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J.P. ABA Settlement Class Information

Background

Individuals with neurodevelopmental disabilities and autism sued Premera Blue Cross and LifeWise of Washington in three different class action lawsuits:  A.G. et al., v. Premera Blue Cross et al.; J.P. v. Premera Blue Cross; and R.H. v. Premera Blue Cross.  The individuals sought coverage for neurodevelopmental (speech, occupational and physical) therapy and applied behavior analysis (ABA) therapy to treat their conditions.

J.P. v Premera, King County Cause No. 12-2-33676-8 SEA, was filed on October 15, 2012, on behalf of J.P., an individual with autism spectrum disorder (“ASD”) and on behalf of similarly situated individuals.  J.P. alleged that Premera used uniform practices, policies and procedures designed to limit and exclude coverage of medically necessary ABA therapy to treat ASD.  J.P. alleged that such system-wide practices violated the Washington State Mental Health Parity Act (“Parity Act”).  

The parties engaged in extensive discovery related to Premera’s coverage policies regarding ABA therapy to treat ASD.  In the fall of 2013, the parties agreed to attempt to negotiate a global settlement of this case along with A.G. v. Premera and R.H. v. Premera.  The parties engaged in mediation on February 24, 2014, but a settlement agreement remained elusive.  The parties then engaged another mediator to mediate an agreement in sessions held on March 14 and May 1, 2014.  Late in the evening on May 1, 2014, the parties in each of the three cases reached a global Settlement Agreement, contingent upon final approval by all three Courts.  

Motions were made for preliminary approval, and the three Courts involved in the cases have granted preliminary approval of the agreement. 

The main points of the agreement with respect to the J.P. class are described below.  You are encouraged to review the entire proposed agreement, which is available here .  All three Courts must approve the agreement before it can go into effect.

• Coverage of Applied Behavioral Analysis Therapy

Premera will cover medically necessary applied behavioral analysis (ABA) therapy to treat autism spectrum disorders as a Mental Health Service and consistent with “Terms of Coverage for Applied Behavior Analysis” in Appendix A to the settlement agreement.  Premera will not impose age exclusions or treatment limitations on coverage of ABA therapy.  Premera will not deny or limit coverage of ABA therapy based on an “academic” or “educational” exclusion.   Premera also agreed to develop credentialing criteria for ABA providers consistent with the credentialing criteria in Appendix A.  All requests for ABA Therapy must also meet other standard requirements, such as the requirement that care be medically necessary.

• Attorneys’ Fees, Litigation Costs and the Costs of Claims Administration

Under the proposed agreement, class counsel may apply for attorneys’ fees under the common fund doctrine/common benefit doctrine in an amount totaling 35% of the settlement amount ($1,225,000), to be paid out of the settlement fund. Agreement, § 13.1. In addition, litigation costs (sums class counsel paid out-of-pocket on behalf of the class) and costs for claims administration will be requested to be paid from the settlement fund.  Agreement, §§ 13.2; 13.4. Class counsel will seek approximately $75,000 in litigation costs from the settlement fund. Class counsel’s requests for attorneys’ fees and litigation costs are subject to review, and must be approved by the Court.  Agreement, §§ 13.1; 13.2;13.4.

You are permitted to review, object to, support or comment on class counsel’s request for attorneys’ fees and costs.  On or before September 12, 2014, class counsel will post its fee and cost application on this page.  Alternatively, you may write or email class counsel and request that a copy of the application be sent to you.

• Incentive Awards 

Incentive awards of up to $25,000 for each class representative family (a total of $100,000 for the four class representative families) will be requested from the settlement amount.  Agreement, § 13.3.  The Courts must approve the incentive awards.  Agreement, § 13.3. 
You are permitted to review, object to, support or comment on the request for incentive awards.  On or before September 12, 2014, class counsel will post the application for incentive awards on this page.  Alternatively, you may write or email class counsel and request that a copy of the application be emailed or mailed to you.

• Claims for Back Damages for Applied Behavioral Analysis Therapy Preserved

The agreement does not address, release or waive any claims for damages (money) that class members in the J.P. v. Premera or R.H. v. Premera cases may have for past applied behavioral analysis (ABA) therapy services. These types of claims may be addressed by class members outside of the settlement agreement and settlement fund.  Agreement, §§ 9.3; 9.4

If you are a member of the class, you have certain legal rights.  These rights include the following:

• Comment on, Object to, or Support the Proposed Settlement Agreement.

You have the right to submit comments or objections to the Court.  You may support, object, or comment on any aspect of the proposed settlement agreement.  You may also support, object to, or comment on class counsel’s request for fees, costs and incentive awards.  You must submit your comments in writing, postmarked by November 21, 2015, to: Premera Settlement Claims Processor, Nickerson & Associates, LLC, 1700 7th Ave., Ste. 116 #330, Seattle, WA 98101.

• Do Nothing

You do not need to take any action to receive coverage for medically necessary applied behavior analysis therapy as described in the settlement agreement.  Class members’ claims for ABA therapy damages, however, are NOT be released by this action.  If you have such claims, you must pursue them within the relevant statute of limitations period.  You should consult with an attorney if you have such claims.

The Court has set the following deadlines in this case:

1. Submit Comments and Objections: November 21, 2014
2. Final Approval Hearing: January 16, 2015 at 1:00 p.m.  

The A.G. v. Premera Court will hold a hearing on January 16, 2015 at 1:00 p.m.  The hearing will be located in Courtroom E-815 at the King County Superior Court, 516 Third Avenue, Seattle, WA 98104.  You are not required to attend the hearing.

A copy of the complaint is here .  Premera’s answer is here .

The Court’s Order granting certifying a settlement class may be found here .

The Court’s Order preliminarily approving the proposed settlement agreement is here . Note, however, that the dates in this order have changed, and the new deadline for comments and objections is November 21, 2014, and the final hearing is January 16, 2015 at 1:00 p.m.

The class’s motion for preliminary approval is here , with supporting material here .

The motion for attorneys’ fees, costs and incentive awards is here, with supporting documents here.

The motion for final approval is here, with the supporting declaration attached here.  You may request a copy of any of the exhibits to this declaration by emailing class counsel at rick@sylaw.com.

Class counsel’s reply in support of attorney’s fees and costs is attached here. 

Check back here for updates on the approval and claims process.  Class counsel filed a motion for attorney fees, costs and incentive awards, which is posted in “Key Court Documents and Filings, above.

More Information

If the information on this page does not answer your questions, then you may contact class counsel for more information at ehamburger@sylaw.com or rspoonemore@sylaw.com.  You may also write to class counsel at Premera Class Action Information, Sirianni Youtz Spoonemore Hamburger, 999 Third Avenue, Suite 3650, Seattle, WA 98104.  You should not call the Court.