## Facts

- Jill and Stephen Tappert had a four-year-old daughter, Abby, who was diagnosed with autism.
- Abby was insured as a dependent under an Anthem Blue Cross Blue Shield (Anthem) group health insurance policy.
- The Tapperts sought coverage for applied behavior analysis (ABA) therapy as treatment for Abby’s autism.
- Anthem denied coverage for ABA therapy.
- The Tapperts contended that ABA therapy was a covered benefit under the terms of Anthem’s policy.
- Under the policy’s “Other Outpatient Therapy Provisions,” Anthem excluded from coverage outpatient therapies for “learning disorders, behavioral or personality disorders, and developmental delays.”
- The policy also stated that, for insureds up to age five, the exclusion would not apply to therapies for the treatment of “congenital defects or birth abnormalities.”
- The policy defined “congenital defect” as a “defect or anomaly existing before birth.”
- Anthem’s medical policy described autism as a developmental disorder affecting parts of the brain that control social interaction and communication.
- In its coverage-denial letter, Anthem nevertheless acknowledged that Abby was entitled to outpatient therapy for congenital defects and birth abnormalities.
- During the Tapperts’ appeal, Anthem’s medical director, Dr. Jones, expressed the view that autism met the requirements for therapies for the treatment of congenital defects or birth abnormalities up until age five, and that autism was not a developmental disorder for purposes of the under-five exception.
- Anthem argued that Dr. Jones’s view reflected an accommodation to the autism lobby rather than a sound clinical or contractual conclusion.
- The Tapperts presented testimony from Dr. MacHaffie, president of the Colorado chapter of the American Academy of Pediatrics, who stated that peer-reviewed articles supported that autism is a neurological disorder that is present in some children at birth.
- The dispute was submitted to arbitration, and the arbiter issued an arbitration award.

## Issues

1. Whether, under Anthem’s policy, a four-year-old’s autism could qualify as a “congenital defect or birth abnormality” (as defined by the policy) so that outpatient therapy for its treatment was not subject to the policy’s exclusion for learning, behavioral/personality, and developmental-delay therapies.
2. Whether ABA therapy sought for Abby’s autism constituted a covered outpatient therapy for treatment within the under-five congenital-defect/birth-abnormality exception.

## Decision

- The arbiter ruled for the Tapperts.
- The arbiter determined that Abby’s autism fit within the policy’s under-five exception for treatment of congenital defects or birth abnormalities.
- The arbiter ordered Anthem to provide coverage for ABA therapy as treatment for Abby’s autism under the terms of the policy.

## Legal Principles

- Coverage questions in an insurance dispute turn on the policy’s contract language, including defined terms, exclusions, and any stated exceptions.
- When a policy creates an age-based exception to an exclusion, the exception can restore coverage if the insured shows the claim fits the exception’s terms.
- A contractual definition (here, “defect or anomaly existing before birth”) can require medical proof about whether a condition may be present at birth.
- An insurer’s own statements in denial and appeal communications, including internal medical-review opinions, may be considered when determining the insurer’s contractual obligations and the consistency of its coverage position.

## Conclusion

In this arbitration, the Tapperts sought ABA therapy coverage for their four-year-old daughter’s autism under Anthem’s group policy. Although the policy generally excluded outpatient therapies for learning disorders, behavioral or personality disorders, and developmental delays, it carved out an exception for children up to age five for therapies treating congenital defects or birth abnormalities, defined as defects or anomalies existing before birth. Based on the policy language and the evidence presented—including the medical director’s appeal-stage opinion and testimony that autism can be present at birth—the arbiter concluded the under-five exception applied and ordered Anthem to cover ABA therapy.


Tappert v. Anthem Blue Cross Blue Shield, JAG Case No. 270779 (2007)