Etter v. Banner Health

In a lawsuit filed May 1. 2017, the Arizona Center for Law in the Public Interest working with Phoenix-based law firm Bonnett, Fairbourn, Friedman & Balint PC, has filed a class action in federal court against Banner Health for denying coverage of standard treatment for autism-related spectrum disorder to employees and their dependents who are covered by the health system’s insurance.

Banner has systematically denied coverage for Applied Behavioral Analysis (“ABA”) therapy claiming that the treatment is “experimental” or “investigative.”  According to the lawsuit, Banner’s refusal to pay for ABA therapy is in direct conflict with generally accepted scientific studies and violates federal law, including the Mental Health Parity and Addiction Equity Act of 2008 that prohibits special treatment limitations only imposed on mental health conditions.

Micah Etter, a resident and employee of Banner at Tucson’s University Medical Center, sought treatment for his child under Banner’s insurance plan and was denied coverage. After having exhausted the appeals process, Etter, along with his wife Laura, agreed to be the lead plaintiffs in the class action lawsuit representing current, past and future employees. The suit is asking the court to permanently bar Banner from denying coverage of autism therapy.

“Banner is the largest nongovernmental employer in Arizona.  It is our hope that this litigation will result in an increase in insurance coverage for its employees and set the standard for other large self funded companies” said Anne Ronan, an attorney for the Arizona Center for Law in the Public Interest.

The class action lawsuit against Banner Health, Banner Plan Administration, Inc., and Banner Health Master Health and Welfare Benefits Plan (collectively “Banner”) was filed on May 1, 2017 on behalf of Micah and Laura Etter, their son, and other Banner employees and their dependents who are covered by the Banner’s self-funded health plan. The Etters’ complaint alleges that Banner’s health plan purports to exclude Applied Behavioral Analysis (“ABA”) therapy from coverage for the treatment of autism-related spectrum disorder. The Etters assert that the Banner health plan unlawfully excludes coverage for ABA therapy by arbitrarily mischaracterizing the therapy as “experimental” or “investigative.” 

The Etters maintain that Banner’s designation of ABA therapy as experimental or investigative is erroneous and in direct conflict with: (1) numerous clinical studies demonstrating the efficacy of ABA therapy in the treatment of autism; (2) multiple judicial opinions declaring it improper to exclude ABA therapy as experimental or investigative; (3) pronouncements by several federal and state regulators endorsing coverage for ABA therapy; and (4) statutes enacted in nearly every state mandating coverage of ABA therapy under fully insured health plans.  

 The Etters allege that Banner’s exclusion of ABA therapy from coverage violates the Mental Health Parity and Addiction Equity Act of 2008’s (“MHPAEA”) prohibition against special treatment limitations only imposed on mental health conditions.  Based on this alleged violation of the MHPAEA, the Etters and their son on behalf of themselves and the proposed class allege claims for breach of fiduciary duty, improper denial of benefits and other violations of the Employee Retirement Income Security Act of 1974 (“ERISA”). The Etters  are asking the federal court to certify a  class of Banner employees and their dependents who now subscribe, have subscribed or will subscribe to Banner’s health plan excluding ABA therapy from coverage and to permanently enjoin Banner from treating ABA therapy as experimental or investigative when recommended to treat autism.

 

Photo Credit:  By White_ribbon.svg: MesserWolandJigsaw_Puzzle.svg: Psyonderivative work: Melesse (talk) - White_ribbon.svgJigsaw_Puzzle.svg, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=11331355
PreviewLegal DocumentsSize
1 - Complaint.pdf723.31 KB