- 128 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
COOKSON v . RAMGE

Cite as 299 Neb. 128



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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. Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 03/02/2018 01:12 AM CST- 129 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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: J oh 

### A . C olbor n 

### , 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.

H eavi c a n 

### , C.J., M iller



### - L erma n 

### , C assel 

### , S ta c y 

### , F u n ke 

### , J

C assel 

### , J. INTRODUCTION Health insurance policyholders brought a declaratory judg

ment action to determine whether a statute 1 

### 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 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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 service 6 

### —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 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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 statutes 8 

### 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 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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 - N ebraska S upreme C ourt A dva nc e S 299 N ebraska R eport
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 

### W right 

### , 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).