Lawsuit to stop “scandalous” denials of Autism treatment set for trial in December

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What does "health care reform" promising "access" to health care services really mean if children can be denied the medical care they need?

California HMOs and health insurers are denying autistic children the most effective medical treatment that is available, with severe consequences for them, their families, and the state’s taxpayers – and state regulators have let them get away with it.

This week, consumers returned volley in the ongoing war over autism treatments.

State regulators’ foot dragging in response to insurance company denials of medical care for children with autism is "nothing short of scandalous," wrote Consumer Watchdog and co-counsel Fred Woocher of Strumwasser & Woocher LLP in our trial brief filed with the court on Tuesday. Download the brief here.

Our lawsuit tells the story of how the Department of Managed Health Care (DMHC) changed the state’s policy to permit insurance companies to deny coverage for Applied Behavioral Analysis (ABA), the most effective medical treatment for those with autism, in plain violation of the California Mental Health Parity Act. That law requires health insurers to cover and pay for all medically necessary treatments for autism, including ABA.  Our lawsuit – technically a "petition for writ of mandate" – is supported by some of the most respected minds in autism research and treatment.

As one court recently concluded after reviewing the scientific and medical literature: "the weight of the evidence demonstrates that ABA is firmly supported by decades of research" as an effective medical treatment. (McHenry v. PacificSource Health Plans (D. Or. 2010) F.Supp.2d 1226, 1237).

Health insurers want to re-write the state’s landmark mental health parity law to benefit their bottom line and regulators are holding the pen.  Unwarranted an illegal roadblocks to care foisted on consumers by the DMHC at best cause unnecessary delays to treatment, and at worst constitute a rubberstamp of health insurer denials that put children at risk by forcing parents to seek treatment through over-stretched taxpayer-funded programs, or to forgo treatment altogether.

Unfortunately, lost time often means lost chances for recovery.  For many children with autism, early intervention with ABA therapy provides the only hope that they might one day be able to live some semblance of a "normal" life. For many other children afflicted with more severe autism, ABA therapy is desperately needed to address self-injurious behaviors that jeopardize their health and safety.

Insurers, wanting to avoid the cost of covering ABA, claim, for example, that ABA is an "educational" service and therefore not covered under a health care contract.

The McHenry court rejected the health plan’s argument, noting that "[n]early all types of psychological treatment could be classified as academic or social skills training," and that excluding a treatment from coverage in a health care plan just because it had "benefits on a person’s ability to succeed in education" would sweep much too broadly.

Taken to its logical conclusion, the insurance industry’s argument would allow insurers to refuse coverage for any treatments that benefit a person’s ability to learn.  Can’t that be said of nearly every medical treatment? For example, back surgery alleviating excruciating pain certainly would help a pupil focus on her homework.

Insurance companies are blatantly violating California law.  Yet the Department of Managed Health Care is not only standing by and doing nothing to prevent these violations; it is actually supporting the insurers as they abandon autistic children and their families.

On December 13, our petition for writ of mandate will be heard by a Los Angeles Superior Court judge.  Let’s hope that regulators are required to stand up to insurance companies and require coverage of effective medical treatments for our children. 

Jerry Flanagan
Jerry Flanagan
Jerry Flanagan is Consumer Watchdog's Litigation Director. Flanagan leads Consumer Watchdog’s litigation efforts in the areas of health insurance coverage and access to treatments. He has over 20 years experience working in public interest and health care policy, legislation and litigation.

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