Patten v. State

273 Or.App. 476

359 P.3d 469

Michael Van PATTEN, Mark Banks, Carl Ralls, William McGill and Dan Russ, Plaintiffs–Appellants

v. STATE of Oregon and Kelly Ballas, Defendants–RespondentsandOregon Health Department, Department of Corrections, Oregon State Police and Bruce Goldberg, Defendants.

13C13249

A155862.

Court of Appeals of Oregon.

Argued and Submitted June 12, 2015.

Decided Sept. 2, 2015.

Richard Myers, Portland, argued the cause for appellants. On the briefs were Thomas K. Doyle and Bennett, Hartman, Morris & Kaplan, LLP.

Matthew J. Merritt, Assistant Attorney General, argued the cause for respondents. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DeVORE, Presiding Judge, and GARRETT, Judge, and SCHUMAN, Senior Judge.

Opinion

SCHUMAN, S.J.

Plaintiffs are state employees who hold state-subsidized health insurance policies administered by the Public Employees' Benefit Board (PEBB). They brought this action against the state and the then-PEBB administrator, Kapowich,¹ contending that one aspect of the insurance program, a self assessment questionnaire, requires them to disclose disabilities, and, in so doing, violates a provision of the Americans with Disabilities Act, 42 USC § 12112(d)(4)(A) (2009) (ADA), and its Oregon analog, ORS 659A.136. They also contend that the assessment amounts to an unconstitutional search and a violation of their constitutional right to the privacy of personal information. Defendants moved for summary judgment on the ground that the assessment does not contain “disability inquiries”; that, even if it does contain such inquiries, they fall within statutory “safe harbor” provisions that permit certain inquiries used by insurance providers; and that the assessment was neither a search nor an unlawful invasion of any constitutionally protected privacy interest. The trial court agreed with defendants' arguments and granted their motion for summary judgment. Plaintiffs appeal. We affirm.

Because there are no disputed issues of fact—plaintiffs protestations to the contrary notwithstanding, as we explain below—we review the trial court's grant of summary judgment to determine whether defendants are entitled to a judgment as a matter of law. ORCP 47(C) ; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). The legal questions revolve around one part of PEBB's insurance program, a “Health Engagement Model” that urges state employees who want to obtain (or maintain) state-subsidized health insurance to fill out an on-line “health risk assessment” questionnaire provided by one of two health plan providers, Kaiser Permanente or Providence Health & Services.² The questionnaires both contain questions that are highly personal and could indicate the presence of a disability—for example, whether the employee has cancer, hepatitis B, a sexually transmitted infection, depression, or a host of other conditions. Employees are informed, however, that they do not need to answer all of the questions, although they are urged to do so.³

The assessment is filled out privately, on line, and then automatically forwarded to one of two private, for-profit administrators (treated as state agents for purposes of the ADA), who aggregate the responses, securely store the individual questionnaires until they are destroyed, and forward the aggregated data to PEBB. PEBB and state employers receive only a list of employees who have taken the assessment and a summary of the aggregated, “anonymized” or “de-identified” data. Importantly, neither PEBB nor any state employer receives the results of an individual's assessment, and the employee's health care provider receives the information only if the employee affirmatively so authorizes.

Kaiser, Providence, and the two private administrators are all subject to the elaborate client security measures required by the federal Health Insurance Portability and Accountability Act (HIPAA). PEBB uses the aggregated results to help in the design of future health plan offerings.

It also uses the program itself as a way to encourage employees to adopt beneficial health habits, thereby, presumably, reducing insurance costs. It does so by requiring each assessment taker to agree to undertake two “health actions.” The agreement is not policed. Assessment takers are simply asked to report whether they took the health actions. They are not required to submit proof or to identify which actions they took. As PEBB states on its webpage explaining the health action aspect of the HEM, “You choose your own health actions, you track them any way you want, and there's no reporting involved.”

Although an employee's eligibility for state sponsored health insurance does not depend on whether the employee has completed the assessment, those who do not complete it pay more for their insurance than those who do.⁴ The difference is currently $17.50 per month for individuals or $35.00 per month for couples. Nonparticipants also currently have a deductible that is $100.00 larger than participants. The parties agree that, because of this financial disincentive, participation in the assessment is not “voluntary” as that term is defined in the ADA.⁵ They also agree that defendants' use of private third-party administrators to convert individual responses into aggregated data does not insulate the state and PEBB from ultimate legal responsibility for the program.

Plaintiffs insist that two—and only two—of these facts are disputed in the record on summary judgment. First, they argue that a fact issue remains as to whether PEBB uses the aggregated data to design future health plan offerings. We disagree. Kapowich, PEBB's administrator, stated in a sworn declaration that the “aggregated data enables PEBB to understand the overall health trends of the population it [i]nsures. PEBB uses this information along with other health survey and utilization data to help in designing health plan offerings for employees in future years.” That statement stands uncontradicted by anything in the record.

Second, plaintiffs argue that there is a disputed issue of fact as to whether an employee's responses to the assessment are revealed to defendants. In their brief, plaintiffs suggest a hypothetical scenario in which, through a series of unlikely events, an unscrupulous supervisor might discern that a particular employee has a particular disability by matching the supervisor's updated lists showing which employees have taken the assessment, with an updated report of aggregated data. This hypothetical scenario is farfetched; more importantly, Kapowich stated on the record that the individual assessments are private, are secure, and that they are “de-identified” before defendants—or any other state employee—ever sees them. Again, plaintiffs presented no facts to the trial court that dispute those assertions. Even on appeal, they present only speculation about what they suppose could, hypothetically, happen. Such hypothetical musings do not create a disputed issue of fact.

We therefore turn to an analysis of plaintiffs' primary legal argument that requiring employees to take the HEM risk assessment questionnaire violates 42 USC § 12112(d)(4)(A), which provides:

“A covered entity shall not * * * make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The parties agree that PEBB is a “covered entity,” that (as noted) completing the assessment could reveal the existence or severity of a disability, and that the assessment is not job-related or justified by business necessity. Thus, the question before us reduces to whether, in the assessment, defendants “make inquiries ” regarding disabilities, despite the fact that neither PEBB nor any state employer ever sees or learns of any individual's responses. Plaintiffs rely on what they assert is the plain meaning of the term “inquiries,” as well as the “Enforcement Guidance” from the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADA: A “disability inquiry” is “a question (or a series of questions) that is likely to elicit information about a disability.” Enforcement Guidance: Disability-related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (2000).⁶ Defendants respond that the “plain meaning” is not so plain, particularly in light of the context in which the “inquiries” are made and the responses “elicited.”

Neither the parties nor we have found precedent from any jurisdiction, or any other source, examining the precise question at issue here.⁷ We therefore confront a question of first impression requiring us to interpret an Act of Congress. In doing so, “we follow the methodology prescribed by federal courts.” Hagan v. Gemstate Manufacturing, Inc., 328 Or. 535, 545, 982 P.2d 1108 (1999). As the Supreme Court recently explained,

“If the statutory language is plain, we must enforce it according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251[, 130 S.Ct. 2149, 176 L.Ed.2d 998] (2010). But oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.’ [FDA v.] Brown & Williamson, 529 U.S. [120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ]. So when deciding whether the language is plain, we must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ Id. at 133 . * * * Our duty, after all, is ‘to construe statutes, not isolated provisions.’ Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290[, 130 S.Ct. 1396, 176 L.Ed.2d 225] (2010) (internal quotation marks omitted).”

King v. Burwell, 576 U.S. ––––, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (first and fourth brackets added; others in ori

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