Provider Favors Licensing

 The Politics of Autism includes an extensive discussion of autism service providers.  Private equity firms now own many of them.   Insurance mandates and Medicaid spending have contributed to the growth trend.

In 1971, George Stigler wrote that "regulation is acquired by the industry and is designed and operated primarily for its benefit."  By seeking requirements such as occupational licensing, incumbents seek to limit competition.

Breaking News ABA:

Centria Autism told Florida’s applied behavior analysis (ABA) task force on October 5 that the state should license every provider location, charge each one $1,000 a year for inspections, and reduce Medicaid payments at locations that fail. The company operates in 11 states but does not provide ABA in Florida, according to the Florida Phoenix.

Shevaun Harris, secretary of the Agency for Health Care Administration (AHCA), which runs Florida Medicaid, chairs the task force but does not vote. She said she found it “interesting” that a provider would advocate licensing ABA facilities. “I just want to note our agency has been very intrigued by that concept,” she said, according to the Florida Phoenix. “We’ve had the same conversation here at the agency,” she added, citing “individuals going into people’s homes of very vulnerable kids.”

Florida recorded $6.57 billion in Medicaid and Children’s Health Insurance Program (CHIP) payments for ABA from 2023 through 2025, the highest state total in federal data AHCA presented in August. Lawmakers created the panel in 2026 to recommend changes to the program, from authorization limits to provider billing standards.

Private equity firm Thomas H. Lee Partners acquired Centria in 2019 in a deal reported at $415 million. The 74’s September analysis of federal Medicaid payment data ranked Centria first among the ABA providers it identified, with more than $440 million in payments recorded from 2019 through 2024. CEO David Harbour, who made the licensing pitch, said it could help “create standardization around the services,” according to the Phoenix.

AHCA separately asked whether required technician supervision should rise from at least 5% of service hours to 10% to 20%. Minutes approved at the meeting also document discussion of limits on approved hours. These remain proposals, rather than final task force recommendations.

Medicaid Reimbursement Rates

The Politics of Autism includes an extensive discussion of insurance and Medicaid services for adults with intellectual and developmental disabilities.

Morgan Gonzales at Behavioral Health Business:

Medicaid reimbursement rates are largely trending upward for autism therapy providers, but burdensome regulations still pose significant hurdles to growth.

To overcome these challenges and improve rates, all players in the autism therapy industry, including private equity firms, must become involved in advocacy work, industry insiders said at the Behavioral Health Business Autism & Addiction Treatment Forum.

“No margin, no mission,” Darren Patz, partner of government affairs and public policy at international law firm DLA Piper, said at the event. “You get the rates, and everything can flow from that.”


Medicaid reimbursement for services performed by registered behavior technicians (RBTs) and board-certified behavior analysts (BCBAs) is relatively new, according to Patz, so states are still in the process of determining rates.
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Private equity-backed ABA providers must also join advocacy efforts, Patz said. Group advocacy work also provides a platform for providers to share best practices, he added.

Private equity has played an increasingly prominent role in autism therapy dealmaking. Private equity firms completed 85% of all M&A between 2017 and 2022, according to research. The federal government has also increasingly scrutinized private equity activity in behavioral health, launching a probe into private equity’s role in health care in March.

Disabilities and the End of Chevron Deference

Uncertainty and complexity are major themes of The Politics of Autism.

ASAN:

The Autistic Self Advocacy Network (ASAN) condemns the United States Supreme Court ruling on two combined cases, Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. The decision overturns a decades-old legal principle known as the Chevron Doctrine, which gives federal agencies the authority to reasonably interpret ambiguous laws when they create federal regulations. These regulations are made legally binding through a rulemaking process that is shaped by the public servants within federal agencies, the input of subject area experts across fields, and anyone who chooses to share their opinion. Instead, federal courts will now have the final say in circumstances where knowledge of highly specialized, complex, and technical issues is required. This ruling will weaken the regulatory authority of all federal agencies, including the Departments of Labor (DOL), Education (ED), Health and Human Services (HHS), the Social Security Administration (SSA), the Environmental Protection Agency (EPA), and the Food and Drug Administration (FDA).

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This decision invites challenges to the forty years of legal precedents relying on Chevron. While these cases and the existing Code of Federal Regulations are not automatically overturned by Loper and Relentless, many will be challenged in the months and years to come. Future regulations are also under threat. Agencies may be less ambitious in fulfilling their mandates, protecting the public, and using taxpayers’ resources well in the face of increased risk that courts will undo their work. The endangered regulations include the Home and Community Based Services (HCBS) Settings Rule, the final rule implementing Section 504 of the Rehabilitation Act, the final rule implementing Title IX of the Education Amendments, and the final rule regarding section 1557 of the Affordable Care Act (ACA).

Regulation and Kevin and Avonte's Law

The Politics of Autism discusses the problem of wandering, which is the topic of legislation before Congress.

Daniel Etcovitch writes at The Huffington Post about Kevin and Avonte's Law:

There’s an extra piece though: a bit of regulation of the technology comes along with making it available to more people. The bill calls for the Attorney General’s office, along with the Department of Health and Human Services, to devise best practices in relation to privacy and data collection for technologies that will track wandering children with developmental disabilities.
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That’s the part of the discussion around Kevin and Avonte’s Law that is so amazing: it hasn’t been treated as controversial. Usually when the Attorney General’s office is given a mandate to develop practices for data collection, or is involved in regulating any kind of technology, there is uproar. Every relevant company, non-profit, and academic group chimes in. Debates erupt on forums, in the tech press, and in journals. That is just not happening with Kevin and Avonte’s Law.

Paperwork on the Other Side of the Pond

In The Politics of Autism, I discuss red tape.  I also discuss the need for more study of the issue in other countries.

Crawley is a community in West Sussex, UK.  At Crawley News, autism mom Maria Cook writes:

A WEEK before we left for our wedding/holimoon in Jersey, a large, brown envelope from the Department for Work and Pensions dropped onto our doormat. My heart sank as I knew what was inside - Ryan's Disability Living Allowance renewal forms. This dreaded paperwork sends shivers right through me and every parent/carer that I know.

The document is 42 pages long, with a lot of specialist questions requiring very in-depth answers. There was no way I was even going to look at it until we got back home because of all the final preparation needed for the wedding and holiday, so I filed it at the top of my very extensive 'to do' list. And there it stayed for the rest of the school holidays, staring at me and I'm sure I could hear it keep whispering to me "Fill me in, fill me in, time is ticking. You don't want to lose Ryan's entitlement do you?"

No, of course not, but it's very time consuming and actually extremely depressing to complete and you need to be in the right frame of mind to tackle it, never mind the fact that Ryan requires 1:1 adult supervision at all times so I physically couldn't do it either.I psyched myself up to tackle it once Ryan was back at school and tackle it I did. I had to gather lots of evidence in the form of reports from professionals he is under and his current statement of special educational needs in order to back up the essays I wrote for every single question.

A report was also needed from 'someone that knows the child, asking how their condition affects them. I sent two, one by Ryan's previous teacher who knows him inside out and all of his complexities and one by my husband Lee, which was four pages long.
My answers to the questions amounted to an extra 14 pages on top of the 42 in the official renewal form. It was a mammoth task to complete and it actually took me THREE WEEKS to get it all done to my satisfaction, whilst the ironing pile resembled the Leaning Tower of Pisa and the housework was well overlooked.

Regulatory Actions

In The Politics of Autism, I discuss the rights of autistic people.  Autism Speaks reports:

The U.S. Department of Transportation (DOT) has issued a new guide detailing rules for air carriers accommodating families and individuals with autism.

The Air Carrier Access Act details rules for airline accommodations and protects individuals with disabilities in air travel.

For many families and individuals with autism, traveling requires certain accommodations from the airline industry to provide safe, comfortable flight. For example, the guideline explains that airlines must provide accurate information about what accommodations they can provide individuals with disabilities. It also suggests informing the airline how it may assist you. The airline may be able to provide health, safety, dietary, or sensory accommodations to make travel easier.

In May, a 15-year-old with autism and her family were allegedly removed from a United Airlines flight after experiencing difficulties in accessing needed accommodations. The guideline details when an airline may deny boarding or remove a passenger with a disability.

Disability Scoop reports:

The Obama administration is taking new steps to ensure that people with disabilities don’t face discrimination at the doctor’s office.

The U.S. Department of Health and Human Services has put forward new regulations clarifying protections for people with disabilities when it comes to health care and insurance coverage.

Specifically, the proposal published Tuesday in the Federal Register mandates that health care providers “make reasonable modifications in policies, practices or procedures when necessary to avoid discrimination on the basis of disability.”

The State, Insurance, and D-Day

The issue of autism insurance mandates may cause people to wonder: Insurance is obviously interstate commerce, so why does regulation fall to state governments?  (Self-funded plans are a major execption.) In part, the answer lies in something that was in the news 71 years ago today.  In my forthcoming book, The Politics of Autism, I explain:

In 1944, the United State Supreme Court ruled that insurance was a form of interstate commerce and therefore subject to federal regulation.[i] The general public did not give much thought to the decision, since it appeared in the newspapers on the morning of June 6, also known as D-Day. Insurance companies did pay attention. They worried that the federal government could now use antitrust law to ban anti-competitive practices that had enriched them. They found allies in state officials, who feared that the ruling might jeopardize their ability to tax insurance. Accordingly, the National Association of Insurance Commissioners drafted a bill to exempt insurance from most federal regulation.[ii] Senators Pat McCarran (D-Nevada) and Homer Ferguson (R-Michigan) sponsored the bill, and an amended version – the McCarran-Ferguson Act – became law in 1945.

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[i] United States v. South-Eastern Underwriters, 322 U.S. 533 (1944). Online: https://supreme.justia.com/cases/federal/us/322/533/case.html.

[ii] Erin K. Powrie, “`Too Big to Fail’ Is Too Big: Why the McCarran-Ferguson Exemption to Federal Antitrust Enforcement of Insurance Is Past Its Prime,” Rutgers Law Review 63 (Fall 2010): 359-388, at 367-368. Online: http://pegasus.rutgers.edu/~review/vol63n1/Powrie_EIC.pdf. 

See below.  The story about the case is in the lower left -- and was probably the least-noticed front page story in the paper's history.

IDEA Paperwork

At Education Week, Christina Samuels writes:

Two House Education Committee leaders are asking the Government Accountability Office to find out which parts of the Individuals with Disabilities Education Act create the most paperwork for schools and districts, and to figure out why no state has taken advantage of paperwork-reduction pilot programs that were written into the law when it was reauthorized nearly 10 years ago.

U.S. Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce committee, and Rep. Todd Rokita, R-Ind., the chairman of the House education subcommittee on K-12 policy, both signed the letter, dated Dec. 17. In it, they also asked the agency to find out if innovative technology could play a role in reducing paperwork, and if administrative redundancies make the paperwork problem worse.

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The Dec. 17 letter from the legislators said that nothing ever came from a provision in the law that would allow the U.S. Department of Education to create model IEP forms, either. Those model forms exist, but have never been "adopted in the field," Kline and Rokita write.

Autism Speaks and Federal Employees Health Benefits

An Autism Speaks release on federal health benefits:

Autism Speaks hailed today’s announcement by the federal government, the nation’s largest employer, that Applied Behavior Analysis (ABA), the most widely used behavioral intervention used to treat autism, is a “medical” therapy that qualifies for health insurance coverage, rather than an “educational” service.

The decision by the U.S. Office of Personnel Management (OPM) involves health insurance coverage provided to the nation’s eight million federal employees, retirees, and dependents, under the Federal Employees Health Benefits (FEHB) Program. It could have even more far-reaching implications on the health insurance benefits provided all Americans living with autism, as it will be much harder for insurance companies to continue denying coverage for ABA treatment.
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“The OPM decision directly contradicts a long-standing insurance industry claim that ABA therapy is not ‘medical,’ but rather ‘educational’ - provided by the schools at taxpayer expense,” said Peter Bell, Autism Speaks executive vice president for programs and services. “Now, tens of thousands of families will have better access to more affordable, critical ABA treatment.”

The decision was rendered in the form of guidance to insurers who participate in the FEHB Program for policies that will be renewed or issued starting in 2013. The OPM decision does not require the insurers to cover ABA, but rather allows them to offer the coverage as it does many other medical treatments. The guidance reads: “The OPM Benefit Review Panel recently evaluated the status of Applied Behavior Analysis (ABA) for children with autism. Previously, ABA was considered to be an educational intervention and not covered under the FEHB Program. The Panel concluded that there is now sufficient evidence to categorize ABA as medical therapy. Accordingly, plans may propose benefit packages which include ABA.”

Autism Speaks has fought to provide families insurance coverage for ABA therapy through state-regulated plans, self-funded group plans that are regulated under federal law, the FEHB Program, and TRICARE for military families. In each instance, opposition to covering ABA treatment has been based in large part on the claim that ABA is educational, rather than medical. 

Delay in Virginia Mandate

An earlier post told how a licensing issue could hold up implementation of the Virginia mandate. Now, Bill McKelway writes at The Richmond Times-Dispatch:

Hundreds of families across Virginia who had counted on mandated insurance coverage for their autistic children next month may have to wait untold months more for help.

Despite a law signed by Gov. Bob McDonnell in May after more than a decade of lobbying that requires the insurance and that becomes effective in January, implementation of the law is being delayed by the state Department of Health Professions because of what some observers describe as a questionable need for a "technical fix" in the law.

Longtime advocate John W. Maloney of Richmond accuses state agencies and others of "deliberately dragging their collective feet" to appease business interests "while 3-year-olds with autism don't get treatment."

"It's unconscionable and breaks a promise from the governor that hundreds of families would have this valuable care available to them," said Mark Llobell of Norfolk, a founder of the Virginia Autism Project and the grandfather of an autistic boy. He has spent tens of thousands of dollars from retirement benefits and second mortgages to pay for special care for his grandson that would be covered by insurance under the new law.

But the governor's office is pointing to Attorney General Ken Cuccinelli, whose office concluded that the new insurance law cannot mandate the state Board of Medicine to create a licensing regimen for a special class of therapists trained in handling autistic children.

West Virginia Psychologists Ambush ABA Providers

Economist George Stigler taught that "regulation is acquired by the industry and is designed and operated primarily for its benefit." WSAZ in West Virginia reports on an example:

An important therapy treatment for kids living with autism has been cut off due to an emergency rule passed by a state board.

The West Virginia Board of Examiners of Psychologists passed a rule in May that was enacted in July, requiring all behavior analysts to be supervised by a licensed psychologist at all times.

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The board’s emergency rule says the people who provide ABA therapy are an “immediate threat to public safety."

The board claims they're doing the work of a psychologist without a license.

"I've worked with people with autism for about 30 years. And to suddenly find out that I'm a threat was just incredible that it should come to this," says Delayne Plata, a national board certified applied behavior analyst.

The new rule caught many people, including Plata, off guard. She says there aren't enough doctors for constant supervision to be practical, so she's stopped providing treatment.

The case also teaches a lesson: advocates for a vulnerable population have to keep close watch on government agencies. The State Journal reports:

Autism advocates are suing the Board for violating open meetings laws.

A spokesperson for the West Virginia Secretary of State's Office said the state code requires an emergency rule be passed if an emergency exists, if the agency requesting the rule has the authority to do so and if the public interest is affected.

The spokesman said the office cannot disapprove an emergency rule just because the office doesn't like the rule, and it would have gone into effect 45 days after the agency requested it even without the office's approval.

He also pointed out the rule was on the secretary of state's website more than 30 days for public comment before it was approved July 15.

A Regulatory Problem in California

The Center for Autism and Related Disorders (CARD) has sent out an email about a proposed regulatory change in California:

The Department of Developmental Services (DDS) is attempting to implement new regulations that will negatively impact our ability to provide quality services to our clients. The proposed regulation gives DDS the ability to lower our reimbursement rates for therapy work and increases the experience requirement for our therapists. This means that in most cases we will not be able to afford to keep our current therapists on staff. Our Regional Center reimbursement rates are already very low and the planned 25% cut will make it financially impossible for us to hire, train and retain great therapists. Plus, most of our therapists come to CARD for their first clinical position and they do so because of our exceptional training program. However, if they don't apply to CARD with at least 6 months of previous experience, we won't be able to hire them. How are these bright people supposed to get experience if organizations like CARD can't hire them?

We need the current requirements to stand so that services are not disrupted or discontinued. The current Regional Center rates are already low. Please tell the DDS that forming a new position called Behavior Management Technician (Paraprofessional) is not a solution to the current crisis. Please take a few minutes to email the DDS and ask them to keep the existing requirements in place.

Send your comments by WEDNESDAY, AUGUST 31 to joellen.fletcher@dds.ca.gov AND staff@oal.ca.gov.

For more information, visit the following websites and read below:
Click here: http://www.dds.ca.gov/proposedregs/BehaviorManagement/NOPR.pdf
Click here: http://www.dds.ca.gov/proposedregs/BehaviorManagement/FindingStatement.pdf

(b) Effective September 6, 2011, the following service code shall be assigned to the following type of service: Behavior Management Technician (Paraprofessional) - Service Code 616. A regional center shall vendor a group practice, vendored pursuant to Section 54319, for the above service. The Behavior Management Technician (Paraprofessional) shall practice under the direct supervision of a certified Behavior Analyst or a Behavior Management Consultant who is vendored within the same group practice. The Behavior Management Technician (Paraprofessional) implements instructional and environmental modifications to produce socially significant improvements in the consumer's behavior through skill acquisition and the reduction of behavior. The Behavior Management Technician (Paraprofessional) shall meet the following requirements: (1) Has a High School Diploma or the equivalent, has completed 30 hours of competency-based training designed by a certified behavior analyst, and has six months experience working with persons with developmental disabilities; or

(2) Possesses an Associate's Degree in either a human, social, or educational services discipline, or a degree or certification related to behavior management, from an accredited community college or educational institution, and has six months experience working with persons with developmental disabilities.

(12) Behavior Management Technician (Paraprofessional) - Service Code 616 Regional centers shall contract for Behavior Management Technician (Paraprofessional) services at no more than 75% of the regional center's median hourly rate or the statewide median rate for Behavior Management Assistant - Service Code 615, whichever is lower.

Licenses,ABA, Insurance, and Virginia

A couple of days ago, the issue of licensure cast a shadow on the managed-care agreement in California. It has come up in Virginia, too. Elizabeth Simpson writes at the Virginian-Pilot:

Families of children with autism celebrated the passage of a law earlier this year that would require insurance to cover a costly treatment for the developmental disorder.

But advocates who worked more than a decade for the law, which goes into effect Jan. 1, 2012, were disappointed to find out that an amendment made by the governor could delay a key piece as long as two years.

One of the governor's amendments requires therapists of Applied Behavioral Analysis -- the gold standard treatment for autism -- to be licensed by the state of Virginia.

The regulatory process to set up a new license in Virginia takes 18 months to two years to complete, according to Karin Addison, a special adviser in the state's office of Health and Human Services. She said the law does not contain a fast-tracking clause, which could have sped up the process.

Even if legislators tried to add a fast-tracking clause to the law now, only 10 objections are needed to derail such an effort, which would be likely given the controversial nature of the law.

Opponents included the National Federation of Independent Business, Independent Insurance Agents of Virginia, the Virginia Chamber of Commerce, and the Virginia Association of Health Plans. They opposed the law because of the increased cost to companies during an economically difficult time.

For a substantive argument in favor of licensure, see Michael F Dorsey, Ph.D., BCBA, Michael Weinberg, Ph.D., BCBA, Thomas Zane, Ph.D., BCBA, and Megan M Guidi, M.S. Ed., BCBA

"The Case for Licensure of Applied Behavior Analysts," Behav Anal Pract. 2009 Spring; 2(1): 53–58.

On the other hand, remember what George Stigler said:

[As] a rule, regulation is acquired by the industry and is designed and operated primarily for its benefit.

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The licensing of occupations is a possible use of the political process to improve the economic circumstances of a group. The license is an effective barrier to entry because occupational practice without the license is a criminal offense.