Autism Insurance for Oregon

It's time for Medical Insurance Companies in Oregon to cover Autism Treatment

Autism Health Insurance Reform: AF v Providence Legal Win; Next Steps on HB2858

Contents:

  • AF v Providence Settlement victory
  • Next Steps on HB2858 – Insurance Enforcement Process

AF v Providence Settlement victory

On Tuesday 3/14/2017, U.S. District Court approved a class action settlement in AF v Providence, in which Providence agreed that to cover ABA therapy without discrimination against individuals with autism.

The AF v Providence case is the reason that health insurance plans in Oregon cover treatment for autism. Beginning in 2005, we passed law after law mandating coverage of medically necessary care for autism and other mental health conditions –but they were honored primarily in the breach, and never enforced.

Ten years ago, Providence would deny coverage of ABA therapy for autism by asserting that it was “experimental.” When autism families appealed to External Review – in which the Insurance Commissioner appoints an outside medical expert to review insurer assertions that treatments are experimental or not medically necessary – the families won, and Providence was forced to pay for their care. When Kaiser was faced with this situation, it ultimately conceded and agreed to start covering ABA therapy for all families.

Providence, on the other hand, devised a legal strategy to deny coverage of ABA therapy on a contractual argument that didn’t allow an appeal to External Review. It issued denial letters saying:

… services “related to developmental disabilities, developmental delays or learning disabilities” are specifically excluded from coverage under this plan. …. There is no question that autism spectrum disorder is a “developmental disability” or involves “developmental delay,” and PHP here has so interpreted it, in this case as it has in other cases seeking ABA services for autism spectrum disorder. Because ABA services are related to autism spectrum disorder, they are therefore not benefits covered under the plan.

(Providence was very clear – even proud — in legal filings to the court that this strategy was done for the purpose of evading the legally mandated External Review process, and was specifically intended to provoke litigation by consumers).

Providence argued that Oregon’s mental health parity law – ORS 743A.168 – didn’t require it to actually cover any services for any mental health conditions, and that ABA wasn’t a medical service and was therefore not covered by ORS 743A.190, which requires coverage for all medically necessary “medical services, including rehabilitation services” for treatment of autism in children.

In a landmark decision in August, 2014, Judge Simon disagreed – concluding that Providence’s argument that Oregon’s mental health parity law didn’t actually require coverage of any service was “absurd;” that ABA is a medical service required by ORS 743A.190; and that Providence also violated the Federal Mental Health Parity and Addiction Equity Act.

Years ago, when Providence filed its plan language for approval, the Insurance Division questioned this developmental disabilities exclusion; Providence responded at the time that they were aware it couldn’t legally be applied to autism. In using this language to block coverage of autism treatment, it wasn’t just violating state and federal law, it was directly violating a written commitment to the Insurance Commissioner.

We had been making all of these arguments for years, and brought this issue to the Insurance Commissioner’s attention several times, but no action was taken.

By May of 2013, after very lengthy discussions, we successfully persuaded the attorneys and policy analysts at the Insurance Division, Cover Oregon, Legislative Counsel’s Office, Department of Justice (DoJ), and Federal Center for Medicare and Medicaid Services (CMS) that ABA therapy was already included in Oregon’s “Essential Health Benefits” package and should be covered by insurance even without new legislation. After Rocky King, head of Cover Oregon, informed Governor Kitzhaber’s Chief of Staff of this conclusion, the Kitzhaber administration intervened on behalf of a major campaign contributor who was an insurance industry executive – and countermanded that decision. Even though the Insurance Commissioner sent the Governor’s office a reply warning that the industry executive they had met with was providing such “inconsistent and contradictory information” about coverage of ABA therapy that the Division could “consider enforcement action,” the Insurance Division and Cover Oregon were compelled to back off of plans to acknowledge that it was already legally required for coverage in Oregon.

Senator Bates attempted to resolve this by adding an amendment to SB365 expressly declaring the opinion of the Oregon Legislature that ABA was already required in the Essential Health Benefits package. Governor Kitzhaber’s Chief of Staff joined several insurance industry executives and lobbyists in a meeting with Senator Bates and warned him that SB365 would be vetoed if it included any language to that effect, on grounds that it would be bad for the industry.

Under a legal technicality in the Affordable Care Act, the Federal Government would pick up the cost of subsidizing any care that was already required by Oregon law – but the State was required to pick up the cost of any new insurance mandates. This meant that when Governor Kitzhaber overruled the conclusion of the Insurance Division, Cover Oregon, DoJ, and CMS that ABA therapy coverage was already required, he wasn’t just postponing the date at which our children could get medically necessary care – he was also rejecting millions of dollars in federal subsidies to cover the cost of that treatment, solely to give a small break to his friends in the insurance industry.

Senator Bates was so angry with this interference on behalf of insurers and against families that he immediately tracked me down in a Capitol hallway and urged me to file a class action lawsuit against the State of Oregon in addition to this Providence lawsuit. (We did – and PS v PEBB settled over a year ago, including compensation from the State of Oregon for violating the civil rights of our lead plaintiff).

Even as SB365 – our Autism Health Insurance Reform bill – was being enacted in mid-2013, the implementation date was postponed until 2016 expressly to give us time to complete our litigation – and ensure that Oregon received the federal subsidies for ABA therapy that it was entitled to. We were told that if we couldn’t prove that ABA therapy was already required for coverage under Oregon law, that SB365 may be repealed or scaled back before taking effect. All of the appeals and enforcement action under investigation by the Insurance Division were put on hold – until we could get our own legal opinion, at our own expense, reconfirming what the State of Oregon’s attorneys already knew, that ABA therapy was required for coverage under Oregon law.

Without the work of Stoll Berne and Megan Glor Associates on the AF v Providence case, we would never have been able to overcome this institutional resistance. The attorneys all did the work on “contingency” – meaning that they assumed all of the financial risk, worked without pay for nearly 3 years, and even advanced nearly $100,000 in expenses for outside experts with their own money. They did this knowing that there would be no massive “jackpot” and that their only payoff would be getting their time and expense reimbursed.

The Oregonian reported yesterday on the settlement in the Class Action portion of the lawsuit, which sought only an injunction prohibiting Providence from using the “developmental disability” exclusion to deny ABA coverage. In a separate component of the case, the five named plaintiffs also sought compensation for the value of ABA services that they should have received but didn’t. Unlike the Class Action suit, any settlement on that individual case would be confidential so there is no way of knowing what the terms were, if any.

Next Steps on HB2858 – Insurance Enforcement Process

Our experience with the AF v Providence case demonstrates the need for HB2858 – which establishes a clear and straightforward process for consumers to get the Insurance Commissioner to enforce the law. If the Insurance Commissioner doesn’t resolve a complaint within a year, then the consumer would get the right to enforce the insurance code themselves in court. (Currently, you can sue an insurer for breach of contract – but not for violating the law. In AF v Providence, the court concluded that some portions of the insurance code were incorporated into the contract). It would also allow consumers to recover punitive damages, making it much easier to recruit an attorney to help with a worthy case.

In the past few years, attempts to put insurance under the “Unfair Trade Practices Act” – Oregon’s anti-fraud statute – have always failed very narrowly. This bill is a compromise – it requires consumers to work through the Insurance Commissioner first, and allows private litigation only if the Insurance Commissioner can’t resolve an issue within a year.

In our hearing on HB2858 on Wednesday 3/15/2017, however, the industry’s objections were as strong as ever.

During my testimony, I told the story of one consumer whose coverage of ABA therapy was improperly denied in 2014. As I told the legislators, the Insurance Division actually called their insurer in July of 2014 and told the insurer that their denial of ABA coverage was illegal. The insurer refused a direct request from the Insurance Division to honor the claim. The consumer had to sell their car to raise money to pay for ABA therapy, then had to quit their job and move across the state to find an employer with a health plan that was willing to comply with the law. Even though it is now unambiguously clear that the insurer’s denial was illegal, the family still hasn’t had their claim paid, and – three years later – the Insurance Commissioner is still “investigating” the issue.

Right after telling this story, an Insurance Industry attorney spoke out against the bill – asserting that my story somehow illustrated that “the system worked” and that consumers just didn’t need the ability to enforce their rights in any way, either through the Insurance Division or in court with a lawyer.

That’s what this really comes down to – do we as consumers have any way to get our rights enforced, or not? The insurers are clear – they just don’t want us to have any way to enforce our rights.

There will be another hearing on HB2858 on Monday 3/20/2017. If you haven’t written to the committee yet, I encourage you to do so – see the sample e-mail, below. If you are interested in testifying in Monday’s hearing or would like to help pass the bill, please contact me by e-mail.

Like every other attempt over the past few years to improve consumer rights under the insurance code, this will probably be very close – but I’m optimistic that we may get it through this year with this compromise approach.

————–

Sincerely,

 

Paul Terdal

 

Sample message in support of HB2858 – Enforcement of the Insurance Code

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.

To:

Members of the House Business and Labor committee:

Rep.PaulHolvey@oregonlegislature.gov

rep.gregbarreto@state.or.us

Rep.JanelleBynum@oregonlegislature.gov

Rep.MargaretDoherty@state.or.us

rep.paulevans@state.or.us

Rep.JulieFahey@oregonlegislature.gov

rep.jodihack@state.or.us

rep.dallasheard@state.or.us

Rep.BillKennemer@state.or.us

CC:

paul@AutismInsuranceOR.org

 

Subject:

Please Support HB2858 – Enforcement of the Insurance Code

Body:

Dear members of the House Business and Labor Committee,

I’m writing in support of HB2858 on remedies for violations of the Insurance Code.

HB2858 establishes transparent and efficient procedures for the Insurance Commissioner to use in adjudicating consumer requests for restitution or enforcement of the insurance code, based on the BOLI Civil Rights Division’s process for adjudicating civil rights complaints. Consumers who are unsuccessful in resolving their complaints through the Insurance Commissioner within a year would gain a private right of action.

While the Insurance Commissioner’s consumer advocacy unit can be very helpful, consumers are often left in the lurch when insurers don’t agree to fix issues voluntarily – there are no laws or administrative rules governing the complaints and enforcement process. The Commissioner’s restitution authority under 2013’s SB414 has been used only once in all the years it has been in effect.

Please support this bill to give insurance consumers an effective process to resolve their issues through the Insurance Commissioner.

 

[*** If you can, please insert a brief personal story here. If you can add a personal story about insurance violations or issues with the Insurance Division’s management of your complaints that would be especially helpful. ***]

 

Thank you,

 

Your Name

123 SW Main

Hometown, OR 97201

 

 

Posted in Call To Action, Legal, Legislative | Comments Off

Autism Health Insurance Reform: Action Alert – Ask Legislators to Support HB2858

ACTION: ask the House Business and Labor Committee to support HB2858

On Wednesday 3/15/2017, the House Business and Labor Committee will hold a hearing on HB2858.

As I wrote last week, HB2858 would establish a transparent and efficient process for the Insurance Commissioner to use in helping consumers enforce their rights under the insurance code.

Oregon law currently requires the Insurance Commissioner to record consumer complaints about insurers, and to enforce the insurance code – but there are no laws or administrative rules governing this process. The Insurance Commissioner’s “consumer advocacy unit” can be very helpful in persuading insurers to comply voluntarily, but actual enforcement is extremely rare – less than 0.1% of all consumer complaints result in enforcement (fewer than 4 enforcement actions per year on average).

While the Insurance Commissioner’s announcement earlier this month of enforcement against several insurers for violations related to autism was very welcome news, dozens of similar consumer complaints have been lingering without resolution for many years.

Four years ago, we wrote and passed SB414, which gave the Insurance Commissioner to seek restitution on behalf of consumers. In all this time, it has been used only once, and there are no procedures for consumers to participate in the restitution process for their own case.

HB2858 would enable consumers to do what the Legislature has consistently urged – work through the Insurance Commissioner for enforcement of our rights under the Insurance Code. It would establish a specific process to follow in response to a Consumer Complaint, based on the process that the Civil Rights Division uses to act on Civil Rights complaints. The Insurance Commissioner would be encouraged to involve the consumer in settlement discussions and to seek consumer input on restitution. In the event that a consumer attempted to use the enforcement process but wasn’t able to get a resolution within a year, then the consumer would gain a private right of action to sue on their own for violation of the Insurance Code (instead of just breach of contract).

Please join me in asking the House Business and Labor Committee to pass this important bill to ensure that we our health insurers deliver the benefits that we’ve paid for.

 

————–

Sincerely,

 

Paul Terdal

 

Sample message in support of HB2858 – Enforcement of the Insurance Code

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.

To:

Members of the House Business and Labor committee:

Rep.PaulHolvey@oregonlegislature.gov

rep.gregbarreto@state.or.us

Rep.JanelleBynum@oregonlegislature.gov

Rep.MargaretDoherty@state.or.us

rep.paulevans@state.or.us

Rep.JulieFahey@oregonlegislature.gov

rep.jodihack@state.or.us

rep.dallasheard@state.or.us

Rep.BillKennemer@state.or.us

CC:

paul@AutismInsuranceOR.org

 

Subject:

Please Support HB2858 – Enforcement of the Insurance Code

Body:

Dear members of the House Business and Labor Committee,

I’m writing in support of HB2858 on remedies for violations of the Insurance Code.

HB2858 establishes transparent and efficient procedures for the Insurance Commissioner to use in adjudicating consumer requests for restitution or enforcement of the insurance code, based on the BOLI Civil Rights Division’s process for adjudicating civil rights complaints. Consumers who are unsuccessful in resolving their complaints through the Insurance Commissioner within a year would gain a private right of action.

While the Insurance Commissioner’s consumer advocacy unit can be very helpful, consumers are often left in the lurch when insurers don’t agree to fix issues voluntarily – there are no laws or administrative rules governing the complaints and enforcement process. The Commissioner’s restitution authority under 2013’s SB414 has been used only once in all the years it has been in effect.

Please support this bill to give insurance consumers an effective process to resolve their issues through the Insurance Commissioner.

 

[*** If you can, please insert a brief personal story here. If you can add a personal story about insurance violations or issues with the Insurance Division’s management of your complaints that would be especially helpful. ***]

 

Thank you,

 

Your Name

123 SW Main

Hometown, OR 97201

Posted in Call To Action, Legislative | Comments Off

Autism Health Insurance Reform: Enforcement of autism insurance violations; 2017 Legislation

Contents:

  • Insurance Commissioner announces enforcement against insurers for autism violations
  • The critical need for ongoing enforcement
  • Legislation for 2017
  • Next Steps

Insurance Commissioner announces enforcement against insurers for autism violations

On Thursday March 2nd, Oregon Insurance Commissioner Laura Cali Robison announced that she was taking enforcement action against four health insurers for failure to comply with laws mandating coverage of treatment for autism.

To quote the Division of Financial Regulation’s (DoFR) press release:

  • “Pioneer Educators Health Trust, which provides health plans to local universities, is fined a proposed $100,000 for several violations, including:

o   Applying an annual visitation limit for neurodevelopmental therapy, a mental health treatment, when there was not a similar limit for other medical or surgical benefits.

o   Excluding ABA therapy in its 2015 health benefit plan and issuing the plan without receiving approval from the state.

o   Denying a consumer’s pre-authorization request for ABA therapy and not providing a written response with information about the consumer’s right to appeal.

o   Denying a claim for ABA therapy with no basis for that denial.

  • Regence BlueCross BlueShield of Oregon, in its role as third-party administrator for Pioneer Educators Health Trust, is fined a proposed $100,000. In particular, Regence provided incorrect information to Pioneer and at least one consumer about whether it was required to cover ABA therapy.
  • United Healthcare Insurance Company is fined a proposed $110,000 for denying 22 speech therapy claims for children who have been diagnosed with a pervasive developmental disorder (such as autism). Oregon law requires insurers to cover all medical services for a child enrolled in the plan who is younger than 18 years old and who has been diagnosed with a pervasive developmental disorder. Those services include rehabilitation services, such as speech therapy, that are medically necessary and are otherwise covered under the plan.
  • Kaiser Foundation Health Plan of the Northwest is fined a proposed $250,000 for providing incorrect and misleading information in its member documents about whether it would pay for members’ attorney fees in a lawsuit. Kaiser’s documents stated that members would bear their own attorney fees, but Oregon law requires insurers to honor a court award for attorney fees. This order was the result of a complaint from a consumer who has filed a lawsuit against Kaiser related to mental health parity issues.”

Regence / Pioneer Educators Health Trust (PEHT)

I have been working on the Regence / Pioneer Educators Health Trust (PEHT) issues since July, 2015, when a plan member contacted me seeking help with ABA coverage. Regence had told her that the plan was exempt from state regulation, didn’t have to comply with Oregon’s autism health insurance reform laws or the Insurance Commissioner’s bulletins on autism and mental health, and that ABA was specifically excluded from the plan. When I reviewed her plan documents, however, I couldn’t find any reference to the alleged ABA exclusion, and found that PEHT was licensed by the State of Oregon as a “Multiple Employer Welfare Agreement” (MEWA) – which is subject to the same insurance regulations as any other insurance company. The member went through a long series of phone calls in which Regence repeatedly insisted that ABA was excluded, and refused to respond to preauthorization requests or even to issue a denial, saying that it didn’t have to respond to preauthorization requests for services that weren’t covered.

As the DoFR eventually found in its investigation, after the Insurance Commissioner published her bulletins in November 2014 declaring that no health insurer in Oregon could arbitrarily exclude coverage any therapy that could be medically necessary for treatment of mental health conditions – including Applied Behavior Analysis (ABA) for autism – Regence contacted PEHT to inform them that they were exempt from the bulletins and encouraged them to add an ABA exclusion to their plan. The revised plan – with the ABA exclusion – was apparently not submitted to the DoFR for approval and wasn’t even distributed to the plan members, who had no notification that ABA was now being excluded.

[As an aside, long-term readers of these messages may recall that in March 2011, Dr. Csaba Mera, Executive Medical Director for Regence, told a legislative workgroup in the Capitol that “there is sufficient evidence that children between ages 3 and 11 are helped (by ABA) – we’re not arguing about that…. It works in younger children – it really does make a difference in their lives.” It’s very disappointing that Regence was encouraging its corporate clients to oppose ABA therapy several years after concluding that “it really does make a difference.” Regence also continued issuing “experimental” denials of ABA therapy until directed to stop by DoFR in 2014]

After two and a half months of appeals and discussions with the DoFR Consumer Advocacy unit, PEHT acknowledged and apologized for the error, and began covering ABA therapy for the member in September, 2015. PEHT agreed to identify any other plan members who may have been impacted, and to remedy the error. However, the very next month, in October 2015, another plan member requested ABA therapy – and was again denied coverage.

In January 2016, PEHT began working on a revision to its plan documents. According to records in the NAIC SERFF database, DoFR again instructed them to remove the ABA exclusion from the plan, along with limits on speech and occupational therapy when used to treat autism or other mental health conditions, and PEHT agreed. PEHT provided DoFR with redlined copies of plan documents showing that these errors had been corrected.

In October 2016, the member contacted me again about an unrelated issue. In reviewing the plan documentation, I discovered that the ABA exclusion – which PEHT had been repeatedly ordered to remove – had actually been inserted back in to the plan documents, and that the visit limits on speech and occupational therapy for autism were still there. (This may have been an accidental clerical error, because this time Regence appears to have had the correct versions without the limits or exclusions).

Nevertheless, the member and her Occupational Therapist relied upon the published plan documents – with the visit limit on OT – and claims for additional services beyond the limit were denied by Regence because they were following outdated claims procedures from the older plan.

Regence and PEHT have since fixed the plan documents, removing the ABA exclusion and visit limits on rehabilitative care for autism and other mental health conditions.

Nevertheless, this is one of the most egregious insurance errors I have ever seen, and I fully agree with Commissioner Cali Robison’s action to pursue significant enforcement action against Regence and PEHT. PEHT and Regence were given warning after warning over a 2-year period, and repeatedly failed to take corrective action. I wish enforcement action had been taken much more swiftly after we reported the errors in mid-2015: it is likely that other members were deterred from seeking services in the past year out of the mistaken belief that they weren’t covered, and lost access to medically necessary care leading to potentially permanent harm.

Kaiser

The Kaiser enforcement action is in response to my own Consumer Complaint.

In 2009, Kaiser began including a clause in individual plan contracts, including mine, asserting that we couldn’t recover our attorney’s fees in a lawsuit even if we won. Litigation over insurance disputes can be extraordinarily expensive; in McHenry v PacificSource, plaintiff legal fees were over $200,000. Autism Litigation against Regence in Washington State over autism issues was even more expensive, with plaintiff legal fees exceeding $2 million. Although I began considering litigation against Kaiser several years ago to resolve an intractable dispute, my apparent inability to recover attorney fees even if successful forced me to delay action, and may have resulted in the loss of some of my legal rights by exceeding the statute of limitations. When I did ultimately file a lawsuit against Kaiser, I did so on my own without help from an attorney.

After nearly a year of litigation without legal representation, it became clear that I couldn’t continue on my own – and that Kaiser’s clause prohibiting recovery of attorney’s fees was probably in violation of Oregon law.

I submitted a Consumer Complaint about this issue in September 2016, and Kaiser immediately agreed with the Insurance Commissioner’s request to revise its contract to comply with Oregon law. However, in December 2016, after I had hired legal representation, Kaiser submitted a “Rule 21” motion to the court, seeking to dismiss my claim for attorney’s fees – and cited the illegal clause in the contract as part of its justification. Although the court denied Kaiser’s motion, I was forced to spend thousands of dollars on legal fees to overcome it – after Kaiser had promised the Insurance Commissioner that they would fix it.

The $250,000 civil penalty that DoFR has proposed for this violation is one of the largest ever issued against an insurer in Oregon. As DoFR spokeswoman Lisa Morawkski told the Oregonian, “On the Kaiser case, we believe it affect lots of people over a long period of time. It may have dissuaded consumers from pursuing a lawsuit because they thought they could not recover attorney fees.” The cost of litigation is so high that if even one consumer was dissuaded from pursuing a lawsuit against Kaiser since the illegal language was inserted in 2009, Kaiser would probably have come out ahead despite this very large civil penalty.

Media Coverage

The critical need for ongoing enforcement

As welcome as these enforcement actions are, they are only a first step towards resolving many, many outstanding issues that we have brought to DoFR’s attention over the years, and which remain under active investigation.

Here are some examples of other issues that really should be addressed by DoFR enforcement:

  • In 2014, after we established a reputation for overturning nearly every “medical necessity” denial for ABA therapy, an insurer began denying coverage solely on grounds that the ABA providers weren’t licensed in the state of Oregon. However, the “grandfather” clause in SB365 took effect in August 2013, which immediately granted all existing ABA providers the right to continue to practice and bill insurance until the Behavior Analysis Regulatory Board could begin the licensing process. When a manager at the Insurance Division contacted the insurer and informed them that their denials were improper, the insurer replied that it wouldn’t comply with the law without a written order. No written order was given until the bulletins were issued in November 2014, clearly emphasizing the grandfathering provision in SB365. By that time, one consumer had been forced to sell their house and car to pay for treatment, and to move across the state to find a job with an employer who could provide insurance coverage that complied with Oregon law. To this date, there has been no enforcement and no compensation for the harm that the family suffered. (See this presentation to the House / Senate Judiciary committees on 9/30/2015, slides 4-5).
  • Another insurer included an explicit exclusion of ABA therapy in all circumstances without regard to medical necessity. As described in the Insurance Commissioner’s bulletins INS 2014-1 and INS 2014-2, ORS 743A.168 – which has been in effect since 2007 – requires coverage of medically necessary care for mental health conditions, and permits only a few specific exceptions, which don’t include ABA therapy. The plan member was forced to purchase another insurance plan that complied with the law as a backup, and to pay extra premium payments for several years, even though the insurer’s plan should have covered the treatment all along. The consumer has never been compensated for the cost of the extra insurance (nor has the other insurer – which did comply with the law – been compensated for picking up the expense for the noncompliant insurer).
  • Documentation from another insurer confirms that it continued issuing “experimental / investigational” denials of ABA therapy for several months after its staff had concluded that ABA was an effective, evidence-based treatment for autism while it “evaluated cost and pricing.” Nothing in the insurers definition of “experimental / investigational” references “cost and pricing.”
  • An insurer has stated that it intentionally raised legal arguments to deny coverage of ABA therapy that have since been found to be illegal because it knew that it would never win an appeal to “external review” of a denial claiming that ABA was “experimental / investigational” or “not medically necessary.”
  • An insurer has stated that once it realized it would never win any appeals to External Review by independent medical experts appointed by DoFR regarding denials of ABA therapy, it developed legal strategies to prevent consumers from using the External Review process, even though that process was mandated by state and federal law.
  • An insurer provided plan members with a statement asserting that essentially all forms of treatment for autism –including speech therapy, occupational therapy, and Applied Behavior Analysis – were educational services to be provided by schools, and not medical services to be covered by the plan, even though Oregon law requires insurers to cover medical care for autism, and specifically includes speech therapy and occupational therapy as covered medical services. (The courts, Insurance Division, and Department of Justice have all since concluded that the same law also applies to ABA therapy as a medical service).
  • In arguing that ABA therapy wasn’t medically necessary, an insurer made numerous false statements that misrepresented the positions of U.S. government agencies and professional associations, asserting that they didn’t support ABA therapy; in fact, all had issued position papers in support of ABA therapy.

Aside from autism issues, the TriCounty Behavioral Health Providers Association has also asked DoFR to examine insurer conduct related to mental health parity issues, citing concerns about a lack of transparency in coverage decisions; unlawful quantitative treatment limits; and non-quantitative treatment limitations (like utilization management or “fail first” policies) that are more restrictive for mental health conditions than medical / surgical conditions, in violation of state and federal mental health parity laws.

I have worked in regulated industries for more than 30 years; regulatory enforcement is essential to ensure that regulated entities proactively monitor their own conduct to ensure that they are in compliance, and that they find, fix and self-report any violations before a regulator uncovers them. Oregon’s lack of enforcement has emboldened insurers into sloppy compliance practices (as with the Regence / PEHT issue enforced last week) or, worse, into taking “edgy” positions pushing the boundaries of the law, confident that they are unlikely to ever be punished if they step across the line.

Legislation for 2017

While our primary legislative goals for Autism Health Insurance Reform in Oregon have been achieved, we are continuing to work on legislation this year to assist with implementation and enforcement, and address related issues. Here are four bills that we have introduced into the legislature this year:

HB2858 Insurance Consumer Complaints and Enforcement Process:

Establishes transparent and efficient procedures to adjudicate consumer requests for restitution or enforcement of the insurance code, based on the BOLI Civil Rights Division process for adjudicating civil rights complaints.

As welcome as last week’s enforcement actions were, our experience has shown that the DoFR’s process for enforcing consumer complaints about insurance violations is very limited and has room for improvement.

Every other industry in Oregon is covered by the Unfair Trade Practices Act (UTPA), Oregon’s anti-fraud statute – but insurance is exempt. As a result, there is no private right of action in Oregon to sue an insurer for violating the insurance code or engaging in deceptive business practices – you can sue for breach of contract terms only. In recent years, there have been several attempts to amend the UTPA to apply it to insurance – and give consumers the right to sue insurance companies for fraud – but they have always failed narrowly, with arguments that consumers should go to the DoFR for help instead of suing on their own.

The problem is that while the DoFR’s consumer advocacy unit can be very helpful, actual enforcement is very rare. Worse, when insurers don’t agree to fix issues voluntarily, consumers are left in the lurch. Out of the 4,000 Consumer Complaints that the DoFR typically receives each year, there are only a few enforcement actions (in 2016, there were 5; in 2014 there were 4, and in 2015 none at all). In fact, the DoFR doesn’t normally pursue enforcement from an individual complaint – it will typically wait to see if other consumers have been impacted before taking any action. For a consumer with a rare or unusual problem, this means that actual enforcement is highly unlikely.

In 2013, we wrote and passed SB414, giving the Insurance Commissioner the authority to seek restitution on behalf of a consumer as a part of an enforcement action, to require an insurer to compensate the consumer for the actual damages that they suffered as a result of a violation. In the 3 years that it has been in effect, it has been used only once – last November.

I have seen many cases in which the DoFR has encouraged consumers to pursue litigation rather than waiting for enforcement – even though litigation is extraordinarily difficult and expensive.

HB2858 would enable consumers to do what the Legislature has consistently urged – work through the DoFR for enforcement of our rights under the Insurance Code. It would establish a specific process for DoFR to follow in response to a Consumer Complaint, based on the process that the Civil Rights Division uses to act on Civil Rights complaints. The DoFR would be encouraged to involve the consumer in settlement discussions and to seek consumer input on restitution. In the event that a consumer attempted to use the DoFR enforcement process, but wasn’t able to get a resolution within a year, then the consumer would gain a private right of action to sue on their own for violation of the Insurance Code (instead of just breach of contract).

SB917 CCO External Review:

Implements Federal regulations (42 CFR 438.402) on External Review of medical necessity determinations by CCO.

When a consumer with a commercial insurance plan is denied coverage on grounds that it is “not medically necessary” or is “experimental,” the consumer can appeal to “External Review” in which the State of Oregon (DoFR) appoints a qualified medical expert to review the case and make an independent, binding decision about whether the care really is necessary. With our autism cases, we have found this process to be extremely useful – it is fast and fair; free to consumers; and inexpensive for insurers.

For consumers on the Oregon Health Plan (Medicaid), however, there is no opportunity for External Review – if the CCO denies coverage, the only appeal is to an Administrative Law Judge with no medical expertise, to review the case in a legal proceeding. In some cases, the consumer is pitted against a CCO attorney.

Federal regulations (42 CFR 438.402) permit states to establish an External Review process for Medicaid enrollees – but don’t require it, and Oregon hasn’t done it yet.

SB917 would implement this Federal regulation, to allow Medicaid enrollees to establish the same External Review process that consumers with commercial insurance use.

HB2931 Behavior Analysis Interventionists with College Degrees:

Clarifies educational requirements for registration of behavior analysis interventionists.

Behavior Analysis Interventionists provide Applied Behavior Analysis (ABA) therapy services under the supervision of licensed providers, such as a Licensed Behavior Analyst (e.g., BCBA).

The current statute specifically requires either a high school diploma or GED certificate. Unfortunately, some qualified individuals with college degrees or even graduate degrees have been denied registration because they lack either a high school diploma or GED certificate – even though their education (college degree) actually exceeds the minimum requirement.

HB2931 would simply clarify that an interventionist with a degree from a post-secondary institution meets the educational requirement, even if they don’t have a high school diploma or GED certificate.

HB2839 Organ Transplants for People with Disabilities:

Prohibits discrimination against potential organ transplant recipient on basis of mental or physical disability.

People with disabilities often face discrimination when seeking potentially lifesaving organ transplants. Discrimination often happens at the point where someone is referred for evaluation by a transplant center, before they are ever placed on the official transplant waiting list.

In some cases, this discrimination is overt, with formal policies against providing transplants to individuals with intellectual or developmental disabilities. In other cases, discrimination is based on incorrect assumptions that individuals with disabilities are unable to manage complicated post-operative treatment plans.

Several years ago, Lief O’Niell – a 9 year old, non-verbal boy with autism from Eugene – contracted a viral infection that severely damaged his heart. His parents were informed that his death was imminent and that there was nothing that could be done. In fact, his condition was treatable with a heart transplant and equipment was available that could sustain his life for years while awaiting surgery. Given the severity of his autism, however, he wasn’t even considered and his parents weren’t informed or consulted on the treatment options. Fortunately, one of his physicians at OHSU made a series of urgent phone calls to Stanford Medical Center, which agreed to consider him for a transplant.

Today, Lief is a thriving 14-year old boy – with a new heart – who demonstrated that even a severely autistic child can comply with rigid transplant requirements with the right supports.

Yesterday, the Washington Post covered this issue with a description of a similar case in Pennsylvania.

HB2839 would:

  • Clarify that doctors, hospitals, transplant centers, and other health care providers are prohibited from denying access to necessary organ transplants solely on the basis of a qualified individual’s disability;
  • Require that health providers consider, in evaluating the likelihood of a transplant’s success, the full range of supports available to help a person with a disability manage their post-operative care; and
  • Include a fast-track procedure for challenging discrimination to ensure that people in urgent need of an organ transplant can obtain timely resolutions to their claims.

Four other states (California, New Jersey, Massachusetts, and Maryland) have already passed similar legislation, and three more (Pennsylvania, Kansas, and Delaware) are considering it this year.

We had an excellent hearing on HB2839 on February 15th. While the bill is being supported by a number of disability rights advocates, it is currently being opposed by the transplant centers, including OHSU, Providence, Legacy Health, Lions, and the Pacific Northwest Transplant Bank.

Lief O’Niell and his mother, Jessica Bodey, provided outstanding testimony to describe their experience.

Here are Lief’s own comments to the legislature:

“Thank you for making this law. Autism is not a disease, it is a way of being. We are the same but different. I want you to see me as smart. Kids with autism deserve to live. Death is just a new beginning but I wanted to live. I am very grateful I received a heart.”

You can watch the testimony here, starting at 32:51.

The House Health Care committee members were very interested in the bill despite the heavy opposition from the industry. We will be holding workgroup meetings to attempt to resolve their concerns. Massachusetts’ bill was enacted in December 2016, and has some improvements that may address the industry’s technical concerns.

The National Down Syndrome Society has also posted information about this issue on their web page.

I am optimistic that we’ll be able to resolve the concerns and pass this bill.

Next Steps

I will follow up and keep you informed as we progress with both legislation and enforcement.

Please let me know if you have any questions about the legislation we’re working on, or are interested in helping with advocacy efforts.

In addition, if you have an open Consumer Complaint with the Insurance Commissioner that hasn’t been acted on in a while, I would be interested in hearing from you to discuss ways that we can work together to ensure that it is resolved.

————–

Sincerely,

 

Paul Terdal

Posted in Legal, Legislative | Comments Off

Autism Health Insurance Reform: Updates on OHP Coverage, potential impact of ACA repeal

Dear readers,

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.

Contents:

  • 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.”

You can find articles on the waiver approval in the Oregonian and Lund Report.

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.

————–

Sincerely,

 

Paul Terdal

Posted in Legal | Comments Off

Autism Health Insurance Reform: OHP Update; Clinton Autism Policy Discussion and Fundraiser

Contents:

  • OHP Waiver “Action Alert” Results
  • OHP ABA Coverage Update – OHA Issues Emergency Rule Change
  • Tell me about your OHP coverage issues
  • Clinton Autism Policy Discussion and Fundraiser – Thursday, October 13th, 3:00 PM – RSVP needed

OHP Waiver “Action Alert” Results

A very big thank you to everyone who responded to last month’s Action Alert to “Ask the Federal Government to Stop Oregon’s Medicaid plan from Denying Coverage of Autism Treatments.”

We asked the U.S. Center for Medicare & Medicaid Services (CMS) to withhold approval of Oregon’s request to continue operating the Oregon Health Plan (OHP) until two critical issues were fixed:

  • First, we asked CMS to require Oregon to ensure that its most vulnerable children receive the medically necessary care that Congress intended, without rationing, by making it clear that Oregon must fully comply with “EPSDT.” EPSDT – short for “Early and Periodic Screening, Diagnostic and Treatment” – makes health care for children a national priority, and specifically requires coverage of “all medically necessary diagnostic and treatment services … regardless of whether or not such services are otherwise covered.…” Oregon is the only state in the country that claims the right to withhold medically necessary care from needy children on Medicaid solely to save money.
  • Second, we asked CMS to require Oregon to appoint bonafide Consumer Representatives to the Health Evidence Review Commission (HERC) develops the prioritized list of healthcare services. Oregon’s Medicaid waiver – and Oregon law – already requires two “health consumers” but in practice, qualified “health consumer” applicants for the HERC were rejected so that a CCO board member and an industry consultant could be seated on the Commission instead.

We had a very strong response to our Action Alert. In all, 84 out of the 86 comments submitted to CMS about the OHP Medicaid waiver were in support of our concerns. In addition to comments from dozens of autism families and their health care providers, there were also letters in support of our position from local and national health care advocacy organizations, including Autism Speaks, the Autism Society of Oregon, Center for Autism and Related Disorders, Center on Budget and Policy Priorities, National Health Law Program, and the Partnership to Improve Patient Care. You can see the comments here.

Most Medicaid waiver applications receive few if any comments from the public. None of Oregon’s recent applications had any comments at all; Texas’ reauthorization last year had 21 comments, which were mostly positive. Our strong response here was significant – and it has been noticed. Both the Oregon Health Authority and CMS have contacted us to discuss our concerns, and we will be meeting with senior officials from both agencies in the coming weeks.

I will keep you informed of major developments, and may reach out again for another action alert to move this forward.

OHP ABA Coverage Update – OHA Issues Emergency Rule Change

In last month’s action alert, we described significant problems with coverage of Applied Behavior Analysis (ABA) therapy by CCOs, particularly Health Share. While OHP specifically does cover ABA therapy as a treatment for both autism and for “stereotypy / habit disorder and self-abusive behavior due to neurological dysfunction,” Health Share misinterpreted an Oregon Administrative Rule to require all patients to have both autism and behaviors that were a danger to themselves or others. The results have been inappropriate denials with tragic consequences – such as 4-year old, non-verbal children with autism being denied access to medical care because their behaviors were allegedly not dangerous.

To quote the Oregon Health Authority, “This is not the intent, nor is it compliant with the HERC guidelines and federal EPSDT requirements.”

The Oregon Health Authority has issued an emergency change to Oregon’s Administrative Rules to clarify these requirements. Key changes:

  • Clarifies that ABA patients may have EITHER autism OR other neurological dysfunction with self-abusive behavior, but don’t need BOTH conditions
  • Requires document of behavior that is EITHER injurious to themselves or others OR interferes with everyday functions or activities, not BOTH
  • Eliminates age and visit limits on ABA therapy from the administrative rule
  • Eliminates requirement to submit copies of IEPs with referrals for ABA services

Health Share has also issued a statement pledging to reprocess all ABA denials, based on the new rule.

Some significant problems remain, however:

  • While age and visit limits were removed from the administrative rule, they are still included in the prioritized list. In the past, the Oregon Health Authority has confirmed orally and in writing that these limits violate the Federal Mental Health Parity and Addiction Equity Act (MHPAEA) and wasn’t imposing them; we’re concerned that CCOs may continue to impose these unlawful limits.
  • The rule still requires “documentation that less intensive treatment or other therapy has been considered or found insufficient.” The Oregon Health Plan does not provide coverage of any other treatment for autism, so a requirement that “other therapy has been considered” is flatly ridiculous. Further, CMS has issued guidelines expressly warning that “fail first policies or step therapy protocols” like this violate MHPAEA unless the plan imposes similar requirements on the predominant medical-surgical conditions. Since there is no comparable administrative rule imposing such “fail first” requirements on any other conditions, this rule violates Federal law.
  • The rule still requires an unusually large amount of documentation to support a referral for ABA. Several Psychologists and Developmental Pediatricians have contacted me to complain that this documentation is excessive, unreasonable, and overly burdensome. Requiring this documentation for treatment of autism is also in violation of MHPAEA, as outlined in the same CMS guidelines referenced above.

Tell us about your OHP coverage issues

While the Oregon Health Authority has taken these steps to try to resolve the problems with ABA, we remain concerned about this, and about the improper imposition of limits on rehabilitative care (speech, OT, or PT).

If you or your patients have been denied coverage of autism treatment by the Oregon Health Plan, we’d like to hear about it. This will help us to understand the scope of the problem, and identify people who have been affected. If we have information about approaches for appeals, we can then reach out to impacted patients and providers, and should litigation be necessary it will help to identify potential plaintiffs. It will also help us to explain the situation to the Oregon Health Authority and CMS.

(Providers obviously can’t provide patient identifying information, but general information would be helpful and you are welcome to refer your patients to me or to the Autism Society of Oregon).

It would be helpful to have the following information:

  • Patient description: (e.g., age, gender, diagnosis, key symptoms)
  • Requested treatment: (e.g., ABA therapy, speech / OT / PT, etc.)
  • CCO: (e.g., Health Share, Family Care, etc.)
  • What happened: (e.g., requested referral on date; denied because of … or approved but with limited hours, etc.)

Please contact us at paul@AutismInsuranceOR.org.

Clinton Autism Policy Discussion and Fundraiser – Thursday, October 13th, 3:00 PM – RSVP needed

In the six years that I have been writing these messages, I have made a point of being non-partisan. Once I began working with the Oregon legislature, I learned very quickly that we had strong support from legislators in both parties. While our chief sponsors (Rep. Buckley, Sen. Edwards, Sen. Hass, Sen. Bates) were Democrats, we also had enthusiastic support from many Republications, such as Rep. Kennemer, Rep. Parrish and others. Our autism health insurance reform laws (SB365 and SB696) both passed unanimously – and in fact no Oregon legislator ever cast a vote against any of our major autism bills, either in committee or on the floor.

In the current Presidential election, however, Hillary Clinton has really stood out for her support of individuals with disabilities, including autism. In January, Secretary Clinton released a comprehensive Plan to Support Children, Youth, and Adults Living with Autism and their Families, that includes improved access to insurance coverage for autism – and increased state compliance with state compliance with Medicaid coverage requirements for children with autism and other developmental disabilities. She has also announced a comprehensive Agenda on Mental Health, which critically includes enhanced enforcement of the Federal Mental Health Parity and Addiction Equity Act, and a comprehensive policy on support for individuals with disabilities.

What I really appreciate, however, is how well Secretary Clinton has worked with grassroots activists in the autism and disability communities to create these policies. All of these policy proposals were developed in consultation with a broad network of grassroots disabilities activists from across the country, led by former Congressman Tony Coelho, the author of the Americans with Disabilities Act. This is exactly the kind of health consumer input that Oregon is lacking, and that was the basis for part of last month’s action alert. And I’m exceptionally pleased that Congressman Coelho personally answered our action alert, and joined us in asking CMS to remove the EPSDT clause from the OHP waiver and provide bonafide consumer representation on HERC.

That’s why I am helping organize a national fundraiser for Hillary Clinton, focused on her Autism plan, featuring former Congressman Tony Coelho. This is a great chance to show your support for Secretary Clinton’s autism policy – and to ask Congressman Coelho questions about it.

This fundraiser will be a conference call, this coming Thursday, October 13th, at 3:00 PM Pacific time. You may RSVP by making a contribution to the campaign using this link:

https://www.hillaryclinton.com/finance/?raiser=35351

(The link itself won’t give any information about the conference call, but we’ll follow up within about 12 hours with our thanks and information). If you have questions about this fundraiser, please contact me at paul@AutismInsuranceOR.org, or my co-host Julie Kornack at JKornack@gmail.com.

Sincerely,

 

Paul Terdal

Posted in Call To Action, Events, Legal | Comments Off

Autism Health Insurance Reform: Action Alert: Ask CMS to Stop OHP from Denying Coverage of Autism Treatments

ACTION: Ask the Federal Government to Stop Oregon’s Medicaid plan from Denying Coverage of Autism Treatments

Three years ago the autism community persuaded the Oregon Health Plan, Oregon’s Medicaid program, to acknowledge that Applied Behavior Analysis (ABA) therapy is a safe, effective treatment for autism that should be covered. For a while, the Oregon Health Plan covered ABA, and for the first time ever, Medicaid kids in Oregon had access to this critically important care.

And then a few months ago the Coordinated Care Organizations (CCOs) started administering OHP benefits. Some CCOs have covered ABA therapy, but others have denied virtually all coverage for ABA.

The autism community told the CCOs and the Oregon Health Authority that refusing to cover this medically necessary care violated a critical component of Federal Medicaid statutes called “Early and Periodic Screening, Diagnostic and Treatment” (EPSDT). EPSDT makes health care for children a national priority, and specifically requires coverage of “all medically necessary diagnostic and treatment services … regardless of whether or not such services are otherwise covered under the state Medicaid plan for adults ages 21 and older.”

Unfortunately, the State of Oregon has asked the U.S. Center for Medicare & Medicaid Services (CMS) to exempt Oregon from EPSDT, to make it easier to restrict coverage for needy children with autism and other health conditions on Medicaid.

Oregon made this request as part of an application for permission to extend the Oregon Health Plan for another five years. We need you to comment on Oregon’s waiver request and tell CMS to hold Oregon to the EPSDT standard. You can do this here:

https://public.medicaid.gov/connect.ti/public.comments/answerQuestionnaire?qid=1887875

(I’ve included a sample statement at the bottom of this e-mail that you can use).

For the last 25 years, the Oregon Health Plan has used a unique method to control costs – a “prioritized list” of health services. The Oregon legislature provides funding to cover the highest ranking conditions and services, and services that are “below the line” are excluded regardless of medical necessity. The Health Evidence Review Commission (HERC) creates the list and prioritizes the services, deciding which treatments are provided and which are excluded even when medically necessary.

At the time this system was designed in the late 1980s, funding shortages kept many eligible people from accessing any health care at all, and this alternate form of rationing ensured that everyone received at least some care. Since then, however, national Medicaid funding has increased, but Oregon continues to use the prioritized list to ration care. Oregon’s new Medicaid waiver renewal application specifically seeks permission from CMS to restrict coverage of children to the same prioritized list as adults – making Oregon the only state in the country with the right to withhold medically necessary care from low income children on Medicaid.

Further, the Health Evidence Review Commission (HERC) which creates the “prioritized list” is dominated by representatives from the insurance industry and the same Coordinated Care Organizations that are currently refusing to cover autism. Although Oregon law, and the terms of the Federal waiver, clearly state that HERC shall have one (1) “insurance industry representative” and two (2) “health consumers” – along with ten medical professionals from various disciplines – in practice, several of the seats reserved for medical professionals have been given to insurance company and CCO executives. Worse, of the two “health consumers,” one is a CCO Board member and the other is a professional consultant who advises Medicaid agencies, CCOs, and insurers on health coverage. Neither is a bonafide consumer representative, such as a Medicaid recipient or consumer advocate. The result is that HERC is focused much more on saving money for CCOs than on consumer needs.

For children with autism, all of this has been very problematic. Here are some examples:

Visit limits on rehabilitative care, such as speech, occupational, and physical therapy:

The Oregon Insurance Division issued a bulletin in 2014 declaring such limits to be in violation of the Federal Mental Health Parity law, and has been directing commercial insurers to remove them from their plans. Nationally, CMS has also issued a bulletin specifically declaring that such limits violate both EPSDT and Mental Health Parity and must be removed from Medicaid plans.

When we brought this to OHP’s attention earlier this year, OHP and the Oregon Department of Justice replied that Oregon’s EPSDT waiver permitted it to impose visit limits on rehabilitative care – despite specific CMS regulations to the contrary. After substantial pressure from several attorneys, both locally and nationally from the Autism Speaks Legal Resource Center, the Oregon Department of Justice and HERC acknowledged that these visit limits violate Federal Mental Health Parity laws – but announced that they were deferring compliance until 2017 “because of the impact on CCOs.” HERC staff acknowledged publicly, in an open hearing, that if the state or a CCO were sued in court over denied coverage it would lose, but that the enforcement risk was considered low. Although I testified and urged HERC to consider the impact on health consumers of withholding lawfully mandated care, no such consideration was given.

Age and visit limits on Applied Behavior Analysis (ABA):

The Oregon Insurance Division and Oregon Department of Justice have both declared that age and visit limits on ABA therapy violate state and federal Mental Health Parity laws. In any other state, such limits would also violate EPSDT, for children through age 21. Until July, the Oregon Health Authority honored Mental Health Parity and provided ABA coverage on OHP without specific age or visit limits.

In July, however, the CCOs began administering ABA therapy, and some have been very rigid in imposing age and visit limits on ABA, without regard to medical necessity. Health Share in particular has refused essentially all new referrals for ABA therapy, and has begun terminating coverage for those existing patients who were already receiving care. Family Care has also published a policy that refuses coverage of ABA for anyone who is not dangerous, who hasn’t tried less intensive treatments to prove they won’t work, or for anyone with an intellectual disability – regardless of need.

The national EPSDT statute would ordinarily make it clear that Medicaid eligible children must be given access to medically necessary care. That is why we need to demand that CMS hold Oregon to the EPSDT law like every other state.

Behavioral health care for self-injurious behavior:

The prioritized list includes a specific line (line 442) to provide behavioral health care for self-injurious behavior. This was created by HERC in response to testimony from the mother of a teenage girl with very severe, life-threatening, self-injurious behavior related to autism. Unfortunately, HERC neglected to include any in-patient treatment codes on the list – it only included outpatient therapy. When the teenage girl needed inpatient psychiatric treatment, OHP refused to cover it, even though it was without question medically necessary, simply because it wasn’t on the list. (For more on this case, see: https://www.thelundreport.org/content/oregon-woman-assails-alarming-gaps-care-coordination-between-oha-and-other-state-agencies).

In any other state, the national EPSDT statute should have resolved that by the simple requirement that children on Medicaid must have access to any medically necessary care.

 

———

 

Oregon’s Medicaid waiver is now up for renewal – and the Federal Center for Medicare & Medicaid Services is accepting public comment through September 30, 2016, at the following link:

https://public.medicaid.gov/connect.ti/public.comments/answerQuestionnaire?qid=1887875

We are also reaching out to CMS to discuss this issue directly, but submitting your comments will really help raise their awareness of these critical issues.

I’ve provided a sample message below my signature – please feel free to customize it to describe how you have been impacted.

Please let me know if you have any questions or additional input on this, by replying to this e-mail.

 

Sincerely,

 

Paul Terdal

 

Sample message to CMS regarding the OHP Waiver Renewal Application:

Here’s a basic message that you can use to get started. If you have been personally impacted – either because you are on OHP and have had trouble accessing care for autism (or any other condition), or have patients or students who have had trouble accessing care, you can personalize this by adding a brief anecdote.

Comment Web Page:

To submit comments to the U.S. Center for Medicaid and CHIP Services on the Oregon Health Plan Extension, click on this link below, and enter your comments in the comment box; click “Finish” when done:

https://public.medicaid.gov/connect.ti/public.comments/answerQuestionnaire?qid=1887875

 

Sample Message:

From: (insert your name and address here)

To: U.S. Center for Medicaid and CHIP Services

Re: Oregon Health Plan Extension

 

Please do NOT approve the extension of the Oregon Health Plan until two critical issues are fixed – regarding the EPSDT Waiver, and consumer representation on the Health Evidence Review Commission (HERC).

EPSDT Waiver:

The EPSDT benefit was created by Congress to ensure that children enrolled in Medicaid receive “the right care at the right time in the right setting” by requiring coverage of “all medically necessary diagnostic and treatment services … regardless of whether or not such services are otherwise covered under the state Medicaid plan for adults ages 21 and older.”

The Oregon Health Plan includes a waiver from this Congressional requirement, permitting Oregon to restrict coverage to only those services on the “prioritized list.” While the original intent may have been to focus coverage on best practice treatment, in practice it has been used to ration care and cut costs by withholding medically necessary care from needy children.

CMS should require Oregon to ensure that its most vulnerable children receive the medically necessary care that Congress intended, without rationing, by making it clear that Oregon must fully comply with EPSDT.

 

Consumer Representation on the Health Evidence Review Commission:

The Health Evidence Review Commission (HERC) develops the prioritized list of healthcare services. According to the waiver application, HERC is supposed to include “two health consumers.”

In practice, qualified “health consumer” applicants for the HERC were rejected so that a CCO board member and an industry consultant could be seated on the Committee instead, and there are NO bonafide “health consumers” on HERC.

Consumer representation is critical; HERC regularly discusses ways to mitigate the financial impact of its decisions about the prioritized list on CCOs – without genuine consumer representation, there’s very little consideration of the impact on health consumers.

The HERC membership clause in Oregon’s section 1115(a) waiver should be clarified to specify that the “Health Consumers” must actually be bonafide consumer representatives 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.

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Autism Health Insurance Reform: Update – PEBB settlement, 2015 legislative results

Autism Health Insurance Reform: Update – PEBB settlement, 2015 legislative results

Dear readers, this is a somewhat overdue summary of ongoing success in Autism Health Insurance Reform in Oregon from 2015.

Contents:

  • PS v PEBB settlement – Oregon compensates public employees for discrimination and autism treatment
  • Latest AF v Providence decision – next steps on compensation
  • Legislative Update – SB696
  • Other 2015 legislation
  • Tips on coverage for autism treatment through Cover Oregon

PS v PEBB settlement – Oregon compensates public employees for discrimination and autism treatment

On December 8, 2015, the Marion County Circuit Court issued an Order granting preliminary approval of a Settlement Agreement in the class action lawsuit, P.S. v Oregon Public Employees Benefits Board (PEBB), filed 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 as a treatment for autism. The class includes any member of PEBB’s self-insured plans (the Providence Choice Plan and the Statewide Plan) who received ABA therapy to treat Autism Spectrum Disorder and incurred unreimbursed expenses.

This settlement follows numerous decisions and settlements in Oregon, Washington, and around the country directing health benefit plans to pay for coverage of ABA therapy as a treatment for autism – including bulletins issued by Oregon’s Insurance Division in November 2014.

In what may be the first of its kind in the nation, however, this settlement also includes $17,500 in compensation to resolve allegations that the State of Oregon violated the civil rights of P.S. and her family by denying coverage of ABA therapy solely because it was “related to Autism” – even though Oregon’s Mental Health Parity law has required coverage for treatment of autism since 2005. Providence Health Plans, acting as PEBB’s plan administrator, had issued denial letters 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.”

This settlement became inevitable after last year’s U.S. District Court decision in A.F. v Providence, which found that essentially identical conduct by Providence in its commercial group insurance policies violated both Oregon and Federal Mental Health Parity laws in a landmark decision on August 8, 2014.

Nevertheless, the Oregon Department of Justice continued to vigorously defend the conduct that both the court and Oregon’s own Insurance Division had declared to be illegal. Oregon granted Providence the right to make legal decisions on the state’s behalf, and appointed a Providence contract attorney as a Special Assistant Attorney General to represent the State in court. In 2014, we had submitted legislation to bring the PEBB plan under Oregon’s Mental Health Parity law – but it was blocked when PEBB assured the legislature that it was already in full compliance and that legislation was unnecessary. Once the litigation was initiated, however, PEBB successfully argued that it was exempt and couldn’t be held accountable under Oregon law – but wasn’t about to avoid liability under the Federal Mental Health Parity and Addiction Equity Act.

In this settlement agreement, the State of Oregon has agreed to reimburse class members for expenses they incurred to pay for ABA therapy to treat autism spectrum disorder between January 1, 2010 (the date that the Federal Mental Health Parity law took effect), and January 30, 2015. It is anticipated that all class members will be fully reimbursed, but if total claims exceed $400,000, payments will be prorated. However, if total claims are so large that class members would be reimbursed less than 60% of their actual expenses (e.g., if total claims exceed $666,667), then the settlement will automatically terminate barring an agreement to increase the limit to ensure sufficient compensation.

In reality, unfortunately, most PEBB members who needed ABA therapy were unable to access it because they couldn’t afford the cost out of pocket. Others who did obtain therapy received far less than they should have for financial reasons. There is unfortunately no reimbursement or compensation for this therapy that PEBB members should have been able to access but couldn’t. A recent U.S. Supreme Court decision has opened the door to this form of compensation under “ERISA” plans for private employers (as you will see below in the discussion on AF v Providence) – but the State of Oregon, as a governmental body, is exempt from ERISA and this compensation wasn’t available.

Similarly, while many state employees suffered the same discrimination as lead plaintiff “P.S.,” the civil rights statute that the state violated has very strict requirements in terms of the statute of limitations and procedures for filing a complaint, so it is unlikely that anyone other than P.S. will qualify for compensation.

Nevertheless, this is an important victory and helps reinforce the right for all of us to access the medically necessary care needed to address symptoms related to autism.

Latest AF v Providence decision – next steps on compensation

While the PS v PEBB case, above, covers State of Oregon public employees on the Providence-administered health plans, the AF v Providence case covers individuals with fully insured group health plans issued by Providence through private employers. As you may recall, on August 8, 2014, U.S. District Court issued a landmark decision that Providence had violated Oregon and Federal law by denying coverage of ABA therapy as a treatment for autism, on the same grounds outlined above for PEBB members (http://autisminsuranceor.org/2014/08/autism-health-insurance-reform-judge-declares-providence-violated-state-and-federal-law-in-denying-autism-treatment/). While that decision was critically important – and led the Insurance Division to implement a bulletin requiring all other insurers in Oregon to provide comprehensive coverage of medically necessary care for autism and other mental health conditions – it was really just a first step in a long litigation process.

On January 7, 2016, U.S. District Court took the next step, issuing a decision awarding reimbursement for money actually spent on ABA services, and denying a Providence motion to dismiss a claim for compensation for the value of ABA services that plaintiffs should have received but couldn’t because they were improperly denied coverage.

Unlike the PS v PEBB settlement – which awarded compensation to any public employee in the Providence administered PEBB plan who paid for ABA therapy, whether they ever requested reimbursement or not – the AF v Providence award applies only to those class members who (a) formally requested coverage of ABA therapy, but were unlawfully denied; (b) went ahead and obtained ABA therapy anyway and paid for it themselves out of pocket; and (c) submitted reimbursement claims to Providence within one year of receiving the care. Out of the entire AF v Providence class, there were only four covered individuals who submitted claims meeting these stringent criteria. The total amount awarded for all four plaintiffs combined was only about $19,140.

That’s right – after many hundreds of thousands of dollars of litigation expenses, and years of effort by Providence to deny coverage, the total amount of money actually awarded (so far) is under $20,000. The biggest reason for this is that ABA therapy is so expensive that individuals who couldn’t get coverage simply couldn’t afford treatment and had to go without. The process to qualify was also elaborate, and many patients were simply never aware of their rights or didn’t go through the procedures to make formal requests and pursue their appeals.

Historically, the understanding was that ERISA – the Federal law governing private-employer based health benefit plans – strictly limited damage awards to reimbursement for money they actually spent; if a plaintiff had to go without medical care because of an unlawful denial of coverage there was no way to recover the value of the lost care. In its defense, Providence cited a 1998 decision by the 9th Circuit court of Appeals in Bast v Prudential in which the patient – Rhonda Bast – died when Prudential improperly denied coverage of a bone marrow transplant. Since the Bast’s couldn’t afford the treatment without insurance, there was nothing to reimburse, and Prudential had no liability –even though its erroneous decision had led to Ms. Bast’s death.

Very critically – the AF v Providence court determined that a more recent decision by the U.S. Supreme Court in CIGNA v Amara had clarified that consumers really can recover “make-whole relief” when their insurer violates their fiduciary duty and improperly denies coverage. This relief can be equal to the amount of money that the insurer should have spent on coverage – essentially, “disgorging” the money that the insurer has improperly retained. The decision at this stage simply agrees to allow the plaintiffs to proceed and make their request – any decision on actual compensation for this “make-whole relief” will be in the future.

That said, this decision – which has been supported by developments in several other cases around the country – is really a game changer in nearly all health insurance lawsuits for all conditions, not just autism cases in Oregon.

Bear in mind also that even this just requires the insurer to pay the amount of money that it should have paid all along – there is still no possibility for consequential damages (for the impact that the illegal denial had on the consumer) or punitive damages. If an insurer were to intentionally violate the law, and withhold coverage of legally required care leading to a patient’s death, the insurer still wouldn’t be liable for the wrongful death – but at least they could have to pay the heirs for the value of the improperly denied healthcare. This remains grossly unjust, but only the legislature can fix that. In Oregon, the Unlawful Trade Practices Act (UTPA) explicitly exempts the insurance industry from liability for unlawful acts – and every attempt to fix that has been blocked by legislators in both parties.

Under the 2013 SB414, which we wrote, Oregon’s Insurance Commissioner can seek restitution for actual damages resulting from illegal activity – such as compensating a consumer for wrongful death – but more than two years after it went into effect, this authority has never been used.

Legislative Update – SB696

Last summer, Oregon’s legislature unanimously passed SB696, which updates the rules for licensing and registration of Applied Behavior Analysis (ABA) providers in Oregon.

The original Autism Health Insurance Reform bill – the 2013 SB365 – established a framework for insurer approval and management of treatment for autism, and created the Behavior Analysis Regulatory Board (BARB) within the Health Licensing Office to license the previously unlicensed “Board Certified Behavior Analysts” (BCBA) with certificates from the BACB, Inc., a nationally respected private non-profit organization; and “register” licensed health care professionals – such as psychologists, speech-language pathologists, and occupational therapists – who were providing ABA therapy within their existing scope of practice and licensure. It also “registered” behavior analysis interventionists – paraprofessionals – who could operate under the supervision of any licensed behavior analyst or other licensed provider registered by the board.

In implementation of licensure and regulation of ABA providers under the BARB, several critical issues arose, which SB696 has addressed:

Conflicting authority with other Oregon boards:

The BARB’s authority to “register” licensed health care professionals like psychologists, SLPs and OTs conflicted with that of the Boards which licensed them. When the BARB developed its rules for registration, there was a breakdown in communication and collaboration with the other Boards and professional associations, leading them to ask the legislature to intervene.

SB696 drops the requirement that other licensed health care professionals cross-register with the BARB, and reiterates that they may only practice ABA within the scope of their licenses. This is consistent with model ABA licensure legislation developed by the BACB, Inc.

Unclear scope for the BARB:

Nothing in SB365 actually stated that the BARB’s responsibility was to regulate Applied Behavior Analysis, and at least one health plan misinterpreted the Board’s authority as regulating ALL forms of treatment for autism. The result was that these plans inserted contractual language preventing any health care provider from being reimbursed for ANY services to treat autism – even things like medication management completely unrelated to ABA – unless they were licensed or registered by the BARB.

SB696 specifically authorizes BARB’s licensees to practice ABA therapy in Oregon, and to be reimbursed for it by insurance.

Confusing legal structure:

The Behavior Analysis Regulatory Board didn’t fit well within the existing Health Licensing Office framework for other boards, adding to administrative overhead and confusion. Key, desirable legislative features – like fingerprinting as part of a background check – were inadvertently left out by creating an unnecessarily unique structure.

SB696 was written with close support from the staff at the Health Licensing Office to streamline operations and improve efficiency. It also specifically requires the same national background check required of other health care professions.

Need to grandfather existing, qualified ABA providers:

There are a few highly respected and capable ABA providers who have been treating patients with autism in Oregon for many years, but who don’t have BCBAs and aren’t licensed health care professionals – because they were never previously required.

One example is Dr. Kathi Calouri of PACE Place – who was an early pioneer of ABA therapy in Oregon. As a graduate student at UCLA in the 1980s, Dr. Calouri was the Clinic Supervisor for Dr. Lovaas’ ABA program – and worked with him on the original research which demonstrated the effectiveness of ABA therapy as a treatment for autism. After she returned home to Oregon, she opened an ABA clinic in 1992 and has been helping patients ever since. As a Developmental Psychologist, Dr. Calouri doesn’t have a psychology license in Oregon, and she never received a “BCBA” certificate – since it wasn’t created until long after she began her practice, and until now was never required.

SB696 gives experienced ABA providers like Dr. Calouri the chance to be “grandfathered” – to continue practicing ABA for several years (until June, 2018), while the BARB establishes a permanent set of grandfathering requirements and procedures.

 

SB696 was supported by the Autism Society of Oregon, Oregon Pediatric Society, Oregon Psychological Association, Oregon Speech-Language Hearing Association, and many individual providers and consumers, including myself. It passed unanimously, and took effect on November 1st.

Other 2015 Legislation

There were several other important bills in 2015….

SB777: ABLE

Oregon’s SB777 implements the Federal ABLE act, which allows states to create savings accounts that can be used to pay for disability-related expenses. Before ABLE, individuals on means-tested programs like SSI and Medicaid limited individuals with disabilities to about $2,000 in savings – if they saved more than that, they would lose their benefits. This essentially forced the disabled into poverty, and wouldn’t even allow them to save money to pay for their own disability-related expenses. ABLE accounts allow individuals to save money for these disability-related expenses without losing access to SSI and Medicaid.

SB777 passed, and took effect on October 5, 2015.

Here’s a press release with more information: https://www.autismspeaks.org/advocacy/advocacy-news/oregon-31st-state-enact-able-legislation

HB2597: Truancy Evaluation for Disability

Oregon law imposes heavy civil penalties on families for truancy, if a child has too many absences from school.

Under HB2597, if a family is being cited for truancy, the parents can 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. This will help solve disability-related truancy problems by addressing the root cause – a need for special education services – and also prevent districts from using truancy proceedings to retaliate against parents of disabled children.

HB2597 passed, and took effect on July 1, 2015.

HB2673: Special Education Disclosure and Timely Evaluation

HB2673 would have:

  • Required school districts to provide parents with an annual summary of the special education and related services provided to students in the previous year
  • Prohibited 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)
  • Required 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

HB2673 was scheduled for a vote, but was killed at the last minute due to objections from school district lobbyists.

I have had some candid discussions with special education administrators about the requirement to provide parents with an annual summary of special education services – and they have been very direct about their opposition: I was told that if parents knew what kinds of services other students in the district were getting, that “we would have to hire another attorney” to fend off requests.

This is of course not an appropriate or reasonable objection, but it is literally what I was told by a district administrator who worked to oppose HB2673.

I am interested in bringing it back in 2017, but in the meantime I’m working to use Oregon’s Public Records laws to get some of the information – both so I can develop and share a draft report, and to demonstrate to the Districts that the information is already available and legally can’t be hidden anyway.

SB844: Medical Marijuana

SB844 revised Oregon’s laws on Medical Marijuana. At the last minute, an amendment was inserted to expand the scope of conditions eligible for medical marijuana card to include a “pervasive neurological condition.” This was intended by the staff to mean “pervasive developmental disorder” (e.g., autism), and I know of at least one individual with autism who has successfully used this to obtain a medical marijuana card.

I was not involved in this, and am not personally familiar with the medical evidence or clinical indications for use of marijuana to treat symptoms associated with autism – but it is now possible in Oregon. Oregon does appear to be the first in the country to adopt medical marijuana for autism – Michigan considered it last summer, but dropped it at the last minute.

SB844 passed, and took effect on August 12, 2015.

HB2796: Music Therapy Licensing Board

HB2796 established a licensing board for music therapists. While it doesn’t specifically require insurance plans to cover music therapy, the license makes insurance reimbursement possible. Oregon’s Mental Health Parity law requires coverage of medically necessary care for autism, so as long as the patient and provider can demonstrate that music therapy is medically necessary it should be covered.

HB2796 passed, and became operative on January 1, 2016.

SB488: Hand Dryer Noise Control

SB488 would have established uniform standards for hand dryers installed in public restrooms, including standards that impose limit on decibel level of operating hand dryer.

This was introduced by Sen. Edwards, the father of a boy with autism, because of the sensory challenges that many individuals with autism experience from the sudden, loud noise caused by some of these hand dryers. The purpose was to set noise level standards, and require installation of quieter dryers that wouldn’t be as stressful.

SB488 passed the Senate, but died in the House.

Tips on coverage for autism treatment through Cover Oregon

Ever since the Insurance Division published bulletins INS 2014-1 and 2014-2 in November, 2014, all commercial insurance plans in Oregon should be covering comprehensive treatment for autism, including ABA therapy.

In addition, the Oregon Health Plan – Medicaid – also covers ABA therapy along with rehabilitative care (speech, occupational therapy, and physical therapy). That said, there are still some self-insured plans that refuse to cover autism treatment.

If you are in need of insurance coverage for autism you can get it through Health Exchange: http://www.oregonhealthcare.gov/

Even if your family already has insurance that excludes autism or ABA therapy, it is possible to purchase a child only plan, covering only the child with autism. A child only plan will cost about $150 to $190 per month.

Here are things to look for when selecting a plan:

  • Basic insurance features – look for a plan with a low deductible, low out of pocket maximum, and low co-pays. In general, this would be a “Gold” or “Platinum” plan.
  • A network that will cover your providers. You should talk to your providers to find what insurance they work with. This is particularly critical for ABA providers, since Oregon’s insurers are beginning to develop closed networks.

For commercial insurance, the deadline is January 31, 2016 – if you don’t buy a plan by then, you’ll have to wait until next year. You can apply through this link: https://www.healthcare.gov/

For the Oregon Health Plan (Medicaid), you can apply at any time. Follow this link for information: http://www.oregonhealthcare.gov/apply-for-medicaid-now.html

 

———

Sincerely,

 

Paul Terdal

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Autism Health Insurance Reform: Action Alert — support Special Ed bills HB2673 and HB2597

Contents:

  • 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

 

———

Sincerely,

 

Paul Terdal

 

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.

To:

Members of the House Education committee:

rep.gregbarreto@state.or.us

Rep.MargaretDoherty@state.or.us

Rep.LewFrederick@state.or.us

rep.jodihack@state.or.us

rep.susanmclain@state.or.us

rep.carlapiluso@state.or.us

Rep.JeffReardon@state.or.us

Rep.SherrieSprenger@state.or.us

rep.carlwilson@state.or.us

Subject:

Please Support HB2673 and HB2597 – Special Education bills – with the annual summary of services

Body:

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. ***]

Thank you,

 

Your Name

123 SW Main

Hometown, OR 97201

 

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Autism Health Insurance Reform: Update on autism health insurance reform in Oregon

Contents:

  • 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.

Key points:

  • 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:

http://www.oregon.gov/oha/healthplan/Announcements/Oregon%20Health%20Plan%20covers%20Applied%20Behavior%20Analysis%20services%20effective%20January%201,%202015.pdf

For information on how to get ABA coverage in the Oregon Health Plan, see:

http://www.oregon.gov/oha/healthplan/tools/Steps%20to%20ABA%20Treatment%20-%20For%20OHP%20families%20and%20clients.pdf

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.

———

Sincerely,

 

Paul Terdal

 

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.

To:

Members of the House Education committee:

rep.gregbarreto@state.or.us

Rep.MargaretDoherty@state.or.us

Rep.LewFrederick@state.or.us

rep.jodihack@state.or.us

rep.susanmclain@state.or.us

rep.carlapiluso@state.or.us

Rep.JeffReardon@state.or.us

Rep.SherrieSprenger@state.or.us

rep.carlwilson@state.or.us

 

Your own State Representative. You can find their contact information at: http://www.leg.state.or.us/findlegsltr/

Subject:

Please Support HB2673 and HB2597 – Special Education bills

Body:

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. ***]

Thank you,

 

Your Name

123 SW Main

Hometown, OR 97201

 

Posted in Call To Action, Legislative | Comments Off

Autism Health Insurance Reform: UPDATE: Washington, Oregon Insurance Division enforcement of autism health insurance laws

Contents:

  • 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.

You can find a press release on the Regence of Washington settlement here. The settlement agreement itself is here.

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.

He wrote:

“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:

victor.a.garcia@state.or.us; jeannette.holman@state.or.us

Here’s a sample message:

Subject: Public Comment on proposed bulletins 2014-1 (MHP) and 2014-2 (ABA therapy)

Body:

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.

Sincerely,

 

[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.

———

Sincerely,

 

Paul Terdal

 

Posted in Call To Action, Legal | Comments Off