Autism and ERISA - A Modern Day versus Goliath

[Guest guest]

A local, central-Ohio family is suing their insurance company in an attempt to receive payment for their son's ABA Therapy. As expected, they have encountered many hurdles. This is an article written by their lawyers about the experience thus far. The lawyers are based out of Colorado, where they are circulating this story to various media outlets; they have also reached out to Autism Speaks for coverage.

I wanted to do my part and try to circulate the story here in Ohio. PLEASE feel free to circulate.

Thank you,

Jessie

Autism and ERISA - A Modern Day versus Goliath

By R. Craig Ewing

This case involves a claim for coverage by two special parents on behalf of their five year old son for ABA therapy against their medical insurer whom I will call Goliath Insurance. The family's health benefit plan is subject to the Employee Retirement Income Security Act of 1974 ( " ERISA " ). Almost all benefit plans obtained through employment are subject to this federal law.

ERISA is complicated. It generally requires an ERISA claimant to complete an appeals process before he or she can file a lawsuit if his or her request for benefits is denied. If the health benefit plan gives the decision-maker " discretion " to determine a claimant's eligibility for benefits or construe the terms of the plan, the judge who decides the case must give deference to the decision of the health benefit. And, an ERISA claimant does not get a jury trial if he or she loses the appeal or any opportunity to question the health benefit plan or its decision-makers. When they get to court, these types of cases are decided on the documents submitted as part of the appeals process. The concept behind this system is that ERISA decision-makers are supposed to be fiduciaries that are charged with keeping the best interests of the claimant in mind and to provide a fast, economical system for resolving benefit disputes. The reality is otherwise. 's case is the perfect example of why ERISA does not work.

is a darling five-year-old boy with autism. Goliath denied coverage for 's ABA autism therapy on the grounds that it is experimental and investigational. Goliath has a " technology assessment, " which is no more than an internal policy guideline that says that ABA autism therapy is experimental and investigational. The technology assessment in 's case says that ABA autism therapy is experimental and investigational largely based upon outdated or irrelevant scientific research. We do not know who wrote it or whether that person is an expert with respect to treating children with autism.

is entitled to two appeals of Goliath's erroneous decision. At the first level appeal, we presented evidence from the National Academy of Science, the National Institute of Mental Health, the 2007 American Academy of Pediatrics report and the 1999 report of the Surgeon General that acknowledge and recommend ABA autism therapy for the treatment of young children with autism. We discussed the fact that Medicaid in many states covers ABA autism therapy, along with TRICARE. We highlighted the fact that the judiciary has recognized that ABA autism therapy is not experimental and investigational. We pointed out that states including Texas and South Carolina have passed laws mandating coverage for ABA autism therapy. We highlighted the reasons why Goliath Insurance's technology assessment is wrong and based on old, out-dated data.

Goliath wasn't convinced and denied our appeal. It turned a blind eye to the overwhelming evidence in support of ABA autism therapy and the unimpeachable scientific organizations that endorse it. In its denial letter Goliath didn't even attempt to explain why the evidence we presented was insufficient - it simply " rubber-stamped " its technology assessment.

We spent the next three months trying to get an explanation from Goliath as to exactly what was lacking in the evidence and arguments we presented. No luck. We tried to find out something about the " reviewer " who decided our case against us. Who is this genius? But, Goliath's compliance director refused to provide us with the reviewer's educational history, credentials or experience treating children with autism on the grounds that the decision made was " administrative. " In other words, and much to our amazement, Goliath didn't even bother to use any clinical judgment or critically evaluate ABA autism therapy in this case.

Tired of our jive, Goliath's compliance director bumped us to the legal department. The legal department explained that the decision was based upon a " white paper " that Goliath Insurance could not give us because it was " proprietary. " We suspected that the " white paper " may in fact be the technology assessment but weren't sure. It was critical that we knew what was in the evidence being used against us.

As it turned out, while we were not allowed to have the " proprietary " white paper, we were allowed to have the non-proprietary technology assessment. The legal department begrudgingly acknowledged that the papers are one and the same. Go figure.

Goliath's legal department also refused to give us any of the documents used as references in the technology assessment. Goliath is required by law to give copies of these documents. After several communications and false assurances that these documents would be provided, Goliath's legal department finally admitted that it could not locate any of the reference documents. Amazingly, the legal department told us that none of individuals who made the decision to deny 's ABA autism therapy read the references that formed the basis for the technology assessment.

In the three months that we tried to get an explanation regarding Goliath's denial of our first-level appeal and all of the reference materials used by Goliath in determining that ABA autism therapy is experimental and investigational, we wrote to Goliath nine times and spoke to its legal department on a number of occasions. Despite our best efforts and the law requiring Goliath to provide this information, we had to write our second level appeal without a real or reasoned explanation from Goliath as to its denial of our first level appeal or many of the references that form the basis for Goliath's technology assessment. This is wrong.

Clearly, Goliath has not met its responsibility to act as a fiduciary, but may get away with it given the home court advantage afforded a benefit plan under ERISA. Even if we file a lawsuit and win, the most can be awarded are the benefits at issue, interest on overdue amounts and attorney's fees. ERISA preempts state laws that allow for emotional distress damages, punitive damages or anything above and beyond what his health benefit plan provides. Under this legal scheme Goliath has absolutely no incentive to change its pattern of irresponsible pseudo-decision making and refusal to comply with the law. In ERISA there is virtually no accountability or consequences for this type of behavior. ERISA simply does not work in these types of cases. I hope that Congress will notice cases like 's and pay attention to all of the s out there who deserve a fair shot at obtaining coverage.

Keep in mind that the Biblical won his battle with Goliath. Our intends to follow in his footsteps.

_______________________Jessie Beauvais JessieBeauvais@...