In this update, I’ll write about recent developments with the Oregon Health Plan (Medicaid) and potential impacts of repealing Obamacare. In the near future, I’ll write about upcoming legislation for the 2017 Oregon legislative session.
- OHP Eliminates Visit Limits on Speech and Occupational Therapy for Children
- Update on OHP Coverage of Autism Treatments and Medicaid Waiver
- Potential Impacts of Repealing the Affordable Care Act (“Obamacare”)
OHP Eliminates Visit Limits on Speech and Occupational Therapy for Children
Effective January 1, 2017, the Oregon Health Plan (Oregon’s Medicaid program) has eliminated visit limits on rehabilitative care, such as speech, occupational, and physical therapy, for children under the age of 21.
In the past, rehabilitative care was limited to 30 visits per year, regardless of medical necessity; under the new policy, children under age 21 may have additional visits authorized beyond these limits if medically appropriate.
This change was based on appeals and legal arguments that we submitted over the past year with support from local and national attorneys and policy analysts, including from Autism Speaks, the Autism Society of Oregon, and the Center for Autism and Related Disorders, explaining that Oregon’s limits on rehabilitative care violated both the “EPSDT” clause in the Social Security Act (which requires coverage of all medically necessary care for any Medicaid-eligible child without arbitrary limits) and – for autism and other mental health conditions – the Federal Mental Health Parity and Addiction Equity Act (MHPAEA).
Unfortunately, OHP continues to violate MHPAEA, since it still imposes these visit limits on patients over the age of 21 seeking therapy for mental health conditions. The Oregon Health Authority has told me that it is reviewing all of its policies for compliance with MHPAEA, and intends to come into compliance by October 1, 2017. I’m hopeful that this gap will be resolved by then.
You can find Oregon’s “prioritized list of services” here. Rehabilitative care is described in Guideline Note 6 on page 163.
What this means: OHP patients under the age of 21 should now be able to get reimbursement for any medically necessary amount of rehabilitative care (speech, OT, PT) for any medical condition, without fixed limits. CCOs may limit an initial authorization to 30 visits, but must approve extension requests if they are needed. If you are a patient or provider of rehabilitative care, once you near the end of your authorization, you should ask the CCO for an extension and be prepare to explain the reason why additional therapy is medically appropriate.
I am interested in hearing about any denials of rehabilitative care for patients over the age of 21 on OHP with autism or other mental health conditions, based on these limits. As noted, while Oregon continues to impose these limits on older patients, we believe that these limits violate Federal law (MHPAEA), and it may be possible to resolve these limits through the appeals process.
The Oregon Division of Financial Regulation (formerly known as the Insurance Division) has already banned visit limits in commercial insurance plans on rehabilitative care for mental health conditions; if you experience such limits – and we’re still seeing some in some Oregon insurance plans – you should submit a consumer complaint here.
Update on OHP Coverage of Autism Treatments and Medicaid Waiver
In September and October, I sent e-mails with an action alert to ask CMS – the Federal Medicaid agency – to stop OHP from denying coverage of autism treatments. At the time, we were experiencing a sudden surge of significant problems with coverage of Applied Behavior Analysis and other treatments for autism. Many new patients were being inappropriately denied access to care, and existing patients were told that their coverage would be terminated. For instance, non-verbal 3-year old children were denied access to ABA therapy on grounds that their behaviors did not constitute a safety threat, even though there was no dispute that the denial of care would have lasting, serious consequences for the patient.
Our action alert specifically complained about two concerns with Oregon’s Medicaid “demonstration waiver,” which provides Oregon with a limited exemption from some clauses in the Social Security Act for experimental purposes:
- EPSDT: The EPSDT benefit in the Social Security Act requires Medicaid plans to cover “all medically necessary diagnostic and treatment services” for children under the age of 21 “regardless of whether or not such services are otherwise covered under the state Medicaid plan for adults.” Oregon requested a waiver, making it the only state in the country that reserves the right to withhold medically necessary care from children on Medicaid.
- Consumer representation on the Health Evidence Review Commission (HERC): HERC develops the prioritized list of healthcare services – specifying what treatments are covered, and which are automatically denied even when medically necessary. According to the waiver application, HERC is supposed to include “two health consumers.” In practice, the two “health consumer” spots have been given to a CCO board member and an industry consultant, and there are NO bonafide “health consumers” on HERC.
Our action alert was very effective in raising attention to this issue. In all, 84 out of the 86 comments submitted to CMS about the OHP Medicaid waiver were in support of our concerns, including comments from a number of state and national organizations that joined dozens of autism families and their health care providers.
On the strength of this response, we were able to have meetings with state and federal officials to have serious discussions of our concerns, including Lynne Saxton, Director of the Oregon Health Authority, and Dr. Eliot Fishman, Director of the CMS State Demonstrations Group responsible for approving Oregon’s waiver application. We also had numerous discussions with staff for U.S. Senators Wyden and Merkley, and earlier this month I was invited to Washington D.C. to meet in person with Senator Wyden and the health policy staff for the U.S. Senate Finance Committee to discuss our concerns with the waiver and Oregon’s application in person.
Through this work – supported by your responses to our action alert – we’ve made very considerable progress:
- The Oregon Health Authority (OHA) issued emergency rules in October that have fixed the worst of the abuses (e.g., patients no longer need to demonstrate that they have both autism and self-injurious behavior – a diagnosis of one or the other is sufficient). We’re working now with OHA on permanent rules that we hope will make further corrections.
- With strong counseling from the OHA, most but not all CCOs have improved their ABA approval processes significantly, and we’re seeing signs of progress with the remainder
- OHA has agreed to treat any limitations on care for autism as “soft limits” that can be exceeded if medically appropriate, rather than “hard” limits that can never be exceeded. This is consistent with the EPSDT regulations. The removal of limits on rehabilitative care (speech, OT, PT) for children, described above, are one important part of this.
- OHA has agreed to find patient / consumer representatives on the Health Evidence Review Commission who are either (a) Medicaid recipients, or the parents or guardians of Medicaid recipients; or (b) representatives of non-profit advocacy organizations representing the needs of Medicaid consumers – not industry representatives.
However, our more fundamental request – to fix the OHP waiver itself to remove the improper exemption from EPSDT (which allows Oregon to withhold medically necessary care from children) – was denied, and the OHP waiver was approved as submitted.
Further, while OHA is now working to provide us with what we need for autism, as described above, we have also been given legal opinions from the Oregon Department of Justice asserting Oregon’s right, under the now-approved waiver, to limit or deny coverage of essentially anything without regard to medical necessity, which should be prohibited under EPSDT and Mental Health Parity.
More significantly, we think that approval of Oregon’s EPSDT waiver was a significant strategic error: while Oregon may – or may not – be able to responsibly manage the flexibility that this EPSDT waiver provides, many other states won’t, and a precedent has now been established to permit withholding medical necessary care from children on Medicaid. In my discussions with the U.S. Senate Finance Committee’s health counsel earlier this month, we discussed likely Republican plans to replace Medicaid with block grants, and concerns that Oregon’s EPSDT waiver approval could be used to undermine attempts to maintain minimum national standards for coverage.
My general impression from our discussions over the past few months is that there was broad recognition at the national level that Oregon’s EPSDT exemption was very problematic – but with the election from Donald Trump as President, there was a strong push to complete approval of Oregon’s waiver before he took office and there was simply no time to make the corrections that we recommended.
However, as described above, we’ve made considerable progress on the core issues and will continue to work with the OHA to resolve the remainder.
In addition, we are working to introduce a bill in Oregon’s 2017 legislative session to implement Federal regulations (42 CFR 438.402) to establish an External Review process for Oregon’s Medicaid enrollees. “External Review” allows consumers to request a review of medical necessity denials by an impartial medical professional appointed by the state, and mirrors an existing process for consumers with commercial insurance plans. This will address some of our concerns about the lack of due process for consumers.
We will also continue to monitor patient and provider experience with the Oregon Health Plan, and to identify denials of coverage for care that should have been provided under EPSDT or Mental Health Parity – such as intensive ABA therapy for patients with autism over the age of 12.
If you or your patients receive a denial of care from the Oregon Health Plan citing limitations or exclusions based on the prioritized list, I would like to hear from you – please send me an e-mail.
Our legal advisors believe that CMS exceeded its statutory authority in granting Oregon’s Medicaid waiver, especially in approving the exemption from EPSDT to deny medically necessary care to children. If necessary – if we see continued, significant denials of medically necessary care – we believe that the waiver could be overturned in court.
You can find the Waiver approval on the CMS website here – filter on Oregon, and look for “Oregon Health Plan.”
Potential Impacts of Repealing the Affordable Care Act (“Obamacare”)
With the election of Donald Trump as President, the Republicans in Congress are now preparing to repeal the Patient Protection and Affordable Care Act of 2010, also known as “Obamacare.” We don’t know yet whether they will succeed, or what if anything they will replace it with. However, since we’re at the beginning of this process I wanted to review how the Affordable Care Act has impacted coverage of health care for autism in Oregon.
Autism Health Insurance Reform in Oregon relies on a complex combination of state and federal laws, including:
- ORS 743A.168 – Oregon’s Mental Health Parity law from 2005
- ORS 743A.190 – Oregon’s first autism mandate from 2007
- SB365 (2013) and SB696 (2015) – Oregon’s revised autism mandates which specifically describe minimum requirements for coverage of Applied Behavior Analysis (ABA)
- Federal Mental Health Parity and Addiction Equity Act (MHPAEA)
- The Affordable Care Act
These laws overlap and enhance each other; for instance, SB365 required coverage of treatment for autism, but allowed for some age and visit limits on care; ORS 743A.168 and MHPAEA overrode those limits to provide coverage for all ages, limited only by medical necessity. The ACA extended that enhanced coverage to individual plans that anyone could purchase through the health exchange, even if they had a pre-existing condition (such as autism).
Even with a full repeal of the Affordable Care Act, health insurance policies in Oregon will still need to provide coverage of treatment for autism, with significant gaps and issues:
- Individual plans would no longer be required to comply with state or federal Mental Health Parity, and could start imposing age and visit limits on coverage.
- Consumers could lose the ability to purchase individual insurance plans from the Health Exchange. In many cases, large plans from large out of state employers continue to deny coverage of ABA or other autism treatments – consumers have worked around this by buying low-cost individual plans for their children, which have the comprehensive autism coverage that Oregon requires.
- Insurance companies could start denying coverage for individuals with pre-existing conditions. Everyone with an autism diagnosis has a “pre-existing condition” – which could make it difficult or impossible to buy health insurance at all.
- The Mental Health Parity requirements for Medicaid would be repealed, enabling OHP to resume or continue some of the types of denials that we have been fighting against, such as age and visit limits on treatment for autism and other mental health conditions.
- Medicaid expansion funding would be lost, reducing the number of people who could be covered on OHP and funding for the K-Plan.
- Subsidies for commercial insurance through the exchange would be lost, so consumers who purchase insurance would be required to pay the full price regardless of income.
- As noted above, under some proposals, Medicaid could be converted to a block grant program which would reduce existing funding levels and eliminate any requirements for coverage, including the EPSDT and Mental Health Parity requirements. See Disability Rights Oregon’s blog entry on this.
For these reasons, I’m personally very concerned that a repeal of the Affordable Care Act would be very harmful, even if the basic provisions of Oregon law would continue to provide basic autism coverage. I encourage you to contact your Federal legislators to express your support for the Affordable Care Act, so that we can preserve Autism Health Insurance Reform in Oregon and ensure that everyone experiencing autism can access the medically necessary care that can make a big difference in their lives.