In its latest volley, Providence asked Judge Michael H. Simon on Wednesday to deny a class-action status to plaintiffs suing the insurer for its denial of coverage. A class-action would allow the plaintiffs’ lawyers to represent all Oregon Providence members with autism spectrum disorder. If the plaintiffs win a class-action, Providence could be forced to pay for applied behavior analysis treatment cases for many more children than the two identified in the lawsuit.
The new Oregon law requires applied behavior analysis coverage by 2016 for private health insurance plans, but public employees qualify in 2015. Since Providence administers the primary health insurance plans for the Public Employees Benefit Board, it intends to voluntarily offer autism coverage for all its members on Jan. 1, 2015, according to its attorney, William Gary.
But Providence is clearly not ready to pay for the treatment today. And, in the insurance company’s latest gambit, it has denied two more claims for applied behavior analysis on the novel argument that the insurer simply doesn’t provide care for developmental disabilities — the issue now before the federal court.
In his legal brief on behalf of Providence, attorney Arden Olsen wrote that Providence chose its current tactic because the insurer has no legal recourse if an independent review board physician rules against them on experimental grounds. The argument that Providence does not cover developmental disabilities is a legal question and not a medical question and gives them their day in court.
Oregon law does allow insurers to refuse coverage for many developmental disabilities, such as tutors and special education. But the law requires coverage for the treatment of autism spectrum disorder, as Providence itself noted in its 2011 rate filing with the Oregon Insurance Division:
“Providence believes we are able to exclude treatment for developmental and learning disabilities, other than autism spectrum disorders, under the mental health coverage of our plan because the statutory definition of mental health, OAR 836-053-1404, allows for such exclusion.”