Autism Insurance for Oregon

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

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

 

Autism Health Insurance Reform: ACTION: Support the Insurance Division’s enforcement of autism health insurance laws

Contents:

  • Update on Insurance Division’s bulletin on enforcement of autism health insurance laws
  • ACTION: Tell the Insurance Division you support their bulletins with the Consumer Advocate Organizations’ feedback
  • Request coverage and reimbursement — now

Update on Insurance Division’s bulletin on enforcement of autism health insurance laws

As I described in my last message, the Oregon Insurance Division is working on two bulletins directing all Oregon insurers to comply with state and federal mental health parity laws – and begin providing coverage of Applied Behavior Analysis (ABA) therapy immediately:

“Recent court decisions have brought clarity that coverage for ABA therapy should be required of all insurers,” said Insurance Commissioner Laura Cali….

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.

This is critically important to all of us – we can sue insurers all we want, and beat them every time in court (we’ve never lost), but without consistent enforcement by the Insurance Division the insurers can simply shrug aside the court orders by making token changes to their contracts and carrying on with a new, equally improper scheme to deny lawfully mandated coverage. In the last few weeks since the AF v Providence decision declared Providence’s exclusion of medically necessary ABA therapy for autism to be in violation of State and Federal law, and the Insurance Commissioner’s announcement (above) that “insurers cannot exclude coverage of ABA therapy for autism from their policies”, insurers have continued to issue improper denials.

The State of Oregon has even issued a new PEBB member handbook for 2015 that includes the exact same “developmental disabilities exclusion” language that U.S. District Court found to violate State and Federal law, and incorporates limitations on ABA therapy that violate the Federal Mental Health Parity and Addiction Equity Act.

Insurance Division action is essential to put the last nails in the coffin of this sort of misconduct.

The Insurance Division has released their draft bulletins for public comment, and they have done a great job (you can find them here). Essentially, they have studied all the improper ways that insurers in Oregon and other states have used to unlawfully deny required coverage, and spelled out in plain language that they are forbidden. This provides a clear warning to insurers – but even more importantly, it provides guidance to the Insurance Division’s regulators about when they are authorized take enforcement action against an insurer.

As you might imagine, the Insurance Industry is not at all happy. They have urged the Insurance Division to abandon attempts to enforce the law, and leave the matter to the courts – where each and every lawsuit on behalf of consumers requires an investment of hundreds of thousands of dollars with minimal financial return. This is especially ironic, given the Insurers’ emphatic pleas to the legislature to preserve their unique exemption from Oregon’s Unlawful Trade Practices Act – the antifraud law – on grounds that the Insurance Division has strong authority to regulate them and that these matters are best resolved by regulators and not judges. Since insurers are exempt from that antifraud law, they face very few consequences in court even in cases of intentional misconduct.

We need to respond to the Insurance Industry’s intense political pressure by writing in support of the Insurance Division’s bulletins.

Over the past few weeks, we have been working with representatives of several autism and mental health advocacy organizations – including Autism Speaks, Autism Society of Oregon, NAMI, Basic Rights Oregon, the Oregon Association for Behavior Analysis, the Center for Autism and Related Disorders, and the Lovaas Institute – to review and provide feedback on the Insurance Division’s bulletins. We think the first drafts are very good, and have provided feedback to clarify and correct a few key issues.

ACTION: Tell the Insurance Division you support their bulletins with the Consumer Advocate Organizations’ feedback

The Insurance Division is accepting public comment on the bulletins through Wednesday, October 8th. Please write to the Insurance Division to express your support for the bulletins – with the revisions proposed by the advocacy community (see link above).

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), and encourage you to adopt the revisions proposed by the Consumer Advocate Organizations.

[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 wrote this in the last e-mail, but it bears repeating:   If you have ever paid for ABA therapy, you may possibly be able to get reimbursed for it. 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 (at least since 2008), 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

Autism Health Insurance Reform: Meet autism champion Sen. Bates; learn how to get reimbursed for autism care NOW

Contents:

  • Reception for Sen. Bates – autism health insurance reform champion – Wednesday 9/24 in PDX
  • LOTS of progress since August – the world has changed
  • Request coverage and reimbursement — now
  • Summary of press coverage

Reception for Sen. Bates – autism health insurance reform champion – Wednesday 9/24 in PDX

Next Wednesday, September 24th, I will be hosting a reception for Senator Dr. Alan Bates – the lead champion for Autism Health Insurance Reform in Oregon’s legislature – at my home in Northwest Portland.

Senator Dr. Alan Bates — a physician from Medford, Oregon — was the driving force behind SB365, and has been a leader in health care policy in Oregon for more than 20 years. I have personally found him to be a voice of wisdom and reason, and a true advocate for patients and providers in a legislature heavily influenced by the insurance industry. Sen. Bates was able to push our legislation through, driving us past roadblocks that had stymied us in the past.

We invite you to come to meet him, and talk about issues affecting the autism community.

We will also be providing information about recent developments in autism health insurance reform (see below for a summary) – including ways you can start getting coverage right now – and how to request reimbursement for money spent on treatment in the past.

Reception for Sen. Alan Bates:

  • Wednesday, September 24th
  • 7:00 PM to 8:30 PM
  • Home of Paul Terdal in NW Portland
  • Reply to this e-mail for directions and to RSVP

Sen. Bates is also facing the toughest race for reelection of any sitting member of the Senate; he is in a swing district, and in his last election, he won by fewer than 300 votes. He needs our help – so that he can continue helping us in the Oregon legislature. I also encourage you to contribute to his reelection campaign in any amount you can – whether that’s $5, $50, or more. Contributions to his campaign qualify for Oregon’s political contributions tax credit of $50 / person or $100 / married couple – so if you haven’t used your tax credit yet this year, your first $50 contribution may be effectively free. If you can come to our reception, you can bring a contribution in person if you wish; you can also donate directly to his campaign – at http://www.alanbates.net/

LOTS of progress since August – the world has changed

A month ago, I wrote to tell you about our success in “AF v Providence” – in which U.S. District Court found that Providence had violated state and federal law in refusing to cover applied behavior analysis (ABA) therapy as a treatment for autism. The judge ruled that Oregon’s mental health parity law in particular required coverage of medically necessary care for mental or nervous conditions – including autism—and that Providence was violating that law by denying coverage whether medically necessary or not. My summary is posted here: http://autisminsuranceor.org/updates/

Shortly after I wrote to you, the news media picked up the story – and both the Willamette Week and the Oregonian ran front-page stories about the case. Both were highly critical of the Insurance Division for not taking stronger action to protect us from unfair and unlawful behavior by the insurance industry. Oregon Public Broadcasting also covered the story heavily.

While I agree with the press that the Insurance Division should really have taken stronger action sooner, they really wanted to help but were under intensive pressure from the Insurance Industry and the Governor’s office NOT to help us. In June of 2013, after we presented our case that Oregon law already required of ABA therapy, several senior Insurance Division officials – including Insurance Commissioner Lou Savage and two senior members of his leadership team – told us that they agreed and were prepared to announce that we were correct.

This was a critical time for our Autism Health Insurance Reform legislation, and the question of whether the law already required ABA coverage was of central significance – under the Affordable Care Act (“Obamacare”), if the state had passed a “new” requirement for coverage, the state would be required to reimburse insurance companies for the cost of coverage – potentially tens of millions of dollars per year. If, as we argued it, was simply a clarification of an existing law, the taxpayers would not be required to pay subsidies to the Insurance Industry.

On June 14, 2013, after learning from us that the Insurance Division had decided to support our position, Governor Kitzhaber’s staff called the Insurance Division and directed them NOT support us. The Governor’s advisors told us a few days later that they feared a “$40 million lawsuit” from the Insurance Industry if they declared that existing law already required coverage of autism. Instead, the Kitzhaber administration wanted the legislature to include massive subsidies to insurance companies in its budget to pay for the coverage we have already been legally entitled to. As a result, SB365 was passed – but the implementation date was postponed to 2016 to allow time for the courts to clarify the law.

So, if you’ve been having trouble getting insurance reimbursement over the last year – it’s not because the Insurance Division didn’t want to help, it’s because they were pressured not to.

In discussions with the Insurance Division over the last year, we agreed to wait until the AF v Providence case was resolved and provided more clarity on the law. I was literally walking into a meeting with Insurance Commissioner Laura Cali and her leadership team when the judge’s decision came back, and I can assure you that they were very happy with the decision, and the freedom it gave them to move forward with their mission of consumer protection.

On Thursday, August 14th, Commissioner Cali announced that she would be drafting a “bulletin” directing all insurers to provide coverage of ABA therapy immediately:

“Recent court decisions have brought clarity that coverage for ABA therapy should be required of all insurers,” said Insurance Commissioner Laura Cali….

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.

(The full press release is here: http://www.oregon.gov/DCBS/insurance/news/Pages/2014/aug142014.aspx)

There are actually two bulletins – a bulletin on ABA therapy, and a more general bulletin on mental health parity. (Our work has now in effect moved beyond autism — we’re revolutionizing ALL mental health coverage in the State of Oregon). The first draft of the bulletin has been released for public comment, and can be found here: http://www.oregon.gov/DCBS/insurance/legal/bulletins/Pages/proposed-bulletin-review.aspx

If you have questions or comments about the bulletin, please send me an e-mail. There will be a public hearing on October 3, as listed on the Insurance Division’s web page at the link above. I’m working with representatives of leading mental health and disability advocacy organizations to coordinate a review and provide feedback, and we’ll meet with the Insurance Division later this month.

In the wake of this legal decision, Providence has agreed to provide ABA coverage for its’ own employees, as has the State of Oregon on its PEBB plan.

Although it’s unrelated to this lawsuit, the Oregon Health Plan has also agreed to provide ABA coverage starting on January 1, 2015 – I’ll write more about OHP later.

Request coverage and reimbursement — now

It’s now pretty clear that every group insurance plan in the state should have been providing ABA coverage since Oregon’s Mental Health Parity law took effect in 2008.

If you have ever paid for ABA therapy, you may possibly be able to get reimbursed for it. Certainly, if you want it now, you should be able to get coverage immediately.

Here is what I suggest:

  • 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 (at least since 2008), 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.

Summary of press coverage

Here are some of the recent news stories about our work on autism health insurance reform:

Willamette Week:

Willamette Week did a particularly thorough job, and actually got started a few days before the judge issued his ruling. I really encourage you to read these and pass them along:

KOIN TV:

Great video interview on KOIN news.

Oregonian:

The Oregonian ran their coverage on the top of page 1.

Oregon Public Broadcasting:

OPB interviewed me several times, and also Insurance Commissioner Laura Cali.

Lund Report:

Bend Bulletin:

———

Sincerely,

 

Paul Terdal

 

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

Autism Health Insurance Reform: Judge declares Providence violated state and federal law in denying autism treatment

Contents:

  • U.S. District Court finds Providence has violated Oregon and Federal Law
  • State of Oregon renounces Mental Health Parity for Public Employees
  • Action Alert:  ask your legislators to tell Governor Kitzhaber to comply with Mental Health Parity – and stop discriminating against individuals with autism

U.S. District Court finds Providence has violated Oregon and Federal Law

On Friday August 8, U.S. District Court Judge Michael Simon issued his opinion and order in AF v Providence – a class action lawsuit – and declared that Providence had violated both Oregon and Federal law in its’ denials of Applied Behavior Analysis (ABA) therapy as a treatment for autism.  You can find a copy of his opinion here.

Willamette Week broke the story with an article here.

Providence had been using a “developmental disabilities” exclusion to deny coverage of ABA therapy; its’ denial letters typically say:

“Under the language of the Oregon Group Member Handbook … mental health 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” …. Because ABA services are mental health services related to autism spectrum disorder, they are therefore not benefits covered under the plan.

(emphasis added)

Judge Simon concluded that this practice violated Oregon’s Mental Health Parity Act (ORS 743A.168), Oregon’s Children with Pervasive Developmental Disabilities Act (ORS 743A.190); and the Federal Wellstone-Domenici Mental Health Parity and Addiction Equity Act.

The decision is a class action applying to all of Providence’s fully-insured commercial group plans, but the conclusions should apply to many of Providence’s self-insured plans, including PEBB, and to some other insurers excluding ABA therapy.  Since Providence has amended its’ contract with its’ own employees to completely exclude all coverage for autism (which it can do, since it’s exempt from Oregon’s insurance code), this would not help Providence employees.

Oregon’s Mental Health Parity Act (ORS 743A.168)

Judge Simon concluded that Oregon’s Mental Health Parity Act (ORS 743A.168) “requires insurance companies to cover medically necessary services for covered mental health conditions” and that “…autism is a ‘mental and nervous condition’ under the Oregon Mental Health Parity Act.

This basic conclusion – that Oregon law “requires insurance companies to cover medically necessary services for covered mental health conditions” – was actually in contention, despite a very clear statute and decades of legislative history and enforcement.  Providence – and some government officials (like, say, Governor Kitzhaber’s senior health policy advisors – see below) – had argued that the law required the insurer to cover the conditions, but didn’t actually require coverage of services that were medically necessary.  Judge Simon declared that interpretation to be “absurd”:

“The Court finds the statute’s meaning to be clear after considering the text and context of the law. The Court notes, however, that if it were to proceed to … consider maxims of statutory interpretation, the maxim that statutes should be interpreted to avoid an absurd result would be persuasive on this point. … The Court would interpret § 743A.168 to avoid the absurd result that insurance companies could decide not to cover medically necessary services for covered mental health conditions (thus obliterating parity) and still be in technical compliance with the Mental Health Parity Act.”

(emphasis added)

Although the question of whether or not ABA therapy was an evidence-based treatment didn’t really figure into the suit, Judge Simon noted that:

“ABA is a widely accepted therapy that is ‘firmly supported by decades of research and application and is a well-established treatment modality of autism and other [pervasive developmental disorders].’” (citing McHenry v PacificSource)

And observed that:

“Providence cannot provide any examples of a medical condition where an exclusion was used to deny coverage of the primary and widely-respected medically necessary treatment for that medical condition.”

Judge Simon concluded his review of Oregon’s Mental Health Parity Act by declaring:

“Thus, looking to the text and context of § 743A.168 as well as the persuasive case law, the Court finds that Providence cannot simultaneously purport to cover autism and yet deny coverage for medically necessary ABA therapy through its Developmental Disability Exclusion consistent with the Oregon Mental Health Parity Act.”

(emphasis added)

Some other Oregon insurers and plans also have explicit exclusions for ABA therapy, including United Health Care and the OHSU Employee Benefit Plan.  This decision would appear to declare those exclusions to be illegal, as we have been arguing for many years.

Oregon’s Children with Pervasive Developmental Disorders Act (ORS 743A.190)

As Judge Simon wrote,

“In 2007, the Oregon Legislature passed House Bill 2918, which requires health benefit plans to cover treatment of pervasive developmental disorders for children.”

The statute says:

743A.190 (1) A health benefit plan, as defined in ORS 743.730, must cover for a child enrolled in the plan who is under 18 years of age and who has been diagnosed with a pervasive developmental disorder all medical services, including rehabilitation services, that are medically necessary and are otherwise covered under the plan.

Judge Simon concluded “that ABA therapy is a medical service” for the purposes of this statute:

“Based on the text and context of the statute—including the statutory definition of ‘rehabilitation services’—the Court agrees that ABA therapy fits within the ordinary definition of medical services.”

Although his decision ultimately didn’t rest on this, this conclusion is very important, for two reasons:

First, some insurers in Oregon – especially Moda – continue to deny coverage of ABA therapy on grounds that it isn’t a “medical service” but is instead an “educational service.”  As a result, the insurers argue that it can be automatically denied for coverage.  This very clear ruling, based on a globally applicable law rather than the language of a specific insurance contract, and which follows similar rulings in other courts across the country, should put an end to that practice.

Second, insurers have argued in other situations that mental health services (like ABA) weren’t medical services and were therefore outside the scope of 743A.190.  There is, however, no definition of “medical service” anywhere in Oregon law. This would appear to confirm that “mental health services” are a subcategory within “medical service” rather than a separate category.

Judge Simon concluded that:

“The text, context, and legislative history thus make it clear that an insurer cannot provide coverage for a service for one child and deny coverage for the same service for another child solely because the second child suffers from a developmental disability. The Developmental Disability Exclusion, however, would allow just that. …. On its face, the Developmental Disability Exclusion violates Or. Rev. Stat. § 743A.190.”

Federal Mental Health Parity and Addiction Equity Act:

Unlike Oregon’s Mental Health Parity Act, which clearly does require insurers to cover specific mental health conditions, the Federal law allows an insurer to pick and choose which mental health conditions to cover – but then requires any treatment limitations for covered conditions to be in parity with medical / surgical conditions.

Judge Simon determined that:

“… the Developmental Disability Exemption … is a ‘treatment limitation’ within the meaning of the Federal Parity Act.”

Since Providence applies the Developmental Disability Exclusion only to mental health conditions, Judge Simon concluded:

“…under the plain text of the statute, Providence’s Developmental Disability Exclusion is prohibited.”

Discussion:

Having found that Providence was in violation of ORS 743A.168, ORS 743A.190, and Federal Mental Health Parity, Judge Simon granted the plaintiff’s motion to declare the Developmental Disabilities exclusion illegal.

It is important to note that Providence very literally brought this suit upon itself.  In a filing on 11/1/2013, Providence explained to Judge Simon that it had intentionally structured its’ autism denials so as to provoke litigation by consumers out of frustration with decisions by physicians in Independent Review Organizations (IRO) appointed by the Insurance Division that consistently overturned Providence’ position that ABA was “experimental / investigational.”  Providence wrote:

“It had become apparent, therefore, that access to a decision by a judge (rather than by physicians) on the federal ERISA issues of law presented by these cases was going to require one of three things: (a) resting a final grievance decision solely on grounds not authorized for IRO review under Oregon’s statute; (b) waiting until a member elected to sue in federal court rather than appeal to an IRO physician; or (c) finding an IRO reviewer that would agree with Providence’s reading of the clinical literature and waiting for the member to appeal from that decision. Of those choices, only (a) was within Providence’s control. In short, Providence was effectively being denied the opportunity for federal judicial review under ERISA of the soundness of its conclusion that ABA services are “experimental/investigational,” presumably until such time as either (b) or (c) occurred. Providence therefore decided, for a time, to implement strategy (a), in order to attempt to resolve what it could before a judge rather than a physician.

And:

“… Providence has done what it can to place these issues before this Court by relying on the exclusions other than that relating to services that are “experimental / investigational.””

(emphasis added)

Having intentionally provoked this case to get the “opportunity for federal judicial review … of the soundness of its conclusion that ABA services are ‘experimental/investigational,’” “before a judge rather than a physician”, the case took an exceptionally ironic turn at its’ midpoint last January, when Providence unilaterally announced that it had concluded on its’ own that ABA really was a well-proven technique that should be covered for at least some patients, and would immediately begin providing ABA therapy on its’ fully insured plans for patients who meet the SB365 criteria – those who begin treatment prior to age 8 and seek no more than 25 hours per week – even though SB365 won’t take effect until 2016.

As the Judge explained:

In response to the passage of Oregon Senate Bill 365, Providence decided voluntarily to implement the coverage sooner than required. The parties agree that because the issue in this case is whether the Developmental Disability Exclusion is lawful and because plan members often seek coverage for ABA therapy for more than 25 hours per week and for children over age eight, Providence’s decision to implement Oregon Senate Bill 365 early does not render moot the issues raised in this lawsuit.

(emphasis added)

This makes the decision is critical for several reasons.

First, the conclusion that “Providence cannot simultaneously purport to cover autism and yet deny coverage for medically necessary ABA therapy … consistent with the Oregon Mental Health Parity Act” – which was passed way back in 2005 – confirms what we have been saying all along: SB365 wasn’t a “new” mandate, it was a clarification of an existing mandate.  Under the Affordable Care Act (“Obamacare”), if SB365 had been a “new” mandate, the State would have been required to pay subsidies to insurance companies for providing ABA therapy, potentially totaling tens of millions of dollars per year – which would likely have forced the legislature to scale it back in 2015 before it ever took effect.  The ruling essentially saves SB365 from repeal.

Second, it also confirms that the putative “limits” in SB365 – limiting ABA therapy to patients who begin treatment before age 9 or who seek more than 25 hours per week – are moot, since Oregon’s Mental Health Parity Act continues to apply in such cases.  We made this argument to the insurers and legislators during the drafting of SB365, but the insurers insisted on including the language anyway.  (It’s worth noting that in oral argument, Providence acknowledged that it considered the putative age limit in SB365 to be in violation of Federal law and didn’t intend to enforce its’ age restriction).

This decision was reached after an enormous amount of effort by advocates, individual Providence consumers, the attorneys for both the plaintiffs (huge thanks to everyone at Stoll Berne and Megan Glor Associates!!!) and for Providence, and by Judge Simon.  The case file is at around 5,000 pages of documentation.  Judge Simon spent more than 2 months deliberating, researching, and writing after the close of oral arguments in May before issuing this decision – an unusually long amount of time, illustrating his thoroughness and desire to get this right.

We’ve been making the exact same arguments that Judge Simon has made for years – and it is absolutely wonderful to see them in print in a formal court order.  Many lawyers in the insurance industry have been arguing for a long time about the meaning of these laws, and until now the state government has largely stayed out of the fight due to internal disagreements over interpretation, defaulting to positions most favorable to the insurers.  It is to be hoped that, now that we have completed this process and reached a very thoroughly researched decision, that the State of Oregon will step up to the plate to protect consumers.

State of Oregon renounces Mental Health Parity for Public Employees

While the AF v Providence case has taken a major step forward – with a clear, solid decision declaring that they have violated state and federal law – the State of Oregon continues to deny coverage of ABA therapy as a treatment for autism in exactly the same way, through a self-insured PEBB plan administered by Providence.  When challenged by PEBB members to comply with the law and provide medically necessary ABA services, the State of Oregon has responded by declaring “sovereign immunity” and renouncing compliance with Mental Health Parity.

PEBB’s denial letters state:

Because ABA services are related to Autism Spectrum Disorder, they are therefore not benefits covered by your plan.

PEBB does this even though Oregon’s Mental Health Parity law – and the plain language of PEBB’s contract – requires plans to “provide coverage for expenses arising from treatment … mental or nervous conditions” – including autism – “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions.”

After several years of attempts to get PEBB to comply with the law and honor its’ contracts, a class action lawsuit was filed against PEBB (“PS v PEBB” – see here for information) charging that the PEBB developmental disability exclusion violates the Oregon and Federal Mental Health Parity Acts (exactly as AF v Providence, above) – and also Oregon’s Unlawful Discrimination Against Persons with Disabilities Act, for singling out those with a protected disability for unlawful and discriminatory treatment.

Rather than reaching out to the families or their attorneys to attempt to resolve the matter, the State has empowered a Providence contract attorney, Medora Marisseau, as a “Special Assistant Attorney General” to represent the State. Ms. Marisseau is also defending Regence in Washington State against a similar suit, and has appealed that case to the Washington Supreme Court once or twice already.  She has also published an article lamenting how courts keep expanding access to mental health care for individuals with autism.

Having empowered Providence and its’ contract attorney to manage its’ defense and establish the State of Oregon’s position on public employee access to mental health care, they filed a very aggressive defense – renouncing compliance with mental health parity altogether:

“SIXTH AFFIRMATIVE DEFENSE

(Sovereign Immunity)

Some or all of Plaintiffs’ claims are barred by sovereign immunity, including performance or failure to perform a discretionary duty (ORS 30.265(6)(c), and Defendants’ good faith action taken. under apparent authority of law (ORS 30.265(6)(±)). The provision of plan benefits by PEBB is subject to discretion and the Oregon Insurance Commissioner has opined that PEBB is not required to comply with the OMHPA” [ORS 743A.168] “or PDD statute” [ORS 743A.190] and the Oregon legislature has determined the effective date for PEBB to provide ABA services to be January 1, 2015.”

(emphasis added)

As I myself testified to the Senate last February, this would be true – except that the Member Handbook itself clearly promises compliance, as Commissioner Cali wrote to me on 10/31/2013:

PEBB is not required to comply with ORS 743A.168 and ORS 743A.190 because it is exempt from the Insurance Code. However, the PEBB benefit handbook for 2013, states: “This plan complies with Oregon and Federal Mental Health Parity” . This requirement is part of their contract and not part of our statutes or federal law, but contractually PEBB would be subject to mental health parity laws both Oregon and Federal.”

(emphasis added)

During those Senate hearings, PEBB responded by swearing to comply with mental health parity whether the law required it or not:

Contracts for medical coverage in health plans offered by PEBB have included mental health parity since 2003 – both before and since self-insuring. This coverage has been, and will continue to be, specifically included in PEBB’s member handbooks (certificates of coverage), the third party contracts between PEBB’s medical carrier(s)/administrator(s) and our members.  PEBB has contracted with Providence Health Plan, a licensed health care service contractor, to administer benefits for PEBB’s self – insurance plan in compliance with all applicable laws and regulations.”

(emphasis added)

It is very troubling that the State of Oregon would respond to this suit by declaring “sovereign immunity” and renouncing its’ commitment to comply with Mental Health Parity – such a position is clearly against the interests of the State as it seeks to expand access to mental health care.  It’s also a very strange position to take as the state is responding to an inquiry from the U.S. Department of Justice over its’ itself against a Federal investigation into provision of mental health services.  Finally, it’s just plain illegal – the PEBB contract clearly promises compliance as Commissioner Cali wrote.  The State of Oregon may be free to write a new contract that doesn’t agree to comply with Mental Health Parity, or doesn’t cover ABA therapy as a treatment for autism, but until it does it must comply.

Action Alert:  ask your legislators to tell Governor Kitzhaber to comply with Mental Health Parity – and stop discriminating against individuals with autism

Please contact your State Representative and State Senator to let them know about this huge win in U.S. District Court – and ask them to tell Governor Kitzhaber and PEBB that it’s time for the State of Oregon to comply with the same rules.

I have included a sample e-mail message at bottom – but please personalize the message as much as possible, to show the impact that this issue has on you.

 

Sincerely,

 

Paul Terdal

——–

 

Sample message to legislators about PEBB compliance with Mental Health Parity:

Here’s a sample 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:

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

Subject:

Please ask Governor Kitzhaber and PEBB to comply with Mental Health Parity

Body:

Dear [Senator / Representative x],

I am a constituent in your district.

Last Friday, U.S. District Court Judge Michael Simon declared that Providence had violated both Oregon and Federal Mental Health Parity laws by refusing to cover Applied Behavior Analysis (ABA) therapy as a treatment for autism – solely because it was “related to autism.”

(The case was “AF v Providence” – you can read about it in Willamette Week:  http://www.wweek.com/portland/blog-32003-providence_cant_exclude_autism_treatments_from_coverage_judge_rules.html).

As Judge Simon wrote, “Providence cannot simultaneously purport to cover autism and yet deny coverage for medically necessary ABA therapy through its Developmental Disability Exclusion consistent with the Oregon Mental Health Parity Act.”  This decision was based on laws that have been in effect since 2007 – long before the recent SB365, which was intended to streamline the approval process for this treatment.

The State of Oregon – through its’ Providence-administered PEBB plan – continues to do exactly the same thing that Judge Simon has just declared illegal – denying coverage for ABA therapy solely because it is “related to autism.”

After years of fruitless negotiations, a class action lawsuit was filed against PEBB in April (“PS v PEBB”) charging that the PEBB developmental disability exclusion violates the Oregon and Federal Mental Health Parity Acts (exactly as in the AF v Providence case, above) – and also Oregon’s Unlawful Discrimination Against Persons with Disabilities Act, for singling out those with a protected disability for unlawful and discriminatory treatment.

Rather than reaching out to the families or their attorneys to attempt to resolve the matter, the State has empowered a Providence contract attorney as a “Special Assistant Attorney General” – and they have mounted a very aggressive defense by declaring “Sovereign Immunity” and asserting that “PEBB is not required to comply with the OMHPA” [Oregon Mental Health Parity Act, ORS 743A.168].

Not only is this in breach of contract – since the PEBB Member Handbook specifically states that “This plan complies with Oregon and Federal Mental Health Parity” – it is also very disappointing that PEBB and the Kitzhaber administration would even attempt to renounce support for Mental Health Parity in this way.

Please contact PEBB and the Governor’s office to ask them to honor their commitment to Oregon’s landmark Mental Health Parity Act – and respect the U.S. District Court decision that they “cannot simultaneously purport to cover autism and yet deny coverage for medically necessary ABA therapy.”

[*** If you wish, you can insert a brief personal story here.  This is especially important if you yourself are on a PEBB plan. ***]

Thank you,

 

Your Name

123 SW Main

Hometown, OR  97201

Posted in Call To Action, Legal | Comments Off

Autism Health Insurance Reform: Action Alert – Class action filed against PEBB; Ask Governor Kitzhaber to comply with Mental Health Parity

Contents:

  • Oregon Public Employees Benefits Board Sued in Class Action for Illegal Discrimination; Refuses to Cover Therapy for Autism
  • HERC EbGS agrees that ABA is evidence based, strongly recommends coverage in OHP
  • Action Alert:  ask Governor Kitzhaber to comply with Mental Health Parity – stop discriminating against individuals with autism

Oregon Public Employees Benefits Board Sued in Class Action for Illegal Discrimination; Refuses to Cover Therapy for Autism

Yesterday, Attorney Megan Glor and Sirianni Youtz Spoonemore Hamburger, a Seattle law firm, filed a class action lawsuit against Oregon’s Public Employees Benefits Board (PEBB) today 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 to treat her autism.

The state refused to cover P.S.’s ABA therapy solely because it was “related to autism” – even though Oregon’s Mental Health Parity law has required treatment of autism since 2005.  Providence Health Plans, acting as PEBB’s plan administrator, issued a denial letter 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.

The lawsuit charges that the PEBB developmental disability exclusion violates Oregon’s Unlawful Discrimination Against Persons with Disabilities Act as well as the state and federal Mental Health Parity Acts.   “This case sends a message that all employers must cover essential health services for individuals with developmental disabilities, including children with autism,” said Ms. Glor.  “Exclusions like the one in the PEBB plan are nothing more than rank discrimination.”

“The State discriminates against its employees and qualified dependents with developmental disabilities when it applies the PEBB developmental disabilities exclusion,” said Paul Terdal, a volunteer autism advocate who assisted P.S. and her parents.  “Not only does the State, as an employer, violate its own laws and public policy, it sets a bad example for other employers and insurers, and weakens the rule of law.”

The lawsuit, P.S. v. PEBB, is the latest in a string of cases nationwide challenging exclusions and limitations on coverage of treatment for autism – including McHenry v PacificSource and A.F. v Providence in Oregon, and numerous cases in Washington and other states.  It is the first case in Oregon, however, to charge that such exclusions are also unfair and illegal discrimination on the basis of disability when applied by employers that offer self-funded health benefit plans.

PEBB’s contract promises that it complies with Oregon’s Mental Health Parity law (ORS 743A.168) – which requires plans to “provide coverage for expenses arising from treatment … mental or nervous conditions” – including autism, per OAR 053-836-1404 and the plain language of the PEBB contract – “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions.”  P.S. charges that the PEBB developmental disability exclusion and exclusion of all ABA therapy as “experimental/investigational” breaches the PEBB contract, as modified by the state and federal Mental Health Parity Acts.

A similar exclusionary practice in the Washington State public employee health benefit plan was challenged in D.F. v. Washington State Health Care Authority, a case brought by Eleanor Hamburger and Richard Spoonemore of Sirianni Youtz Spoonemore Hamburger.  The D.F. case resulted in a landmark decision that blanket exclusions of medically necessary mental health services such as ABA for autism violated Washington’s Mental Health Parity Act.  The case eventually settled after the Washington Public Employee Benefit Board removed its ABA therapy exclusion and provided a $3.5 million settlement fund for public employees who had paid out-of-pocket for medically necessary ABA therapy services.

Although I am not a party to this suit, I am very familiar with the background, and have made numerous attempts in the past three years to resolve these issues with PEBB – all of which have been rebuffed.

HERC EbGS agrees that ABA is evidence based, strongly recommends coverage in OHP

Ever since SB365 was passed last summer, the Health Evidence Review Commission (HERC) has been reviewing Applied Behavior Analysis (ABA) as a treatment for autism.  Last week, the Evidence-based Guidelines Subcommittee (EbGS) approved a strong recommendation in favor of coverage of ABA in the Oregon Health Plan (OHP), Oregon’s Medicaid program, based on a finding that there was sufficient evidence to support ABA, at least for patients through age 12.

Although the details are being finalized, we understand the recommendation is for patients through age 12, with 25 hours of ABA per week for three years.  For older patients (ages 13 and up) and patients who have completed three years of more intensive therapy, OHP will cover a reduced amount (around 8 to 16 hours per month) of focused intervention.

While we are very pleased with this progress, and long-overdue recognition that ABA is well grounded in clinical research, we’re disappointed with the limit of 25 hours per week, which was picked more or less arbitrarily (the committee’s research had cited reports for as much as 40 hours per week) and by the committee’s weak recommendations on very limited coverage for older patients, which we strongly disagree with.

While fewer patients with autism over the age of 13 will need intensive ABA, there are some individuals who will, and we set a record for the number of experts who provided testimony and the quantity of research papers submitted in support of ABA for older patients.  We are concerned that HERC’s decision not to provide coverage for these older patients did not follow the commission’s own procedures, and did not comply with applicable state and federal law, and are evaluating next steps.

I greatly appreciate the efforts of everyone on our team – locally and nationally – who provided expert testimony.

We’ll keep you informed of our next steps.

Action Alert:  ask Governor Kitzhaber to comply with Mental Health Parity – stop discriminating against individuals with autism

Go to the Governor’s “Share Your Opinion” page:  http://www.oregon.gov/gov/Pages/ShareYourOpinion.aspx

For topic, select “Public Employee Benefits”

Put in a message like this one (feel free to customize)

I’m writing to ask Governor Kitzhaber to direct PEBB to comply with the Mental Health Parity act – and stop denying coverage of medically necessary Applied Behavior Analysis treatment solely because it is “related to autism.” 

This practice is discriminatory, a violation of PEBB’s contract with its’ employees, and encourages other employers and insurers to follow Oregon’s lead in breaking the law.

Please set a positive example by promptly bringing PEBB into compliance with the law.

You can also call the Citizen’s Representative Office at (503) 378-4582 to deliver your message by phone.

 

——–

Sincerely,

 

Paul Terdal

Posted in Uncategorized | Comments Off

Autism Health Insurance Reform: Introducing SB1523 and updates on implementation and enforcement of autism insurance reform

Contents:

  • Support SB1523 – Autism and Mental Health Parity coverage for Public Employees
  • Update on HERC review of ABA coverage in OHP (Medicaid)
  • Providence class action certified and moving forward
  • Review of autism coverage by Oregon insurers
  • New Oregon rules on External Reviews
  • Implementation of SB414 — Restitution

Support SB1523 – Autism and Mental Health Parity coverage for Public Employees

Last summer, the legislature unanimously approved SB365, our Autism Health Insurance Reform bill, which established requirements for state-regulated health plans to approve and manage autism treatment, including ABA and any other medical or mental health services identified in an individualized treatment plan. The new, streamlined approval process applies to children who begin treatment before age 9; SB365 preserved more general requirements for coverage of autism treatment under existing Oregon law, including both Mental Health Parity (ORS 743A.168) and a mandate for Children with Pervasive Developmental Disabilities (ORS 743A.190).

SB365 was intended to apply to state employees covered by PEBB and OEBB, but most state employees get their coverage through self-insured plans which are completely exempt from Oregon’s insurance code.  Very few people in the capitol appeared to have been aware that their own plans were exempt from the insurance code – in all of our legislation for the last few years, the fiscal impact assessments have been primarily based on the cost to these state employee self-insured plans – even though those plans were legally out of scope.

SB1523, for the first time, extends coverage requirements for Mental Health Parity (ORS 743A.168), Children with Pervasive Developmental Disabilities (ORS 743A.190), and SB365 to the self-insured plans administered by PEBB and OEBB – and also to employees of OHSU.

You can read more about this bill in the Lund Report here:  http://www.thelundreport.org/resource/ohsu_prescribes_aba_for_autistic_kids_but_keeps_treatment_from_employees

I encourage you to read that article, and “like” it on Facebook to spread the word.

We also ask everyone to write your legislators to ask them to support SB1523 – see the end of this message for guidance and a sample e-mail.

Update on HERC review of ABA coverage in OHP (Medicaid)

We continue to work with the Health Evidence Review Commission (HERC) in its’ evaluation of Applied Behavior Analysis (ABA) for coverage in the Oregon Health Plan (OHP), Oregon’s Medicaid program.  Many of you submitted public comment in December; the HERC staff is now reviewing that, and will provide an updated draft report for discussion in the 2/6/2014 meeting of the Evidence-based Guidelines Subcommittee.

We have had some concerns about the process for review.  In particular, the commission has posted two different standards of evidence on its’ web page – a stricter standard, printed on a Kaiser Permanente letterhead (http://www.oregon.gov/oha/herc/Documents/HERC%20GRADE%20Methodology.pdf); and a more generous standard, published in the official HERC report to the Governor and Legislature, which allows for a broader array of evidence (excerpted here:  http://www.oregon.gov/oha/herc/Documents/submitted-materials.pdf).  We assert that the standard of evidence documented in the HERC report to the Governor and Legislature is binding – and would provide a more realistic assessment of the evidence for ABA.  The HERC staff asserts that they prefer the stricter evidence standard published by HERC on a Kaiser Permanente letterhead.  We look forward to seeing how this is resolved.

As it happens, one of HERC’s primary sources – the Federal Agency for Healthcare Research and Quality (AHRQ) – has just published a new draft report on evidence for ABA which substantially upgrades the evidence rating for ABA, which may make this process debate moot at least for patients ages 0 to 12 (http://effectivehealthcare.ahrq.gov/research-available-for-comment/comment-draft-reports/?pageaction=displaydraftcommentform&topicid=544&productid=1845&documenttype=draftReport).

For older patients, we have provided a substantial body of documentation on research into the effectiveness of ABA, and look forward to HERC’s review of those materials.

Providence class action certified and moving forward

Last May, a class action lawsuit was filed in U.S. District Court against Providence over its’ denial of coverage for treatment of autism, and particularly Applied Behavior Analysis (ABA).

On 12/24/2013, Judge Simon approved certification of the class as requested by the plaintiffs, to include all individuals with an autism diagnosis who are covered by a Providence ERISA (employer-based) health benefit plan subject to Oregon law (doesn’t include self-funded plans) issued since 2007.  At this point, the class is injunctive only – meaning that it is just a request for an order to stop denying coverage of ABA; damage awards, if any, will be determined later.  This suit came after several years of unsuccessful attempts by consumer advocates to work with Providence to resolve the issue out of court.

Providence has taken the position that it can exclude all mental health services related to developmental disabilities – including autism – even though Oregon’s Mental Health Parity act specifically requires it to cover mental health services related to autism “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage … for other medical conditions.”  (Legally, autism is considered to be both a developmental disability and a “mental or nervous condition”).

Despite this plain language, Providence has asserted that Oregon’s Mental Health Parity law isn’t a mandate and doesn’t actually require coverage of treatment for mental health conditions.

In an “amicus curiae” brief filed by Disability Rights Oregon last Friday, DRO advised the court:

“Should this Court rule that Providence can avoid coverage for ABA, a medically necessary service for children with autism, despite state and federal laws requiring parity in the provision of coverage for mental disabilities, the implications would devastating for all with mental health conditions – not just for children with autism. The same reasoning as that used by Providence to avoid its obligations under state and federal law to provide ABA to children with autism on the same basis as medically necessary services to those with other medical conditions would be used to deny medically necessary services for people with other mental illnesses in the community. The availability of individual therapy, or group therapy, or drug therapies could be arbitrarily limited, and highly effective treatments such as DBT would be routinely denied. As a result, people with mental illnesses throughout would continue to suffer unnecessarily because of the unavailability of medically sound, proven therapies.”

We are expecting a ruling on the request for an injunction by about May of this year.

The Lund Report has written several good articles on this case, including this one:  http://www.thelundreport.org/resource/judge_in_autism_case_allows_class_action_against_providence

And this:  http://www.thelundreport.org/resource/providence_moves_to_stop_class_action_suit_over_denied_autism_care

Review of autism coverage by Oregon insurers

In general, all Oregon insurers are covering speech, occupational, and physical therapy for autism.  Plans that comply with the “Essential Health Benefits” package under the Affordable Care Act (“Obamacare”) should now be providing up to 60 visits per year for these rehabilitative therapies.

Here’s a quick summary of how Oregon insurers are currently covering treatment of Applied Behavior Analysis (ABA), a leading behavioral health treatment for autism:

Kaiser:

Kaiser continues to be the most cooperative, but in recent months has been tightening its’ criteria for approval of ABA; in some cases we’ve seen denials of coverage on grounds that it wasn’t medically necessary.  So far, all such denials have been overturned through internal appeals without having to apply to external review, but it has been frustrating and has delayed treatment for some patients.

Kaiser has also recently suggested that it will enforce a policy requiring parents to participate directly in 80% of all ABA therapy sessions, and to be physically present 100% of the time.  While it is commonly recommended that parents participate in ABA therapy at some level, most research is based on a 20% parental participation rate to continue therapy out of session with the bulk of therapy being provided by professional providers.  We have attempted to open negotiations with Kaiser to discuss the merits of the policy, but have been rebuffed.  This policy would appear to violate state and federal Mental Health Parity laws, since Kaiser doesn’t refuse coverage of treatment for the predominant medical / surgical conditions unless parents are participating in treatment (say, in surgery or the emergency room).

In a couple of cases, Kaiser has refused coverage of ABA services scheduled during school hours (between 9:00 AM and 2:00 PM) on grounds that it is “educational” purely by the time of day of service.  This appears to violate Mental Health Parity laws, unless the insurer can demonstrate that it refuses to cover all other medical treatment (emergency room visits, pediatric office visits, etc.) during school hours.

Several families – who already have employer-based insurance from other providers who aren’t cooperative – have purchased individual Kaiser plans for their children through Cover Oregon to gain access to coverage for ABA therapy.  Kaiser initially refused to pay claims for these families, asserting that it was improper to have more than one insurance plan, but has recently move forward with approval of coverage.  We’re reviewing this with the Insurance Division, but Kaiser’s recent agreement to provide the coverage that families have paid for is encouraging.

If you have a Cover Oregon policy, and Kaiser is refusing coverage of ABA on grounds that the policy is “secondary” or that it is somehow improper to have more than one plan, please contact me and submit a Consumer Complaint to the Insurance Division.

PacificSource:

We understand that PacificSource continues to pay for ABA provided by BCBAs, but not by paraprofessionals (line therapists).  Since the portions of SB365 regarding licensure took effect upon signature on 8/14/2013 – grandfathering all existing ABA providers to “continue to claim reimbursement from a health benefit plan … without a license” we believe PacificSource’s refusal to reimbursement unlicensed paraprofessionals may be illegal.

Regence:

Regence continues to deny all coverage of ABA on grounds that it is “investigational” (i.e., an unproven treatment).  This is disappointing, since Dr. Csaba Mera – Regence’s Deputy Chief Medical Officer – told a legislative workgroup on 3/15/2011 (almost 3 years ago) 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.”  This suggests that Regence is aware that its’ “investigational” denial is false.

On the other hand, an “investigational” denial allows appeal to External Review.  So far, one Oregon patient has successfully navigated the IRO process to have a Regence ABA denial overturned (as have about 20 others with Kaiser and Providence insurance).  After about two months of threats from Regence to refuse to honor the IRO decision – despite the prospect of a $1 million fine for non-compliance – Regence appears to be ready to approve coverage for that patient, but continues to drag its’ feet.  We’re working on the details; two other Oregon patients are currently in the IRO process with Regence.

We have discussed Regence’s conduct with the Insurance Division, and are confident that we can count on them to help enforce the IRO decisions.

There are two class action lawsuits underway against Regence in Washington State over denials of treatment for autism.  On Friday, 1/24/2014, Regence was given an injunction ordering it to stop imposing age limits on autism treatment for the duration of the trial, based on a conclusion by the judge that the plaintiffs were likely to prevail.

Moda:

We are working with Moda appeals through OEBB, OHSU, and commercial group plans.

Generally, in first round denials, Moda claims that ABA is an educational service, not a medical one.  Upon appeal, Moda drops that argument and issues denials based on licensure or (in the case of OHSU) because the plan has an explicit exclusion for ABA regardless of medical necessity (which violates Mental Health Parity, as argued by Disability Rights Oregon above).

Since the licensure provisions of SB365 have already taken effect – grandfathering existing ABA providers to practice without a license until 2016 – Moda’s licensure objection is invalid.

I understand that the Insurance Division is prepared to enforce the licensing provisions of SB365, and to assist consumers facing this type of denial.

Conclusion:

Please let me know what problems you are encountering with insurance coverage for treatment of symptoms associated with autism.  Denials asserting that ABA is investigational, not medically necessary, not a medical / mental health service, or that the providers aren’t licensed should now be easy to overcome with help from the Insurance Division, and I’m happy to help facilitate communication.

New Oregon rules on External Reviews

The External Review process has been an incredibly important tool for consumers to overcome insurer denials of treatment for autism, including ABA.  When an insurer claims that a treatment is “investigational” or not medically necessary, a consumer can ask the Insurance Division to appoint an Independent Review Organization (IRO) to have a neutral expert review the case and make a binding decision.  For insurer denials of autism, we have now made about 20 appeals to IRO – and all but 2 have overturned insurer denials of ABA therapy, usually with sharp words for the insurer criticizing their policies. In both of the cases that we’ve lost, subsequent investigations by the Insurance Division concluded that the IROs failed to comply with the laws governing the review process – such as those regarding the kinds of evidence that they must consider, need to provide references supporting their decision, or the credentials for the reviewers.  Up until now, there has been no recourse for a consumer when the IRO fails to follow the rules.

The Oregon Insurance Division has now adopted new Administrative Rules on External Reviews that allow consumers to challenge a decision by an Independent Review Organization (IRO) if the IRO doesn’t follow the rules, and potentially have the appeal redone.  (See:  http://insurance.oregon.gov/rules/attachments/recently%20proposed/2013/id09-2013_rule.pdf, OAR 836-053-1325, subsections (8) to (15)).

If you are making an appeal to External Review, I would love to hear from you and would be happy to talk about how to use these rules if you have a problem with an IRO decision.

Implementation of SB414 — Restitution

In addition to our Autism Health Insurance Reform bill (SB365), the legislature also passed SB414, our Restitution bill, which allows the Insurance Division to “seek restitution on a consumer’s behalf for actual damages the consumer suffers as a result of the insurer’s violation of a provision of the Insurance Code or applicable federal law or the insurer’s breach of an insurance contract….”  This took effect on 1/1/2014.

We continue to discuss the full meaning and implementation of SB414; the insurance industry as you might imagine seeks to define “actual damages” in the most minimal way possible, so as to avoid financial responsibility.  The intent was to require an insurer that breaks the law to pay for the consequences of its’ illegal activity – for instance, if an insurer unlawfully withholds coverage of cardiac care, then the insurer should be financially liable for the consequences (“actual damages”) if the consumer suffers a heart attack.  The insurers appear to be arguing that, even if they are found to have broken the law, they should only be required to pay minimal contractual damages – e.g., after you’ve died, they’ll pay for the cost of the care that would have prevented your death, rather than for the impact to your family of your demise.

The Insurance Division has issued draft rules (http://insurance.oregon.gov/rules/attachments/recently%20proposed/2013/id12-2013-temp_rule.pdf) while we continue to haggle over the final terms, which should be done by June.

In the meantime, if you are submitting a Consumer Complaint about your insurance company to the Insurance Division, you should ask for “restitution” and provide an estimate of the “actual damages” you have suffered as a result of the insurer’s conduct.

——–

Sincerely,

 

Paul Terdal

 

 

Sample message in support of SB1523 – Autism and Mental Health Parity coverage for Public Employees:

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:

You can find your legislator’s e-mail at:  http://www.leg.state.or.us/findlegsltr/

Subject:

Please Support SB1523 – Mental Health Parity and Autism coverage for Public Employees

Body:

Dear [Senator / Representative x],

I am a constituent in your district.

Please support SB1523, which will require self-insured PEBB, OEBB, and OHSU health benefit plans to comply with the same rules that commercial insurers follow, with respect to Mental Health Parity and (under 2005 SB1) and autism (under 2013 SB365).

Last year’s SB365 (Autism Health Insurance Reform) was intended to apply to self-insured PEBB and OEBB plans – and all other plans subject to state regulation – but those plans are actually completely exempt from the insurance code.

SB1523 is a technical fix that requires these self-insured PEBB and OEBB plans to comply with SB365 as intended, and also requires them to comply with Oregon’s landmark Mental Health Parity law (SB1 from 2005) and the Children with Pervasive Developmental Disabilities law (HB2918 from 2007).  It further extends these coverage requirements to the OHSU employee benefit plan, addressing another unforeseen gap in SB365.

[*** If you wish, you can insert a brief personal story here.  This is especially important if you yourself are on PEBB, OEBB, or an OHSU plan. ***]

Thank you,

 

Your Name

123 SW Main

Hometown, OR  97201

Posted in Uncategorized | Comments Off

Autism Health Insurance Reform: HERC Public Comment on ABA in OHP Due 12/15/2013

Contents:

  • Provide public comment to HERC on ABA coverage in OHP
  • Access to autism coverage under current law and in Cover Oregon

Provide public comment to HERC on ABA coverage in OHP

As I wrote in October, the Health Evidence Review Commission (HERC) is evaluating Applied Behavior Analysis (ABA) therapy for inclusion in the “prioritized list” of treatments in the Oregon Health Plan (OHP), Oregon’s Medicaid program.  The “prioritized list” is also the basis for Healthy Kids.

HERC has released an initial draft review of ABA for public comment – which you can find here:  http://www.oregon.gov/oha/herc/EvidenceEvaluation/Evaluation%20of%20Evidence%20Applied%20Behavior%20Analysis%20For%20Autism%20Spectrum%20Disorders%2011-14-13.pdf

The review makes a strong recommendation in favor of ABA coverage for children with autism ages 2 through 12.  The committee found that quality of evidence was low, but that other favors warranted a strong recommendation.  Initial coverage should be for up to six months, followed by reassessment every six months.  No specific hour or duration limits were identified, but noted that studies range from 2 to 40 hours per week with durations from 10 weeks to 3 years.

The review makes a weak recommendation against coverage for patients over the age of 12, solely because the report selected by the HERC staff for review didn’t include much evidence for older patients.  Many committee members expressed interest in providing coverage for older patients when necessary, if we are able to provide additional evidence, and this is likely to be revisited.

While we have concerns, it is important to recognize that this is a big step forward – currently, OHP and Healthy Kids provide very little coverage of treatment for autism.  Many patients even have difficulty accessing speech and occupational therapy, due to confusing requirements, and behavioral health treatment (ABA) is limited to 8 hours per month.

HERC is accepting public comment through Sunday December 15th (technically, until 8:00 AM Monday the 16th).  We are making the following recommendations:

  • We support the strong recommendation in favor of ABA coverage for younger children
    • The quality of evidence is – by HERC’s own standards – Medium or High, and should be revised
    • There should be no minimum age for ABA – children under 2 should be given access to ABA upon diagnosis
  • Patients over the age of 12 should be given coverage for ABA when medically necessary
    • There is sufficient evidence to support the effectiveness of ABA for older patients
    • For some patients with severe symptoms, such as self-injurious behaviors, a failure to treat can result in severe disability.  By HERC’s own process, this requires a “strong” recommendation in favor of coverage.Patients over the age of 12 should be given coverage for ABA when medically necessary

You can provide submit public comment by submitting an e-mail to HERC.Info@state.or.us by end of day Sunday December 15th.

  • The email subject line should read “Public Comment on Applied Behavior Analysis”
  • Include your name, profession, address, phone number and email address (only your profession, location, and comments will be made publicly available).
  • Comment should not exceed 1000 words.
  • You may also include a list of references to journal articles supporting your comments, which are not subject to the 1,000 word limit.  You should also attach PDF copies of the articles.
  • In encourage you to CC me at paul@AutismInsuranceOR.org to I can track submissions and ensure that we are covering all of the key issues.

For further instructions, see:  http://www.oregon.gov/oha/herc/Pages/Coverage-Guidances-Open-for-Comment.aspx

If you are a consumer, I encourage you to write about your experiences – how ABA has helped you or your family, or how an inability to access it has been a hardship.

If you are a provider, write your professional recommendation and attach journal articles that you may find helpful.

If you have any questions about what to write, please send me an e-mail at paul@AutismInsuranceOR.org.

For articles about the HERC review of ABA, see:

Access to autism coverage under current law and in Cover Oregon

Regence External Review Success:

I’m happy to report recent progress in obtaining ABA coverage from Regence Blue Cross Blue Shield of Oregon:  last week, we won our first External Review decision overturning a Regence denial of ABA coverage, and Regence has confirmed its’ willingness to comply and begin paying for ABA treatment for that family.

It is Regence’s practice to deny coverage of ABA on grounds that it is “investigational” – i.e., that it is unproven.  This is basically untrue, as Regence is well aware, and it allows an appeal to External Review.  While I wish Regence would stop making these false denials, I appreciate the fact that they are allowing consumers to access the External Review process.  If you have a Regence plan and are interested in ABA coverage, please contact me.

Autism Coverage through Cover Oregon:

As I wrote in October, the best way to get coverage for ABA or other treatment for autism is to buy a Cover Oregon plan sold by Kaiser or PacificSource.  Kaiser has been providing reasonable coverage of ABA, although some families are still being forced through lengthy appeals processes.  PacificSource has been reimbursing ABA therapy provided by BCBAs or licensed providers, but thus far has refused to pay for paraprofessionals (line therapists).  Avoid “Healthy Kids” (even Healthy Kids plans sold by Kaiser and PacificSource), since we understand that Healthy Kids excludes coverage of ABA therapy and may make access to speech and occupational therapy difficult (it’s based on the Oregon Health Plan – see above).

For Kaiser, I suggest the “KP OR Gold 0/20 HMO 71287OR0420001-01” plan.  Without any subsidies, this should cost about $162 / month for a single child, which is roughly the cost of one or two hours of speech or occupational therapy.

You can reach the Cover Oregon website here:  http://www.coveroregon.com/

Providence Litigation Update:

The class action lawsuit against Providence for denial of ABA coverage for autism is moving forward; the class certification hearing will be on Wednesday December 11th.  It should be interesting; in a legal filing on November 1st, Providence asserted that it had intentionally provoked litigation by consumers out of its’ desire to get a ruling by a judge, and out of its’ frustration with the External Review process.  Providence explained to the judge that it had realized that if actual doctors with autism experience were allowed to determine whether or not ABA was a proven, medically necessary treatment for autism it would lose every time, so it adopted a strategy of forcing consumers into court.  Seriously.

——–

Sincerely,

 

Paul Terdal

Posted in Uncategorized | Comments Off

Autism Health Insurance Reform: Update on implementation

Contents:

  • Update on progress with implementation of Autism Health Insurance Reform in Oregon
  • Washington Insurance Commissioners Hearing on Mental Health Parity – October 22nd, 2013
  • Autumn Fest for Autism – October 19th, 2013

Update on progress with implementation of Autism Health Insurance Reform in Oregon

Even though the legislative session is over, and our bills have passed, the last few months have been busier than ever, as we have worked to ensure that they are implemented effectively.  Here’s a quick summary of what we’ve been working, and where we may need everyone’s help in the coming months:

Autism coverage in the Oregon Health Plan (Medicaid): 

The Oregon Health Plan (OHP) provides very little coverage of treatment for autism.  Many patients on OHP even have difficulty accessing speech and occupational therapy, due to confusing requirements, and behavioral health treatment is limited to 8 hours per month.

SB365 directed the Health Evidence Review Commission (HERC) to re-evaluate Applied Behavior Analysis (ABA) therapy for inclusion in the “prioritized list” of treatments in OHP by October 2014.  We have organized a national team of experts to support this process and provide expert testimony.  HERC may release a proposal for public comment as early as November.

Once it does, we will encourage everyone to contact HERC with your feedback – so stay tuned.

Autism coverage in Cover Oregon – under the Affordable Care Act (“Obamacare”):

Thanks to the Affordable Care Act – “Obamacare” – it’s now possible for individuals, families, and small businesses to buy health insurance through Cover Oregon, an exchange or marketplace run by the State of Oregon.  Cover Oregon policies offer much better coverage and terms than normal individual plans, and are protected by both state and federal mental health parity laws.  Many families may be able to obtain subsidies to help pay for the cost of insurance.

Oregon’s plans are all based on a PacificSource plan that has been providing coverage for ABA therapy by court order since the 2010 McHenry v PacificSource decision.  Our view – and that of legislative counsel (the legislature’s legal office) – is that plans sold through the exchange must cover ABA therapy.  Insurance companies disagree, and the Insurance Division has not yet taken a stand.  We continue to work on this, and have participated in about 40 hours of meetings over the past two months regarding rules and terms for coverage in the exchange.

In the meantime, if you are seeking coverage for treatment of autism, your safest bet is to buy a Cover Oregon plan sold by Kaiser or PacificSource.  Kaiser has been providing reasonable coverage of ABA, although some families are still being forced through lengthy appeals processes.  PacificSource has been reimbursing ABA therapy provided by BCBAs or licensed providers, but thus far has refused to pay for paraprofessionals (line therapists).  Avoid “Healthy Kids” (even Healthy Kids plans sold by Kaiser and PacificSource), since we understand that Healthy Kids excludes coverage of ABA therapy and may make access to speech and occupational therapy difficult (it’s based on the Oregon Health Plan – see above).

You can reach the Cover Oregon website here:  http://www.coveroregon.com/

Behavior Analysis Regulatory Board:

SB365 created a Behavior Analysis Regulatory Board to license and register providers of Applied Behavior Analysis (ABA) services in Oregon.  We have had discussions with many people over the last few months to recruit potential members, assist them with their applications, and advise the Governor’s office on the appointments process.  We expect that the appointments will be made in November, allowing the board to begin the work of developing rules for licensure and registration early next year.

SB414 Restitution Rules:

One of our key legislative victories in this session was the passage of SB414, which gives the Insurance Division the authority to require insurance companies to pay restitution for damages suffered as a result of the insurer’s violation of a provision of the Insurance Code or applicable federal law, or breach of an insurance contract or policy.  Previously, the Insurance Division could impose a civil penalty or revoke a license, but couldn’t actually order an insurer to pay a claim.

SB414 allows restitution for damages resulting from illegal activity.  For instance, if an insurer unlawfully denies coverage of cardiac care, and a patient dies from their inability to access treatment, SB414 empowers the Insurance Division to require an insurer to pay compensation to the heirs.  While this sounds like common sense – that the insurer should be financially liable for the consequences of illegal activity – it’s actually a radical change:  insurers are now largely exempt from liability by Federal law (ERISA), and from Oregon’s unfair trade practices act.  A court can order an insurer to pay a claim, and reimburse attorney’s fees, but can’t order payment of any sort of damages.

Over the past few weeks, we have met with the Insurance Division’s leadership team and representatives from essentially every insurance company doing business in Oregon to discuss implementation.  Temporary rules will be published later this year; the bill will take effect on January 1st.

SB416 – External Review Quality Assurance:

One of the key tools we have used to help people overturn denials of coverage for ABA therapy is the External Review –in which the Insurance Division appoints an Independent Review Organization (IRO) to review the case and make a binding coverage decision.  The good news is that we’ve won nearly every case.  The bad news is that occasionally the IROs don’t follow the proper procedures – for instance, assigning an unqualified reviewer or relying on inappropriate documents that don’t meet the Insurance Division’s strict criteria, such as proprietary reports funded by the insurance industry.  Up until now, IRO decisions have been binding even when the reviewers haven’t complied with the very strict laws governing their conduct.

SB416 would have allowed the Insurance Division to reassign reviews to another IRO if the first reviewer didn’t comply with the law.  During the hearings process on SB416, the Insurance Division realized that it already had the authority to take corrective action if an IRO didn’t comply with the law, and we agreed to drop the bill.

We have been working with the Insurance Division, most of Oregon’s health insurance companies, and several of Oregon’s IROs to draft administrative rules allowing a consumer to report an IRO decision that failed to comply with the legal requirements, and allowing the Insurance Division to require the IRO to redo the review.  The administrative rules will be released later this year.

Washington Insurance Commissioner Hearing on Mental Health Parity – October 22nd, 2013

Over the last few years, an unbroken string of court victories has consistently found that insurers in Washington State have violated that state’s Mental Health Parity laws by refusing to cover Applied Behavior Analysis (ABA) therapy as a treatment for autism, and by restricting treatment for other therapies such as speech and occupational therapy to young children under age 6.

Nevertheless, many Washington insurers continue violate the law.  For the past year, the Insurance Commissioner has been reviewing insurer’s compliance with Mental Health Parity laws, and has been considering issuing an order to force other insurers to comply – but hasn’t done it yet.

Next week, on October 22nd, the Washington Insurance Commissioner will hold a public hearing to seek input on insurer compliance with the mental health parity law.

If you live in Washington – or provide autism treatment in that state – I encourage you to attend and testify about the need to enforce laws requiring coverage of autism.

  • Date / Time: 10/22/13 10 am-12 pm (You can arrive up to 30 min early to sign up to testify).
  • Location: JLOB Hearing Room A, Olympia (You can arrive up to 30 min early to sign up to testify).

For more information, see:  http://www.washingtonautismadvocacy.org/updates/2013/10/10/oic-mental-health-parity-hearing-102213-10-12-pm/

Autumn Fest for Autism – October 19th, 2013

Next Saturday, October 19th, the A Hope For Autism Foundation – which provides a center based program for children K-8 that are effected by autism –  is holding its’ annual benefit gala to provide scholarships for critical treatments and support local center-based programs.  For more information, see:  www.ahopeforautism.net

  • Date / Time:  Saturday, October 19th, 2013, 6:30 PM to 10:30 PM
  • Location:  Madeleine Parish and School, 3123 NE 24th Avenue, Portland
  • Tickets $50 / person or $350 / table for 8

——–

Sincerely,

 

Paul Terdal

Posted in Uncategorized | Comments Off

Autism Health Insurance Reform: SB365 Signed by Governor!

Contents:

  • Update on SB365 – Governor signs SB365!
  • Update on SB414 – Governor signs SB414!
  • HERC begins review of ABA for coverage in Oregon Health Plan
  • Kaiser class action settlement in California

Update on SB365 – Governor signs SB365!

Governor Kitzhaber signed SB365, Oregon’s Autism Health Insurance Reform bill this morning.  SB365 does several things:

  • Establishes the Behavior Analysis Regulatory Board to license and register ABA providers, including Board Certified Behavior Analysts; other licensed providers with experience and training in ABA (such as psychologists and speech language pathologists); and paraprofessionals or line therapists.
  • Grandfathers currently practicing ABA providers to continue practicing and receiving insurance reimbursement, until January 1, 2016
  • Establishes requirements for state-regulated health plans to approve and manage autism treatment, including ABA and any other medical or mental health services identified in an individualized treatment plan. The law applies to kids who begin treatment before age 9, covering up to 25 hours of ABA per week, and continuing for as long as medically necessary regardless of age.  Existing Oregon laws requiring coverage of autism treatment continue to apply to older patients and those seeking more than 25 hours of ABA per week.
    • Coverage requirements apply to PEBB (Public Employees Benefits Board) and OEBB (Oregon Educators Benefits Board) on January 1, 2015; and to all other state-regulated health benefit plans beginning January 1, 2016
    • Requires the Health Evidence Review Commission to begin reviewing ABA for coverage under the Oregon Health Plan.  The Oregon Health Plan must implement any new ABA services that HERC recommends by October 1, 2014, if new medical coding isn’t required, and by April 1, 2015, if new coding is necessary.  This review has already begun (see below).

It is important to remember that Oregon law has mandated coverage of autism “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions” since 2007.  We believe that this already legally mandates coverage of medically necessary care such as ABA, and a class action lawsuit has been filed in U.S. District Court against Providence Health Systems to enforce this.  We are optimistic that a successful ruling in this case will motivate the Insurance Division to enforce the law with respect to other insurers as well, which means that comprehensive insurance coverage for autism should be available on essentially all plans well before SB365’s nominal implementation date of 2016.

More specific information about how to best use SB365 and other Oregon laws to obtain insurance coverage will be distributed in the next few weeks.

Here are some articles about SB365:

You may want to contact Governor Kitzhaber to say “thanks” – Autism Speaks has set up a form for this at:  http://advocacy.autismspeaks.org/c.frKNI3PCImE/b.8766321/k.EC1F/OREGON_Thank_Gov_Kitzhaber_and_Your_Lawmakers_for_Better_Autism_Insurance/siteapps/advocacy/ActionItem.aspx

Update on SB414 – Governor signs SB414!

Governor Kitzhaber also signed SB414 in early July.  SB414 greatly strengthens the authority of the Insurance Division to enforce Oregon and federal laws regarding insurance coverage, by allowing it to seek restitution on behalf of a consumer for actual damages resulting from an insurer’s violation of the Oregon insurance code or applicable Federal law, or breach of contract.  Prior to enactment of SB414, the Insurance Commissioner could impose fines or civil penalties but was powerless to force an insurer to actually pay a claim or other compensation to a consumer.

We look forward to working with the Insurance Division on implementation of these new powers.

Here are some articles about SB414:

HERC begins review of ABA for coverage in Oregon Health Plan

As noted above, SB365 requires the Health Evidence Review Commission (HERC) to review Applied Behavior Analysis (ABA) as a treatment for autism, for coverage under the Oregon Health Plan.

This review began last week, with a vote to assign the review to the Evidence-based Guidelines Subcommittee.  That committee will meet on September 12, 2013, to begin the review of ABA.  This process is expected to take about 1 year.  The Oregon Health Plan must implement any new ABA services that HERC recommends by October 1, 2014, if new medical coding isn’t required, and by April 1, 2015, if new coding is necessary.

We will provide another update about the HERC process in the next few weeks, with updates on how you can help.

You can view HERC’s web page on this topic here:  http://www.oregon.gov/OHA/OHPR/Pages/herc/index.aspx#Behavioral_Analysis_for_Autism

Kaiser class action settlement in California

Kaiser has agreed to a settlement in a Class Action lawsuit in California to reimburse consumers for applied behavior analysis (ABA) and speech therapy for their children with autism between 2004 and 2012.  The lawsuit alleged that Kaiser improperly denied coverage for ABA and speech therapy for children with autism under the terms of its contracts and the California Mental Health Parity Act.  Kaiser has set aside nearly $10 million, and will be required to donate any unclaimed funds to non-profit organizations.

This suit applies only to California residents, but the legal principles are very similar to the class action lawsuit in Oregon against Providence, which is also seeking retroactive reimbursement to the date at which Oregon’s Mental Health Parity Act took effect in 2007.

More information is available at:  http://www.autismspeaks.org/advocacy/advocacy-news/kaiser-reimburse-ca-families-93-million-aba-speech

And here:  http://www.gilardi.com/KaiserASDLitigation/

 

——–

Sincerely,

 

Paul Terdal

Posted in Uncategorized | Comments Off

Autism Health Insurance Reform: SB365 Unanimously approved by HOUSE – on to the Governor!

Contents:

  • Update on SB365 – SB365 Unanimously approved by House, too! – On to the Governor!
  • ACTION ALERT:  ask Governor Kitzhaber to sign SB365 – and enforce our existing rights!

Update on SB365 – SB365 Unanimously approved by House, too! – On to the Governor!

Well, that was fast.

This afternoon, the Oregon House of Representatives suspended the rules that normally require a waiting period on votes, and voted UNANIMOUSLY to support SB365, the Autism Health Insurance Reform bill!

In this entire legislative session, not one legislator has ever cast a vote against Autism Health Insurance Reform!

That is the power of all of our e-mails, phone calls, and meetings with legislators.  We spoke, they listened – and voted.

This morning, before the vote, the two top leaders of the House Republican caucus — Rep. Mike McLane, House Republican Leader, and Rep. Julie Parrish, Deputy House Republican Leader – signed on to SB365 as official co-sponsors.  Both are long-standing friends of our cause, and we appreciate their help in explaining the importance of Autism Health Insurance Reform to their caucus and smoothing the way for the fast, unanimous vote.

SB365 will now go the Oregon Governor John Kitzhaber for signature.

ACTION ALERT:  ask Governor Kitzhaber to sign SB365 – and enforce our existing rights!

Please contact Governor Kitzhaber to ask him to SB365 – and also to direct the Insurance Division to enforce our existing Autism insurance mandates.

While SB365 is a great step, the actual insurance mandate doesn’t take effect on commercial insurance plans until 2016 – two and a half years from now.  However, Oregon law (ORS743A.168) already requires insurance companies to cover “expenses arising from treatment” for autism “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions.”

Despite this, most insurers refuse to cover medically necessary, evidence-based treatment for autism – such as Applied Behavior Analysis (ABA).  Providence even claims that it “permanently excludes” treatment for autism from its’ plans, despite these laws.  We need Governor Kitzhaber’s Insurance Division to start enforcing the laws we already have, right now.

ACTION #1:  Call Governor Kitzhaber

Please take 1 minute to call Governor Kitzhaber’s office to ask him to support SB365, Autism Health Insurance Reform.

Call the Governor’s Citizen’s Representative Office:  (503) 378-4582.

The phone will be answered by a staff member, or by voice mail.  Here’s a message you can tell them – but feel free to personalize this:

My name is ____________.

I’m calling to ask the Governor to sign SB365, the Autism Health Insurance Reform bill – which was passed unanimously by both the House and Senate.

Oregon law has required insurance companies to cover medically necessary treatment for autism since 2007 – but most refuse to pay for the nationally accepted standard of care.  Please direct the Insurance Division to enforce the law, and require insurance companies to pay for coverage of autism — today.

Thank you!

ACTION #2:  Send an E-mail to Governor Kitzhaber

Please also send an e-mail to the Governor, using his web page:  http://www.oregon.gov/gov/Pages/ShareYourOpinion.aspx

Step 1)  Enter your personal information

Step 2)  Choose “Health Care” in the “Topic” box

Step 3)  In the comment box, say something like this:

Please sign SB365, the Autism Health Insurance Reform bill, so that Oregonians with autism can get access through their health insurance to the treatments they need, with licensed and registered providers. The House and Senate have both voted UNANIMOUSLY to approve this landmark legislation.

Oregon law (ORS 743A.168) already requires insurance companies to cover “expenses arising from treatment” for autism “at the same level as, and subject to limitations no more restrictive than, those imposed on coverage or reimbursement of expenses arising from treatment for other medical conditions.” Unfortunately, most insurers refuse to pay for the nationally accepted standard of care.  Please direct the Insurance Division to enforce the law, and require insurance companies to pay for coverage of autism – now, under existing law.

Every year, 600 more children are diagnosed with autism in Oregon. With effective, early intervention many of these children will be able to make substantial gains and require fewer services as they get older. Providing these individuals with the right care at the right time will save the state money.

Please sign SB365 – and enforce the laws we already have. Thank you.

To make your message to the Governor even more effective, add a few words about your personal situation.

——–

Thanks for your help!

 

Paul Terdal

Posted in Call To Action, Legislative | Comments Off