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Seventh Circuit Rules ACA Protects Children With Autism From Discrimination By Insurers

January 13, 2023

In August 2022 the Seventh Circuit Court affirmed the denial of CarDon’s motion for judgement on the pleadings, allowing the claim in T.S. v. Heart of CarDon to move forward. Terrell Marshall Law Group, alongside co-counsel, initially filed the lawsuit in 2019 after the CarDon Employee Benefits Plan denied coverage for T.S.’s therapy to treat autism.

CarDon Employee Benefits Plan Initially Covered Plaintiff

Heart of CarDon, LLC provides senior living and nursing home services throughout Indiana. CarDon provides health insurance to its employees and their dependents through its self-funded insurance, Heart of CarDon, LLC Employee Benefit Plan.

The plaintiff’s mother, T.M.S., worked for CarDon as a registered nurse throughout the COVID-19 pandemic. CarDon’s insurance provided coverage for her and her dependents. Her son, T.S., is a four-year-old child with autism spectrum disorder (ASD). The child’s doctor suggested placing the child in Applied Behavioral Analysis (ABA) Therapy to help develop positive behaviors and dissuade other behaviors such as pinching and biting. 

CarDon Removes ABA Therapy Coverage

Initially, T.S. was approved for coverage for ABA therapy through CarDon’s insurance plan. The therapy is widely recognized as a safe and effective treatment for people with autism spectrum disorder to build behavioral skills through repetitive task-and-reward activities. These skills can include listening, making eye contact, and appropriately answering questions. T.S. began attending ABA in November 2019 and his parents observed him making quick progress through the therapy.

However, in January 2019, CarDon abruptly stopped providing coverage for ABA therapy. Due to the costs, his parents were forced to remove T.S. from therapy. T.M.S. attempted to appeal the decision but was initially told that an insurance update was needed. After months of back and forth, the CarDon insurance plan ultimately denied coverage for T.S.’s ABA therapy. T.S.’s behavior regressed without care.

CarDon Violates the anti-discrimination requirements of the ACA.

The family sued, claiming that the exclusion violates Section 1557 of the Patient Protection and Affordable Care Act. Section 1557 prohibits discrimination within covered healthcare programs and activities on the basis of race, color, national origin, age, disability or sex. By specifically excluding ABA therapy, but allowing other types of care for ASD, the healthcare plan violates the disability protection within Section 1557.

Decision Helps Recent Title IX Case

Terrell Marshall Law Group, alongside co-counsel Eleanor Hamburg and Syed Ali Saeed, initially filed the complaint in the Southeastern District of Indiana in June of 2020. Blythe Chandler, Ben Drachler, and Elizabeth Adams led the team at TMLG. In August 2022, the the Seventh Circuit Court affirmed the trial court’s denial of CarDon’s motion for judgement on the pleadings. The opinion overruled a longstanding restrictive interpretation of who can enforce anti-discrimination requirements against companies and organizations who accept federal funds.

This case is already assisting in other cases as well. On January 9th, 2023 an Illinois federal judge reversed a prior dismissal of the plaintiff’s gender discrimination claim under Title IX in Conviser v. DePaul, relying heavily on the Seventh Circuit’s opinion in T.S. v. CarDon.