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September 29, 2023 Feature

Federal Mental Health Parity Rules Eroding Traditional Health Plan Limits on ABA and Other Behavioral Treatments for Autism

Cynthia Marcotte Stamer
Despite widespread clinical recognition of ABA autism therapy, health plans and insurers continue to exclude or limit coverage of ABA autism therapy.

Despite widespread clinical recognition of ABA autism therapy, health plans and insurers continue to exclude or limit coverage of ABA autism therapy.

Boris SV / Moment / via Getty Images

Newly proposed federal regulations (2023 Proposed Rules) interpreting the mental health and substance abuse coverage parity requirements of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) offer hope for expanded health benefit availability to families and providers of individuals with Autism Syndrome Disorder. Autism is a neurological and developmental disorder affecting how people interact, communicate, learn, and behave. Called a “syndrome” because symptoms vary in nature and severity, common symptoms often include difficulty with communication and interaction with other people, restricted interests, repetitive behaviors, and other symptoms affecting the person’s ability to function in school, work, and other areas of life. See American Psychiatric Association, Diagnostic and statistical manual of mental disorders (5th ed. 2013); National Institute of Mental Health, Autism Spectrum Disorder; Centers for Disease Control, Making an Autism Spectrum Disorder Diagnosis Handout IV: DSM-5 ASD Checklist; National Center on Birth Defects and Developmental Disabilities, Centers for Disease Control, Making an Autism Spectrum Disorder Diagnosis Handout IV: DSM-5 ASD Checklist.

Requirements related to the MHPAEA 2023 Proposed Rules alert MHPAEA-covered health insurers, employment-based group health plans, and their sponsoring employers, fiduciaries, claims administrators, and insurers to brace for federal regulators and private litigants to escalate attacks health plans limiting or denying health benefits for Applied Behavior Analysis (ABA) therapy and other behavior modification therapies (collectively ABA therapy) for the treatment of autism.

Over the past 25 years, the use of ABA therapy administered by mental health professionals has achieved acceptance as a critical component of autism treatment whether or not the autistic individual also suffers from mental health conditions. See P. Terdal, Evidence for Effectiveness of ABA as a Treatment for Autism (Dec 7, 2013); American Psychiatric Association, Diagnosing and managing autism spectrum disorder. Despite widespread clinical recognition of ABA autism treatment therapy, however, many health plans and health insurers continue to exclude or limit coverage of ABA therapy for autism. See, e.g., National Conference of State Legislatures, Study of Mental Health Parity to Better Understand Consumer Experiences with Accessing Care (Aug. 2018); Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534 (9th Cir. 1990) (overturning self-insured health plan denial of coverage of ABA treatment for autism finding plan administrator acted arbitrarily by treating autism as a mental health condition excluded from mental health treatment coverage exclusion); McHenry v. Pacificsource Health Plans, 679 F. Supp.2d 1226 (D. V.I. 2010) (ABA autism treatment denial upheld because not eligible provider).

Since MHPAEA’s enactment, private litigants and federal regulators increasingly have relied on the mental health parity mandates of MHPAEA and related state insurance autism and mental health parity mandates to expand the availability of health benefits for ABA therapy treatment of autism. Successful MHPAEA challenges to health benefit ABA autism therapy limitations and exclusions offer autistic individuals hope for expanded availability of health benefits for ABA autism therapy and warn MHPAEA-covered health plans and their sponsoring employers, fiduciaries, claims administrators, and insurers to ensure MHPAEA parity in the design and administration of health benefits for ABA autism therapy. Language included in the 2023 Proposed Rules jointly issued by the Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA), and the Department of Health and Human Services Centers for Medicare and Medicaid Services Center for Consumer Information and Insurance Oversight (CCIIO) (collectively the Tri-Agencies) confirms the Tri-Agencies’ continued concern with ensuring MHPAEA parity in ABA autism therapy benefits and portends further Tri-Agency and private MHPAEA action challenging health plan provisions or practices that deny health benefit parity for ABA autism therapy. MHPAEA provides shared implementation authority between the Tri-Agencies but allocates audit and enforcement authority among these agencies based on the nature of the health plan. HHS has jurisdiction over public sector group health plans (non-federal governmental plans), while the Departments of Labor and the Treasury have jurisdiction over private group health plans. For a more detailed understanding of these shared and allocated powers and duties, see, e.g., Employee Benefits Security Administration, Understanding Implementation of The Mental Health Parity and Addiction Equity Act Of 2008, Mental Health and Substance Use Disorder Parity.

Health Plans Covered by MHPAEA Parity Mandate

MHPAEA is a federal law that generally prohibits insured or self-insured group health plans with more than 50 participants and health insurance issuers that provide mental health or substance use disorder (MH/SUD) benefits from imposing less favorable benefit limitations on those benefits than that the plan applies to medical and surgical benefits.

Originally applicable only to employment-based group health plans with more than 50 participants and group health insurance coverage, the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the ACA) amended MHPAEA also to apply to individual health insurance coverage. Because the ACA also concurrently amended federal law to mandate MH/SUD benefits coverage as part of the ACA’s “essential health benefits” mandates, as a practical matter, the ACA essential benefit coverage mandates effectively eliminated the opportunity for group and individual health insurance subject to the ACA essential benefit mandates to avoid MHPAEA coverage by not including any MH/SUD benefits in their programs. Following MHPAEA’s enactment, however, MHPAEA’s exemptions for qualifying self-insured small private employer-sponsored or non-federal governmental employer plans with 50 or fewer employees and a temporary, one-year exemption for health programs that experience actual health plan cost increases due to design changes made to comply with MHPAEA remain in effect. Subject to these MHPAEA exemptions, MHPAEA’s mental health parity mandates now generally apply to most group and individual health care coverage offered in the United States.

While MHPAEA applies to virtually all insured and self-insured group health plans and individual and group health insurance, it allocates responsibility for implementation, interpretation, and enforcement of MHPAEA between the Tri-Agencies based on the nature of the arrangement. The Tri-Agencies generally act collectively to prepare and issue interpretative regulations governing the general interpretation and enforcement of MHPAEA and other coverage mandates of the ACA. In contrast, jurisdiction for implementation and enforcement of its rules depends on the nature of the program. Health insurance, whether purchased by an insured group health plan or in the individual market, is regulated by the state’s insurance department and subject to CIICO’s regulations and oversight. CIICO bears exclusive authority to implement and enforce MHPAEA for non-federal government plans. Meanwhile, the EBSA implements and enforces MHPAEA for self-insured private, non-governmental employment-based group health plans.

MHPAEA Mental Health Parity Mandates

MHPAEA requires covered health plans and insurance policies to ensure their health plans’ MH/SUD benefits are in parity with medical/surgical benefits by imposing the following requirements:

  • The financial requirements (e.g., deductibles and co-payments) and quantitative treatment limitations (e.g., number of visits or days of coverage) the program applies to MH/SUD benefits must be no more restrictive than the predominant financial requirements or treatment limitations that apply to substantially all medical/surgical benefits (the substantially all/predominant test) as determined following the Tri-Agencies implementing regulations. This requirement preserves and extends to all MHPAEA-covered group health plans and health insurance the original federal mental health parity prohibition imposed upon large group health plans providing mental health coverage under the Mental Health Parity Act of 1996 (MHPA).
  • MH/SUD benefits may not be subject to any separate cost-sharing requirements or treatment limitations that only apply to such benefits.
  • If a group health plan or health insurance coverage includes medical/surgical benefits and MH/SUD benefits, and the plan or coverage provides for out-of-network medical/surgical benefits, the plan or coverage also must provide for out-of-network MH/SUD benefits.
  • Any standards for medical necessity determinations and other reasons for any denial of benefits relating to MH/SUD benefits may be no more restrictive than those for medical/surgical benefits and disclosed upon request.

Implementing Tri-Agency regulations includes detailed and often complicated rules for determining the parity of quantitative, financial, and nonquantitative MH/SUD benefits a MHPAEA-covered health program provides compared to those provided for medical/surgical benefit benefits. Under amendments to MHPAEA enacted as part of the Consolidated Appropriations Act (CAA), MHPAEA-covered health plans generally must prepare a comparative analysis of any nonquantitative treatment limits (NQTLs) that apply to MH/SUD benefits and provide a copy of this comparative analysis and other specified information to EBSA. See § 203 Title II, BB, Consolidated Appropriations Act, Pub. L. No. 116-260.

MHPAEA was amended, in part, to expressly require group health plans and health insurance issuers offering group or individual health insurance coverage that offer both M/S benefits and MH/SUD benefits and impose NQTLs on MH/SUD benefits to perform and document comparative analyses of the design and application of their NQTLs. Further, plans and issuers must make their comparative analyses available to the departments or applicable state authorities upon request. The comparative analysis requirements became effective on February 10, 2021, or 45 days after the date of enactment of the CAA. MHPAEA-covered group health plans should generally expect to be required to provide copies of this information to requesting participants and beneficiaries according to existing ACA and MHPAEA adverse benefit determination and other ERISA claims and appeals and other disclosure rules. See, e.g., 29 C.F.R. § 2560.503-1(c)(1).

Tri-Agencies Guidance Applies MHPAEA Parity to ABA Autism Therapy

Tri-Agency guidance, enforcement, and judicial precedent increasingly warn MHPAEA-covered health plans and those sponsoring and administering them of potential MHPAEA exposures for failing to cover ABA autism therapy in parity with medical/surgical benefits following MHPAEA.

Though Tri-Agency regulations generally allow health plans to define when the plan treats an item or service as subject to coverage as an MH benefit, SUD benefit, or medical/surgical benefit, health plan designations must adhere to “generally recognized independent standards of current medical practice” and applicable Federal and State law when determining the conditions treated as MH/SUD benefits versus medical/surgical benefits. See CFR § 54.9812-1; 29 CFR § 146.136; 45 CFR § 146.136. Tri-Agency guidance and enforcement show the agencies are prepared to use MHPAEA to compel health plans to provide ABA autism treatment benefits in parity with medical/surgical benefits.

Tri-agency guidance has long alerted health plans of potential MHPAEA exposures from failing to provide parity in benefits provided for ABA autism therapy compared to those provided for medical/surgical benefits. For example, Question 1 in FAQs about Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act Part 39 (ACA FAQ 39) states that a plan that defines autism as a mental health condition that, in practice, excludes coverage for ABA therapy to treat autism under the rationale that the treatment is experimental or investigative violates MHPAEA when, in operation, the plan applies the NQTL more stringently to ABA autism therapy than other medical/surgical benefits. See Employee Benefits Security Administration, FAQS About Mental Health and Substance Use Disorder Parity Implementation and the 21st Century Cures Act, Part 39: Mental Health and Substance Use Disorder Parity (Sep. 5, 2019).

Likewise, the EBSA Self-Compliance Tool for the MHPAEA cautions that plans defining autism as a mental health condition must ensure the parity of any qualitative limits on ABA autism therapy benefits, as well as the processes, strategies, evidentiary standards, and other factors used by the health plan to determine whether any experimental treatment or other nonquantitative treatment limitation (NQTL) the plan applies to ABA autism treatments are comparable to and no more stringently applied than those used for treatments of medical/surgical conditions in the same classification. See Employee Benefits Security Administration, Self-Compliance Tool for the MHPAEA, Mental Health and Substance Use Disorder Parity.

The 2023 Proposed Rules would build further on this guidance by making clear for purposes of MHPAEA that because autism is a mental health condition under generally recognized independent standards of current medical practice, MHPAEA-covered health plans cannot define autism as a medical/surgical condition, may not impose any financial requirements or treatment limitations in a classification on benefits for autism treatment that are more restrictive than the predominant financial requirements or treatment limitations that apply to substantially all medical/surgical benefits in the classification, and may not impose any exclusion or limitation separately applicable to ABA autism treatment or other exclusions or other financial requirements or treatment limitations on ABA autism therapy or other autism treatment benefits that are not also applicable to any medical/surgical benefits in the same classification. See 2023 Proposed Rules; see also Preamble to 2023 Proposed Rules at 51; 26 CFR § 54.9812-1(c)(2)(C)(5); 45 C.F.R. § 146.136(c)(2)(ii)(C)(5); 29 C.F.R. § 2590.712(c)(2)(ii)(C)(5).

Tri-Agencies Enforce MHPAEA Parity for ABA Autism Therapy

The Tri-Agencies enforcement record and policies, as well as the HHS MHPAEA Enforcement Report, confirms CIICO’s investigation of potential violations of MHPAEA connected to ABA autism claim denials as early as 2017. See Department of Health and Human Services, Centers for Medicare & Medicaid Services Consumer Information and Insurance Oversight, Department of Health and Human Services Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) Enforcement Report. According to that Report, CIICO audited the health plan’s coverage for ABA autism therapy but took no enforcement action at that time because the plan chose to approve benefits for that individual’s ABA therapy for the treatment of autism after CIICO initiated the investigation.

EBSA revealed that MHPAEA working group consideration of QTLs and NQTLs applied by health plans to limit or exclude coverage for autism led, among other things, to investigations of issuers and plans that exclude coverage for ABA therapy. See, e.g., Department of Labor, Department of Health and Human Services, and Internal Revenue Service, 2022 MHPAEA Report to Congress, Employee Benefit Security Administration. According to the EBSA FY 2020 MHPAEA Enforcement Fact Sheet (2020 Enforcement Fact Sheet), a group health plan facing a potential EBSA investigation for capping and denying benefits for out-of-network care relating to autism diagnosis and treatment paid the claim at a higher reimbursement level when an EBSA Benefits Advisor contacted about data needed for an EBSA investigation. See Employee Benefit Security Administration, Department of Labor FY 2020 MHPAEA Enforcement Fact Sheet (Jan. 25, 2022). As a result, the plan reimbursed the mother for $11,384 in denied claims.

The 2020 Enforcement Fact Sheet similarly reveals that CMS took MHPAEA enforcement action against a self-funded non-federal governmental plan for a large school district for refusing to pay benefits for out-of-network treatment of autism ordered by an independent review organization’s determination. In addition to requiring the health plan to repay the autism treatment claims at issue, totaling at least $2,464, CMS conducted an MHPAEA investigation of the plan’s compliance with financial requirements, NQTLs, and QTLs in the outpatient, in-network and outpatient, out-of-network classifications but did not find any other MHPAEA violations. Id. at p. 5.

The FY 2021 MHPAEA Enforcement Fact Sheet (2021 Enforcement Report) discusses three examples of EBSA enforcement efforts resulting from these deliberations. See Department of Labor Employee Benefit Security Administration, Employee Benefits Security Administration Fact Sheet FY 2021 MHPAEA Enforcement. The first example involved an MHPAEA investigation of three self-insured group health plans administered by a large claims administrator jointly conducted by the EBSA Dallas and Chicago offices.

Along with details of that investigation, the 2021 Enforcement Report also reports on two EBSA benefit advisor interventions on ABA autism therapy. According to the 2021 Enforcement Report, a Seattle district office EBSA benefits advisor intervened to assist a family with a health plan limiting the “allowed amount” on ABA autism therapy claims, a small fraction of the billed charges. After the claimant’s parents were unsuccessful in resolving the problem with the health plan, EBSA reports the benefits advisor contacted the plan to inquire into the processing of claims for approximately 40 dates of service. Following communications with the benefit advisor, EBSA reported that the health plan reprocessed the claims and paid approximately $20,000 more for the services. The 2021 Enforcement Report also reports that a similar EBSA benefits advisor in the Dallas regional office helped another family to recover approximately $24,000 in previously denied autism benefits.

The 2022 MHPAEA Report to Congress (2022 Congressional Report) showed that the Tri-Agencies have continued scrutinizing ABA autism therapy coverage in their MHPAEA audits and investigations. See Department of Labor, Department of Health and Human Services, and Internal Revenue Service, 2022 MHPAEA Report to Congress: Employee Benefit Security Administration. The 2022 Congressional Report reports that after the EBSA Los Angeles regional office audit of three plans administered by a large claims’ administrator found prohibited ABA autism therapy exclusions affecting more than 18,000 participants, the audited health plans removed the exclusions. EBSA additionally reported that EBSA also subsequently learned that after the third-party administrator notified its more than 1,000 other self-insured plans administrated, covering more than 500,000 aggregate members of the EBSA position on MHPAEA’s effect on ABA autism therapy limitations and exclusions, most voluntarily corrected their plans. Id. at p. 21.

The recently released Tri-agencies MHPAEA Comparative Analysis Report to Congress, July 2023 (2023 Congressional Report) and EBSA FY 2022 MHPAEA Enforcement Fact Sheet (2023 Enforcement Fact Sheet) confirm the Tri-agencies have continued and intend to expand these efforts to enforce MHPAEA parity for ABA autism therapy and other autism treatments going forward. See Employee Benefit Security Administration, MHPAEA Comparative Analysis Report to Congress, July 2023 (Jul 25, 2023); see also Employee Benefit Security Administration, FY 2022 MHPAEA Enforcement Fact Sheet (Jul 25, 2023).

The 2023 Congressional Report recounts EBSA MHPAEA investigations securing the removal of NQTL ABA autism therapy benefit exclusions resulting from a Dallas regional office MHPAEA investigation of an ABA autism therapy exclusion in a self-funded plan covering more than 2,500 participants. In addition, the 2023 Congressional Report also shares that after an investigation by the Los Angeles Regional Office led to a self-funded plan covering around 1,000 participants to remove an ABA autism treatment exclusion, the regional office also subsequently acted on reports that the plan continued to impermissibly deny ABA autism therapy benefits by pending rather than timely processing requests for authorization or payment of ABA therapy benefit claims. Id.

Meanwhile, the 2023 Enforcement Fact Sheet reports shares that after EBSA’s Los Angeles regional office investigation determined that a self-insured plan affecting 1,229 participants violated MHPAEA by applying and enforcing an impermissible separate treatment limitation for applied ABA therapy and imposing an additional requirement of a treatment plan before the therapy inapplicable to medical/surgical benefits, the plan sponsor removed the ABA therapy exclusion and treatment plan conditions and reprocessed and paid benefits previously denied based on the impermissible exclusions. See 2023 Enforcement Fact Sheet.

Even without its proposal to add examples specifically clarifying the applicability of MHPAEA’s parity requirements to ABA autism therapy and other autism treatments in its 2023 Proposed Rules, EBSA’s use of its work enforcing MHPAEA to help families receive ABA autism treatment benefits in its identification of MHPAEA as a top priority sends a strong message that EBSA intends to continue to heavily scrutinize ABA autism therapy exclusions and limitations as part of these MHPAEA enforcement efforts. See Department of Labor, Employee Benefit Security Administration, Mental Health Parity is the Law, and We’re Enforcing It, (Jan. 25, 2022).

Courts Increasingly Enforce MHPAEA Parity for ABA Autism Therapy

Along with the growing Tri-Agency enforcement of MHPAEA parity for ABA autism treatment, health plan members increasingly successfully challenge health plan denials of coverage for ABA and other mental health treatments for autism in the courts. See, e.g., AF ex rel. Legaard v. Providence Health Plan, 35 F. Supp. 3d 1298 (D. Or. 2014) (ABA exclusion violated Oregon mental health parity statute, broad exclusion of coverage for mental health services provided to treat developmental disorders violated MHPAEA and Oregon mental health parity law); BrainBuilders, LLC v . Emblem Health, Inc., No. 21 Civ. 4627 (S.D. NY 2022) (dismissing MHPAEA and other claims against non-federal governmental plan and its administrators and sponsors for refusal to pay comparable benefits for autism treatment as ERISA private right of action does not apply to governmental plans and deficiencies in standings and pleadings); Midthun-Hensen v. Grp. Health Coop. of S. Cent. Wis., 21-cv-608-slc (W.D. Wis. May 6, 2022) (dismissing for failure to state MHPAEA claim for refusal to cover speech therapy and occupational therapy treatment of autism); Cromwell v. Kaiser Found. Health Plan, Case No. 18-cv-06187-EMC (N.D. Cal. Sep. 23, 2019) (exclusion for speech therapy as non-mental health autism treatment does not violate MHPAEA).

For example, in Wilson v. Anthem Health Plans of Ky., Inc., Civil Action No. 3:14-cv-743 (W.D. Ky. Dec. 17, 2019), the district court certified a self-insured group health plan member denied coverage for her autistic child’s ABA treatment as the class representative for a class action challenging Anthem’s practice of routinely capping and limiting placing caps and limits on ABA autism benefits on behalf of all current and former insureds, participants in, or beneficiaries of any health insurance policy issued or administered by Anthem Health Plans of Kentucky, Inc. that sought and were denied coverage for ABA autisms treatment. Under the class action settlement subsequently approved by the court, Anthem modified its plan coverage for autism and established a $300,000 settlement fund to pay claims ABA whose claims for coverage for ABA treatment for autism were denied because special dollar or hour limits were exceeded.

Similarly, in Doe v. United Behavioral Health, 523 F. Supp. 3d 1119 (N.D. Cal. 2021), the district court found a self-funded employer-sponsored plan violated MHPAEA by enforcing a plan provision that excluded from coverage for Intensive Behavioral Therapies such as ABA autism therapy. Additionally, the court held United Behavioral Health acted as a fiduciary when it enforced the exclusion in disregard of MHPAEA, as a fiduciary for breach of fiduciary duties under ERISA for wrongfully enforcing the exclusion.

Violating these parity standards by wrongfully limiting or excluding MH/SUD benefits coverage can be costly. Under the Employee Retirement Income Security Act (ERISA), for instance, plan participants or beneficiaries in non-governmental, employment-based health plans wrongfully denied ABA autism treatment or other mental health benefits in violation of MHPAEA generally can sue the health plan to recover the wrongfully denied benefits, plus attorneys’ fees and additional costs of recovery. See 29 U.S.C. § 1132(a)(1). Alternatively, participants, beneficiaries, or the Department of Labor may sue the sponsoring employer or other party identified as the named fiduciary of the plan, as well as administrative service providers or others shown to possess or exercise functional discretionary authority over the administration of the ABA autism coverage benefits on behalf of themselves and other plan participants and beneficiaries to recover the greater or damages suffered or profits realized from the breach, to obtain equitable relief such as orders compelling the reprocessing of benefits under MHPAEA or enjoining future MHPAEA violations, as well as the award of attorney’s fees and other costs of enforcement. See 29 U.S.C. § 1132(a)(2). For MHPAEA violations that constitute a breach of fiduciary duty by the EBSA, EBSA can also assess administrative penalties equal to 20 percent of the amount of the fiduciary breach under ERISA section 502(l). See 29 U.S.C.§ 1132(l).

Additionally, as autism and other developmental and neurological disorders also generally qualify as disabilities for purposes of the employment provisions of the Americans with Disabilities Act (ADA), employer and union sponsors of health plans should keep in mind that sponsorship of a health plan that discriminates against participants and beneficiaries with autism could trigger ADA liability. Furthermore, subject to certain exceptions, private employers sponsoring group health plans that violate MHPAEA generally become liable for an excise tax penalty of $100 per covered individual per day under Internal Revenue Code section 4980D(b), which the employer generally bears responsibility for timely self-reporting on the Form 8928 and paying on or before the due date for the original due date for the tax return of the sponsoring organization in the year of the violation. See Internal Revenue Service, About Form 8928, Return of Certain Excise Taxes Under Chapter 43 of the Internal Revenue Code.

Timely discovery and correction may help mitigate or avoid these excise tax liabilities. However, self-mitigation and correction can be challenging, particularly for self-insured plans and their sponsors, who often rely upon third-party administrators to properly administer their health plans and often do not learn about violations before the deadline for submitting expenses to qualify for stop loss reimbursement. Consequently, employer and other health plan sponsors, their fiduciaries, and administrators generally will want to audit and monitor their health plan’s compliance with the MHPAEA throughout the calendar year and as plan year or stop loss filing deadlines approach to mitigate these exposures.

These and other developments make clear that MHPAEA-covered group health plans, their employer and union sponsors, fiduciaries, insurers, and administrators should tread carefully when designing or administering ABA autism therapy coverage and benefits to avoid running afoul of MHPAEA.

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Cynthia Marcotte Stamer

Cynthia Marcotte Stamer PC

Cynthia Marcotte Stamer is board certified in labor & employment law by the Texas Board of Legal Specialization , a Fellow, American College of Employee Benefit Counsel, American Bar Foundation, Texas Bar Foundation, and Managing Shareholder at Cynthia Marcotte Stamer PC.