{ "id": 12168444, "name": "ALBERT RODARTE, Appellant-Respondent, v. PRESBYTERIAN INSURANCE COMPANY, Appellee-Petitioner, and NEW MEXICO SUPERINTENDENT OF INSURANCE, Appellee", "name_abbreviation": "Rodarte v. Presbyterian Insurance Co.", "decision_date": "2016-03-28", "docket_number": "No. S-1-SC-35862; Docket No. 33,127", "first_page": "721", "last_page": "736", "citations": [ { "type": "official", "cite": "2016-NMCA-051" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2000-NMCA-074", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 1217170 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0413-01" ] }, { "cite": "2009-NMSC-021", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243196 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0256-01" ] }, { "cite": "2000-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106478 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0536-01" ] }, { "cite": "2010-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245796 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0, "case_paths": 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"cite": "2009-NMSC-057", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4245830 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 23, 147" } ], "opinion_index": 1, "case_paths": [ "/nm/147/0523-01" ] }, { "cite": "2011-NMCA-052", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4249760 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 1, "case_paths": [ "/nm/149/0660-01" ] } ], "analysis": { "cardinality": 1369, "char_count": 51022, "ocr_confidence": 0.774, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24685145736295822 }, "sha256": "b3d5d04c77b98b90f6fc0b58ff54897828017b4930b74821c60caa7c1efcc555", "simhash": "1:ecbb6b571165c3c1", "word_count": 7510 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "LINDA M. VANZI, Judge", "VIGIL, Chief Judge (dissenting in part, and specially concurring)." ], "parties": [ "ALBERT RODARTE, Appellant-Respondent, v. PRESBYTERIAN INSURANCE COMPANY, Appellee-Petitioner, and NEW MEXICO SUPERINTENDENT OF INSURANCE, Appellee." ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} This case requires us to determine whether certain medical treatment is covered by a plan participant\u2019s health benefits plan or required by applicable regulations governing such contracts. After Albert Rodarte\u2019s (Rodarte) daughter, Jessica, suffered a severely disabling anoxic brain injury, he sought pre-approval \u00a1from her health insurance company for Jessica to receive hyperbaric oxygen therapy (HBOT). Presbyterian Insurance Company (Presbyterian) denied the request, concluding that the treatment was not a covered benefit. On review, the New Mexico Superintendent of Insurance (the Superintendent) upheld Presbyterian\u2019s denial of coverage, finding that HBOT was an excluded treatment under her Presbyterian plan, and that the use of HBOT to treat Jessica\u2019s condition was not \u201cmedically necessary\u201d under the New Mexico Administrative Code (the Code). In its appellate capacity, the district court disagreed and reversed the Superintendent in both respects.\n{2} On petition by Presbyterian, this Court accepted certiorari in order to review the district court\u2019s ruling. We hold that Jessica\u2019s condition was excluded from those for which her Presbyterian health benefits plan provided HBOT coverage. We also hold that HBOT was not a medically necessary treatment for Jessica\u2019s condition under the Code. We therefore reverse the district court.\nBACKGROUND\n{3} Jessica\u2019s injury, identified as \u201cglobal anoxic encephalopathy,\u201d resulted from an incident of cardiac arrest and stroke that deprived her brain of oxygen for approximately seventeen minutes. At the time, Jessica was a freshman at New Mexico State University. Her injury left her profoundly impaired both mentally and physically. After researching Jessica\u2019s condition on the internet and learning of HBOT, Rodarte contacted Dr. Kenneth Stoller, who owned and operated a facility offering the treatment. When treated by HBOT, a patient is \u201cenclosed in a pressure vessel and exposed to 100% oxygen at increased atmospheric pressure.\u201d While acknowledging that HBOT is \u201coff-label,\u201d Dr. Stoller nonetheless maintained it to be a \u201cwell-established FDA approved treatment used for a wide variety of conditions].]\u201d He requested prior authorization from Presbyterian to treat Jessica with a series of forty HBOT sessions.\n{4} Presbyterian denied Dr. Stoller\u2019s request because Jessica did \u201cnot meet the requirements for the requested\u201d HBOT under the terms of her insurance contract, and because her diagnosis was \u201ca specifically excluded condition for [HBOT] per Presbyterian . . . criteria.\u201d When Rodarte requested \u201cadverse determination review\u201d through Presbyterian\u2019s internal process of appeal, Presbyterian twice upheld its denial of coverage. It first explained that \u201cHBOT is not a covered benefit . . . due to [Jessica\u2019s] cerebral vascular injury[,]\u201d and later elaborated that its decision was additionally justified by the absence of \u201cevidence in the literature that supports treatment with HBOT for Jessica\u2019s condition.\u201d Presbyterian added that \u201cexperimental or investigational services [or] treatments are not covered benefits.\u201d\n{5} As permitted by the Code, Rodarte then sought external review by the Superintendent. After first determining that Rodarte\u2019s grievance qualified for external review of an experimental or investigational treatment under 13.10.17.28 NMAC (5/15/2012), the Superintendent convened a hearing panel to issue a recommendation regarding the propriety ofPresbyterian\u2019s denial of coverage. The panel, comprised of two physicians and one attorney, held an informal hearing at which Presbyterian and Rodarte presented evidence in support of their respective positions. Utilizing the same regulation initially applied by the Superintendent, the panel considered: (a) whether HBOT \u201creasonably appears to be a covered benefit under the plan\u201d; (b) whether HBOT \u201cis not explicitly listed as an exclusion under the plan\u201d; and (c) whether HBOT is a \u201cmedical necessity.\u201d\n{6} In its ensuing written recommendation to the Superintendent, the panel noted that Rodarte sought HBOT treatment for anoxic encephalopathy, a condition for which the insurance contract did not specifically include or exclude HBOT coverage. The contract did, however, list certain conditions for which HBOT was available, and excluded \u201cany clinical condition not listed above,\u201d specifically naming seven such excluded conditions. The panel advised, however, that \u201cit is not practical for a [p]lan to list all of the diseases and illnesses in the world that are excluded [and] ... if anoxic encephalopathy is not specifically listed as covered, then it is excluded.\u201d The panel recommended that the Superintendent uphold Presbyterian\u2019s denial of HBOT coverage under the terms of Jessica\u2019s contract and for the additional reason that under the evidence presented and considered, HBOT was not \u201cmedically necessary\u201d as an experimental or investigational treatment under the standard given in 13.10.17.28(B) NMAC (5/15/2012).\n{7} In a final order, the Superintendent adopted, approved, and accepted the findings and conclusions of the panel, adding that \u201ceven if a treatment might be considered a covered benefit, it must also be medically necessary before an adverse determination [of coverage] can be reversed.\u201d Thus, the Superintendent identified the issue to be \u201cwhether as a result of [Presbyterian\u2019s] adverse determination, [Jessica] was deprived of medically necessary covered services.\u201d Importantly, the Superintendent did not disturb the panel\u2019s conclusion that because \u201canoxic encephalopathy is not specifically listed as covered, then it is excluded\u201d from coverage under Presbyterian\u2019s plan. The Superintendent then made a specific finding that \u201c[t]he HBOT treatment denied by Presbyterian in this case does not meet the requirements necessary to establish medical necessity pursuant to 13.10.17(B) NMAC [(5/15/2012)].\u201d By the Superintendent\u2019s order, Presbyterian\u2019s adverse determination was upheld.\n{8} Having failed to convince Presbyterian or the Superintendent that HBOT was a covered benefit for Jessica\u2019s condition under either her health plan contract or the Code, Rodarte appealed to the district court. There he argued again that the insurance contract covered HBOT for Jessica\u2019s condition, contained no effective exclusion, and was \u201cmedically necessary\u201d under 13.10.17.28(B) NMAC (5/15/2012). Presbyterian insisted that its plan covers \u201cmedically necessary\u201d services as defined not by the Code, but by the insurance contract itself. Presbyterian also maintained that Rodarte failed to establish that the Superintendent's determination of non-medical necessity in this case was unsupported by substantial evidence.\n{9} After initially affirming the Superintendent, the district court was persuaded by Rodarte\u2019s motion for reconsideration that its ruling was incorrect. In granting the motion to reconsider, the district court ruled that HBOT \u201creasonably appears to be a covered benefit\u201d under Jessica\u2019s Presbyterian plan, and was not \u201cexplicitly listed as an excluded benefit.\u201d Applying 13.10.17.28 NMAC (5/15/2012) for the first time, the district court concluded as a matter of law that \u201cDr. Stoller\u2019s certification regarding HB OT as a recommended treatment for Jessica [satisfied] the requirements for medical necessity applicable to experimental and investigational medical procedures.\u201d The district court concluded that in its original order, it had \u201cmistakenly applied\u201d the \u201cmore general definition of medical necessity found at 13.10.17.7[(L)] NMAC [(5/15/2012)].\u201d Ultimately, the district court reversed the Superintendent. This appeal followed.\nDISCUSSION\nStandard of Review\n{10} Under NMSA 1978, Section 39-3-1.1 (D) (1999), a district court may \u201cset aside, reversef,] or remand\u201d the final decision of the Superintendent when: \u201c(1) the [Superintendent] acted fraudulently, arbitrarily},] or capriciously; (2) the final decision was not supported by substantial evidence; or (3) the [Superintendent] did not act in accordance with law.\u201d Our review is the same as that of \u201cthe district court sitting in its appellate capacity, while at the same time determining whether the district court erred in the first appeal.\u201d Rio Grande Chapter of Sierra Club v. N.M. Mining Comm\u2019n, 2003-NMSC-005, \u00b6 16, 133 N.M. 97, 61 P.3d 806.\n{11} We discuss: (1) whether the HBOT treatments are a covered benefit under Presbyterian\u2019s plan; (2) whether such treatments are medically necessary under regulations adopted by the Superintendent requiring a plan to provide medically necessary services; and (3) whether the district court was correct to reverse the Superintendent.\nI. Presbyterian\u2019s Insurance Contract Does Not Provide HBOT Coverage for Jessica\u2019s Medical Condition\n{12} The Presbyterian insurance contract states that it \u201chelps pay for healthcare expenses that are [m]edically [n]ecessary and [s]pecifically covered.\u201d It defines \u201c[specifically covered\u201d to mean \u201conly those healthcare expenses that are expressly listed and described\u201d in the agreement. Presbyterian\u2019s medical policy specifically covers HBOT for certain diabetic wounds, gangrene, compromised skin grafts, and a number of other conditions; however, it does not list HBOT as a covered service for global anoxic encephalopathy. Furthermore, in the \u201cexclusions\u201d section of the HBOT portion of the policy, the policy states, \u201c[a]ny clinical conditions not listed above [are] not covered, including but not limited to\u201d a list of seven conditions, including stroke.\n{13} Presbyterian argues that HBOT for Jessica\u2019s specific condition is not covered under the insurance contract as it is not an expressly covered treatment in the agreement. Rodarte contends that because Presbyterian reimburses oxygen and other therapeutic support care services, he \u201cwould reasonably expect that HBOT, which is a method of oxygen therapy, would be among the therapeutic and support services Presbyterian promised to provide.\u201d Additionally, Rodarte maintains that because HBOT falls under the plan\u2019s coverage for short term rehabilitation services, and \u201cHBOT ... is designed to repair and restore damaged brain tissue,\u201d its provision would be internally consistent. Rodarte claims that a contracted plan that reasonably appears to cover oxygen can likewise reasonably be expected to cover HBOT for global anoxic encephalopathy.\n{14} In construing the language of Presbyterian\u2019s plan, we are mindful that, \u201cabsent a statute to the contrary, insurance contracts are construed by the same principles which govern the interpretation of all contracts.\u201d Rummel v. Lexington Ins. Co., 1997-NMSC-041, \u00b6 18, 123 N.M. 752, 945 P.2d 970 (internal quotation marks and citation omitted). The process of contract interpretation \u201coften turns upon whether .. . the contract is ambiguous.\u201d C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070, \u00b6 12, 112 N.M. 504, 817 P.2d 238. \u201c[W]hen the policy language is clear and unambiguous, [an appellate court] must give effect to the contract and enforce it as written.\u201d Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, \u00b6 11, 129 N.M. 698, 12 P.3d 960. \u201cIf the court determines that the contract is reasonably and fairly susceptible of different constructions, an ambiguity exists.\u201d Mark V, Inc. v. Mellekas, 1993-NMSC-001, \u00b6 12, 114 N.M. 778, 845 P.2d 1232. Whether an agreement contains an ambiguity is a matter of law to be determined by the trial court, and is a question we review de novo on appeal. Id.\nIn determining the existence of an ambiguity, the language at issue should be considered not from the viewpoint of a lawyer, or a person with training in the insurance field, but from the standpoint of a reasonably intelligent layman, viewing the matter fairly and reasonably, in accordance with the usual and natural meaning of the words, and in the light of existing circumstances, prior to and contemporaneous with the making of the policy.\nRummel, 1997-NMSC-041, \u00b6 19 (internal quotation marks and citation omitted).\n{15} We conclude that the insurance contract unambiguously restricts coverage for HBOT to a series of named conditions and excludes coverage of HBOT for all other treatments. Jessica\u2019s injury does not fall within the exclusive list of covered conditions in the contract, and the contract expressly excludes all non-listed conditions from coverage. As well, the contract expressly excludes strokes, one source of Jessica\u2019s injuries, from the scope of HBOT coverage. We are not persuaded by Rodarte\u2019s argument that the contract\u2019s exclusion of HBOT for all non-covered treatment is ambiguous because the contract elsewhere covers oxygen for rehabilitation treatment. Even assuming the phrase \u201coxygen\u201d in the contract can be read to include HBOT, \u201ca specific provision [in a contract] relating to a particular subject will govern in respect to that subject, as against a general provision, even though the latter, standing alone, would be broad enough to include the subject to which the more specific provision relates.\u201d Weldon v. Commercial Union Assurance Co., 1985-NMSC-118, \u00b6 9, 103 N.M. 522, 710 P.2d 89 (internal quotation marks and citation omitted).\n{16} As did Presbyterian and the Superintendent, we therefore conclude that the HBOT treatments in this case are not only not specifically covered treatments under the health plan into which Presbyterian and Jessica contracted, they are specifically excluded. We reverse the district court\u2019s conclusion to the contrary.\nII. HBOT Is Not Medically Necessary to Treat Jessica\u2019s Medical Condition Under the Code\n{17} Our Legislature empowered the Superintendent to establish \u201creasonable rules and regulations necessary for or as an aid to administration or effectuation of any provision of the Insurance Code administered by the [Superintendent];.]\u201d NMSA 1978, \u00a7 59A-2-9(A) (1997). That authority was employed by the Superintendent to promulgate grievance procedures, which apply to \u201call health care insurers that provide, offer, or administer health benefit plans[.]\u201d 13.10.17.2(A) NMAC (5/15/2012). One such regulation applicable to insurers such as Presbyterian, 13.10.13.8(C)(1) NMAC, requires, at a minimum, that evidence of health insurance coverage include \u201ca complete statement that a covered person shall have the right ... to available and accessible services when medically necessary[.]\u201d Therefore, even if the language in a health plan specifically excludes coverage for a treatment or service, the Superintendent\u2019s regulations require that it be covered if it is medically necessary. We therefore consider whether the HBOT treatments must be covered under Presbyterian\u2019s plan because they are medically necessary under the Code.\n{18} Regarding which treatments are medically necessary, 13.10.17.7 NMAC (5/15/2012) supplies various definitions \u201c[a]s used in this rule[.]\u201d The meaning of \u201cmedical necessity\u201d or \u201cmedically necessary\u201d is set forth in 13.10.17.7(L) NMAC (5/15/2012). Medically necessary treatments are those\nhealth care services determined by a provider, in consultation with the health care insurer, to be appropriate or necessary, according to any applicable generally accepted principles and practices of good medical care or practice guidelines developed by the federal government, national or professional medical societies, boards and associations, or any applicable clinical protocols or practice guidelines developed by the health care insurer consistent with such federal, national, and professional practice guidelines, for the diagnosis or direct care and treatment of a physical, behavioral, or mental health condition, illness, injury, or disease}.]\n13.10.17.7(L) NMAC (5/15/2012).\n{19} That definition is either replaced, as argued by Rodarte, or remains substantively applicable to the Superintendent\u2019s grievance process, as argued by Presbyterian, when the medical treatment sought under a health plan is characterized as experimental or investigational. 13.10.17.28 NMAC (5/15/2012), the provision advanced by Rodarte as defining medical necessity, primarily referenced by the Superintendent, and relied on as the basis for the district court\u2019s final ruling reversing the Superintendent, provides:\nIf the request is for external review of an experimental or investigational treatment adverse determination, insurance division staff shall also consider whether:\nA. coverage; the recommended health care service:\n(1) reasonably appears to be a covered benefit under the grievant\u2019s health benefit plan except for the health care insurer\u2019s determination that the health care service is experimental or investigational for a particular medical condition; and\n(2) is not explicitly listed as an excluded benefitunder the grievant\u2019s health benefit plan; and\nB. medical necessity; the grievant\u2019s treating provider has certified that:\n(1) standard health care services have not been effective in improving the grievant\u2019s condition; or\n(2) standard health care services are not medically appropriate for the grievant; or\n(3) there is no standard health care service covered by the health care insurer that is as beneficial or more beneficial than the health care service^]\n13.10.17.28 NMAC (5/15/2012).\n{20} Having reviewed the entire administrative record, the Superintendent specifically concluded that the \u201cHBOT treatment denied by Presbyterian does not meet the requirements necessary to establish medical necessity[,]\u201d then cited a non-existent provision ofthe Code: \u201c13.10.17(B) [NMAC (5/15/2012)].\u201d In reversing the Superintendent, the district court relied on 13.10.17.28(B) NMAC (5/15/2012). To determine whether the district court\u2019s reversal of the Superintendent was correct, we must determine the applicable definition in this circumstance.\n{21} \u201c[A] court\u2019s interpretation of an administrative regulation is a question of law that we review de novo.\u201d Truong v. Allstate Ins. Co., 2010-NMSC-009, \u00b6 24, 147 N.M. 583, 227 P.3d 73 (internal quotation marks and citation omitted). \u201cIn interpreting sections of the . . . Code, we apply the same rules as used in statutory interpretation.\u201d Alliance Health of Santa Teresa, Inc. v. Nat'l Presto Indus., 2007-NMCA-157, \u00b6 18, 143 N.M. 133, 173 P.3d 55. \u201cWe look first to the plain language of the [regulation], giving the words their ordinary meaning,\u201d unless there is an indication that \u201ca different [meaning] was intended.\u201d N.M. Indus. Energy Consumers v. N.M. Pub. Regulation Comm\u2019n, 2007-NMSC-053, \u00b6 20, 142 N.M. 533, 168 P.3d 105. \u201cWhen [a regulation\u2019s] language is clear and unambiguous, this Court must give effect to that language and refrain from further . . . interpretation.\u201d Marbob Energy Corp. v. N.M. Oil Conservation Comm\u2019n, 2009-NMSC-013, \u00b6 9, 146 N.M. 24, 206 P.3d 135 (alteration, internal quotation marks, and citation omitted).\nA. 13.10.17.28(B) NMAC (5/15/2012) Does Not Provide the Applicable Definition of Medical Necessity Under the Code\n{22} The Code details the requirements, time frames, and considerations pertinent to the filing and review of an adverse determination grievance. See 13.10.17.1 to - .40 NMAC (05/03/2004, as amended through 05/15/2012). Its provisions are organized beginning with general requirements, then preliminary determinations, initial determinations, internal review, and finally external review. Id. For example, 13.10.17.6 NMAC (5/15/2012) establishes \u201cprocedures for filing and processing adverse determination grievances and administrative grievances regarding actions taken or inaction by a health care insurer.\u201d More specifically, 13.10.17.27 NMAC (5/15/2012) details the \u201c[criteria for initial external review of adverse determination by insurance division staff[,]\u201d setting out factors that staff must consider in deciding which grievances are available for review by the Superintendent. 13.10.17.28 NMAC (5/15/2012) denotes supplemental considerations in the context of external review of experimental or investigational treatments, as indicated by the phrase \u201cshall also consider\u201d in the first sentence of the provision. Regarding medical necessity, what \u201cshall also\u201d be considered is the required certification of medical necessity by a \u201clicensed, board certified or board eligible physician qualified to practice in the area of medicine appropriate to treat the grievant\u2019s condition}.]\u201d 13.10.17.28(B)(3)(b) NMAC (5/15/2012). The language \u201cshall also\u201d and the fact that the section regarding medical necessity does not supply an independent definition, but states the requirements for supplemental certification in the context of experimental or investigational treatment adverse determinations, is the first indication that 13.10.17.28(B) NMAC (5/15/2012) does not replace 13.10.17.7(L) NMAC (5/15/2012)\u2019s definition of \u201cmedical necessity.\u201d\n{23} 13.10.17.29(B) NMAC (5/15/2012) next details the procedure applicable \u201c[i]f the request for external review does not meet the criteria prescribed by 13.10.17.27 [NMAC (5/15/2012)] and, if applicable, 13.10.17.28 NMAC [(5/15/2012)].\u201d However, if the \u201crequest meets the criteria for external review,\u201d the Superintendent notifies the insurer and the grievant that an informal hearing \u201chas been set to determine whether, as a result of the health care insurer\u2019s adverse determination, the grievant was deprived of medically necessary covered services.\u201d 13.10.17.29(C) NMAC (5/15/2012). The \u201cadditional criteria\u201d under 13.10.17.28 NMAC is plainly denoted as something that \u201cshall also\u201d be considered upon a grievant\u2019s request for external review involving experimental or investigational treatment. Id.\n{24} Our review of 13.10.17.27 through-.29 NMAC (5/15/2012) suggests that the criteria listed under the \u201cmedical necessity\u201d provision of 13.10.17.28(B) NMAC (5/15/2012) merely states applicable \u201ccriteria for initial external review\u201d of the medical necessity of experimental or investigational treatment, rather than supplying an independent and superseding definition of \u201cmedical necessity\u201d for purposes of determining whether a treatment is covered by the plan or medically necessary under the Code. See 13.10.17.29 NMAC (5/15/2012); see also State v. Ybarra, 2010-NMCA-063, \u00b6 7, 148 N.M. 373, 237 P.3d 117 (\u201cThere is no difference between our review of the Administrative Code and statutes, and we determine and effectuate the intention of the administrative agency using the plain language of the regulation as the primary indicator of its intent.\u201d). We see no indication that the \u201ccriteria for initial external review,\u201d utilized in order to determine whether a grievant\u2019s request for external review is to occur as \u201cprescribed by 13.10.17.27 [NMAC (5/15/2012)] and, if applicable, 13.10.17.28 [NMAC (5/15/2012)]\u201d was also intended to substitute or replace the general definition of \u201cmedical necessity\u201d for purposes of the Superintendent\u2019s hearing. See 13.10.17.29(B) NMAC (5/15/2012); see also 13.10.17.29(C) NMAC (5/15/2012) (explaining role of 13.10.17.28 NMAC (5/15/2012) in determining whether a request meets the criteria for external review prior to the setting of an informal hearing); see also Alliance Health of Santa Teresa, Inc., 2007-NMCA-157, \u00b6 24 (stating that we generally do not read language into the Code).\n{25} In the dissenting portion of Chief Judge Vigil\u2019s separate opinion, he reasons that, in the \u201ccase of an experimental or investigational treatment, the definition of \u2018medical necessity\u2019 [under 13.10.17.28(B) NMAC (5/15/2012)] governs instead of the general definition\u201d under 13.10.17.7(L) NMAC (5/15/2012). (Vigil, C.J., dissenting in part, and specially concurring, \u00b6 40). But this perspective essentially revises the Code\u2019s regulatory language. That the criteria for medical necessity under 13.10.17.28(B) NMAC (5/15/2012) is meant to supplement, and not replace, 13.10.17.7(L) NMAC (5/15/2012) is made most plain by use of the prefatory directive \u201cshall also consider.\u201d 13.10.17.28 NMAC (5/15/2012). Otherwise, the language would read \u201cshall consider instead.\u201d But it does not. We likewise consider Chief Judge Vigil\u2019s statement that a patient can \u201cnever win when coverage is sought for an experimental or investigational treatment,\u201d (Vigil, C.J., dissenting in part, and specially concurring, \u00b6 39), to be mistaken. Such a grievant must, however, establish medical necessity by the same standard required of any grievantunder the Code, thatbeing the general standard under 13.10.17.7(L) NMAC (5/15/2012). Additionally, in order to gain the opportunity for a hearing before the Superintendent, such a grievant must first attain a treating provider\u2019s separate and compliant certification of medical necessity with the added strictures associated with the experimental or investigational treatment sought. See 13.10.17.28(B) NMAC (5/15/2012).\n{26} Indeed, it would make little sense that a treating provider\u2019s contention could alone establish medical necessity under the Code despite the existence of an otherwise comprehensively applicable definition that both applies objective criteria and directly incorporates a health care provider\u2019s independent assessment of those \u201chealth care services . . . appropriate or necessary, according to generally accepted principles and practices of good medical care[.]\u201d 13.10.17.7(L) NMAC (5/15/2012). We view 13.10.17.7(L) NMAC (5/15/2012) and 13.10.17.28(B) NMAC (5/15/2012) to not be mutually exclusive. Accordingly, we conclude that the district court misinterpreted 13.10.17.28(B) NMAC (5/15/2012) and thereby misapplied the definition of \u201cmedical necessity\u201d under the Code. While we recognize that the Superintendent likewise appeared to rely primarily upon 13.10.17.28(B) NMAC (5/15/2012) as the determinant of \u201cmedical necessity,\u201d and we generally defer to an agency\u2019s interpretation of its own regulation, \u201cwe are not bound by the agency\u2019s interpretation and we may substitute our own independent judgment for that of the agency if the agency\u2019s interpretation is unreasonable or unlawful.\u201d Albuquerque Bernalillo Cty. Water Util. Auth. v. N.M. Pub. Regulation Comm\u2019n, 2010-NMSC-013, \u00b6 51, 148 N.M. 21, 229 P.3d 494 (alteration, internal quotation marks, and citation omitted). To the extent the Superintendent\u2019s use of 13.10.17.28 NMAC (5/15/2012) was mistaken, we are not bound by it or the district court\u2019s ensuing error applying the same provision. See Albuquerque Bernalillo Cty. Water Util. Auth., 2010-NMSC-013, \u00b6 51.\nB. 13.10.17.7(L) NMAC (5/15/2012) Provides the Applicable Definition of Medical Necessity Under the Code\n{27} 13.10.17.7 NMAC (5/15/2012), the applicable definitional section, announces that \u201c[a]s used in this rule[,]\u201d the meaning of \u201cmedical necessity\u201d or \u201cmedically necessary\u201d is established by 13.10.17.7(L) NMAC (5/15/2012). Consistent with the Superintendent\u2019s authority, we view this generally applicable definition to be that which should have been applied by the Superintendent to review whether Presbyterian\u2019s adverse determination regarding coverage ofHBOT deprived Jessica of \u201cmedically necessary covered services.\u201d See 13.10.17.29(C) NMAC (5/15/2012); State ex rel. Helman v. Gallegos, 1994-NMSC-023, \u00b6 22, 117 N.M. 346, 871 P.2d 1352 (stating that when \u201cthe meaning of a statute is truly clear'\u2014not vague, uncertain, ambiguous, or otherwise doubtful\u2014it is of course the responsibility of the judiciary to apply the statute as written\u201d). The regulation promulgated by the Superintendent reveals the purpose of the external review hearing: \u201cto determine whether, as a result of the health care insurer\u2019s adverse determination, the grievant was deprived of medically necessary covered services.\u201d 13.10.17.29(C) NMAC (5/15/2012). To this end, the Code pointedly defines \u201cmedical necessity\u201d or \u201cmedically necessary\u201d under 13.10.17.7(L) NMAC (5/15/2012). These rules and regulations govern insurers like Presbyterian. See 13.10.17.2(A) NMAC (5/15/2012). Thus, for the purposes of determining whether HBOT was \u201cmedically necessary\u201d in Jessica\u2019s circumstances, the Superintendent is constrained by definitional rules it is statutorily empowered to promulgate, one being 13.10.17.7(L) NMAC (5/15/2012). It is this provision to which Presbyterian \u2019s contract and coverage must adhere, even in circumstances where the Code provides additionally applicable criteria, such as the requisite certification of medical necessity set forth by 13.10.17.28(B) NMAC (5/15/2012) in the context of \u201cinitial external review of experimental or investigational treatment adverse determinations [.]\u201d\nIII. The District Court\u2019s Reversal of the Superintendent Was Erroneous\n{28} While we have held that the district court improperly concluded that HBOT was a \u201ccovered benefit\u201d pursuant to her insurance contract, and improperly applied 13.10.17.28(B) NMAC as the definition of \u201cmedical necessity,\u201d we must yet determine whether Presbyterian\u2019s denial of coverage withstands Rodarte\u2019s challenge under 13.10.17.7(L). See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001, \u00b6 18, 147 N.M. 678, 228 P.3d 462 (holding in the context of vehicle insurance that parties\u2019 freedom to contract does not excuse them from \u201cthe necessity of meeting [applicable] statutory and regulatory requirements\u201d). If the denial of coverage to Jessica was proper under 13.10.17.7(L) NMAC (5/15/2012) as well as the contract, then the Superintendent will have reached the proper result and the district court will have erred in reversing the Superintendent. If, to the contrary, the denial of coverage to Jessica was improper under 13.10.17.7(L) (5/15/2012), the district court\u2019s reversal could be correct on grounds not relied on by it. See Meiboom v. Watson, 2000-NMSC-004, \u00b6 20, 128 N.M. 536, 994 P.2d 1154 (stating that an appellate court may affirm a trial court\u2019s ruling on a ground that was not relied on below if reliance on the new ground would not be unfair to the appellant). We may not \u201cset aside, reverse[,] or remand the final decision\u201d of the Superintendent without a determination that it acted fraudulently, arbitrarily or capriciously, its final decision was not supported by substantial evidence, or was not in accordance with law. Section 39-3-1.1(D). Neither party contends, nor does our review of the record indicate, that the Superintendent acted fraudulently, arbitrarily, or capriciously.\n{29} To ascertain whether substantial evidence supported the Superintendent\u2019s final decision upholding Presbyterian\u2019s coverage denial, we look to the record. We note that the Superintendent\u2019s internal review panel first determined that there was a lack of evidence that HBOT improved Jessica\u2019s condition. First, it observed that Jessica\u2019s pre-screening exam was conducted four months prior to the first application ofHBOT and was therefore \u201cnot an appropriate objective scientific tool for measuring the effect ofHBOT.\u201d As well, it concluded that the case studies presented to the panel by Dr. Stoller were not comparable to \u201chigh level research studies[,] such as those done in a prospective, randomized, controlled, double-blinded fashion.\u201d It also pointed to the absence of evidence establishing a causal linkage between Jessica\u2019s \u201calleged improvements\u201d and HBOT treatment, and a study provided by Dr. Stoller that noted the inability to gauge the efficacy ofHBOT when utilized within a year of a traumatic brain injury. We conclude this to be \u201crelevant evidence that a reasonable mind would find adequate to support a conclusion},]\u201d required for a determination of the existence of substantial evidence. Ponder, 2000-NMSC-033, \u00b6 7 (internal quotation marks and citation omitted). Under 13.10.17.7(L) NMAC (5/15/2012), substantial evidence supported the determination that Rodarte failed to establish the medical necessity ofHBOT to treat Jessica\u2019s anoxic brain injury.\n{30} Regarding whether the Superintendent acted in conformance with law, we recognize that the erroneous application of 13.10.17.28(B) NMAC (5/15/2012) to the substantive question of medical necessity in this instance can alone serve as the basis to reverse the administrative determination. Here we cannot tell with certainty which provision the Superintendent utilized because he cited a non-existent provision within the Code. We can, however, nonetheless determine that the Superintendent\u2019s ultimate determination that the treatment was not medically necessary should have been affirmed by application of 13.10.17.7(L) NMAC (05/15/2012). See Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, \u00b6 18, 146 N.M. 256, 208 P.3d 901 (stating that appellate courts may affirm a lower court if it is right for any reason, \u201cso long as the circumstances do not make it unfair to the appellant to affirm\u201d); see also Martinez v. N.M. State Eng\u2019r Office, 2000-NMCA-074, \u00b6 21, 129 N.M. 413, 9 P.3d 657 (upholding the decision of an administrative law judge on the basis of right for any reason). Because there is substantial evidence to support the Superintendent\u2019s determination, we may also conclude that it did not act fraudulently, arbitrarily, or capriciously. Lastly, because Presbyterian consistently sought enforcement of its contract by repeated reference to the correct governing standard for medical necessity, as set forth within 13.10.17.7(L) NMAC (5/15/2012), we find no unfairness in our conclusion agreeing, albeit on somewhat different grounds, with the result reached by the Superintendent.\nCONCLUSION\n{31} For the foregoing reasons, we reverse the judgment of the district court and reinstate the final order of the Superintendent upholding Presbyterian\u2019s denial of coverage.\n{32} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nI CONCUR:\nLINDA M. VANZI, Judge\nVIGIL, Chief Judge (dissenting in part, and specially concurring).\nGrievance Procedures within the Code were revised effective January 1, 2016. Many regulations, including some pertinent to this appeal, have been renumbered and in some instances modified. In this Opinion, we cite to and apply the regulations in place during the course of the underlying proceedings. We note differences to applicable regulations when necessary or helpful to an understanding of our analysis.\nSee 13.10.17.17(A) NMAC (5/15/2012) (stating that \u201c[e]very grievant who is dissatisfied with an adverse determination shall have the right to request internal review of the adverse determination by the health care insurer\u201d).\nSee 13.10.17.23 NMAC (5/15/2012) (setting forth process by which external review by the Superintendent is initiated).\nWe note that \u201c13.10.17(B) NMAC [(5/15/2012)]\u201d is not a provision that existed or exists in the Code. It is therefore unclear which \u201crequirements necessary to establish medical necessity\u201d were applied by the Superintendent to determine that HBOT is not medically necessary to treat Jessica. As discussed in greater detail herein, the Code addresses medical necessity in both 13.10.17.7(L) NMAC (5/15/2012) (defining \u201cmedical necessity\u201d in the general definitional section) and 13.10.17.28(B) NMAC (5/15/2012) (setting forth the certification requirements of medical necessity when requesting external review of an experimental or investigational treatment adverse determination).\nSee NMSA 1978, \u00a7 59A-4-20(A) (2011) (stating that an appeal from \u201can order of the [Superintendent made after an informal... or... administrative hearing ... shall be taken to the district court\u201d).\nThe definition set forth in 13.10.17.7(L) NMAC (5/15/2012) was not modified under the 2016 revision to the Code. It has been renumbered as 13.10.17.7(N) NMAC.\nThe 2016 revision to the Code renumbered 13.10.17.28 NMAC (5/15/2012) as 13.10.17.29 NMAC. Substantive changes to the language of 13.10.17.28 include the substitution of \u201can IRO\u201d for \u201cinsurance division staff,\u201d and identification of the health care treatment sought as both \u201crecommended or requested.\u201d See 13.10.17.29 NMAC. As used in 13.10.17.29 NMAC, \u201cIRO\u201d refers to \u201c[(Independent review organization,\u201d which are entities under the revised Code that can be assigned to conduct the independent review. See 13.10.17.23 NMAC. Also under the 2016revision to the Code, external review of a decision by an IRO is binding upon both the grievant and the health care insurer unless a grievant has and exorcises a right of appeal under the Patient Protection Act, NMSA 1978, \u00a7 59A-57-1 to -11 (1998, as amended through 2003). See 13.10.17.30(A) NMAC.\nWe recognize that Presbyterian seeks to prevail based solely upon the language of the contract into which it and Rodarte entered, but we observe no substantive difference, nor does Presbyterian argue one exists, between 13.10.17.7(L) NMAC (5/15/2012) and the insurance contract\u2019s own definition. As we have stated, the health plan contract must conform to applicable provisions of the Code. See 13.10.13.8(C)(1) NMAC (requiring \u201cthat a covered person shall have the right, at a minimum... to available and accessible services when medically necessary\u201d).", "type": "majority", "author": "HANISEE, Judge." }, { "text": "VIGIL, Chief Judge\n(dissenting in part, and specially concurring).\n{33} I dissent in part, and specially concur in the majority opinion for the reasons set forth below.\nDISSENT\n{34} The Code requires all health benefits plans in New Mexico to provide for medically necessary services. 13.10.17.29(C) NMAC (5/12/2012). However, HBOT treatments which Rodarte seeks to treat Jessica\u2019s condition are without question experimental or investigational. As such, they are not \u201cmedically necessary\u201d under Presbyterian\u2019s plan and they do not satisfy the Code\u2019s general definition of \u201cmedical necessity\u201d set forth in 13.10.17.7(L) NMAC (5/12/2012). That is to say, until a treatment has been vetted and adopted as the standard of care by the federal government or national or professional medical practice guidelines, the treatment is not \u201cmedically necessary\u201d under Presbyterian\u2019s plan and the Code\u2019s general provision.\n{35} However, the Code also recognizes that in particular cases an experimental or investigational treatment may be medically necessary for a particular patient such as Jessica. For these cases, the Code expands the classes of treatments that may be required and sets forth the parameters in which an experiment or investigational treatment may be medically necessary. This is 13.10.17.28 NMAC (5/12/2012). Themajority concludes that Section .28 serves only a gatekeeper function by \u201cmerely\u201d setting forth criteria to consider in determining whether to grant administrative review when a provider has denied coverage for an experimental or investigational treatment. Majority Op. \u00b6 24. The majority then determines that an experimental or investigational treatment must fulfill an impossibility, which is to satisfy the Code\u2019s general definition of \u201cmedical necessity\u201d in Section .7(L), Majority Op. \u00b6 25, and after weighing the evidence itself, concludes that the HBOT treatments are not \u201cmedically necessary\u201d under Section .7(L). Majority Op. \u00b6 27. I dissent from these conclusions.\n{36} Presbyterian denied coverage on the grounds there is no coverage for Jessica\u2019s condition and because the treatment was for \u201cexperimental or investigational services [or] treatments.\u201d Rodarte sought administrative review of the denial, and the Superintendent granted review under Section .28. The hearing panel appointed by the Superintendent, took evidence and made a recommended decision. It considered whether Jessica\u2019s proposed treatment satisfied the criteria of Section .28, and concluded that it does not. The hearing panel therefore recommended upholding Presbyterian\u2019s denial of HBOT treatments under Section .28.\n{37} The Superintendent upheld the hearing panel\u2019s recommended decision to deny coverage. The Superintendent first stated that the issue presented in the administrative hearing under 13.10.17.29(C) NMAC (5/12/2012) was whether Jessica was deprived of \u201cmedically necessary covered services.\u201d Thus, ruled the Superintendent, the services must be \u201cmedically necessary\u201d before Presbyterian\u2019s adverse determination could be reversed. Pertinent to the issue before us, the Superintendent specifically ruled, \u201cAlthough not expressly stated in the regulations, it is reasonable to infer that, when a treatment is denied because it is deemed to be experimental or investigational, the standard for medical necessity set forth in [Section .28(B)], and relied on by the [p]anel, should be applied to the evidence in the record.\u201d The Superintendent then specifically ruled that the HBOT treatment denied by Presbyterian \u201cdoes not meet the requirements necessary to establish medical necessity[.]\u201d The Superintendent also added, \u201cpursuant to 13.10.17.B NMAC\u201d which, as the majority opinion points out, does not exist. In my view this error is inconsequential, as the Superintendent and hearing panel are both clear that they were applying the standard of medical necessity under Section .28(B) in upholding Presbyterian\u2019s denial. (I infer a typographical error in typing \u201c13.10.17.B\u201d instead of \u201c13.10.17.28(B)\u201d).\n{38} Rodarte then appealed to the district court, specifically arguing that the HBOT treatment was \u201cmedically necessary\u201d under Section .28(B). As the majority points out, the district court ultimately considered whether the treatment satisfied the requirement of \u201cmedical necessity\u201d in Section .28, Majority Op. \u00b6 9. In its ruling, the district court ruled that \u201cthe proper standard for the ultimate agency review of the medical necessity of an experimental or investigational medical procedure is . . . [Section .28(B)],\u201d and that the specific standard in Section .28(B) applies, rather than the more general definition of \u201cmedical necessity\u201d found at Section .7(L). It is from this order that Presbyterian appeals.\n{39} Presbyterian, the hearing panel appointed by the Superintendent, the Superintendent, and the district court all concluded that the standard of \u201cmedical necessity\u201d under Section .28(B) applies. Disagreeing, the majority holds that it is nothing more than something which must be considered in determining whether to grant administrative review. Majority Op. \u00b6 24. Where the majority\u2019s reasoning fails, however, is that it results in granting an administrative hearing which a patient can never win when coverage is sought for an experimental or investigational treatment, because such a treatment will never satisfy Section .7(L). As Rodarte points out, \u201c[w]hat would be the point of permitting appeals that could never, by definition, succeed?\u201d The answer is that the Code does not provide for a meaningless hearing. Instead, as the Superintendent ruled, when a treatment is denied because it is deemed to be experimental or investigational, the standard of medical necessity in Section .28(B) governs.\n{40} Administrative regulations are to be interpreted under the same basic principles that guide interpretation of statutes. See PC Carter Co. v. Miller, 2011-NMCA-052, \u00b6 11, 149 N.M. 660, 253 P.3d 950. As such, \u201ceach section or part should be construed in connection with every other part or section, giving effect to each, and each provision is to be reconciled in a manner that is consistent and sensible so as to produce a harmonious whole.\u201d Lion\u2019s Gate Water v. D\u2019Antonio, 2009-NMSC-057, \u00b6 23, 147, N.M. 523, 226 P.3d 622 (internal quotation marks and citation omitted). Moreover, \u201cThe general/specific rule provides that when two statutes deal with the same subject matter, the statute dealing with a specific subject will be considered an exception to, and given effect over, the more general statute.\u201d Lu v. Educ. Trust Bd. of N.M., 2013-NMCA-010, \u00b6 13, 293 P.3d 186 (alteration, internal quotation marks, and citation omitted). Finally, a regulation should be interpreted with common sense, and an interpretation that leads to absurdity or contradiction should be avoided. See Baker v. Hedstrom, 2013-NMSC-043, \u00b6 36, 309 P.3d 1047. Application of these settled principles requires that, in the case of an experimental or investigational treatment, the definition of \u201cmedical necessity\u201d in Section .28 governs instead of the general definition of \u201cmedical necessity\u201d in Section ,7(L). Since the majority disagrees, I dissent. I therefore agree with the hearing panel, the Superintendent, and the district court that Section .28 governs administrative review when treatment has been denied on the basis that it is experimental or investigational.\nSPECIAL CONCURRENCE\n{41} The foregoing dissent notwithstanding, I agree with the majority that the order of the district court must be reversed. However, I arrive at this conclusion under Section .28.\n{42} Under subsection (A) of Section.28, it must be considered: (1) whether HBOT reasonably appears to be a covered benefit under Presbyterian\u2019s plan, except for Presbyterian\u2019s determination that HBOT is experimental or investigational; and (2) HBOT is not explicitly listed as an exclusion under Presbyterian\u2019s plan. Part I of the majority opinion in \u00b6\u00b6 12-16 demonstrates that Presbyterian\u2019s insurance contract does not provide coverage for Jessica\u2019s medical condition. I fully concur in this portion of the majority opinion. Moreover, this part of the majority opinion also demonstrates that the HBOT treatments are not only not specifically covered under Presbyterian\u2019s health plan, they are specifically excluded. I therefore conclude that Rodarte failed to prove that subsection (A) of Section .28 was satisfied.\n{43} I next consider whether subsection (B) of Section .28 was satisfied. The issue presented to the hearing panel was whether the HBOT treatments were \u201cmedicallynecessary\u201d under Section .28(B)(3)(b).\n{44} In seeking to prove such \u201cmedical necessity\u201d Jessica\u2019s treating physician, Dr. Ken Stoller certified that there is no standard health care service covered by Presbyterian that is as beneficial or more beneficial than the proposed HBOT treatments. The hearing panel noted, however, that \u201cthe issue is a lack of high level research studies such as those done in a prospective, randomized, controlled, double-blinded fashion. Dr. Stoller presented several case studies in his materials, but case studies are not a substitute [for] the types of studies just described in the medical field.\u201d After noting Jessica\u2019s treatments by Dr. Stoller, and Jessica\u2019s response to those treatments, the hearing panel concluded, \u201cDue to the lack of evidence that HBOT caused Ms. Ro darte\u2019s alleged improvements and the fact that she was provided HBOT treatment within the first year following her diagnosis of anoxic encephalopathy when spontaneous improvement can occur, it is not clear that HBOT caused Ms. Rodarte\u2019s improvements.\u201d Based on its review of the evidence, the hearing panel concluded that the evidence failed to demonstrate that the HBOT treatments were medically necessary under Section .28(B). The Superintendent in turn adopted, approved, and accepted the hearing panel\u2019s recommendation.\n{45} I conclude that substantial evidence supports the Superintendent\u2019s conclusion that the HBOT treatments were not medically necessary under Section .28(B). I therefore agree with the majority that the district court erred. However, I disagree with the majority that independently examining the evidence to determine whether it satisfies section ,7(L) is necessary or appropriate. See Majority Op. \u00b6\u00b6 26-28.\n{46} I therefore specially concur in the result reached.\nMICHAEL E. VIGIL, Chief Judge\nPresbyterian\u2019s insurance contract defines \u201cmedical necessity\u201d to be: \u201cappropriate or necessary services as determined by a Provider/Practitioner, in consultation with Presbyterian... which are provided to a Member for any covei-ed condition requiring, according to generally accepted principles of good medical practice guidelines developed by the federal government, national or professional medical societies, boards, and associations, or any applicable clinical protocols or practice guidelines developed by [Presbyterian] consistent with such federal, national and professional practice guidelines for the diagnosis or direct care and treatment of an illness, injury, or medical condition, and are not services provided only as a convenience.\u201d\n\u201cUnless otherwise indicated, all future references shall be to the 2012 version, and for ease of reference shall be referred to as \u201cSection .7(L).\u201d Section ,7(L) defines \u201cmedical necessity or medically necessary\u201d as: \u201chealth care services determined by a provider, in consultation with the health care insurer, to be appropriate or necessary, according to any applicable generally accepted principles and practices of good medical care or practice guidelines developed by the federal government, national or professional medical societies, boards and associations, or any applicable clinical protocols or practice guidelines developed by the health care insurer consistent with such federal, national, and professional practice guidelines, for the diagnosis or direct care and treatment of a physical, behavioral, or mental health condition, illness, injury, or disease[.]\u201d\nUnless otherwise indicated, all future references shall be to the 2012 version, and for ease of reference shall be referred to as \u201cSection .28.\u201d In its entirety Section .28 provides:\nA. coverage; the recommended or requested health care service:\n(1) reasonably appears to be a covered benefit under the grievant\u2019s health benefit plan except for the health care insurer\u2019s determination that the health care service is experimental or investigational for a particular medical condition; and\n(2) is not explicitly listed as an excluded benefit under the grievant\u2019s health benefit plan; and\nB. medical necessity; the grievant\u2019s treating provider has certified that:\n(1) standard health care services have not been effective in improving the grievant\u2019s condition; or\n(2) standard health care services are not medically appropriate for the grievant; or\n(3) there is no standard health care service covered by the health care insurer that is as beneficial or more beneficial than the health care service:\n(a) recommended by the grievant\u2019s treating provider that the treating provider certifies in writing is likely to be more beneficial to the grievant, in the treating provider\u2019s opinion, than standard health care services; or\n(b) requested by the grievant regarding which the grievant\u2019s treating provider, who is a licensed, board certified or board eligible physician qualified to practice in the area of medicine appropriate to treat the grievant\u2019s condition, has certified in writing that scientifically valid studies using accepted protocols demonstrate that the health care service requested by the grievant is likely to bo more beneficial to the grievant than available standard health care services.", "type": "concurring-in-part-and-dissenting-in-part", "author": "VIGIL, Chief Judge" } ], "attorneys": [ "Paul D. Mannick Santa Fe, NM for Appellant-Respondent", "Montgomery & Andrews, P.A. Walter J. Melendres Seth C. McMillan Santa Fe, NM for Appellee-Petitioner" ], "corrections": "", "head_matter": "Certiorari Denied, May 19, 2016,\nNo. S-1-SC-35862\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-051\nFiling Date: March 28, 2016\nDocket No. 33,127\nALBERT RODARTE, Appellant-Respondent, v. PRESBYTERIAN INSURANCE COMPANY, Appellee-Petitioner, and NEW MEXICO SUPERINTENDENT OF INSURANCE, Appellee.\nPaul D. Mannick Santa Fe, NM for Appellant-Respondent\nMontgomery & Andrews, P.A. Walter J. Melendres Seth C. McMillan Santa Fe, NM for Appellee-Petitioner" }, "file_name": "0721-01", "first_page_order": 737, "last_page_order": 752 }