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A Detroit federal judge has certified a class in a case alleging that Blue Cross Blue Shield of Michigan has denied a needed therapy to children with autism. Judge Stephen J. Murphy III’s July 14 order in Potter v. Blue Cross Blue Shield of Michigan certified two subclasses. The first subclass includes individuals who were covered by a Blue Cross Blue Shield of Michigan policy on or after Dec. 16, 2004, and who made a claim for applied behavior analysis (ABA) therapy that was denied on the grounds that it is investigative or experimental. The other subclass includes individuals in the same coverage class who did not make a claim for ABA treatment because of the insurance company’s policy that such treatment is deemed to be investigative or experimental. “With respect to predominance, the common issues here — whether ABA is experimental and whether [Blue Cross Blue Shield] provided the class members with the opportunity for a full and fair review — predominate over any individualized issues,” wrote Murphy. “BCBS acted in the same manner with respect to each member regardless of the particulars of the members’ individual situations. Very few individualized issues exist among the class.” Named plaintiffs Michael Potter and Brett Boyer, who are each a father of a child who has autism, sued for their full health care benefits and for equitable relief on the ground that they are participants or beneficiaries, according to The Employment Income Security Act of 1974 (ERISA). They asked the court for declaratory and injunctive relief, unspecified damages, plus costs, interest and attorney fees. The subclasses exclude class members in another Eastern District of Michigan case, Johns v. Blue Cross Blue Shield of Michigan. The parties in that similar case, which was brought by the same plaintiffs’ lawyers, agreed to a settlement in June 2009. A class was certified for settlement purposes and the claims dismissed in May 2010. Blue Cross settled the other case by paying about 100 families, said Gerard Mantese, a partner at Mantese Honigman Rossman and Williamson of Troy, Mich., who is co-lead counsel for the plaintiffs. “We hoped that would be the end of the matter, but they’re continuing their policy of denying ABA therapy,” Mantese said. Murphy’s opinion in Potter “demonstrates that when an insurance company is refusing to provide ABA therapy to children with autism,…this presents an issue that should be resolved on a classwide basis so all parents can get this therapy for their children.” “Time is of the essence,” Mantese said. “Studies show unless they get it at young age they will forever lose the window of opportunity they have to achieve their greatest potential.” Helen Stojic, a Blue Cross Blue Shield of Michigan spokesperson, said in a written statement that the order is “a decision to continue the case and is not a ruling on the merits of the case.” “We recognize that all families care about their children,” Stojic said. “We believe that we have been more progressive than other Michigan insurance companies in addressing autism. In 2009, we became the first insurer in the state to offer businesses with our coverage the option to purchase coverage for autism treatment programs that provide intensive early intervention (ABA). To the best of our knowledge, we are the only insurer in Michigan to offer this coverage option to businesses.” The co-lead counsel — Mantese Honigman and solo practitioner John Conway of Royal Oak, Mich. — also have similar cases pending in the Eastern District of Pennsylvania and the District of Columbia. The District of Columbia case, Berge v. U.S., concerns the Defense Department’s refusal to cover ABA treatment under the basic military health care benefits program until very recently on the ground that it is special education rather than health care. The complaint filed by Kenneth and Dawn Berge, who have a child with autism, claims that the Defense Department’s enhanced care health option has provided only a capped ABA therapy benefit to active duty participants for at least nine years. They claim the government has violated the Administrative Procedure Act and have asked the court for declaratory and injunctive relief, coverage and reimbursement for all ABA therapy, plus costs, interest, and attorney fees. On March 4, District Judge Reggie Walton certified a class of individuals with autism who are beneficiaries of the basic program and who currently seek or will seek ABA coverage under the plan. The Justice Department, which is defending the case, declined to comment. A class certification motion in the Eastern District of Pennsylvania case, Churchill v. Cigna Corp., is pending. On May 13, Judge Juan Sanchez denied the defendant’s dismissal motion. Named plaintiff Kristopher Churchill is the father of a son with autism who was denied coverage for ABA therapy. He has asked the court to compel the insurance company to provide the benefits under the authority of ERISA. Churchill is also asking the court for declaratory and injunctive relief, unspecified damages, plus costs, interest, and attorney fees. Joseph Costello, a partner in the Philadelphia office of Morgan, Lewis & Bockius and one of Cigna’s lawyers in the case, said Cigna would not comment on pending litigation. Through a spokesperson, Cigna declined to comment on the pending litigation. Sheri Qualters can be contacted at [email protected].

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