ANGELA MIDTHUN -HENSEN and TONY HENSEN , on behalf of their daughter K.H. v. Group Health Cooperative of South Central Wisconsin , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2100
A NGELA M IDTHUN -H ENSEN and TONY HENSEN , on behalf of
their daughter K.H.,
Plaintiffs-Appellants,
v.
GROUP HEALTH C OOPERATIVE OF S OUTH C ENTRAL WISCONSIN ,
I NC .,
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.
____________________
S UBMITTED F EBRUARY 15, 2024 — DECIDED A UGUST 5, 2024
____________________
Before S YKES , Chief Judge, and E ASTERBROOK and K IRSCH ,
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

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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 ther-
apy) as a treatment for autism at any age. Because the em-
ployer-sponsored plan in which the family was enrolled co-
vers 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. Plaintiffs do
not contest the benefits K.H. received after this change.)
After several lengthy medical-review and appeals pro-
cesses confirmed Group Health Cooperative’s conclusion that
then-available evidence did not support the requested thera-
pies, Hensen and Midthun-Hensen sued, contending that the
insurer violated provisions of the Employee Retirement In-
come Security Act (ERISA), which regulates employer-spon-
sored group health plans, as well as a state law regarding cov-
erage for autism. The district court found nothing wrong with
the insurer’s decisions. 672 F. Supp. 3d 662 (W.D. Wis. 2023).
Plaintiffs no longer contest the district court’s conclusion that
the insurer did not violate state law or deprive K.H. of bene-
fits to which she was entitled under the plan. They focus in-
stead on their argument that Group Health Cooperative’s lim-
its 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 in-
surers place coverage for mental conditions on an equal foot-
ing with coverage for physical conditions. One way it does
this is by requiring that “treatment limitations applicable to
… mental health or substance use disorder benefits are no
more restrictive than … treatment limitations applied to

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No. 23-2100 3
substantially all medical and surgical benefits covered by the
plan”. 29 U.S.C. §1185a(a)(3)(A)(ii). As plaintiffs see it, Group
Health Cooperative violated this prohibition by applying its
requirement that treatments be “evidence-based” more strin-
gently to mental-health benefits for autism than it did to one
medical benefit, chiropractic care. (We use the statute’s dis-
tinction between “mental health benefits” and “medical or
surgical benefits”, though we recognize that mental condi-
tions are themselves medical conditions.)
Plaintiffs 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 scientific support. They assert that, given this lack of
support, Group Health Cooperative’s imposition of an age-
based treatment limitation for certain autism treatments but
not for chiropractic care violated the Parity Act. (Plaintiffs also
contend that evidence available at the time had supported the
treatments K.H. sought—but the district court found this un-
substantiated 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 difference
between benefits for autism and benefits for musculoskeletal
conditions could be attributed to any difference in the way the
insurer treated mental and physical conditions. Id. at 678–80.
The judge concluded that differences in coverage reflected
differences in the medical literature on which the insurer re-
lied. The surveys of autism research that Group Health Coop-
erative consulted made treatment recommendations that de-
pended in part on patients’ ages, whereas its sources

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4 No. 23-2100
regarding chiropractic care did not (though they recognized
that there was a paucity of evidence specifically demonstrat-
ing efficacy of chiropractic care in children). An insurer is en-
titled to identify and rely on such literature so long as its pro-
cess for doing so applies to mental-health benefits and medi-
cal benefits alike. Limiting coverage to evidence-based treat-
ments has the support of a regulation that plaintiffs 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 plaintiffs. Pre-2020 restrictions on coverage for
autism therapies did not result from how the insurer assessed
the literature regarding each condition. Rather, they reflect
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 lit-
erature. They must make sense of this literature as they find
it, no matter how thin or developing it may be. Cf. Smith v.
Office of Civilian Health & Medical Program of Uniformed Ser-
vices, 97 F.3d 950, 956–57 (7th Cir. 1996). The way in which the
medical literature considers the efficacy of and makes recom-
mendations regarding various treatments will vary for any
number of reasons—from the availability of study partici-
pants across demographics, to funding considerations, to
judgments regarding study design, to which patient charac-
teristics researchers expect to bear on treatments’ efficacy.
Such variance affects the results—and treatment recommen-
dations—of medical study.
It’s unsurprising that literature on autism focuses more on
efficacy by age than does literature on chiropractic care.

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No. 23-2100 5
Musculoskeletal conditions tend to develop with injury and
age, which may lead researchers to focus on adult popula-
tions. Meanwhile studies on autism, which is commonly di-
agnosed and first treated in childhood, most often focus on
children. That Group Health Cooperative’s policies reflect
this differing focus does not pose a problem under the Parity
Act.
This is not all. Plaintiffs’ argument fails for a more funda-
mental reason. Plaintiffs make their case by identifying a sin-
gle medical benefit that was handled differently from the men-
tal-health benefits K.H. sought. But the relevant statutory pro-
vision requires that treatment limitations applicable to men-
tal-health benefits be no more restrictive than treatment limi-
tations “applied to substantially all medical and surgical bene-
fits covered by the plan”. 29 U.S.C. §1185a(a)(3)(A)(ii) (em-
phasis added).
To evaluate whether a limitation applies to “substantially
all medical and surgical benefits”, the plaintiff 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 Con-
tinental Can Co. v. Chicago Truck Drivers Pension Fund, 916 F.2d
1154 (7th Cir. 1990). Regulations implementing the Parity Act
define “substantially all” to mean “at least two-thirds” as con-
cerns “financial requirements” or “quantitative treatment
limitations” but are silent (for no reason we can discern) on
what “substantially all” means for “nonquantitative treat-
ment limitations” such as the one at issue here. See 29 C.F.R.
§2590.712(c)(3)(i)(A). Plaintiffs do not contend that these reg-
ulations are invalid. (ERISA authorizes rulemaking, see 29
U.S.C. §1135, and we need not address how Loper Bright

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6 No. 23-2100
Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), applies to regu-
lations adopted under an express delegation.)
We do not have to determine exactly what “substantially
all” means, because “substantially all” does not mean “one.”
Plaintiffs proceed as if they can prevail by showing that their
insurer approached coverage for one mental-health benefit
more restrictively than coverage for one medical benefit. They
are mistaken. No matter how much space “substantially”
leaves, a showing that an insurer limits a mental-health bene-
fit more than it does one medical benefit cannot show that it
so limits substantially all such benefits. Plaintiffs have not seri-
ously tried to show that Group Health Cooperative, as a gen-
eral matter, imposed age-based treatment limitations less
stringently on medical (and surgical) benefits than on mental-
health benefits.
Plaintiffs 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 judg-
ment as we would a motion to dismiss. This is wrong for
many reasons—for one, discovery is not required before sum-
mary judgment. See Fed. R. Civ. P. 56. Litigants may ask the
district court to hold off on deciding a summary-judgment
motion until they can conduct further discovery, see Fed. R.
Civ. P. 56(d)—and plaintiffs did file a motion asking the court
to defer acting on the summary-judgment motion. But the dis-
trict court said no, 2022 U.S. Dist. LEXIS 174594 (W.D. Wis.
Sept. 27, 2022), and plaintiffs do not contend on appeal that
the judge abused his discretion. (Litigants do not need discov-
ery to find out the contents of medical literature.) To receive
relief on appeal, a party must do more than express

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No. 23-2100 7
dissatisfaction with how things went in the district court—it
must explain how an adverse order was reversible. That de-
pends 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 im-
portant evidence). We cannot consider—and plaintiffs cannot
receive relief from—a determination they do not appeal.
AFFIRMED

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