Families with autistic children begin receiving reimbursement checks from insurer BCBSM District judge approves payouts totaling $550,000

By John Minnis

Legal News

Some 72 families who were denied early treatment medical coverage for their autistic children by Blue Cross Blue Shield of Michigan began receiving reimbursement checks Tuesday, April 27, from the insurer. U.S. District Judge Stephen J. Murphy III, who handled the case, approved the payouts April 13.

The reimbursements totaling $550,000 are part of a settlement reached last June. Under the terms of the settlement, Blue Cross agreed to reimburse all families who paid for behavioral therapy for their children after May 1, 2003, and who were covered under a Blue Cross Blue Shield of Michigan insurance policy.

Handling the case, Johns v. Blue Cross Blue Shield of Michigan, for the plaintiffs were John J. Conway of Royal Oak and Gerard Mantese, of Troy.

"It is the real deal when you are involved with a case like this one," said Conway, who runs his own firm out of the offices of Fildew Hinks on Woodward in Royal Oak. "We did not take any fees from the families. We thought that was very important. We didn't take a penny from the families."

The road to the landmark settlement began with a 2006 case, Mayfield v. ASC Employee Welfare Benefit Plan, before the Hon. Anna Diggs Taylor, the first case where coverage for early autism treatment was obtained.

"He (Mayfield) came into the office and laid the case out. It was our first case of this type," Conway said. "We won. More and more people came in. A class action suit was bigger than I could handle, so I went to my former boss, and the rest is history."

Conway, 38, worked for Mantese before going solo in 1999. Currently, Conway and Mantese are representing the 9,000 pensioners in suing the Detroit General Retirement pension fund trustees for allegedly squandering over $100 million in pension funds.

In May 2008 Conway and Mantese, filed suit in federal court on behalf of Christopher Johns, father of a 7-year-old autistic son. The suit developed into a class action on behalf of every family denied claims by BCBSM of Michigan for applied behavioral analysis (ABA) treatment for autism. Blue Cross claimed the treatments were "experimental."

During the case, Judge Murphy ordered the insurer to produce file documents that validated the effectiveness of ABA therapy for treating children with autism spectrum disorder.

A 2005 BCBSM medical policy statement obtained by Conway and Mantese stated:

"Applied behavioral analysis (ABA) is currently the most thoroughly researched treatment modality for early intervention approaches to autism spectrum disorders and is the standard of care recommended by the American Academy of Pediatrics, National Academy of Sciences Committee and the Association for Science in Autism Treatment, among others."

Blue Cross documents further stated that "the earlier the disorder is diagnosed, the sooner the child can be helped through treatment interventions."

ABA therapy is administered under the supervision of licensed psychologists and other professionals. ABA applies 100-year-old concepts of changing behavior through positive and negative reinforcements. The Johns suit centered upon the ABA treatment provided by prestigious Beaumont Hospital and its HOPE Center. Expert witnesses included Dr. Ruth Anan and Dr. Lori Warner of Beaumont.

"Applied behavior therapy helps children with autism spectrum disorder achieve their potential," said Mantese. "John Conway and I feel it was an honor to work very hard on such an important case."

Conway is single, and his experience with children is limited to his nieces and nephews. He had read a couple of books on autism while in college, including one by best-selling autistic author Donna Williams, and he recalls Peter Jennings doing a special on the topic. But nothing prepared him for the Johns case.

"The case itself was life-changing," he said.

Conway said the parents were patient, not demanding, and easy to deal with.

"They are like peaceful activists," he said. "They are some of the best clients I ever represented."

Conway and Mantese are now working on a nationwide case involving denial of coverage for ABA treatment of early autism.

"We have received calls and emails from families all over the country, from Hawaii, California, and Utah, to Ohio, Pennsylvania, and Virginia asking for our help," said Mantese, "and we have given and will continue to give our time to this cause. We intend to fight hard to make this therapy available to all children with autism. We view this legal work to be of the highest importance."

Separate from the lawsuit, BCBSM announced in May 2009 that it would offer its customer groups the ability to purchase coverage for autism treatment programs that provide intensive early intervention such as applied behavioral analysis, to children ages 2-5.

"We knew we could resolve this matter to the benefit of the families involved, and are pleased to be able to conclude this matter in a manner that puts the families first who received services from the early intervention program," said Jeff Rumley, BCBSM vice president and general counsel, when the lawsuit was concluded last year. The lawsuit primarily involved past claims.

"In 2009 we were the first Michigan health care company to voluntarily offer the early intervention coverage option," said Rumley. BCBSM said it is still unaware of any other Michigan insurer providing customer groups with the ability to purchase the benefit option.

"We saw a need in the community and moved to find a way to address it," said Thomas Simmer, M.D., Blues senior vice president and chief medical officer, when announcing the new coverage option in May 2009. "We developed this coverage option as part of our commitment to improving the health and wellness of all Michigan children and families."

Published: Tue, May 4, 2010