Chapter 3: Scope of the Mandate – Insurance Coverage (Originally published July 7, 2008)
In this and other Chapters, in a Q&A format, we provide some basic information that we hope will help you answer questions you may have on various topics related to the Florida autism legislation. See Introduction and Table of Contents. In this Chapter, we discuss the types of benefits that must be provided by health benefit plans that are subject to the mandate. In Chapter 2, we discussed the types of health benefit plans to which the mandate will apply. We summarize the extensive exceptions to the mandate in Chapter 4.
Please keep in mind that we are answering general questions that may or may not apply to your specific circumstances. You should consult a lawyer or other specialist if you think you are entitled to benefits that you do not receive. Behavioral Lifeboat can help you do that.
Q: Who is eligible for services covered by the autism insurance mandate?
A: To be eligible, the child must be under 18 or, if older, he or she must be in high school and must have been diagnosed as having a developmental disability at age eight or younger.
Q: What services for the diagnosis and treatment of autism spectrum disorders are required by the autism insurance mandate?
A: The mandate specifies general categories of diagnostic services and treatment related to autism spectrum disorders (specifically defined to mean autistic disorder, Asperger’s syndrome, and PDDNOS as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association):
- Diagnosis: Well-baby and well-child screening for diagnosing autism spectrum disorders.
- Treatment: speech therapy, occupational therapy, physical therapy, and ABA services:
- Treatment plan: the mandated services must be prescribed by the child’s treating physician in a treatment plan that must include information necessary to pay claims, such as diagnosis, proposed treatment by type, frequency and duration, anticipated outcomes/goals, and frequency of updates.
- Applied Behavior Analysis (ABA) services: includes design, implementation, and evaluation of environmental modifications, using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including, but not limited to, the use of direct observation, measurement, and functional analysis of the relations between environment and behavior.
- The mandate requires that providers of ABA services must be certified behavior analysts (see statute and Standards and Applications for Examination by the Behavior Analyst Certification Board, Inc. (BACB) related to certification of Board Certified Behavior Analysts (BCBAs) and Board Certified Associate Behavior Analysts (BCABAs)), licensed psychologists (see statute), or licensed counselors or psychotherapists (see statute). Some families use graduate students trained by BCBAs or BCABAs to implement an ABA‑based treatment plan that is written by BCBAs or BCABAs. Limiting the performance of all ABA services to BCBAs and BCABAs would be more expensive and would limit the scope of available service providers. The Florida Office of Insurance Regulation (OIR) could issue regulations to clarify that it would be inappropriate to deny a claim because a provider of ABA services does not hold a license as long as the treatment plan and its implementation is supervised by properly certified individuals (for example, see the third paragraph on page 2 of the bulletin issued by the Indiana Department of Insurance).
Habilitative Services: The legislation provides that “Coverage may not be denied on the basis that provided services are habilitative in nature.” Rehabilitative services are generally defined as services to help an individual return to good health or a normal life by providing training or therapy. The Florida Insurance Council says “autism is not a rehabilitative condition; it may be treated but not cured.” [this link has been disabled] Some health insurers have denied coverage for treatment of an autism spectrum disorder based on such a conclusion, stating that the insurance policy only covers rehabilitative services.
Parity exemptions: Parity provisions are typically included in healthcare mandate legislation to prohibit discrimination based on the type of illness or other malady. The mandate includes some parity provisions and is silent about others. OIR should issue regulations to clarify these procedures (see, for example, bulletin issued by the Indiana Department of Insurance). There are at least three types of parity provisions that are typically included:
- Financial parity: such as aggregate lifetime and annual dollar limits, deductibles, coinsurance, etc.:
- The mandate includes aggregate dollar limits per child: $36,000 annually and $200,000 lifetime.
- The legislation also provides that, other than the specified dollar limits, the mandated coverage “may not be subject to dollar limits, deductibles, or coinsurance provisions that are less favorable to an insured than the dollar limits, deductibles, or coinsurance provisions that apply to physical illnesses that are generally covered under the health insurance plan.”
- The mandate neither specifically permits nor specifically prohibits coverage limits that are less favorable than those that apply to physical illnesses that are generally covered.
- No Discriminatory Practices: The mandate provides that the mandated coverage may not be refused for medically necessary services, and contracts for coverage may not be refused (new and renewal), terminated or restricted, for an individual because the individual is diagnosed as having a developmental disability.
- This provision could be interpreted to require coverage parity.
- Other state legislation is clearer on this topic (for example, in proposed Florida House Bill 1291 – see lines 202-203; and in final Pennsylvania legislation – see page 5, lines 24-28).
- The mandate neither specifically permits nor specifically prohibits such service provider limitations that are less favorable than those that apply to physical illnesses that are generally covered.
- The provision in the mandate that permits participating provider requirements could be interpreted to permit such differences in coverage.
- Coverage parity: such as limits on numbers of visits, days of coverage, etc.
- Service provider parity: such as in network limitations, out of network limitations, inpatient limitations, outpatient limitations, etc.:
The need for thorough parity exemptions is well known in the health care industry. The Mental Health Parity Act of 1996 (which applied to people with autism spectrum disorders) addressed only financial parity from the perspective of aggregate annual and lifetime dollar limits per person. Subsequently, health plans implemented discriminatory coverage limits. (See, Patrick Kennedy. ‘‘Policy Essay: Why We Must End Insurance Discrimination Against Mental Health Care.’’ Harvard Journal on Legislation Vol. 44, No. 2. (Summer 2004).) [this link has been disabled] The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (Mental Health Parity Act) (which also applies to people with autism spectrum disorders) eliminates discrimination by plans that voluntarily cover mental health conditions, including ASDs. In 2011 and later years, many families receiving new benefits for their children with ASDs may incorrectly attribute the change to a state insurance mandate when, in fact, the benefits were required by the Mental Health Parity Act.
Q: Are any services excluded from the mandate?
A: The legislation permits general exclusions and limitations in an insurance policy, such as:
- Restrictions on services provided by family or household members.
- Participating provider requirements: these provisions limit coverage only to providers who agree with the insurer to provide services, typically at a substantial discount below regularly-charged rates.
- Utilization management of health care services, including the review of medical necessity, case management, and other managed careprovisions.
- Utilization review can make more difficult the process of securing coverage for medically necessary services that are included in the mandate.
- Coordination of benefits between two or more group health insurance policies.
Q: Could the Florida legislature have done more?
A: Legislators proposed more comprehensive legislation in the Florida Senate and House during the 2008 legislative session. Please read Chapter 9, to learn what else Florida legislators tried to accomplish during the 2008 session. Please read Chapter 10, to better understand what additional steps need to be taken by legislators in Florida (and in other states with autism insurance benefits mandates) to help children with autism spectrum disorders get the health care they need to live meaningful, happy lives and to have a chance to become contributing members of society.
If you have questions, please comment in the Behavioral Lifeboat blog.
© 2008, 2011 Richard W. Probert