Law360, Los Angeles (August 14, 2013, 3:58 PM ET) — Nonprofit consumer group Consumer Watchdog urged a California appellate court Wednesday to revive a lawsuit seeking to force insurers to pay for an autism treatment, arguing that a trial court erroneously ruled that patients may only receive coverage if a state-licensed therapist administered the treatment.
At oral arguments, Fredric D. Woocher, a lawyer representing the Santa Monica, Calif.-based Consumer Watchdog, argued that state law provides that the Applied Behavioral Analysis treatment used on autism patients must be given coverage by insurance companies, which he accused of hiding behind a purported state-licensed therapist requirement in order to deny claims.
“The policy is not allowed to put a restriction in that the law does not allow for,” Woocher told a three-judge state appellate panel.
Woocher argued that not every treatment for the human body over the years has required state-licensed professionals to master it.
“Would you call the ABA a medical treatment?” Justice H. Walter Croskey asked Woocher at one point.
“I would call it a health care treatment,” Woocher replied, stressing that ABA, unlike medicine, doesn't necessarily need a state-licensed practitioner.
Patricia T. Sturdevant, deputy commissioner for policy and planning and health enforcement adviser at the California Department of Insurance, which filed an amicus brief in Consumer Watchdog's favor, argued that “medical necessity is determinative of what treatment is necessary.”
“There is no license requirement in the Insurance Code,” she said.
Carmen D. Snuggs, a lawyer with the California Department of Justice, argued that Los Angeles County Superior Court Judge Robert H. O'Brien correctly denied Consumer Watchdog's petition in 2011 by ruling the California Department of Managed Health Care has no ministerial duty to compel the health plans they regulate to provide coverage for ABA treatment performed by unlicensed persons.
She also argued that SB 946, a bill of the California State Legislature that went into effect July 1, 2012, authorized the provision of ABA services for autism provided by the state or the Behavior Analyst Certification Board, and it shouldn't be provided retroactively.
Justice Croskey asked how two state government agencies could take opposite positions in the same case.
“I'm confused by how that's tolerated,” he said.
The litigation dates to 2009, when Consumer Watchdog sued the Department of Managed Health Care, charging that DMHC wrongfully allowed insurance companies to refuse to pay for autism treatments.
Judge O'Brien ruled against the watchdog, finding the DMHC had the discretion to impose a licensure requirement on ABA practitioners when the Legislature has not seen fit to do so. Consumer Watchdog appealed that ruling.
The panel was comprised of Presiding Justice Joan Dempsey Klein and Associate Justices H. Walter Croskey and Patti S. Kitching.
Consumer Watchdog is represented by Harvey J. Rosenfield, Pamela M. Pressley and Gerald S. Flanagan of Consumer Watchdog and Fredric D. Woocher, Beverly S. Grossman Palmer and Byron F. Kahr of Strumwasser & Woocher LLP.
The case is Consumer Watchdog et al. v. California 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.
–Editing by Melissa Tinklepaugh.