Autism and the Law

  • Jennifer Harris, PhD LMFT, BCBA-D

    Senate Bill 946 Helps Families Fund Treatment

    As parents, we want the best for our kids.  To that end, we pay for our health insurance benefits with the assumption that we may access those benefits when our kids are sick.  Inconceivably, until this past summer, our children diagnosed with ASD did not have access to benefits though desperately in need. Fortunately, thanks to Senator Darrell Steinberg and countless parents, advocates and service providers who lobbied for change, Senate Bill 946 was enacted and health insurance funding for ABA and other medically necessary behavioral health treatment finally became a reality for families.

     

    THE POLITICS OF AUTISM FUNDING

    Autism is a treatable condition when identified early and treated intensively with individualized behavioral health services. Research has repeatedly shown that children significantly benefit from upwards of 25-35 hours per week of ABA treatment. At this intensity, children learn new skills and behaviors that ultimately enable them to benefit from school and often go on to become contributing members of our society. The caveat? This treatment is costly due to the intensity of its application. Unfortunately, given the dismal economic climate in our state and the associated diminishing funds available for Regional Center consumers, our children’s services have been at risk for some time. Without looking for untapped funding sources, it was predicted that entitlement to funded treatment via the Lanterman Act (1969) would be revoked and with it, the hope for our state’s children diagnosed with ASD.

    In October of 2011, Governor Brown made history by signing into law SB 946, requiring health care coverage for the behavioral treatment of children diagnosed with ASD. Derived from Assembly Bill 88: The Mental Health Parity Act (2000), this new law, went into effect on July 1, 2012 and mandates that Autism treatment be funded by insurance in the same manner as any other covered medical diagnosis.  With a collective cheer, parents, providers, regional centers, and our state budget planning committee prepared for the transition ahead as autism services entered the unfamiliar territory of the health insurance industry.

     

    SENATE BILL 946 IN ACTION

    Since July, SB 946 has created plenty of excitement in our community.  Families are thrilled to be able to access their benefits to cover some, if not all, of their children’s services. Regional Centers and providers are feverishly working to determine if and how services are to be transferred while simultaneously educating families and themselves.  Insurance companies are quickly trying to assemble ABA departments, provider contracts, and policies for service provision.  Everyone involved is desperately trying to determine just how SB 946 works in real life.  It is frenetic and uncertain at times and, as a result, has been appropriately dubbed the new “wild west of autism treatment.”  Families are understandably overwhelmed, looking for a big horse to ride in on, and asking….

     

    WHERE DO WE BEGIN?

    1. Determine if your Health Plan is Subject to SB 946

    It is important to understand your particular health care plan and whether your child has ABA benefits as outlined in SB 946.  The easiest way to determine the specifics of your plan is to have your ABA provider call on your behalf, as they have direct and daily contact with each of the insurance carriers’ Autism Departments. Alternatively, you may call your carrier directly.  With a simple phone call you can learn what type of plan you have and your associated deductible, co-insurance, and/or copay information.

    It is important to document all interactions with your insurance carrier.  Note the date, time, representative’s name, and any information shared.  Record verbal requests by submitting a written follow-up.  Documentation is essential if you ever need to contest a service determination made by your insurance carrier.

     

    If you have insurance, it is likely that you have one of the following plans: 

    State Regulated Plans Though the law implies that all health care plans are required to fund, in reality, it applies only to those plans that are state-regulated by either the California Department of Managed Health Care (DMHC) or the California Department of Insurance (CDI). The DMHC regulates HMO plans while the CDI regulates PPO plans.  Individually purchased policies also fall into this category and are subject to SB 946.

    Self-Funded Plans Although your employer may provide excellent benefits, your child’s ABA funding may not be covered.  Often, larger companies offer self-funded plans with benefits paid directly by the company. In these cases, the employee is given what appears to be a standard health insurance card issued by a known carrier, implying that the plan is state-regulated and therefore subject to SB 946.  However, in these cases, the carrier is simply functioning as the plan administrator, while the employer is providing the actual coverage.  These plans are regulated under the Employee Retirement Income Security Act of 1975 (ERISA), through the Employee Benefits Security Administration of the Department of Labor.  These plans are not subject to SB 946.

    The Healthy Families Program & CalPERS Plans Though clearly excluded from the SB 946 mandate, the DMHC issued an emergency ruling this past September for both Healthy Families and CalPERS plans that require funding for treatment.  Specifically, Healthy Families and CalPERS HMO plans must now provide any and all medically necessary treatment to individuals with autism per Assembly Bill 88: The Mental Health Parity Act.  This ruling does not apply to CalPERS PPO plans.

    Medi-Cal Plans SB 946 clearly stipulates that a healthcare service plan in the Medi-Cal program is not subject to the new law.  Unfortunately, Medi-Cal plans are also excluded from the protections of The Mental Health Parity Act.  As such, families with Medi-Cal plans should continue to access treatment via the Regional Center system.

    If for any reason your child is ineligible for regional center services and you are having difficulty accessing assessment, OT, Speech, or other autism speciality service via your Medi-Cal coverage, you may contact the DMHC for assistance or to file a complaint.

    2. Understand what IS covered

    In describing services covered, SB 946 reads that behavioral health services include “professional services and treatment programs, including applied behavior analysis and evidence-based behavior intervention programs, that develop or restore, to the maximum extent practicable, the functioning of an individual with pervasive developmental disorder or autism.”  This includes but is not limited to the following:

    Under Your Behavioral Health Benefits:

    Psychological evaluation

    Diagnostic assessment

    ABA Services:

    - Home and community based ABA treatment, to include 1:1 treatment and clinical team-meeting

    - On-going ABA assessment, treatment planning, and case management to encompass direct observation, skill probes, data analysis and reporting, program planning, collaboration/ clinical team-meetings / coordination of care, and parent education/training

    - Social Skills Groups

    Family and/ or Marriage Counseling

    Under Your Medical Health Benefits:

    Any and all standard medical treatment

    Psychiatric consultation and medical management of symptoms

    Speech & Language Services

    Physical and Occupational therapies

    3. Understand what is NOT covered

    SB 946 does not cover RDI, Floortime, Facilitated Communication, Animal Therapy and other treatments that have yet to be sufficiently studied.

    In addition, SB 946 was not intended to “affect or reduce any obligation to provide services under an individualized education program.” This means that your child’s educational goals, such as reading, writing and mathematics, will continue to be funded and monitored through the IEP process offered by your school district.

    4. Secure Funding for Services

    After treatment eligibility is determined, you are ready to request services. Regardless of whether you have an HMO or PPO plan, prior authorization for behavioral health treatment is required.

    Whether you are requesting an ABA Assessment /Treatment Plan or continuation of on-going services, your provider will need a copy of your child’s diagnostic report, authored by a licensed mental health provider or physician, that includes the DSM IV diagnostic codes and recommendations for medically necessary treatment.  If you are requesting continuation of ongoing services, your provider will also need to provide a formal ABA Assessment and Treatment Plan to include an analysis of your child’s problem behavior and skill repertories, goals for treatment, and service recommendations outlined to achieve those goals. You can expect a response from your carrier (authorization or denial) within 5 days of either authorization request.

     

    ROADBLOCKS AND REMEDIES

    1. Denial Letters

    Despite doing everything right, denials happen.  Do not fret.  It is not over – this is the wild-west of autism treatment after all.  You are entitled to file an appeal per your plan’s grievance policy and can expect a response within 30 days. If the denial is upheld in the appeal process and you continue to feel it is unjustified, you have the right to file a complaint and request an Independent Medical Review (IMR) from the regulator. The DMHC or CDI can assist you through the process.

    2. Your Current Provider is Not “In-Network” with Your Carrier

    Under California law, many health plans offer continuity of care agreements when a patient has a serious and chronic condition, such as Autism, in order to limit treatment provider changes that may result in child regression and undue stress on families.

    Continuity of Care Policies in many plans stipulate that patients who qualify may continue to be served by treating providers for up to one year if the provider is willing and able to do so under a single case agreement and without the additional out of network costs.

    To receive continuity of care, you should request a copy of your health plan’s written policy and formally request it as indicated. If your health plan denies your request for continuity of care, you may file an appeal with your health plan.  If your appeal is denied, you may request review by the DMHC or CDI.

    3. Regional Center and School District Funded Services

    By law, the Regional Center is the “payor of last resort.”  By design, SB 946 was created to distribute funding responsibility and lessen the financial burden threatening to sink the Regional Center system. Therefore, if you currently have Regional Center funding, you have been undoubtedly informed that you must provide a denial of service letter from your insurance carrier to continue to access funding.  If you have a denial letter, your Regional Center services will proceed as planned.  If you have been approved by your insurance carrier, all regional center funding will stop as your insurance carrier takes over.

    In contrast, SB 946 has no bearing on your school district funded educational services.  If your child’s IEP includes educational goals, those services are to stay in place regardless of the setting in which they are targeted.

    4. Copays

    Given the intensity of behavioral health treatment, copays are a new challenge for families.  As such, Regional Centers have agreed to either reimburse families directly or pay provider invoices for copays incurred for those hours that the Regional Center would have provided. To receive copay funding, your provider must send progress reports to the Regional Center throughout treatment.

    5. Ineligible for Funding

    If you have a received a denial letter from your insurance carrier be it for a self-funded plan, an out of state plan without a similar mandate, or a Medi-Cal program, and your child has also been found ineligible for regional center funding, you may want to consider securing an individual policy for your child. Insurance companies cannot deny access to coverage based upon a diagnosis of autism.  They can, however, bill up to four times more for the policy.  You can reduce this up-charge by purchasing your child’s coverage in the month of their birth.  If purchased carefully, an individual insurance policy is a great way to guarantee that your child has access to the funding and services he or she needs.

    LOOKING AHEAD

    Senate Bill 946 expires in 2014.  Many wonder what challenges lie ahead for families desperate to secure effective and medically necessary treatment for their children diagnosed with ASD today, tomorrow and in the years to come.  Will federal healthcare reform help or hinder progress made?  At this point in time, we can only hypothesize about what is to come.

    Nevertheless, our theories may be guided by what has already occurred.  We witnessed a rapidly failing funding system do their best to try to meet the demand of their ever increasing consumers diagnosed with ASD.  We saw parents, providers, and law makers join together in an unprecedented, grass roots effort to find a solution and make history with the passing of SB 946.  We have seen autism awareness increase, positive outcomes continually documented, and our kids grow into independent and contributing young adults.

    There is no reason to assume that progress will stop.  In fact, SB 946 has already set the stage for the federal healthcare mandates set to go into effect on or before January 1, 2015. Our community is strong and I have no doubt that autism treatment and funding policy will only improve as new cowboys for change emerge and create laws that serve to further protect our state’s children.  The need for treatment will not diminish and we, like before, will find a way to be there for our kids who need us the most as we enter the new frontiers ahead.

     

                Dr. Jennifer Harris, LMFT, BCBA-D is the founder and Executive Director of FirstSteps for Kids, Inc. With offices in Northern and Southern California, FirstSteps’ clinical teams provide home, school, and community-based intensive ABA treatment to children diagnosed with ASD.  FirstSteps is a vendor of Regional Centers and is a Non-public agency contracted with the Dept. of Education. Dr. Harris has been a strong advocate for families seeking to access their health insurance benefits and has repeatedly testified at the DMHC Autism Task Force meetings to ensure SB 946’s intent is realized. FirstSteps is a network provider with the majority of health care plans in California.  For more information about Dr. Harris or FirstSteps, please visit www.firststepsforkids.com or call 800.819.FSFK.

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