The opinion of the court was delivered by: Juan R. Sanchez, J.
Having previously certified a portion of a class proposed by Plaintiffs in this action, this Court is now being asked by Plaintiffs Kristopher Churchill and Luis Rolando to expand the class definition to add Rolando as a representative for an additional subclass of individuals who received insurance from, or whose benefit plans were administered by, Defendant CIGNA Corporation or its subsidiaries (collectively, CIGNA),*fn1 and who were harmed by CIGNA's policy of denying benefits for certain types of treatment for Autism Spectrum Disorder (autism or ASD). This proposed subclass consists of current CIGNA plan participants whose claims for Applied Behavior Analysis (ABA) or Early Intensive Behavioral Treatment (EIBT)*fn2 were denied by CIGNA on the grounds that such treatments are investigative or experimental.
Also before the Court is CIGNA's motion to partially dismiss those members of the previously certified class whose claims for ABA were denied prior to November 24, 2006, on the basis that such claims are time-barred. By separate motion, Plaintiffs ask this Court not to dismiss those class members outright, but merely to amend the class definition for the previously certified class, as well as for the subclass for which they now seek certification, to eliminate any concerns regarding the statute of limitations applicable to the instant claims, thus preserving the claims of those class members who could bring their claims in their own states with longer limitations periods.
For the following reasons, this Court will grant in part and deny in part Plaintiffs' motion to expand the class definition, deny without prejudice to reassertion CIGNA's partial motion to dismiss, and grant in part and deny in part Plaintiffs' motion to amend the class definition for the previously certified class and the newly certified subclass.
On January 14, 2011, Churchill filed his First Amended Complaint followed by a motion to certify this case as a class action. On August 12, 2011, this Court certified the following class of former CIGNA plan participants:
All individuals who, between November 24, 2004, and August 12, 2011, (1) were enrolled in a plan administered by a CIGNA Defendant, or insured under health insurance coverage offered by a CIGNA Defendant in connection with a plan, (2) are no longer enrolled in a CIGNA-affiliated plan, and (3) made a claim for Applied Behavior Analysis and/or Early Intensive Behavioral Treatment for Autism Spectrum Disorder which was denied on the grounds that such treatment is deemed by a CIGNA Defendant to be investigative or experimental.
August 12, 2011, Mem. and Order, ECF Nos. 70-71.
At the time, Churchill was not a current CIGNA member. Having recognized he was therefore not a typical representative of the entire proposed class for which he sought certification, in that he sought to certify a class of both current and former CIGNA members, Churchill requested leave to amend his Complaint to add current CIGNA members as named plaintiffs.
On September 2, 2011, after a brief discovery period, Churchill filed a Second Amended Complaint adding Luis Rolando as a named Plaintiff.*fn4 Rolando is a current member of an employer health plan sponsored by NetApp and administered by CIGNA. Rolando's son, a beneficiary of Rolando's NetApp Group Welfare Plan, suffers from ASD and received ABA therapy, which was specifically covered under the NetApp Plan. In the Second Amended Complaint, Plaintiffs allege CIGNA improperly denied insurance benefits to cover their sons' ABA treatment in violation of § 502(a)(1)(B) and (a)(3) of the Employee Retirement Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B) and (a)(3). Rolando seeks benefits due pursuant to § 1132(a)(1)(B) and equitable relief pursuant to § 1132(a)(3).
In light of the addition of Rolando as a named plaintiff, Plaintiffs seek to expand the class definition to add the following subclass of current CIGNA plan participants:
All individuals who, on or after November 24, 2004, (1) were enrolled in a plan administered by a CIGNA Defendant, or insured under health insurance coverage offered by a CIGNA Defendant in connection with a plan, (2) are currently enrolled in a CIGNA-affiliated plan, and (3) who made a claim or make a claim for Applied Behavior Analysis and/or Early Intensive Behavioral Treatment for Autism Spectrum Disorder which was denied on the grounds that such treatment is deemed by a CIGNA Defendant to be investigative or experimental.
Pls.' Mot. to Amend Class Definition 1.
As this Court detailed in its August 12, 2011, Opinion, ABA therapy, which was developed approximately 40 years ago, is "a discipline concerned with the application of behavioral science in real-world settings such as clinics or schools with the aim of addressing socially important issues such as behavior problems and learning." ECF No. 70 at 2-3 (internal citations omitted). While ABA therapy encompasses a broad range of techniques, certain features are common to all ABA-based treatment, including "the objective measurement of behavior, precise control of the environment, and use of procedures based on scientifically established principles of behavior." Id. at 3 (internal citations omitted). Autism or ASD is classified as a Pervasive Developmental Disorder (PDD), see Pls.' Reply in Supp. of Mot. to Amend Class Definition Ex. 1, at 2, and ABA therapy is beneficial to children diagnosed with PDDs. See, e.g., McHenry v. PacificSource Health Plans, 679 F. Supp. 2d 1226, 1230-32 (D. Or. 2010) (citing Glen O. Sallows & Tamylnn D. Graupner, Intensive Behavioral Treatment for Children with Autism: Four-Year Outcome and Predictors, 110 Am. J. on Mental Retardation 417 (2005)); Berge v. United States, No. 10-0373, 2012 WL 3039736, at *21 (D.D.C. July 26, 2012) (citing Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 69 (4th ed., text rev. 2000)). Indeed, many researchers support the use of ABA to treat ASD, including the American Academy of Pediatrics, which has declared ABA "the most efficacious psychosocial treatment for autism." ECF No. 70 at 3 (internal citations omitted); see also McHenry, 679 F. Supp. 2d at 1232 (citing William J. Barbaresi, et al., Autism: A Review of the State of the Science for Pediatric Primary Health Care Clinicians, 160 Archives of Pediatrics & Adolescent Med. 1167, 1171 (2006) (finding "[d]ecades worth of scientific research provide clear and convincing support" for ABA's use as an "effective intervention")).
Like Churchill, Rolando argues CIGNA has a standard and uniform medical coverage policy that denies coverage for ABA. With respect to ABA, the relevant portions of CIGNA's policy states:
CIGNA does not cover intensive behavioral interventions (e.g., early intensive behavior intervention [EIBI], intensive behavior intervention [IBI], Lovaas therapy, applied behavior analysis [ABA]) for any indication because it is considered experimental, investigational or unproven.
Intensive Behavioral Interventions/ABA are considered Experimental/Investigational/ Unproven and not covered ...