December 18, 2024 Update: New Nationwide Class Action filed against Kaiser Arising Out of its Continuing Failure to Cover Hearing Aids for all Insureds

Jason Delessert, a Washington resident with hearing loss has filed a nationwide class action lawsuit to challenge Kaiser’s Hearing Aid Exclusion. This is the first nationwide class action lawsuit to bring a disability discrimination claim under the Affordable Care Act (“ACA”) on behalf of hearing-disabled enrollees who need prescription hearing aids. It follows an earlier case, Schmitt v. Kaiser Foundation Health Plan of Washington, which challenged similar exclusions on behalf of Washington-only insureds.

A copy of the Complaint may be found here.

A press release may be found here.

The Ninth Circuit’s decision in Schmitt v. Kaiser Foundation Health Plan of Washington may be found here.

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Information from the Prior Washington State Class Action Appears Below

a new website has been created to provide information about this case, the proposed settlement, and how to make a claim. It can be found here: www.kphearingaidsettlement.com

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final update: the claims process has concluded and claimants should expect to receive checks for approved claims on or before January 10, 2025.

April 18, 2024 Update: The Court Approved the settlement

December 13, 2023 update: the Class action against Kaiser foundation health plan of washington arising out of its failure to cover hearing aids and related services for hearing loss has been settled, pending final approval by the court

Please monitor this page for updates, including how to make a claim. The claims process will begin soon, and you should go to https://www.kphearingaidsettlement.com/ if you are a class member with a claim.

The Amended Order (1) Preliminarily Approving Settlement Agreement; (2) Approving Class Notice Package; and (3) Establishing a Final Settlement Approval Hearing and Process is attached here.

The Order Approving a Settlement Class is attached here.

The Settlement Agreeemnt is attached here.

The official class notice can be found here: https://www.kphearingaidsettlement.com/ .

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Important Dates:

• Fairness Hearing: April 18, 2024, at 11:00 am at the US Courthouse, 700 Stewart Street, Suite 13206, Seattle, WA 98101.

• Deadline for Comments or Objections: April 4, 2024 (see notice at https://www.kphearingaidsettlement.com/ for details),

• Deadline to Make Claims: April 4, 2024 (see notice at https://www.kphearingaidsettlement.com/ for details)

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ATTENTION:

DID YOU PURCHASE A HEARING AID BETWEEN OCTOBER 30, 2014 AND DECEMBER 31, 2023 THAT WAS NOT COVERED BY KAISER? 

A SETTLEMENT AGREEMENT MAY AFFECT YOUR RIGHTS.

• Three individuals who needed hearing aids sued Kaiser Foundation Health Plan of Washington, Inc., Kaiser Foundation Health Plan of Washington Options, Inc., Kaiser Foundation Health Plan of the Northwest and Kaiser Foundation Health Plan, Inc. in a class action lawsuit.  Kaiser excluded hearing aids and associated services in their insurance policies, but the individuals maintained that such exclusions violated the law and were not enforceable.

• The three individuals, called the “Named Plaintiffs,” and Kaiser have reached a settlement agreement in which Kaiser will pay $3,000,000 to a settlement fund to reimburse class members for uncovered expenses for hearing aids and associated services incurred from October 30, 2014 through December 31, 2023.  You may be able to file a claim for unreimbursed expenses for these services.

• The U.S. District Court for the Western District of Washington has granted preliminary approval of the Agreement and ordered this notice.  Notice is provided to all Kaiser enrollees in Washington health insurance plans that did not include hearing aid coverage from October 30, 2014 through December 31, 2023.

The main points of the Agreement are described below.  You can read the entire proposed agreement here and the official class notice here.

The key features of the proposed settlement:

• 3,000,000 Settlement Fund

The agreement requires Kaiser to pay $3,000,000 into a settlement fund to reimburse valid and approved unpaid charges for hearing aids and associated services incurred by class members between October 30, 2014 and December 31, 2023, attorneys’ fees, litigation costs to class counsel, arbitration costs, taxes, claims administration and class notice costs, and case contribution awards to the Named Plaintiffs.

• Claims Process for Unpaid or Unreimbursed Hearing Aids and Associated Services.

A class member will be eligible for payment upon submission of a claim and certification form that includes:

1.    the date(s) the member received hearing aid(s) and/or associated services (month/year);

2.    the names of provider(s) who sold the member the hearing aid(s) and/or provided the associated services, as well as the provider(s)’ addresses and phone numbers, if available; 

3.    the unreimbursed or unpaid charges or debt incurred;

4.    documentation showing the payments made or debt incurred for the hearing aid(s) and/or associated services (unless that information was previously provided to Kaiser); and

5.    a signed certification form attesting that the information provided is true and correct.

Documents that provide proof of charges may include (but are not limited to) canceled checks, credit card account statements, checking account statements, provider ledgers or signed letters from the provider documenting the amount paid or debt incurred.  Class members who previously submitted a claim for a hearing aid or associated services to Kaiser that was denied do not need to resubmit supporting documents.  Those class members will receive a pre-populated claims form that they must verify to receive payment.

A claims processor will review the claims to confirm that all of the required information is included with the claim form.  If a class member submits a claim form that does not have the information needed to make a valid claim for reimbursement, then the claims processor will provide the class member with notice and an opportunity to correct any problems with the claim, and class counsel may assist class members in making their claims.

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

Class counsel may apply for attorneys’ fees to be paid out of the settlement fund.  Class counsel can seek a fee up to, but not exceeding, 35% of the fund and will make a motion for an award of fees on or before March 7, 2024.  This motion will be posted on this webpage.  Litigation costs, arbitration costs, costs for claims administration, class notice costs incurred and any taxes due will be paid from the fund.  Class counsel’s application for attorneys’ fees and litigation costs will not be paid without the Court’s review and approval.

• Case Contribution Awards

The Court may also order up to $15,000 for each Named Plaintiff as a case contribution award to be paid from the settlement fund.  This award is to compensate Named Plaintiffs for the time, effort and risk they undertook to pursue the claims in this case.

• Comment on, Support, or Object to Settlement Agreement, Award of Attorneys’ Fees, Litigation Costs and Case Contribution Awards.

You may object to, support or comment on the settlement agreement, as well as any request for attorneys’ fees, litigation costs and case contribution.  Your comments must be received by the Court by no later than April 4, 2024.   On or before March 10, 2024, Class Counsel will post its request for award of attorneys’ fees, costs and incentive awards on .  You may also request a copy of the request directly from Class Counsel. 

• How Much Could I Get Paid?

Class counsel expects, but does not guarantee, that the $3,000,000 will be sufficient to pay all class members’ valid and approved claims at 100% after payment of attorneys’ fees, litigation costs, incentive awards, arbitration costs, taxes, and administration costs.

If insufficient funds remain to pay all class members who filed valid and approved claims at 100% after the payment of attorneys’ fees, litigation costs, incentive awards, arbitration costs, taxes, and administration costs, then all class members will receive a pro rata (percentage) distribution of their approved claimed amount.

If excess funds remain after all payments described in the Agreement are made, then those excess funds up to $300,000 shall be donated to the Washington State Communication Access Project, a nonprofit organization dedicated to enabling persons who are hard of hearing to fully enjoy public venues.  Any remaining excess funds shall be donated to the Legal Foundation of Washington to distribute to charitable organizations dedicated to advocacy on behalf of people who are deaf or hard of hearing.

• Release of Claims

Class members will release Kaiser from all claims related to the hearing aids and associated services that were or could have been brought in the lawsuit.  This means that if you have any actual or potential claims arising out of Kaisers’ alleged failure to pay, those claims will be resolved as part of the agreement, and your right to payment for any damages related to hearing aid coverage will be governed exclusively by the agreement for the period between October 30, 2014, and December 31, 2023.  

Questions? Please email class counsel at either Rick@sylaw.com or Ele@sylaw.com.