JANIE L. ROBINSON Petitioner
MONTANA STATE FUND Respondent/Insurer.
Submitted: February 22, 2005
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Cross-motions for summary judgment were filed with respect to
the petitioner's constitutional challenge to the managed
care provisions found in Title 39, ch. 71, part 11, MCA
Petitioner lacks standing to challenge the constitutionality
of statutes which have not been applied to her and where she
has not been threatened with their application.
Constitutional Law: Standing. Only those
affected by a statute can challenge the constitutionality of
Constitutional Law: Standing. Where the
claimant has not been required to seek her medical care from
a managed care organization or preferred provider
organization, and there is no indication that she will ever
be required to do so, she lacks standing to challenge the
constitutionality of statutes authorizing insurers to refer
claimants to managed care organizations and preferred
provider organizations for medical care related to their
Managed Care Organizations. Where a claimant
has not been required to seek her medical care from a managed
care organization or preferred provider organization, and
there is no indication that she will ever be required to do
so, she lacks standing to challenge the constitutionality of
statutes authorizing insurers to refer claimants to managed
care organizations and preferred provider organizations for
medical care related to their industrial injuries.
The petition herein sets out two causes of action. The first
challenges the constitutionality of sections 39-71-1101
through 39-71-1108, MCA (1995). The second alleges that
medical benefits have been unreasonably delayed and seeks a
penalty. Both parties have moved for summary judgment with
respect to the first cause of action.
The respondent, Montana State Fund (State Fund), filed the
first motion for summary judgment. The motion was supported
by two affidavits, as well as the pleadings in the case. The
motion sets forth five facts. None have been controverted by
the petitioner (claimant), therefore, they are deemed true
for purposes of the motion. Those facts, as appear from the
affidavits and pleadings, are as follows:
¶2a The petitioner has filed several workers'
compensation claims; however, the only claim at issue in the
present case is one for an alleged injury on July 4, 1996.
¶2b The alleged injury was for a possible heat stroke
suffered by the claimant while baling hay on July 4, 1996.
¶2c The claimant's employer was insured by the State
Fund on the date of the alleged injury.
¶2d The State Fund utilizes a managed care organization
(hereinafter "MCO" or "MCOs") in the
management of some of its claims. The MCO it uses is Montana
Health Systems. However, the claimant has never used that
¶2e With respect to the July 4, 1996 claim, the
claimant's only involvement with a preferred provider
organization (hereinafter "PPO" or
"PPOs") has been since May 2004 with Plaza Pharmacy
in Great Falls, Montana. Plaza Pharmacy became a PPO member
pharmacy in May 2004. However, the claimant used the pharmacy
prior to its becoming a PPO member.
In addition to the foregoing facts, two other facts are
apparent from the pleadings and the parties' briefs, and
should be expressly stated. Those facts are:
¶3a The State Fund accepted liability for the
claimant's July 4, 1996 injury.
¶3b The State Fund has paid medical benefits with
respect to the claim.
The claimant has, on her part, provided the Court with
numerous other facts she contends are uncontested. Those
facts relate to specific medical care the claimant has sought
or received and the State Fund's involvement in that care
by way of questions it put to medical providers, its
authorization for specific treatment, and its requests for
and monitoring of specific treatment plans. In view of this
Court's determination that the claimant lacks standing to
pursue her first cause of action, it is unnecessary to sort
through all of the facts she proffers. However, specific
examples from her proffer will be set out in the discussion
The moving party must establish that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. Rule 24.5.329;
Farmers Union Mut. Ins. Co. v. Horton, 2003 MT 79,
¶ 10, 315 Mont. 43, 67 P.3d 285. The moving party need
not demonstrate that all facts are uncontested, only that the
facts material to the motion and to the point of law upon
which the summary judgment motion is based are not genuinely
In her first cause of action, the claimant requests the Court
to enter a declaratory judgment finding sections 39-71-1101
through 39-71-1108, MCA (1995), unconstitutional. She urges
that the managed care provisions of these sections violate
the Individual Dignity Clause - Article II, § 3 - of the
Montana Constitution and the Privacy Clause - Article II,
§ 10 - of the Montana Constitution.
The claimant filed a motion for summary judgment on the
merits of her claim. On its part, the State Fund has filed a
motion for partial summary judgment seeking to dismiss the
constitutional challenge on the ground that the claimant
lacks standing to attack the managed care statutes. The State
Fund further argues that the statutes are in any event
Part 11, chapter 71 of Title 39, is entitled "Managed
Care and Preferred Provider Organizations." A copy of
the 1995 version of the part is appended to this decision.
As a general matter, Part 11 provides that insurers may
require claimants to seek medical care for workers'
compensation injuries from MCOs and PPOs.
Part 11 does not define "managed care" or
"managed care organization." It does describe
a "managed care system" in very general terms as
a program organized to serve the medical needs of injured
workers in an efficient and cost-effective manner by managing
the delivery of medical services for a defined population of
injured workers, pursuant to 39-71-1101, through appropriate
health care professionals.
§ 39-71-1103(1), MCA (1995). "Managed care" is
generally understood as signifying "a contractual
arrangement whereby a third-party payer (e.g., insurance
company, government agency, or corporation) mediates between
physicians and patients, negotiating fees for service and
overseeing the types of treatment given."
Stedman's Online Medical Dictionary,
Similarly, part 11 provides no definition of a PPO. However,
the term is generally understood to mean a group or network
of health care providers who together contract to provide
medical goods or services to PPO members or beneficiaries.
Stedman's Online Medical Dictionary,
27th ed., defines the term as "a health care
delivery model that uses a panel of eligible
physicians." The services of preferred providers are
typically provided through contracts with insurers,
employers, governmental entities, or MCOs.
Section 39-71-1105, MCA (1995), provides for the
establishment and certification of MCOs. Subsection (1)
provides in relevant part:
(1) A health care provider, a group of medical service
providers, or an entity with a managed care organization may
make written application to the department to become
certified under this section to provide managed care to
injured workers for injuries that are covered under this
chapter or for occupational diseases that are covered under
the Occupational Disease Act of Montana. . . . Certification
is through the Department of Labor and Industry. §
39-71-1105(2)-(4), MCA (1995).
To be certified as an MCO, the organization must provide a
list of names of individual providers who will be providing
medical services the MCO beneficiaries, the names of those
providers who will serve as treating physicians, and
descriptions of "the times, places, and manner" the
MCOs will provide both primary and secondary medical
services. § 39-71-1105(3), MCA (1995).
The PPO provision allows for the establishment of
organizations of providers to provide medical goods and
services in conjunction with or supplemental to those
provided by an MCO. Section 39-71-1102, MCA (1995), reads in
In order to promote cost containment of medical care provided
for in 39-71-704, development of preferred provider
organizations by insurers is encouraged. Insurers may
establish arrangements with suppliers of soft and durable
medical goods and medical providers in addition to or in
conjunction with managed care organizations.
Workers' compensation insurers may contract with other
entities to use the other entities' preferred provider
organizations. . . .
Part 11 permits but does not require insurers to contract
with MCOs to provide medical services to injured workers.
Section 39-71-1103(3), MCA (1995), states that
"[i]nsurers may contract with certified managed care
organizations for medical services for injured workers."
If an insurer does contract with one or more MCOs, it may
require the worker to seek medical care through a designated
MCO if the injury results in a loss of wages, permanent
impairment, treatment or evaluation by a specialist, or