Federal Court Strikes Down Blue Cross of Michigan's Denial of Applied Behavior Analysis Therapy to Children with Autism

DETROIT, April 1, 2013 /PRNewswire/ -- The federal district court in Detroit held, on March 30, 2013, that Blue Cross Blue Shield of Michigan acted illegally in denying Applied Behavior Analysis ("ABA") therapy to children with autism spectrum disorder.  The case is Potter, et al. v. Blue Cross Blue Shield of Michigan, Case No. 10-14981 (E.D. Mich., Hon. Stephen J. Murphy, III).  The court, noting that ABA therapy is supported by numerous authorities,  held that Blue Cross's denial of insurance coverage for this therapy on the ground that that the therapy is "experimental" was arbitrary and capricious under ERISA.

This ruling is expected to benefit over 500 children with autism spectrum disorder, and will result in over $5 million in ABA therapy benefits being paid to class members.  In his ruling, Hon. Stephen J. Murphy, III held that Blue Cross's characterization of ABA therapy as "experimental" was not supported by its own Medical Policy.

The court previously certified the case as a national class action, such that the case is proceeding on behalf of all similarly situated families, and specifically, all individuals who, on or after December 16, 2004, were insured in an ERISA plan insured by or administered by Blue Cross, and who were denied coverage for ABA therapy by Blue Cross on the ground that such therapy was allegedly "experimental" or "investigative."  Blue Cross attempted to overturn the class certification ruling in the Sixth Circuit Court of Appeals in Ohio, but the Court of Appeals denied Blue Cross' Petition to Appeal in 2012.

After the case was certified as a class action, Blue Cross failed to comply with a court order requiring Blue Cross to compile the names of families who were denied ABA therapy.  The attorneys for the families were therefore forced to file a motion to hold Blue Cross in contempt of court.  Blue Cross then attempted to comply with the court's order. 

According to the suit, ABA therapy is a medically and scientifically accepted treatment that enables children with autism to increase communication, motor, and reasoning skills; enhance social functioning; decrease negative behaviors; and lead more independent lives.  The U.S. Surgeon General, the National Institutes of Health, the American Academy of Pediatrics, the Medicare and Medicaid systems, and leading scholars and researchers have all found ABA therapy to be effective in treating autism spectrum disorder. 

The evidence also shows that denying or delaying treatment can have profound negative consequences to the children.  Denial of therapy forever destroys the potential of these children to live full and independent lives.

Despite this evidence, Blue Cross has for years characterized ABA therapy as "experimental" and refused coverage to all children with autism.  It was this characterization and denial of coverage for ABA therapy that the federal court in Detroit struck down as illegal.

This ruling comes on the heels of another victory by the same law firms who litigated Berge, et al. v. United States of America, et al., Case No. 10-00373 (D.D.C., Hon. Reggie B. Walton), in which over 20,000 military families successfully sued the Department of Defense and Tricare for their denial of coverage for ABA therapy on similar grounds.

The attorneys for the Plaintiff families in Potter v. Blue Cross are:

Gerard V. Mantese, Esq.
Brian M. Saxe, Esq.
Mantese Honigman Rossman
 and Williamson, P.C.
1361 E. Big Beaver Road
Troy, Michigan 48083
248-457-9200 Office
248-515-6419 Cell
[email protected]
[email protected]

John J. Conway, Esq.
John J. Conway P.C.
26622 Woodward Ave., Suite 225
Royal Oak, Michigan 48067
313-961-6525   Office
313-574-2148   Cell
[email protected]

SOURCE Mantese Honigman Rossman and Williamson, P.C.

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