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COOKSON v. RAMGE

Cite as 299 Neb. 128

Amanda E. Cookson et al., appella

v. Bruce R. Ramge, direc

Nebraska Department 

Insurance, appel

___ 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 declaratory judgment action presents a question 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. 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 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/02/2018 01:12 AM CST
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7. Statutes: Legislature: Intent. 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.

Appeal from the District Court for Lancaster County: Joh

A. Colborn, Judge. Affirme

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, 

Funke, J

Cassel, J.

INTRODUCTION

Health insurance policyholders brought a declaratory judgment 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 permitted to charge a policyholder a higher copayment if covered 

1 Neb. Rev. Stat. § 44-513 (Reissue 2010).
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services are obtained from a chiropractor rather than from a 

medical doctor. Three Nebraska residents and a nonprofit corporation (collectively Policyholders) filed a declaratory judgment 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 subsequently moved for summary judgment.

The district court overruled the motion for summary judgment and dismissed Policyholders’ complaint. The court reasoned 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 policyholder 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 
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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 question 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 considered 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).
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legally performed by a person licensed in this state for 

the practice of osteopathic medicine and surgery, chiropractic, 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, psychologist, 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 service, 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 parity, 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).
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[7] The absence of “copayment” in § 44-513 is significant. 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 person 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 administered 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).
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coinsurance provisions that are less favorable to an insured 

than the equivalent provisions that apply to a general physical 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 discrimination 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 conceivable, 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 coverage, 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 legislative 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).
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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 legislative arena.

CONCLUSION

The plain language of § 44-513 does not prohibit an insurer 

from requiring different copayments for different types of providers. We affirm the judgment of the district court.

Affirmed

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).