# Insurance Federation of Pennsylvania, Inc. v. Commonwealth > Supreme Court of Pennsylvania · May 27, 2009 · 601 Pa. 20 URL: https://www.frixlaw.com/law-library/cases/9718844 ## Case - **Full name:** The INSURANCE FEDERATION OF PENNSYLVANIA, INC.; The Managed Care Association of Pennsylvania; Aetna Health, Inc.; Healthassurance Pennsylvania, Inc.; Independence Blue Cross; Magellan Behavioral Health, Inc.; And Valueoptions, Inc., v. COMMONWEALTH of Pennsylvania, INSURANCE DEPARTMENT, Appeal of the Insurance Federation of Pennsylvania - **Court:** Supreme Court of Pennsylvania - **Decided:** May 27, 2009 - **Citations:** 601 Pa. 20; 970 A.2d 1108; 2009 Pa. LEXIS 1037 - **Precedential status:** Published - **Opinion:** Concurrence by Todd - **Judges:** Castille, Saylor, Eakin, Baer, Todd, McCaffery - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718844 ## Opinion text *48 Justice TODD, concurring. I agree with the sound conclusion expressed by the Plurality in the Opinion Announcing the Judgment of the Court (“OAJC”) that managed care plans may not apply utilization review for the drug and alcohol abuse benefits at issue in this case, and I would likewise affirm the order of the Commonwealth Court. However, I write separately as I do not agree with the analysis relied upon by the Plurality to reach that result in several respects. Thus, with one exception, 1 1 concur only in the result of the OAJC. Contrary to the Plurality’s analysis, and largely for the same reasons expressed by Justice Saylor in his Dissenting Opinion, I find Act 106 to be ambiguous with respect to the legislature’s intention concerning the application of utilization review to these benefits. See Dissenting Opinion at 50-53, 970 A.2d at 1126-28. It is for this reason that I cannot join the Plurality’s plain meaning analysis. In this regard, I am not persuaded by the Plurality’s reliance, in its textual analysis of Act 106, on the similarity of the language of Act 106 to the language found in other benefits statutes. See Opinion Announcing the Judgment of the Court at 38-42, 970 A.2d at 1119-21 (discussing 40 P.S. § 1574 (gynecological exams); 40 P.S. § 764c (mammograms); 40 P.S. § 1583 (post partum care); 40 P.S. § 3503 (childhood immunizations); 40 P.S. § 764d (mastectomies)). This reliance is problematic because, as the Dissent notes, the language in these statutes is “materially distinct” from Act 106, Dissenting Opinion at 52, 970 A.2d at 1127, and, in my view, is substantially clearer in its manifestation of legislative intent. I disagree also with the Plurality’s reliance on these statutes as I cannot accept its characterization that they are, in fact, “other mandated-benefit statutes” which foreclose utilization review. See, e.g., Opinion Announcing the Judgment of the Court at 38-39, 970 A.2d at 1119. The Plurality contends *49 these statutes are examples of such mandated-benefit statutes without citation to authority or independent analysis. 2 The latter omission is understandable, as we have not been asked to construe the mandatory nature of the language in these statutes. Yet, in its attempt to discern the meaning of Act 106, the Plurality seemingly construes these five other statutes as well, and then uses its construction of those statutes to support its construction of Act 106. Absent authority or analysis for the conclusion that these other statutes manifest benefits mandated by the Legislature and foreclose utilization review — questions that are not before us — these statutes’ putative linguistic similarity to Act 106 is immaterial. Finding Act 106 to be ambiguous, I turn to our deferential standard of review of administrative decisions. As the Plurality aptly notes, where a statute is ambiguous, its interpretation “by those charged with its administration and enforcement is entitled to deference.” Tritt v. Cortes, 578 Pa. 317, 321 , 851 A.2d 903, 905 (2004). We “will not disturb administrative discretion in interpreting legislation within an agency’s own sphere of expertise absent fraud, bad faith, abuse of discretion, or clearly arbitrary action.” Winslow-Quattlebaum v. Maryland Ins. Group, 561 Pa. 629, 636 , 752 A.2d 878, 881 (2000); see also Com., Office of Admin. v. Pennsylvania Labor Relations Bd., 591 Pa. 176 , 190 n. 11, 916 A.2d 541 , 549 n. 11 (2007) (according “substantial deference” to such interpretations). Despite the valid concerns expressed in the Dissenting Opinion with regard to the Department’s failure to fully explicate its change of position, see Dissenting Opinion at 55-57, 970 A.2d at 1129-30, I cannot find the Department’s *50 interpretation of Act 106 to be the result of fraud, bad faith, an abuse of discretion, or clearly arbitrary action. Accordingly, I would defer to its interpretation, and affirm the Commonwealth Court on that basis. 3 . I join the OAJC with respect to its analysis rejecting the Federation's contention that the Department's notice should have been promulgated as a regulation. See Opinion Announcing the Judgment of the Court at 45-47, 970 A.2d at 1123-24. . The Plurality’s analogy to 40 P.S. § 764d (mastectomies) is arguably the least troublesome because, as the Plurality notes, the Federation concedes that this statute forecloses utilization review. Nevertheless, I am uncomfortable with the Plurality opining on the meaning of a statute that is not before us, see Opinion Announcing the Judgment of the Court at 42, 970 A.2d at 1121 C"[A]t least in the case of Section 764d(a), the Federation concedes that the General Assembly has precluded the application of utilization review for medical necessity and appropriateness----"), and then using that interpretation to guide our interpretation of the statute at issue. . The Federation contends we should decline to defer to the Department’s interpretation of Act 106 because that position was developed in the context of litigation. Brief for the Insurance Federation of Pennsylvania, Inc. at 40 (quoting ARIPPA v. Pennsylvania Pub. Util. Comm'n, 792 A.2d 636, 660 (Pa.Cmwlth.2002) (en banc) ("Normally, no deference is given when an agency interprets a statute to justify its position in litigation, as in a brief filed in court.”)). While this Court has discussed the potential problems with deferring to administrative interpretations made in the context of litigation, we have yet to adopt such an exception to our general rule of administrative deference. See Seeton v. Pennsylvania Game Comm’n, 594 Pa. 563, 578 & n. 12, 937 A.2d 1028 , 1037 & n. 12 (2007) (opining on the potential “dangers of deferring to interpretations developed in anticipation of litigation,” but not adopting such an exception). Regardless, I find no indication that the notice in this case — published prior to the declaratory judgment action herein — was issued by the Department in the context of litigation. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718844. Public record. Not legal advice.