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@...