OR DFR Bulletin 2014-02: Autism Spectrum Disorder; Applied Behavior Analysis Therapy

OREGON INSURANCE DIVISION BULLETIN INS 2014-2

TO:

All Health Insurers, Health Care Service Contractors and Other Interested Persons

DATE:

November 14, 2014

SUBJECT:

Autism Spectrum Disorder; Applied Behavior Analysis Therapy

I.

Introduction

A.

Purpose of Bulletin

Today, the Oregon Insurance Division (division) issued bulletin INS 2014-1 detailing the

division’s expectations of insurers issuing coverage subject to state and federal mental health

mandates. This companion bulletin INS 2014-2 provides additional guidance to insurers about

the expectations of the division regarding health benefit plan coverage for autism spectrum

disorder (ASD) and other pervasive developmental disorders (PDDs), including the treatment

known as applied behavior analysis (ABA).

In addition to the laws described in bulletin INS 2014-1, the specific statutes related to ASD,

PDD, and ABA are:

1. ORS 743A.190 (Oregon PDD); and

2. Enrolled Senate Bill 365 (2013 Legislative Session), 2013 Oregon Laws Chapter 771 (SB

365). In addition to adding provisions to the Insurance Code, SB 365 enacted ORS

676.800, creating the Behavior Analysis Regulatory Board (BARB).

In this bulletin, ABA has the meaning defined in SB 365. References to “mandates” in this

bulletin include the Oregon Mental Health Parity (MHP), Oregon PDD, and the federal Mental

Health Parity and Addiction Equity Act (MHPAEA) as implemented under the Affordable Care

Act (ACA). If only one mandate is discussed, the bulletin specifies which mandate.

B.

Background

In 2013, the division began developing guidance to clarify whether Oregon’s Essential Health

Benefit (EHB) Benchmark plan, the PacificSource Codeduct Value plan,1 included coverage of

1 OAR 836-053-0008(1)(a).

mented under the Affordable Care

Act (ACA). If only one mandate is discussed, the bulletin specifies which mandate.

B.

Background

In 2013, the division began developing guidance to clarify whether Oregon’s Essential Health

Benefit (EHB) Benchmark plan, the PacificSource Codeduct Value plan,1 included coverage of

1 OAR 836-053-0008(1)(a).

ABA. After considering the current status of pending lawsuits, work group discussions before

and during the 2013 Legislative Session, and legislative history related to SB 365, the division

decided to postpone issuing this guidance until the U.S. District Court for the District of Oregon

adjudicated the legal arguments in the A.F. v. Providence lawsuit.

In August, 2014, the U.S. District Court for the District of Oregon issued its opinion on the legal

arguments in A.F. v. Providence, a class action lawsuit challenging denial of coverage for ABA

therapy in Oregon. A number of other developments also have occurred that are consistent with

that opinion and that have assisted the division in developing this bulletin:

 Court decisions in Oregon and in other states with laws similar to ORS MHP and Oregon

PDD;

 Independent Review Organization (IRO) decisions that have repeatedly overturned

insurers’ denials of coverage for ABA;

 Health Evidence Review Commission (HERC) review and recommendation to cover

ABA therapy;

 Bulletins and rules adopted by insurance regulators in other states that address ABA

issues and statutes similar to Oregon’s statutes. These states include California, Indiana,

Washington, and New York.

A list of and citations for many of these developments is attached in Appendix A to this bulletin.

C.

Summary

The division expects insurers to comply with the following guidelines:

 An insurer must adjudicate ASD and PDD claims as mental health claims subject to state

and federal mental health parity laws

statutes. These states include California, Indiana,

Washington, and New York.

A list of and citations for many of these developments is attached in Appendix A to this bulletin.

C.

Summary

The division expects insurers to comply with the following guidelines:

 An insurer must adjudicate ASD and PDD claims as mental health claims subject to state

and federal mental health parity laws.

 An insurer may not categorically deny treatment for ABA therapy on the basis that the

treatment is experimental or investigational. Coverage decisions must be made on the

basis of individualized determinations of medical necessity and the experimental or

investigational character of the treatment in the individual case. Such determinations

must meet the requirements of federal and state law, including mental health parity

standards as set forth in INS 2014-1 and OAR 836-053-1405.

 An insurer may not apply a categorical exclusion (such as exclusions for developmental,

social or educational therapies) that results in a denial of all ABA or other medically

necessary treatment or otherwise results in the mandates being effectively meaningless

for ASD or PDDs.

 ABA therapy is a medical service for purposes of ORS 743A.190.

 Under SB 365, a provider actively practicing applied behavior analysis on August 14,

2013 (a “grandfathered provider”) may claim reimbursement from a health benefit plan

without being licensed until January 1, 2016. A grandfathered provider has that status for

any insurer and for any patient. An insurer may impose credentialing requirement on

ABA providers so long as the credentialing requirements do not prevent access to

treatment required under the mandates. An insurer is not required to contract with any

willing provider, but the insurer may not discriminate against any category of

l January 1, 2016. A grandfathered provider has that status for

any insurer and for any patient. An insurer may impose credentialing requirement on

ABA providers so long as the credentialing requirements do not prevent access to

treatment required under the mandates. An insurer is not required to contract with any

willing provider, but the insurer may not discriminate against any category of

legislatively authorized provider of ABA services and may not negate the mandate to

cover medically necessary mental health services by refusing to credential legally

qualified providers.

 The provisions of SB 365 that establish quantitative standards—the 25-hour per week

coverage standard and the nine-year old age standard—are floors, not limitations on ABA

coverage. As floors these provisions do not violate the MHPAEA. If applied as limits,

these provisions would violate MHPAEA and its regulations, unless the insurer imposed

the same limits as the predominant treatment limitation on substantially all of its medical

or surgical outpatient coverage.

D.

Related Bulletins

INS 2014-1 related to mental health parity provides general guidelines for all mental and nervous

conditions. Because ASD and PDD are mental health conditions subject to all of the mental

health laws described in bulletin INS 2014-1, all of the discussion in bulletin INS 2014-1 applies

to ASD and PDD. This bulletin describes additional considerations specific to ASD, other PDDs,

and ABA.

II.

Discussion

A.

Applicability

The Oregon PDD statute applies to health benefit plans issued or renewed on or after January 1,

2008. This statute was incorporated by law into the policy selected by Oregon as its benchmark

plan establishing Oregon’s essential health benefits (EHB) plan under OAR 836-053-0008

bulletin describes additional considerations specific to ASD, other PDDs,

and ABA.

II.

Discussion

A.

Applicability

The Oregon PDD statute applies to health benefit plans issued or renewed on or after January 1,

2008. This statute was incorporated by law into the policy selected by Oregon as its benchmark

plan establishing Oregon’s essential health benefits (EHB) plan under OAR 836-053-0008. The

benchmark plan, with limited exceptions, establishes the baseline requirements for all individual

and small group health benefit plans to be considered ACA-compliant (i.e., comply with all 2014

reforms, including but not limited to essential health benefits, nondiscrimination and guaranteed

issue).

SB 365 requires health benefit plans to cover screening, diagnosis, and medically necessary

treatment for ASD, including ABA therapy. It applies to commercial health benefit plans that are

issued or renewed on or after January 1, 2016. It also applies to the Public Employees’ Benefit

Board (PEBB) and the Oregon Educators Benefit Board (OEBB) for coverage beginning on or

after January 1, 2015; both boards have decided to accelerate the effective date of ABA coverage

(PEBB to August 1, 2015, OEBB to October 1, 2015).

B.

Coverage Requirements

Under State Law:

The Oregon PDD statute requires a health benefit plan to 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 that are medically necessary and are otherwise covered under the

plan. The statute includes, as medical services, rehabilitation services defined to include physical

therapy, occupational therapy or speech therapy services. Therefore, the mandate for medical

services requires at least some of both behavioral and physical services. ABA is a behavioral

service and is included among “all medical services.”

ically necessary and are otherwise covered under the

plan. The statute includes, as medical services, rehabilitation services defined to include physical

therapy, occupational therapy or speech therapy services. Therefore, the mandate for medical

services requires at least some of both behavioral and physical services. ABA is a behavioral

service and is included among “all medical services.”

SB 365 defines ASD using the Diagnostic and Statistical Manual of Mental Disorders, Fifth

Edition (DSM-5). As bulletin INS 2014-1 mentions, the division is adopting a rule to update the

references in OAR 836-053-1404(1)(a) to include the parallel references in DSM-5. ASD as

defined in SB 365 is a PDD under ORS 743A.190 and a “mental or nervous disorder” under

Oregon MHP.

The provisions of SB 365 that apply beginning January 1, 2016 (a year earlier for PEBB and

OEBB) are those specifically concerning procedures for management of ABA therapy. The

general requirement to cover medically necessary treatment for ASD already exists in the

Oregon MHP and Oregon PDD. Insurers should provide access to ABA under existing law

(Oregon MHP and PDD) as they would for any other treatment for a mental health condition.

Under Federal Law:

As bulletin 2014-1 summarizes, the regulations under MHPAEA prohibit quantitative treatment

limits on mental health benefits in any classification (e.g. inpatient, outpatient) that are more

restrictive than the predominant quantitative treatment limitation of that type applied to

substantially all medical benefits in the same classification. Because of this requirement, the 25-

hour per week floor for coverage of ABA therapy and the requirement to provide coverage if an

individual begins treatment before nine years of age established in SB 365, if applied as

limitations, could violate MHPAEA and therefore be prohibited

ative treatment limitation of that type applied to

substantially all medical benefits in the same classification. Because of this requirement, the 25-

hour per week floor for coverage of ABA therapy and the requirement to provide coverage if an

individual begins treatment before nine years of age established in SB 365, if applied as

limitations, could violate MHPAEA and therefore be prohibited. As stated in the preamble to the

final MHPAEA rules, the parity requirements of MHPAEA may require an insurer to provide

mental health benefits beyond the state minimum.2

C.

Exclusions or Limitations

An insurer may apply age limits to coverage of ABA therapy only in a way consistent with the

mandates. While medical necessity guidelines are helpful, the medical necessity and

experimental character of the treatment must be considered on an individualized basis for a

person of any age.

Insurers typically issue policies with broad-based treatment exclusions. Recent opinions by

courts, however, have indicated that although insurers may limit their coverage by including

broad exclusions, the scope of the exclusion must be restricted if the exclusion is inconsistent

with a statutory mandate. An insurer may not profess to include ASD and PDD coverage

required by these mandates while at the same time applying a broad exclusion that prevents the

insured from receiving medically necessary treatments for these conditions.

D.

Provider Qualifications

ORS 676.800 establishes the Behavior Analysis Regulatory Board (BARB) and sets out the

requirements for licensing and registering professionals who provide treatment for ASD using

ABA. Although SB 365 prohibits a provider who has not been licensed or registered by the

BARB from seeking reimbursement from an insurer starting in 2016, the bill recognizes the need

to allow continued services until the licensing and registration procedures are in place

Board (BARB) and sets out the

requirements for licensing and registering professionals who provide treatment for ASD using

ABA. Although SB 365 prohibits a provider who has not been licensed or registered by the

BARB from seeking reimbursement from an insurer starting in 2016, the bill recognizes the need

to allow continued services until the licensing and registration procedures are in place. As a

result, SB 365 grandfathers certain providers who were actively practicing ABA therapy on the

2 78 Federal Register at 68252.

effective date of the Act (August 14, 2013) and allows these providers to continue to claim

reimbursement without registration or licensing.

Grandfathering applies if the individual was actively practicing ABA on August 14, 2013,

whether as a Board Certified Behavior Analyst (BCBA), Board Certified Assistant Behavior

Analyst (BCABA), a licensed health care provider, or an interventionist (paraprofessional). For

purposes of grandfathering, it is not required that the individual was being reimbursed by an

insurer on August 14, 2013, so long as he or she was actively practicing ABA at that time. The

division expects insurers to provide reimbursement to grandfathered ABA providers until

expiration of the grandfathering period on January 1, 2016. This is consistent with the intent of

SB 365 to make resources available for access to ABA that insureds might not have if limited to

BARB-licensed or certified providers.

At this time, BARB expects the ABA licensing process to be available on December 1, 2014.

After the licensing process is available, a new provider who was not actively practicing on the

effective date of SB 365 must be licensed or registered in order to be reimbursed by an insurer

ces available for access to ABA that insureds might not have if limited to

BARB-licensed or certified providers.

At this time, BARB expects the ABA licensing process to be available on December 1, 2014.

After the licensing process is available, a new provider who was not actively practicing on the

effective date of SB 365 must be licensed or registered in order to be reimbursed by an insurer.

Because the BARB is within the Oregon Health Authority’s Health Licensing Office, providers

who have been registered with or licensed by the BARB are considered to be “approved” by the

Oregon Health Authority for the purposes of ORS 743A.168(5)(a) and thus eligible for

reimbursement under Oregon MHP. Under the provider nondiscrimination provision in ACA

Section 2706(a), 42 U.S.C. § 300gg–5, insurers may not discriminate in ACA compliant plans

against ABA providers licensed by or registered with BARB. Because the grandfathering

provision is an applicable state law in lieu of licensure or certification, Section 2706(a) also

applies to grandfathered providers in ACA compliant plans.

An insurer may apply credentialing requirements to grandfathered providers so long as the

credentialing requirements do not prevent access to medically necessary treatment as mandated

by state and federal law. The division does not interpret SB 365 to require an actively practicing

ABA provider to seek reimbursement from the same insurer or for the same patient in order to

qualify under the grandfather provision.

E.

Independent Review Organizations

The division has identified 22 instances since 2008 in which insurers’ denials of ABA therapy

were overturned by an IRO. The insurers’ denials were based on determinations that the

treatment was experimental or investigational. In these instances, the determinations were

overturned by the IRO, which found that such treatment is the recognized standard of care for

autism

t Review Organizations

The division has identified 22 instances since 2008 in which insurers’ denials of ABA therapy

were overturned by an IRO. The insurers’ denials were based on determinations that the

treatment was experimental or investigational. In these instances, the determinations were

overturned by the IRO, which found that such treatment is the recognized standard of care for

autism.

Insurers may not deny ABA claims as experimental or investigational unless there is a basis for

determining that for a specific patient. The division will examine IRO decisions regarding ASD

treatments including ABA therapy to determine if insurers are denying ABA claims on grounds

not permitted by law.

III.

Enforcement

An insurer’s denial of coverage on a basis prohibited by this bulletin may subject the insurer to

enforcement measures for violation of the Oregon Insurance Code.

This bulletin is dated the 14th of November, 2014, at Salem, Oregon.

_______________________________________

Laura N. Cali, FCAS, MAAA

Insurance Commissioner

Appendix A

AUTHORITIES

A. Legislative and Regulatory Materials

1. Cal. Health and Safety Code, 1374.72

2. California Code of Regulations, Subchapter 3 of Chapter 5 of Title 10, Article 15.2: Mental

Health Parity, Sections 2562.1 to 2562.4

3. California Department of Insurance, Notice “Enforcement of Independent Medical Review

Statutes” (May 17, 2011).

4. CMCS Informational Bulletin, “Clarification of Medicaid Coverage of Services to Children

with Autism” dated July 7, 2014.

5. DCBS 2009 Review of Coverage of Mental or Nervous Conditions and Chemical

Dependency in Accordance with OAR 836-053-1405(8)

6. Health Evidence Review Commission (HERC) coverage determination for ABA for ASD

(8/14/14)

7. HERC coverage determination for surgical sexual transition for gender dysphoria (8/14/14)

8. In Re United Health Care Insurance Company, Stipulation and Waiver (California Insurance

Commissioner Order)

9

Mental or Nervous Conditions and Chemical

Dependency in Accordance with OAR 836-053-1405(8)

6. Health Evidence Review Commission (HERC) coverage determination for ABA for ASD

(8/14/14)

7. HERC coverage determination for surgical sexual transition for gender dysphoria (8/14/14)

8. In Re United Health Care Insurance Company, Stipulation and Waiver (California Insurance

Commissioner Order)

9. Indiana Bulletin 136 (March 30, 2006)

10. MHPAEA final rules, Federal Register Vol. 78, No. 219 p. 68240 (November 13, 2013); 45

CFR §§ 146.136 and 147.160

11. New York Articles on Requirements for MHP

12. Senate Bill 365 Legislative History

13. Washington Insurance Commission, Letter dated October 20, 2014

B. Court Cases

1.

Arce v. Kaiser Foundation Health Plan, 181 Cal App 4th 471 (2010) Settlement

Agreement and Order Approving Settlement

2.

AF ex rel Legaard v. Providence Health Plan, 2014 WL 3893027 (2014)

3.

AG et al. v. Premera Blue Cross and Lifewise, No. 11-2-30233-4SEA, J.P. v. Premera

Blue Cross, No. 12-2-33676-8SEA, and R.H. v. Premera Blue Cross and Lifewise, No. 2:13-cv-

00097-RAJ, Proposed Settlement Agreement (May 7, 2014).

4.

Berge v. US, 879 F Supp 2d 98 (D.D.C., 2012) and 949 F Supp 2d 36 (D.D.C., 2013)

5.

Boyle v. Blue Cross Blue Shield of N.C., 2011 WL 60000786 (E.D. Mich., 2011)

6.

Chisholm ex rel CC, MC v. Kilebert, 2013 WL 3807990 (E.D.La., 2013)

7.

Churchill v. Cigna Corp., 2012 WL 3590691 (E.D.Pa., 2012) and Stipulation of

Settlement (January 2014)

8.

DF et al v. Washington State Health Care Authority et al, Superior Court of Washington

for King County, Case no. 10-2-29400-7 (June 8, 2011)

9.

Hummel v. Ohio Dept. of Job and Family Services, 164 Ohio App 3d 776, 844 NE 2d

360 (2005)

10.

Johns v. Blue Cross Blue Shield of Michigan, Case No. 2:08-cv-12272 (E.D. Mich)

Proposed Settlement and Order Approving Proposed Settlement.

11.

KG ex rel Garrido v. Dudek, 864 F Supp 2d 1314 (S.D.Fla., 2012) aff’d in part, 731 F3d

1152 (11th Cir., 2013)

Case no. 10-2-29400-7 (June 8, 2011)

9.

Hummel v. Ohio Dept. of Job and Family Services, 164 Ohio App 3d 776, 844 NE 2d

360 (2005)

10.

Johns v. Blue Cross Blue Shield of Michigan, Case No. 2:08-cv-12272 (E.D. Mich)

Proposed Settlement and Order Approving Proposed Settlement.

11.

KG ex rel Garrido v. Dudek, 864 F Supp 2d 1314 (S.D.Fla., 2012) aff’d in part, 731 F3d

1152 (11th Cir., 2013)

12.

KM v. Regence Blueshield, 2014 WL 801204 (W.D.Wa., 2014), and Settlement

Agreement (October 2014)

13.

Markiewicz v. State Health Benefits Commission, 390 N.J. Super 289, 915 A2d 553

(2007)

14.

Mayfield v. ASC Inc. Health & Welfare Benefit Plan, 2007 WL 5272861 (E.D.Mich.,

2007)

15.

McHenry v. PacificSource, 679 F Supp 2d 1226 (D.Or., 2010)

16.

Micheletti v. State Health Benefits Commission, 389 N. J. Super 510, 913 A2d 842

(2007)

17.

O.S.T .v. Regence Blueshield, 88940-6, 2014 WL 5088260 (Wa. October 9, 2014)

18.

Parents’ League for Effective Autism Services v. Jones-Kelley, 339 F. Supp. 2d 542 (6th

Cir., 2009)

19.

Potter v. Blue Cross Blue Shield of Michigan, 2013 WL 4413310 (E.D. Mich).

20.

Reid v. BCBSM, Inc., 984 F Supp 2d 949 (D., Minn., 2013)

21.

SAH ex rel SJH v. State Dept. of Social and Health Services, 136 Wash App 342, 149

P3d 410 (2006)

22.

ZD v. Group Health Cooperative, Case 2:11-cv-01119-RSL, Settlement Agreement filed

8/2/13 (United States District Court, Western District of Washington)

C. Arbitration Awards

1. Tappert v. Anthem Blue Cross Blue Shield, JAG Case No. 270779 (Nov. 20, 2007)

D. Articles

1.

Daniela Caruso, Autism in the U.S.: Social Movement and Legal Change, 36 Am. J. L. &

Med. 483 (2010)

2.

Jeffrey A. Cohen, Thomas A. Dickerson, Joanne Matthews Forbes, A Legal Review of

Autism, A Syndrome Rapidly Gaining Wide Attention in Our Society, 77 Alb. L. Rev. 389

bitration Awards

1. Tappert v. Anthem Blue Cross Blue Shield, JAG Case No. 270779 (Nov. 20, 2007)

D. Articles

1.

Daniela Caruso, Autism in the U.S.: Social Movement and Legal Change, 36 Am. J. L. &

Med. 483 (2010)

2.

Jeffrey A. Cohen, Thomas A. Dickerson, Joanne Matthews Forbes, A Legal Review of

Autism, A Syndrome Rapidly Gaining Wide Attention in Our Society, 77 Alb. L. Rev. 389

(2014)

3.

Kendra Hansel, Rethinking Insurance Coverage of “Experimental” Applied Behavioral

Analysis Therapy and Its Usefulness in Combating Autism Spectrum Disorder, 34 J Legal Med

215 (2013)

4.

Laura C. Hoffman, Ensuring Access to Health Care for the Autistic Child: More Is

Needed Than Health Care Reform, 41 SW L. Rev. 435 (2012)

.

Laura C. Hoffman, Health Care for the Autistic Child in the U.S.: The Case for Federal

Legislative Reform for ABA Therapy, 46 J. Marshall L. Rev. 169 (2012)