Law360, Los Angeles (April 23, 2014, 9:42 PM ET) — A California appeals court on Wednesday again held that the Department of Managed Health Care is required by law to direct health plans to provide coverage for autism treatment performed by certified therapists, even if they don’t have medical or psychology licenses.
The appellate ruling comes after the same court held last year that a new statute enacted by the California Legislature required that state health care regulators ensure health plans under their watch cover Applied Behavioral Analysis treatment for autism patients if it is performed or supervised by therapists certified by the Behavior Analyst Certification Board. Now, after a petition for rehearing, the divided appeals court issued a largely similar decision also finding that DMHC may not uphold coverage denials by plans exempted from the statute.
Fredric D. Woocher of Strumwasser & Woocher, lead attorney on behalf of California-based advocacy group Consumer Watchdog, hailed the ruling.
“I am relieved that we now finally have a definitive statement from the court of appeal that the DMHC was incorrect in allowing health care plans to deny coverage for ABA therapy for autism administered or supervised by behavior analysts who do not possess a nonexistent state license, but who have been certified by the national Behavioral Analyst Certification Board,” Woocher told Law360 late Wednesday. “Families covered by the Healthy Families program and [Public Employees’ Retirement System]-sponsored health plans will now be able to secure coverage for this critical and effective treatment from an expanded pool of qualified providers, and the health plans will not be able to deny them coverage based upon this arbitrary rationale, which has now conclusively been held to be illegal.”
Wednesday’s appellate ruling, which reversed the lower court’s judgment and modified it to keep DMHC from upholding a plan’s denial of coverage for ABA services provided by a BACB-certified individual, even if the plan is exempted from the ABA statute, is the most recent development in the fight over behavioral health treatments.
In September, the appeals court handed a win to Consumer Watchdog, reversing a lower court’s rejection of its claims in 2011 in a decision that came down before the Legislature enacted a health and safety code relating to the ABA treatment later in October that year.
The Behavior Analyst Certification Board is a nonprofit that offers credentialing services, according to its website. The California DMC had argued it would only require health plans to cover the Applied Behavioral Analysis treatment if licensed doctors or psychologists provide it, but the panel ruled that under new rules passed by the state Legislature, Behavior Analyst Certification Board-certified practitioners are exempt from the usual licensing requirements, according to court documents.
Representatives for the DMHC didn’t immediately return requests for comment late Wednesday.
Presiding Justice Joan D. Klein joined Associate Justice Patti S. Kitching in the decision, from which Associate Justice H. Walter Croskey dissented.
Consumer Watchdog is represented by Harvey Rosenfield, Pamela M. Pressley and Jerry Flanagan, as well as by Fredric D. Woocher, Beverly Grossman and Byron F. Kahr of Strumwasser & Woocher.
The DMHC is represented by Holly Pearson, Debra L. Denton and Drew A. Brereton.
The case is Consumer Watchdog et al. v. Department of Managed Health Care et al., case number B232338, in the Court of Appeal of the State of California, Second Appellate District, Division Three.
–Additional reporting by Sindhu Sundar. Editing by Chris Yates.
