- Support SB1523 – Autism and Mental Health Parity coverage for Public Employees
- Update on HERC review of ABA coverage in OHP (Medicaid)
- Providence class action certified and moving forward
- Review of autism coverage by Oregon insurers
- New Oregon rules on External Reviews
- Implementation of SB414 — Restitution
Support SB1523 – Autism and Mental Health Parity coverage for Public Employees
Last summer, the legislature unanimously approved SB365, our Autism Health Insurance Reform bill, which established requirements for state-regulated health plans to approve and manage autism treatment, including ABA and any other medical or mental health services identified in an individualized treatment plan. The new, streamlined approval process applies to children who begin treatment before age 9; SB365 preserved more general requirements for coverage of autism treatment under existing Oregon law, including both Mental Health Parity (ORS 743A.168) and a mandate for Children with Pervasive Developmental Disabilities (ORS 743A.190).
SB365 was intended to apply to state employees covered by PEBB and OEBB, but most state employees get their coverage through self-insured plans which are completely exempt from Oregon’s insurance code. Very few people in the capitol appeared to have been aware that their own plans were exempt from the insurance code – in all of our legislation for the last few years, the fiscal impact assessments have been primarily based on the cost to these state employee self-insured plans – even though those plans were legally out of scope.
SB1523, for the first time, extends coverage requirements for Mental Health Parity (ORS 743A.168), Children with Pervasive Developmental Disabilities (ORS 743A.190), and SB365 to the self-insured plans administered by PEBB and OEBB – and also to employees of OHSU.
You can read more about this bill in the Lund Report here: http://www.thelundreport.org/resource/ohsu_prescribes_aba_for_autistic_kids_but_keeps_treatment_from_employees
I encourage you to read that article, and “like” it on Facebook to spread the word.
We also ask everyone to write your legislators to ask them to support SB1523 – see the end of this message for guidance and a sample e-mail.
Update on HERC review of ABA coverage in OHP (Medicaid)
We continue to work with the Health Evidence Review Commission (HERC) in its’ evaluation of Applied Behavior Analysis (ABA) for coverage in the Oregon Health Plan (OHP), Oregon’s Medicaid program. Many of you submitted public comment in December; the HERC staff is now reviewing that, and will provide an updated draft report for discussion in the 2/6/2014 meeting of the Evidence-based Guidelines Subcommittee.
We have had some concerns about the process for review. In particular, the commission has posted two different standards of evidence on its’ web page – a stricter standard, printed on a Kaiser Permanente letterhead (http://www.oregon.gov/oha/herc/Documents/HERC%20GRADE%20Methodology.pdf); and a more generous standard, published in the official HERC report to the Governor and Legislature, which allows for a broader array of evidence (excerpted here: http://www.oregon.gov/oha/herc/Documents/submitted-materials.pdf). We assert that the standard of evidence documented in the HERC report to the Governor and Legislature is binding – and would provide a more realistic assessment of the evidence for ABA. The HERC staff asserts that they prefer the stricter evidence standard published by HERC on a Kaiser Permanente letterhead. We look forward to seeing how this is resolved.
As it happens, one of HERC’s primary sources – the Federal Agency for Healthcare Research and Quality (AHRQ) – has just published a new draft report on evidence for ABA which substantially upgrades the evidence rating for ABA, which may make this process debate moot at least for patients ages 0 to 12 (http://effectivehealthcare.ahrq.gov/research-available-for-comment/comment-draft-reports/?pageaction=displaydraftcommentform&topicid=544&productid=1845&documenttype=draftReport).
For older patients, we have provided a substantial body of documentation on research into the effectiveness of ABA, and look forward to HERC’s review of those materials.
Providence class action certified and moving forward
Last May, a class action lawsuit was filed in U.S. District Court against Providence over its’ denial of coverage for treatment of autism, and particularly Applied Behavior Analysis (ABA).
On 12/24/2013, Judge Simon approved certification of the class as requested by the plaintiffs, to include all individuals with an autism diagnosis who are covered by a Providence ERISA (employer-based) health benefit plan subject to Oregon law (doesn’t include self-funded plans) issued since 2007. At this point, the class is injunctive only – meaning that it is just a request for an order to stop denying coverage of ABA; damage awards, if any, will be determined later. This suit came after several years of unsuccessful attempts by consumer advocates to work with Providence to resolve the issue out of court.
Providence has taken the position that it can exclude all mental health services related to developmental disabilities – including autism – even though Oregon’s Mental Health Parity act specifically requires it to cover mental health services related to autism “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage … for other medical conditions.” (Legally, autism is considered to be both a developmental disability and a “mental or nervous condition”).
Despite this plain language, Providence has asserted that Oregon’s Mental Health Parity law isn’t a mandate and doesn’t actually require coverage of treatment for mental health conditions.
In an “amicus curiae” brief filed by Disability Rights Oregon last Friday, DRO advised the court:
“Should this Court rule that Providence can avoid coverage for ABA, a medically necessary service for children with autism, despite state and federal laws requiring parity in the provision of coverage for mental disabilities, the implications would devastating for all with mental health conditions – not just for children with autism. The same reasoning as that used by Providence to avoid its obligations under state and federal law to provide ABA to children with autism on the same basis as medically necessary services to those with other medical conditions would be used to deny medically necessary services for people with other mental illnesses in the community. The availability of individual therapy, or group therapy, or drug therapies could be arbitrarily limited, and highly effective treatments such as DBT would be routinely denied. As a result, people with mental illnesses throughout would continue to suffer unnecessarily because of the unavailability of medically sound, proven therapies.”
We are expecting a ruling on the request for an injunction by about May of this year.
The Lund Report has written several good articles on this case, including this one: http://www.thelundreport.org/resource/judge_in_autism_case_allows_class_action_against_providence
Review of autism coverage by Oregon insurers
In general, all Oregon insurers are covering speech, occupational, and physical therapy for autism. Plans that comply with the “Essential Health Benefits” package under the Affordable Care Act (“Obamacare”) should now be providing up to 60 visits per year for these rehabilitative therapies.
Here’s a quick summary of how Oregon insurers are currently covering treatment of Applied Behavior Analysis (ABA), a leading behavioral health treatment for autism:
Kaiser continues to be the most cooperative, but in recent months has been tightening its’ criteria for approval of ABA; in some cases we’ve seen denials of coverage on grounds that it wasn’t medically necessary. So far, all such denials have been overturned through internal appeals without having to apply to external review, but it has been frustrating and has delayed treatment for some patients.
Kaiser has also recently suggested that it will enforce a policy requiring parents to participate directly in 80% of all ABA therapy sessions, and to be physically present 100% of the time. While it is commonly recommended that parents participate in ABA therapy at some level, most research is based on a 20% parental participation rate to continue therapy out of session with the bulk of therapy being provided by professional providers. We have attempted to open negotiations with Kaiser to discuss the merits of the policy, but have been rebuffed. This policy would appear to violate state and federal Mental Health Parity laws, since Kaiser doesn’t refuse coverage of treatment for the predominant medical / surgical conditions unless parents are participating in treatment (say, in surgery or the emergency room).
In a couple of cases, Kaiser has refused coverage of ABA services scheduled during school hours (between 9:00 AM and 2:00 PM) on grounds that it is “educational” purely by the time of day of service. This appears to violate Mental Health Parity laws, unless the insurer can demonstrate that it refuses to cover all other medical treatment (emergency room visits, pediatric office visits, etc.) during school hours.
Several families – who already have employer-based insurance from other providers who aren’t cooperative – have purchased individual Kaiser plans for their children through Cover Oregon to gain access to coverage for ABA therapy. Kaiser initially refused to pay claims for these families, asserting that it was improper to have more than one insurance plan, but has recently move forward with approval of coverage. We’re reviewing this with the Insurance Division, but Kaiser’s recent agreement to provide the coverage that families have paid for is encouraging.
If you have a Cover Oregon policy, and Kaiser is refusing coverage of ABA on grounds that the policy is “secondary” or that it is somehow improper to have more than one plan, please contact me and submit a Consumer Complaint to the Insurance Division.
We understand that PacificSource continues to pay for ABA provided by BCBAs, but not by paraprofessionals (line therapists). Since the portions of SB365 regarding licensure took effect upon signature on 8/14/2013 – grandfathering all existing ABA providers to “continue to claim reimbursement from a health benefit plan … without a license” we believe PacificSource’s refusal to reimbursement unlicensed paraprofessionals may be illegal.
Regence continues to deny all coverage of ABA on grounds that it is “investigational” (i.e., an unproven treatment). This is disappointing, since Dr. Csaba Mera – Regence’s Deputy Chief Medical Officer – told a legislative workgroup on 3/15/2011 (almost 3 years ago) that “there is sufficient evidence that children between ages 3 and 11 are helped (by ABA) – we’re not arguing about that…. It works in younger children – it really does make a difference in their lives.” This suggests that Regence is aware that its’ “investigational” denial is false.
On the other hand, an “investigational” denial allows appeal to External Review. So far, one Oregon patient has successfully navigated the IRO process to have a Regence ABA denial overturned (as have about 20 others with Kaiser and Providence insurance). After about two months of threats from Regence to refuse to honor the IRO decision – despite the prospect of a $1 million fine for non-compliance – Regence appears to be ready to approve coverage for that patient, but continues to drag its’ feet. We’re working on the details; two other Oregon patients are currently in the IRO process with Regence.
We have discussed Regence’s conduct with the Insurance Division, and are confident that we can count on them to help enforce the IRO decisions.
There are two class action lawsuits underway against Regence in Washington State over denials of treatment for autism. On Friday, 1/24/2014, Regence was given an injunction ordering it to stop imposing age limits on autism treatment for the duration of the trial, based on a conclusion by the judge that the plaintiffs were likely to prevail.
We are working with Moda appeals through OEBB, OHSU, and commercial group plans.
Generally, in first round denials, Moda claims that ABA is an educational service, not a medical one. Upon appeal, Moda drops that argument and issues denials based on licensure or (in the case of OHSU) because the plan has an explicit exclusion for ABA regardless of medical necessity (which violates Mental Health Parity, as argued by Disability Rights Oregon above).
Since the licensure provisions of SB365 have already taken effect – grandfathering existing ABA providers to practice without a license until 2016 – Moda’s licensure objection is invalid.
I understand that the Insurance Division is prepared to enforce the licensing provisions of SB365, and to assist consumers facing this type of denial.
Please let me know what problems you are encountering with insurance coverage for treatment of symptoms associated with autism. Denials asserting that ABA is investigational, not medically necessary, not a medical / mental health service, or that the providers aren’t licensed should now be easy to overcome with help from the Insurance Division, and I’m happy to help facilitate communication.
New Oregon rules on External Reviews
The External Review process has been an incredibly important tool for consumers to overcome insurer denials of treatment for autism, including ABA. When an insurer claims that a treatment is “investigational” or not medically necessary, a consumer can ask the Insurance Division to appoint an Independent Review Organization (IRO) to have a neutral expert review the case and make a binding decision. For insurer denials of autism, we have now made about 20 appeals to IRO – and all but 2 have overturned insurer denials of ABA therapy, usually with sharp words for the insurer criticizing their policies. In both of the cases that we’ve lost, subsequent investigations by the Insurance Division concluded that the IROs failed to comply with the laws governing the review process – such as those regarding the kinds of evidence that they must consider, need to provide references supporting their decision, or the credentials for the reviewers. Up until now, there has been no recourse for a consumer when the IRO fails to follow the rules.
The Oregon Insurance Division has now adopted new Administrative Rules on External Reviews that allow consumers to challenge a decision by an Independent Review Organization (IRO) if the IRO doesn’t follow the rules, and potentially have the appeal redone. (See: http://insurance.oregon.gov/rules/attachments/recently%20proposed/2013/id09-2013_rule.pdf, OAR 836-053-1325, subsections (8) to (15)).
If you are making an appeal to External Review, I would love to hear from you and would be happy to talk about how to use these rules if you have a problem with an IRO decision.
Implementation of SB414 — Restitution
In addition to our Autism Health Insurance Reform bill (SB365), the legislature also passed SB414, our Restitution bill, which allows the Insurance Division to “seek restitution on a consumer’s behalf for actual damages the consumer suffers as a result of the insurer’s violation of a provision of the Insurance Code or applicable federal law or the insurer’s breach of an insurance contract….” This took effect on 1/1/2014.
We continue to discuss the full meaning and implementation of SB414; the insurance industry as you might imagine seeks to define “actual damages” in the most minimal way possible, so as to avoid financial responsibility. The intent was to require an insurer that breaks the law to pay for the consequences of its’ illegal activity – for instance, if an insurer unlawfully withholds coverage of cardiac care, then the insurer should be financially liable for the consequences (“actual damages”) if the consumer suffers a heart attack. The insurers appear to be arguing that, even if they are found to have broken the law, they should only be required to pay minimal contractual damages – e.g., after you’ve died, they’ll pay for the cost of the care that would have prevented your death, rather than for the impact to your family of your demise.
The Insurance Division has issued draft rules (http://insurance.oregon.gov/rules/attachments/recently%20proposed/2013/id12-2013-temp_rule.pdf) while we continue to haggle over the final terms, which should be done by June.
In the meantime, if you are submitting a Consumer Complaint about your insurance company to the Insurance Division, you should ask for “restitution” and provide an estimate of the “actual damages” you have suffered as a result of the insurer’s conduct.
Sample message in support of SB1523 – Autism and Mental Health Parity coverage for Public Employees:
Here’s a short, simple e-mail message that you can use to get started. Revise the last paragraph to describe how this affects you, your family, or your patients, and update the greeting and address.
You can find your legislator’s e-mail at: http://www.leg.state.or.us/findlegsltr/
Please Support SB1523 – Mental Health Parity and Autism coverage for Public Employees
Dear [Senator / Representative x],
I am a constituent in your district.
Please support SB1523, which will require self-insured PEBB, OEBB, and OHSU health benefit plans to comply with the same rules that commercial insurers follow, with respect to Mental Health Parity and (under 2005 SB1) and autism (under 2013 SB365).
Last year’s SB365 (Autism Health Insurance Reform) was intended to apply to self-insured PEBB and OEBB plans – and all other plans subject to state regulation – but those plans are actually completely exempt from the insurance code.
SB1523 is a technical fix that requires these self-insured PEBB and OEBB plans to comply with SB365 as intended, and also requires them to comply with Oregon’s landmark Mental Health Parity law (SB1 from 2005) and the Children with Pervasive Developmental Disabilities law (HB2918 from 2007). It further extends these coverage requirements to the OHSU employee benefit plan, addressing another unforeseen gap in SB365.
[*** If you wish, you can insert a brief personal story here. This is especially important if you yourself are on PEBB, OEBB, or an OHSU plan. ***]
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