WHAT A DIFFERENCE A NAME MAKES

[Guest guest]

WHAT A DIFFERENCE A NAME MAKES

 By Brietta

In the spirit of Autism Awareness Month, I want to call attention to a new

obstacle facing parents of autistic children seeking insurance coverage for

autism treatment. Ironically, this obstacle comes from the Department of Managed

Health Care, the state regulator of health care plans charged with enforcing

laws protecting patients' access to care. Unfortunately, it appears this

obstacle can be triggered by something as simple as a name change - a strategy

health plans are quick to exploit.

Parents' struggle with health plans over autism treatment is longstanding and

reflects a broader trend of insurers' refusal to cover developmental

disabilities and mental health. In response, several states have enacted health

care mandates to require treatment for these conditions, and in 2000 California

enacted the Mental Health Parity Act. It requires plans to cover severe mental

illnesses, including autism and pervasive developmental disorder, to the same

extent that they cover other medical conditions.

Autism causes impaired functioning in a number of areas, such as language and

communication skills, social interaction, emotional development and motor

skills. Without proper medical care it can be debilitating, but with early

intervention, children's ability to interact and function in society can improve

significantly. Standard medical treatment for autism includes speech, physical,

occupational and behavioral therapy.

Despite legal mandates, parents still have trouble getting treatment covered.

The problem is so pervasive that Web sites have been set up to help parents

challenge plan denials, many parents have to appeal plan denials to state

regulators, and in February, a class action was filed against Kaiser Permanente.

The most contested coverage requests are for ABA treatment, or Applied

Behavioral Analysis. The treatment is an intensive behavioral therapy that

improves brain functioning. It reduces inappropriate behavior, such as head

banging, and increases appropriate behavior and communication skills that

enhance social development and learning.

Plans routinely deny Applied Behavioral Analysis, claiming that it is not

medically necessary or that is experimental. But until recently, the Department

of Managed Health Care has helped parents access this treatment through its

independent medical review process. An independent medical review is a legally

binding, second opinion by doctors not affiliated with the plan. These reviewers

consistently find that the method is a standard, medically necessary treatment

that plans must cover.

Now plans are trying another strategy - changing their reason for denial. They

claim that Applied Behavioral Analysis and other autism treatment is

" educational, " not a " health care " service covered by the plan - same service,

different name. And the shocking thing is that it might be working.

Apparently in response to this change, the Department of Managed Health Care

suspended 15 pending appeals over autism coverage without explanation. It simply

said that it was " re-reviewing eligibility rules. " Eventually, it allowed

pending cases to go forward, but warned that these could be the last of the

cases to go to medical review.

Then on March 9, the department issued a memo to health plans, which, on its

face, looks like a simple reminder to plans of their legal obligations to cover

autism treatment. Practically, however, the memo seems to effect changes that

impose significant obstacles for parents seeking treatment.

First, in listing the types of autism treatment that plans have a legal duty to

cover, the memo excluded Applied Behavioral Analysis. This glaring omission

raises troubling questions about the department's classification of the

treatment. It is viewed as a wink and a nod to plans to continue denying the

treatment, effectively requiring parents to routinely endure layers of appeals

and longer waits for treatment than patients seeking coverage for other medical

conditions.

Second, the memo may prevent challenging Applied Behavioral Analysis denials

through independent medical reviews. In the memo, the department states it " will

initially make a determination whether the service being sought is a covered

health care service. " If so, the plan member will be able to seek a medical

review for denials based on medical necessity and claims that treatment is

experimental. Parents and advocates fear that this was intended to allow plans

to avoid medical reviews by claiming that the treatment is an educational

service, rather than using typical " medical necessity " or " experimental "

language in its denials. If so, this would remove an important legal tool that

has helped parents get treatment during the critical window in which their

children need it.

While the actual effect of the memo is unclear, this fear is justified in light

of the inexplicable suspension of Applied Behavioral Analysis appeals, the

announcement of a review of eligibility rules for medical reviews, and the

warning that denials may not get independent medical review in the future. These

actions are confusing, lack substantive support and seem to signal a retreat in

enforcement activity that undermines patients' access to care. For these

reasons, these actions are also vulnerable to legal challenge.

The department has a duty to enforce the law, and prevent plans from violating

their members rights. It cannot act inconsistently with it or undermine these

protections. But it is doing just that if it arbitrarily removes medical reviews

as a means for challenging autism denials and permits plans to avoid covering

standard, medically necessary care.

Moreover, if the memo reflects a change in how Applied Behavioral Analysis is a

classified or how patients' medical review rights are determined, then it

constitutes illegal rulemaking. California law prohibits state agencies from

issuing guidelines or other criteria designed to implement, interpret, or govern

the enforcement of a law unless adopted through a formal rulemaking process.

This requires public notice, public hearings allowing the proposed changes to be

vetted by all stakeholders and a record that supports the agency's action. The

department even acknowledged its duty to initiate rulemaking proceedings, but

prematurely changed course anyway.

Perhaps there are legitimate reasons for these changes, but the deparment has

not provided them. T

here is no explanation for excluding Applied Behavioral Analysis or for why

treatment that has consistently been defined as a standard, medical treatment

should suddenly be considered a non-health care service. It is also unclear why

the " education " label should impair patients' rights to a medical review to

challenge a denial that is fundamentally about whether Applied Behavioral

Analysis is standard, medically necessary care.

The department's response to this re-labeling is particularly worrisome because

of evidence that plans use the " education " label inconsistently and in

discriminatory ways. According to the Kaiser complaint, plans claim that speech,

occupational and behavioral therapy are " educational " services to avoid covering

them for autism, but it covers them for other medical conditions. How can

services be medical for one patient but not another?

One provider explained that plans are more willing to cover therapeutic services

for " acquired disabilities " (such as those from stroke) because of the

likelihood that the person will improve to " normal " or a clear " baseline level

of function. " Patients with developmental disabilities are unlikely to get to

" normal " and their needs are perceived as open-ended. Whether motivated by bias

that devalues people with developmental disabilities or by concerns that this

group costs too much money, this is the kind of discrimination the Mental Health

Parity Act was intended to combat.

This struggle over autism treatment proves that regulators are the critical link

between legal promises of coverage and the reality of access to care. Sadly, the

Department of Managed Health Care's actions undermine this promise.

Brietta is a professor of law at Loyola Law School in Los Angeles. Her

research focuses on health care access, discrimination in the area of

reproductive health care, the role of civil rights law in remedying disparities

in health care and medical research on human subjects.

This article appears on Page 6

 

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Love, Gabby. :0)

http://stemcellforautism.blogspot.com/

 

" I know of nobody who is purely Autistic or purely neurotypical. Even God had

some Autistic moments, which is why the planets all spin. " ~ Jerry Newport