Legal battle over noncompete contracts may threaten mental health care for autistic kids

Legal battle over noncompete contracts may threaten mental health care for autistic kids
(Ben Tecumseh DeSoto | Utah Investigative Journalism Project) Chelseigh Hunt, an applied behavior analysis therapist, uses bubbles as a therapy tool with a patient in September. Hunt and others have been sued by a former employer, Utah Behavior Services, with breaching a noncompete clause.

The following story was reported by The Utah Investigative Journalism Project in partnership with The Daily Herald and The Salt Lake Tribune.

Saratoga Springs • On the worst days, Brittney Olsen remembers crawling into a closet to meet her son after school to hold him in her lap while he cried.

The then-seventh grader, who has high-functioning autism, knew he wasn’t like some of the other students. His teachers would tell him he was slow, Brittney said, or act like he didn’t care about his schoolwork.

“He would cry and say, ‘Why did God let me live so I can just fail at everything?’” she recalls. “‘I don’t fit in. No one understands me. I’m so different from everyone.’”

During this period, Brittney often worried he would decide to take his own life.

But since getting him into services at PBJ & Friends, a new clinic in Saratoga Springs that provides behavior-focused therapy to autistic children and teenagers, she said she’s seen “immense changes.”

Now 14, he can brush his teeth and wash his hair on his own for the first time. He’s getting better at advocating for his boundaries and communicating his emotions. And she said his mental health is better than she’s seen it “probably in my life.”

“In the last few months, he’s happy,” Brittney said. “He’s independent. He’ll go play his guitar. He’ll go do things. He’s not moping around the house. He feels successful, and that’s huge — because I don’t think he’s ever felt successful.”

But Brittney now worries that a lawsuit recently filed by a competing autism services provider against PBJ & Friends and several of its employees may threaten to disrupt his care.

The lawsuit, filed in July by Utah Behavior Services, alleges several of the company’s former employees violated the noncompete and nonsolicitation agreements in their employment contracts when they left and went to work with PBJ & Friends, which opened its doors in June.

A judge in September declined to enforce a temporary restraining order sought by Utah Behavior Services that would have barred the plaintiffs from working while the lawsuit progresses. But PBJ & Friends says a future ruling in favor of Utah Behavior Services could prevent many of its employees from working and force the new company to reduce its hours.

That outcome, the defendants say, would further limit access to autism services amid growing need and a lack of qualified providers.

“We’re hurting people here…. A lot,” if the lawsuit is successful, argued Austin Hepworth, an attorney who’s representing the defendants. “And to us from a societal perspective, that isn’t warranted when the company is not losing clients because they have a waitlist that’s, to our knowledge, longer than the noncompete period.”

The complaint against PBJ & Friends is one of similar lawsuits Utah Behavior Services has filed against a total of 14 former employees in the last seven years, the Utah Investigative Journalism Project has found. The other suits have been either dismissed or settled.

Utah Behavior Services co-founder and then-executive vice president Sarah Sanders acknowledged the volume of lawsuits in a February 2018 email included in one of the cases.

“Our ex-employees are going to keep you in business I think,” she wrote, with a winky face, to her attorney.

Utah Behavior Services offers autism and mental health services in centers located across eight Utah cities, making it one of the largest providers of applied behavior analysis in the state. The company asks some employees to sign noncompete agreements as a condition of employment. And if employees decide they want to leave, the company says these contracts block them from working in their chosen field in Utah for at least a year — or else risk being taken to court.

Three former employees reached by the Utah Investigative Journalism Project said litigation or the threat of it prompted them to move out of state so they could continue working. Others have elected to leave the industry altogether to avoid a lawsuit.

“There’s a lot of fear of venturing out and going and doing something else while employed with UTBS because of their track record of pursuing people,” said one former employee, who asked not to be named out of fear that he would be sued for libel if he came forward.

Four other people who worked at the company, some of whom were named in past lawsuits, declined interviews for this story, most citing a fear of litigation.

Utah Behavior Services contends in its most recent lawsuit that “there is a public interest in enforcing contracts” and argues a judge should not “reward deliberate and knowing violations of those agreements.” The employees signed noncompete clauses, the company notes, and should be held to them.

“The reality is they are enforced so long as they have a legitimate business purpose and they’re reasonable within duration and geographic scope,” Ryan Frazier, Utah Behavior Services’ attorney, said in an interview. “And we believe that these are.”

But many former employees said they believe the practice of requiring noncompetes in the applied behavior analysis industry, which has become more common as the industry has grown, has more harm than benefits. As more Utahns are diagnosed with autism, they want to see state lawmakers take action to eliminate the use of these agreements in the industry altogether.

(Ben Tecumseh DeSoto | Utah Investigative Journalism Project) A now hiring banner outside Utah Behavior Services in Lehi. The company is enforcing a noncompete clause for an industry built upon applied behavior analysis therapy.

‘At the end of your rope’

On a sunny Thursday afternoon in early September, a group of children crowd onto a blue rug with green and orange polka dots at PBJ & Friends.

Today’s lesson is focused on helping them identify the difference between “playful teasing” and “mean teasing.” If not everyone is laughing, the behavior technician leading the conversation tells them, that’s probably a sign that whatever was said falls into the “mean” category.

At the end of the exercise, all the children go around the room and say something positive about themselves. One says she’s “good at art,” another at “playing with toys,” and a third says “playing Minecraft.”

These lessons, meant to instill social skills and promote self positivity, are part of the growing field of autism services known as applied behavior analysis. Through individualized treatment plans, behavior analysts seek to decrease problematic behaviors and improve other skills, from language and communication to attention, focus and social interaction.

Though there are mixed opinions on the practice — some autistic people consider the treatment’s focus on repetition and on “training” people to conform to neurotypical standards to be harmful — applied behavior analysis is considered by many to be the “gold standard” for autism treatment.

Nate Juber, who co-owns PBJ & Friends with his wife, Brande, said he’s seen how effective the therapy has been for their 15-year-old son Tyson, who was born with a rare brain condition. Since opening the center, Juber said he’s seen the benefits for other families who are struggling as well.

“Even just weeks into their behavioral services, we have families coming to us and saying, ‘This is changing the way we have dinner as a family or the way we sit down and watch a movie as a family,’” he said.

Applied behavior analysis is a fairly new but rapidly growing field of practice. From 2010 and 2020, demand for analysts nationwide increased more than 4,000%, according to a recent study.

Robert O’Neill, the program coordinator for the University of Utah’s Board Certified Behavior Analyst (BCBA) program, attributes that spike in demand to the passage of laws in several states requiring insurance companies to pay for applied behavior analysis services. Utah lawmakers approved such a bill in 2014.

Efforts to license providers on the state level, which happened in Utah in 2015, have also lent the profession increased credibility.

But “probably the biggest driver,” according to Kristopher Brown, a behavior analyst and an instructor at Youngstown State University in Ohio, has been the rising numbers of children who have received autism diagnoses in recent years amid improvements in autism screening.

The number of autistic 8-year-olds in Utah rose from 1 in 58 children in 2012 to about 1 in 46 in 2018 — a significant increase, according to a 2021 Centers for Disease Control and Prevention study that looked into the prevalence of the condition.

That “increase in just the amount of kiddos who are receiving a diagnosis that need those services” means more families are starting to recognize applied behavior analysis as an option, noted Brown, who was involved in the recent research of noncompete contracts.

But Utah, like many other states across the country, doesn’t have enough board certified behavior analysts — professionals who are independently licensed, hold master’s degrees in their field and who design and supervise treatment programs — to meet the growing demand, experts say.

That means many families often spend weeks or even months on waiting lists for services.

“When you’re at the end of your rope and then somebody tells you [you have] 12 to 18 months to wait, that’s a really tough pill to swallow,” Juber noted.

As of early November, the Utah Division of Occupational and Professional Licensing showed there were 607 behavior analysts and 21 assistant analysts licensed to practice in the state. While applied behavior analysts can work with other populations, most are likely working with autistic people, says O’Neill, the U. professor.

“In Utah, we’ve got a shortfall of somewhere in the hundreds of people” who could be hired to work in the applied behavior analysis field, O’Neill estimated. “And the corollary to that is especially long waiting lists for parents and families and clients to get services.”

‘Irreparable harm’

Utah Behavior Services filed its first of five contract enforcement lawsuits in 2015, court records show. All but the most recent were dismissed or settled.

In one case, the court not only dismissed all complaints against the defendants, but also awarded a judgment against Utah Behavior Service of $9,532.43 for lost wages.

Utah Behavior Services’ most recent lawsuit comes after the company last year lost five of the eight Board Certified Behavior Analysts who worked at its Lehi Clinic. From August and October 2021, more than 45 of the company’s employees quit — “an average of 15 per month,” the lawsuit states. The company also claimed that it lost 21 clients “under questionable circumstances.”

As a result of the loss of employees, Utah Behavior Services said it had to reduce its service hours to clients who need care and now faces “irreparable harm” to its business.

The company blames the exodus primarily on the two former co-clinic directors of the Lehi Clinic: Debbie Metzger and Chelseigh Hunt, who now run PBJ & Friends. Other defendants are PBJ & Friends owner Brande Juber and several former Utah Behavior Services employees, some of whom went on to work at PBJ & Friends.

In its complaint, Utah Behavior Services alleges that its former employees worked together to “sabotage” the company “and to misappropriate the time, money, and education invested by UTBS in its employees” through a variety of means — including “lies, disparagements, cover-ups, subterfuge, breaches of fiduciary duties and contractual and common law duties of loyalty.”

Each of the sued employees had signed one-year noncompete and two-year nonsolicitation agreements and the lawsuit alleges all of them violated those contracts. The complaint states Metzger and Hunt in particular violated their agreements by allegedly fostering ill will toward the company, then “actively” encouraging and assisting clinicians to leave and going so far as to suggest wording they could use in their letters of resignation.

“What makes the situation more egregious,” Frazier argued, is that within months of their departure they were working at a new shop “just miles down the road.”

“It’s not only head-to-head competition with UTBS,” he said, “it’s head-to-head competition with the location they were at.”

‘Negative culture’

When staff started leaving Utah Behavior Services en masse, Brande Juber said it was “devastating” to see the departure of so many of the people who had cared for her son over the years, and she worried about the level of care he would receive.

That’s when she decided to form PBJ & Friends, which she noted is only serving one ex-UTBS client — Olsen, who left long before the staff exodus began. And while several former Utah Behavior Services staffers ultimately came to work at her new business, the lawsuit defendants rebutted claims that any of them solicited past clients or employees to come to PBJ & Friends.

Hunt said the reality is actually the opposite — after years of working with their children, she’s had some families reach out who want to follow her or other providers to PBJ & Friends. But out of fear of legal liability, the clinic has decided to turn them all away.

“I have a client that I worked with for six years, so I’m very close to the family,” she said. “The little guy, I started with him when he was 2, and now he’s turning 9 next month and they’re like, ‘This is not fair that we can’t come follow you, like, you’re part of our family. We want to go wherever you go.’”

The child feels abandoned, Hunt said through tears, all “because I signed a contract.”

The former employees argued the challenges Utah Behavior Services faced as a result of lost employees “were due to negative culture and management” that was “independent of any of the Defendants.” And their response to the lawsuit calls into question the idea that “these few Defendants could cause 45 people to quit a location that Plaintiff portrays as being amazing or without fault, full of benefits, etc.”

Hepworth, the defendants’ attorney, ultimately claimed that the scope of the noncompete agreements is “unreasonable,” since they would prohibit the ex-employees from working anywhere in the state or from taking any kind of job in a similar field, including at academic institutions or school districts. And he hopes that a judge will declare them unenforceable.

“The noncompetes are written very, very broadly,” he said in an interview. “They’re not tied to the employees’ duties and not tied to what they do. They just say, ‘No matter what you did with us, you can’t go work for anyone else that does anything remotely close.’”

Hepworth also dismissed the idea that Utah Behavior Services’ has been “irreparably harmed,” noting that even before any of the defendants left, UTBS had a long waitlist for some families.

“When there are such long waitlists for services, and service providers are unable to meet the existing demand, there is no true competition taking place,” the defense stated, “and the public interest is strong against enforcing a noncompete that only serves to increase the waitlist for individuals to receive critical services.”

As she awaits the outcome of the lawsuit against PBJ & Friends, Olsen said the old weight on her shoulders that eased when her son began receiving services is back. And she feels particularly stressed when she thinks about what might happen to his mental health if he loses services.

But while she knows there’s “a business side of things” to be considered as part of the lawsuit, she remains hopeful the court will weigh the broader community impact the decision could have and rule accordingly.

“Really the people who are going to be hurt and impacted here are these children and their families,” she said. “I just feel like someone needs to advocate for these children. Because they can’t advocate for themselves.”

Correction, Nov. 10: A previous version of this story provided an outdated title for Sarah Sanders with Utah Behavior Services. She no longer works for the company.

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