Federal Judge Mandates ABA Coverage for Oregon Families

U.S. District Court Judge Michael Simon has ruled that Providence Health Care must cover Applied Behavior Analysis for patients diagnosed with autism spectrum disorder. The class action lawsuit, A.F. and A.P. vs. Providence Health Plan, was initiated by two families raising children with autism, and this decision will likely affect hundreds of families across the state of Oregon.

Judge Simon’s decision was based on 2008 Wellstone Domenici Mental Health Parity and Addiction Act, Oregon’s Mental Health Parity Act, and a 2007 Oregon statute requiring medical coverage for autism. The decision reads,

“Providence cannot simultaneously purport to cover autism and yet deny coverage for medically necessary ABA therapy through its Developmental Disability Exclusion consistent with the Oregon Mental Health Parity Act.”

Providence issued a written statement saying it understands the needs of children with autism, and they will offer 25 hours of ABA therapy per week. They are also reviewing the court ruling to determine what steps to take next.

Dan Unumb, executive director of the Autism Speaks Legal Resource Center, said,

“The case is significant in holding that developmental disabilities exclusions are prohibited as ‘separate treatment limitations’ applicable only with respect to mental health benefits. The case is also useful in its discussion of other treatment limitations, such as ‘experimental’ exclusions and ‘medical necessity’ exclusions that are often more restrictively applied to exclude ABA coverage for autism.”

He went on to say,

“Finally, it is important just for making clear that coverage of ABA treatment for autism is a benefit with respect to a service for a mental health condition covered under mental health parity. Even if autism or related treatment may also be characterized as ‘developmental,’ this does not in any way remove this condition from the protections of the mental health parity act.”

A similar lawsuit has been filed against the Oregon Public Employee’s Benefit Board. Providence is acting as PEBB’s administrator, and recently issued a statement specifically excluding services related to developmental disabilities, developmental delays, and learning disabilities. No ruling has been reached yet, but this decision may be an influencing factor.

Providence is one of many insurance providers who have gone to court to fight the ABA mandate. Earlier this year, a federal judge in Seattle ruled that Regence Blue Shield violated state law by refusing to cover ABA therapy for children over six years of age.

In the meantime, many families in Oregon are breathing a sigh of relief. Paul Terdal, father of two sons with autism, is familiar with the arguments used by insurance companies to deny coverage of therapies like ABA. He has successfully helped over a dozen families appeal coverage denials by Kaiser Permanente. The insurer has subsequently agreed to cover ABA therapy.

Terdal explains that it takes time for insurance companies to cover new therapies, and that they are concerned about the up-front cost of Applied Behavior Analysis. As more children receive the benefits of early intervention, the long-term benefits be become apparent, and it will be easier to convince insurance companies to do the right thing.