A California appellate court has ruled that the California Department of Managed Health Care (“DMHC”) must direct health plans within its jurisdiction to provide coverage for Applied Behavioral Analysis (“ABA”), an intensive form of therapy often used to treat the symptoms of autism in young children, when provided or supervised by Behavior Analyst Certification Board (“BACB”)-certified therapists who are not otherwise licensed as physicians, psychologists, or otherwise.

The California Statute

As of July 1, 2012, California Health and Safety Code Section 1374.73 (the “ABA statute”), enacted by the legislature on October 9, 2011, provides that health plans are required to:

provide coverage for behavioral health treatment for pervasive developmental disorder or autism.

Health & Saf.Code, § 1374.73, subd. (a)(1), italics added.

The law defines:

Behavioral health treatment

to include various treatment programs, including ABA. Health & Saf.Code, § 1374.73, subd. (c)(1).) 

The law defines a:

qualified autism service provider

as a person either licensed under California law (as a physician, psychologist, occupational therapist, or one of several other enumerated professionals) who designs, supervises, or provides treatment for pervasive developmental disorder or autism, Health & Saf.Code, § 1374.73, subd. (c)(3)(B)), or:

certified by a national entity, such as the [BACB] and who designs, supervises, or provides treatment for pervasive developmental disorder or autism.

Health & Saf.Code, § 1374.73, subd. (c)(3)(A).

It defines a:

qualified autism service professional

as anyone approved:

as a vendor by a California regional center to provide services as an Associate Behavior Analyst, Behavior Analyst, Behavior Management Assistant, Behavior Management Consultant, or Behavior Management Program.

Health & Saf.Code, § 1374.73. subd. (c)(4)(D).

These categories include, by regulation, individuals certified by the BACB as Board Certified Behavior Analysts and Board Certified Associate Behavior Analysts.

Cal.Code Regs., tit. 17, § 54342, subds. (a)(8) & (a)(11).)

The law defines a:

qualified autism service paraprofessional

as:

an unlicensed and uncertified individual

who has adequate education, training, and experience, as certified by a qualified autism service provider. Health & Saf.Code, § 1374.73, subd. (c)(5).

The Appellate Court’s Decision

The appellate court concluded that the ABA statute authorized BACB-certified providers to perform ABA therapy under state licensing laws and ruled, therefore, that the DMHC could not uphold a plan’s denial of coverage on the basis that a BACB-certified provider was not licensed.

In short, the appellate court found, with respect to all health plans subject to the ABA statute, they were “required to cover ABA treatment for autistic children when provided, or supervised, by a BACB-certified therapist.”

Moreover, the appellate court held that the DMHC could not uphold a denial for ABA performed or supervised by a BACB-certified therapist on the basis the provider was not licensed for health plans in the “Healthy Family Program” and health plans entered into with the Public Employees’ Retirement System (“PERS”), which were exempt from the ABA statute. The appellate court explained that the “legislative authorization and effective licensure of BACB-certified therapist to perform ABA in this state necessarily applies even when coverage is provided by a plan that is exempted from the requirements of the ABA statute.”

The case is Consumer Watchdog v. Department of Managed Health Care, No. B232338 (Cal. Ct.App. April 23, 2014). Attorneys involved include: Consumer Watchdog, Harvey Rosenfield, Pamela M. Pressley and Jerry Flanagan; Strumwasser & Woocher, Fredric D. Woocher, Beverly Grossman and Byron F. Kahr for Plaintiffs and Appellants; Law Office of Stephen P. Sommers, Stephen P. Sommers and Una Lee Jost as Amicus Curiae for California Association for Behavior Analysis on behalf of Consumer Watchdog; Autism Speaks and Daniel R. Unumb; Kaye Scholer and Robert Barnes for Autism Speaks and Autism Deserves Equal Coverage as Amicus Curiae on behalf of Plaintiffs and Appellants; California Department of Managed Health Care, Holly Pearson, General Counsel, Debra L. Denton, Assistant Chief Counsel and Drew A. Brereton, Senior Counsel; Attorney General of California, Kamala D. Harris, Attorney General, Julie Wend–Gutierrez, Senior Assistant Attorney General, Leslie P. McElroy, Supervising Deputy Attorney General and Carmen D. Snuggs, Deputy Attorney General; Department of Insurance, Dave Jones, Insurance Commissioner and Patricia Sturdevant, Deputy Commissioner & Health Enforcement Advisor as Amicus Curiae upon the request of the Court of Appeal.

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