State Sued Over Handling of Autism Complaints

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LOS ANGELES, CA — California regulators are being challenged in court for siding with insurance companies, rather than patients, over some costly autism therapies.

In a lawsuit filed Tuesday, consumer advocates complain that the Department of Managed Health Care broke state law by precluding expert doctors from deciding whether an insurer must provide treatments for autism.

The challenge is the latest in a fierce legal war over autism care in the California courts.

Health plans typically refuse to cover the most expensive treatments for the disorder, claiming they are education services rather than medical care.

California for years used independent physicians to settle those cases with binding second opinions based on reviews of the medical files in each case. Until recently, parents had made gains in the type and amount of treatment provided for their autistic children by asking for intervention.

But in March the department signaled it would no longer send those complaints of improper denials to independent physicians, meaning far fewer would be overturned.

"The insurance companies asked for this change and the Department of Managed Health Care delivered," said Jerry Flanagan, a health advocate for the Santa Monica-based group Consumer Watchdog, which filed the court challenge. Consumer Watchdog and L.A.-based Strumwasser & Woocher are co-counsel on the case. Pediatrician Anshu Batra is also a named plaintiff.

"We have not yet fully analyzed the lawsuit, however, the DMHC is holding health plans accountable to provide a range of health care services for those with autism," said Lynne Randolph, spokesperson for the Department of Managed Health Care.

The lawsuit names Cindy Ehnes, a health lawyer appointed by Gov. Arnold Schwarzenegger who heads the department. Filed in Los Angeles Superior Court as a writ of mandate, the lawsuit seeks an injunction against the dismissal of autism complaints.

"It would allow the doctors to make the decision about coverage, not the insurers or government bureaucrats," Flanagan said.

The complaints center mainly around a regimen of therapies for autistic children called applied behavior analysis, or ABA.

Fighting to receive autism care, especially ABA therapy, from insurers has become a hot-button issue for patients in California. Three class actions, including a discrimination claim against Kaiser Permanente, were filed in the last year over autism coverage.

Autism treatments, which aim to correct behavior and teach children how to function despite the disorder, have become a sticking point because of their high cost. ABA therapy can span several hours a day and cost up to $70,000 a year.

Brietta Clark, a Loyola Law School professor who studies and teaches health law, said suing the Schwarzenegger administration could be a more comprehensive legal strategy than litigating individual lawsuits against the plans.

"Fixing this regulatory process is critical," Clark said. "The health plans are concerned about how much of the treatments are required out of legitimate cost concerns. But there is a correct and legal concern to address those concerns."

State mental health parity law requires insurers to treat mental illness like other health ailments. But insurers balk at paying treatments they claim are educational, not medical.

Autism is a spectrum of neuro-biological disorders that can be diagnosed in toddlers. Studies show autism rates are rising, with one of every 150 children born in the United States now diagnosed with the disorder.

A study released this yearshowed state-funded regional centers provided services to nearly 37,000 Californians with autism.

Contact the author at: [email protected]

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