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The Nebraska Supreme Court recently affirmed a ruling by a Lancaster County District Court Judge granting judgment to the State of Nebraska in a case where a state employee alleged that she was discriminated against by the State of Nebraska when it implemented an insurance policy that divided plans based upon zip codes.
The state employee alleged that she was provided inferior health insurance plan choices in 2007 and 2008 because of the zip code in which she resided. She alleged that the zip codes effected by the change in insurance policy were those where approximately 96% of black state employees work. The zip codes starting with 680, 681, and 685, which cover Omaha and Lincoln, Nebraska, were effected.
State employees were given the option of enrolling in 4 different health care plans. Those employees in the Lincoln and Omaha area were provided an HMO plan or a Point-Of-Service (POS) plan from Mutual of Omaha and a Preferred Provider Organization (PPO) plan or a “High Deductible” PPO plan from Blue Cross/Blue Shield of Nebraska. Those in all other zip codes in Nebraska could choose the PPO or “High Deductible” PPO from Blue Cross/Blue Shield of Nebraska, or could choose from a Blue Cross/Blue Shield of Nebraska HMO plan or POS plan.
The issue is whether the HMO and POS plans provided by Mutual of Omaha were inferior to the Blue Cross/Blue Shield of Nebraska HMO and POS plans.
The evidence presented by the State of Nebraska clearly established that the plans were nearly identical, except for one difference…the amount those in the effected zip codes paid for premiums for Mutual of Omaha plans. As the Nebraska Supreme Court held, “…across the board, the premiums paid in zip codes starting with 680, 681, and 685 were cheaper than the Blue Cross/Blue Shield counterparts.” (emphasis added).
The more interesting aspect of the Nebraska Supreme Court opinion, which can be found on the Nebraska Judicial webpage, is the subtle criticism laid upon the state employee’s attorney. The attorney failed to comprehend what was needed to be proved, who had the burden of proving discrimination of the plans, and making the mistake of comparing the wrong plans to each other.
Instead of arguing that the Mutual of Omaha HMO plan was inferior to the Blue Cross/Blue Shield of Nebraska HMO plan, the state employee’s attorney argued that the Mutual of Omaha HMO plan was inferior to the Blue Cross/Blue Shield of Nebraska POS plan and vice-versa.
The Nebraska Supreme Court points out that, “she (state employee) often compares the wrong Blue Cross Blue Shield plan with the wrong Mutual of Omaha plan. Doing so creates an incorrect impression that the plans she was offered were inferior.”
Additionally, the attorney never provided evidence to corroborate the allegations other than her client’s own testimony. No reference to the insurance plans to establish the inferiority and no expert witness evidence that would provide probative value to the issue were given. The only evidence before the District Court were the plan policies themselves and the employee benefits manager who detailed how the policies were equivalent to one another.
When hiring an attorney it is important to determine whether the attorney understands your case in a way that can be effectively argued. Facts and details given are important at the trial court level and even more important in the appellate court level, whether in front of the Nebraska Court of Appeals or Nebraska Supreme Court.