Krupa et al v. Richard J. Badolato

MOTION to Dismiss for Lack of Jurisdiction

D.N.J.February 2, 2017

CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street PO Box 106 Trenton, NJ 08625-0106 Attorney for Defendants By: Amy Chung Deputy Attorney General (609) 633-8559 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ERIN KRUPA et al., Plaintiffs, v. CHRISTOPHER S. PORRINO, in his official capacity as Attorney General of the State of New Jersey, et al., Defendants. : : CASE NUMBER: 2:16-cv-04637-SDW-LDW : MOTION DAY: MARCH 6, 2017 : ORAL ARGUMENT REQUESTED : : : NOTICE OF MOTION TO DISMISS UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(B)(1) AND 12(B)(6) PLEASE TAKE NOTICE that on March 6, 2017, at 9:30 a.m., or as soon thereafter as counsel may be heard, the undersigned will move the Court, upon the accompanying brief, Certification of David J. Pointer, and Certification of Amy Chung, for an order dismissing the Second Amended Complaint, with prejudice, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Case 2:16-cv-04637-SDW-LDW Document 34 Filed 02/02/17 Page 1 of 2 PageID: 350 2 PLEASE TAKE FURTHER NOTICE that defendants respectfully request oral argument on this motion under Local Civil Rule 78.1(b). A proposed order is attached to this notice. CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: s/ Amy Chung Amy Chung Deputy Attorney General Dated: February 2, 2017 TO: John A. Beranbaum, Esq. BERANBAUM MENKEN LLP 80 Pine Street, 33rd Floor New York, NY 10005 Attorney for Plaintiffs Case 2:16-cv-04637-SDW-LDW Document 34 Filed 02/02/17 Page 2 of 2 PageID: 351 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ERIN KRUPA et al., Plaintiffs, v. CHRISTOPHER S. PORRINO, in his official capacity as Attorney General of the State of New Jersey, et al., Defendants. : : CASE NUMBER: 2:16-cv-04637-SDW-LDW : : : : : [PROPOSED] ORDER Upon consideration of plaintiffs’ motion for a preliminary injunction under Federal Rule of Civil Procedure 65(a), defendants’ motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), any responses thereto, the arguments of counsel, and for good cause shown; IT IS HEREBY ORDERED that defendants’ motion is granted and that the Second Amended Complaint, dated November 1, 2016, is dismissed with prejudice and that plaintiffs’ motion is denied as moot. ______________________________ _____________________________ DATE United States District Judge Case 2:16-cv-04637-SDW-LDW Document 34-1 Filed 02/02/17 Page 1 of 1 PageID: 352 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street PO Box 106 Trenton, NJ 08625-0106 Attorney for Defendants By: Amy Chung Deputy Attorney General (609) 633-8559 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ERIN KRUPA et al., Plaintiffs, v. CHRISTOPHER S. PORRINO, in his official capacity as Attorney General of the State of New Jersey, et al., Defendants. : : CASE NUMBER: 2:16-cv-04637-SDW-LDW : MOTION DAY: MARCH 6, 2017 : ORAL ARGUMENT REQUESTED : : : BRIEF OF DEFENDANTS IN SUPPORT OF MOTION TO DISMISS UNDER FEDERAL RULES OF CIVIL PROCEDURE 12(B)(1) AND 12(B)(6) AND IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 1 of 44 PageID: 353 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................... iii PRELIMINARY STATEMENT ................................... 1 PROCEDURAL HISTORY ...................................... 2 STATEMENT OF FACTS ...................................... 5 STANDARD OF REVIEW ...................................... 9 A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) ................... 9 B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) ................... 10 C. Motion for a Preliminary Injunction ........... 11 ARGUMENT ................................................ 12 POINT I PLAINTIFFS’ FEDERAL AND STATE CLAIMS AGAINST THE COMMISSIONS AND THEIR STATE CLAIM AGAINST ALL DEFENDANTS ARE BARRED BY ELEVENTH AMENDMENT IMMUNITY ................................................ 12 POINT II THE NON-COMMISSION MEMBERS HAVE NO ROLE IN DECIDING HEALTH BENEFITS COVERAGE MATTERS AND SHOULD BE DISMISSED WITH PREJUDICE FROM THIS ACTION ............................................. 15 POINT III PLAINTIFFS ALLEGE NO INJURY IN FACT CAUSED BY THE COMMISSION MEMBERS AND THEREFORE LACK STANDING TO SUE .................................................. 17 A. The SHBC Members .............................. 19 B. The SEHBC Members ............................. 20 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 2 of 44 PageID: 354 ii Page POINT IV COVERAGE UNDER THE PLANS IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT ............................................... 21 A. The Plans Do Not Intentionally Discriminate Against Infertile Women in Same-Sex Relationships or Classify Them Separately from Infertile Women in Heterosexual Relationships ................................. 22 B. There Is No Fundamental Right of Access to Reproductive Healthcare .................... 24 C. No Suspect or Quasi-Suspect Classification Is at Issue .................... 26 D. Even If this Court Finds that the Plans Differentiate Between Two Groups, the Eligibility Requirements for Coverage Are Rationally Related to Legitimate State Interests ..................................... 28 POINT V PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIM FAILS BECAUSE IT DOES NOT SURVIVE RATIONAL BASIS SCRUTINY ................................................ 30 POINT VI PLAINTIFFS HAVE NOT MET THE ELEMENTS REQUIRED FOR THIS COURT TO IMPOSE A PRELIMINARY INJUNCTION ........... 34 CONCLUSION .............................................. 36 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 3 of 44 PageID: 355 iii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Am. Express Travel Related Servs., Inc. v. Sidamon -Eristoff, 669 F.3d 359 (3d Cir.), cert. denied, 133 S. Ct. 345 (2012) .........................................33 Armour v. City of Indianapolis, 566 U.S. 673 (2012) .......................................21, 28 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................10 Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) ...........................................29 Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) ....................................24-25, 32 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ....................................18, 19 Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) ........................12 Cortez v. Main, No. 12-5659 (SRC), 2013 U.S. Dist. LEXIS 60551 (D.N.J. Apr. 29, 2013) ............................26 Davis v. Wells Fargo, 824 F.3d 333 (3d Cir. 2016) ...........9-10 Del. Strong Families v. Attorney Gen. of Del., 793 F.3d 304 (3d Cir. 2015), cert. denied, 136 S. Ct. 2376 (2016) .....................................11-12 Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426 (1948) ...........................................35 Eisenstadt v. Baird, 405 U.S. 438 (1972) ......................31 FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) ..............33 Finkelman v. NFL, 810 F.3d 187 (3d Cir. 2016) ..........18-19, 20 1st Westco Corp. v. School Dist. of Phila., 6 F.3d 108 (3d Cir. 1993) ..............................15-16, 17 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 4 of 44 PageID: 356 iv Page(s) Harris v. McRae, 448 U.S. 297 (1980) .......................30-31 Hassan v. City of New York, 804 F.3d 277 (3d Cir. 2015) ................................................21 Heffner v. Murphy, 745 F.3d 56 (3d Cir.), cert. denied, 135 S. Ct. 220 (2014) ........................32-33 Heller v. Doe, 509 U.S. 312 (1993) ............................28 Howlett v. Rose, 496 U.S. 356 (1990) .......................13-14 J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127 (1994) ..............27 Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553 (3d Cir. 2009) ................................34-35 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...........................................18 Lum v. Bank of Am., 361 F.3d 217 (3d Cir.), cert. denied, 543 U.S. 918 (2004) .............................11 McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 (1936) ...........................................10 Marion v. TDI, Inc., 591 F.3d 137 (3d Cir. 2010), cert. denied, 562 U.S. 1218 (2011) ............................18 Michtavi v. Scism, 808 F.3d 203 (3d Cir. 2015) ................26 Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005) ...........................................20-21 Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578 (3d Cir. 2002) ................................................11 NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151 (3d Cir. 1999) ...................................12 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ..................30 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 5 of 44 PageID: 357 v Page(s) Ondo v. City of Cleveland, 795 F.3d 597 (6th Cir. 2015) ...............................................27 Paul v. Davis, 424 U.S. 693 (1976) ............................31 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) .........................................14-15 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ...........................................30 Price-Cornelison v. Brooks, 524 F.3d 1103 (10th Cir. 2008) ..............................................26 Quern v. Jordan, 440 U.S. 332 (1979) ......................13, 15 Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011), cert. denied, 132 S. Ct. 2395 (2012) ........................................18 Rizzo v. Goode, 423 U.S. 362 (1976) ...........................35 Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) ................................................17 Romer v. Evans, 517 U.S. 620 (1996) ...........................26 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) ...........................................25 United States v. Windsor, 133 S. Ct. 2675 (2013) ........................................27 United States ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837 (3d Cir. 2014) ..................10-11 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ........................................17-18 Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247 (2011) ...........................................15 Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989) ........................................14, 15 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 6 of 44 PageID: 358 vi Page(s) U.S. CONSTITUTION U.S. Const. art. III, § 2 .....................................17 U.S. Const. amend. XIV, § 1 ...............................21, 30 FEDERAL STATUTE 42 U.S.C. § 1983 ..............................................13 STATE CASES Barone v. Dep’t of Human Services, 526 A.2d 1055 (N.J. 1987) ...................................................29 Beaver v. Magellan Health Servs., Inc., 80 A.3d 1160 (N.J. Super. Ct. App. Div. 2013), certif. denied, 88 A.3d 190 (N.J. 2014) .......................13 Bd. of Educ. of Newark v. N.J. Dep’t of Treasury, 678 A.2d 660 (N.J. 1996) ......................................13 Cypress Point Condo. Ass’n v. Adria Towers, L.L.C., 143 A.3d 273 (N.J. 2016) ......................................23 In re Expungement Petition of J.S., 121 A.3d 322 (N.J. 2015) ......................................23 STATE STATUTES AND RULES N.J.S.A. 17B:27-46.1x ......................................7, 22 N.J.S.A. 52:14-17.25 ...........................................6 N.J.S.A. 52:14-17.27(a) ....................................12-13 N.J.S.A. 52:14-17.30 ...........................................6 N.J.S.A. 52:14-17.46 ...........................................6 N.J.S.A. 52:14-17.46.3(a) .....................................13 N.J.S.A. 52:14-17.46.4 ........................................13 N.J.S.A. 52:14-17.46.9 .........................................6 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 7 of 44 PageID: 359 vii Page(s) N.J.A.C. 17:9 .................................................13 N.J.A.C. 17:9-1.1 ..............................................6 N.J.A.C. 17:9-1.3 .......................................7, 16-17 N.J.A.C. 17:9-1.3(a) .........................................8-9 N.J.A.C. 17:9-1.3(d)(2) ........................................9 N.J.A.C. 17:9-2.14 ...........................................6-7 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 8 of 44 PageID: 360 PRELIMINARY STATEMENT Plaintiffs, four persons covered by health benefits plans for public employees who seek to “extend the protections of [New Jersey]’s infertility insurance mandate to women in same-sex relationships,” have filed a Second Amended Complaint (the “SAC”) (Doc. 28) that adds as defendants two State entities -- the State Health Benefits Commission and the School Employees’ Health Benefits Commission (collectively, the “Commissions”) -- and fourteen individuals in their official capacities. The SAC is no more viable than the original Complaint and should be dismissed with prejudice. First, the Commissions have sovereign immunity in this court, and the claims against them are barred by the Eleventh Amendment. The new state constitutional claim that Plaintiffs try to bootstrap to their old federal constitutional claims is also barred by the Eleventh Amendment. Second, three individual defendants (including the original defendant) (collectively, the “Non-Commission Members”) have no role whatsoever in deciding health benefits coverage matters for public employees, so the SAC fails to state a claim against them. Third, Plaintiffs have no standing to sue the twelve individual defendants who are members of the Commissions Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 9 of 44 PageID: 361 2 (collectively, the “Commission Members”), because they allege no injury in fact caused by the Commission Members. Fourth, the two public employee health benefits plans at issue (collectively, the “Plans”) do not discriminate in the manner alleged because they provide equal access to insurance coverage for medical services to treat persons diagnosed with infertility and thus do not violate the Equal Protection Clause or the Due Process Clause of the United States Constitution. Because the SAC should be dismissed with prejudice in its entirety, Plaintiffs’ request for injunctive relief also should be denied. PROCEDURAL HISTORY On August 1, 2016, Plaintiffs filed suit in this court against defendant Richard J. Badolato, Commissioner of the New Jersey Department of Banking and Insurance (the “DOBI Commissioner”), in both his official and individual capacities. Compl. ¶ 9 (Doc. 1). The Complaint alleged federal Equal Protection and Due Process violations by the DOBI Commissioner and sought (1) a declaratory judgment, (2) a preliminary and permanent injunction, and (3) compensatory and punitive damages. Id. ¶¶ 69-93 (Doc. 1). Plaintiffs also filed a motion for a preliminary injunction on August 1, 2016. (Doc. 2). By Consent Order Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 10 of 44 PageID: 362 3 entered on September 7, 2016, the hearing date of this motion was adjourned to October 3, 2016. (Doc. 8). On September 19, 2016, the DOBI Commissioner filed a motion to dismiss the Complaint. (Doc. 14). By Consent Order entered on September 23, 2016, the hearing date of the pending motions was adjourned to November 7, 2016. (Doc. 19). On October 13, 2016, Plaintiffs filed an Amended Complaint (Doc. 20); on October 25, 2016, the pending motions were withdrawn (Doc. 27). On November 1, 2016, Plaintiffs filed the SAC, which alleged federal Equal Protection and Due Process violations by the DOBI Commissioner as well as by:  Christopher S. Porrino, in his official capacity as Attorney General of the State of New Jersey (the “State”);  Florence J. Sheppard, in her official capacity as Acting Director of the New Jersey Division of Pensions and Benefits (the “Division”), “which oversees the implementation and operation of the New Jersey State Health Benefits and School Employees’ Health Benefits Programs (‘SHBP’ and ‘SEHBP’),” id. ¶ 11 (Doc. 28); Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 11 of 44 PageID: 363 4  the State Health Benefits Commission (the “SHBC”), which is responsible for operation of the SHBP;  the five members of the SHBC in their official capacity (the “SHBC Members”);  the School Employees’ Health Benefits Commission (the “SEHBC”), which is responsible for operation of the SEHBP; and  the seven members of the SEHBC in their official capacity (the “SEHBC Members”).1 The SAC also alleged sex and sexual orientation discrimination in violation of the New Jersey Constitution. Id. ¶¶ 105-114 (Third Cause of Action) (Doc. 28). Plaintiffs still seek (1) a declaratory judgment, (2) a preliminary and permanent injunction, and (3) compensatory and punitive damages. Id. at 23-24 (Doc. 28). On November 3, 2016, Plaintiffs renewed their motion for a preliminary injunction. (Doc. 29). By Consent Order entered on December 22, 2016, the hearing date of this motion was adjourned to February 21, 2017. (Doc. 33). 1 The SHBC Members and the SEHBC Members are incorrectly pleaded to be “members of the SHBP [sic]” and “members of the SEHBP [sic],” respectively. SAC ¶¶ 13, 15 (Doc. 28). Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 12 of 44 PageID: 364 5 STATEMENT OF FACTS The SHBP, established in 1961, offers (1) medical and prescription drug coverage to qualified State and local government public employees, retirees, and eligible dependents; and (2) dental coverage to qualified State and local government/education public employees, retirees, and eligible dependents. See Certif. of David J. Pointer, dated Sept. 13, 2016 (“Pointer Certif.”) ¶ 8 (Doc. 14-2). The SEHBP, established in 2007, offers medical and prescription drug coverage to qualified local education public employees, retirees, and eligible dependents. See id. ¶ 11 (Doc. 14-2). Plaintiffs, four female New Jersey residents in same- sex relationships, see Compl. ¶ 2 (Doc. 1), are all educators and public employees who are enrolled in the SHBP or the SEHBP. Erin Krupa is a professor of mathematics education and Marianne Krupa is a second-grade teacher in Bergen County. Decl. of Erin Krupa, dated July 8, 2016, ¶¶ 4-5 (Doc. 29-2). Sol Mejias is a special education teacher in Jersey City. Decl. of Sol Mejias, dated July 14, 2016, ¶ 4 (Doc. 29-3). Sarah Mills is also a New Jersey public school teacher. Decl. of Sarah Mills, dated July 21, 2016, ¶ 4 (Doc. 29-4). Erin Krupa is enrolled in NJ DIRECT, a Preferred Provider Organization health plan, through the SHBP; Marianne Krupa, Sol Mejias, and Sarah Mills are enrolled in NJ DIRECT Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 13 of 44 PageID: 365 6 through the SEHBP. SAC ¶¶ 20, 45, 57 (Doc. 28). NJ DIRECT is administered by Horizon Healthcare Services, Inc., doing business as Horizon Blue Cross Blue Shield of New Jersey (“Horizon”) for the Division. SAC ¶ 24 (Doc. 28). The Plans self-fund the coverage offered to Plaintiffs under NJ DIRECT. Each Plan has a fund of money comprised of employee and employer contributions, which is used to pay claims. N.J.S.A. 52:14-17.30 (SHBP); N.J.S.A. 52:14-17.46.9 (SEHBP). An administrator, in this case Horizon, is contracted by the State to process and pay claims using the Plans’ funds. There is no transfer of risk of loss or gain to Horizon, and therefore Horizon does not act as an insurer in this arrangement. Horizon is merely paid a fee for its provision of its services in administering the Plans. The Plans are governed by (1) the statutes and regulations applicable to the Plans,2 (2) the NJ DIRECT Member Handbook (the “Member Handbook”), and (3) Horizon’s policies. See N.J.A.C. 17:9-2.14; Pointer Certif. ¶¶ 10, 13 (Doc. 14-2). The Plans publish and annually update the Member Handbook, which “supplements the master contracts and contains the specific 2 The SHBP Act, N.J.S.A. 52:14-17.25 et seq., and its implementing rules, N.J.A.C. 17:9-1.1 et seq., govern the operation and administration of the SHBP. The SEHBP Act, N.J.S.A. 52:14-17.46 et seq., and the rules at N.J.A.C. 17:9-1.1 et seq., govern the operation and administration of the SEHBP. Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 14 of 44 PageID: 366 7 provisions for services to be covered and those which are excluded.” N.J.A.C. 17:9-2.14. Regarding infertility treatment, the Member Handbook states that “NJ DIRECT will follow the New Jersey State Mandate for Infertility” (i.e., N.J.S.A. 17B:27-46.1x (the “Infertility Mandate”)). SAC Ex. A (Doc. 28-1). The Member Handbook further provides under “Eligibility Requirements” that: Infertility services are covered for any abnormal function of the reproductive systems such that you are not able to:  Impregnate another person;  Conceive after two years if the female partner is under 35 years old, or after one year if the female partner is 35 years old or older, or if one partner is considered medically sterile; or  Carry a pregnancy to live birth. In vitro fertilization, gamete transfer and zygote transfer services are covered only:  If you have used all reasonable, less expensive and medically appropriate treatment and are still unable to become pregnant or carry a pregnancy;  Up to four completed egg retrievals combined. Egg retrievals covered by another plan or the member (outside of the SHBP/SEHBP) will not be applied toward the SHBP/SEHBP limit for infertility services; and  If you are 45 years old or younger. Id.; Certif. of Amy Chung, dated Feb. 2, 2017, Ex. A. The Plans have a process for appealing adverse claims decisions that is governed by regulation. N.J.A.C. 17:9-1.3. First, a member may file a grievance with Horizon. See Pointer Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 15 of 44 PageID: 367 8 Certif. ¶ 14 (Doc. 14-2). Erin Krupa is the only Plaintiff who alleges that she did anything to appeal Horizon’s initial denial of coverage; “she asked her doctor to do whatever she could do to help them get coverage” and her doctor wrote a letter to Horizon, which resulted in an “exten[sion of] infertility coverage to [herself]” and also to Marianne Krupa. SAC ¶¶ 35- 37, 41 (Doc. 28). Sol Mejias and Sarah Mills do not allege that they made any attempt to initiate Horizon’s internal appeal process after being denied coverage by Horizon. See id. ¶¶ 49, 66 (Doc. 28). The Member Handbook defines an adverse benefit determination involving medical judgment broadly, and explains that such determinations may be appealed through three levels of review. See Pointer Certif. ¶¶ 15-16 (Doc. 14-2). The third such level of review is an external appeal to an Independent Review Organization (the “IRO”) that may be requested within four months from a final adverse determination of an appeal to Horizon. Id. ¶¶ 16-17 (Doc. 14-2). The IRO reviews claims de novo and is not bound by any decisions or conclusions reached during the Plan’s internal claims and appeal processes. See id. ¶ 17 (Doc. 14-2). The IRO’s decision is binding on the Plan. If Plaintiffs utilized these internal and external review procedures available through Horizon and did not achieve the desired result, they would be entitled to appeal to the Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 16 of 44 PageID: 368 9 relevant Commission. N.J.A.C. 17:9-1.3(a); see Pointer Certif. ¶ 18 (Doc. 14-2). If the appeal involved disputed facts, the Commission would transmit the matter to the Office of Administrative Law for an administrative hearing and issuance of “an initial decision that the Commission may adopt, reject or modify.” N.J.A.C. 17:9-1.3(d)(2). The Commission’s final administrative determination “may then be appealed to the Superior Court, Appellate Division.” Id. Despite this avenue for reviewing denials of coverage, no Plaintiff alleges that she pursued an appeal of any denial of coverage to a Commission for a final administrative determination. STANDARD OF REVIEW A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) When considering a motion to dismiss under Rule 12(b)(1), a district court must distinguish between facial and factual challenges to its subject matter jurisdiction. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial challenge does not “disput[e] the facts alleged in the complaint,” which are taken “as true” but arguably fail to plead jurisdiction properly. Id. (quotation omitted). A factual challenge, by contrast, attacks the complaint’s factual allegations regarding jurisdiction and “present[s] competing facts . . . outside the pleadings,” which the court may “weigh Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 17 of 44 PageID: 369 10 and consider.” Id. (quotation omitted). “[N]o presumptive truthfulness attaches to [the] plaintiff’s allegations” for purposes of a factual challenge. Id. (quotation omitted). The plaintiff bears the burden of proving jurisdiction against both facial and factual challenges. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) When considering a motion to dismiss under Rule 12(b)(6), courts accept the plaintiff’s factual allegations as true. However, the plaintiff’s legal conclusions and conclusory statements are not entitled to the same assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. The “plausibility” standard is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. The determination of plausibility is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Courts may deny leave to amend “where the plaintiff was put on notice as to the deficiencies in his complaint, but chose not to resolve them.” United States ex Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 18 of 44 PageID: 370 11 rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 849 (3d Cir. 2014) (quotation omitted). When evaluating Rule 12(b)(6) motions, “courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.” Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir.), cert. denied, 543 U.S. 918 (2004). “A document forms the basis of a claim if the document is integral to or explicitly relied upon in the complaint.” Id. (quotation omitted). “The purpose of this rule is to avoid the situation where a plaintiff with a legally deficient claim that is based on a particular document can avoid dismissal of that claim by failing to attach the relied upon document.” Id. C. Motion for a Preliminary Injunction Preliminary injunctive relief “is an extraordinary remedy, which should be granted only in limited circumstances.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 586 (3d Cir. 2002) (quotation omitted). A plaintiff seeking a preliminary injunction “must show: 1) likelihood of success on the merits; 2) that he is likely to suffer irreparable harm; 3) that denying relief would injure the plaintiff more than an injunction would harm the defendant; and 4) that granting relief would serve the public interest.” Del. Strong Families v. Attorney Gen. of Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 19 of 44 PageID: 371 12 Del., 793 F.3d 304, 308 (3d Cir. 2015), cert. denied, 136 S. Ct. 2376 (2016). The “failure to establish any element . . . renders a preliminary injunction inappropriate.” NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). For the same reasons that require dismissal of the SAC, Plaintiffs cannot succeed on the merits of their claims and their request for a preliminary injunction should be denied. ARGUMENT POINT I PLAINTIFFS’ FEDERAL AND STATE CLAIMS AGAINST THE COMMISSIONS AND THEIR STATE CLAIM AGAINST ALL DEFENDANTS ARE BARRED BY ELEVENTH AMENDMENT IMMUNITY. As a general rule, the principle of sovereign immunity reflected in the Eleventh Amendment protects States and state officials from suits brought in federal court. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669-70 (1999). There are “only two circumstances in which an individual may sue a State:” (1) where the United States Congress has “authorize[d] such a suit in the exercise of its power to enforce the Fourteenth Amendment” and (2) where a state has “waive[d] its sovereign immunity by consenting to suit.” Id. at 670. As a threshold matter, the Commissions are part of the State. They were established by statute and function within the Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 20 of 44 PageID: 372 13 Division. N.J.S.A. 52:14-17.27(a) (SHBC); N.J.S.A. 52:14- 17.46.3(a)-17.46.4 (SEHBC); see Bd. of Educ. of Newark v. N.J. Dep’t of Treasury, 678 A.2d 660, 662 (N.J. 1996). They have (and have exercised) the authority to “establish rules and regulations.” N.J.S.A. 52:14-17.27(a) (SHBC); N.J.S.A. 52:14- 17.46.4 (SEHBC); see N.J.A.C. 17:9 (rules for Plans). Their decisions are final administrative determinations appealable under New Jersey Rule 2:2-3(a)(2) to the New Jersey Superior Court, Appellate Division. See, e.g., Beaver v. Magellan Health Servs., Inc., 80 A.3d 1160, 1165 (N.J. Super. Ct. App. Div. 2013) (Commissions’ “statutory and regulatory scheme . . . requires disputes over eligibility and benefits to be submitted first to the [Commissions], and, only thereafter, to [the appellate] court for resolution”), certif. denied, 88 A.3d 190 (N.J. 2014). Plaintiffs want to challenge the constitutionality of the Infertility Mandate and have sued the Commissions (and various individuals) under 42 U.S.C. § 1983, which provides a cause of action for alleged constitutional violations committed by persons acting under color of state law. Id. However, the United States Congress did not “intend[] by the general language of § 1983 to override the traditional sovereign immunity of the States.” Quern v. Jordan, 440 U.S. 332, 341 (1979). A “State and arms of the State” are “not a ‘person’ within the meaning of Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 21 of 44 PageID: 373 14 § 1983” and therefore “are not subject to suit under § 1983 in either federal court or state court.” Howlett v. Rose, 496 U.S. 356, 365 (1990); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (Congress did not create “a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties”). Nor could Plaintiffs allege (indeed, they have not) that either of the Commissions waived its sovereign immunity. Plaintiffs’ claims against the Commissions therefore are barred by the Eleventh Amendment and should be dismissed with prejudice. Plaintiffs’ claim based on an alleged violation of the New Jersey Constitution, see SAC ¶¶ 105-114 (Third Cause of Action) (Doc. 28), is likewise barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984) (“[A] claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.”).3 Indeed, “it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state 3 Plaintiffs no longer seek damages for their federal claims. Compare SAC ¶¶ 95, 104 (Doc. 28), with Compl. ¶¶ 82, 92 (Doc. 1). They do “seek compensatory and punitive damages from [all] Defendants” for their state claim, SAC ¶ 114 (Doc. 28), but such damages are barred by the Eleventh Amendment. Pennhurst, 465 U.S. at 122 (“[A] suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court.”) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 22 of 44 PageID: 374 15 officials on how to conform their conduct to state law.” Id. at 106. Whether the New Jersey Constitution was or is being violated in any way is a question of state law that can and should be adjudicated in state court. Accordingly, the Third Cause of Action should be dismissed with prejudice. POINT II THE NON-COMMISSION MEMBERS HAVE NO ROLE IN DECIDING HEALTH BENEFITS COVERAGE MATTERS AND SHOULD BE DISMISSED WITH PREJUDICE FROM THIS ACTION. An individual may sue a state official in his or her official capacity for prospective injunctive and declaratory relief to remedy an ongoing violation of federal law. Will, 491 U.S. at 71 n.10 (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)); Quern, 440 U.S. at 337 (federal court “may enjoin state officials to conform their future conduct to the requirements of federal law”). Such an action is based on the principle, sometimes referred to as a “fiction,” that a state official commanded by a federal court “to do nothing more than refrain from violating federal law . . . is not the State for sovereign- immunity purposes.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011). However, where the connection between state officials and federal constitutional claims “is highly attenuated,” the state officials may not “be conscripted as Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 23 of 44 PageID: 375 16 proxies for the state to attach liability to them.” 1st Westco Corp. v. School Dist. of Phila., 6 F.3d 108, 112 (3d Cir. 1993). Regarding the Non-Commission Members, Plaintiffs allege the following:  the Attorney General “is responsible for enforcing the provisions of the Constitution and all other laws of the State,” SAC ¶ 9 (Doc. 28);  the DOBI Commissioner “is responsible for overseeing the administration of all insurance- related state statutes and promulgating rules and regulations to effectuate them,” id. ¶ 10 (Doc. 28);4 and  the Division Director “oversees the implementation and operation of the [Plans],” id. ¶ 11 (Doc. 28). Other than these general statements, Plaintiffs make no factual allegation against the Non-Commission Members. In particular, they do not (and could not) claim that the Non- Commission Members are responsible for any denial of coverage to them or have the power to remedy such a denial. See N.J.A.C. 4 As previously briefed, the DOBI Commissioner does not have jurisdiction over the Plans or the alleged coverage decisions challenged by Plaintiffs. Br. in Opp’n to Pls.’ Mot. for Prelim. Inj. & in Supp. of Def.’s Mot. to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) & 12(b)(6), dated Sept. 19, 2016 (“Def.’s Br.”), at 11-17 (Doc. 13). This previous brief is incorporated by reference in the present brief. Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 24 of 44 PageID: 376 17 17:9-1.3 (decisions of carrier appealed first within Plans and then to external reviewer, Commissions, and appellate court). The Non-Commission Members are not proper defendants in this lawsuit. See Westco, 6 F.3d at 115 (holding that “general duty [of Pennsylvania’s Secretary of Education and Attorney General] to uphold the laws of Pennsylvania, standing alone,” was insufficient “to render them proper defendants in this lawsuit”); Rode v. Dellarciprete, 845 F.2d 1195, 1209 (3d Cir. 1988) (finding “no reason to strain the Young doctrine to reach Governor” as plaintiff “was able to challenge the constitutionality of the regulation by naming [Pennsylvania State Police] administrators” and affirming dismissal of Governor and Attorney General). Accordingly, the Non-Commission Members should be dismissed with prejudice. POINT III PLAINTIFFS ALLEGE NO INJURY IN FACT CAUSED BY THE COMMISSION MEMBERS AND THEREFORE LACK STANDING TO SUE. Under Article III of the United States Constitution, this court’s jurisdiction is limited to “Cases” and “Controversies.” U.S. Const. art. III, § 2. This court does not have “an unconditioned authority to determine the constitutionality of legislative or executive acts” or to serve as a “judicial version[] of college debating forums.” Valley Forge Christian Coll. v. Ams. United for Separation of Church & Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 25 of 44 PageID: 377 18 State, Inc., 454 U.S. 464, 471, 473 (1982). Rather, it may decide only those constitutional questions that are “raised by a party whose interests entitle [her] to raise [them].” Id. at 474 (quotation omitted). Standing to sue is a prerequisite to Article III jurisdiction and must be established by the plaintiff “at the pleading stage.” Reilly v. Ceridian Corp., 664 F.3d 38, 41 (3d Cir. 2011), cert. denied, 132 S. Ct. 2395 (2012); see also Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013) (“The party invoking federal jurisdiction bears the burden of establishing standing.”) (quotation omitted). “[T]he standing inquiry” is “something separate from” the merits of Plaintiffs’ claims. Marion v. TDI, Inc., 591 F.3d 137, 149 (3d Cir. 2010), cert. denied, 562 U.S. 1218 (2011). “To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper, 133 S. Ct. at 1147 (quotation omitted). “[T]he injury-in-fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) (quotation omitted). “Plaintiffs do not allege an injury-in-fact when they rely on a chain of contingencies or mere speculation.” Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 26 of 44 PageID: 378 19 Finkelman v. NFL, 810 F.3d 187, 193 (3d Cir. 2016) (quotation omitted). The Supreme Court has “repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.” Clapper, 133 S. Ct. at 1147 (quotation omitted). Here, Plaintiffs’ alleged injury is “being denied” infertility benefits by Horizon -- not the Commissions or the Commission Members. SAC ¶¶ 24, 27-28, 30, 49-50, 59, 62-66, 68 (Doc. 28). But any denial by Horizon is not final (unless a member fails to exercise her administrative remedies); the denial may be appealed to the Commissions and then to the Appellate Division. See supra at 8-9, 13. Any suggestion that the Commissions would deny Plaintiffs’ appeals of Horizon’s denials is speculative and does not satisfy the requirements of Article III. A. The SHBC Members With respect to Erin Krupa (the only Plaintiff who is a member of the SHBP), see supra at 5, the SAC alleges that Horizon (not the SHBC or the SHBC Members) denied her infertility benefits in a letter stating that “[Horizon] policy based on the New Jersey mandate requires that a patient age[d] less than 35 years fail to conceive after two years of trying.” Id. ¶¶ 24-25 (emphasis added) (Doc. 28). The SAC further Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 27 of 44 PageID: 379 20 alleges that Horizon ultimately “extended infertility coverage to Erin” Krupa and also “extended coverage” under Erin Krupa’s SHBP policy for Marianne Krupa to carry Erin Krupa’s embryo. Id. ¶¶ 36, 40-41 (Doc. 28). Erin Krupa therefore has no injury in fact and lacks standing to sue the SHBC Members. See Finkelman, 810 F.3d at 195 (no standing where plaintiff “suffered no out-of-pocket loss”). Because none of the remaining Plaintiffs is covered by the SHBP, no Plaintiff has standing to sue the SHBC Members, who should be dismissed from this action with prejudice. B. The SEHBC Members With respect to Marianne Krupa, Sol Mejias, and Sarah Mills, who are covered by the SEHBP, see supra at 5-6, the SAC alleges that they “received a denial letter from [Horizon]” and communicated with various Horizon employees “about the reason for the denial of coverage.” Id. ¶¶ 49, 62-63, 65 (emphases added) (Doc. 28). It does not allege any action by the SEHBC or the SEHBC Members. Plaintiffs therefore have no injury in fact that was caused by those defendants and lack standing to sue them. Cf. Nova Health Sys. v. Gandy, 416 F.3d 1149, 1157 (10th Cir. 2005) (no standing where “it is at best merely speculative whether these defendants caused Nova’s decision to require parental consent, with a concomitant prospective loss of Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 28 of 44 PageID: 380 21 patients that flowed from that decision”). The SEHBC Members therefore should be dismissed from this action with prejudice. POINT IV COVERAGE UNDER THE PLANS IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT. The United States Constitution provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “To state an equal-protection claim, Plaintiffs must allege (and ultimately prove) intentional discrimination.” Hassan v. City of New York, 804 F.3d 277, 294 (3d Cir. 2015) (quotation omitted). “[A] classification neither involving fundamental rights nor proceeding along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Armour v. City of Indianapolis, 566 U.S. 673, 680 (2012) (quotation omitted). Here, Plaintiffs’ theory is that the Plans classify infertile women in same-sex relationships separately from infertile women in heterosexual relationships. This theory is factually inaccurate, because there is no such classification. Even if there were a classification, it would not involve a fundamental right or a suspect class. Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 29 of 44 PageID: 381 22 A. The Plans Do Not Intentionally Discriminate Against Infertile Women in Same-Sex Relationships or Classify Them Separately from Infertile Women in Heterosexual Relationships. As previously briefed, the Infertility Mandate does not apply to members of the Plans such as Plaintiffs. Def’s Br. at 11-17 (Doc. 13). Instead, Plaintiffs’ coverage is determined by the Plan terms as set forth in the Member Handbook, which states that “NJ DIRECT will follow the [Infertility] Mandate.” SAC Ex. A (Doc. 28-1). The Member Handbook further provides under “Eligibility Requirements” that: Infertility services are covered for any abnormal function of the reproductive systems such that you are not able to:  Impregnate another person;  Conceive after two years if the female partner is under 35 years old, or after one year if the female partner is 35 years old or older, or if one partner is considered medically sterile; or  Carry a pregnancy to live birth. Id. The Member Handbook, unlike the Infertility Mandate, does not refer to “unprotected intercourse” at all. See N.J.S.A. 17B:27-46.1x(a). On its face, it does not require a woman to have sexual intercourse with a man to prove she is infertile and entitled to infertility treatments. The triggers for infertility treatment coverage (inability to conceive after one year or two years, medical sterility, or inability to carry a pregnancy to live birth) apply equally to all women. This Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 30 of 44 PageID: 382 23 undisputed fact, which appears nowhere in the SAC5 or Plaintiffs’ brief, is dispositive; no discrimination could be intended when the language that actually applies to Plaintiffs does not even mention unprotected intercourse. Because the Plans do not classify infertile women in same-sex relationships separately from infertile women in heterosexual relationships, Plaintiffs have no constitutional claims. To the extent that the Member Handbook arguably is inconsistent in “follow[ing] the [Infertility] Mandate” and having Eligibility Requirements that are broader than the Infertility Mandate, the broader language controls. See Cypress Point Condo. Ass’n v. Adria Towers, L.L.C., 143 A.3d 273, 280 (N.J. 2016) (general rule of construction for insurance contracts is “that if the controlling language of a policy will support two meanings, one favorable to the insurer and the other to the insured, the interpretation favoring coverage should be applied”); cf. In re Expungement Petition of J.S., 121 A.3d 322, 332 (N.J. 2015) (“To resolve inconsistencies among different sections of [a statute], the Court must seek the interpretation that will make the most consistent whole of the statute.”) (quotation omitted). Plaintiffs do not (and could not) deny 5 The SAC repeatedly quotes the Member Handbook’s statement that “NJ DIRECT will follow the [Infertility] Mandate” and attaches “[t]he relevant portion of this handbook,” but never mentions the Member Handbook’s “Eligibility Requirements” language. SAC ¶¶ 20 & n.7, 45 & n.8, 57 & n.9 (Doc. 28). Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 31 of 44 PageID: 383 24 that Erin Krupa, Marianne Krupa, and Sol Mejias are covered by the Eligibility Requirements.6 Sarah Mills is not covered because she is 32 and has been trying to conceive for only ten months, see SAC ¶ 8 (Doc. 28), but this difference is not relevant because the SAC alleges discrimination on the basis of sex and sexual orientation, not age. B. There Is No Fundamental Right of Access to Reproductive Healthcare. Plaintiffs broadly allege that, “like marriage, procreation is a fundamental right protected by the Due Process Clause of the [Fourteenth] Amendment.” SAC ¶ 1 (Doc. 28). More specifically, they claim a “right . . . to access the reproductive healthcare they need to realize [their] dream [of becoming mothers].” Id. They rely on Carey v. Population Services International, 431 U.S. 678 (1977), and Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), see SAC ¶ 1 n.2 (Doc. 28), but neither of these cases supports Plaintiffs’ theory. Carey involved statutory restrictions on access to contraceptives, which were held to “burden the freedom to make” constitutionally protected “decisions in matters of childbearing.” 431 U.S. at 687. The Carey Court expressly did 6 Erin Krupa is 36 and has not conceived after more than three years; Marianne Krupa is 34 and has not conceived after more than three years; Sol Mejias is 39 and has not conceived after approximately two years. SAC ¶¶ 6, 7 (Doc. 28). Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 32 of 44 PageID: 384 25 not find “an independent fundamental right of access to contraceptives.” Id. at 688 (internal quotation marks omitted). Rather, it found that “such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing.” Id. (emphasis added). Plaintiffs appear to demand the converse of Carey -- access to infertility treatments rather than contraceptives -- but ignore the fact that no state actor has interfered with their decision to conceive. Indeed, three Plaintiffs allegedly have accessed infertility treatments. SAC ¶¶ 28-42 (Erin Krupa and Marianne Krupa), 52 (Sol Mejias) (Doc. 28). What Plaintiffs want is for those infertility treatments to be covered by the Plans, but neither Carey (where access to contraceptives presumably would be at an individual’s expense) nor any case of which defendants are aware supports this proposition. The Skinner Court struck down a law mandating sterilization for “habitual criminal[s]” as contrary to the Equal Protection Clause, because it “[laid] an unequal hand on those who have committed intrinsically the same quality of offense and sterilize[d] one and not the other.” 316 U.S. at 536-37, 541. Plaintiffs again appear to demand the converse of Skinner -- enabling conception rather than disabling it -- and essentially posit that the State is required to help them procreate, see SAC ¶ 99 (Doc. 28), but that is not the case. As Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 33 of 44 PageID: 385 26 the Third Circuit recently observed, “Skinner establishes only that states may not sterilize prisoners; it does not hold that prisoners are entitled to treatment for infertility or sexual problems.” Michtavi v. Scism, 808 F.3d 203, 207 (3d Cir. 2015). Plaintiffs’ Equal Protection claim cannot rest on a purported fundamental right of access to reproductive healthcare, for which there is no precedent. C. No Suspect or Quasi-Suspect Classification Is at Issue. Neither the Supreme Court nor the Third Circuit has held that sexual orientation is a suspect or quasi-suspect classification. See Romer v. Evans, 517 U.S. 620, 624, 635 (1996) (prohibition of governmental action designed to protect homosexual persons was “classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit”); Cortez v. Main, No. 12-5659 (SRC), 2013 U.S. Dist. LEXIS 60551, at *13 (D.N.J. Apr. 29, 2013) (observing that “sexual orientation is not a suspect classification” and citing Romer); cf. Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (collecting cases). Notwithstanding Plaintiffs’ reliance on SmithKline Beecham Corp. v. Abbott Labs, 740 F.3d 471 (9th Cir. 2014), and Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied, 135 S. Ct. 316 (2014), for the proposition that heightened scrutiny is applied to equal Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 34 of 44 PageID: 386 27 protection claims involving sexual orientation, see Mem. of Law in Supp. of Renewed Mot. for Prelim. Inj., dated Nov. 3, 2016 (“Pls.’ Br.”), at 14-15 (Doc. 29-1), the Supreme Court did not hold in United States v. Windsor, 133 S. Ct. 2675 (2013), and has not held since, that heightened scrutiny applies to such cases. See id. at 2682, 2696 (Defense of Marriage Act’s exclusion of “a same-sex partner from the definition of ‘spouse’ as that term is used in federal statutes” was unconstitutional, because its “purpose and effect [were] to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity”); see also Ondo v. City of Cleveland, 795 F.3d 597, 609 (6th Cir. 2015) (noting that “the Court [in Obergefell v. Hodges, 135 S. Ct. 2584 (2015),] was explicitly asked by the petitioners and various amici to declare that homosexuals are a specially protected class” but “held only that the Equal Protection Clause was violated because the challenged statutes interfered with the fundamental right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause”). The Supreme Court has held that gender is a quasi- suspect classification. J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 136 (1994). However, Plaintiffs do not allege that they are discriminated against because they are women; they allege instead that they are discriminated against because their Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 35 of 44 PageID: 387 28 partners are women. Pls.’ Br. at 13-14 (Doc. 29-1). This allegation is baseless; as discussed above, the Plans do not classify infertile women in same-sex relationships separately from infertile women in heterosexual relationships. See supra at 22-24. D. Even If this Court Finds that the Plans Differentiate Between Two Groups, the Eligibility Requirements for Coverage Are Rationally Related to Legitimate State Interests. Even assuming that Plaintiffs are being treated differently from women in heterosexual relationships under the Plans (which they are not), the Plans’ eligibility requirements for coverage are rationally related to legitimate state interests. Under a rational basis review, statutes are “presumed constitutional.” Heller v. Doe, 509 U.S. 312, 320 (1993). The challenger bears the burden of demonstrating that the enactment violates a constitutional provision and negating “every conceivable basis which might support it.” Armour, 566 U.S. at 681 (quotation omitted). Plaintiffs have not met that burden. The State has legitimate interests in promoting access to health benefits coverage for infertility treatment to all citizens. Cost containment and protection against waste and abuse provide a rational and reasonable basis for the requirement that persons must demonstrate that they are Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 36 of 44 PageID: 388 29 infertile in order to obtain coverage for that specific disease state. In doing so, the Legislature framed the Infertility Mandate in terms of treatment of the disease state of infertility and rationally limited the nature of the assisted reproductive therapies that would be covered. This ensures that such treatments will be covered when medically necessary while continuing to contain the cost of insured health benefits plans. Courts have repeatedly found that conservation of scarce financial resources is a legitimate state interest. See, e.g., Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 372 (2001) (“[I]t would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities.”). New Jersey courts have recognized that cost containment is a legitimate government interest. For example, in Barone v. Dep’t of Human Services, 526 A.2d 1055 (N.J. 1987), the New Jersey Supreme Court explained: State funds available for public assistance programs are limited. It is the Legislature that has the duty to allocate the resources of the State. As long as the classification chosen by the Legislature rationally advances a legitimate governmental objective, it need not be the wisest, the fairest, or the one we would choose. It is not for the courts to determine if there is a better way to allocate resources under these programs. Id. at 1063. Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 37 of 44 PageID: 389 30 For these reasons, the Plan’s infertility treatment provisions are rationally related to the legitimate state interests of ensuring access to insurance coverage for medical services to treat the disease state of infertility, while at the same time conserving scarce financial resources. Accordingly, Plaintiffs have failed to state a valid equal protection claim, and the First Cause of Action should be dismissed with prejudice. POINT V PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIM FAILS BECAUSE IT DOES NOT SURVIVE RATIONAL BASIS SCRUTINY. The Due Process Clause of the Fourteenth Amendment, which prohibits states from “depriv[ing] any person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV, § 1, protects “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Obergefell v. Hodges, 135 S. Ct. 2584, 2597 (2015) (emphases added). “[T]he Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 849 (1992) (emphasis added). However, “it does not confer an entitlement to such funds as may be necessary to realize all the advantages of [freedom of choice in the context of certain Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 38 of 44 PageID: 390 31 personal decisions].” Harris v. McRae, 448 U.S. 297, 317-18 (1980). Plaintiffs conflate their right to privacy in making important decisions (which protects them from unwarranted government interference in their decision-making7) with a purported right “to access the reproductive healthcare they [allegedly] need to realize [their] dream [of becoming mothers].” SAC ¶ 1 (Doc. 28). This case does not involve any attempt by any state actor to regulate Plaintiffs’ conduct or decision-making. Plaintiffs are free to seek (and have in fact sought) infertility treatment. See supra at 25. What plaintiffs want is coverage by the Plans, which does not implicate substantive due process concerns. Plaintiffs’ misreading of Carey is particularly telling. In their brief, Plaintiffs quote the Carey Court as opining that “‘the same test must be applied to state regulations that burden an individual’s [exercise of a fundamental right] by substantially limiting access to the means of effectuating that decision as is applied to state statutes’ 7 See Paul v. Davis, 424 U.S. 693, 713 (1976) (noting “limitations on the States’ power to substantively regulate conduct” in area of procreation, inter alia); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”). Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 39 of 44 PageID: 391 32 that foreclose the exercise of the right entirely.” Pls.’ Br. at 19 (Doc. 29-1). However, what the Carey Court actually said was that “the same test must be applied to state regulations that burden an individual’s right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision as is applied to state statutes that prohibit the decision entirely.” 431 U.S. at 688 (emphases added). This case does not involve any burden on the exercise of a fundamental right; instead, it involves an unrestricted decision by Plaintiffs to procreate for which they seek coverage by the Plans. Plaintiffs cannot allege that they were deprived of any privacy to which they are entitled under substantive due process. In any event, the Plans comport with substantive due process because they are rationally related to a legitimate legislative purpose. The parameters of a substantive due process inquiry are well-established. “[A] statute withstands a substantive due process challenge if the state identifies a legitimate state interest that the legislature could rationally conclude was served by the statute.” Heffner v. Murphy, 745 F.3d 56, 79 (3d Cir.) (quotation omitted), cert. denied, 135 S. Ct. 220 (2014). “A governmental interest that is asserted to defend against a substantive due process challenge need only be plausible to pass constitutional muster; [courts] Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 40 of 44 PageID: 392 33 do not second-guess legislative choices or inquire into whether the stated motive actually motivated the legislation.” Id. A party seeking to invalidate an act of the Legislature carries a heavy burden, because “the rationality requirement [is] largely equivalent to a strong presumption of constitutionality.” Id. (quotation omitted); see also Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir.) (“The rational basis test . . . requires significant deference to the legislature’s decision- making and assumptions.”), cert. denied, 133 S. Ct. 345 (2012). “[T]hose attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993) (quotation omitted). There is no constitutional right to coverage for health care services. By implication, there is also no constitutional right to health insurance benefits for infertility treatment coverage. Even if there were such a right, the Plans do not impose a burden on same-sex couples seeking to obtain infertility treatment coverage. As explained above in Point IV, the Member Handbook defines several ways for a woman to demonstrate that she is infertile and entitled to coverage. See supra at 22. And even if this court were to find that the Member Handbook places a burden on same-sex couples Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 41 of 44 PageID: 393 34 seeking coverage, the Member Handbook’s eligibility requirements are rationally related to the legitimate state interests of controlling costs and protecting against waste and abuse. Accordingly, Plaintiffs have failed to state a valid substantive due process claim, and the Second Cause of Action should be dismissed with prejudice. POINT VI PLAINTIFFS HAVE NOT MET THE ELEMENTS REQUIRED FOR THIS COURT TO IMPOSE A PRELIMINARY INJUNCTION. Plaintiffs seek the extraordinary remedy of a preliminary injunction but have not established all of the four required elements. See supra at 11. First, as explained more fully above, Plaintiffs are not likely to succeed on the merits. For instance, Plaintiffs’ supporting affidavits state bare conclusions concerning the reasons for Horizon’s denial of their medical claims, and rely on those insufficient conclusions to support their contentions that these denials implicate constitutional issues. Horizon’s denial, in any event, is not a denial by the Commissions or the Commission Members. Accordingly, Plaintiffs’ motion for a preliminary injunction should be denied for this reason alone. Second, Plaintiffs cannot establish that they will suffer irreparable harm. They have not demonstrated a constitutional violation and harm is not considered irreparable Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 42 of 44 PageID: 394 35 if it can be redressed adequately by monetary damages (available only in state court in this case). Liberty Lincoln-Mercury, Inc. v. Ford Motor Co., 562 F.3d 553, 557 (3d Cir. 2009). Again, Plaintiffs’ motion should be denied for this reason alone. Third and fourth, both a balancing of the hardships and the public interest require denial of Plaintiffs’ motion. The Supreme Court has cautioned that, when reviewing an exercise of state authority, “federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (quotation omitted); Eccles v. Peoples Bank of Lakewood Vill., 333 U.S. 426, 431 (1948) (advising “where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative”). Here, Plaintiffs have not met their burden of demonstrating that their constitutional rights are implicated by Horizon’s denial of their medical claims. Accordingly, this court should deny Plaintiffs’ motion for a preliminary injunction. Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 43 of 44 PageID: 395 36 CONCLUSION For these reasons, Defendants’ motion to dismiss the SAC with prejudice should be granted, and Plaintiffs’ motion for a preliminary injunction should be denied. Respectfully submitted, CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: s/ Amy Chung Amy Chung Deputy Attorney General Dated: February 2, 2017 Case 2:16-cv-04637-SDW-LDW Document 34-2 Filed 02/02/17 Page 44 of 44 PageID: 396 CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: Jeffrey S. Posta, DAG R.J. Hughes Justice Complex 25 Market Street, P.O. Box 117 Trenton, New Jersey 08625-0117 (609) 292-9246 Attorney for Defendant, Richard J. Badolato UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ERIN KRUPA, MARIANNE KRUPA, SOL MEJIAS, and SARAH MILLS, Plaintiffs, RICHARD J. BADOLATO, in both his individual capacity and his official capacity as Commissioner of the New Jersey Department of Banking and Insurance, ;Case No: 2:16-cv-04637 (SDW)(LDW) CERTIFICATION OF DAVID J. POINTER IN OPPOSITION TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION AND IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS COMPLAINT IN LIEU OF ANSWER PURSUANT TO FED. R. CIV. P. 12 (b) (1) and 12 (b) (6) Hearing Dates: October 3, 2016 October 17, 2016 Defendant Document Electronically Filed DAVID J. POINTER, of full age, hereby certifies as follows: 1. I am employed by the State of New Jersey Division of Pensions and Benefits (the "Division") as the Deputy Director of Benefit Operations & Client Services. I have been employed by the Division of Pensions and Benefits for 32 years and have served as Deputy Director for one year. Prior to my promotion to Deputy Director, I served as Assistant Director of Health Benefits. Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 1 of 7 PageID: 2093 3 2 02 7 397 2. In my capacity as a Deputy Director, I am responsible for assisting the Director in the administration of public employee pension and health benefit programs, including policy formulation and operational performance to ensure effectiveness and increased productivity. I am fully familiar with the State Health Benefits Program and School Employees' Health Benefits Program, having served as the supervisor for the State Health Benefits Program for the past 10 years, and with School Employees' Health Benefits Program since its inception in 2007. 3. The Division is the agency responsible for maintaining the records and information regarding participation of public employees and retirees of the various state pension systems in the State Health Benefits Program ("SHBP") and the School Employees' Health Benefit Program ("SEHBP"). I am familiar with the procedures and systems used by the Division to maintain such information and records. 4. The Division maintains records of the enrollment for individual participants in the SHBP and the SEHBP. 5. I have personally reviewed the health benefits enrollment records of the Plaintiffs, Erin Krupa, Marianne Krupa, Sol Mejias and Sarah Mills. 6. My review revealed that Erin Krupa is a qualified employee of a State or local government employer, and as such is enrolled in the SHBP. Marianne Krupa, Sol Mejias and Sarah Mills 2 Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 2 of 7 PageID: 2103 3 2 02 7 398 are qualified local education public employees and as such are enrolled in the SEHBP. 7. My review further revealed that Erin Krupa, Marianne Krupa, Sol Mejias and Sarah Mills are enrolled in NJ DIRECT (10 or 15), a Preferred Provider Organization ("PPO") health plan. NJ DIRECT is administered for the Division of Pensions and Benefits by Horizon Blue Cross Blue Shield of New Jersey ("Horizon"). 8. The SHBP was established in 1961. It offers medical and prescription drug coverage to qualified State and local government public employees, retirees, and eligible dependents; and dental coverage to qualified State and local government/education public employees, retirees, and their eligible dependents. 9. The State Health Benefits Commission ("SHBC") is the State agency, located within the Executive Branch of the State of New Jersey in the Department of the Treasury, Division of Pensions and Benefits, responsible for administering the SHBP. 10. The State Health Benefits Program Act is found in the New Jersey Statutes Annotated, Title 52, codified as N.J.S.A. 52:14-17.25 et seq. Rules governing the operation and administration of the program are found in Title 17, Chapter 9, of the New Jersey Administrative Code, the Member Handbook for 3 Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 3 of 7 PageID: 2113 3 2 02 7 399 the Plan, and the policies of the contracted third-party administrator. 11. The SEHBP was established in 2007. It offers medical and prescription drug coverage to qualified local education public employees, retirees, and eligible dependents. 12. The School Employees' Health Benefits Commission ("SEHBC") is the State agency, located within the Executive Branch of the State of New Jersey in the Department of the Treasury, Division of Pensions and Benefits, responsible for administering the SEHBP. 13. The School Employees' Health Benefits Program Act is found in the New Jersey Statutes Annotated, Title 52, codified at N.J.S.A. 52:14-17.46 et seq. Rules governing the operation and administration of the program are found in Title 17, Chapter 9, of the New Jersey Administrative Code, the Member Handbook for the Plan, and the policies of the contracted third-party administrator. 14. The appeal process for SHBP and SEHBP claims decisions is governed by regulations promulgated by the State Health Benefits Commission. N.J.A.C. 17:9-1.3. The SHBP regulations also govern the SEHBP. The appeal process for HMO and PPO disputed claims starts with an internal appeal process to the third-party administrator, in this case Horizon, under its grievance procedures. N.J.A.C. 17:9-1.3(b) The regulations 4 Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 4 of 7 PageID: 2123 3 2 02 7 400 provide that members may pursue an appeal of any adverse determination involving medical judgment made by the third-party administrator, Horizon. 15. Member appeals that involve medical judgment made by Horizon are considered medical appeals. The NJ DIRECT Member Handbook explains that an adverse benefit determination involving medical judgment is: (a) a denial; or {b) a reduction from the application of clinical or medical necessity criteria; or (c) a failure to cover an item or service for which benefits are otherwise provided because Horizon determines the item or service to be experimental or investigational, cosmetic, or dental, rather than medical. 16. The NJ DIRECT Member Handbook further explains that adverse benefit determinations involving medical judgment may usually be appealed up to three times as outlined below: (a) First Level Medical Appeal - The First Level Medical Appeal of an adverse benefit determination. (b) Second Level Medical Appeal - The Second Level Medical Appeal of an adverse benefit determination available to members after completing a First Level Medical Appeal. (c) External Appeal - The Third Level Medical Appeal of an adverse benefit determination, which, at the member's request, would generally follow a Second Level Medical Appeal and may be pursued on a standard or expedited basis. An External Appeal provides members with the right to appeal to an Independent Review Organization. 17. According to the NJ DIRECT Member Handbook, a review by an Independent Review Organization ("IRO") may be requested Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 5 of 7 PageID: 2133 3 2 02 7 401 within four months from a final adverse determination of an appeal. The IRO reviews all relevant information and documents timely received. In reaching a decision, the IRO reviews claims de novo and is not bound by any decisions or conclusions reached during the plan's internal claims and appeal processes. The decision also includes the date the IRO received the request, references to the documentation relied on for its decision (including specific coverage provisions and evidence-based standards considered in reaching the decision), a statement that the determination is binding except to the extent that other remedies may be available under state or federal law to either you or the group health plan, and a statement that judicial review may be available to you. 18. N.J.A.C. 17:9-1.3(a) provides that once all appeal options have been exhausted through the third-party administrator (Horizon), the member may appeal to the State Health Benefits Commission/School Employees' Health Benefits Commission ("Commission") If dissatisfied with a final Horizon decision on an administrative appeal, the member has one year following receipt of the initial adverse benefit determination letter to request a Commission appeal. 19. I have personally reviewed the records of the Division of Pensions/State Health Benefits Program and did not find any appeal from Erin Krupa, Marianne Krupa, Sol Mejias and Sarah 6 Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 6 of 7 PageID: 2143 3 2 02 7 402 Mi11s to the ~HBG ar the SEHBC of any adverse ben~~it determinations made by the third party administratax {Horizon}, as outlined above. 20. Given the failure to appeal any denial to the appropriate Commission, zoo final agency detexm~nation has been issued. Accoxdi~gly, based on the information available to me, the Plaintiffs have nat exhausted the various administrative remedies availably to them as provided in N.J.A.C. 17:9-i.3, or within the State Health Benefits Commission process or the School Employees' Health Benefits Commission process. I cexti~y under penalty of perjury that the forgoing statements made by me are txue. z am aware that if any of the foregoing statements made by me are ~ill~ully false, Z am r,~ r subject to punishment. ;~'~'' !%,~ DAV~~~S :~J . POINTER Dated: September. 13, 2016 7 Case 2:16-cv-04637-SDW-LDW Document 14-2 Filed 09/19/16 Page 7 of 7 PageID: 2153 3 2 02 7 403 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ERIN KRUPA et al., Plaintiffs, CASE NUMBER: 2:16-Cv-04637-SDW-LDW v. CHRISTOPHER S. PORRINO, in his official capacity as Attorney General of the State of New Jersey, et al., Defendants . CERTIFICATION OF AMY CHUNG Under 28 U.S.C. § 1746, Amy Chung certifies: 1. I am a Deputy Attorney General assigned to represent defendants in this action. I am fully familiar with the facts of this Certification. 2. I submit this Certification in support of defendants' motion to dismiss under Federal Rules of Civil Procedure 12 (b) (1) and 12 (b) (6) . 3. Attached as Exhibit A is a true and correct copy of an excerpt of the NJ DIRECT Member Handbook for Plan Year 2016, which is referenced in paragraphs 20, 45, and 57 of the Second Amended Complaint (Doc. 28). Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 1 of 7 PageID: 404 I certify under penalty of perjury that the foregoing is true and correct. Executed in Trenton, New Jersey on February 2, 2017. . - ..~-- AMY CHUNG 2 Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 2 of 7 PageID: 405 EXHIBIT A Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 3 of 7 PageID: 406 STATE OF NEW JERSEY DEPARTMENT OF THE TREASURY DIVISION OF PENSIONS AND BENEFITS MEMBER HANDBOOK FOR EMPLOYEES AND RETIREES ENROLLED IN THE STATE HEALTH BENEFITS PROGRAM OR SCHOOL EMPLOYEES’ HEALTH BENEFITS PROGRAM PLAN YEAR 2016 ADMINISTERED FOR THE DIVISION OF PENSIONS AND BENEFITS BY HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 4 of 7 PageID: 407 NJ DIRECT MEMBER HANDBOOK 37 No benefit consideration will be given for any of the following hospice care benefits: • Medical care rendered by the patient's private physician (would be paid separately under the plan). • Volunteer services. • Pastoral services. • Homemaker services. • Food or home-delivered meals. • Non-authorized private-duty nursing services. • Dialysis treatment. • Bereavement counseling. Inpatient benefits for hospice patients are provided at the same level as those provided for non- hospice patients. For more information on hospice care, please call Horizon BCBSNJ at 1-800-414-7427. Immunizations Immunizations provided by an in-network physician or contracted, New Jersey pharmacy are covered under NJ DIRECT unless they are for travel outside the country or work-related. Well- child immunizations for children less than 12 months of age are the only immunizations allowed out-of-network. Infertility Treatment NJ DIRECT will follow the New Jersey State Mandate for Infertility. Charges made for services related to diagnosis of infertility and treatment of infertility once a condition of infertility has been diagnosed. Services include, but are not limited to: approved surgeries and other therapeutic procedures that have been demonstrated in existing peer- reviewed, evidence-based, scientific literature to have a reasonable likelihood of resulting in pregnancy (including microsurgical sperm aspiration); laboratory tests; sperm washing or preparation; diagnostic evaluations; assisted hatching; fresh and frozen embryo transfer; ovulation induction; gamete intrafallopian transfer (GIFT); in vitro fertilization (IVF), including in vitro fertilization using donor eggs and in vitro fertilization where the embryo is transferred to a gestational carrier or surrogate; zygote intrafallopian transfer (ZIFT); artificial insemination; intracytoplasmic sperm injection (ICSI); and the services of an embryologist. This benefit includes diagnosis and treatment of both male and female infertility. Eligibility Requirements Infertility services are covered for any abnormal function of the reproductive systems such that you are not able to: • Impregnate another person; • Conceive after two years if the female partner is under 35 years old, or after one year if the female partner is 35 years old or older, or if one partner is considered medically sterile; or • Carry a pregnancy to live birth. Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 5 of 7 PageID: 408 38 NEW JERSEY DIVISION OF PENSIONS AND BENEFITS In vitro fertilization, gamete transfer and zygote transfer services are covered only: • If you have used all reasonable, less expensive and medically appropriate treatment and are still unable to become pregnant or carry a pregnancy; • Up to four completed egg retrievals combined. Egg retrievals covered by another plan or the member (outside of the SHBP/SEHBP) will not be applied toward the SHBP/SEHBP limit for infertility services; and • If you are 45 years old or younger. Covered Expenses • Where a live donor is used in the egg retrieval, the medical costs of the donor shall be covered until the donor is released from treatment by the reproductive endocrinologist. • Intracytoplasmic sperm injections. • In vitro fertilization, including in vitro fertilization using donor eggs and in vitro fertilization where the embryo is transferred to a gestational carrier or surrogate. • Prescription medications, including injectable infertility medications, are covered under the SHBP/SEHBP’s Prescription Drug Plans. Private freestanding prescription drug plans arranged by local employer groups are required to be comparable to the SHBP/SEHBP Prescription Drug Plans and must provide coverage for infertility medications for covered members and donors. • Ovulation induction. • Surgery, including microsurgical sperm aspiration. • Artificial Insemination. • Assisted Hatching. • Diagnosis and diagnostic testing. • Fresh and frozen embryo transfers. Exclusions The following are specifically excluded infertility services: • Reversal of male and female voluntary sterilization. • Infertility services when the infertility is caused by or related to voluntary sterilization. • Non-medical costs of an egg or sperm donor. Medical costs of donors, including office visits, medications, laboratory and radiological procedures and retrieval, shall be covered until the donor is released from treatment by the reproductive endocrinologist. • Cryopreservation is not a covered benefit. • Any experimental, investigational, or unproven infertility procedures or therapies. • Payment for medical services rendered to a surrogate for purposes of childbearing where the surrogate is not covered by the carrier’s policy or contract. Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 6 of 7 PageID: 409 NJ DIRECT MEMBER HANDBOOK 39 • Ovulation kits and sperm testing kits and supplies. • In vitro fertilization, gamete intrafallopian tube transfer, and zygote intrafallopian tube transfer for persons who have not used all reasonable less expensive and medically appropriate treatments for infertility, who have exceeded the limit of four covered completed egg retrievals, or are 46 years of age or older. Egg retrievals covered by another plan or the member (outside of the SHBP/SEHBP) will not be applied toward the SHBP/SEHBP limit for infertility services. • Costs associated with egg or sperm retrieval not related to an authorized IVF procedure. Lead Poisoning Screening and Treatment Lead poisoning screening (in-network only; out-of-network screenings are not covered). Treatment is eligible In-Network and Out-of-Network. No copayment applies to in-network screenings. Lithotripsy Centers Lithotripsy services are covered when they are performed in an approved hospital or lithotripsy center. For information regarding the eligibility of certain centers, please call Horizon BCBSNJ at 1-800-414-7427. Lyme Disease Intravenous Antibiotic Therapy All intravenous antibiotic therapy for the treatment of Lyme Disease requires precertification. When intravenous therapy is determined to be medically appropriate, the supplies, cost of the drug, and skilled nursing visits will be covered services. If services are not precertified and are determined not to be medically necessary, the services will not be covered. Mammography Covers mammograms provided to a female member. Coverage is provided as follows: • One baseline mammography at any age. • Age forty and older, one screening mammography per year. Mastectomy Benefits A hospital stay of at least 72 hours following a modified radical mastectomy and a hospital stay of at least 48 hours is covered following a simple mastectomy unless the patient, in consultation with the physician, determines that a shorter length of stay is medically needed and at the appropriate level of care. Maternity/Obstetrical Care Medical care related to childbirth includes the hospital delivery and hospital stay for at least 48 hours after a vaginal delivery or 96 hours after a cesarean section if the attending provider determines that inpatient care is medically needed and at the appropriate level of care. Services and supplies provided by a hospital to a newborn child during the initial covered hospital stay of the mother and child are covered as part of the obstetrical care benefits. Case 2:16-cv-04637-SDW-LDW Document 34-4 Filed 02/02/17 Page 7 of 7 PageID: 410 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ERIN KRUPA et al., Plaintiffs, v. CHRISTOPHER S. PORRINO, in his official capacity as Attorney General of the State of New Jersey, et al., Defendants. : : CASE NUMBER: 2:16-cv-04637-SDW-LDW : : : : : CERTIFICATE OF SERVICE I hereby certify that on February 2, 2017, I electronically filed the following with the Clerk of Court and served all counsel of record using the CM/ECF system:  Notice of Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), dated February 2, 2017, with attached Proposed Order;  Brief of Defendants in Support of Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and in Opposition to Plaintiffs’ Motion for Preliminary Injunction, dated February 2, 2017;  Certification of David J. Pointer, dated September 13, 2016 (previously filed as Doc. 14- 2); and Case 2:16-cv-04637-SDW-LDW Document 34-5 Filed 02/02/17 Page 1 of 2 PageID: 411 2  Certification of Amy Chung, dated February 2, 2017. s/ Amy Chung AMY CHUNG Case 2:16-cv-04637-SDW-LDW Document 34-5 Filed 02/02/17 Page 2 of 2 PageID: 412