The implementation of autism insurance laws has been frustrated at times by demands that practitioners of applied behavior analysis (ABA) gain a state license before their services can qualify for reimbursement -- even in states that do not have licenses for behavior analysts. The Autism Speaks Legal Resource Center joined recently in a lawsuit that successfully overturned such a demand in California. Dan Unumb, executive director of the center, weighs in.
In a case brought by Consumer Watchdog, the California Court of Appeals ruled on April 23 that the state’s Department of Managed Health Care (DMHC) erred by allowing insurers to deny coverage of ABA therapy provided by behavior analysts who are nationally board certified, but for whom no license has been created under California law.
Because only a small number of persons licensed in other professions in California are trained to provide ABA, DMHC’s policy led to delays and denials of medically necessary treatment.
The DMHC policy was also contrary to the position of the state’s other regulator of insurance—the California Department of Insurance—and the terms of California’s 2011 autism insurance law which applies to other insurance policies not involved in the case. That statute requires coverage of ABA when provided or supervised by Board Certified Behavior Analysts certified by the Behavior Analyst Certification Board (BACB), a professional accreditation organization which certifies behavior analysts nationally and internationally.
Similar to state licensing laws, BACB certification requires meeting rigorous education, fieldwork, and examination requirements, as well as continuing education requirements and adherence to ethical standards.
The Autism Speaks Legal Resource Center filed a friend-of-the-court brief which I authored along with Robert Barnes of the national law firm Kaye Scholer.
In the brief, we noted that while an increasing number of states have adopted a license for behavior analysts, the vast majority of states still do not have such a license. Instead, they provide that insurance-reimbursed ABA services can be provided or supervised by Board Certified Behavior Analysts (BCBAs).
Absent a state license for behavior analysts, BACB certification is the only credential that reflects and requires expertise in behavior analysis. Even in states that have created a state license for behavior analysts, BACB certification is the key prerequisite to obtain a license. States requiring insurance coverage of ABA also follow the BACB-approved and clinically validated tiered delivery model where a BCBA supervises behavior technicians who provide line therapy to the child who may need as much as 30 to 40 hours a week of therapy to achieve effective long term results.
In our brief, we pointed out that in addition to the legislature’s approval of BCBA practice under California’s 2011 ABA insurance statute, unlicensed BCBA’s have effectively delivered ABA services for years in California, including under contracts with the state’s Regional Centers which provide services to the disabled.
The Court of Appeals agreed that the lack of a California license for behavior analysts could not be a basis for denying medically necessary ABA therapy by BCBAs. The court held that the “ABA statute constitutes legislative approval of the practice of ABA by BACB-certified providers and individuals under their supervision. That legislative approval effectively qualifies BACB-certification as a “license” to provide ABA.”
The court went on to make clear that the 2011 autism insurance law applied even to therapy delivered under plans not expressly covered by the statute, such as California's public employee plans (CalPERS). According to the court, “legislative authorization to provide ABA in this state cannot depend upon the health plan in which a patient is enrolled. To hold otherwise would create an irrational inconsistency in our state licensing laws.”
The California ruling may be useful in other states which have not yet adopted a license for behavior analysts. Most importantly, families insured through CalPERS plans will now be able to access medically necessary services just like other families. The children of firefighters, teachers and others covered by CalPERS deserve no less.