Parents of autistic children scored a major victory in a California Court of Appeal decision issued late yesterday, which now bars state regulators and health insurers from discriminating against children on the basis of whether treatment providers hold state licenses. The state regulator's discriminatory policy led to long delays, and often denials, of treatment for autistic children.
Download the decision here:
The lawsuit, filed in 2009 by the non-profit Consumer Watchdog and Strumwasser & Woocher LLP, was also the catalyst for a landmark state autism law, SB 946, authored by Senate President Darrell Steinberg in 2011.
The treatment at issue, known as Applied Behavioral Analysis (ABA), is the most effective treatment for autistic children, as yesterday's decision acknowledged.
Responding to concerns raised in the lawsuit, the California Legislature agreed with Consumer Watchdog and Strumwasser & Woocher LLP by passing SB 946, which clarified that health insurers must pay for ABA provided by individuals certified by a national board, even if they do not hold a state license. However, the legislation did not cover health plans for public employees enrolled in CalPERS and other state-sponsored programs.
Yesterday's California Court of Appeal decision now also bars the Department of Managed Health Care (DMHC) from allowing health insurers to deny treatment for autistic children of government employees, including police officers, firefighters, and school teachers, on the basis that such treatment can only be administered through state-licensed providers. As Consumer Watchdog and Strumwasser & Woocher LLP pointed out in the lawsuit, no state license currently exists for ABA therapists.
"Californians now finally have a definitive statement from the court that state regulators cannot allow health insurers to discriminate against autistic children merely because treatment providers do not possess a state license," said Fredric D. Woocher of Strumwasser & Woocher LLP, lead attorney in the case. "Families of firefighters, school employees and others covered by CalPERS-sponsored health plans will now be able to secure coverage for critical and effective treatment for autism. Health insurers can no longer deny coverage on the pretext that a treatment provider does not hold a state license, a practice which has been conclusively held to be illegal."
Read a letter from public employee unions, including the California Professional Firefighters, urging the court to end the DMHC's discriminatory rule: http://www.consumerwatchdog.org/resources/publicunionletter.pdfFrom the opinion of the court:
ABA is a time-intensive treatment. It is often prescribed for 26 to 40 hours per week. While there can be no doubt that the treatment plan for providing ABA to any autistic child must be established, modified, and supervised by a qualified expert in ABA, the evidence in this case indicates that the actual delivery of services to the child may be performed by a non-expert. A publication by the BACB suggests that a front-line behavioral technician need only be a high school graduate, who has subsequently received training in basic ABA procedures and demonstrated competency. (BACB, Guidelines: Health Plan coverage of Applied Behavior Analysis Treatment for Autism Spectrum Disorder (ver. 1.1, 2012) p. 27.) It appears that ABA, and similar behavior therapies, are somewhat unique among medical treatments in this respect. While the treatment plan must be created, modified, and supervised by a professional, a paraprofessional may actually deliver the services.