Jeanene Harlick v. Blue Shield of California

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…

Opinion by Judge WILLIAM A. FLETCHER; Partial Concurrence and Partial Dissent by Judge N.R. SMITH.

ORDER

This court’s opinion filed on August 26, 2011, and published at Harlick v. Blue Shield of California, 656 F.3d 832 (9th Cir.2011), is withdrawn and replaced by the attached Opinion and Dissent.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 rehearing 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. RApp. P. 40 and 35.

OPINION

Plaintiff Jeanene Harlick suffers from anorexia nervosa. The question before us is…

dissenting in part and concurring in part:

In our original opinion, we interpreted the word “Act” in the Parity Act’s 2003 implementing regulation (CaLCode 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 KnoxKeene Act. Therefore, we determined that the Parity Act mandated coverage for all “medically necessary” services by medical insurers. 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 KnoxKeene Health Care Service Plan Act of 1975.” See Cal.Code Regs. tit. 28, § 1400.45(a).

After consideration of this argument, the panel now unanimously agrees that we incorrectly interpreted the text of the Parity Act’s implementation regulation in our original opinion. The majority’s amended opinion reflects our change in interpretation. See Revised Maj. Op. 714 (“We are…