State insurance regulators have fined Providence Health Plan $100,000 for blocking access to care for autistic children without providing them with any chance for an external review over denied claims for applied behavior analysis therapy.
"At the time these claims were filed, there was still debate over whether ABA therapy was the most effective treatment for autistic patients," said Insurance Commissioner Laura Cali Robison, in a press release. "We found that Providence Health Plan's adjudication process at that time did not give consumers an opportunity to externally appeal payment or denial decisions."
The violations date to 2012, before Providence lost a lawsuit in 2014 brought by parents of children with autism over its denial of coverage for applied behavior analysis. In March, Providence settled with the parents for $10,000 each and agreed to pay $638,000 in attorney’s fees, according to the Oregonian.
Paul Terdal, an autism rights activist, and father of two sons on the autism spectrum, said the $100,000 civil penalty was significant, but he complained about the half-decade of lag time between Providence’s misdeeds and its punishment.
“We had to file a lawsuit, run up a million dollar investment in legal fees, go through enormous amount of discovery and subpoena top executives -- and win the case. That’s what it took,” Terdal said. “The system is just broken. There’s no way it should take [such] an investment over what was an obvious violation.”
Terdal said Providence conceded in court that they deliberately blocked a routine insurance protection -- the right to appeal with an independent medical reviewer -- because they had lost previous reviews and wanted to invoke a lawsuit and have their day in court.
Cali Robison’s spokesman, Jake Sunderland, said that the insurance commissioner was waiting for that legal battle to finish before enacting civil penalties against Providence. “The lawsuit ... was just settled this spring,” Sunderland said. “There was a court order to provide those services to the impacted consumers years ago, as well as a judge’s order declaring ABA therapy as a mandated benefit. Providence has been in compliance for years.”
Applied behavior analysis is a broad set of techniques that apply principles of learning and motivation to assess, treat, and prevent challenging behaviors and promote new desired behaviors in children with autism spectrum disorder, a neurodevelopmental disorder that impairs a child’s social and physical development.
The treatment approach is now covered by all health insurance plans in the Oregon, as well as the Oregon Health Plan, but only after a multi-year battle that included the passage of Senate Bill 365 in 2013, a revised analysis of the science by the Health Evidence Review Commission, and legal victories by parents, as well as an order from Cali Robison that insurers must cover applied behavior analysis in order to comply with the state’s mental health parity law.
Chris can be reached at [email protected].
After a review of years of medical and scientific evidence, United States Magistrate Judge Janice Stewart ruled in January 2010 that Applied Behavioral Analysis was the treatment of choice for autism spectrum disorder and was emphatically not “experimental or investigational.” (McHenry v. PacificSource Health Plans, 679 F. Supp. 2d 1226, 1237-39 (D. Or. 2010)) .
Ms. Cali-Robinson said that “at the time these claims were filed [in May 2013], there was still debate over whether ABA therapy was the most effective treatment for autistic patients.” This statement is simply not supported by the evidence given the McHenry decision, and given that Providence had already had numerous denials overturned by independent medical review. Indeed, Providence admitted that these losses are why it arbitrarily switched its reason for denials to the Developmental Disability exclusion that United States District Judge Michael Simon ruled was illegal in AF v. Providence (Case No. 3:13-cv-00776-SI).
There is simply no excuse for Providence (and others) to have denied this therapy to Oregon’s most vulnerable children. Moreover, it is unconscionable that the Oregon Insurance Commission under Lou Savage worked closely with the insurance industry to facilitate this harm for so many years. Many children were harmed as a result.