Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/23/2018 08:13 AM CDT




                                                        - 128 -
                                  Nebraska Supreme Court A dvance Sheets
                                          299 Nebraska R eports
                                                COOKSON v. RAMGE
                                                 Cite as 299 Neb. 128




                                  A manda E. Cookson et al., appellants,
                                      v. Bruce R. R amge, director,
                                         Nebraska Department of
                                           Insurance, appellee.
                                                    ___ N.W.2d ___

                                        Filed February 23, 2018.   No. S-17-521.

                1.	 Summary Judgment. Summary judgment is proper when the pleadings
                    and evidence admitted at the hearing disclose that there is no genuine
                    issue as to any material fact or as to the ultimate inferences that may be
                    drawn from those facts and that the moving party is entitled to judgment
                    as a matter of law.
                2.	 Declaratory Judgments: Statutes: Appeal and Error. When a declar-
                    atory judgment action presents a question of law, such as statutory inter-
                    pretation, an appellate court has an obligation to reach its conclusion
                    independently of the conclusion reached by the trial court with regard
                    to that question.
                3.	 Statutes: Legislature: Intent. In discerning the meaning of a statute,
                    a court must determine and give effect to the purpose and intent of the
                    Legislature as ascertained from the entire language of the statute con-
                    sidered in its plain, ordinary, and popular sense, as it is the court’s duty
                    to discover, if possible, the Legislature’s intent from the language of the
                    statute itself.
                 4	 ____: ____: ____. In order for a court to inquire into a statute’s legisla-
                    tive history, the statute in question must be open to construction, and a
                    statute is open to construction when its terms require interpretation or
                    may reasonably be considered ambiguous.
                5.	 Insurance: Physician and Patient: Words and Phrases. A copayment
                    is generally understood as the amount an insured must pay in order to
                    receive a medical service.
                6.	 Statutes: Appeal and Error. An appellate court will not read into a
                    statute a meaning that is not there.
                                     - 129 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                              COOKSON v. RAMGE
                               Cite as 299 Neb. 128

 7.	 Statutes: Legislature: Intent. The intent of the Legislature may be
     found through its omission of words from a statute as well as its inclu-
     sion of words in a statute.

  Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
   Mark D. Hill, Marnie A. Jensen, and Kamron T.M. Hasan,
of Husch Blackwell, L.L.P., and, on brief, L. Steven Grasz,
for appellants.
   Douglas J. Peterson, Attorney General, and David A. Lopez
for appellee.
  John C. Hewitt and Jonathan J. Papik, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for amicus curiae
America’s Health Insurance Plans, Inc.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
      Cassel, J.
                      INTRODUCTION
   Health insurance policyholders brought a declaratory judg-
ment action to determine whether a statute1 allows insurance
policies to impose higher copayments on policyholders when
they obtain a covered service from a chiropractor rather than
from a medical doctor. The district court concluded that it
does. Because the plain language of the statute does not
require insurance policies to charge identical copayments
for a covered service regardless of the type of provider,
we affirm.
                        BACKGROUND
   Currently, health insurance policies in Nebraska are permit-
ted to charge a policyholder a higher copayment if covered

 1	
      Neb. Rev. Stat. § 44-513 (Reissue 2010).
                              - 130 -
           Nebraska Supreme Court A dvance Sheets
                   299 Nebraska R eports
                       COOKSON v. RAMGE
                        Cite as 299 Neb. 128

services are obtained from a chiropractor rather than from a
medical doctor. Three Nebraska residents and a nonprofit cor-
poration (collectively Policyholders) filed a declaratory judg-
ment action against the director of the Nebraska Department
of Insurance. Policyholders requested an order declaring that
§ 44-513 precludes future approval of an insurance policy in
Nebraska which requires a higher payment from a policyholder
if the policyholder receives care for a covered service from
a chiropractor rather than from a medical doctor, where both
practitioners are in-network preferred providers and both are
legally authorized to perform the service. Policyholders subse-
quently moved for summary judgment.
   The district court overruled the motion for summary judg-
ment and dismissed Policyholders’ complaint. The court rea-
soned that the language of § 44-513 did not require insurers
to pay the same dollar amount to all providers or to set equal
copayments for policyholders. The court explained that the
Legislature could have imposed equal copayment requirements
if it wished to do so, and the court identified other statutes
where the Legislature expressly invoked “‘copayments’ and
other cost-sharing restrictions.”
   Policyholders filed a timely appeal, and we granted their
petition to bypass review by the Nebraska Court of Appeals.

                 ASSIGNMENT OF ERROR
   Policyholders assign that the district court erred in holding
that § 44-513 allows insurance policies to discriminate against
policyholders by charging a higher copayment if a policy-
holder obtains a covered service from a chiropractor rather
than from a medical doctor.

                STANDARD OF REVIEW
   [1] Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there
is no genuine issue as to any material fact or as to the
                                  - 131 -
               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                           COOKSON v. RAMGE
                            Cite as 299 Neb. 128

ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter
of law.2
   [2] When a declaratory judgment action presents a ques-
tion of law, such as statutory interpretation, an appellate
court has an obligation to reach its conclusion independently
of the conclusion reached by the trial court with regard to
that question.3

                             ANALYSIS
   [3,4] The dispute centers on the meaning of § 44-513. In
discerning the meaning of a statute, a court must determine
and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense, as it is the court’s
duty to discover, if possible, the Legislature’s intent from the
language of the statute itself.4 In order for a court to inquire
into a statute’s legislative history, the statute in question must
be open to construction, and a statute is open to construction
when its terms require interpretation or may reasonably be con-
sidered ambiguous.5
   We begin by examining the statutory language. Section
44-513 provides:
         Whenever any insurer provides by contract, policy,
      certificate, or any other means whatsoever for a service,
      or for the partial or total reimbursement, payment, or cost
      of a service, to or on behalf of any of its policyholders,
      group policyholders, subscribers, or group subscribers or
      any person or group of persons, which service may be

 2	
      Doty v. West Gate Bank, 292 Neb. 787, 874 N.W.2d 839 (2016).
 3	
      See id.
 4	
      Id.
 5	
      Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
      (2016).
                                    - 132 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                             COOKSON v. RAMGE
                              Cite as 299 Neb. 128

      legally performed by a person licensed in this state for
      the practice of osteopathic medicine and surgery, chi-
      ropractic, optometry, psychology, dentistry, podiatry, or
      mental health practice, the person rendering such service
      or such policyholder, subscriber, or other person shall be
      entitled to such partial or total reimbursement, payment,
      or cost of such service, whether the service is performed
      by a duly licensed medical doctor or by a duly licensed
      osteopathic physician, chiropractor, optometrist, psychol-
      ogist, dentist, podiatrist, or mental health practitioner.
      This section shall not limit the negotiation of preferred
      provider policies and contracts under sections 44-4101
      to 44-4113.
To overly simplify: Whenever an insurer provides for a serv­
ice, in whole or in part, the insured may obtain such service
from one of the duly-licensed providers listed, so long as it is
within the scope of the provider’s license.
   Policyholders argue that § 44-513 requires copayment par-
ity, pointing to the statute’s language stating that if a policy
covers the “partial . . . cost of a service,” the policyholder is
“entitled to such partial . . . cost of such service.”
   [5,6] But the statute does not use the word “copayment”—
a term often found in health insurance plans. A copayment is
generally understood as the amount an insured must pay in
order to receive a medical service6—not, as mentioned in the
statute, an amount payable to or on behalf of an insured. An
appellate court will not read into a statute a meaning that is
not there.7 Thus, we cannot read the statute as requiring an
equal copayment.

 6	
      See, Neb. Rev. Stat. § 44-3296 (Reissue 2010); “co-payment,” Oxford
      English Dictionary Online, http://www.oed.com/view/Entry/250769 (last
      visited Feb. 16, 2018).
 7	
      See Kerford Limestone Co. v. Nebraska Dept. of Rev., 287 Neb. 653, 844
      N.W.2d 276 (2014).
                                       - 133 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               COOKSON v. RAMGE
                                Cite as 299 Neb. 128

   [7] The absence of “copayment” in § 44-513 is signifi-
cant. The word “copayment” appears in 22 statutes8 located
in chapter 44 of the Nebraska Revised Statutes, governing
“Insurance.” Only the plural form of the word “copayment”
appears in 11 additional statutes in the same chapter.9 The
intent of the Legislature may be found through its omission
of words from a statute as well as its inclusion of words in a
statute.10 The omission of “copayment” in this insurance statute
provides strong support for the position that the statute does
not require equal copayments.
   Other statutes demonstrate the Legislature’s understanding
of copayment parity. For example, one statute provides that
a medical benefit contract “shall not impose upon any per-
son who is a party to or beneficiary of the contract a fee or
copayment not equally imposed upon any party or beneficiary
utilizing a mail-order pharmacy.”11 Another dictates that the
cost of an orally administered anticancer medication “shall not
exceed the coinsurance or copayment that would be applied
to any other cancer treatment involving intravenously admin-
istered or injected anticancer medications.”12 And yet another
provides that coverage for an autism spectrum disorder shall
not be “subject to dollar limits, deductibles, copayments, or

 8	
      See Neb. Rev. Stat. §§ 44-3,159(2) (Cum. Supp. 2016); 44-513.02(2)(a),
      44-784, 44-785(2), 44-790(6)(a), 44-796(1)(a), 44-798(2)(a), and 44-7,102(2)
      (Reissue 2010); 44-7,104(2) and (3) (Cum. Supp. 2016); 44-32,110 (Reissue
      2010); 44-4220.02(2) (Cum. Supp. 2016); and 44-4709(1)(b), 44-4717(5),
      44-5418(20), 44-6827(13), 44-6829(3), 44-7003(11), 44-7103(14),
      44-7203(12), 44-7303(21), and 44-8311(2)(c)(i) (Reissue 2010). See, also,
      § 44-3296.
 9	
      See Neb. Rev. Stat. §§ 44-789 and 44-792(4) (Reissue 2010); 44-7,106(3)
      (Cum. Supp. 2016); and 44-32,105, 44-32,120(3), 44-32,129(6),
      44-4705(1)(c)(i), 44-5242.03, 44-6909.01, 44-7106(2)(b) and (n), and
      44-7108(2) (Reissue 2010).
10	
      Kerford Limestone Co. v. Nebraska Dept. of Rev., supra note 7.
11	
      § 44-513.02(2)(a).
12	
      § 44-7,104(2).
                                   - 134 -
               Nebraska Supreme Court A dvance Sheets
                       299 Nebraska R eports
                            COOKSON v. RAMGE
                             Cite as 299 Neb. 128

coinsurance provisions that are less favorable to an insured
than the equivalent provisions that apply to a general physi-
cal illness under the policy.”13 Had the Legislature intended in
§ 44-513 to require an equal copayment regardless of the type
of provider, it would have used language similar to that in the
above statutes to evidence such an intent.
   It appears that the statute was enacted to prevent discrimi-
nation in coverage by the insurer rather than discrimination
in copayments charged to an insured. Policyholders argue
that an insurance policy could effectively deny coverage for
a chiropractor’s services by requiring a copayment equal to
the cost of the service. To begin with, that is not the situation
before us. While this hypothetical danger may be conceiv-
able, it does not allow us to read a meaning into a statute
that is not there. Statutory language requiring an insurer to
pay for a service regardless of provider is not the same as
requiring an insured to pay an identical copayment regardless
of provider. If an insurer attempted to impose a copayment
of the full cost of a service as a subterfuge to avoid cover-
age, the gravamen of a complaint under the existing statute
would be denial of equal coverage rather than inequality
of copayments.
   Because the statute is clear, we do not rely upon legisla-
tive history. But for the sake of completeness, we note that
an examination of the history does not elucidate the matter.
What is clear is that if an insurer provided for a service, then
the policyholder was to have the right to use the services
of one of the listed providers.14 The legislative history did
not manifest an intent to mandate copayment parity. It cited
“insurance equality”15 in one instance and contained several

13	
      § 44-7,106(3).
14	
      See Committee Statement, L.B. 487, Banking, Commerce and Insurance
      Committee, 77th Leg., 1st Sess. (Apr. 12, 1967).
15	
      Introducer’s Statement of Purpose, L.B. 196, Banking, Commerce and
      Insurance Committee, 80th Leg., 1st Sess. (Jan. 16, 1969).
                                      - 135 -
                Nebraska Supreme Court A dvance Sheets
                        299 Nebraska R eports
                               COOKSON v. RAMGE
                                Cite as 299 Neb. 128

references to prohibiting discrimination.16 But throughout
the entirety of the legislative history, the word “copayment,”
whether in singular or plural form, was not spoken. Because
the statute’s plain language defeats Policyholders’ arguments,
the issue of equality of copayments remains in the legisla-
tive arena.
                         CONCLUSION
   The plain language of § 44-513 does not prohibit an insurer
from requiring different copayments for different types of pro-
viders. We affirm the judgment of the district court.
                                                    A ffirmed.
   Wright, J., not participating.

16	
      Banking, Commerce and Insurance Committee Hearing, L.B. 196, 80th
      Leg., 1st Sess. 10 (Jan. 27, 1969); Introducer’s Statement of Purpose, L.B.
      190, Banking, Commerce and Insurance Committee, 84th Leg., 1st Sess.
      (Jan. 27, 1975); Floor Debate, L.B. 190, 84th Leg., 1st Sess. 420 (Feb. 4,
      1975).
