Will the state Supreme Court force Regence to cover autism treatments? Credit: Credit: www.classactionsnews.com
Regence BlueShield is now the lone remaining major health insurer in Washington State that refuses to reimburse parents for treatment prescribed to their autistic children. On June 12, Regence will defend its position before the Washington Supreme Court in O.S.T. v. Regence BlueShield. That's when the Supreme Court will consider whether to affirm a lower court’s ruling that ordered Regence to cover speech, occupational and physical therapy treatments for autism.
Today we all have friends who have been touched by autism. In the past 10 years, diagnoses of childhood autism have skyrocketed. Autism Spectrum Disorder (ASD) is now more common than childhood cancer, juvenile diabetes and pediatric AIDS combined. In 2013, the U.S. Centers for Disease Control and Prevention estimated the prevalence of Autism Spectrum Disorder was one in 50 for children aged 6-17. That represents a 72 percent increase since 2007.
Scientific research shows that early intervention and treatment of children with autism is highly effective. The literature indicates that currently available treatment allows almost half the treated children who receive it to be mainstreamed by first grade.
Early treatment dramatically reduces social costs. A seven-year old study estimated that, in the middle of the last decade, the incremental societal cost for a person with ASD was $3.2 million. But with rapidly improving treatment an autistic child who receives therapy early on is much more likely to lead a productive life, thus easing these burdensome costs.
Given these facts, it seems reasonable that private health insurers would cover treatment of childhood autism. Indeed, a landmark Washington law requires health insurers to pay. Enacted in 2005, the Mental Health Parity Act aimed to end discrimination in health insurance against people with mental health conditions, including neuro-developmental conditions like autism.
Despite the law, Washington insurers continued to exclude or limit coverage of key autism therapies. Diagnoses and improvements in treatment grew, but insurers failed to keep up and a string of recent lawsuits followed. Parents of autistic children sued Group Health Cooperative in 2010, and then Premera Blue Cross and Regence BlueShield in 2011 to try to obtain coverage. And the parents won.
On April 17, 2012, a Washington Superior Court ruled that “the exclusion in [Premera’s] policies for ‘[s]ervices, therapy and supplies related to the treatment of … developmental delay or neurodevelopmental disabilities’ violates Washington public policy and the Mental Health Parity Act.” Group Health lost its suit in June 2012; Regence BlueShield in December of that year.
The courts required the insurers to immediately cover speech, occupational and physical therapies for childhood ASD. But the court orders only apply to some, not all, of the companies’ plans. Regence, for example, administers numerous employer self-funded insurance plans. Those plans aren't subject to the court rulings and Regence is not voluntarily extending autism coverage for them.
Nor did Regence and Premera apply the court rulings to other autism treatments. According to Dr. Stephen Glass, a University of Washington professor of child neurology who testified in the court cases, the standard of care for treating severe ASD is individualized, intensive behavioral therapy, often conducted by trained workers at the child’s home. The most common form of this therapy is called Applied Behavioral Analysis, or ABA. Regence continues to exclude coverage for ABA therapy, despite broad recognition of its efficacy. Premera used internal licensing requirements to deny coverage for treatment by ABA therapists who were certified by a national certifying organization. Among major private insurers, only Group Health, which settled the parents’ lawsuit in 2012, covered ABA therapy.
In 2012, Regence and Premera appealed the court rulings to the Washington Supreme Court, further delaying resolution. Meanwhile, because many parents cannot afford to pay out-of-pocket for the therapies, affected children are not receiving treatment that could alter the trajectory of their lives.
Just weeks ago, Premera settled with the parents, leaving Regence alone to fight against coverage of autism before the Washington Supreme Court. Based on the Settlement Agreement Premera signed on May 9, it will cover medically necessary speech, occupational and physical therapy services, as well as medically necessary ABA therapy. Premera will also create a $3.5 million fund to reimburse parents who have paid out-of-pocket for past neuro-developmental therapy.
On October 22, 2013, Insurance Commissioner Mike Kreidler held a fact-finding hearing on what is needed to ensure parity in private insurance coverage for physical and mental health conditions. The Supreme Court may force Regence’s hand before the Insurance Commissioner acts. Two principles should govern the Insurance Commissioner's effort to establish industrywide rules for autism coverage.
One is medical acceptance. Insurance coverage in Washington should cover treatments which are medically accepted to help individual children with ASD reach the mainstream.
The other principle the state's Insurance Commissioner should require is transparency. Washington’s private health insurers should be required to adopt transparent, plain-language policies for what is covered, for how one receives coverage and for whom can provide the covered services. It harms consumers when an insurer claims that autism is covered and then imposes limitations on payment for standard of care therapies.
Many other states cover ABA therapy and have continued to enjoy a healthy insurance market. In April of this year, the Autism Health Insurance Project, a nonprofit that helps families obtain insurance coverage for autistic children, announced that 37 states had enacted laws requiring health insurers to provide ABA therapy to young children with autism. Washington is not among them.
Regence has one last opportunity to avoid a Supreme Court decision which could order it to provide coverage to parents of autistic children. On June 4, lawyers for the parents suing Regence will meet with the insurance company’s counsel for mediation. Faced with the prospect of defending its policy on autism coverage before nine Supreme Court justices, perhaps Regence will follow the path of Premera and Group Health and cover medically accepted treatments for children with autism.
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