Midthun-Hensen v. Group Health Cooperative of South Central, Inc.,, No. 23-2100 (7th Cir. 2024)
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Angela Midthun-Hensen and Tony Hensen sought insurance coverage for therapies for their daughter K.H.'s autism from Group Health Cooperative between 2017 and 2019. The insurer denied coverage, citing a lack of evidence supporting the effectiveness of speech therapy for a child K.H.'s age and sensory-integration therapy for autism at any age. The family's employer-sponsored plan only covered "evidence-based" treatments. After several medical reviews and appeals upheld the insurer's decision, the parents sued, alleging violations of the Employee Retirement Income Security Act (ERISA) and state law regarding autism coverage.
The United States District Court for the Western District of Wisconsin ruled in favor of the insurer, finding no violations of state law or ERISA. The plaintiffs then focused on their claim that the insurer's actions violated the Mental Health Parity and Addiction Equity Act (MHPAEA), which mandates equal treatment limitations for mental and physical health benefits. They argued that the insurer applied the "evidence-based" requirement more stringently to autism therapies than to chiropractic care, which they claimed lacked scientific support.
The United States Court of Appeals for the Seventh Circuit reviewed the case and affirmed the district court's decision. The appellate court found that the insurer's reliance on medical literature, which varied in its recommendations based on patient age, was permissible under the Parity Act. The court also noted that the plaintiffs failed to demonstrate that the insurer's treatment limitations for mental health benefits were more restrictive than those applied to "substantially all" medical and surgical benefits, as required by the statute. The court concluded that the plaintiffs' focus on a single medical benefit was insufficient to prove a violation of the Parity Act.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2100 ANGELA MIDTHUN-HENSEN and TONY HENSEN, on behalf of their daughter K.H., Plaintiffs-Appellants, v. GROUP HEALTH COOPERATIVE OF SOUTH CENTRAL WISCONSIN, INC., Defendant-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 21-cv-608-slc — Stephen L. Crocker, Magistrate Judge. ____________________ SUBMITTED FEBRUARY 15, 2024 — DECIDED AUGUST 5, 2024 ____________________ Before SYKES, Chief Judge, and EASTERBROOK and KIRSCH, Circuit Judges. EASTERBROOK, Circuit Judge. Angela Midthun-Hensen and her husband Tony Hensen asked their health insurer to cover certain therapies between 2017 and 2019 for their child K.H.’s autism. The insurer, Group Health Cooperative, refused. Based on its review of the medical literature, it determined 2 No. 23-2100 that evidence did not support speech therapy as a treatment for autism for a child K.H.’s age and did not support the use of sensory-integration therapy (a form of occupational therapy) as a treatment for autism at any age. Because the employer-sponsored plan in which the family was enrolled covers only treatments that are “evidence-based”, Group Health Cooperative deemed these therapies ineligible for coverage. (Developments in the medical literature led the insurer to begin covering these treatments in October 2020. Plainti s do not contest the bene ts K.H. received after this change.) After several lengthy medical-review and appeals processes con rmed Group Health Cooperative’s conclusion that then-available evidence did not support the requested therapies, Hensen and Midthun-Hensen sued, contending that the insurer violated provisions of the Employee Retirement Income Security Act (ERISA), which regulates employer-sponsored group health plans, as well as a state law regarding coverage for autism. The district court found nothing wrong with the insurer’s decisions. 672 F. Supp. 3d 662 (W.D. Wis. 2023). Plainti s no longer contest the district court’s conclusion that the insurer did not violate state law or deprive K.H. of bene ts to which she was entitled under the plan. They focus instead on their argument that Group Health Cooperative’s limits violated the Mental Health Parity and Addiction Equity Act (MHPAEA), 29 U.S.C. §1185a (§712 of ERISA). The Parity Act requires, as a general matter, that health insurers place coverage for mental conditions on an equal footing with coverage for physical conditions. One way it does this is by requiring that “treatment limitations applicable to … mental health or substance use disorder bene ts are no more restrictive than … treatment limitations applied to No. 23-2100 3 substantially all medical and surgical bene ts covered by the plan”. 29 U.S.C. §1185a(a)(3)(A)(ii). As plainti s see it, Group Health Cooperative violated this prohibition by applying its requirement that treatments be “evidence-based” more stringently to mental-health bene ts for autism than it did to one medical bene t, chiropractic care. (We use the statute’s distinction between “mental health bene ts” and “medical or surgical bene ts”, though we recognize that mental conditions are themselves medical conditions.) Plainti s point out that, although their plan did not cover K.H.’s proposed therapies until 2020, it did cover (in certain situations) chiropractic care for musculoskeletal conditions in pediatric patients—a course of treatment that they contend lacks scienti c support. They assert that, given this lack of support, Group Health Cooperative’s imposition of an agebased treatment limitation for certain autism treatments but not for chiropractic care violated the Parity Act. (Plainti s also contend that evidence available at the time had supported the treatments K.H. sought—but the district court found this unsubstantiated when it determined that K.H. was not entitled to coverage for these treatments under the plan. 672 F. Supp. 3d at 675–76.) The district court did not see evidence that the di erence between bene ts for autism and bene ts for musculoskeletal conditions could be attributed to any di erence in the way the insurer treated mental and physical conditions. Id. at 678–80. The judge concluded that di erences in coverage re ected di erences in the medical literature on which the insurer relied. The surveys of autism research that Group Health Cooperative consulted made treatment recommendations that depended in part on patients’ ages, whereas its sources 4 No. 23-2100 regarding chiropractic care did not (though they recognized that there was a paucity of evidence speci cally demonstrating e cacy of chiropractic care in children). An insurer is entitled to identify and rely on such literature so long as its process for doing so applies to mental-health bene ts and medical bene ts alike. Limiting coverage to evidence-based treatments has the support of a regulation that plainti s do not contest. 29 C.F.R. §2590.712(c)(4)(I). That’s why the insurer prevailed. The district court’s conclusion comports with the medical evidence of record, even taking that evidence in the light most favorable to plainti s. Pre-2020 restrictions on coverage for autism therapies did not result from how the insurer assessed the literature regarding each condition. Rather, they re ect how the underlying literature assessed and accounted for age. The Parity Act permits health insurers, when determining what treatments to cover, to rely on the available medical literature. They must make sense of this literature as they nd it, no matter how thin or developing it may be. Cf. Smith v. O ce of Civilian Health & Medical Program of Uniformed Services, 97 F.3d 950, 956–57 (7th Cir. 1996). The way in which the medical literature considers the e cacy of and makes recommendations regarding various treatments will vary for any number of reasons—from the availability of study participants across demographics, to funding considerations, to judgments regarding study design, to which patient characteristics researchers expect to bear on treatments’ e cacy. Such variance a ects the results—and treatment recommendations—of medical study. It’s unsurprising that literature on autism focuses more on e cacy by age than does literature on chiropractic care. No. 23-2100 5 Musculoskeletal conditions tend to develop with injury and age, which may lead researchers to focus on adult populations. Meanwhile studies on autism, which is commonly diagnosed and rst treated in childhood, most often focus on children. That Group Health Cooperative’s policies re ect this di ering focus does not pose a problem under the Parity Act. This is not all. Plainti s’ argument fails for a more fundamental reason. Plainti s make their case by identifying a single medical bene t that was handled di erently from the mental-health bene ts K.H. sought. But the relevant statutory provision requires that treatment limitations applicable to mental-health bene ts be no more restrictive than treatment limitations “applied to substantially all medical and surgical bene ts covered by the plan”. 29 U.S.C. §1185a(a)(3)(A)(ii) (emphasis added). To evaluate whether a limitation applies to “substantially all medical and surgical bene ts”, the plainti must focus on treatments as a whole rather than a single kind of treatment. “Substantially all” is less than all—but not much less. See Continental Can Co. v. Chicago Truck Drivers Pension Fund, 916 F.2d 1154 (7th Cir. 1990). Regulations implementing the Parity Act de ne “substantially all” to mean “at least two-thirds” as concerns “ nancial requirements” or “quantitative treatment limitations” but are silent (for no reason we can discern) on what “substantially all” means for “nonquantitative treatment limitations” such as the one at issue here. See 29 C.F.R. §2590.712(c)(3)(i)(A). Plainti s do not contend that these regulations are invalid. (ERISA authorizes rulemaking, see 29 U.S.C. §1135, and we need not address how Loper Bright 6 No. 23-2100 Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), applies to regulations adopted under an express delegation.) We do not have to determine exactly what “substantially all” means, because “substantially all” does not mean “one.” Plainti s proceed as if they can prevail by showing that their insurer approached coverage for one mental-health bene t more restrictively than coverage for one medical bene t. They are mistaken. No matter how much space “substantially” leaves, a showing that an insurer limits a mental-health bene t more than it does one medical bene t cannot show that it so limits substantially all such bene ts. Plainti s 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) bene ts than on mentalhealth bene ts. Plainti s maintain that they lacked adequate opportunity to make their best case because discovery was stayed by the district court early in the suit. They suggest that, given the lack of discovery, we should evaluate the district court’s judgment as we would a motion to dismiss. This is wrong for many reasons—for one, discovery is not required before summary judgment. See Fed. R. Civ. P. 56. Litigants may ask the district court to hold o on deciding a summary-judgment motion until they can conduct further discovery, see Fed. R. Civ. P. 56(d)—and plainti s did le a motion asking the court to defer acting on the summary-judgment motion. But the district court said no, 2022 U.S. Dist. LEXIS 174594 (W.D. Wis. Sept. 27, 2022), and plainti s do not contend on appeal that the judge abused his discretion. (Litigants do not need discovery to nd out the contents of medical literature.) To receive relief on appeal, a party must do more than express No. 23-2100 7 dissatisfaction with how things went in the district court—it must explain how an adverse order was reversible. That depends on showing both error and prejudice. See F.C. Bloxom Co. v. Tom Lange Co., No. 22-3268 (7th Cir. July 25, 2024), slip op. 16–18 (discussing a litigant’s need to show why a grant of relief under Rule 56(d) would have been likely to turn up important evidence). We cannot consider—and plainti s cannot receive relief from—a determination they do not appeal. AFFIRMED
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