1. Case Name: D.M. v. Group Health Cooperative (GHC)

 2. Type of Treatment Services Denied: Applied Behavioral Analysis (ABA) therapy for children with autism

  3. Lawyers:

  1. Plaintiff: Eleanor Hamburger & Richard E Spoonemore, Sirianni Youtz Spoonmore Hamburger
  2. Defendant: Douglas C. Ross & Rebecca Francis, David, Wright, Tremaine, LLP

 4. Format: Order denying Cross-Motions for Summary Judgment

 5. Outline:

  1. ERISA Claim?
  2. Class Action/or Individual Action: Class Action
  3. Defendant: HMO and health carrier
  4. Type of Insurance Plan: GHC Value Plan for Active PEEB Employees
  5. Type of Coverage Denial: Medically Necessary ABA therapy

 6. Legal Pointer: It was not the Court’s role on summary judgment to decide whether ABA therapy was an evidence-based, scientifically proven effective treatment for children with autism. The narrow issue present on the cross motions for summary judgment was whether, based on the factual record over which there was no dispute, either party was entitled to judgment as a matter of law.

One of the Court’s conclusions was that D.M. was not required by law to seek an IRO review before seeking judicial relief for a violation of the Mental Health Parity Act (MHPA) and for breach of contract. The Court stated that there was no requirement that a party pursue relief from an IRO before initiating litigation, but that an IRO did have the statutory authority to evaluate the medical and scientific soundness of GHC’s autism referral criteria, including the requirement that any autism therapy return the patient to a “pre-existing baseline level of functioning.”

 7. Legal Issues and Causes of Action: D.M. alleged that GHC wrongfully denied health insurance coverage to D.M. for ABA therapy. D.M. alleged that the denial of coverage breached the contract for insurance and failed to comply with the Washington MHPA, in violation of the Consumer Protection Act (CPA).

The parties stipulated to the filing of early summary judgment motions on the underlying substantive legal issues presented by D.M.’s Complaint. GHC sought the dismissal of all claims and, in turn, D.M. sought partial summary judgment and requested that the Court rule that GHC was in violation of the MHPA.

Ruling: The Court found that there were genuine issues of material fact requiring the Court to deny both parties’ motions for summary judgment.

 8. Narrative Case Description:  D.M. was the two-year-old son of C.C. and J.M. In early 2010, D.M. was diagnosed with autism. D.M.’s parents asked GHC to cover ABA therapy for D.M. after a psychologist with University of Washington’s Early Steps Study recommended this treatment and a GHC psychologist (Dr. James Keyes) submitted a request or referral to GHC for ABA therapy. GHC contended that Dr. Keyes did not conclude that ABA therapy was medically necessary for D.M. and made this referral merely because he was asked to do so by D.M.’s parents. D.M.’s parents disputed this characterization of events and contended that his decision to make the referral constituted his professional opinion that such therapy was medically necessary for their son.

GHC denied the request for coverage for ABA therapy. The basis for the denial, as explained to D.M.’s parents, was—consistent with the 2007 autism referral policy—that ABA therapy was an “educational” intervention, rather than a medical service, and GHC only provided “medically necessary treatment that was focused on diagnosis and addressing acute symptoms when there was a change from a baseline level of functioning.” The parents’ appeal was rejected by Dr. Steinfeld whose April 7, 2010 letter to D.M.’s parents identified another reason for denying coverage for the ABA therapy – D.M.’s therapists were not credentialed Group Health providers. Dr. Steinfeld specifically informed D.M.’s parents that it would cover outpatient mental health services for D.M. to address “acute behavioral symptoms” and that this type of service could be provided by GHC’s Dr. Keyes.

D.M.’s parents appealed the April 2010 coverage decision to the GHC Appeals Committee and a hearing occurred on June 9, 2010. The committee affirmed the decision via letter of June 14, 2010, which stated that the Member Appeals Committee voted to deny the request and maintained the decision of the health plan. The Appeals Committee agreed that ABA was primarily educational in nature, which was not a covered service by GHC. GHC informed C.C. and J.M. that they had the right to request a review of GHC’s decision by an independent review organization not affiliated with GHC. C.C. and J.M. chose not to seek such a review and opted to file suit instead.

While the contract did not expressly cover or exclude ABA therapy for autism, GHC, however, concluded that it would not cover ABA therapy because it was primarily “educational” in nature and was “not intended to return a patient to a pre-existing baseline level of functioning.” D.M. contended that that the pre-existing baseline level functioning test used by GHC to evaluate ABA therapy was not comparable to the definition of medically necessary which GHC used to determine coverage of medical and surgical services. GHC argued that this process was comparable to the way in which GHC determined the clinical necessity of certain medical interventions. Because there were genuine issues of material fact as to whether GHC used a “comparable” test for medical necessity for mental health services, the Court denied both motions for summary judgment.

GHC also moved to dismiss D.M.’s breach of contract claim; however, as with the MHPA claim, the Court found a genuine issue of material fact given that the pre-existing baseline level of functioning test was not explicitly set out in the plan and appeared to be inconsistent with the definition of “medical necessity.”

 9. Additional Comments: While D.M.’s appeals were working their way through GHC, D.M.’s pediatrician asked GHC to review the evidence supporting the efficacy of ABA therapy. GHC’s Medical Technology Assessment Committee (MTAC) undertook this review in April 2010. The MTAC concluded that there was insufficient evidence “from well-conducted randomized comparative trials with long-term follow-up” to conclude that ABA therapy was effective. In early May 2010, GHC’s Medical Directors Clinical Review & Policy Committee, the group responsible for making coverage determinations for GHC as a whole, decided not to provide coverage for ABA therapy under any of GHC’s existing coverage contracts because there was “insufficient evidence in the published medical literature to show that this service/therapy is as safe as standard services/therapies and/or provides better long-term outcomes than current standard services/therapies.” Both parties cited to an April 2011 report authored by the Vanderbilt Evidence-Based Practice Center, Therapies for Children with Autism-Spectrum Disorders, prepared for the Agency for Healthcare Research and Quality, with the U.S. Department of Health and Human Services, to support their respective positions on ABA therapy: D.M. and Dr. Glass contended that this report characterized ABA therapy as the most promising and effective treatment for autism that existed today, whereas GHC contended the report’s ultimate conclusion was the same as that reached by the MTAC – there were not enough published scientifically-sound studies to draw any meaningful conclusions as to ABA therapy’s efficacy. As stated above, the Court stated that it was not their role to decide whether ABA therapy was an evidence-based, scientifically proven effective treatment for children with autism.

 10. Website: To view the Settlement Agreement, click the following link and see pages 6-26: https://static1.squarespace.com/static/53c6d74ee4b0d369d70050a3/t/53faac4de4b050d619be81f1/1408937037818/Decl+of+Spoonemore+re+Prelim+Approval+%28w-Exs.A-C%29-052014.pdf

  11. Practical Implications and Lessons Learned: This case later settled.

  12. All Legal Theories Presented in Case: MHPA and Breach of Contract

 13. Successful Legal Theories in Case: Unclear due to the case settling



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