1. Case Name:  P.S., et al. v. State of Oregon, et al.

 2. Type of Treatment Services Denied: ABA therapy

 3. Lawyers:

Plaintiff: Megan E. Glor; Eleanor Hamburger, Sirianni Youtz, Spoonemoore, & Hamberger

Defendant: Sheila H. Potter, Department of Justice; Medora A. Marisseau, Karr Tuttle Campbell

 4. Format: Letter from the Hon. Tracey A. Prali, Circuit Court of Oregon, Third Judicial District

 5. Outline:

  1. Class Action/or Individual Action: Class Action
  2. Defendant: State provider and plan administrator
  3. Type of Insurance Plan: Oregon Public Employee Benefits Board (PEBB) self-insured plans
  4. Type of Coverage Denial: Medical Necessity

 6. Legal Pointer: This settlement included $17,500 in compensation to resolve allegations that the State of Oregon violated the civil rights of the Plaintiff by denying coverage of ABA therapy solely because it was “related to autism.” The plan’s denial letters specifically stated that: “Under Providence’s Plan, services ‘related to developmental disabilities, development delays or learning disabilities’ are specifically excluded from coverage. Because ABA services are related to Autism Spectrum Disorder, they are therefore not benefits covered by your plan.”

 7. Legal Issues and Causes of Action: Plaintiff contends Defendants violated the Federal Parity Act.

Ruling: Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ second claim for relief (disparate treatment), third claim for relief (disparate impact), and forth claim for relief (violation of public policy) based on the one-year statute of limitations was denied. Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ second claim for relief (disparate treatment), third claim for relief (disparate impact), and forth claim for relief (violation of public policy) based on failure to establish the elements of “associational disability discrimination” was denied. Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ claim for injunctive relief based on the claim being “moot” was denied.

 8. Narrative Case Description: P.S., a six-year-old girl with autism, sought coverage for ABA therapy. Her treatment was denied.

 This matter came before the Court on December 17, 2014 for a hearing on Defendants’ Motion for Partial Summary Judgment and Plaintiffs’ Motion for Partial Summary Judgment. The Court reviewed the Motions and heard oral arguments. At the conclusion of the hearing, Plaintiffs’ counsel asked for an opportunity to further brief the issues of whether prior authorization violated the Federal Mental Health Parity Act. On January 9, 2015, the Court held a Status Conference and was advised by the parties that they had agreed to carve out the Federal Mental Health Parity Act issue and requested the Court to rule on the Motions.

Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ second claim for relief (disparate treatment), third claim for relief (disparate impact), and forth claim for relief (violation of public policy) based on the one-year statute of limitations was denied. The Court concluded that there was a genuine issue of material fact as to whether Plaintiffs’ request for ABA in February 2014 was based on new medical necessity evidence making the denial in March 2014 a “discrete act” for purpose of the statute of limitations.

Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ second claim for relief (disparate treatment), third claim for relief (disparate impact), and forth claim for relief (violation of public policy) based on failure to establish the elements of “associational disability discrimination” was denied. The Court concluded that there was a genuine issue of material fact as to whether plaintiff was subjected to an adverse employment action, whether Defendants knew Plaintiff associated with a disabled person before the alleged adverse employment action was taken, and whether the alleged adverse employment action occurred under a circumstance that raises a reasonable inference that the disability of the relative was a determining factor in Defendants’ decision to take adverse action.

The Court did not address any arguments that Plaintiffs’ disability claims failed because they were based on Defendants’ actions in following the terms of a bona fide employee benefit plan. The parties agreed to “carve out” any arguments regarding the Federal Mental Health Parity Act.

Defendants’ Motion for Partial Summary Judgment on Plaintiffs’ claim for injunctive relief based on the claim being “moot” was denied. The Court held that there was a genuine issue of material fact as to whether Defendants continued to include the Developmental Disabilities Exclusion in the 2015 plan and whether the PEBB 2015 plan included illegal treatment limits.

 9. Additional Comments: This case later settled.

 10. Website: None.

 11. Practical Implications and Lessons Learned: This settlement followed numerous decisions and settlements in Oregon and Washington, directing health benefit plans to pay for coverage of ABA therapy as a treatment for autism.

 12. All Legal Theories Presented in Case: Violation of Federal Mental Health Parity Act

 13. Successful Legal Theories in Case: All.

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