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Class Action Lawsuit Against Anthem for Denying Autism Benefits

In our special education practice, probably the most common diagnosis our clients have is autism. Applied Behavior Analysis (ABA) therapy is one of the few generally accepted and scientifically reviewed interventions for autism. Under an Indiana law, which is sometimes referred to as the "autism mandate," health insurance companies are generally prohibited from excluding (the statute uses the terms "deny, refuse, terminate or restrict") autism from coverage. Hundreds, if not thousands, of Indiana children with autism need ABA therapy to gain skills, communication, and to overcome many of the challenges of Autism. Many families have to use private providers to get appropriate ABA therapy and services for their children. This can be expensive, with full-time programs costing upwards of $30,000 a year. Most families lack the resources to pay for this out of pocket, so people with health insurance have submitted claims to receive benefits for ABA.

In response to the large number of claims Anthem, one of the largest health insurers in the nation, adopted a policy or practice of systematically reducing benefits for ABA for school age children. According to Anthem, ABA is available at no cost to families through the public school system and therefore it was disallowing some of the hours being claimed for private ABA. Anthem's argument is absurd, akin to denying benefits for a doctor's office visit and prescription medication for your sick child because he could have gone to the school nurse.

Anthem policyholders received letters, signed by physicians employed by Anthem, claiming that ABA (or a certain number of hours of ABA) was not "medically necessary"-- despite the fact that families had treatment plans from their own providers recommending ABA. Anthem also reduced benefits for ABA for school-age children on the basis that ABA is excluded from coverage as an "educational service" which the public schools should provide. Some parents challenge the reductions through Anthem's internal appeals process. Most are probably unsuccessful and give up--which is exactly what Anthem is counting on.

But one Indiana couple whose son has autism received one of the letters from Anthem and decided to fight back, filing suit last week in federal court in Indianapolis and asking to have the case certified as a class action. Click here to see the Complaint.

Generally, the lawsuit alleges that under federal law (ERISA) benefit plans have to comply with non-preempted state and federal laws. Anthem's policy or practice of systematically disallowing hours for ABA violates both the Indiana autism mandate and the federal mental health parity act, which prohibits "requirements or limitations" on mental health benefits which are more restrictive than the requirements or limitations imposed on medical or surgical benefits. It also alleges that Anthem breached its fiduciary duty to beneficiaries.

The lawsuit represents the best hope for getting insurance coverage for ABA short of major changes to legislation. Several similar lawsuits have been filed in other states with favorable results for families.

Our Education Law attorneys help children with autism and other special needs obtain the services they are entitled to by law from public schools. Call us today for a free consultation