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CA State Employees Gain ABA Coverage through Court Ruling

September 11, 2013

LOS ANGELES (September 11, 2013) -- A California policy that allowed unlicensed but nationally board-certified ABA practitioners to provide therapy under some health plans but declared this illegal for plans covering lower-income families and state employees is "nonsensical" and void in light of California's 2011 autism insurance reform law, a state appeals court has ruled.

The case was brought by Consumer Watchdog on behalf of state employees covered under the California Public Employees Retirement System (CalPERS) against the state Department of Managed Health Care (DMHC), which enforced the policy. The Autism Speaks Legal Resource Center, represented by Executive Director Dan Unumb, and Robert Barnes, Esq. of Kaye Scholer, intervened as a "friend of the court" on behalf of the successful plaintiffs.

“This decision is a victory for autistic children of firefighters, police officers, and low-income parents as it clarifies that they can’t be treated differently than those covered under private health plans,” said Consumer Watchdog attorney Jerry Flanagan.

A trial court in early 2011 ruled against CalPERS employees, concluding that DMHC could require ABA providers to hold a state license in order to be reimbursed by health insurance.

Autism Speaks, Consumer Watchdog and other advocates then worked with California Senate President pro Tem Darrell Steinberg to craft an ABA bill that ultimately passed the legislature and was signed by Gov. Jerry Brown in October 2011. The ABA bill provided that professional certification by the national Behavior Analysts Certification Board (BACB) would be sufficient for ABA practitioners to work in California, allowing their services to be covered by insurance.

The appeals court held that the 2011 ABA law served as an implicit legislative exemption to California’s psychology practice act that effectively recognized that unlicensed BCBAs can deliver ABA treatment in California, even under plans like CalPERS and Healthy Families that are not specifically covered by the ABA law.

The court concluded that this exemption had to be interpreted broadly, otherwise a BACB-certified practitioner would be acting legally in treating a child with autism, but if the family switched to CalPERS coverage, the same practitioner delivering the same treatment to the same child would be acting illegally. "Such a result would be nonsensical," the court found.

As a result of the legislation and the lawsuit, “the DMHC can no longer use licensure as a barrier to ABA treatments for autistic children,” said Fredric D. Woocher of Strumwasser & Woocher LLP. “When we filed this lawsuit, HMOs were denying autistic children the most effective medical treatment that is available, with severe consequences for them, their families, and the state’s taxpayers. HMOs were blatantly violating California law.

“DMHC's practice of requiring licensure led to the agency’s upholding HMOs’ denials and delays of this critical treatment for autistic children and their families at the time they need it the most,” Woocher said.

Although the appeals court only required coverage of BCBA-provided and supervised ABA for treatment occurring after July 1, 2012, the court offered strong support for ABA, noting that numerous studies have demonstrated that ABA is the most effective known treatment for children with autism and that the treatment has lasting results. 

The 2011 ABA law is scheduled to expire on July 1, 2014. Legislation extending that deadline through 2016 has been approved by the Legislature and sent to Governor Brown.

State licensing issues involving ABA practitioners has frustrated the implementation of autism insurance reform laws in a number of states besides California, including New York, Virginia and Rhode Island and Autism Speaks continues to work through the courts, regulatory agencies and state legislatures to resolve these issues and insure that coverage reaches those in need.