UPDATED: 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 coverage for 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, and is not supported by Blue Cross' own medical policy, held that Blue Cross' denial of insurance coverage for this therapy on the ground that that the therapy is "experimental" was arbitrary and capricious under federal law.

This ruling is expected to benefit over 500 children with autism spectrum disorder and result in over $5 million in ABA therapy benefits being paid to class members.  In his ruling, Hon. Stephen J. Murphy, III held that "BCBS's medical policy [characterizing ABA therapy as "experimental"] is internally inconsistent, ambiguous, and, most fatally, not supported by the evidence in the record."  The court granted the families' motion for judgment, declared Blue Cross' policy "arbitrary and capricious" under ERISA, overturned Blue Cross' denials of the families' claims for ABA coverage, and ordered Blue Cross to provide notice of the ruling to the families at Blue Cross' expense.

The court previously certified the case as a national class action, such that the case is on behalf of all similarly situated families covered by an ERISA health plan insured by or administered by Blue Cross, and who, at any time, were denied coverage for ABA therapy by Blue Cross on the ground that such therapy is allegedly "experimental" or "investigative," pursuant to Blue Cross' 2010 policy statement.  Blue Cross attempted to overturn the court's initial class certification ruling in the Sixth Circuit Court of Appeals, but the Court of Appeals denied Blue Cross' Petition to Appeal in 2012.

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, a report commissioned by Medicare and Medicaid, 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 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.