- Oregon Public Employees Benefits Board Sued in Class Action for Illegal Discrimination; Refuses to Cover Therapy for Autism
- HERC EbGS agrees that ABA is evidence based, strongly recommends coverage in OHP
- Action Alert: ask Governor Kitzhaber to comply with Mental Health Parity – stop discriminating against individuals with autism
Oregon Public Employees Benefits Board Sued in Class Action for Illegal Discrimination; Refuses to Cover Therapy for Autism
Yesterday, Attorney Megan Glor and Sirianni Youtz Spoonemore Hamburger, a Seattle law firm, filed a class action lawsuit against Oregon’s Public Employees Benefits Board (PEBB) today on behalf of “P.S.” a six year old girl with autism whose mother is an employee of the State of Oregon. P.S. sought coverage of Applied Behavior Analysis (ABA) therapy to treat her autism.
The state refused to cover P.S.’s ABA therapy solely because it was “related to autism” – even though Oregon’s Mental Health Parity law has required treatment of autism since 2005. Providence Health Plans, acting as PEBB’s plan administrator, issued a denial letter stating that:
“Under Providence’s Plan, services ‘related to developmental disabilities, developmental delays or learning disabilities’ are specifically excluded from coverage. Because ABA services are related to Autism Spectrum Disorder, they are therefore not benefits covered by your plan.”
The lawsuit charges that the PEBB developmental disability exclusion violates Oregon’s Unlawful Discrimination Against Persons with Disabilities Act as well as the state and federal Mental Health Parity Acts. “This case sends a message that all employers must cover essential health services for individuals with developmental disabilities, including children with autism,” said Ms. Glor. “Exclusions like the one in the PEBB plan are nothing more than rank discrimination.”
“The State discriminates against its employees and qualified dependents with developmental disabilities when it applies the PEBB developmental disabilities exclusion,” said Paul Terdal, a volunteer autism advocate who assisted P.S. and her parents. “Not only does the State, as an employer, violate its own laws and public policy, it sets a bad example for other employers and insurers, and weakens the rule of law.”
The lawsuit, P.S. v. PEBB, is the latest in a string of cases nationwide challenging exclusions and limitations on coverage of treatment for autism – including McHenry v PacificSource and A.F. v Providence in Oregon, and numerous cases in Washington and other states. It is the first case in Oregon, however, to charge that such exclusions are also unfair and illegal discrimination on the basis of disability when applied by employers that offer self-funded health benefit plans.
PEBB’s contract promises that it complies with Oregon’s Mental Health Parity law (ORS 743A.168) – which requires plans to “provide coverage for expenses arising from treatment … mental or nervous conditions” – including autism, per OAR 053-836-1404 and the plain language of the PEBB contract – “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions.” P.S. charges that the PEBB developmental disability exclusion and exclusion of all ABA therapy as “experimental/investigational” breaches the PEBB contract, as modified by the state and federal Mental Health Parity Acts.
A similar exclusionary practice in the Washington State public employee health benefit plan was challenged in D.F. v. Washington State Health Care Authority, a case brought by Eleanor Hamburger and Richard Spoonemore of Sirianni Youtz Spoonemore Hamburger. The D.F. case resulted in a landmark decision that blanket exclusions of medically necessary mental health services such as ABA for autism violated Washington’s Mental Health Parity Act. The case eventually settled after the Washington Public Employee Benefit Board removed its ABA therapy exclusion and provided a $3.5 million settlement fund for public employees who had paid out-of-pocket for medically necessary ABA therapy services.
Although I am not a party to this suit, I am very familiar with the background, and have made numerous attempts in the past three years to resolve these issues with PEBB – all of which have been rebuffed.
HERC EbGS agrees that ABA is evidence based, strongly recommends coverage in OHP
Ever since SB365 was passed last summer, the Health Evidence Review Commission (HERC) has been reviewing Applied Behavior Analysis (ABA) as a treatment for autism. Last week, the Evidence-based Guidelines Subcommittee (EbGS) approved a strong recommendation in favor of coverage of ABA in the Oregon Health Plan (OHP), Oregon’s Medicaid program, based on a finding that there was sufficient evidence to support ABA, at least for patients through age 12.
Although the details are being finalized, we understand the recommendation is for patients through age 12, with 25 hours of ABA per week for three years. For older patients (ages 13 and up) and patients who have completed three years of more intensive therapy, OHP will cover a reduced amount (around 8 to 16 hours per month) of focused intervention.
While we are very pleased with this progress, and long-overdue recognition that ABA is well grounded in clinical research, we’re disappointed with the limit of 25 hours per week, which was picked more or less arbitrarily (the committee’s research had cited reports for as much as 40 hours per week) and by the committee’s weak recommendations on very limited coverage for older patients, which we strongly disagree with.
While fewer patients with autism over the age of 13 will need intensive ABA, there are some individuals who will, and we set a record for the number of experts who provided testimony and the quantity of research papers submitted in support of ABA for older patients. We are concerned that HERC’s decision not to provide coverage for these older patients did not follow the commission’s own procedures, and did not comply with applicable state and federal law, and are evaluating next steps.
I greatly appreciate the efforts of everyone on our team – locally and nationally – who provided expert testimony.
We’ll keep you informed of our next steps.
Action Alert: ask Governor Kitzhaber to comply with Mental Health Parity – stop discriminating against individuals with autism
Go to the Governor’s “Share Your Opinion” page: http://www.oregon.gov/gov/Pages/ShareYourOpinion.aspx
For topic, select “Public Employee Benefits”
Put in a message like this one (feel free to customize)
I’m writing to ask Governor Kitzhaber to direct PEBB to comply with the Mental Health Parity act – and stop denying coverage of medically necessary Applied Behavior Analysis treatment solely because it is “related to autism.”
This practice is discriminatory, a violation of PEBB’s contract with its’ employees, and encourages other employers and insurers to follow Oregon’s lead in breaking the law.
Please set a positive example by promptly bringing PEBB into compliance with the law.
You can also call the Citizen’s Representative Office at (503) 378-4582 to deliver your message by phone.