- ACTION: ask the House Education Committee to support HB2673 and HB2597
- Proposed Insurance Division Rules on Mental Health Parity
- Final Insurance Division Rules on Discretionary Clauses
ACTION: ask the House Education Committee to support HB2673 and HB2597
Last month, I wrote about two important special education bills that will really help families get the right school-based services for their children: HB2673 and HB2597.
There has been a lot of progress, with dedicated support from within the legislature – but also substantial resistance from school district lobbyists. It looks like both bills will move forward – but we could really use some e-mails from parents and teachers to the House Education Committee in support.
HB2673: Special Education Disclosure and Timely Evaluation:
- Requires school districts to provide parents with an annual summary of the special education and related services provided to students in the previous year
- Prohibits school districts from requiring parents to sign confidentiality agreements preventing them from sharing information about the accommodations or services they have received with other parents (a common requirement when parents pursue legal action to enforce their rights)
- Requires schools to conduct initial evaluations for IEP eligibility in a timely manner. Currently, Oregon can take up to 60 school days to do an evaluation – with weekends and holidays, this can take many months (up to 5 or 6 months if the evaluation request is delayed over summer vacation) – which can in turn delay the start of special education services by half a school year. Oregon is in the bottom 10% nationally for evaluation speed
After extensive discussions, issues about evaluation timeliness appear to have been resolved.
At the last minute, however, school district lobbyists attempted to kill the requirement to provide parents with an annual summary of special education and related services. There have been a number of excuses – like complaints that it would be hard work to write a summary (it’s a summary of information they should already be managing – it shouldn’t be that hard). One administrator even complained that it would be “unfair to teachers” to ask them to hand parents a copy of the pre-prepared annual summary during IEP meetings. The reality is that some school districts just don’t want parents to know what special education services are available. One district lobbyist complained that parents might start comparison shopping between districts for services if they could see what other districts were offering.
HB2597: Truancy Evaluation for Disability
Under HB2597, if a family is being cited for truancy, the parents could request an evaluation to determine if the child has a disability and if the unexcused absences are a manifestation of that disability before civil penalties are imposed on the parents.
While there are significant revisions underway on the approach and wording, it looks like the core concept is intact.
Please contact the House Education Committee to support HB2673 and HB2597 – the special education disclosure, evaluation timing, and truancy bills. I’ve written a sample e-mail at the bottom of this message (below my name) – please feel free personalize it to describe how this affects you.
Proposed Insurance Division Rules on Mental Health Parity
Last fall, the Insurance Division issued a sweeping “bulletin” on Mental Health Parity – which really implements it fully in Oregon for the first time since it was passed by the legislature 10 years ago. The Insurance Division declared that Oregon’s Mental Health Parity law requires coverage of medically care for all “mental or nervous conditions,” and set specific standards prohibiting most arbitrary exclusions that have been in effect in many insurance plans for many years. This was driven in part by the court ruling in AF v Providence, one of our autism cases, as well as by similar court rulings around the country.
One challenge is that Oregon’s Mental Health Parity law never defined the term “mental or nervous conditions” – so the Insurance Division developed its’ own definition back in 2006. That definition declared that (with the exception of autism) most developmental disabilities weren’t “mental or nervous conditions” and so treatment didn’t have to be covered by insurance.
Apparently, the insurers argued at the time that there was no medical treatment for developmental disabilities and therefore no need for coverage. This really wasn’t true – while you can’t “cure” a developmental disability, you can’t cure many other things either – but medical and mental health treatment can still be very helpful.
I have consulted with experts at OHSU and Johns Hopkins, and have found many cases where individuals were denied access to medically necessary care because of intellectual disabilities, or even patients who were incorrectly treated for other conditions because there was no insurance coverage to even pay for testing for intellectual disabilities.
Other mental health conditions were arbitrarily excluded too, like paraphilias – with the result that patients with pedophilia, for instance, can’t access mental health care for their condition in Oregon until after committing a crime and going to prison.
The Insurance Division has just released a new Mental Health Parity rule for public comment – which follows the lead of the American Psychiatric Association in declaring that essentially everything in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) should be considered a “mental or nervous condition.” (You can find the APA’s definition of “Mental Disorder” on page 20 of DSM-5).
If adopted as a final rule, the result will be profound – everyone with a developmental disability will have the same access to insurance coverage for medically necessary care that individuals with autism now have.
You can read the Insurance Division’s proposed rule here: http://www.oregon.gov/DCBS/insurance/legal/laws/Documents/Proposed/mental-health-parity-text.pdf
There will be a public hearing on April 30, 2015, 10:30 a.m., and public comments will be received by e-mail through May 6, 2015 at 5 p.m. More information is available here: http://www.oregon.gov/DCBS/insurance/legal/laws/Pages/rulemaking.aspx#20150430mentalhealthparity
Final Insurance Division Rules on Discretionary Clauses
We have been working to prohibit “discretionary clauses” in insurance contracts since 2012 – and this week, we won.
“Discretionary clauses” are clauses in insurance contracts that give the insurer the right to make binding decisions about how to interpret the terms of the contract, or whether or not to pay a claim. When an insurance contract has a “discretionary clause,” it isn’t enough for a consumer to prove that an insurer made the wrong decision – the consumer has to prove that the insurer was “arbitrary and capricious” (i.e., completely and utterly unreasonable) in making the wrong decision. This is a very tough standard to meet, since the insurer just had to demonstrate that it reached the wrong decision through a reasonable process.
Oregon banned these discretionary clauses administratively back in 2003, following a recommendation by the National Association of Insurance Commissioner to ban them nationwide. Unfortunately, while the Insurance Division has required insurers to sign a certificate of compliance ever since – including a declaration that their policies didn’t have any discretionary clauses – there was no enforcement, and when insurers slipped them through into their contracts, those clauses were legally binding.
Apparently, when the Insurance Division attempted to order insurers to comply, some insurers simply refused and pointed out that there was no actual law or administrative rule prohibiting them, even if they had signed inaccurate certificates of compliance.
In 2013, we filed SB415 – based on a model act written by the National Association of Insurance Commissioners. Sen. Monnes Anderson, Chair of the Senate Health Care committee, wouldn’t even allow a public hearing on the bill, on grounds that there was too much opposition from the insurance industry. This year, we filed three separate versions of the bill in three different committees (SB317, SB603, and HB2857).
Last week, however, the Insurance Division finalized a sweeping new administrative rule that not only contains a definitive prohibition of discretionary clauses, it also directs courts to disregard any such clauses should insurers continue to slip them in to contracts. While our legislation may have been provided stronger enforcement, this rule is extremely helpful and may resolve the issue altogether.
We’re evaluating next steps for the legislation (SB317, SB603, and HB2857), in consultation with the Insurance Division, legislators, and local attorneys.
The new Administrative Rule on Discretionary Clauses is here: http://www.oregon.gov/DCBS/insurance/legal/laws/Pages/recentrules.aspx#id022015
Sample message in support of HB2673 and HB2597 – Special Education bills:
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.
Members of the House Education committee:
Please Support HB2673 and HB2597 – Special Education bills – with the annual summary of services
Dear members of the House Education Committee,
I’m writing in support of HB2673 and HB2597, two bills that will really help families of children receiving special education services.
HB2673 would promote better communication between schools and families, by providing more information on available special education services to families and decreasing the time that children have to wait to access special education services by aligning the evaluation schedule with national standards.
I would especially like to emphasize the importance of HB2673’s “annual summary” describing “special education and related services provided to students in the school district during the previous school year.” This would be very helpful in explaining available services to parents, and promoting open dialog in the IEP meeting about the needs of the individual student.
Under HB2597, if a family is being cited for truancy, the parents can request an evaluation to determine if their child has a disability and if the truancy or unexcused absence is manifestation of that disability. Children with disabilities are often absent from school more frequently than other non-disabled children, and HB2597 could help identify these disabilities and allow schools and parents to collaborate on effective solutions to help the child succeed.
[*** If you wish, you can insert a brief personal story here. If you can add a personal story about delays in IEP evaluations, the need for better information about special education services, or truancy complaints, that would be very helpful. ***]
123 SW Main
Hometown, OR 97201