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Court Expands Coverage For Autism Treatment

THE DAILY JOURNAL OF LOS ANGELES

Costly 'applied behavioral analysis' must be provided by insurers, panel says

In a case that's drawn the attention of medical professionals in California, a state appellate panel this week expanded insurance coverage for a major autism treatment.

In partly affirming and partly reversing a trial judge, justices with Division 3 of the 2nd District Court of Appeal expanded application of a 2009 law to require both public and private insurers to cover applied behavioral analysis, a costly and widely accepted treatment for autism.

The justices rendered a similar opinion in September but vacated it and issued a broader finding on Wednesday.

Jerry Flanagan, an attorney with Consumer Watchdog, the group that brought the suit, said the opinion is a "clear statement from the cour that insurance companies can't deny autism treatment."

The agency it sued, the state Department of Managed Health Care, had permitted denial of applied behavioral analysis to patients on state-funded insurance plans that cater to low-income families. It argued that it did so on the basis that providers of the therapy were not licensed by the state. However, as Consumer Watchdog pointed out in the litigation, no such state license exists.

Many providers, however, are certified by the Behavior Analyst Certification Board, a private entity, and do not hold medical licenses.

Consumer Watchdog argued that all insurance companies should be required to cover the treatment.

In a twist, during the litigation, the state Legislature passed SB 946, a law required private insurers to cover the treatment, mooting part of the group's lawsuite. But the new appellate opinion expands the application of the law beyond the legislation to include state-funded insurance programs.

"The DMHC illegally allowed these companies to deny insurance coverage for families who couldn't find licensed providers," Flanagan said. "After five years and three different battlegrounds, you finally have a clear statement that no matter who you are or where you're enrolled, your kids can have access to autism treatment."

The plaintiffs also pressed to recover costs footed by families for the expensive treatment when insurers had denied treatment. The trial court and the justices declined to award the costs, however.

The appeals court partly affirmed and partly reversed a previous ruling by Los Angeles County Superior Court Judge Robert H. O'Brien.

Consumer Watchdog brought the suit with Strumwasser & Woocher LLP.

Wednesday's opinion was written by Justice Patti S. Kitching. She was joined by Presiding Justice Joan Dempsey Klein. Justice H. Walter Croskey wrote an opinion both concurring and dissenting.

During the proceedings, the DMHC's view that insurers were not required to provide applied behavioral analysis was at odds with the state Department of Insurance, which oversees health insurance. The Department of Insurance joined the plaintiffs to voice its interpretation that the state law mandated coverage of Applied Behavior Analysis.

The case is Consumer Watchdog v. Department of Managed Health Care, B232388 (Cal. App. 2nd Dist., filed June 30, 2009).

Attorneys for the state and the DMHC could not be reached Thursday.

In a statement, the DMHC said: "The ruling confirmed the DMHC's position that SB 946 equates Behavioral Analyst Certification Board (BACB) certification with licensure regarding the provision of ABA therapy in California."

chase_scheinbaum@dailyjournal.com