JJ Conway
J.J. Conway Law
J.J. Conway Law
These days it is common for ERISA cases involving children’s mental healthcare claims to be filed using pseudonyms. For the last decade, litigation seeking reimbursement for costly mental healthcare treatments has increased tenfold. Most cases bear only the child’s first name and last initial or the two initials of the first and last name.
There was another time, early in this work, when children’s mental healthcare cases were filed using the party’s actual names. Looking back on that now, it took courage for a family to open up about their struggles, which often were shielded from public view.
Such was the case with Johns v. Blue Cross Blue Shield of Michigan, the first autism class action ever certified in the United States. The case was brought by Chris Johns, a young father of a son with autism spectrum disorder. This was the first child of John and his wife, Lia, and they were determined to seek out the best medical care they could find. The family was insured by Blue Cross Blue Shield of Michigan through Chris’ employer and assumed their son’s treatment would be covered.
In their quest to learn more and do more to help their son, they enrolled their child in the GIFT program at the HOPE Center, an autism treatment center affiliated with Beaumont Medical Center. (Today it is the Ted Lindsay Foundation HOPE Center). The therapy offered was Applied Behavioral Analysis or “ABA Therapy,” a program of intensive medical care and training that worked with children to improve their functional abilities. The program was overseen by pediatricians and psychologists working for Beaumont.
The Johns family found that the ABA treatments were helping their son. They both learned how to reinforce the therapeutic lessons in their home, and their son began to show real gains. Around this same time, the denials for their treatment claims began rolling in. Despite their pleas and endless appeals, Blue Cross, their plan’s administrator, denied coverage for their son’s treatment.
The Johns family began attending support groups with other families dealing with the challenges of ASD. Each meeting was devoted to a discussion topic. And one topic kept coming up over and over again – insurance company reimbursements.
There were none.
During one support group meeting concerning insurance reimbursements, it turned out that the families were all receiving letters that reflexively denied all claims for ABA therapy as “unproven.” The denial letters all read the same.
Chris Johns volunteered to serve as a representative to challenge the denials. And what he did was no small thing. Johns worked for a Michigan business that was going through changes and was the subject of a rumored acquisition. With their jobs on the line, most employees would not want to bring an action over inadequacies in their employer-based healthcare plan. Johns was undeterred. He knew there was a real risk in challenging this practice, and he still went forward.
When I became involved with the case, I realized that it had the makings of a class action and was larger than my small law practice could handle. So, I approached my former boss, Gerard V. Mantese, and explained what was going on with the insurance denials. Mantese had significant class action experience and understood the complex process. As a father, he was moved by the plight of the families, and his staff was populated with young lawyers, many of whom were starting families of their own. They instantly identified with the Johns family and could not quite wrap their heads around the fact that ABA therapy was being denied for these children. They could also relate to the financial hardship these denials were causing to this young family.
These were the days before the Affordable Care Act, so there were variations in the cost-sharing and coverage among health plans for any class of plaintiffs. Owing to this, a class action could be difficult to maintain. The key was to focus — exclusively — on the purported medical studies the insurance companies cited to support their denial of ABA therapy.
Since the case was testing out a new theory, it had to be limited in scope. Johns had enrolled his son in the GIFT program, as it was called, a 12-week interactive program with children and families attending. GIFT was the foundational program for ABA therapy. At the time, the GIFT program was at full capacity and had a long waiting list. With few exceptions, nearly every family who went through the program had their claims denied.
Since the GIFT program had a 12-week fixed duration, the same program was essentially provided to all of the children and their families, it meant that dissimilarities among putative class members were almost non-existent. The only real difference was the amount each family had to pay out of pocket as a copay.
Every family in the class went through the same program. Every family was enrolled in a Blue Cross of Michigan plan. Every family received the same denial – the company’s assertion that ABA was unproven and experimental, and thus, not covered.
After considerable litigation, the case was resolved by a first of its kind settlement. Blue Cross would agree to reimburse all of the families in the class for the GIFT program consistent with the terms of their coverage. Blue Cross would also offer a coverage rider to employers to provide coverage for this program going forward.
Since the case was initially limited in scope by design, it left open the question of coverage for other ABA programs. That would not last for long. With Johns resolved, it was clear that ABA was a mainstream treatment for autism.
Within a year a new case was filed, Potter v. Blue Cross Blue Shield of Michigan. In that case, Blue Cross’ litigation team fought hard to uphold the exclusion. In a published opinion, U.S. District Judge Stephen J. Murphy III struck down the exclusion once and for all. According to the court’s ruling, ABA was not an experimental treatment based on the evidence, and Blue Cross could no longer claim it to be.
Johns v. Blue Cross and Potter v. Blue Cross became the template for many others like it – class actions on this issue were filed around the country and against government plans like Medicaid and Tricare, the military health plan.
At the same time, the government affairs division of Autism Speaks worked to create model ABA coverage legislation throughout the U.S. Even some executives of major corporations stepped forward and now argued for ABA coverage to be provided to their employees. The insurers eventually caved.
Now, every child in Michigan with autism has insurance coverage for ABA therapy and other treatments through the age of eighteen. Guaranteed. It is not often that a case can be part of a transformative movement, but Chris Johns sure made a difference when he volunteered to lead the fight.
—————
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak, Michigan.
There was another time, early in this work, when children’s mental healthcare cases were filed using the party’s actual names. Looking back on that now, it took courage for a family to open up about their struggles, which often were shielded from public view.
Such was the case with Johns v. Blue Cross Blue Shield of Michigan, the first autism class action ever certified in the United States. The case was brought by Chris Johns, a young father of a son with autism spectrum disorder. This was the first child of John and his wife, Lia, and they were determined to seek out the best medical care they could find. The family was insured by Blue Cross Blue Shield of Michigan through Chris’ employer and assumed their son’s treatment would be covered.
In their quest to learn more and do more to help their son, they enrolled their child in the GIFT program at the HOPE Center, an autism treatment center affiliated with Beaumont Medical Center. (Today it is the Ted Lindsay Foundation HOPE Center). The therapy offered was Applied Behavioral Analysis or “ABA Therapy,” a program of intensive medical care and training that worked with children to improve their functional abilities. The program was overseen by pediatricians and psychologists working for Beaumont.
The Johns family found that the ABA treatments were helping their son. They both learned how to reinforce the therapeutic lessons in their home, and their son began to show real gains. Around this same time, the denials for their treatment claims began rolling in. Despite their pleas and endless appeals, Blue Cross, their plan’s administrator, denied coverage for their son’s treatment.
The Johns family began attending support groups with other families dealing with the challenges of ASD. Each meeting was devoted to a discussion topic. And one topic kept coming up over and over again – insurance company reimbursements.
There were none.
During one support group meeting concerning insurance reimbursements, it turned out that the families were all receiving letters that reflexively denied all claims for ABA therapy as “unproven.” The denial letters all read the same.
Chris Johns volunteered to serve as a representative to challenge the denials. And what he did was no small thing. Johns worked for a Michigan business that was going through changes and was the subject of a rumored acquisition. With their jobs on the line, most employees would not want to bring an action over inadequacies in their employer-based healthcare plan. Johns was undeterred. He knew there was a real risk in challenging this practice, and he still went forward.
When I became involved with the case, I realized that it had the makings of a class action and was larger than my small law practice could handle. So, I approached my former boss, Gerard V. Mantese, and explained what was going on with the insurance denials. Mantese had significant class action experience and understood the complex process. As a father, he was moved by the plight of the families, and his staff was populated with young lawyers, many of whom were starting families of their own. They instantly identified with the Johns family and could not quite wrap their heads around the fact that ABA therapy was being denied for these children. They could also relate to the financial hardship these denials were causing to this young family.
These were the days before the Affordable Care Act, so there were variations in the cost-sharing and coverage among health plans for any class of plaintiffs. Owing to this, a class action could be difficult to maintain. The key was to focus — exclusively — on the purported medical studies the insurance companies cited to support their denial of ABA therapy.
Since the case was testing out a new theory, it had to be limited in scope. Johns had enrolled his son in the GIFT program, as it was called, a 12-week interactive program with children and families attending. GIFT was the foundational program for ABA therapy. At the time, the GIFT program was at full capacity and had a long waiting list. With few exceptions, nearly every family who went through the program had their claims denied.
Since the GIFT program had a 12-week fixed duration, the same program was essentially provided to all of the children and their families, it meant that dissimilarities among putative class members were almost non-existent. The only real difference was the amount each family had to pay out of pocket as a copay.
Every family in the class went through the same program. Every family was enrolled in a Blue Cross of Michigan plan. Every family received the same denial – the company’s assertion that ABA was unproven and experimental, and thus, not covered.
After considerable litigation, the case was resolved by a first of its kind settlement. Blue Cross would agree to reimburse all of the families in the class for the GIFT program consistent with the terms of their coverage. Blue Cross would also offer a coverage rider to employers to provide coverage for this program going forward.
Since the case was initially limited in scope by design, it left open the question of coverage for other ABA programs. That would not last for long. With Johns resolved, it was clear that ABA was a mainstream treatment for autism.
Within a year a new case was filed, Potter v. Blue Cross Blue Shield of Michigan. In that case, Blue Cross’ litigation team fought hard to uphold the exclusion. In a published opinion, U.S. District Judge Stephen J. Murphy III struck down the exclusion once and for all. According to the court’s ruling, ABA was not an experimental treatment based on the evidence, and Blue Cross could no longer claim it to be.
Johns v. Blue Cross and Potter v. Blue Cross became the template for many others like it – class actions on this issue were filed around the country and against government plans like Medicaid and Tricare, the military health plan.
At the same time, the government affairs division of Autism Speaks worked to create model ABA coverage legislation throughout the U.S. Even some executives of major corporations stepped forward and now argued for ABA coverage to be provided to their employees. The insurers eventually caved.
Now, every child in Michigan with autism has insurance coverage for ABA therapy and other treatments through the age of eighteen. Guaranteed. It is not often that a case can be part of a transformative movement, but Chris Johns sure made a difference when he volunteered to lead the fight.
—————
John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak, Michigan.
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