Chapter 9: Evaluation (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 whether the Florida legislature could have done more and what some legislators tried to accomplish during the 2008 session. In Chapter 10, we discuss what steps need to be taken before and during the 2009 session to help Florida’s children with autism spectrum disorders get all of the health care they need to live meaningful, happy lives and to have a chance to become contributing members of society.
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: Could the Florida legislature have done more?
A: [This section has not been updated since 2008 – see “Q&A: Autism Speaks State Autism Insurance Reform Initiatives.”] Several states (for example, Arizona, Indiana, Pennsylvania, South Carolina and Texas) have enacted, and other states are considering, legislation that includes autism insurance mandates that are similar to the Florida autism insurance mandate. So far, with rare exceptions, limited bills are all that state legislatures have approved. One exception is New Jersey, where the legislature adopted more comprehensive autism legislation in 2007 and in 2008. The recently adopted Pennsylvania legislation has been touted as a “gold standard of care.”
There are some steps that the Florida legislature could not take to help Florida’s children. For example, ERISA preemption creates a significant exemption for any health care mandate (Chapter 6). ERISA preemption does not apply to state laws that regulate insurance. As a result, typically, state benefit mandates, such as the Florida autism insurance mandate, only affect an employer sponsored health benefit plan if the employer purchases insurance. In Florida, HMOs also are subject to insurance regulation. All other employer sponsored benefit plans are exempt from state insurance mandates.
Speaker Rubio estimated that the mandate would cover only 14% of children with an autism spectrum disorder. Sadly, I think this estimate is accurate. See “Q: If these exemptions are so extensive, how many Floridians will the autism insurance mandate actually help?” in Chapter 4. Governor Crist, Speaker Rubio, and others in the Florida Senate and House acknowledged at the end of the session that there is much more work that should be done to deliver critical care to more of Florida’s children with autism spectrum disorders and other developmental disabilities. Speaker Rubio captured the mood when he said “pledge to each other today that we will not allow this issue to end; that we will not forget the rest of the children who this bill does not cover; . . . that we will not allow this to become like the other issues that we deal with in this legislative process, that after we deal with something called reform or change, we move on to something else” (to watch his speech, click here and fast forward to the end at the 8:49.15 mark) [this link has been disabled]. While he got the message right, you could question Speaker Rubio’s sincerity based on the outcome of his efforts in 2008 (see below).
Q: What else did Florida legislators try to accomplish during the 2008 session?
A: More comprehensive legislation was proposed in the Florida Senate and House during the 2008 session. The original version of Senate Bill 2654 and House Bill 1291 were the initially proposed versions for Florida’s first autism legislation.
Senator Stephen Geller introduced the original version of Senate Bill 2654, which included provisions very similar to the autism insurance mandate in the final version of Senate Bill 2654, except that this bill:
- Only included annual aggregate dollar limits of $36,000 per child (no lifetime limits).
- Provided that, as part of its review of medical necessity, a health insurance plan could request an updated treatment plan from a doctor only once every six months.
- Included less specific provisions regarding treatment services.
- Did not require mandated certification or licensing of providers of ABA services.
- Included an earlier effective date (an all-inclusive date of January 1, 2009, rather than the date any health insurance is issued or renewed after April 1, 2009 (Chapter 2).
- Did not address the habilitative nature of treatment for autism spectrum disorders (Chapter 3).
- Referred to coverage for autism spectrum disorders as optional.
- Minimum training standards for child care personnel with respect to the recognition and care of infants and toddlers who have autism spectrum disorders.
- Provisions very similar to the autism insurance mandate in the original version of Senate Bill 2654, except that this bill:
- Public educator certification programs concerning instruction in awareness of autism spectrum disorders and other developmental disabilities and methods of teaching students who have autism spectrum disorders and other developmental disabilities.
- A statewide system of early intervention services for eligible infants and toddlers from birth through age two who have physical, cognitive, communication, social or emotional, and adaptive developmental delays or disabilities.
Neither the original version of Senate Bill 2654 nor House Bill 1291 included the proposed developmental disabilities compact or the proposed supplemental Medicaid waiver for developmental disabilities.
When he appointed the House Select Committee on Autism and Developmental Disorders, Speaker Rubio expressed good intentions in his press release: “Our challenge and your charge is to examine how to best meet the needs of children with autism spectrum disorders and other developmental disabilities.” The Select Committee proposed a comprehensive bill (House Bill 7153) late in the 2008 session that included a number of features that were not included either in the original version of Senate Bill 2654 or in House Bill 1291, including:
- A delayed effective date of July 1, 2010 for the autism insurance mandate.
- A lifetime benefits cap per child of $108,000 for the autism insurance mandate.
- Mandated certification or licensing of providers of ABA services.
- Included no provision that, as part of its review of medical necessity, a health insurance plan could request an updated treatment plan from a doctor only once every six months.
- The proposed developmental disabilities compact.
- The proposed supplemental Medicaid waiver for developmental disabilities.
- Expanded coverage for Florida Healthy Kids insurance component of the Florida Kidcare program, effective January 1, 2009:
- Added services for the treatment of developmental disabilities similar to the mandate.
- Proposed to eliminate the income cap to make the coverage available to all Florida citizens.
- Proposed to expand benefits to include habilitative benefits (PT, OT, speech therapy, and ABA)
- Proposed that Florida Healthy Kids replace Medikids coverage.
- A new voluntary prekindergarten program (VPK) program for four year old children with disabilities. This VPK proposal offered early intervention services beginning with the 2012-2013 school year.
- Expanded the John M. McKay Scholarships for Students with Disabilities Program by:
- Including intellectual disabilities, behavioral disabilities, developmental delays, and autism spectrum disorders.
- Permitting alternative sites for instruction other than a school’s physical location.
- Providing that enrollment in the VPK program would qualify a four year old child with disabilities for a McKay Scholarship.
- Directed each Center for Autism and Related Disabilities (CARD) to:
- Approve VPK early intervention service providers and maintain a list of approved providers.
- Establish a statewide system of regional learning gateways within the seven CARD regions to:
- Serve as a single point of access for referral to State of Florida agencies for the screening and assessment of children younger than age five for disabilities, conducting diagnostic evaluations for children with suspected disabilities, and referring children with disabilities for early intervention services and early learning programs.
- Designate a telephone number and an Internet website to obtain information about services available through the learning gateway, screenings, assessments, diagnostic evaluations, early intervention services, and early learning programs for children with disabilities.
- Provide follow up contact for families whose children are determined ineligible for services under Part B or Part C of the Federal Individuals with Disabilities Education Act.
- Provide coordination services in order to develop and implement strategies to reduce a child’s waiting time for services, reduce interagency duplication, and reduce interagency differences in eligibility criteria for services and programs which cause cross-agency screenings, assessments, and diagnostic evaluations.
- Facilitate the integration of services, linkages among providers, and the array of services required to address the needs of children and families.
- Improve community awareness and education for parents and practitioners about the developmental milestones, and the warning signs or precursors of disabilities, exhibited by children younger than age five.
- Provide training and technical assistance for parents, practitioners, and providers.
- Created a State Learning Gateway Council.
- Expanded continuing education for healthcare professionals to help them identify children with autism spectrum disorders and other developmental disabilities.
On the last day of the 2008 session, the efforts of Speaker Rubio and his House Select Committee on Autism and Developmental Disorders stalled. The conclusion generally expressed was that something is better than nothing. Speaker Rubio captured the general sentiment when he said “if this issue was about anything else . . . I would tell you don’t do it, let’s get them back and get it right, get it completely right, but this is about families and children, and even if it’s just 14% of them, I think we have to take a step forward.” (Watch his speech @ 8:49.15 mark. [this link has been disabled]) The 14% of Florida’s children that the mandate could help, and their families, may disagree with Speaker Rubio if the compact reduces that percentage closer to 0% (Chapter 5). Further, the costs that these families incur that are subject to the mandate’s annual and lifetime benefits caps are likely to increase and exceed the caps because of the requirement for certification of providers of ABA services (such as BCBAs and BCABAs) (Chapter 3). The other 86%, and their families, also may disagree with Speaker Rubio if they experience increased demand for a limited supply of critical service providers because a select few will have an economic advantage as a result of the mandate and if that increase demand results in higher fees.
While he got the message right, you could also question Speaker Rubio’s sincerity based on the outcome of his efforts during the 2008 session. Other legislators challenged Speaker Rubio’s intentions. For example, late in the 2008 session, Senator Geller said, referring to the bill proposed by Speaker Rubio’s Select Committee: “I’m no longer hopeful for any bill passing. They want everything included. They’re loving it to death.” (See Autism bill may need trimming to pass, By Betty Parker, Florida Capital Bureau, originally published April 29, 2008 [this link has been disabled]) Interestingly, six of seven changes effected by House Bill 7153 proposed by Speaker Rubio’s Select Committee that survived in final Senate Bill 2654 actually decreased the scope of the original version of Senate Bill 2654 and House Bill 1291. The seventh change (the Medicaid waiver) is unfunded and subject to further legislative approval.
- Delayed the January 1, 2009 effective date for the mandate (Chapter 3):
- Proposed by the Select Committee to be July 1, 2010, the effective date of the mandate is the date after April 1, 2009 on which any non-exempt health insurance is issued or renewed.
- The effective date for the compact is April 1, 2010, with compact signatories being exempt from the mandate if they sign by April 1, 2009.
- Added a aggregate per child lifetime benefits cap (Chapter 3):
- Proposed by the Select Committee to be $108,000 per child, this cap increased to $200,000 in the final legislation.
- Added mandated certification or licensing of providers of ABA services (Chapter 3).
- Excluded a Senate bill provision that, as part of its review of medical necessity, a health insurance plan could request an updated treatment plan from a doctor only once every six months (Chapter 3).
- Excluded a House bill parity provision preventing limits on the number of visits (Chapter 3).
- Added the proposed developmental disabilities compact (Chapter 5).
- Added the proposed supplemental Medicaid waiver for developmental disabilities (Chapter 8).
If you have questions, please comment in the Behavioral Lifeboat blog.
© 2008, 2011 Richard W. Probert