Seventh Circuit Affirms Health Insurer Not Required to Cover Therapies for Autism Based on Available Medical Literature at Time of Treatment

In Midthun-Hensen on behalf of K.H. v. Grp. Health Coop. of S. Cent. Wisconsin, Inc., No. 23-2100, __F.4th__, 2024 WL 3646149 (7th Cir. Aug. 5, 2024) the Seventh Circuit affirmed the district court’s grant of summary judgment to Defendant Group Health Cooperative in this lawsuit challenging the denial of speech therapy as a treatment for autism for a young child under the Mental Health Parity and Addiction Equity Act (MHPAEA), 29 U.S.C. § 1185a (§ 712 of ERISA).

Plaintiffs, on behalf of their child K.H., asked Defendant, their health insurer, to pay for certain therapies between 2017 and 2019. Defendant refused because the medical literature did not support speech therapy as a treatment for autism for a child K.H.’s age, and the available evidence did not support sensory-integration therapy as a treatment for autism. The health plan only pays for therapies that are evidence-based. However, Defendant started covering these treatments in 2020 when the medical literature changed. Defendant still refused to cover K.H.’s earlier treatments. Plaintiffs initially filed suit under ERISA and state law. On appeal, they limited their arguments to the Parity Act, which requires that health insurers place coverage for mental conditions on an equal footing with coverage for physical conditions.

Plaintiffs argued that the Defendant violated the Parity Act because it did not cover K.H.’s proposed therapies until 2020, however, Defendant covered chiropractic care for musculoskeletal conditions in pediatric patients, treatment which Plaintiffs argued lacked scientific support. The district court found that the difference in treatment between these two therapies reflected the differences in the available literature, and not the way Defendant treated mental and physical conditions. Further, 29 C.F.R. § 2590.712(c)(4)(I) supports limiting coverage to evidence-based treatments. The Seventh Circuit agreed with the district court.

The court also concluded that Plaintiffs’ appeal fails because they only identify a single medical benefit that was handled differently from the mental-health benefits sought in this lawsuit. The Parity Act requires that treatment limitations applicable to mental-health benefits be no more restrictive than treatment limitations “applied to substantially all medical and surgical benefits covered by the plan.” Plaintiffs must focus on treatments as a whole rather than a single treatment. Per the regulations implementing the Parity Act, substantially all means at least two-thirds. (The court noted that it need not address how the Supreme Court’s decision in Loper Bright applies to regulations adopted under an express delegation). Regardless of what “substantially all” means, it does not mean “one.” The court rejected Plaintiffs’ argument that the lack of discovery prevented them from making their best case since the district court denied their Rule 56(d) motion and Plaintiffs did not contend that the district court abused its discretion in doing so. AFFIRMED.