IN THE MATTER OF NAOMI WEINSHENKER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3354-04T13354-04T1

IN THE MATTER OF NAOMI WEINSHENKER.

__________________________________________________________

 

Argued August 22, 2006 - Decided August 31, 2006

Before Judges R.B. Coleman and Holston, Jr.

On appeal from a Final Agency Decision of the State Health Benefits Commission, #110404 and #010514.

Emanuel Goldman, appellant, argued the cause pro se.

Eileen S. DenBleyker, Deputy Attorney General, argued the cause for respondent (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Linda Bilec, Deputy Attorney General, on the brief).

PER CURIAM

Appellants, Emanuel Goldman and Naomi Weinshenker, husband and wife, appeal the February 14, 2005 Final Administrative Determination of the State Health Benefits Commission (SHBC), which denied Goldman's request to allow three attempts for Assisted Reproductive Technology (ART) for Weinshenker and himself under Goldman's State Health Benefits Plan (SHBP) health insurance policy. We affirm.

Appellants had an unsuccessful attempt at ART via In Vitro Fertilization (IVF) in January and February 2003, and the procedure was terminated on March 1, 2003. Thereafter, in May 2003, Weinshenker conceived naturally and after a successful pregnancy, delivered a baby girl on January 30, 2004. Tragically, the baby died of an undetected bacterial infection on March 4, 2004.

Prior to appellants' original attempt, they requested, through the New York University School of Medicine (NYU), a predetermination of benefits under the SHBP. In response, Horizon Blue Cross/Blue Shield of New Jersey (Horizon), informed NYU and appellants that the SHBP limits the ART benefit to three attempts.

By copy of a letter dated June 15, 2004, directed to NYU in response to appellants' request for a predetermination of ART benefits, appellants were again notified by Horizon that the SHBP limits reimbursement of ART procedures to three attempts per successful pregnancy. Since appellants had already received reimbursement for one ART attempt, the IVF procedure of January to March 2003, they were eligible for two more procedures under the SHBP policy.

In a letter directed to Goldman dated June 22, 2004, Horizon again informed appellants:

You have completed one attempt for services in connection with Assisted Reproductive Technology. Per the guidelines of the contract, this attempt did not result in a successful pregnancy. As you are aware, the State Health Benefits Program provides benefits for three assisted reproductive attempts per successful pregnancy. Therefore, there remains two attempts eligible for consideration under your above State Health Benefits Program contract.

Appellants appealed the determination on July 1, 2004 to the SHBC. The appeal was heard by the SHBC on November 10, 2004, and in its November 15, 2004 Notification of Denial, the SHBC upheld Horizon's interpretation of the SHBP policy that appellants had two ART attempts remaining. Appellants requested that the matter be sent to the Office of Administrative Law (OAL) on December 14, 2004. The SHBC denied this request in a Final Administrative Determination dated February 14, 2005. The SHBC determined that the plain language of the Horizon policy as detailed in the SHBP Traditional Plan Handbook was clear and unambiguous and, therefore, its determination was able to be reached without the need for an administrative hearing. This appeal followed.

We address the following arguments, which have been presented by appellants for our consideration: (a) the language of the SHBP policy indicates that three ART attempts should remain; (b) Weinshenker's pregnancy may have been an indirect result of ART; and (c) the intent of the written policy supports allowing three further ART attempts.

Appellants contend that although the SHBP limits benefits to three attempts per successful pregnancy, they had a successful pregnancy subsequent to their first ART attempt. The policy as written does not require that successful only "counts" if it resulted from the ART procedure, and it does not exclude a successful pregnancy subsequent to an unsuccessful ART attempt. Appellants assert that the plain language as written provides that any live birth "resets the clock" to three more ART attempts. Appellants additionally submit that the close proximity in time between the completion of their ART attempt and their successful natural pregnancy suggests that there is good reason to believe that their natural conception was nevertheless an indirect consequence of ART. They base this contention on "anecdotal evidence" by physicians in the fertility field that a woman's fertility is enhanced by ART procedures. Lastly, appellants argue that the intent of the written policy, to place a reasonable limit on the number of ART attempts to prevent unending attempts doomed to failure by infertile couples, is not intended to discriminate based on how the successful pregnancy was accomplished.

We begin our consideration of appellants' arguments by restating applicable legal principles. Courts have a limited role in reviewing decisions of an administrative agency. Gerba v. Bd. of Trs. PERS, 83 N.J. 174, 189 (1980). If the challenging party is asserting an erroneous determination, the standard of review is that the determination be "clearly erroneous." It is well-settled that "`[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. New Jersey Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Id. at 56 (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). Additionally, the SHBC's administrative interpreta-tions of the SHBP statutes are generally entitled to great weight. See Merin v. Maglaki, 126 N.J. 430, 436-37 (1992).

The SHBC is the administrative commission responsible for overseeing the SHBP. Pursuant to N.J.S.A. 52:17.25, the Legislature vested the SHBC with the general responsibility for the operation of the various SHBPs. See New Jersey State Health Benefits Plan Program Traditional Plan Member Handbook, Introduction, January 2005. The benefits offered through the SHBP are covered through the health benefits fund created by N.J.S.A. 52:14-17.30. The SHBC does not have the authority to interpret the SHBP policy in a light most beneficial to a particular member or set of circumstances. Instead, the SHBC must consider the best interests of the plan fund and all of its beneficiaries, not just a member seeking a particular health benefit. Mount v. Trs. of PERS, 133 N.J. Super. 72, 86 (App. Div. 1975).

The SHBC is responsible for administering the SHBP in a fair and consistent manner to all members of the plans, while balancing that responsibility with the notion that state resources are not infinite. In Heaton v. State Health Benefits Commission, 264 N.J. Super. 141, 151 (App. Div. 1993), this court noted that: "[The] goal of the State Health Benefits Program Act is to provide comprehensive health benefits for eligible public employees and their families at tolerable cost." Further, N.J.S.A. 52:14-17.29b authorizes the SHBC to limit benefits in any way the SHBC finds necessary or desirable to avoid inequity, unnecessary utilization, or duplication of services or benefits.

When appellants appealed the SHBC's Final Administrative Determination, the SHBC referred the matter directly to final decision because there were no material facts at issue. Thus, the only issues to be determined by this court are whether substantial credible evidence in the record supports the Commission's determination, and whether the SHBC's determination was arbitrary, capricious, or unreasonable or clearly erroneous. The SHBP policy reads as follows: "The SHBP limits reimbursement of ART procedures (i.e., IVF, ZIFT, GIFT) and related services to three attempts per successful pregnancy." This provision, as interpreted by the SHBC, permits a member to receive reimbursement for three attempts to conceive through ART procedures. If no pregnancy results, the member is not entitled to reimbursement for any further ART attempts. The policy further states:

An attempt is recorded for IVF or ZIFT when egg harvesting or retrieval and either culture and fertilization of oocytes or intracytoplasmic sperm injection (ICSI) is performed; or, with GIFT, when the gametes are actually transferred to the recipient's fallopian tube.

A successful pregnancy is defined as producing a live newborn. Embryo transfers using frozen embryos do not count as a separate IVF or ZIFT attempt. If the first three attempts are not successful, there is no further IVF, ET, ZIFT or GIFT benefit. This is a lifetime benefit maximum regardless of what plan or how many plans provide the service under the SHBP self-funded plans.

[(footnotes omitted).]

Thus, an attempt is recorded regardless of whether fertilization or transfer is successful. This is also true whether the pregnancy goes to term, results in a live birth, or if it results in an ectopic pregnancy. If any one of the three ART attempts resulted in a successful pregnancy, even if the pregnancy did not go to term or resulted in an ectopic pregnancy, such result is an indication that the ART procedures worked for that particular member and the member is then entitled to reimbursement for three more ART attempts. However, if the member receives reimbursement for three ART attempts and none of those attempts result in either a successful pregnancy, a pregnancy that does not go to term, or an ectopic pregnancy, such results indicate that the ART procedures do not work for that particular member and the member is not entitled to reimbursement for any more ART attempts. The SHBC's policy to restrict members to reimbursement for three ART attempts is the manner in which the SHBC has determined to fulfill its fiduciary responsibility to administer the various health plans in such a way as to deliver various programs to members at a cost tolerable to the State, while at the same time providing benefits to all members.

We are satisfied that a reasonable interpretation, from the context of the SHBP language, is that the word "attempt" describes the use of ART procedures. The intended purpose of the ART procedure is to produce a pregnancy therefrom. It is, therefore, reasonable that the term "successful pregnancy" refers to the ultimate outcome of an ART attempt. This is particularly true because an attempt is required to be recorded when egg harvesting. Additionally, the policy defines an "attempt" as one which did not go to full term or resulted in an ectopic pregnancy. Those results would not be viewed as "successful" in the common sense meaning of the word.

In January 2003, the appellants undertook an IVF. IVF is a four-step procedure in which eggs are (1) produced by administering fertility drugs, (2) retrieved from the woman's body, (3) fertilized by sperm in a laboratory dish, and (4) the resulting embryos are transferred by catheter to the uterus. We are satisfied that the language relied upon by appellants, "a successful pregnancy is defined as producing a live newborn," is meant to be read in the context of describing that four-step procedure. The procedure was determined unsuccessful and terminated in March 2003. Appellants were reimbursed for expenses covered by the plan for that procedure. Thereafter, sometime in May 2003, Weinshenker conceived without an ART procedure and gave birth to a daughter. We are satisfied that a pregnancy that produced a live newborn without using an IVF procedure does not qualify to restart the count. A natural pregnancy or a pregnancy from methods of assistance other than Art does not indicate that an IVF procedure is likely to be successful in a particular member. We are convinced, therefore, that the SHBC properly applied the plain language of the policy and correctly determined that appellants were entitled to reimbursement for only two more ART procedures at the time they appealed.

The SHBC interpretation is also consistent with our decisions governing the interpretation of insurance policies. Disputes involving insurance contracts are resolved by looking to the language of the policy. Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 499 (1987). As contracts of adhesion, insurance policies are subject to special rules of interpretation. Araya v. Farm Family Cas. Ins. Co., 353 N.J. Super. 203, 206 (App. Div.), certif. denied, 175 N.J. 77 (2002). Nevertheless, words of an insurance policy should be given their ordinary meaning. Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001). "In the absence of any ambiguity, courts `should not write for the insured a better policy of insurance than the one purchased.'" Gibson v. Callaghan, 158 N.J. 662, 670 (1999) (quoting Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990)). If the express language of the policy is clear and unambiguous, the "court is bound to enforce the policy as it is written." Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 416 (App. Div. 1994).

Appellants contend that anecdotal evidence from physicians in the field indicates that a woman's fertility is enhanced by ART procedures and that appellants' successful pregnancy indirectly may have been related to the first ART attempt. Therefore, the successful pregnancy "should count and reset the clock." Appellants rely on an article entitled "Likelihood of natural conception following treatment by IVF" appearing in the December 2005 issue of the Journal of Assisted Reproduction and Genetics. Even if the article were relevant to the interpretation of appellants' SHBP policy, the scientific reliability of the article's study of the likelihood of conception by infertile couples following assisted conception treatment has not been demonstrated. Additionally, the conclusions reached from the data are not expressed to a reasonable degree of scientific probability but only that the "data supports the suggestion that many couples will ultimately conceive if they persist for long enough." See N.J.R.E. 702; Buinno, New Jersey Rules of Evidence, comment on N.J.R.E. 702(3)(2006). See also Jacober v. St. Peter's Med. Ctr. 128 N.J. 475, 495 (1992) (a medical treatise qualifies as a "reliable authority" if it presents the type of material reasonably relied upon by experts in the field).

A party who challenges the validity of an administrative agency decision bears the burden of showing that it is arbitrary, unreasonable, capricious, or not supported by substantial credible evidence in the record as a whole. Dennery v. Bd. of Educ. of the Passaic County Reg'l High Sch. Dist. #1, 131 N.J. 626, 641 (1993); Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980). Appellants' requests were reviewed by Horizon on February 4, 2003, June 4, 2004, June 15, 2004, and August 23, 2004. Each time, Horizon considered the particular circumstances at the time appellants' request was made. The SHBC also reviewed the unique circumstances surrounding appellants' requests. The SHBC explained that since the ART procedure performed in February 2003 did not result in a successful pregnancy, the appellants had two remaining Art attempts eligible for benefit consideration. The SHBC voted unanimously to deny appellants' appeal based on its finding that the policy was interpreted correctly by Horizon, leaving appellants with two attempts remaining. We are satisfied that the SHBC's denial of appellants' request cannot be deemed arbitrary, capricious, unreasonable or clearly erroneous. Accordingly, the SHBP interpretation of the SHBP policy, as it applies to appellants, is affirmed.

 
Affirmed.

The remaining issues presented by appellants, we conclude, are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

(continued)

(continued)

13

A-3354-04T1

August 31, 2006