Holland et al v. Consol Energy Inc.REPLYS.D.W. Va.November 3, 2017IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON MICHAEL H. HOLLAND, et al., ) ) Plaintiffs, ) ) v. ) C. A. No. 2:17-cv-02091 (TJT) ) CONSOL ENERGY INC. ) ) Defendant. ) ________________________________________________) PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 1 of 18 PageID #: 1002 1 INTRODUCTION For the reasons described herein, Plaintiffs’, the Trustees of the United Mine Workers of America (“UMWA”) 1992 Benefit Plan (“1992 Plan”), Motion for Summary Judgment should be granted against Defendant Consol Energy, Inc. ("Consol”). Consol is clearly in violation of its obligation under Section 9711(a) of the Coal Industry Retiree Health Benefit Act (“Coal Act” or “Act”), 26 U.S.C. 9711(a), and Plaintiffs are entitled to judgment as a matter of law. ARGUMENT I. THE COAL ACT IS CLEAR THAT AN EMPLOYER MUST MAINTAIN “SUBSTANTIALLY THE SAME” BENEFITS THAT WERE IN PLACE ON JANUARY 1, 1992. Consol argues that the Coal Act merely requires it to continue to provide “health benefits coverage” that is “substantially the same” as the coverage provided as of January 1, 1992, and that the statute neither requires that it maintain substantially the same “health benefit plan” nor substantially the same “levels” of coverage provided as of January 1, 1992. (Consol Opp. at 3, 5, 15.) Consol contends that this supposed laxity in the statutory language permits it to largely ignore the “collectively bargained health benefit plan that was in place in 1992 (which essentially had no mandatory managed care or cost containment controls).” (Consol Opp. at 5.) This strained argument overlooks both the plain meaning of the Coal Act and its legislative history. Section 9711(a) provides: The last signatory operator of any individual who, as of February 1, 1993, is receiving retiree health benefits from an individual employer plan maintained pursuant to a 1978 or subsequent coal wage agreement shall continue to provide health benefits coverage to such individual and the individual’s eligible beneficiaries which is substantially the same as (and subject to all the limitations of) the coverage provided by such plan as of January 1, 1992. 26 U.S.C. 9711(a) (emphasis added). Thus, plainly, Congress did not impose mere continuation of generic “health benefits coverage,” but continuation of the “coverage provided by such plan,” Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 2 of 18 PageID #: 1003 2 including all the plan’s limitations on coverage – or lack thereof. There is no green light in this specific statutory provision to impose mandatory managed care or cost containment limitations not included in the plan in place on January 1, 1992. The legislative history of the Coal Act reinforces this reading of the plain language of the Coal Act. The draft Conference Report for the Coal Act prepared at the request of Sen. Malcolm Wallop of Wyoming explains that Congress specifically intended healthcare benefits to be continued at the same levels of coverage as in place on January 1, 1992: Section 9711. Continued Obligations of Individual Employer Plans In some instances, signatories to the 1978 or subsequent coal wage agreements provide retiree health benefits from an individual employer plan maintained pursuant to those coal wage agreements. The statute makes provision for such health benefits coverage to continue at the same levels provided the last signatory operator (and any related person) remains in business. Thus, for example, 1988 NBCWA signatories which are presently providing retiree health care through an individual employer plan will be statutorily obligated to continue such benefits for life with respect to all former employees who are already retired, or who become eligible to retire by February 1, 1993, and who in fact retire on or before September 30, 1994 . . . . Health care benefits for employees retiring after September 30, 1994 are subject to collective bargaining between their company and the UMWA. These persons are not guaranteed a specific level of benefits, guaranteed funding of any benefits or provided benefits under the Conference Report. 138 Cong. Rec. S17566-01, S17606, 1992 WL 279399 (October 8, 1992) (Proposed Conference Report appended to floor statement of Sen. Wallop, emphasis added). Accordingly, there can be no doubt that Consol is not free under the Coal Act to substantially increase costs to participants, to substantially restrict access to healthcare providers, to substantially reduce the health benefits covered, or, most notably, to deny coverage to beneficiaries who are clearly entitled to coverage under the plain statutory language – all of which Consol did in implementing its New Plan, without agreement from the UMWA. Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 3 of 18 PageID #: 1004 3 II. THE COAL ACT IS CLEAR THAT NEW OR MODIFIED MANAGED CARE AND COST CONTAINMENT PROGRAMS CAN ONLY BE IMPLEMENTED IN THREE WAYS. Consol argues that it is free to implement managed care and cost containment measures unilaterally and without any requirement that it comply with the three mechanisms for implementation established by Congress in the Coal Act. (Consol Opp. at 3-10) (“The Trustees’ entire argument turns on the notion that plan sponsors violate Federal law if their Coal Act plan includes any managed care or cost containment rule that has not first obtained their approval, or approval of the UMWA.”) For this proposition, Consol relies mostly on how it believes the Coal Act should function, despite the fact that neither the plain language of the statute nor the legislative history support this proposition, nor is the proposition supported by its own conduct over the past 25 years in which it repeatedly sought agreement with the UMWA over any changes to its programs of managed care. The Coal Act makes plain that there are only three mechanisms for a last signatory operator (or related person) to implement new managed care and cost containment rules and programs: 1. Under Section 9711(d), a last signatory operator may implement “managed care and cost containment rules and procedures” agreed to by the last signatory operator and the UMWA. 26 U.S.C. § 9711(d). 2. Under Section 9712(c)(4), a last signatory operator may “utilize the managed care and cost containment rules and programs” developed and implemented by the 1992 Plan. 26 U.S.C. § 9712(c)(4). 3. Under Section 9712(c)(5), a last signatory operator may seek to obtain the review and approval of “[a]ny managed care system or cost containment” by a “medical peer review panel” established either by the UMWA and the BCOA or the UMWA and the requesting employer. 26 U.S.C. § 9712(c)(5). Consol’s legislative myopia is indeed remarkable. Throughout its briefs, it repeatedly cites to the Coal Act’s provisions describing the types of cost containment programs and managed care Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 4 of 18 PageID #: 1005 4 contemplated for use of the last signatory operators under Sections 9712(c)(2), (3) of the Coal Act to support its claim that it can do whatever it wants. (Consol Opp. at 7.) But, somehow, Consol has failed to notice Section 9712(c)(5), which specifically provides: (5) Standards of quality. Any managed care system or cost containment adopted by . . . a last signatory operator may not be implemented unless it is approved by, and meets the standards of quality adopted by, a medical peer review panel, which has been established— (A) by the settlors [the UMWA and the BCOA], or (B) by the [UMWA] and a last signatory operator or group of operators. Standards of quality shall include accessibility to medical care, taking into account that accessibility requirements may differ depending on the nature of the medical need. 26 U.S.C. § 9712(c)(5) (emphasis added). Thus, under the clear, direct, and unambiguous language of the Coal Act — language that Consol has chosen to entirely ignore — “any” program of managed care or cost containment that is not agreed to by the UMWA or maintained by the 1992 Plan may not be implemented by a last signatory operator unless it has been approved by a duly-established medical peer review panel. See 26 U.S.C. §§ 9711(d), 9712(c)(4), (5). If there were another mechanism for last signatory operators to implement – or indeed modify – managed care and cost containment rules and programs, free from the constraints of needing agreement from the UMWA, “piggy-backing” on the programs maintained by the 1992 Plan, or approval by a duly constituted medical peer review panel, Congress would have at least given some inkling of that in the language of the Coal Act. See, e.g., INS v. Cardoza Fonseca, 480 U.S. 421, 432 (1987) (presumptively, Congress acts intentionally and purposefully in including particular language in one section of a statute but omitting it in another section of the same Act). Likewise, the legislative history of the Coal Act makes clear that last signatory operators Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 5 of 18 PageID #: 1006 5 are constrained to these statutory mechanisms. Senator Rockefeller, the original author and principal sponsor of the Coal Act, made the following floor statement: The 1992 plan and last signatory operators subject to the bill's requirement relating to individual employer plans may utilize certain managed care systems and cost containment rules, but they must be approved-and upon request of an operator or a settlor of the 1992 plan, an existing or future system or rule will be reconsidered-by a medical peer review panel. The requirement for initial approval does not preclude the [1992] plan or a last signatory operator from implementing-or from continuing to maintain-rules and programs that are permitted and implemented under the 1988 NBCWA, but any new managed care system that would limit beneficiaries' access or potentially affect quality of care would require review by a panel. In addition, any new cost containment rule not agreed to by the UMWA would be subject to review by a panel. 138 Cong. Rec. S17625-03, S17635, 1992 WL 279402 (October 8, 1992) (statement of Sen. Rockefeller) (emphasis added). As discussed in detail in Plaintiffs’ Motion for Summary Judgment, the 1988 NBCWA did not permit a coal operator to restrict access to licensed physicians or pharmacies or limitations on covered prescription drugs, nor did it permit any imposition of additional costs on beneficiaries who chose to use non-network providers or non- formulary drugs. (Pls’ Mem. in Supp. of their Mot. for Sum. J. (“Pls’ Mem.”), Facts ¶¶ 40, 60, 67; see also, Consol Opp. at 5.) Accordingly, there can be no reasonable reading of the Coal Act that allows Consol to unilaterally implement entirely new mandatory physician networks, pharmacy networks, or formularies, or to introduce modifications to existing ones, that have not been agreed to by the UMWA, implemented and maintained by the 1992 Plan, or approved by a duly constituted medical peer review panel. The reasons for this are obvious – Congress was well aware of the precarious position of these retirees and their dependents. 1 Thus, Congress prohibited any last signatory operator from implementing programs of cost containment and 1 Most of these retirees live on limited fixed incomes. As previously noted, the average monthly pension for retirees covered by the Coal Act is just $359 per month. Furthermore, these retirees are regular users of health benefits. (See Plaintiffs’ Opp. at 13; Third Chisholm Decl., ¶ 9.) Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 6 of 18 PageID #: 1007 6 managed care without either the express approval of the retirees’ representative — the UMWA — or the approval of a medical peer review panel established by agreement with the UMWA that would ensure that the statutory requirements for such programs be met. III. CONSOL’S CHARACTERIZATION OF ITS NEW PLAN DOES NOT CHANGE THE FACT THAT IT VIOLATES SECTION 9711(a). Despite its many attempts to distract this Court from its violation of Section 9711(a) by invoking everything from inflation to May-December romances, Consol does not and cannot change the fact that its New Plan provides healthcare benefits that are not substantially the same as those provided on January 1, 1992. A. Consol Has Not Shown That the UMWA Approved the New Plan Changes in Dispute. Consol wrongly argues that the UMWA approved the new “provider networks, drug formularies and other Plan rules regarding utilization of benefits” that it implemented in its New Plan. (Consol Opp. at 6.) Consol’s Opposition states that this is attested to in the Declaration of Kurt R. Salvatori, but the declaration of Mr. Salvatori does not say a single word about drug formularies or provider networks. (See id.; Consol Opp., Ex. B, ¶¶ 1-18.) Attachment 1 to Mr. Salvatori’s Declaration is a letter dated July 1, 2011 that merely states that the UMWA agreed to a prior formulary proposed by Consol. (Consol Opp., Ex. B, Attach. A. See also Pls’ Mot., Sanson Decl. ¶ 15.) Mr. Salvatori does not contradict the Declaration of Brian Sanson that the UMWA never agreed to any of the changes found in Consol’s New Plan. (Consol Opp., Ex. B; Pls’ Mot., Sanson Decl. ¶¶ 15-22.) It goes without saying that approval from the UMWA in 2011 of one particular formulary does not give Consol carte blanche to unilaterally impose new formularies and provider networks thereafter. Furthermore, Consol accuses the Trustees of relying upon the terms of the 2011 Model Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 7 of 18 PageID #: 1008 7 Plan in its challenge to Consol’s New Plan. (See e.g., Consol Opp. at 9.) In fact, as noted in the preceding paragraph, it is Consol that repeatedly seeks to rely upon the collectively bargained agreements negotiated between Consol and the UMWA prior to Consol’s withdrawal from the BCOA. 2 At the same time, Consol repeatedly contends that it is not bound to those prior agreements with the UMWA. 3 It cannot have it both ways. Consol cannot now rely upon prior agreements with the UMWA to justify its flagrant violation of its obligations under Section 9711 of the Coal Act while at the same time repudiating those same agreements. B. Consol Cannot Waive Away the Significant Out-Of-Pocket Cost Increases Imposed by its New Plan as Merely Avoidable. Consol repeatedly claims that the significant out-of-pocket cost increases it imposes on Coal Act retirees and their beneficiaries are not significant because participants can avoid them by adhering to the restrictive physician and pharmacy networks and prescription drug formularies that the New Plan imposes. 4 (Consol Opp. at 17-20.) Thus, per Consol, these are self-imposed financial penalties that a participant “self-selects.” (Consol Opp. at 14, 17.) As discussed at length in Plaintiffs’ Opposition to Consol’s Motion for Summary Judgment, these out-of-pocket cost increases are increases ranging from 180% and 13,300% 5 compared to the 2 As an additional example of Consol’s reliance on the terms of the collectively bargained 2011 Model Plan: [T]he UMWA-BCOA Model Coal Act Plan was not open access. CONSOL utilized the networks under that Plan as well as under the [New Plan]. (Consol Opp., Ex. A, Lackovic Third Decl. ¶ 14.) 3 For example: “The UMWA is no longer a party to CONSOL's Coal Act Plan, and CONSOL is no longer subject to the provisions of the IEP negotiated as part of the NBCWA.” (Consol Opp., Ex. A, Lackovic Third Decl., ¶ 14.) 4 Ms. Lackovic’s Third Declaration and discussion rely on a table of prescription drug benefits that is plainly incorrect. (Consol Opp., Ex. A, ¶ 12.) That table and her discussion suggest that all prescription drugs are only subject to a $5 co-payment, for a maximum of $50 per family per 12-month benefit period. In fact, if that prescription drug is not a generic or preferred brand under the formulary, the New Plan requires the retiree to also pay out-of-pocket a $15 or $45 surcharge and the difference in price between the cost of the drug and the generic or preferred brand. (Pls. Mot., Exhibit 6, pp. 17-18.) Neither the $15 nor $45 surcharges nor the price difference count toward the $50 maximum. (Id.) See the next footnote regarding additional errors in that table and discussion. 5 Ms. Lackovic’s Third Declaration wrongly claims that co-insurance in the New Plan only increased by 20% over the 10% co-insurance for outpatient provided for in Article III of the 2011 Model Plan. (See Consol Opp., Ex. A, Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 8 of 18 PageID #: 1009 8 health benefits in place on January 1, 1992. (Pls. Opp. at 11-13.) Thus, these increases are far from insignificant, and as discussed in Plaintiffs’ Opposition, they are not readily avoidable by participants who cannot easily use formulary medications, in-network providers, and in-network pharmacies. (Id.) This beneficiary population is older and often frail. They may not have in- network providers close by, they have long-term relationships with out-of-network family doctors 6 or pharmacies, or they have been using non-formulary or non-preferred brand medications for some time. (Pls’ Mot., Chisholm Decl. ¶ 56.) Moreover, Consol admits the large number of participants who “would be impacted by the out-of-network coinsurance should they see an out-of-network provider.” (Consol Opp., Ex. A, ¶ 11.) In her Third Declaration submitted by Consol in support of its Opposition to the Trustees’ Motion for Summary Judgment, Ms. Lackovic states that 42% of the Medicare-eligible population will be impacted by the out-of-network coinsurance should they see an out-of- network provider because they do not meet the requirements for an Extended Service Area. (Id.) Per Ms. Lackovic, Medicare retirees make up 90% of all the Coal Act retiree participants. (Id.) This means that, of a population of 2,327 participants, at least 880 individuals will definitely be impacted, as well as another 233 individuals in the remaining 10% who are not Medicare- Lackovic Third Decl., ¶¶ 12, 17.) First, Article III of the 2011 Model Plan does not provide for any amount of co- insurance payments. (See Pls. Motion, Ex. 5 at 4-28) Second, even if that were true, a change from 10% to 30% is a 200% increase. Ms. Lackovic also wrongly asserts that the 2011 Model Coal Act Plan had no maximum for out-of- pocket costs when using an out-of-network provider for outpatient services. (See Consol Opp., Ex. A, Lackovic Third Decl., ¶ 12.) The 2011 Model Coal Act Plan had a single maximum for out-of-pocket costs for all outpatient services - $100 per family per 12-month benefit period. (See Pls. Motion, Ex. 5 at 20.) The 2011 Model Coal Act Plan did not impose a provider network, so it did not differentiate between in-network and out-of-network out-of- pocket maximums, (See id.) Based on agreement between the BCOA and the UMWA, Article XX of the 2011 NBCWA provided that an employer could impose an out-of-pocket maximum for out-of-network utilization of up to $1,600 per family per year. (See Pls. Motion, Ex. 16 at 213.) Thus, the New Plan’s out-of-pocket maximums of $6,700 per individual or $13,400 per family are grossly in excess of anything the 2011 Model Coal Act Plan provided for or the UMWA agreed to. 6 Consol does not contradict this. At Paragraph 13, Ms. Lackovic’s Third Declaration states only that she is not aware of any “specialist” that became unavailable as out-of-network. (See Consol Opp., Ex. A, Lackovic Third Decl., ¶ 13.) She does not refute that some retirees’ long-term, general practitioners have been excluded by the networks imposed by the New Plan. (See id.) Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 9 of 18 PageID #: 1010 9 eligible. Likewise, Consol admits that the same 10% of participants, or 233 individuals, will definitely be subject to paying out-of-pocket for the difference in price between a non-preferred brand drug prescribed them and the generic or preferred brand drug on the New Plan’s unapproved formularies because they are not eligible for non-Plan, Medicare-based protections. (Id. at ¶ 22.) For the same reasons, Consol admits that the same 10% of participants, or 233 individuals, will also suffer from the New Plan’s termination of indemnification from balance billing. (Id. at ¶¶ 18-21.) Importantly, for the remaining 90% of participants, it is not Consol’s New Plan that is providing them these benefits or protections or Consol’s New Plan that is providing substantially the same benefits as in place on January 1, 1992 – it is Medicare, an outside government program that is subject to legislative and administrative change at any time. C. Consol Cannot Hide Its Section 9711(a) Violation Behind Its Reliance on Medicare Guidance, the Advice of Its Private Healthcare Consultants, or Its Allegedly Innovative Practices. Consol continually tries to obfuscate its Section 9711(a) violation by pointing to the guidance it relies on from the Centers for Medicare and Medicaid Services (“CMS”) and its use of privately hired healthcare consultants. (Consol Opp. at 16-20 & Ex. A.) It should go without saying that CMS 7 was in existence in 1992, so if Congress intended for reliance on CMS guidance to be a substitute for any of the requirements of the Coal Act, it would have said so. Likewise, Section 9712(c)(5) specifically provides for approval of new managed care or cost containment procedures by a “medical peer review panel” established either by the UMWA and the BCOA or the UMWA and the requesting employer. 26 U.S.C. § 9712(c)(5). The Coal Act does not authorize Consol to hire its own healthcare consultants or pharmacy benefits managers and treat their advice or approval as a substitute for a medical peer review panel jointly 7 At the time, CMS operated under a different name, the Health Care Financing Administration (“HCFA”). It was re- titled to its current name in 2001. Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 10 of 18 PageID #: 1011 10 established with the UMWA. Even more ridiculous is Consol’s argument that the New Plan’s unilateral implementation of restricted physician and pharmacy networks is not a violation of Section 9711(a), but rather some kind of modern miracle because “the notion of ‘networks’ as they exist today didn't exist in 1992.” (See Consol Opp., Ex. A, Lackovic Third Decl., ¶ 18.) Not only did networks, as a type of managed care, exist in 1992, but various provisions of the Coal Act show that Congress was well-aware of them and how they work. See, e.g. 26 U.S.C. 9712(c)(2) (“Such rules shall preserve freedom of choice while reinforcing managed care network use by allowing a point of service decision as to whether a network medical provider will be used.”); 26 U.S.C. 9712(c)(3)(B) (“obtaining a unit price discount in exchange for patient volume and preferred provider status with the amount of the potential discount varying by geographic region,”); 26 U.S.C. 9712(c)(3)(F) (“selecting the most efficient physicians… for medical services delivered by the managed care network”) (emphasis added to all). By the same token, Consol’s New Plan is not “innovative” for unilaterally implementing a prescription drug formulary so that Consol can offer coverage for “prescription drugs today [that] did not even exist in 1988.” (See Consol Opp., Ex. A, Lackovic Third Decl., ¶ 28.) Indeed, this sentence is a non sequitur. Patents for drugs have been available in the United States for a century, and drug formularies long pre-dated the passage of the Coal Act. The 1988 Employer Benefit Plan, the plan in place on January 1, 1992, provided coverage for, other than oral contraceptives, 8 all those “prescription drugs . . . dispensed by a licensed pharmacist and prescribed by a (i) physician for treatment or control of an illness or a nonoccupational[] accident or (ii) licensed dentist for treatment.” (See Pls. Motion, Ex. 3 at EP-13.) Nowhere does either the 8 Oral contraceptives are now required to be provided by Consol’s plan pursuant to the Affordable Care Act. Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 11 of 18 PageID #: 1012 11 1988 Employer Benefit Plan or the Coal Act provide any exception that would excuse Consol’s refusal to cover newly-developed drugs, notwithstanding its claim of “innovation.” (Pls. Mem., Facts ¶¶ 76-79.) Accordingly, Consol’s unilateral implementation of a new prescription drug formulary with increased penalties is not innovative — it is instead unlawful under Section 9711(a). D. Consol’s Misleading Statements and Phony Math Cannot Justify Its Repudiation of Its Statutory Obligations. Ms. Lackovic’s Third Declaration is remarkable both for what it says and what it does not say. Perhaps most notably, in Paragraph 5, Ms. Lackovic states that “[t]he network of providers available to Plan Participants did not change” in its transition from the 2011 Model Plan to the unilaterally imposed New Plan. (Consol Opp., Ex. A, Lackovic Third Decl. ¶ 5.) At the same time, however, she states: All carrier networks change year over year as the contracts with each doctor/facility are typically only 2 or 3-year contracts, so the medical carriers are in a continuous state of renegotiating contracts for their respective networks. (Consol Opp., Ex. A, Lackovic Third Decl. ¶ 16.) It is hard to see how a network that is in a “continuous state of” change can be characterized as the same. Indeed, it is precisely because of this continuous state of change that the Coal Act requires continuous review of provider networks by a duly-constituted medical peer review panel. Ms. Lackovic also seeks to justify Consol’s unlawful changes to its health plan by applying a 9% medical trend inflator to the original limits and copayments in place under the 1988 Plan. Neither Consol nor Ms. Lackovic, however, has pointed to any provision of the Coal Act that authorizes changes in benefits based upon medical inflation or other elements of medical trend. By contrast, where Congress intended to include inflation adjustments, it did so explicitly. See Coal Act Section 9704(b)(2)(B), 26 U.S.C. 9704(b)(2)(B) (providing for annual adjustments Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 12 of 18 PageID #: 1013 12 of the premium payable to the Combined Fund based upon the medical component of the Consumer Price Index). Ms. Lackovic also characterizes Consol’s requirement that spouses or dependents of retired miners enroll in coverage under their employers’ plans as a “coordination of benefits” rule. This is plainly wrong. 9 Whereas coordination of benefits – sometimes referred to as a “non- duplication” provision – determines which plan pays first if an individual is enrolled in more than one plan, Consol’s requirement disqualifies covered individuals from receiving benefits unless they enroll in their employers’ health plans, even if that enrollment comes at a cost. Such a requirement is prohibited by the plan in place on January 1, 1992. As stated in by the Trustees in resolving a dispute under the 1988 Plan: [T]he Plan provides for non-duplication of benefits by an Employer Benefit Plan and another group plan in situations where a beneficiary is covered by both plans. This non- duplication provision precludes duplicate payments for services and limits payments to the total allowable charges for covered services. Article III. A. (10) (f) also states the criteria to be applied in determining whether the Employer Benefit Plan or another group plan is primary. One of the criteria stipulates that the plan covering the patient other than as a dependent will be the primary plan. The Complainant's spouse in this instance has waived enrollment in a group medical plan offered by her employer. Consequently, she is not covered by any other group plan and the non-duplication of benefits provision does not apply in this situation. * * * The Respondent is required to pay the covered medical expenses incurred by the Complainant's spouse under the terms of the Employer Benefit Plan. Exhibit 25, ROD Case No. 88-132 (August 22, 1989) (emphasis added, citations omitted.) See also, Exhibit 26, ROD Case No. 88-469 (April 27, 1992). 9 As defined by CMS: Coordination of benefits (COB) allows plans that provide health and/or prescription coverage . . . to determine their respective payment responsibilities (i.e., determine which insurance plan has the primary payment responsibility and the extent to which the other plans will contribute when an individual is covered by more than one plan). Centers for Medicare & Medicaid Services, Coordination of Benefits (2017), https://www.cms.gov/Medicare/ Coordination-of-Benefits-and-Recovery/Coordination-of-Benefits-and-Recovery-Overview/Coordination-of- Benefits/Coordination-of-Benefits.html. Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 13 of 18 PageID #: 1014 13 E. The Coal Act Clearly Established the Class of Retirees and Beneficiaries for Which Employers Are Required to Provide Benefits. Consol claims that it was entitled to contravene the Coal Act’s statutory mandate on providing healthcare coverage to beneficiaries of retirees because Consol abhors late in life marriage, marriages where the spouses have a disparate age gap, or perhaps both. The Coal Act clearly provides that all last signatory operators must provide healthcare benefits not only to applicable retirees, but also to all their spouses and dependent parents, children, and grandchildren who meet the eligibility requirements for coverage under the 1988 NBCWA. Section 9711(a), 26 U.S.C. 9711(a) (the last signatory employer must provide “health benefits coverage to such individuals and the individual’s eligible beneficiaries.”) If there were any doubt about this clear mandate, the legislative history makes clear that Congress was trying to ensure the widest pool of beneficiaries possible: The essence of the Conference Agreement is that those companies which employed the retirees in question, and thereby benefitted from their services, will be assigned responsibility for providing the health care benefits promised in their various collective bargaining agreements. This will be accomplished through a formulation designed to allocate the greatest number of beneficiaries in the Plans to a prior responsible operator. For this reason, definitions are intended by the drafters to be a given broad interpretation to accomplish this goal. 138 Cong. Rec. S17566-01, S17603 (October 8, 1992) (Draft Conference Report, appended to floor statement of Sen. Wallop) (emphasis added). As Congress has clearly spoken on this beneficiary issue and Consol has continually emphasized its unctuous appreciation for Congressional intent, it is unclear why Consol decided to contravene this express mandate by cutting off eligibility for any new spouses or dependents after December 31, 2016. If a marriage is legally recognized by the government and the spouses can provide documentation evidencing a legal union, it is not up to Consol to second guess the validity of that marriage. While a marriage where spouses have an age difference of 39 years Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 14 of 18 PageID #: 1015 14 may be disfavored by Consol, it is well-established that individuals have the Constitutional right to marry the person of their choice. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967). It is also well-established that individuals have the Constitutional right to procreate and adopt children. See, e.g., Lawrence v. Texas, 539 U.S. 558, 574 (2003). In addition to marriages recognized under statute, the plan in place in 1988 — and therefore the individual plans maintained by last signatory operators under Section 9711 — are required to recognize a separate class of “common law marriages” that may not be legally recognized under relevant state law. E.g., Exhibits 27-30, ROD Cases No. 84-127 (May 28, 1986), No. 84-256 (August 11, 1987), No. 98-021 (January 15, 2003), No. 11-0001 (May 27, 2014). Consol’s efforts to ignore these long-established eligibility rules is a further violation of its statutory obligations under Section 9711. Consol’s sole defense to its clear statutory violation is its charge of “abuse.” (Consol Opp. at 20.) Such an unsubstantiated charge cannot, however, provide an excuse for Consol to avoid Congress’ clear and unambiguous statutory mandate. 10 IV. PLAINTIFFS HAVE STANDING AND THIS COURT HAS JURISDICTION TO ENFORCE CONSOL’S SECTION 9711 OBLIGATION. Consol’s attempts to label Plaintiffs as “interlopers” aside, it is clear that Plaintiffs have standing to bring their claims against Consol and that this Court has jurisdiction to hear Plaintiffs’ claims. As described in Plaintiffs’ Opposition to Consol’s Motion for Summary Judgment, the 1992 Plan has standing because it will imminently be required to enroll beneficiaries who are not receiving the coverage from Consol required by the Coal Act. Not only will the 1992 Plan be 10 Furthermore, with the opioid crisis hitting the Coal Fields, West Virginia in particular, the unfortunate result is that there are likely to be all too many children who will have to be raised, or even adopted, by their grandparents. It is hard to see how such a circumstance could be characterized as “abuse” merely because it takes place after December 31, 2016. Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 15 of 18 PageID #: 1016 15 required to provide benefits to those beneficiaries who are affected by Consol’s changes to benefit levels, provider networks, and drug formularies, but it will be required to provide benefits to any and all spouses and dependents who become eligible for coverage after Consol’s arbitrary cut-off date of December 31, 2016, and to those spouses and dependents who do not enroll in their employers’ plans. Although Consol is evidently in the business of determining at which point a new spouse or dependent is unworthy of benefits, the statute is unambiguous: if Consol does not provide these people benefits, then the 1992 Plan must (even if the spouse is 39 years younger than the retiree). Similarly, if Consol does not provide benefits that are substantially the same as those provided by Consol and other employers on January 1, 1992, the 1992 Plan must. Consol’s position that the 1992 Plan would not have standing until it actually has to enroll a beneficiary in one of these scenarios is even more untenable given Consol’s position on this Court’s jurisdiction. Consol has argued that this Court lacks subject-matter jurisdiction over any case to enforce Section 9711 because Section 9721 only authorizes suits for delinquent liabilities to the 1992 Plan for amounts owed under Section 9712. (Consol’s Mot. for Summ. J. at 5.) Under Consol’s reading of the statute, Section 9721 would not permit the 1992 Plan to bring its claim even after it was required to enroll a beneficiary because the Consol’s liability arises under Section 9711 rather than 9712. Furthermore, under Consol’s reading of Section 9721, even an affected beneficiary would be unable to enforce Consol’s Section 9711 obligations. In essence, Consol is arguing that Section 9711 sets up a right without a remedy. This is incorrect. Consol’s argument suffers from the same statutory myopia as its arguments regarding cost containment and managed care. Section 9721 provides that Section 4301 of ERISA, 29 U.S.C. § 1451, “shall apply to any claim arising out of an obligation to pay any amount required to be paid by this chapter.” 26 U.S.C. § 9721; see also Holland v. King Knob Coal Co., Inc., 87 Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 16 of 18 PageID #: 1017 16 F. Supp. 2d 433, n.1 (W.D. Pa. 2000). Consol, however, ignores the actual text of Section 9721 and instead finds limitations that do not exist, arguing it only confers jurisdiction for claims “arising out of an obligation to pay any amount required to be paid to the 1992 Plan under Section 9712.” (Consol’s Mot. for Summ. J., at 5) (emphasis added). Section 9721, however, does not contain any direct reference to either the 1992 Plan or to amounts owed under Section 9712. Rather, it broadly establishes a cause of action to enforce “any claim” for “any amount required to be paid by this Chapter,” with no restriction as to whom the amounts are owed or under which section the amounts are due. See Pittston Co. v. United States, 368 F.3d 385, 392 (4th Cir. 2004), cert. denied, 544 U.S. 904 (2005) (Section 9721 provides the jurisdictional basis for the Combined Fund to enforce the obligation to pay amounts owed under Section 9704). In other words, under the plain language of Section 9721, the Court has the same authority to enforce amounts required to be paid by Consol in benefits under Section 9711 as it has to enforce a last signatory operator’s obligation to pay premiums and other amounts to the 1992 Plan under Section 9712. Thus, the Trustees of the 1992 Plan have standing to bring this action. Furthermore, Section 9721 provides the Court with subject matter to resolve this matter. CONCLUSION For the reasons stated above, the Plaintiffs respectfully request that their Motion for Summary Judgment be granted. Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 17 of 18 PageID #: 1018 17 Respectfully submitted, /s/ Gary A. Collias Gary A. Collias, Esq. (WVSB #784) Collias Law Office 122 Capitol Street, P.O. Box 70007 Charleston, WV 25301-007 gacollias@colliaslaw.com John R. Mooney, Esq. (DCB #375886) Mooney, Green, Saindon, Murphy & Welch, P.C. 1920 L Street, N.W., Suite 400 202-783-0010 jmooney@mooneygreen.com Glenda S. Finch, Esq. (DCB #418206) Larry D. Newsome, Esq. (DCB #254763) UMWA Health & Retirement Funds Office of the General Counsel 2121 K Street, N.W., Suite 350 Washington, DC 20037 202-521-2222 Counsel for Plaintiffs Case 2:17-cv-02091 Document 35 Filed 11/03/17 Page 18 of 18 PageID #: 1019