Midthun-Hensen v. Grp. Health Coop. of S. Cent. Wis.

• Decision Date: 06 May 2022
• Docket Number: 21-cv-608-slc
• Parties: ANGELA MIDTHUN-HENSEN and TONY HENSEN, as representatives of their minor Daughter, K.H., and on behalf of all others similarly situated, Plaintiffs, v. GROUP HEALTH COOPERATIVE OF SOUTH CENTRAL WISCONSIN, INC., Defendant.
• Court: U.S. District Court — Western District of Wisconsin

ANGELA MIDTHUN-HENSEN and TONY HENSEN, as representatives of their minor Daughter, K.H., and on behalf of all others similarly situated, Plaintiffs, v. GROUP HEALTH COOPERATIVE OF SOUTH CENTRAL WISCONSIN, INC., Defendant.

No. 21-cv-608-slc

United States District Court, W.D. Wisconsin

May 6, 2022

OPINION AND ORDER

STEPHENL.CROCKER, MAGISTRATE JUDGE

In this putative class action for monetary and equitable relief plaintiffs Angela Midthun-Hensen and Tony Hensen, as representatives of their minor daughter, K.H., allege that from 2017-2019, their health insurance provider, Group Health Cooperative of South Central Wisconsin, Inc. (“GHC”), unreasonably and unlawfully denied coverage for speech and occupational therapy as treatment for K.H.'s Autism Spectrum Disorder (“ASD”). Plaintiffs assert three causes of action: (1) to recover benefits due under GHC's health plan, pursuant to 29 U.S.C. § 1001 et. seq., the Employee Retirement Income Security Act of 1974 (“ERISA”), as enforced through 29 U.S.C. § 1132(a)(1)(B); (2) GHC violated the Mental Health Parity and Addiction Equity Act of 2008 (“Parity Act”)^[1] by failing to provide the sought-after treatment; and (3) GHC violated Wis.Stat. § 632.895, which mandates health insurers to provide certain coverage to treat ASD.

In the parties' Rule 26(f) report, GHC asserted that no discovery was necessary until the court resolved some threshold questions, namely, (1) whether GHC had reasonably determined that its plan did not provide the therapy requested by plaintiffs because the treatments were not evidence-based and were instead experimental and investigational, and (2) whether broader coverage was mandated by either the Federal Parity Act or Wisconsin's healthcare mandate. Dkt. 11. At the preliminary pretrial conference, the court set an early date by which GHC would file a front-end motion for summary judgment and stayed discovery “unless the court grants a Rule 56(d) motion.” Dkt. 12. GHC has now filed its contemplated motion, dkt. 13, and plaintiffs have filed their Rule 56(d) motion. Dkt. 23. Having considered both sides' submissions, I am denying plaintiffs' motion for discovery.

The general rule is that evidence beyond the administrative record is not permitted when the court reviews a claims administrator's denial of benefits under the “arbitrary and capricious” standard. Plaintiffs have failed to show that they qualify for an exception to this rule. As for their Parity Act claim, plaintiffs have failed to allege sufficient facts in their complaint from which it can be plausibly inferred that GHC denied their claims based on a treatment limitation that is separate from or more restrictive than those it applies to analogous medical treatment. However, as explained at the end of this order, I am giving plaintiffs an opportunity to amend their complaint before they respond to GHC's summary judgment motion if they wish to attempt to cure the deficiencies in their Parity Act claim.

The following facts are drawn from the administrative record attached to GHC's motion, and they do not appear to be in dispute. I am setting them forth as background for purposes of deciding plaintiffs' Rule 56(d) motion. They do not reflect findings of fact by the court.

FACTUAL BACKGROUND

GHC is a non-profit, health maintenance organization that offers health insurance and oversees the administration of benefits provided under those health insurance plans. Plaintiff Angela Midthun-Hensen enrolled herself, her husband (plaintiff Tony Hensen) and their daughter (K.H.) in an employer-sponsored health plan issued and overseen by GHC. K.H. has been diagnosed with Autism Spectrum Disorder (“ASD”). This case concerns GHC's denial of coverage, from 2017-2019, for two kinds of treatments that the Midthun-Hensens sought for K.H.'s ASD: (1) speech therapy and (2) occupational therapy.

GHC provides its members with a Plan Member Certificate that explains the terms, benefits, limitations and conditions of the group health plan. Article III of the Member Certificate for plaintiffs' plan specifies that GHC had “the discretionary authority to determine eligibility for Benefits and to construe the terms of [the] Certificate” and that any such determination or construction would be final and binding on the parties unless arbitrary and capricious.

The Member Certificates for the years at issue provided that all services that were not “medically necessary” were excluded by the plan. To be “medically necessary ” a treatment had to be deemed, among other things, to be “appropriate under the standards of acceptable medical practice” to treat the member's illness, disease or injury. The plan further provided that GHC, through its Medical Director, was authorized to make the determination whether a treatment was medically necessary and eligible for coverage under the plan, using criteria developed by recognized sources.

The Member Certificates provided that GHC's plan also excluded services that were “Experimental, Investigational, or Unproven.” Those terms were defined, in part, as follows:

[A] health service, treatment, or supply used for an illness or injury which, at the time it is used, meets one or more of the following criteria:

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b. is not a commonly accepted medical practice in the American medical community;

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h. lacks recognition and endorsement of nationally accepted medical panels;

i. does not have the positive endorsement of supporting medical literature published in an established, peer reviewed scientific journal;

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m. reliable evidence shows that the consensus of opinion among experts regarding the treatment, procedure, device, drug or medicine is that further studies or clinical treatments are necessary to determine its . . . efficacy or efficacy as compared with standard means of treatment or diagnosis. “Reliable evidence” shall include anything determined as such by GHC-SCW, within the exercise of its discretion, and may include published reports and articles in the medical and scientific literature generally considered to be authoritative by the national medical professional community, the written protocol(s) used by the treatment facility or the protocol(s) of another facility studying substantially the same treatment, procedure, device, drug or medicine; or the written informed consent used by the treatment facility or by another facility studying substantially the same treatment, procedure, device, drug or medicine . . .

All coverage otherwise provided by the plan-whether that coverage provided mental health benefits or medical/surgical benefits-was subject to exclusion if GHC determined that it was not “medically necessary” or that it was “experimental, investigational or unproven.”

GHC's plan provided some coverage for both “intensive level” and “non-intensive level” treatment for ASD, as required by Wisconsin's autism mandate, Wis.Stat. § 632.895(12m).

The Member Certificates described the coverage for “intensive-level services” for the treatment of ASD, in part, as follows:

Intensive-Level Services means evidence-based behavioral Autism Spectrum therapy (efficacious treatment) that is directly based on, and related to, a Member's therapeutic goals and skills as prescribed by a treating physician and provided by an Autism Qualified Provider, and when the prescribed therapy is for the treatment of Autism Spectrum Disorder, where the majority of treatment is provided in the Member's home where a parent or legal guardian is present and engaged in the therapy session(s) and meets the following requirements:

* * *

b. Provides evidence-based intensive therapy, treatment, and services in an environment most conducive to achieving the goals of the Member's treatment plan;

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d. Commences after the Member is two years of age and before the Member is nine years of age; and e. Intensive-Level Services are provided for no more than four years regardless of the payer.

The Member Certificates described the coverage for non intensive-level services for the treatment of ASD, in part, as follows:

Non Intensive-Level Services means evidence-based behavioral therapy that occurs after the completion of treatment with Intensive-Level services and that is designed to sustain and maximize gains made during Intensive-Level Services or, for the Member who has not and will not receive Intensive-Level Services, evidence-based therapy that will improve the Member's condition as prescribed by an Autism Qualified Provider when the prescribed therapy meets the following requirements:

* * *

b. Provides evidence-based behavioral therapy, treatment, and services in an environment most conducive to achieving the goals of the Member's treatment plan;

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The Member Certificates provided some coverage for outpatient rehabilitation therapies. However, they excluded outpatient rehabilitation therapies, including physical therapy, speech therapy, occupational therapy, and hearing treatments, when diagnosed for and used for the treatment of chronic brain injuries, including development delay, intellectual disability, and cerebral palsy. Sensory integration therapy (a type of occupational therapy used to treat autism) was not covered by the plan generally. In addition, GHC specifically excluded “sensory integration therapy” from coverage under its exclusions for ASD Services.

From 2017-2019, plaintiffs submitted seven requests for either speech or occupational therapy coverage for K.H.. K.H. turned 10 on March 9, 2018. GHC denied those requests on the ground that neither occupational therapy nor speech therapy for children over age 10 were evidence-based treatments for ASD and therefore, were not covered by the plan. Plaintiffs appealed, supporting their requests with letters from K.H.'s...