March 28, 2016 – Albert Rodarte v Presbyterian Insurance Company and New Mexico Superintendent of Insurance, No. 33,127

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: March 28, 2016
NO. 33,127
ALBERT RODARTE,
Appellant-Respondent,
v.
PRESBYTERIAN INSURANCE COMPANY,
Appellee-Petitioner,
and
NEW MEXICO SUPERINTENDENT
OF INSURANCE,
Appellee.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Raymond Z. Ortiz, District Judge
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

1Grievance 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.
OPINION
HANISEE, Judge.
{1} 	This case requires us to determine whether certain medical treatment is covered
by a plan participant’s health benefits plan or required by applicable regulations
governing such contracts. After Albert Rodarte’s (Rodarte) daughter, Jessica, suffered
a severely disabling anoxic brain injury, he sought pre-approval from 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’s denial of coverage, finding
that HBOT was an excluded treatment under her Presbyterian plan, and that the use
of HBOT to treat Jessica’s condition was not “medically necessary” under the New
Mexico Administrative Code (the Code).1 In its appellate capacity, the district court
disagreed and reversed the Superintendent in both respects.
{2} 	On petition by Presbyterian, this Court accepted certiorari in order to review the
district court’s ruling. We hold that Jessica’s condition was excluded from those for

2
which her Presbyterian health benefits plan provided HBOT coverage. We also hold
that HBOT was not a medically necessary treatment for Jessica’s condition under the
Code. We therefore reverse the district court.
BACKGROUND
{3} 	Jessica’s injury, identified as “global anoxic encephalopathy,” 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’s 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 “enclosed in a pressure
vessel and exposed to 100% oxygen at increased atmospheric pressure.” While
acknowledging that HBOT is “off-label,” Dr. Stoller nonetheless maintained it to be
a “well-established FDA approved treatment used for a wide variety of conditions[.]”
He requested prior authorization from Presbyterian to treat Jessica with a series of
forty HBOT sessions.
{4} 	Presbyterian denied Dr. Stoller’s request because Jessica did “not meet the
requirements for the requested” HBOT under the terms of her insurance contract, and
because her diagnosis was “a specifically excluded condition for [HBOT] per

2See 13.10.17.17(A) NMAC (5/15/2012) (stating that “[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”).
3See 13.10.17.23 NMAC (5/15/2012) (setting forth process by which external
review by the Superintendent is initiated).
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Presbyterian . . . criteria.” When Rodarte requested “adverse determination review”
through Presbyterian’s internal process of appeal,2 Presbyterian twice upheld its denial
of coverage. It first explained that “HBOT is not a covered benefit . . . due to
[Jessica’s] cerebral vascular injury[,]” and later elaborated that its decision was
additionally justified by the absence of “evidence in the literature that supports
treatment with HBOT for Jessica’s condition.” Presbyterian added that “experimental
or investigational services [or] treatments are not covered benefits.”
{5} 	As permitted by the Code,3 Rodarte then sought external review by the
Superintendent. After first determining that Rodarte’s 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 of Presbyterian’s 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 “reasonably appears to be a covered benefit under the plan”; (b) whether

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HBOT “is not explicitly listed as an exclusion under the plan”; and (c) whether HBOT
is a “medical necessity.”
{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 “any clinical condition not listed above,” specifically naming seven such
excluded conditions. The panel advised, however, that “it 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.” The panel
recommended that the Superintendent uphold Presbyterian’s denial of HBOT
coverage under the terms of Jessica’s contract and for the additional reason that under
the evidence presented and considered, HBOT was not “medically necessary” as an
experimental or investigational treatment under the standard given in 13.10.17.28(B)
NMAC (5/15/2012).
{7} 	In a final order, the Superintendent adopted, approved, and accepted the
findings and conclusions of the panel, adding that “even if a treatment might be
considered a covered benefit, it must also be medically necessary before an adverse
determination [of coverage] can be reversed.” Thus, the Superintendent identified the

4We note that “13.10.17(B) NMAC [(5/15/2012)]” is not a provision that
existed or exists in the Code. It is therefore unclear which “requirements necessary to
establish medical necessity” 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 “medical necessity” 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).
5See NMSA 1978, § 59A-4-20(A) (2011) (stating that an appeal from “an order
of the [S]uperintendent made after an informal . . . or . . . administrative hearing . . .
shall be taken to the district court”).
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issue to be “whether as a result of [Presbyterian’s] adverse determination, [Jessica]
was 	deprived 	of 	medically 	necessary 	covered 	services.” 	Importantly, 	the
Superintendent 	did 	not 	disturb 	the 	panel’s 	conclusion 	that 	because 	“anoxic
encephalopathy is not specifically listed as covered, then it is excluded” from
coverage under Presbyterian’s plan. The Superintendent then made a specific finding
that “[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)].”4 By the Superintendent’s order, Presbyterian’s adverse determination
was upheld.
{8} 	Having failed to convince Presbyterian or the Superintendent that HBOT was
a covered benefit for Jessica’s condition under either her health plan contract or the
Code, Rodarte appealed to the district court. 5 There he argued again that the insurance

6
contract covered HBOT for Jessica’s condition, contained no effective exclusion, and
was “medically necessary” under 13.10.17.28(B) NMAC (5/15/2012). Presbyterian
insisted that its plan covers “medically necessary” 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.
{9} 	After initially affirming the Superintendent, the district court was persuaded by
Rodarte’s motion for reconsideration that its ruling was incorrect. In granting the
motion to reconsider, the district court ruled that HBOT “reasonably appears to be a
covered benefit” under Jessica’s Presbyterian plan, and was not “explicitly listed as
an excluded benefit.” Applying 13.10.17.28 NMAC (5/15/2012) for the first time, the
district court concluded as a matter of law that “Dr. Stoller’s certification regarding
HBOT as a recommended treatment for Jessica [satisfied] the requirements for
medical necessity applicable to experimental and investigational medical procedures.”
The district court concluded that in its original order, it had “mistakenly applied” the
“more general definition of medical necessity found at 13.10.17.7[(L)] NMAC
[(5/15/2012)].” Ultimately, the district court reversed the Superintendent. This appeal
followed.

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DISCUSSION
Standard of Review
{10} 	Under NMSA 1978, Section 39-3-1.1(D) (1999), a district court may “set aside,
reverse[,] or remand” the final decision of the Superintendent when: “(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.” Our review is the same as that of “the district court sitting in
its appellate capacity, while at the same time determining whether the district court
erred in the first appeal.” Rio Grande Chapter of Sierra Club v. N.M. Mining Comm’n,
2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806.
{11} 	We discuss: (1) whether the HBOT treatments are a covered benefit under
Presbyterian’s 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.
I. 	Presbyterian’s Insurance Contract Does Not Provide HBOT Coverage for
Jessica’s Medical Condition
{12} 	The Presbyterian insurance contract states that it “helps pay for healthcare
expenses that are [m]edically [n]ecessary and [s]pecifically covered.” It defines
“[s]pecifically covered” to mean “only those healthcare expenses that are expressly

8
listed and described” in the agreement. Presbyterian’s 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 “exclusions” section of the HBOT
portion of the policy, the policy states, “[a]ny clinical conditions not listed above [are]
not covered, including but not limited to” a list of seven conditions, including stroke.
{13} 	Presbyterian argues that HBOT for Jessica’s 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 “would reasonably expect that HBOT, which is
a method of oxygen therapy, would be among the therapeutic and support services
Presbyterian promised to provide.” Additionally, Rodarte maintains that because
HBOT falls under the plan’s coverage for short term rehabilitation services, and
“HBOT . . . is designed to repair and restore damaged brain tissue,” 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.
{14} 	In construing the language of Presbyterian’s plan, we are mindful that, “absent
a statute to the contrary, insurance contracts are construed by the same principles

9
which govern the interpretation of all contracts.” Rummel v. Lexington Ins. Co., 1997-
NMSC-041, ¶ 18, 123 N.M. 752, 945 P.2d 970 (internal quotation marks and citation
omitted). The process of contract interpretation “often turns upon whether . . . the
contract is ambiguous.” C.R. Anthony Co. v. Loretto Mall Partners, 1991-NMSC-070,
¶ 12, 112 N.M. 504, 817 P.2d 238. “[W]hen the policy language is clear and
unambiguous, [an appellate court] must give effect to the contract and enforce it as
written.” Ponder v. State Farm Mut. Auto. Ins. Co., 2000-NMSC-033, ¶ 11, 129 N.M.
698, 12 P.3d 960. “If the court determines that the contract is reasonably and fairly
susceptible of different constructions, an ambiguity exists.” Mark V, Inc. v. Mellekas,
1993-NMSC-001, ¶ 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.
In 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.
Rummel, 1997-NMSC-041, ¶ 19 (internal quotation marks and citation omitted).
{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

10
treatments. Jessica’s 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’s
injuries, from the scope of HBOT coverage. We are not persuaded by Rodarte’s
argument that the contract’s exclusion of HBOT for all non-covered treatment is
ambiguous because the contract elsewhere covers oxygen for rehabilitation treatment.
Even assuming the phrase “oxygen” in the contract can be read to include HBOT, “a
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.” Weldon v. Commercial Union Assurance Co., 1985-NMSC-118, ¶ 9, 103
N.M. 522, 710 P.2d 89 (internal quotation marks and citation omitted).
{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’s conclusion to the contrary.
II. 	HBOT Is Not Medically Necessary to Treat Jessica’s Medical Condition
Under the Code
{17} 	Our Legislature empowered the Superintendent to establish “reasonable rules
and regulations necessary for or as an aid to administration or effectuation of any

11
provision of the Insurance Code administered by the [S]uperintendent[.]” NMSA
1978, § 59A-2-9(A) (1997). That authority was employed by the Superintendent to
promulgate grievance procedures, which apply to “all health care insurers that
provide, 	offer, 	or 	administer 	health 	benefit 	plans[.]” 	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 “a complete statement that a covered person shall have the
right . . . to available and accessible services when medically necessary[.]” Therefore,
even if the language in a health plan specifically excludes coverage for a treatment or
service, the Superintendent’s regulations require that it be covered if it is medically
necessary. We therefore consider whether the HBOT treatments must be covered
under Presbyterian’s plan because they are medically necessary under the Code.
{18} 	Regarding which treatments are medically necessary, 13.10.17.7 NMAC
(5/15/2012) supplies various definitions “[a]s used in this rule[.]” The meaning of
“medical necessity” or “medically necessary” is set forth in 13.10.17.7(L) NMAC
(5/15/2012). Medically necessary treatments are those
health 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

6The 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.
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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[.]
13.10.17.7(L) NMAC (5/15/2012). 6
{19} 	That 	definition 	is 	either 	replaced, 	as 	argued 	by 	Rodarte, 	or 	remains
substantively applicable to the Superintendent’s 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’s final ruling reversing
the Superintendent, provides:
If the request is for external review of an experimental or investigational
treatment adverse determination, insurance division staff shall also
consider whether:
A. 	coverage; the recommended health care service:
(1) reasonably appears to be a covered benefit under the grievant’s
health benefit plan except for the health care insurer’s determination that
the health care service is experimental or investigational for a particular
medical condition; and
(2) is not explicitly listed as an excluded benefit under the
grievant’s health benefit plan; and

7The 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 “an IRO” for “insurance division staff,” and identification of the
health care treatment sought as both “recommended or requested.” See 13.10.17.29
NMAC. As used in 13.10.17.29 NMAC, “IRO” refers to “[i]ndependent review
organization,” 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 2016
revision 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 exercises a right of
appeal under the Patient Protection Act, NMSA 1978, § 59A-57-1 to -11 (1998, as
amended through 2003). See 13.10.17.30(A) NMAC.
13
B. 	medical necessity; the grievant’s treating provider has certified
that:
(1) standard health care services have not been effective in
improving the grievant’s condition; or
(2) standard health care services are not medically appropriate for the grievant;
or
(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[.]
13.10.17.28 NMAC (5/15/2012). 7
{20} 	Having 	reviewed 	the 	entire 	administrative 	record, 	the 	Superintendent
specifically concluded that the “HBOT treatment denied by Presbyterian does not
meet the requirements necessary to establish medical necessity[,]” then cited a non-
existent provision of the Code: “13.10.17(B) [NMAC (5/15/2012)].” In reversing the
Superintendent, the district court relied on 13.10.17.28(B) NMAC (5/15/2012). To
determine whether the district court’s reversal of the Superintendent was correct, we

14
must determine the applicable definition in this circumstance.
{21} 	“[A] court’s interpretation of an administrative regulation is a question of law
that we review de novo.” Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 24, 147
N.M. 583, 227 P.3d 73 (internal quotation marks and citation omitted). “In
interpreting sections of the . . . Code, we apply the same rules as used in statutory
interpretation.” Alliance Health of Santa Teresa, Inc. v. Nat’l Presto Indus., 2007-
NMCA-157, ¶ 18, 143 N.M. 133, 173 P.3d 55. “We look first to the plain language
of the [regulation], giving the words their ordinary meaning,” unless there is an
indication that “a different [meaning] was intended.” N.M. Indus. Energy Consumers
v. N.M. Pub. Regulation Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d
105. “When [a regulation’s] language is clear and unambiguous, this Court must give
effect to that language and refrain from further . . . interpretation.” Marbob Energy
Corp. v. N.M. Oil Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206
P.3d 135 (alteration, internal quotation marks, and citation omitted).
A. 	13.10.17.28(B) NMAC (5/15/2012) Does Not Provide the Applicable
Definition of Medical Necessity Under the Code
{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

15
determinations, internal review, and finally external review. 	Id. 	For example,
13.10.17.6 NMAC (5/15/2012) establishes “procedures for filing and processing
adverse determination grievances and administrative grievances regarding actions
taken or inaction by a health care insurer.” More specifically, 13.10.17.27 NMAC
(5/15/2012) details the “[c]riteria for initial external review of adverse determination
by insurance division staff[,]” 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 “shall also
consider” in the first sentence of the provision. Regarding medical necessity, what
“shall also” be considered is the required certification of medical necessity by a
“licensed, board certified or board eligible physician qualified to practice in the area
of medicine appropriate to treat the grievant’s condition[.]” 13.10.17.28(B)(3)(b)
NMAC (5/15/2012). The language “shall also” 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)’s definition of “medical necessity.”

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{23} 	13.10.17.29(B) NMAC (5/15/2012) next details the procedure applicable “[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)].”
However, if the “request meets the criteria for external review,” the Superintendent
notifies the insurer and the grievant that an informal hearing “has been set to
determine whether, as a result of the health care insurer’s adverse determination, the
grievant was deprived of medically necessary covered services.” 13.10.17.29(C)
NMAC (5/15/2012). The “additional criteria” under 13.10.17.28 NMAC is plainly
denoted as something that “shall also” be considered upon a grievant’s request for
external review involving experimental or investigational treatment. Id.
{24} 	Our review of 13.10.17.27 through -.29 NMAC (5/15/2012) suggests that the
criteria listed under the “medical necessity” provision of 13.10.17.28(B) NMAC
(5/15/2012) merely states applicable “criteria for initial external review” of the
medical necessity of experimental or investigational treatment, rather than supplying
an independent and superseding definition of “medical necessity” 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, ¶ 7, 148 N.M. 373, 237 P.3d 117 (“There is no difference between our
review of the Administrative Code and statutes, and we determine and effectuate the

17
intention of the administrative agency using the plain language of the regulation as the
primary indicator of its intent.”). We see no indication that the “criteria for initial
external review,” utilized in order to determine whether a grievant’s request for
external review is to occur as “prescribed by 13.10.17.27 [NMAC (5/15/2012)] and,
if applicable, 13.10.17.28 [NMAC (5/15/2012)]” was also intended to substitute or
replace 	the 	general 	definition 	of 	“medical 	necessity” 	for 	purposes 	of 	the
Superintendent’s 	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, ¶ 24 (stating that we generally do not read language into the
Code).
{25} 	In the dissenting portion of Chief Judge Vigil’s separate opinion, he reasons
that, in the “case of an experimental or investigational treatment, the definition of
‘medical necessity’ [under 13.10.17.28(B) NMAC (5/15/2012)] governs instead of the
general definition” under 13.10.17.7(L) NMAC (5/15/2012). (Vigil, C.J., dissenting
in part, and specially concurring, ¶ 40). But this perspective essentially revises the
Code’s 	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,

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13.10.17.7(L) NMAC (5/15/2012) is made most plain by use of the prefatory directive
“shall also consider.” 13.10.17.28 NMAC (5/15/2012). Otherwise, the language would
read “shall consider instead.” But it does not. We likewise consider Chief Judge
Vigil’s statement that a patient can “never win when coverage is sought for an
experimental or investigational treatment,” (Vigil, C.J., dissenting in part, and
specially concurring, ¶ 39), to be mistaken. Such a grievant must, however, establish
medical necessity by the same standard required of any grievant under the Code, that
being the general standard under 13.10.17.7(L) NMAC (5/15/12). Additionally, in
order to gain the opportunity for a hearing before the Superintendent, such a grievant
must first attain a treating provider’s 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 (5/15/12).
{26} 	Indeed, it would make little sense that a treating provider’s 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’s independent assessment of those “health care
services . . . appropriate or necessary, according to generally accepted principles and
practices of good medical care[.]” 13.10.17.7(L) NMAC (5/15/2012). We view
13.10.17.28(B) NMAC (5/15/2012) and 13.10.17.28(B) NMAC (5/15/2012) to not

19
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 “medical
necessity” 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 	“medical 	necessity,” 	and 	we 	generally 	defer 	to 	an 	agency’s
interpretation of its own regulation, “we are not bound by the agency’s interpretation
and we may substitute our own independent judgment for that of the agency if the
agency’s interpretation is unreasonable or unlawful.” Albuquerque Bernalillo Cty.
Water Util. Auth. v. N.M. Pub. Regulation Comm’n, 2010-NMSC-013, ¶ 51, 148 N.M.
21, 229 P.3d 494 (alteration, internal quotation marks, and citation omitted). To the
extent the Superintendent’s use of 13.10.17.28 NMAC (5/15/2012) was mistaken, we
are not bound by it or the district court’s ensuing error applying the same provision.
See Albuquerque Bernalillo Cty. Water Util. Auth., 2010-NMSC-013, ¶ 51.
B. 	13.10.17.7(L) NMAC (5/15/2012) Provides the Applicable Definition of
Medical Necessity Under the Code
{27} 	13.10.17.7 NMAC (5/15/2012), the applicable definitional section, announces
that “[a]s used in this rule[,]” the meaning of “medical necessity” or “medically
necessary” is established by 13.10.17.7(L) NMAC (5/15/2012). Consistent with the
Superintendent’s authority, we view this generally applicable definition to be that
which 	should 	have 	been 	applied 	by 	the 	Superintendent 	to 	review 	whether

20
Presbyterian’s adverse determination regarding coverage of HBOT deprived Jessica
of “medically necessary covered services.” See 13.10.17.29(C) NMAC (5/15/2012);
State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 22, 117 N.M. 346, 871 P.2d
1352 (stating that when “the meaning of a statute is truly clear—not vague, uncertain,
ambiguous, or otherwise doubtful—it is of course the responsibility of the judiciary
to apply the statute as written”). The regulation promulgated by the Superintendent
reveals the purpose of the external review hearing: “to determine whether, as a result
of the health care insurer’s adverse determination, the grievant was deprived of
medically necessary covered services.” 13.10.17.29(C) NMAC (5/15/2012). To this
end, the Code pointedly defines “medical necessity” or “medically necessary” 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 “medically necessary” in Jessica’s 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’s 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
“initial 	external 	review 	of 	experimental 	or 	investigational 	treatment 	adverse

8We 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’s 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 “that a covered person shall have the right, at a minimum . . . to
available and accessible services when medically necessary”).
21
determinations[.]”
III. 	The District Court’s Reversal of the Superintendent Was Erroneous
{28} 	While we have held that the district court improperly concluded that HBOT was
a “covered benefit” pursuant to her insurance contract, and improperly applied
13.10.17.28(B) NMAC as the definition of “medical necessity,” we must yet
determine whether Presbyterian’s denial of coverage withstands Rodarte’s challenge
under 13.10.17.7(L).8 See Marckstadt v. Lockheed Martin Corp., 2010-NMSC-001,
¶ 18, 147 N.M. 678, 228 P.3d 462 (holding in the context of vehicle insurance that
parties’ freedom to contract does not excuse them from “the necessity of meeting
[applicable] statutory and regulatory requirements”). 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’s reversal
could be correct on grounds not relied on by it. See Meiboom v. Watson, 2000-NMSC-

22
004, ¶ 20, 128 N.M. 536, 994 P.2d 1154 (stating that an appellate court may affirm
a trial court’s 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 “set aside, reverse[,] or
remand the final decision” 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.
{29} 	To ascertain whether substantial evidence supported the Superintendent’s final
decision upholding Presbyterian’s coverage denial, we look to the record. We note
that the Superintendent’s internal review panel first determined that there was a lack
of evidence that HBOT improved Jessica’s condition. First, it observed that Jessica’s
pre-screening exam was conducted four months prior to the first application of HBOT
and was therefore “not an appropriate objective scientific tool for measuring the effect
of HBOT.” As well, it concluded that the case studies presented to the panel by Dr.
Stoller were not comparable to “high level research studies[,] such as those done in
a prospective, randomized, controlled, double-blinded fashion.” It also pointed to the
absence of evidence establishing a causal linkage between Jessica’s “alleged
improvements” and HBOT treatment, and a study provided by Dr. Stoller that noted

23
the inability to gauge the efficacy of HBOT when utilized within a year of a traumatic
brain injury. We conclude this to be “relevant evidence that a reasonable mind would
find adequate to support a conclusion[,]” required for a determination of the existence
of substantial evidence. Ponder, 2000-NMSC-033, ¶ 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 of
HBOT to treat Jessica’s anoxic brain injury.
{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’s 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, ¶ 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, “so long as the
circumstances do not make it unfair to the appellant to affirm”); see also Martinez v.
N.M. State Eng’r Office, 2000-NMCA-074, ¶ 21, 129 N.M. 413, 9 P.3d 657

24
(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’s
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.
CONCLUSION
{31} 	For the foregoing reasons, we reverse the judgment of the district court and
reinstate the final order of the Superintendent upholding Presbyterian’s denial of
coverage.
{32} 	IT IS SO ORDERED.
_________________________________
J. MILES HANISEE, Judge

25
I CONCUR:
_________________________________
LINDA M. VANZI, Judge
VIGIL, Chief Judge (dissenting in part, and specially concurring).

9Presbyterian’s 	insurance 	contract 	defines 	“medical 	necessity” 	to 	be:
“appropriate or necessary services as determined by a Provider/Practitioner, in
consultation with Presbyterian . . . which are provided to a Member for any covered
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.”
10Unless otherwise indicated , all future references shall be to the 2012 version,
and for ease of reference shall be referred to as “Section .7(L).” Section .7(L) defines
“medical necessity or medically necessary” as: “health 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
26
VIGIL, Chief Judge (dissenting in part, and specially concurring).
{33} 	I dissent in part, and specially concur in the majority opinion for the reasons set
forth below.
DISSENT
{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’s condition are without question
experimental or investigational. As such, they are not “medically necessary” under
Presbyterian’s plan 9 and they do not satisfy the Code’s general definition of “medical
necessity” set forth in 13.10.17.7(L) NMAC (5/12/2012). 10 That is to say, until a

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[.]”
11Unless otherwise indicated, all future references shall be to the 2012 version,
and for ease of reference shall be referred to as “Section .28.” In its entirety Section
.28 provides:
A. 	coverage; the recommended or requested health care service:
(1) 	reasonably appears to be a covered benefit under the grievant’s health
benefit plan except for the health care insurer’s determination that the health care
service is experimental or investigational for a particular medical condition; and
(2) 	is not explicitly listed as an excluded benefit under the grievant’s health
benefit plan; and
B. 	medical necessity; the grievant’s treating provider has certified that:
(1) 	standard health care services have not been effective in improving the
grievant’s condition; or
(2) standard health care services are not medically appropriate for the
27
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 “medically necessary” under Presbyterian’s plan and the Code’s general provision.
{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). 11

grievant; or
(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:
(a) recommended by the grievant’s treating provider that the treating provider
certifies in writing is likely to be more beneficial to the grievant, in the treating
provider’s opinion, than standard health care services; or
(b) requested by the grievant regarding which the grievant’s 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’s 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 be
more beneficial to the grievant than available standard health care services.
28
The majority concludes that Section .28 serves only a gatekeeper function by “merely”
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. 	¶ 	24. 	The 	majority 	then 	determines 	that 	an 	experimental 	or
investigational treatment must fulfill an impossibility, which is to satisfy the Code’s
general definition of “medical necessity” in Section .7(L), Majority Op. ¶ 25, and after
weighing the evidence itself, concludes that the HBOT treatments are not “medically
necessary” under Section .7(L). Majority Op. ¶ 27. I dissent from these conclusions.
{36} 	Presbyterian denied coverage on the grounds there is no coverage for Jessica’s
condition and because the treatment was for “experimental or investigational services
[or] treatments.” Rodarte sought administrative review of the denial, and the
Superintendent granted review under Section .28. The hearing panel appointed by the

29
Superintendent, took evidence and made a recommended decision. It considered
whether Jessica’s proposed treatment satisfied the criteria of Section .28, and
concluded that it does not. The hearing panel therefore recommended upholding
Presbyterian’s denial of HBOT treatments under Section .28.
{37} 	The Superintendent upheld the hearing panel’s 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 “medically necessary covered services.” Thus, ruled the Superintendent, the
services must be “medically necessary” before Presbyterian’s adverse determination
could be reversed. Pertinent to the issue before us, the Superintendent specifically
ruled, “Although 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.” The Superintendent then
specifically ruled that the HBOT treatment denied by Presbyterian “does not meet the
requirements necessary to establish medical necessity[.]” The Superintendent also
added, “pursuant to 13.10.17.B NMAC” 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

30
under Section .28(B) in upholding Presbyterian’s denial. (I infer a typographical error
in typing “13.10.17.B” instead of “13.10.17.28(B)”).
{38} 	Rodarte then appealed to the district court, specifically arguing that the HBOT
treatment was “medically necessary” under Section .28(B). As the majority points out,
the district court ultimately considered whether the treatment satisfied the requirement
of “medical necessity” in Section .28. Majority Op. ¶ 9. In its ruling, the district court
ruled that “the proper standard for the ultimate agency review of the medical necessity
of an experimental or investigational medical procedure is . . . [Section .28(B)],” and
that the specific standard in Section .28(B) 	applies, rather than the more general
definition of “medical necessity” found at Section .7(L). It is from this order that
Presbyterian appeals.
{39} 	Presbyterian, 	the 	hearing 	panel 	appointed 	by 	the 	Superintendent, 	the
Superintendent, and the district court all concluded that the standard of “medical
necessity” 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. ¶ 24. Where the majority’s 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,

31
“[w]hat would be the point of permitting appeals that could never, by definition,
succeed?” 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.
{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,
¶ 11, 149 N.M. 660, 253 P.3d 950. As such, “each 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.” Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, ¶
23, 147, N.M. 523, 226 P.3d 622 (internal quotation marks and citation omitted).
Moreover, “The 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.” Lu v. Educ. Trust Bd.
of N.M., 2013-NMCA-010, ¶ 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, ¶ 36, 309 P.3d 1047. Application of these

32
settled principles requires that, in the case of an experimental or investigational
treatment, the definition of “medical necessity” in Section .28 governs instead of the
general definition of “medical necessity” 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.
SPECIAL CONCURRENCE
{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.
{42} 	Under subsection (A) of Section.28, it must be considered: (1) whether HBOT
reasonably appears to be a covered benefit under Presbyterian’s plan, except for
Presbyterian’s determination that HBOT is experimental or investigational; and (2)
HBOT is not explicitly listed as an exclusion under Presbyterian’s plan. Part I of the
majority opinion in ¶¶ 12-16 demonstrates that Presbyterian’s insurance contract does
not provide coverage for Jessica’s 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’s

33
health plan, they are specifically excluded. I therefore conclude that Rodarte failed to
prove that subsection (A) of Section .28 was satisfied.
{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 “medically
necessary” under Section .28(B)(3)(b).
{44} 	In seeking to prove such “medical necessity” Jessica’s 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 “the 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.” After noting Jessica’s treatments by Dr. Stoller, and Jessica’s response to those
treatments, the hearing panel concluded, “Due to the lack of evidence that HBOT
caused Ms. Rodarte’s 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’s
improvements.” Based on its review of the evidence, the hearing panel concluded that
the evidence failed to demonstrate that the HBOT treatments were medically

34
necessary under Section .28(B). The Superintendent in turn adopted, approved, and
accepted the hearing panel’s recommendation.
{45} 	I conclude that substantial evidence supports the Superintendent’s 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. ¶¶ 26-28.
{46} 	I therefore specially concur in the result reached.
MICHAEL E. VIGIL, Chief Judge