- Update on autism health insurance reform in Oregon
- Two great special education bills in Oregon’s legislature (HB2673 and HB2597)
- Other upcoming legislation
- ACTION: ask your legislators to support HB2673 and HB2597
Update on autism health insurance reform in Oregon
It has been several months since I have written – there has been a lot of progress since then, and I’d like to provide a brief update.
Insurance Division Bulletins on Autism and Mental Health Parity:
On November 14, the Oregon Insurance Division issued sweeping “bulletins” on Autism and Mental Health Parity that essentially declared that everything we have been fighting for on insurance coverage for autism has been legally required in Oregon since Oregon’s Mental Health Parity law took effect in 2007. SB365 – our “autism health insurance reform” law – is simply a management approach that insurers can follow in providing the coverage that has been legally required all along.
- With few exceptions, if a treatment could be medically necessary in some circumstances for any mental or nervous condition, an insurer can’t exclude it from coverage. This means that blanket exclusions of treatments like Applied Behavior Analysis (ABA) are unlawful. This also means that ALL medically necessary care for autism should be covered – not just ABA.
- While insurers can continue to deny coverage of treatment on grounds that it isn’t medically necessary or is experimental, the Insurance Division has put insurers on notice that it will be monitoring them and may take enforcement action if they are being unreasonable.
- For ABA therapy, insurers must recognize all “grandfathered” ABA providers (those who were practicing ABA on the date that SB365 was signed) without discrimination even if they aren’t licensed. Now that the Behavior Analysis Regulatory Board is in operation, qualified ABA providers such as those with BCBAs can obtain licenses and 30 have already done so.
The bulletins have been posted here: http://www.oregon.gov/DCBS/insurance/legal/bulletins/Pages/proposed-bulletin-review.aspx
The Insurance Division is currently researching past conduct by insurers regarding coverage of ALL mental health conditions – including autism – to determine if any enforcement action is warranted for past conduct.
This means that our fight for autism health insurance reform has basically been won, although there are as always details to resolve.
ABA Coverage in the Oregon Health Plan (Healthy Kids):
The Oregon Health Plan also began covering ABA therapy on January 1. There are no specific age or visit limits, but we are concerned that they may not approve all necessary coverage for patients over the age of 12 – we’ll have to wait and see how cases are handled.
For general information about OHP’s coverage of ABA, see:
For information on how to get ABA coverage in the Oregon Health Plan, see:
Two great special education bills in Oregon’s legislature: HB2673 and HB2597
There are two important special education bills in this year’s session that will really help families get the right school-based services for their children, and I encourage you to ask your legislators to support them. See “ACTION: ask your legislators to support HB2673 and HB2597” below for guidance.
HB2673: special education disclosure and timely evaluation:
HB2673 will promote communication between schools and parents about the types of services and accommodations that are available for children with special needs. It asks school districts to provide parents with an annual summary of the special education and related services provided to students in the previous year. Most parents who attend IEP meetings to plan these services for their children have little idea of what’s possible and may not even know what to ask for. Parents who are able to afford expensive legal representation have much greater access to information about service availability, and can thus get more services than lower income parents who must negotiate alone.
In addition, parents who pursue legal action against schools over inadequate special education services are usually asked to sign a confidentiality agreement as part of any settlement, preventing them from sharing information about the accommodations or services they have received with other parents – resulting in further inequality between those with the means to advocate and those without. HB2673 would prohibit such confidentiality agreements about services, while preserving confidentiality in monetary or compensatory awards.
HB2673 also aligns Oregon law with national standards on timing for an initial evaluation or reevaluation at 60 calendar days, rather than 60 school days. The current 60 school day timing – when weekends, holidays, and summer vacations are taken into consideration – could mean a delay of many months before these critical evaluations are completed, leaving students without access to the services that they need to succeed. (As an example, under the current rules, a parent requesting an evaluation for special education eligibility in May could be required to wait until October before their evaluation was completed – and any necessary services might not be ready until the start of the second semester in January. That’s unacceptable). Oregon currently ranks in the bottom 10% of all states for evaluation speed – we should follow the national standard and complete these evaluations in a timely manner.
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 truancy or unexcused absence is a manifestation of that disability.
Individuals with autism or other disabilities are often absent from school more than neurotypical children; rather than treating these families as scofflaws and hitting them with fines or other punishment, HB2597 simply asks the schools to consider – if the parents make the request – whether the student is disabled and if that disability was the cause of the absences from school. For students who haven’t yet been identified for special education services, this could be the opportunity to make that identification and provide the services that the student needs to succeed.
There have also been some unfortunate reports of schools using truancy citations to retaliate against parents with disabled children who have been assertive in standing up for their rights. Truancy is a Class C violation under ORS 339.925 (Compulsory school attendance violation procedure) and can be a Class A violation under ORS 163.577 (Failing to supervise a child), with fines of up to $2,000. HB2597 would provide accused parents with some protection by allowing them to raise their child’s disability in the truancy conference.
Other upcoming legislation
There are several other bills that I’m working on in this legislative session – here’s a brief summary of each, with more information to come later.
SB317/SB603/HB2857 – Discretionary Clause
“Discretionary Clauses” are terms in insurance contracts that give the insurer a superior right to interpret the meaning or terms of the contract. In any legal dispute between an insurer and consumer, if the contract has a discretionary clause it isn’t enough for the consumer to prove that the insurer was wrong – the consumer also has to prove that the insurer was “arbitrary and capricious” (i.e., completely unreasonable) as well.
The Oregon Insurance Division – following guidance from the National Association of Insurance Commissioners – has prohibited these clauses since 2003 on grounds that they are deceptive, unfair and misleading to consumers. However, under existing law it is the Insurance Commissioner’s responsibility to find them and remove them from insurance contracts before they are approved – not the insurer’s responsibility to keep them out in the first place. Any such clauses that slip through the Insurance Division’s screening take full force and effect, and the Insurance Division has been unable to remove them – even when insurers have submitted signed, false declarations asserting that there are no such clauses. (Imagine what our roads would be like if the traffic police were required to tell drivers to obey the speed limit – but couldn’t actually fine or impose any penalties on speeders).
These three bills (all essentially the same) would unambiguously prohibit discretionary clauses, and make it the insurer’s responsibility to comply rather than the Insurance Division’s responsibility to enforce.
HB2563 / Senate TBD – Behavior Analysis Regulatory Board Update
The Behavior Analysis Regulatory Board (BARB) is charged with licensing and registering providers of ABA therapy. The Board is up and running, but there have been a few technical challenges involving conflicting authority with other boards and some non-standard language in the licensing statute that has been confusing for the Oregon Health Authority. We’re working on a revision that would standardize the board’s legislation into a format more comparable to other Oregon boards, resolve the conflicting legal authority, and ensure that all affected parties (including consumers) are represented.
HB2248 / SB314 – Unfair Trade Practices Act Reform
The Unfair Trade Practices Act is Oregon’s anti-fraud statute. It applies to essentially every form of business – from banking to a sidewalk lemonade stand – and prohibits businesses from lying about their goods and services. The insurance industry is exempt, however, making it for consumers or even the Attorney General to take action against an insurer that is engaged in fraud. With this exemption, even if a consumer were to prove that an insurer had knowingly and intentionally chosen to defraud them of the benefits they had paid for, there is virtually no opportunity for a meaningful damage award. As a result, insurers have an incentive to try risky legal strategies to deny claims with the knowledge that there are no consequences for failure.
HB2248 and SB314 would revoke the Insurance Industry’s exemption from the Unfair Trade Practices Act. In 2013, it passed the House but fell one vote short in the Senate. This year, odds are better that it can get through.
Senate TBD – ABLE Act
Late last year, the U.S. Congress passed the ABLE act, which allows people with disabilities and their families to set up a special savings account for disability-related expenses. Earnings on an ABLE account would not be taxed, and account funds would generally not be considered for the supplemental security income (SSI) program, Medicaid, and other federal means-tested benefits. Each state will also need to set up its own legislation to enable these accounts, and Oregon’s ABLE bill will be filed this week by Sen. Gelser.
ACTION: ask your legislators to support HB2673 and HB2597
Please contact your State Representative and the House Education Committee to support HB2673 and HB2597 the special education disclosure, evaluation timing, and truancy bills. They are being heard on Monday 2/23, and could be up for a vote as early as Friday 2/27.
I’ve written a sample e-mail below my name – please feel free personalize it to describe how this affects you.
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:
Your own State Representative. You can find their contact information at: http://www.leg.state.or.us/findlegsltr/
Please Support HB2673 and HB2597 – Special Education bills
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.
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. ***]
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