Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
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`WESTERN DISTRICT OF WISCONSIN
`
`
`Plaintiffs,
`
`Angela Midthun-Hensen and Tony
`Hensen, as representatives of their minor
`daughter, K.H., and on behalf of all others
`similarly situated,
`
`
`
`
`
`v.
`
`Group Health Cooperative of South
`Central Wisconsin, Inc.,
`
`
`
`
`Defendant.
`
`
`Case No. ____
`
`
`CLASS ACTION COMPLAINT AND
`JURY DEMAND
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`This class action lawsuit is against Defendant Group Health Cooperative of South
`Central Wisconsin, Inc. (“GHC”) for violating the Paul Wellstone and Pete Domenici Mental
`Health Parity and Addiction Equity Act (“Parity Act”), 29 U.S.C. § 1185a and as prohibited
`under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001 et. seq.
`
`The Plaintiffs are Angela Midthun-Hensen and Tony Hensen, as the representatives of
`their minor daughter, K.H.1, and on behalf of all others similarly situated. Based on the best of
`Plaintiffs’ knowledge, information, and belief formed after a reasonable inquiry under the
`circumstances, by and through their undersigned counsel by way of Class Action Complaint
`against GHC, Plaintiffs hereby allege as follows:
`
`
`1 The name of the minor child, K.H., is abbreviated in the public version of this Complaint to
`comply with the Health Insurance Portability and Accountability Act of 1996 and to protect the
`confidentiality and privacy of the child diagnosed with autism. The name of the minor child is
`known to GHC and will be disclosed to the Court with a confidential sealed version of the
`Complaint, as necessary.
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 2 of 29
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`NATURE OF CASE
`A. Autism Spectrum Disorder
`Autism Spectrum Disorder (“ASD”) is defined by the Diagnostic and Statistical
`
`Manual of Mental Disorders (5th ed.; American Psychiatric Association, 2013). The diagnosis
`of ASD is characterized by persistent deficits in social communication and social interaction
`across multiple contexts. ASD is manifested by deficits in social-emotional reciprocity, deficits
`in non-verbal communication behaviors used for social interaction, and deficits in developing,
`maintaining, and understanding relationships. The severity of ASD is based on social
`communication impairments and restrictive, repetitive patterns of behavior. Recent studies
`reveal autism prevalence among children in the United States has climbed to 1 in 40 children
`ages 3 to 17.
`Plaintiffs’ daughter, K.H., is thirteen years old and has the primary diagnosis of
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`ASD. K.H.’s autism symptoms include development speech delay, inadequate social skills,
`and poor motor planning and function. K.H. works hard to gain skills that are easily attainable
`by her peers. Due to her ASD, she struggles with the daily tasks of dressing, personal hygiene,
`social interaction, and other common every-day activities. As K.H. has gotten older, she has
`become more aware that she is different from many of her peers and family members, and
`consequently, has become more prone to outbursts and self-harm. K.H.’s lack of social
`awareness and speech comprehension impede her ability to make friends. As any thirteen-year-
`old, K.H. wants to fit in and be accepted socially, the way she sees her classmates and peers
`accepted. Missing this essential social acceptance, she has started to talk negatively about
`herself.
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`K.H.’s health care providers have continuously recommended that she receive
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`treatment called Applied Behavioral Analysis (“ABA”) for her ASD. ABA is generally
`accepted in the medical community as an effective form of treatment for minors (defined as
`under age 22 by Wisconsin law) with ASD. ABA is a type of therapy that focuses on improving
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 3 of 29
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`specific maladaptive or stereotypic behaviors and targets social skills and adaptive learning
`skills. The American Academy of Child and Adolescent Psychiatry (“AACAP”) empirical
`reports state that of all clinical, non-educational interventions, ABA has been the most widely
`shown in scientific research to improve the ability of autism patients to adapt to their
`environment and engage with those around them.
`K.H. has been receiving ABA to treat her ASD symptoms. She started speech
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`therapy in May 2017 and has continued to make progress. K.H.’s speech therapist
`recommended that K.H. have an Occupational Therapy (“OT”) Evaluation and treatment to
`address the delays K.H. experiences in developing her motor and self-help skills. As a result of
`the assessment and K.H.’s providers’ direction, K.H. requested GHC—the health-funded
`cooperative association and group health plan administrator for Plaintiffs’ Plan, described more
`fully below—to approve OT treatment for K.H. in October 2018.
`Children with ASD have a range of occupational performance challenges that
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`interfere with their meaningful participation in school, home, and social activities. A
`predominant characteristic of autism that is often the focus of intervention is the child’s sensory
`processing of another person’s gestures to communicate or relate to others with eye contact.
`Occupational therapists focus on enhancing a child’s sensory processing, social behavioral
`performance, self-care, and participation in play. The role of OT in the treatment of children
`with ASD is structured as an intervention associated with activities of daily living. This
`treatment includes therapy addressing the child’s ability to get dressed by themselves and
`engage in personal hygiene, with a particular focus on increasing the child’s ability to live more
`independently and decrease the need for one-on-one assistance. The foundational skills of OT
`allow children to participate in other critical development activities, such as education and play.
`A child’s successful completion of OT enhances a pathway for children to develop life skills,
`modulate behavior, and participate in social interaction.
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 4 of 29
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`Children with autism present problems in receptive, expressive, and pragmatic
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`language. Because deficits in language and communication are acknowledged impediments to
`a child’s progress in education and social settings, children with autism benefit from speech
`and language therapy.
`B. GHC Denied Coverage of Speech Therapy and OT Treatment for K.H.
`In January 2019, GHC denied Plaintiffs’ request for coverage for K.H.’s Speech
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`and Language Therapy (“speech therapy”). GHC stated its reason for denial was that speech
`therapy is not evidence-based treatment for the core deficits of ASD for children ages 10 and
`above, and, accordingly, speech therapy is not a covered benefit under the terms of the group
`policy.
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`The same month, on January 4, 2019, GHC issued its decision denying coverage
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`of OT for K.H.’s autism. The reason GHC stated for denial was that OT for treating ASD is
`considered experimental and investigational because it is not an evidence-based treatment for
`autism. Accordingly, GHC excluded OT from coverage under the terms of the Plaintiffs’ group
`health benefits package.
`The Plaintiffs’ subsequent appeals of these denials for both speech therapy and
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`OT were denied by GHC. K.H.’s request for external review under the terms of the group policy
`was rejected on the grounds that speech therapy and OT for K.H. were not covered benefits
`under the terms of the Plaintiffs’ group policy.
` GHC stated that the criteria it used as the premise for denying speech therapy and
`OT coverage was its own medical policy, GHC-SCW Medical Policy CM.121. By developing,
`adopting, and applying GHC-SCW Medical Policy CM.121 (“Policy 121”) to justify denial of
`medically necessary covered benefits to K.H. and to other plan and group members and
`beneficiaries similarly situated, GHC is administering its plans for its own financial benefit
`rather than the benefit of the plan members, subscribers, and beneficiaries.
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 5 of 29
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` GHC’s exclusion of coverage of speech therapy and OT benefits for children with
`autism violates the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction
`Equity Act of 2008 (“Federal Parity Act”), codified at 29 U.S.C. §11858a. GHC Policy 121’s
`exclusion is unenforceable as a matter of federal law, and GHC’s application of it to deny
`coverage to Plaintiffs’ daughter, K.H., breached GHC’s fiduciary duties as the Plan
`administrator under the Employment Retirement Income Security Act of 1974 (“ERISA”). 29
`U.S.C. §1001, et. seq. GHC’s denial of benefits for K.H. and all others similarly situated also
`violates Wisconsin Statutes Annotated §632.895(12m), which mandates health coverage for
`treatment of ASD. W.S.A. §448.96(4) and (5) specifically defines occupational therapy as a
`covered service. Speech therapy is a recognized treatment for children with autism. W.S.A.
`§632.895(12m)(b). Accordingly, the GHC exclusions and Policy 121 are unenforceable as a
`matter of both federal and state law and are breaches of GHC’s fiduciary duties as the
`Administrator of the Group Plan.
`Through this action, Plaintiffs, on behalf of K.H. and all others similarly situated,
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`seek to enforce their rights under the employee welfare benefit plan per ERISA, the Federal
`Parity Act, and Wisconsin’s mandated autism benefits, which includes coverage for the
`treatment of ASD without limitations or exclusions.
`PARTIES
`
`Plaintiff K.H. is the thirteen-year-old daughter and dependent of Angela Midthun-
`
`Hensen and Tony Hensen. Angela Midthun-Hensen is a subscriber and beneficiary, as defined
`by ERISA (Section 3(8), 29 U.S.C. §1002(a)) of the GHC Welfare Benefit Plan. Angela
`Midthun-Hensen, Tony Hensen, and K.H. are insured as beneficiaries under the GHC Large
`Employer Group Health Policy (“Policy”). The Policy is a cooperative self-funded large group
`policy sponsored by Plaintiffs’ employer, Verona Area School District. The 2018 HMO Large
`Employer Group Plan is governed by ERISA and is administered by GHC.
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 6 of 29
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` GHC is a Wisconsin health-funded cooperative association organized for its
`members, which include school districts. GHC’s health plans are regulated by the
`Commissioner of Insurance, State of Wisconsin. GHC also acts as the administrator of the group
`health plans that it sells to various entities. The services covered by GHC’s health plans are for
`services that are “medically necessary,” which is defined as those services that are consistent
`with generally accepted standards of medical practices. As the Administrator of the Plaintiffs’
`group policy, GHC has developed internal policies and practices to facilitate its coverage
`denials for autism services as stated in Policy 121.
` As the Administrator for the Policy and other Plans issued by GHC, all
`responsibility for making final and binding coverage determinations under the Policy and plans
`belongs to GHC.
` Based on GHC’s role in making benefit and coverage determinations under the
`Policy, and other plans administered by GHC, GHC is a Fiduciary under ERISA, and
`accordingly, is responsible for discharging its duties solely in the interest of Plan participants,
`beneficiaries and their dependents. This Fiduciary responsibility includes ensuring that each
`plan GHC administers complies with ERISA and its Parity requirements.
`JURISDICTION AND VENUE
` GHC’s actions in creating, maintaining, and administering the group health plans
`are governed by ERISA, 29 U.S.C. §1001, et. seq., the Federal Parity Act, and Wisconsin
`mandated health treatment and coverage obligations. This Court has subject matter jurisdiction
`under 28 U.S.C. §1331 (“Federal Question Jurisdiction”). Jurisdiction arises under ERISA. 29
`U.S.C. §1132(e)(1).
` Venue is appropriate in this District. GHC administers the Group Plans in this
`District and conducts significant operations here. GHC is also headquartered in this Judicial
`District. 29 U.S.C. §1132(e)(2).
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`In conformity with 29 U.S.C. §1132(h), Plaintiffs served this Complaint by
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`certified mail on the Secretary of Labor and the Secretary of the Treasury.
`This Court has supplemental jurisdiction over Plaintiffs’ state law claims against
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`GHC because these claims are so interrelated to Plaintiffs’ federal claims that the state law
`claims form a part of the same case or controversy under Article III of the United States
`Constitution. This Court has supplemental jurisdiction over these claims pursuant to 28 U.S.C.
`§1367.
`FACTS COMMON TO ALL CLAIMS FOR RELIEF CONTAINED IN THIS CLASS
`ACTION COMPLAINT
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` Behavioral Health and Autism are Mandated Benefits in the GHC Group Plans.
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` Health insurance plans sold in Wisconsin include mandated benefits. Both the
`Federal Parity Act and Wisconsin law specifically include autism as a covered benefit.
`Section 512(b) of the Parity Act amends §2705 of the Public Health Service Act,
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`codified at 42 U.S.C. §300gg-26. This statute applies to group health plans or health insurance
`plans offering group health insurance coverage that provide both medical and mental health as
`well as substance use disorder benefits. 42 U.S.C. §300gg-26(a)(1). In the present case, GHC
`supplies group health insurance coverage as a health insurance issuer under the terms of the
`Federal Parity Act.
`Federal Parity Law preempts state laws to the extent the state law standards or
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`requirements prevent the application of the requirements of the Federal Parity Act.
` GHC’s decision as Plan Administrator in denying benefits to K.H. imposes
`arbitrary treatment limitations within the meaning of the Federal Parity Act. See 29 C.F.R.
`§2590.712. The Group Plan issued by GHC covers ABA services. Because autism is a covered
`benefit under the Group Plan, any limitation on autism services must be based upon recognized
`medical management standards. There is no language in the federal or Wisconsin statutory
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 8 of 29
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`schemes that would permit GHC to deny coverage for speech therapy to children under the age
`of 10 or deny coverage for OT treatment on the grounds that it is experimental.
`Plaintiffs’ Group Plan, created and administered by GHC, explicitly covers ASD
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`treatment as a benefit at all levels of care. ASD treatment is defined as “intensive-level services
`and non-intensive-level services for Autism Spectrum Disorder as classified in the Diagnostic
`and Statistical Manual of Mental Disorders (“DSM”) published by the American Psychiatric
`Association (“APA”).”
` Denial of Coverage.
` Although ASD treatment is expressly covered, the GHC Group Plan excludes
`coverage for “experimental, investigational or unproven services” that meet specified criteria.
`The exclusion says nothing about limiting ASD treatment for speech therapy for children over
`10 years old or that OT for persons with ASD is experimental. GHC discriminates against
`children over 10 years old based solely on age.
`Plaintiffs have sought authorization from GHC for coverage of OT and speech
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`therapy for K.H. Despite numerous requests and repeated appeals, including communications
`directly to GHC from K.H.’s providers, GHC consistently denied coverage based on its Policy
`121, which states that speech therapy is ineffective for children over the age of 10. GHC
`unilaterally interprets OT as “experimental” notwithstanding the medical necessity of OT and
`its proven effectiveness for children with autism. Only on September 8, 2021 did GHC finally
`authorize individual speech therapy one time per week for K.H.
` Under the Plaintiffs’ insurance policy’s Certificate of Coverage, both speech
`therapy and OT are included as benefits for children diagnosed with autism. K.H.’s treatment
`has been provided by qualified providers. These providers have created treatment plans to
`develop K.H.’s ability to function in social, communication, and functional skills. She has made
`progress against her stated goals and the speech therapy and OT have been successful in
`addressing the core characteristics of her autism.
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 9 of 29
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` GHC’s April 25, 2019 denial of Plaintiffs’ appeal letter stated as follows:
`“The decisions were based on the determination that speech and
`language evaluations and therapy are not evidence-based treatment
`for the core deficits of autism spectrum disorder for children ages
`10 and above according to the National Standards Project, National
`Autism Center (2015) and is not a covered benefit. The criteria used
`in this decision was GHC-SCW Medical Policy CM.121.
`Additionally, occupational therapy for the treatment of autism
`spectrum disorders is considered experimental and investigational
`because it is not an evidence-based treatment for autism. Please
`reference your 2018 HMO Member Certificate, Article VI:
`Exclusions and Limitations, Section A. Paragraph 12 on page 79.
`Group Health Cooperative of South Central Wisconsin provides a
`wide range of benefits and services. However, these benefits are not
`without limitation.”
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`The Plaintiffs’ subsequent request for external review was denied on September
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`19, 2019 where Maximus Federal Services stated that “the denial was based on a provision of
`your health plan contract; specifically regarding your benefit coverage and/or exclusions… and
`did not include medical judgment.”
` GHC administers the health benefits under the Group Plan. GHC knows or should
`know that its Policy 121 and its practice to enforce it by excluding treatment and benefits for
`children with Autism is baseless, arbitrary, and contrary to law. GHC’s denial of treatment as
`alleged herein was not the result of a deliberate, principled reasoning process. GHC’s denial of
`treatment was not made “solely in the interest of the participants and beneficiaries and… for
`the exclusive purpose of… providing benefits to the participants and their beneficiaries as
`required by …” ERISA. 29 U.S.C. §1104(A)(1).
` By applying and enforcing its medical policy to exclude speech therapy and OT
`from coverage, GHC has rendered the Group Plan’s coverage for autism treatment a mere
`matter of discretion. GHC’s interpretation of the Group Plan language precludes coverage for
`the most effective treatment for K.H. and other children with autism. K.H. and all other persons
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 10 of 29
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`similarly situated are denied medically necessary treatment benefits under all the Group Plans
`administered by GHC.
` GHC’s denial of coverage to K.H. and others similarly situated is wrong and
`causes injury to the child. As an ERISA Fiduciary, GHC owes the participants, subscribers and
`beneficiaries and dependents of the Plans it administers various fiduciary duties, including the
`duties of prudence, due-care, and loyalty. ERISA specifies that fiduciaries must discharge their
`duties solely in the interests of Plan subscribers, participants, beneficiaries and dependents “in
`accordance with the documents and instruments governing the Plan insofar as such documents
`and instruments are consistent with the provisions of ERISA.” 29 U.S.C. §1104. Accordingly,
`GHC owes all its Plan participants, subscribers, beneficiaries, and dependents a fiduciary duty
`to comply with ERISA and Wisconsin’s state-mandated health benefits. GHC must further act
`as a fiduciary by not enforcing Plan terms that create illusory benefits or violate federal or state
`law.
`
` Without coverage from GHC, Plaintiffs cannot afford to pay for more than pieces
`of K.H.’s speech therapy and OT. K.H. is unable to obtain complete treatment, which she
`desperately needs. Because K.H. was not able to receive the requisite OT and speech therapy,
`she has occasionally decompensated, acted out, and incurred setbacks in her physical, social,
`and mental development due to lack of ongoing treatment. Because continued and complete
`treatment is critical to modify the behaviors brought on by ASD, time is of the essence.
` GHC’s coverage denial for speech therapy is exactly what GHC promised
`participants it would not do on page 5 (non-discrimination notice) of its Plan marketed to the
`public:
`
`“Group Health Cooperative of South Central Wisconsin (GHC-
`SCW) complies with applicable Federal civil rights laws and does
`not discriminate on the basis of … age… GHC-SWC does not
`exclude people or treat them differently because of … age.”
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 11 of 29
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`Contrary to GHC’s published representations to induce the public to purchase its
`benefits, GHC, instead, discriminated against children based on their age.
` GHC’s Coverage Criteria for Speech Therapy and OT Used in GHC Coverage
`Decisions Fall Below the Generally Accepted Standards of Care for ASD.
` GHC’s coverage criteria contained in Policy 121 (2009) for ASD services does
`not meet the standard of care generally accepted by behavioral health professionals. The
`generally accepted standard of care for children with autism includes speech therapy treatment
`without regard to age and OT treatment.
` GHC’s coverage criteria for speech therapy is inconsistent with generally
`accepted medical practices because it arbitrarily denies coverage for speech therapy when a
`child becomes 10 years old. The association of the American Speech-Language pathologists,
`ASHA, conducted a comprehensive literature review of over 1,000 published studies from
`1990-2011. The resulting publication, Evidence-Based Practices for Children, Youth, and
`Young Adults with Autism Spectrum Disorder (2014), focuses on communication and social
`outcomes in young people with ASD, including youth up to the age of 22.
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`Among the practices that met the criteria for evidence-based speech therapy practices
`are:
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`• Social Skills Training: Specifically, “instruction designed to teach learners with
`autism spectrum disorders ways to appropriately interact with peers, adults and
`other individuals. Most social skills meetings include instruction on basic
`concepts… and feedback to help learners with ASD acquire and practice
`communication, play or social skills to promote positive interactions with peers.”
`There were numerous studies that showed the clinical benefit of this intervention,
`including 7 group studies and 8 single case studies.
`• Prompting: Verbal or gestural assistance given to patient to help them acquire or
`engage in a targeted behavior or skill.
`• Social Narratives: Social narratives that describe social situations by highlighting
`relevant cues and offer examples of appropriate responses.
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`Evidence-based treatments for speech therapy and speech intervention continue
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`beyond a child’s tenth year. Progress reports submitted by Plaintiffs to GHC during the appeal
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 12 of 29
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`process revealed that K.H. benefited from speech intervention therapy. They also show that she
`continued to need full speech therapy treatment to develop her functioning skills in social
`pragmatic language and remedy her core deficits in speech related to her autism diagnosis.
`The evidence-based research that OT is effective for children and adolescents
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`with ASD is well-documented. OT treatment and activities promote social interaction and
`problem-solving, and address specific skill acquisitions. In fact, the National Standards Project,
`Phase 2 (2015) (“NSP2”) supports the OT interventions K.H. receives from her autism
`providers. That publication includes guidance regarding intervention targets for treating people
`with ASD. Among the targets suggested are motor skills, self-regulation, and personal
`responsibility. These are the very targets that K.H. has been working on in her OT treatment,
`and she has been progressing and meeting her goals. According to the NSP2, targets used in
`treatment should increase developmentally appropriate skills. There is nothing in NSP2 that
`suggests its treatment is deemed “experimental” as insisted by GHC in Policy 121.
` Current Procedural Terminology Current CPT (CPT) is a listing of descriptive
`terms and identifying codes for reporting medical and behavioral health services and procedures
`performed by physicians and other health care providers. The CPT codes are permanent
`medical codes that are used with the Centers for Medicare and Medicaid Services and all
`insurance payors throughout the country to identify and pay for services supplied to children
`with autism.
`The CPT code is issued, copyrighted and maintained by the American Medical
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`Association. The inclusion of a description and its associated five digit code number in the
`CPT Category 1 code set is based on the determination that the procedural service is consistent
`with contemporary medical practice and is performed by many practitioners in clinical practices
`and multiple locations. Both occupational therapy and speech therapy for children with autism
`are Category 1 codes identified in the American Medical Association CPT codebook. As
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 13 of 29
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`Category 1 procedures, both treatments meet the AMA clinical efficacy criteria and are
`documented in literature that meets requirements set forth in the CPT code application process.
`Speech therapy for children with autism is not limited by age under any Category
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`1 CPT code. Occupational therapy for children with autism is widely accepted and as a
`Category 1 code, meets all criteria for current medical practice and is documented in literature
`that meets the requirements set forth by the American Medical Association to establish the CPT
`code designation.
`The generally accepted standards of medical practice for behavioral health and
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`persons with autism disorders do not impose artificial time limits on treatment. By contrast, the
`age-based time limit imposed by GHC’s Policy 121 is arbitrary and not patient-centered.
`Individual patients progress at different rates and not according to outdated “cookie cutter”
`templates such as Policy 121.
` GHC’s decision to deny coverage for speech therapy for children older than 9 years
`and to deny coverage for OT as “experimental” are decisions that are improperly infected
`by financial considerations.
` As an ERISA Plan Fiduciary, GHC is required to interpret Plan terms in a manner
`to ensure that the ERISA Plans it administers comply with ERISA requirements. GHC is
`prohibited as an ERISA Fiduciary from applying Plan provisions that restrict coverage or
`violate ERISA’s Parity provisions. GHC’s Policy 121, applicable to all plans administered by
`GHC, violates the coverage mandates of ERISA Parity and the Wisconsin Health Care
`Coverage mandates.
`Through the denial of coverage for OT and speech therapy, GHC saved
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`substantial funds to achieve its published financial goal to exceed minimum reserves under the
`Wisconsin insurance laws. GHC saved money at the expense of the medically necessary care
`and treatment of K.H. and all other beneficiaries similarly situated in Wisconsin. As a result, in
`the case of K.H., her parents have been paying for pieces of the medically necessary OT and
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 14 of 29
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`speech therapy treatment for K.H. out of their own pockets. K.H.’s parents cannot afford to pay
`for the complete medically necessary treatment K.H. requires and to which she is entitled under
`the Plan. Without Plaintiffs paying for these services, K.H. would not have received any level
`of care needed for treating her autism.
`In the course of the contractual relationship between GHC and its Subscriber,
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`Plaintiff Angela Midthun-Hensen, a power imbalance exists similar to that between a classical
`commercial insurer and a policy holder. Under GHC’s model, the risk to Subscribers is that
`GHC focuses on reducing aggregate costs while, simultaneously, refusing to supply the
`treatment needs of its individual subscribers and dependents. This is an economic model of
`healthcare profit rather than a patient’s health focused model.
`These financial incentives, referenced herein, have adversely infected GHC’s
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`development of its coverage policies for the purpose of rationing access to ASD treatment solely
`based on monetary considerations.
` Unlawful Age Discrimination - Parity Act
` GHC’s Plan and Policy violate ERISA by running afoul of the Parity Act. The
`Parity Act was made part of ERISA and is codified at 29 U.S.C. §1185a. The Parity Act
`prohibits placing treatment limitations on mental health benefits that are more restrictive than
`treatment limitations placed on medical/surgical benefits. This includes limitations on the
`duration of treatment.
` GHC limited the duration of speech therapy treatment by stopping benefits at age
`10, thereby placing a treatment limitation on mental health benefits. GHC places no similar
`treatment limitation on medical/surgical benefits. 29 C.F.R. §2590.712.
`ERISA requires health plans offering dependent coverage to make that coverage
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`available to children until they reach the age of 26. 29 C.F.R. §2590.715-2714(a)(1). GHC’s
`Policy and Practice of denying coverage to participants and dependents for speech therapy when
`they reach age 10 thwarts the requirement that coverage by provided until age 26.
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`Case: 3:21-cv-00608 Document #: 1 Filed: 09/27/21 Page 15 of 29
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`ERISA also prohibits varying the terms of a health plan by age, except for
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`children who are age 26 or older. Id. GHC’s interpretation of the Plan language and its Policy
`excluding speech therapy to children when they reach the age of 10 did exactly what it is not
`permitted to do – vary coverage based on age to individuals less than 26 years old.
`Plaintiffs and the Plaintiff Class have been damaged by GHC’s conduct of GHC’s
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`categorical denial of speech therapy based on age and OT based on the erroneous determination
`that OT is experimental.
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`CLASS CLAIMS
`Plaintiffs seek in this Action to end GHC’s standard practice of health coverage
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`discrimination against K.H. and other similarly situated enrollees with ASD who need speech
`therapy treatment and OT treatment deemed medically necessary by their respective health care
`providers. The Plaintiffs also seek to enforce the Federal Mental Health Parity Act through
`ERISA regarding the terms of the GHC Policy and Plan, and to end discriminatory practices.
` GHC created Policy 121 in November 2009. GHC has never amended Policy 121,
`notwithstanding the universally recognized fact that “evidence on autism treatments is
`frequently updated.” See Wisconsin Office of Commissioner of Insurance, Autism Mandate
`2019. At the time Wi