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BERNARD B. v. BLUE CROSS & BLUE SHIELD OF GREATER

September 28, 1981

BERNARD B., Shirley B., and Lynette D., individually and on behalf of all others similarly situated; Council of Municipal Hospital Boards; John Gardiner, as President of the Council of Municipal Hospital Boards, Plaintiffs,
v.
BLUE CROSS AND BLUE SHIELD OF GREATER NEW YORK; Albert B. Lewis, individually and as Superintendent of the State of New York Insurance Department; New York City Health and Hospitals Corporation, Defendants



The opinion of the court was delivered by: SAND

Introduction

Plaintiffs Bernard B., Shirley B., and Lynette D., *fn1" suing individually and on behalf of an as yet uncertified class, as well as two institutional plaintiffs, *fn2" challenge a practice which prevailed until November 6, 1980, of excluding from basic Blue Cross and Blue Shield of Greater New York (hereinafter "Blue Cross") insurance coverage psychiatric inpatient care in New York City Health and Hospitals Corporation (hereinafter "HHC") hospitals. Plaintiffs claim that this exclusion was discriminatory in violation of federal and state statutes, and the United States Constitution, because non-psychiatric care in HHC hospitals was covered and psychiatric care in non-HHC hospitals was also covered. Plaintiffs sue Blue Cross under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 and under N.Y.Ins.Law § 209(2) (McKinney). They sue Albert B. Lewis, (hereinafter "Superintendent") individually and as Superintendent of the New York State Insurance Department, under § 209(2), and the equal protection and due process clauses of the Fourteenth Amendment, and 42 U.S.C. § 1983. Lastly, plaintiffs sue HHC under the Rehabilitation Act, the Fourteenth Amendment, and § 1983, and also bring a negligence claim against HHC for a failure to warn plaintiffs that the hospital's inpatient psychiatric care was not covered by Blue Cross. *fn3" Plaintiffs seek declaratory and injunctive relief against all three defendants, plus damages against HHC and Blue Cross, *fn4" and attorney's fees, costs and disbursements pursuant to 42 U.S.C. § 1988.

The matter comes now before the Court on defendants' motions for summary judgment. *fn5" Blue Cross and HHC have moved with respect to all claims against them. Blue Cross additionally moves for attorney's fees, costs and disbursements pursuant to the Rehabilitation Act, 29 U.S.C. § 794a(b).

 The Superintendent has joined in Blue Cross' motion. However, Blue Cross moves only with respect to claims one, three, and seven of the complaint, that is, the claims against itself, whereas the claims against the Superintendent are stated in claims four and six of the complaint. Moreover, although plaintiffs bring § 209(2) claims against both, the Fourteenth Amendment and § 1983 claims are brought against the Superintendent but not Blue Cross. While technically the Superintendent has not moved with respect to the counts against him or at least with respect to all of them, our reasoning and results as to the Fourteenth Amendment and § 1983 claims against HHC and the § 209(2) claim against Blue Cross are applicable to the Superintendent as well. It would be a mere formality to require the Superintendent to move further after this decision. Therefore, we deem the Superintendent to have moved with respect to the claims against him.

 Facts

 Bernard and Shirley B., *fn6" husband and wife, were, at all relevant times, covered by Blue Cross health insurance as an incident of Bernard B.'s private employment. Shirley B. was admitted to an HHC hospital for emergency psychiatric treatment in November of 1978, December of 1978, and January of 1979. Plaintiffs allege that the B.'s were never informed that Blue Cross did not cover this care. Bernard and Shirley B. received bills totalling $ 11,600 from the hospital. Blue Cross denied coverage "on the grounds that the contract does not provide benefits for psychiatric care when the admission is to a governmental hospital." Plaintiffs' Brief at 5-6. Plaintiffs state that HHC has threatened the B.'s with legal proceedings to collect the $ 11,600.

 Until November 6, 1980, that is, during all three of Shirley B."s confinements, Blue Cross excluded inpatient psychiatric care in HHC hospitals from its basic coverage. In 1974, Blue Cross had requested permission from the Insurance Department to include such coverage in all contracts of Bernard B."s category. The Superintendent denied permission. *fn7" However, Blue Cross had offered the option of such coverage to Bernard B."s group at an increased premium. The option was declined.

 In July, 1980, Blue Cross again sought permission to include the disputed coverage in its minimal hospital coverage. This time the Insurance Department granted permission "on an experimental basis subject to an annual review of the cost and magnitude of the benefit provided," Robins Affidavit P 14. Consequently, "on November 6, 1980, such expanded psychiatric coverage became effective for all Blue Cross community-rated subscribers, including named plaintiffs." Blue Cross' Memorandum at 9 (citation omitted).

 Mootness

 Blue Cross and HHC argue that plaintiffs' case is moot in part, Blue Cross claiming that the November, 1980, change has mooted plaintiffs' claim for future injunctive relief against Blue Cross, and HHC arguing that the same change has mooted plaintiffs' claims to prospective and declaratory relief. However, plaintiffs now limit their prayer for injunctive relief as follows:

 
While "future" injunctive relief appears unnecessary as a result of Blue Cross' change in policy, plaintiffs still seek an injunction restraining Blue Cross from disallowing coverage for psychiatric care and treatment received at HHC hospitals prior to November 6, 1980, and enjoining HHC from continuing or instituting collection proceedings.

 Plaintiffs' Brief in Opposition at 4 n.*.

 So limited, plaintiffs' claims for injunctive relief are not moot.

 We likewise construe plaintiffs' claims for declaratory relief as now limited to a request for declarations concerning defendants' actions prior to November 6, 1980, as well as for declarations as to HHC's efforts to collect from plaintiffs for charges incurred before the November 6 change, and as to Blue Cross' persisting liability for those charges. So construed, these claims are not moot. A genuine controversy survives concerning liability for such charges and the legality of the exclusion pursuant to which those charges were not covered by Blue Cross and therefore, according to defendants, devolved upon the individuals treated.

 Causation

 Both Blue Cross and HHC have raised causation arguments, maintaining that they were not the cause of any injury to plaintiffs and therefore ...


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