Sept. 10, 2024 – A party seeking health insurance coverage for autism-related medical treatment has lost an appeal at the Seventh Circuit Court of Appeals, in Midthun-Hensen v. Group Health Cooperative of South Central Wisconsin, No. 23-2100 (Aug. 5, 2024).

Beginning in 2017, Angela Midthun-Hensen and Tony Hensen asked their insurer, Group Health Cooperative of South Central Wisconsin, Inc., (Group Health) to cover speech therapy and sensory integration therapy for their autistic son.

Group Health decided that neither therapy was eligible for coverage, because the plan in which the Hensens were enrolled covered only evidence-based treatments and Group Health concluded there was no support for either therapy in the medical literature.

The Hensens went through several lengthy medical review and appeals processes, which resulted in the confirmation of Group Health’s decision.

The Hensens then sued Group Health in the U.S. District Court for the Western District of Wisconsin.

They claimed that Group Health’s decision that the evidence didn’t support the two therapies violated provisions of the Employee Retirement Income Security Act (ERISA) and a state law governing coverage for autism.

The district court ruled in favor of Group Health. The Hensens appealed.

Federal Act

On appeal, the Hensens dropped their claims regarding the state law and focused on the Mental Health Parity and Addiction Equity Act (MHPAEA), 29 U.S.C. section 1185 (section 712 of ERISA) (Parity Act).

Writing for a three-judge panel, Judge Frank Easterbrook explained that the Parity Act requires that the coverage provided by health insurers for mental conditions be substantially equal with the coverage they provide for physical conditions.

The Hensens argued that Group Health violated the Parity Act by applying its evidence-based requirement more strictly to autism than it did for chiropractic benefits.

Specifically, the Hensens argued that while Group Health covered chiropractic services for certain musculoskeletal conditions in children, those services were not supported by evidence in the medical literature.

As a result, they argued, Group Health’s limitation of autism treatments to children of a certain age violated the Parity Act, because the insurer did not impose similar age-limitation on chiropractic care.

Literature Supports Distinction

Easterbrook noted that the district court had determined that Group Health’s different approach to the two coverages raised by the Hensens in the argument was based on differences in the relevant medical literature.

The circuit court’s determination, the panel concluded, was appropriate.

“An insurer is entitled to identify and rely on such literature so long as its process for doing so applies to mental health benefits and medical benefits alike,” Easterbrook wrote.

Judge Easterbrook noted that 1) 29 C.F.R. section 2590.712(c)(4)(I) supported limiting coverage to evidence-based treatments, and 2) the Hensens did not contest the validity of that regulation.

“The Parity Act permits health insurers, when determining what treatments to cover, to rely on the available medical literature,” Easterbrook wrote. “They must make sense of this literature as they find it, no matter how thin or developing it may be.”

The panel reasoned that the focus on age found in the medical literature on autism was unsurprising.

“Musculoskeletal conditions tend to develop with injury and age, which may lead researchers to focus on adult populations,” Judge Easterbrook wrote.

“Meanwhile, studies on autism, which is commonly diagnosed and first treated in childhood, most often focus on children.”

One vs. ‘Substantially All’

The panel also concluded that the Hensens’ claim failed for a more fundamental reason – their argument focused on only one kind of medical treatment.

Under the Parity Act, Easterbrook explained, an insurer’s treatment limitation may be no more restrictive than limitations that are “applied to substantially all medical and surgical benefits covered by the plan.”

“No matter how much space ‘substantially’ leaves, a showing that an insurer limits a mental health benefit more than it does one medical benefit cannot show that it so limits substantially all such benefits,” Judge Easterbrook wrote.

“Plaintiffs have not seriously tried to show that Group Health Cooperative, as a general matter, imposed age-based treatment limitations less stringently on medical (and surgical) benefits than on mental health benefits.”

Missing Argument

The Hensens also argued they weren’t able to effectively make their case because the district court stayed discovery.

As a result, they argued, the appeals court should evaluate the district court’s decision on Group Health’s motion for summary judgment as it would a judgment on a motion to dismiss.

But that argument, the panel concluded, was ill-founded, and Judge Easterbrook explained that discovery was not required before summary judgment.

Easterbrook pointed out that: 1) the district court had denied the Hensens’ motion asking the district court to delay ruling on Group Health’s summary judgment motion while they conducted discovery; and 2) the Hensens did not on appeal argue that the district court’s decision constituted an abuse of discretion.

“To receive relief on appeal, a party must do more than express dissatisfaction with how things went in the district court – it must explain how an adverse order was reversible,” Judge Easterbrook wrote.

“We cannot consider – and plaintiffs cannot receive relief from – a determination that they do not appeal.”