United States District Court, S.D. Indiana, Indianapolis Division
W.P., a minor by and through his parents and guardians KATHRYN PIERCE and CHESTER PIERCE, on behalf of themselves and similarly situated individuals, and A.B., a minor by and through his parents and guardians MICHAEL BECK and JOANNE KEHOE, on behalf of themselves and similarly situated individuals, Plaintiffs,
ANTHEM INSURANCE COMPANIES INC., an Indiana corporation, Defendant.
ENTRY ON MOTION FOR PARTIAL JUDGMENT ON THE
WALTON PRATT, JUDGE.
the Court is a Motion for Partial Judgment on the Pleadings
filed by Defendant Anthem Insurance Companies Inc.
(“Anthem”), pursuant to Federal Rule of Civil
Procedure 12(c). (Filing No. 48.) On April 9, 2015,
Plaintiff W.P. and his parents, Kathryn and Chester Pierce
(collectively “Plaintiffs”), brought this
putative class action against Anthem under the Employee
Retirement Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1001 et seq. W.P. is a
thirteen-year-old child who suffers from autism and Anthem is
his health insurance provider. W.P.'s physician
prescribed forty hours per week of Applied Behavioral
Analysis (“ABA”) therapy to treat W.P.'s
autism, but Anthem covers only twenty hours per week of ABA
therapy. Plaintiffs allege that Anthem violated state and
federal laws because it has a policy of limiting the number
of ABA hours it covers for children ages seven or older.
(Filing No. 1.) Anthem now moves for partial
judgment on the pleadings. For the following reasons,
Anthem's Motion is GRANTED.
following undisputed facts are taken from Plaintiffs'
Complaint and the parties' briefs.
Indiana's Autism Mandate.
2001, the Indiana General Assembly amended the Indiana Code,
requiring individual and group health insurance policies to
provide coverage for autism treatment. See Ind. Code
§ 27-8-14.2. This amendment is known as the
“Autism Mandate.” The Autism Mandate states:
(a) An accident and sickness insurance policy that is issued
on a group basis must provide coverage for the treatment of
an autism spectrum disorder of an insured. Coverage provided
under this section is limited to treatment that is prescribed
by the insured's treating physician in accordance with a
treatment plan. An insurer may not deny or refuse to issue
coverage on, refuse to contract with, or refuse to renew,
refuse to reissue, or otherwise terminate or restrict
coverage on an individual under an insurance policy solely
because the individual is diagnosed with an autism spectrum
(b) The coverage required under this section may not be
subject to dollar limits, deductibles, or coinsurance
provisions that are less favorable to an insured than the
dollar limits, deductibles, or coinsurance provisions that
apply to physical illness generally under the accident and
sickness insurance policy.
Ind. Code Ann. § 27-8-14.2-4.
March 30, 2006, the Indiana Department of Insurance
(“IDOI”), an agency charged with enforcing the
Indiana Insurance Code, issued Bulletin 136 interpreting the
Autism Mandate. See Ind. Ins. Bulletin 136, 2006 WL
1584562 (Mar. 30, 2006). Bulletin 136 states that an insurer
has the right to “request an updated treatment plan not
more than once every six (6) months from the treating
physician to review medical necessity” and “[a]ny
challenge to medical necessity will be viewed as reasonable
only if the review is by a specialist in the treatment of
[autism spectrum disorder].” Id. at 1, 3.
Bulletin 136 also states that services to treat autism
spectrum disorders “will be provided without
interruption, as long as those services are consistent with
the treatment plan and with medical necessity
decisions.” Id. at 2. “Service
exclusions contained in the insurance policy…that are
inconsistent with the treatment plan will be considered
invalid .…” Id.
a thirteen year-old who suffers from severe autism. W.P. has
limited verbal skills, is unable to navigate stairs without
assistance, and frequently exhibits repetitive behaviors
including rocking, flapping his arms and hands, and heavy
breathing. W.P.'s treating physician prescribed forty
hours per week of ABA therapy to treat W.P.'s autism. In
February 2011, W.P. began receiving ABA therapy and his
parents observed almost immediate improvements in his ability
to walk, use words, and respond appropriately to prompts.
W.P.'s repetitive behaviors also decreased.
the beneficiary of a health insurance plan (“the
Plan”) sponsored by his father's employer. Anthem
is the insurer and claims administrator for the Plan. Anthem
initially covered W.P.'s forty hours of ABA therapy but,
in July 2013, Anthem reduced the number of covered ABA
therapy hours for W.P. to twenty-five hours per week. In July
2014, Anthem further reduced the number of covered hours to
twenty hours per week.
29, 2014, Plaintiffs filed a written appeal to Anthem
regarding its coverage decision. On October 31, 2014, Anthem
issued a written denial of the appeal, upholding its decision
to limit the amount of ABA therapy hours it covered.
Thereafter, in January 2015, Anthem contacted W.P.'s
therapy provider and made a “take-it-or-leave-it”
offer to temporarily increase the ...