- Update on Oregon Insurance Division enforcement of autism health insurance laws
- Washington Supreme Court ruling on Regence, and Regence settlement agreement
- Washington’s Insurance Division orders all insurers to retroactively reprocess all mental health denials – including autism – to 2006
- ACTION: Tell the Oregon Insurance Division you support their bulletins
- Request coverage and reimbursement — now
Update on Oregon Insurance Division enforcement of autism health insurance laws
Earlier this month, I wrote to you about the Oregon Insurance Division’s bulletins on mental health parity and coverage of Applied Behavior Analysis (ABA) therapy as a treatment for autism.
These bulletins are critical for us in enforcing our rights to coverage of treatment for autism – and every other mental or nervous condition – by declaring that insurers may not deny coverage for medically necessary care. As Insurance Commissioner Laura Cali wrote in her announcement:
“This bulletin will explain that insurers cannot exclude coverage of ABA therapy for autism from their policies. As with other types of medical services, insurers can make coverage decisions based on whether the therapy is deemed appropriate and medically necessary for an individual patient, but they cannot broadly deny payment for ABA therapy.”
A very big thank you to everyone who provided public comment on these bulletins. In addition to dozens of private individuals, about 20 advocacy organizations also wrote in support of the bulletins – from Autism Speaks, Autism Society of Oregon, and Portland Asperger’s Network to Disability Rights Oregon, National Alliance for Mental Illness, OSPIRG, and the ACLU.
The insurers also provided comment – urging the Insurance Division not to take action to protect consumers, and questioning the Division’s legal authority to regulate them.
The Insurance Division has released a second draft of the bulletins – incorporating many of the changes that we requested, and clarifying its legal authority. You can find this second draft – and copies of all of the public comments by consumers and insurers – here.
If you weren’t able to submit comments on the first draft, we encourage you to submit comments now on the final draft – they’re due tomorrow, Friday October 31. See “ACTION: Tell the Oregon Insurance Division you support their bulletins” below.
Washington Supreme Court ruling on Regence, and Regence settlement agreement
Earlier this month, the Washington Supreme Court unanimously upheld a decision requiring Regence to pay for neurodevelopmental therapies (speech, occupational, and physical therapy) as a treatment for autism, without age limits. Regence had been providing coverage, but imposed an age limit of 6 beyond which coverage was denied whether medically necessary or not. The ruling is here.
In ruling that Regence’s limits on neurodevelopmental therapies violated Washington’s Mental Health parity law, the Supreme Court ruled more broadly that health plan issuers may not use blanket exclusions to deny any services used to treat any mental health conditions, if those treatments may be medically necessary.
This was essentially the same conclusion that Judge Simon reached about Oregon’s Mental Health Parity in AF v Providence, and that forms the heart of the Oregon Insurance Division’s bulletins. It’s also critical in confirming that when speech and occupational therapy are provided to treat a mental health condition – including autism (which is legally classified as a mental health condition) – then the state and federal mental health parity laws apply, and restrict the types of limits that an insurer may apply.
In the wake of this Washington Supreme Court ruling, Regence signed a comprehensive settlement agreement on autism treatment in Washington (not Oregon) covering ABA and neurodevelopmental therapies for patients with autism with no age or visit limits. Regence will also pay $6 million in damages to resolve past claims for ABA and neurodevelopmental therapy – whether the consumers requested reimbursement at time of service or not.
Critically, this agreement recognizes that speech and occupational therapy are mental health services and lifts all age visit limits when used to treat autism.
This settlement applies to Washington only – in Oregon, Regence continues to issue denials of ABA, despite the Insurance Commissioner’s statements and draft bulletins declaring this to be illegal.
In the PS v PEBB case in Oregon, the State of Oregon has appointed the Regence attorney who negotiated this deal – Medora Marisseau – as a Special Assistant Attorney General to manage its defense. Since Oregon’s attorney has already reached this agreement for another client, one hopes she’ll advise Governor Kitzhaber to stop discriminating against individuals with autism and reach a similar agreement.
Washington’s Insurance Division orders all insurers to retroactively reprocess all mental health denials – including autism – to 2006
In the wake of the Supreme Court decision in the Regence case, Washington Insurance Commissioner Kreidler has ordered all Washington insurers to review all mental health denials for all conditions (not just autism) back to 2006, and to notify any consumers who were denied on the basis of a categorical exclusion that their claims will be reconsidered solely on the basis of medical necessity.
“In the O.S.T. v. Regence case decision, the Supreme Court clarified the Washington State Mental Health Parity Act. The Court held that under the Act, health plan issuers may not use blanket exclusions to deny services used to treat mental health conditions, if those treatments may be medically necessary….
… issuers are instructed to administer their plans consistent with the law. Issuers may not deny claims for services that may be medically necessary based on blanket or categorical exclusions, regardless of the current contract language. If current coverage forms include a blanket exclusion, issuers must notify current enrollees of the correct coverage standard.”
Further, he directed all insurers to:
“Identify claims submitted since January 1, 2006 (for large group plans) or January 1, 2008 (for small group and individual plans) in which a mental health service was denied based on a blanket or categorical exclusion;
Send a letter to current and prior enrollees who submitted the claims identified above, notifying them of the Court’s determination that blanket exclusions cannot be the basis for denying services that may have been medically necessary. The letter should notify the consumer of the issuer’s process for re-evaluating those claims on the basis of medical necessity. If those claims are subject to a class action settlement, the letter should notify the consumer of the issuer’s process for processing settlement claims;”
This is very, very significant – but still leaves out patients who never filed formal requests for coverage (because they believed coverage wouldn’t be approved) or who weren’t able to afford care and went without it.
A full copy of the Washington Insurance Commissioner’s letter to insurers is here.
ACTION: Tell the Oregon Insurance Division you support their bulletins
If you missed your chance to submit comment in the first round, please tell the Oregon Insurance Division that you support their bulletins. They are accepting public comment on the final draft of the bulletins through Friday, October 31st.
I’ve written a simple draft e-mail below that you can use. If you would like to include a personal statement about your situation, such as the difficulties that you’ve had in getting coverage, or the impact the situation has had on you, please do – but remember that your comments will be posted publicly so you may want to avoid any sensitive details that you don’t want the whole world to see. A very short email simply endorsing the bulletins will be a helpful show of support, even without any additional remarks.
The Insurance Division will post all comments publicly at: http://www.oregon.gov/DCBS/insurance/legal/bulletins/Pages/proposed-bulletin-comments.aspx
Send your comments by e-mail to:
Here’s a sample message:
Subject: Public Comment on proposed bulletins 2014-1 (MHP) and 2014-2 (ABA therapy)
Dear Commissioner Cali,
I’m writing in support of proposed bulletins INS 2014-1 (Mental Health Parity) and 2014-2 (ABA Therapy).
[Optional – if you wish, you may insert a personal about your situation; see notes above]
Thank you for your work on these important bulletins, and the help that you are providing to insurance consumers in the autism community.
[Your Name Here]
Request coverage and reimbursement — now
I’ve written this before, but it can’t be said often enough: If you have ever paid for ABA therapy, you may possibly be able to get reimbursed for it (in Oregon, and especially now in Washington). Certainly, if you want it now, you should be able to get coverage once the bulletins are finalized:
- If you are interested in ABA therapy, or are already getting it, contact your doctor and submit a preauthorization request to your insurer. If you are denied coverage, please let me know, and submit a complaint to the Insurance Division.
- If you have EVER had ABA therapy, submit a reimbursement request to your insurance company. You will probably be denied, especially if the claim is more than 1 year old, but please let me know, and submit a complaint to the Insurance Division.
- If you are on a waiting list for ABA therapy, please submit a consumer complaint to the Insurance Division about “network adequacy.” There are several other ABA providers willing to start providing treatment in Oregon – but only if the insurers sign provider network contracts, which they aren’t doing.
If your coverage is through Providence, you should contact the attorneys responsible for the AF v Providence lawsuit, and they may be able to help you. Please contact me and I’ll put you in touch.