PENSIONS - LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM - GROUP HOSPITALIZATION AND MEDICAL AID INSURANCE

PENSIONS - LAW ENFORCEMENT OFFICERS' AND FIRE FIGHTERS' RETIREMENT SYSTEM - GROUP HOSPITALIZATION AND MEDICAL AID INSURANCE.

(1) The requirement that a county or other political subdivision providing its employees with hospital and medical aid coverage under RCW 41.04.180 must offer a choice of policies or plans through not less than two carriers is not impliedly repealed by RCW 41.26.150 (4), as amended by § 10, chapter 6, Laws of 1970.

(2) When a county or other municipality, acting as an "employer" under the provisions of the Washington law enforcement officers' and fire fighters' retirement act, is providing medical insurance coverage for those of its employees or retired former employees who are, or were, members of this retirement system as provided for in RCW 41.26.150 (4), it is not required to offer a choice between two or more insurance plans but it may, in its discretion, do so.

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                                                                    May 5, 1970

Honorable R. DeWitt Jones
Prosecuting Attorney
Clark County Court House
Vancouver, Washington 98660

                                                                                                                   Cite as:  AGO 1970 No. 7

Dear Sir:

            This is written in response to your recent letter requesting our opinion on two questions pertaining to the procurement of group hospitalization and medical aid insurance coverage for members of the Washington law enforcement officers' and fire fighters' retirement system as provided for in RCW 41.26.150 (4).  We paraphrase your questions as follows:

            (1) Do the provisions of RCW 41.26.150 (4), as amended by § 10, chapter 6, Laws of 1970 (House Bill No. 74), which state that an employer of members of the Washington law enforcement officers' and fire fighters' retirement system ". . . may provide for all or part of one or more plans of group hospitalization and medical aid insurance to cover any of its employees who are members of the . . . retirement  [[Orig. Op. Page 2]] system" constitute an implied repeal of so much of RCW 41.04.180 as requires a county or other political subdivision, in providing its employees and their dependents with hospitalization and medical aid coverage, to ". . . provide the employees thereof with a choice of policies or plans through contracts with not less than two . . . insurance carriers or health care service contractors"?

            (2) Under the provisions of RCW 41.26.150 (4), may an employer provide two or more plans of health coverage by more than one carrier, permitting the employees for whose benefit these plans are made available to make a personal selection between them, with the employer paying the same amount for coverage for each employee without regard to the plan selected?

            We answer your first question in the negative and your second in the affirmative.

                                                                     ANALYSIS

            The statutes which bear upon your questions are RCW 41.04.180, as amended by § 10, chapter 39, Laws of 1970; and RCW 41.26.150, as amended by § 10, chapter 6, Laws of 1970.  The first of these two statutes provides, in material part, as follows:

            "Any county, municipality or other political subdivision of the state . . . may, whenever funds shall be available for that purpose provide for all or a part of hospitalization and medical aid for its employees and their dependents through contracts with regularly constituted insurance carriers or with health care service contractors as defined in chapter 48.44 RCW, for group hospitalization and medical aid policies or plans:  PROVIDED,That any county, municipality or other political subdivision of the state. . .shall provide the employees thereof a choice of policies or plans through contracts with not less than two regularly constituted insurance carriers or health care service contractors: . . ."  (Emphasis supplied.)

            The underscored proviso to this statute, notably, was not  [[Orig. Op. Page 3]] added by the 1970 amendment contained in § 10, chapter 39, Laws of 1970; instead, this proviso dates back to the enactment of § 1, chapter 135, Laws of 1967.1/   All that was done by the 1970 amendment was to terminate its applicability tostate agencies and departments thus limiting it to counties and other municipalities and political subdivisions.

            The second of the two statutes in question is, specifically, a new subsection which was added to RCW 41.26.150 by the enactment of § 10, chapter 6, Laws of 1970.  The statute in its entirety pertains to the medical benefits which each "employer," as defined in RCW 41.26.030 (2),2/ is required to provide for those of its employees or retired former employees who are, or were prior to retirement, members of the new Washington law enforcement officers' and fire fighters' retirement system.  This statute is divided into four subsections, (including the one added by the 1970 amendment) the first of which provides, in material part, that:

            "(1) Whenever any active member, or any member hereafter retired, on account of service, sickness or disability, not caused or brought on by dissipation or abuse, of which the disability board shall be judge, is confined in any hospital or in his home, and whether or not so confined, requires nursing, care, or attention,the employer shall pay for such active or retired member the necessary hospital, care, and nursing expenses not payable from some other source as provided for in subsection (2). . . ." (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            Subsection (2), to which reference is thus made in subsection (1), provides as follows:

            "(2) The medical benefits payable under this section will be reduced by any amount received or eligible to be received by the member under workmen's compensation, social security including the changes incorporated under Public Law 89-97 as now or hereafter amended, insurance provided by another employer, other pension plan, or any other similar source.  Failure to apply for coverage if otherwise eligible under the provisions of Public Law 89-97 as now or hereafter amended shall not be deemed a refusal of payment of benefits thereby enabling collection of charges under the provisions of this chapter."

            Subsection (3) provides for subrogation of the employer to the rights of the employee upon making the payments provided for in subsection (1),supra.  And finally, subsection (4), which was added to RCW 41.26.150 through the enactment of § 10, chapter 6, Laws of 1970, provides that:

            "(4) Any employer under this 1970 amendatory act, either singly, or jointly with any other such employer or employers through an association thereof as provided for in chapter 48.21 RCW, may provide for all or part of one or more plans of group hospitalization and medical aid insurance to cover any of its employees who are members of the Washington law enforcement officers and fire fighters retirement system, and/or retired former employees who were, before retirement, members of said retirement system, through contracts with regularly constituted insurance carriers or with health care service contractors as defined in chapter 48.44 RCW.  Benefits payable under any such plan or plans shall be deemed to be amounts received or eligible to be received by the active or retired member under subsection (2) of this section."

             [[Orig. Op. Page 5]]

            Question (1):

            The rule of statutory construction which is applicable whenever (as here) a question of implied repeal is raised, as most recently stated by the Washington court inFransen v. Board of Nat. Resources, 66 Wn.2d 672, 674, 404 P.2d 432 (1965), is as follows:

            "Repeals by implication are not favored.  Before a legislative enactment can be found to have been impliedly repealed by a subsequent act, the present legislation must evidently be intended to supersede the prior legislation on the subject.  Both acts will be allowed to stand unless they are clearly inconsistent with and repugnant to each other and cannot, by fair and reasonable construction, be reconciled and both given effect.  Babcock v. School Dist. No. 17, 57 Wn.2d 578, 358 P.2d 547; State ex rel. Reed v. Spanaway Water Dist., 38 Wn.2d 393, 229 P.2d 532."

            A corollary of this rule of statutory construction is the rule pertaining to the relationship between "general" and "special" statutes.  An excellent statement of this rule will be found in the California case of People v. Breyer, 139 Cal.App. 547, 34 P.2d 1065, 1066 (1934), wherein the California court said:

            "'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.  Where the special statute is later it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.  [Citations omitted.]'"

            Applying these rules to RCW 41.04.180 and RCW 41.26.150 (4), in so far as these two statutes speak of the number of  [[Orig. Op. Page 6]] medical insurance plans to be offered to the county or other municipal employees who are covered thereby, it will readily be seen that the second of the two statutes is a special act relating only to one authorized means of providing medical aid benefits for a limited class of county or other municipal employees namely, those employees who have qualified for membership in the Washington law enforcement officers' and fire fighters' pension system3/ (including retired former members).  On the other hand the first statute, RCW 41.04.180, is clearly a general statute which remains applicable to all county and municipal employees and (by way of contrast with RCW 41.26.150) to their dependents as well.

            Question (2):

            With the foregoing in mind, it follows, in response to your second question, that if a county or other municipality, in providing health care coverage for its employees and their dependents, generally, is proceeding under the provisions of RCW 41.04.180, it is still required to afford a choice between at least two policies or plans.  However, if the county or other municipality, acting as an "employer" under the provisions of the Washington law enforcement officers' and fire fighters' retirement system act, is proceeding to provide coverage only for its employees or retired former employees who are, or were, members of this retirement system, in exercise of the authority granted by RCW 41.26.150 (4), supra, it is not required to offer a choice between two or more insurance plans but it may, in its discretion, do so.

            We trust that the foregoing will be of assistance to you.