarily on legislative history to justify its holding.

But legislative history, often an elusive tool of interpretation,

is particularly elusive here. Thus, relying on legislative his-

tory here results in the proverbial situation where the majority

is “looking over a crowd and picking out its friends.” People

v. Seneca Ins. Co., 62 P.3d 81, 86 (Cal. 2003) (quoting Patri-

cia M. Wald, Some Observations on the Use of Legislative

History in the 1981 Supreme Court Term, 68 Iowa L. Rev.

195, 214 (1983)).

For example, the majority opinion focuses on the various

positions the California Department of Managed Health Care

(“DMHC”) has taken with regard to the implementation regu-

lation. Revised Maj. Op. 6204-06. But there are multiple ways

to interpret the inconsistent stances of the DMHC. The

revised majority opinion explains that “[d]uring the notice-

and-comment process leading up to the promulgation of

§ 1300.74.72, Blue Shield made the same argument about the

mandated coverage of the Parity Act that it now makes to us.

The DMHC unambiguously rejected Blue Shield’s argu-

ment.” Revised Maj. Op. 6200. However, it is far from clear

that the DMHC’s response rejected Blue Shield’s argument

for the same reason the majority does.

The record shows that, when Blue Shield expressed con-

cern that the regulation might be read to require coverage for

all medically necessary care, the DMHC rejected the com-

ment. However, the DMHC rejected the comment, not

because it disagreed with Blue Shield, but because the DMHC

viewed the regulation as already clearly stating what Blue

Shield was requesting. “Given that the statute requires parity

in coverage, the commentator’s concern is without merit; the

regulation requires only that health plans provide mental

health coverage in parity with what the plan provides for other

medical conditions. The draft regulation language makes clear

that plans cannot limit mental health coverage to anything less

than what is medically necessary and on parity with other

health care provided by the plan.” DMHC Mental Health Par-

HARLICK v. BLUE SHIELD OF CALIFORNIA 6223

ity, Responses to Comments, 1st Comment Period, 8/16 –

9/30/2002, at 1 (emphasis added). Notably, the DMHC’s

response was not that mental health coverage must be pro-

vided regardless of whether it was medically necessary or on

parity with other health care provided by the plan. Thus, med-

ical necessity was not demonstrated as an independent basis

for receiving coverage, and the DMHC viewed Blue Shield’s

concern as “without merit.”

Furthermore, when DMHC responded to another commen-

tator by stating that “it is sufficient to state that the plans must

provide all medically necessary services,” DMHC was

responding to a commentator’s suggestion that “a list of ser-

vices specific to mental health” be developed so that all ser-

vices needed “to provide full parity coverage” would be

available. Id. at 2 (emphasis added). The commentator was

arguably asking for a list of mental health benefits to be pro-

vided in parity, or equal measure, to physical health coverage.

The commentator was clearly not asking for coverage of all

medically necessary mental health benefits without limit.

In addition, the majority opinion dismisses the DMHC’s

“Mental Health Parity in California Survey” (the “Survey”),2

because the “study was not—and was not designed to be—an

enforcement proceeding.” Revised Maj. Op. 6207. While that

is true, this does not necessarily preclude the Survey from

providing support for Blue Shield’s argument.

The Survey was implemented as part of the DMHC’s

authority to regulate and monitor managed health plans in

response to questions by legislators and consumers about

“whether parity between medical and mental health care had

been achieved.” The Survey results “did not identify dispari-

ties between the contractual terms and conditions used for

medical versus mental health coverage, as disclosed in the

Evidence of Coverage (“EOC”). Further, the Survey found no

2

The Survey began in 2004 and provided results in 2005.

6224 HARLICK v. BLUE SHIELD OF CALIFORNIA

pattern of plans denying services for mental health conditions

that would be covered for other medical conditions.” Based

on its findings, the DMHC immediately required the plans to

take corrective action on several issues—none of which

related to the types of services provided or to residential care.

Moreover, the Survey discussed the plans’ use of residential

care at some length. It noted that often only part of the resi-

dential care is covered; that “plans offer a choice of benefit

packages both with and without RTC benefits”; that of the

seven insurers, four plans offered RTC coverage as an

optional benefit, and only one covered it on equal terms with

skilled nursing facilities.

The Survey specifically considered the EOC documents

from the health plans and found no violation of the Parity Act.

The Survey made this finding, despite Blue Shield’s plan3

which allowed treatment in a SNF, but expressly excluded

residential care.

The majority opinion also diminishes the importance of

DMHC’s response to a letter written by Robin Watson (Har-

lick’s mother), by categorizing it as a request for an Indepen-

dent Medical Review (“IMR”). Revised Maj. Op. 6207. In

this letter, DMHC Senior Counsel Andrew George explained

that “Blue Shield is not obligated to provide coverage for

[Harlick’s] treatment.” However, neither Watson’s letter nor

the letters from the DMHC indicate that Watson’s letter was

either a request for an IMR (it never mentioned medical

necessity) or was treated as such. Even if an IMR is limited

to considerations of medical necessity, that limitation may be

inapplicable. See Cal. Health & Safety Code § 1374.30(b).

Instead, the DMHC help center referred to it as a complaint.

Aside from an IMR, “[a]ll other enrollee grievances, includ-

ing grievances involving coverage decisions, remain eligible

for review by the department pursuant to subdivision (b) of

3

Harlick has not challenged Blue Shield’s assertion that it was included

in the Survey, even though the Survey does not list the plans considered.

HARLICK v. BLUE SHIELD OF CALIFORNIA 6225

Section 1368.” Cal. Health & Safety Code § 1374.30(d)(1).

According to the DMHC’s website, even a request

for an IMR, if inappropriate, will be handled as a grievance.

Department of Managed Health Care, “Questions and

Answers about IMR” http://www.dmhc.ca.gov/dmhc_

consumer/pc/pc_imrqa.aspx (last visited May 3, 2012)

(explaining that if a problem does not qualify as an IMR, “the

Help Center will review your case through its regular com-

plaint process and send you a written decision within 30

days”).

Section 1368 provides that, after an enrollee has completed

the plan’s grievance process, she may “submit the grievance

to the department for review.” Cal. Health & Safety Code

§ 1368(b)(1)(A). As here, the department “shall review the

written documents submitted with the subscriber’s or the

enrollee’s request for review” and “may ask for additional

information.” Id. § 1368(b)(3). The department will then

“send a written notice of the final disposition of the grievance,

and the reasons therefor, to the subscriber,” which will

include “[a] summary of its findings and the reasons why the

department found the plan to be, or not to be, in compliance

with any applicable laws, regulations, or orders of the direc-

tor.” Id. § 1368(b)(5).

It is true that George’s response to Watson’s complaint did

not explicitly address whether Blue Shield’s denial complied

with the Parity Act. However, Watson’s letter to the DMHC

specifically alleged that “Jeanene is protected by the CA Par-

ity Law and the insurance company is not paying the claims.”

After reviewing the information submitted, the DMHC con-

cluded that “Blue Shield has complied with its responsibilities

under applicable health plan law regarding your request.” It

did not limit this conclusion to any particular law, and it is

likely that George considered the Parity Act in his analysis.

George was also one of the contributors to the Survey.4

4

As a contributor, it is not likely that George was either (1) unfamiliar

with the parity law that Watson challenged or (2) unfamiliar with the Sur-

6226 HARLICK v. BLUE SHIELD OF CALIFORNIA

III. Conclusion

As discussed above, the Knox–Keene Act does not require

all medically necessary treatment for physical illnesses. See

Kaiser, 121 Cal. Rptr. 2d at 745. Thus, to keep in parity with

those benefits, it makes sense that the Parity Act would also

not offer them. Therefore, I must dissent because (1) the statu-

tory and regulatory text most clearly support a statutory inter-

pretation linking the scope of coverage provided under the

Parity Act to the Knox–Keene Act, and (2) the statute’s pur-

pose and legislative history provide equal (if not more) sup-

port to this interpretation, rather than the majority’s

interpretation.

vey’s earlier conclusion that excluding residential treatment did not violate

the parity law. His conclusion that Blue Shield complied with the law thus

may indicate support for Blue Shield’s interpretation.