Do California Insurers Have To Pay For Autism Therapy?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 19, 2018

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The answer is most likely YES due to the Autism Insurance Act which goes into effect on July 1, 2012 – and the California Department of Insurance (CDI) is making sure insurers comply. In fact, Blue Shield of California, Health Net, Cigna and Anthem Blue Cross of California have already promised to do just that. But, will they?

The answer is – hopefully. The CDI has already reached settlements with these health insurance companies to ensure autism coverage for services like Applied Behavior Analysis (ABA) those who suffer from Autism Disorder Spectrum (ASD) including Autism, Asperger Syndrome or Pervasive Developmental Disorder. It reports having obtained agreements with the insurers to prevent:

  • Denying ABA therapy as a non-covered service
  • Challenging the medical necessity of ABA treatment
  • Forcing parents into an unnecessary Independent Medical Review to secure treatment

Even though insurers have promised to comply with the law, the truth of the matter is that ABA therapy can be expensive – up to $10,000 per month in extreme cases – and may prompt some insurers to do whatever they can to deny, delay or find ways to pay less than what’s due in order to increase their bottom lines.

What Can I Do If My Insurance Company Won’t Pay For Autism Therapy?

If your autism therapy claim has been denied, it’s important to know that you dohave options – regardless of your coverage plan. Here’s how it works depending upon whether your coverage is ERISA-based or if you have an individual health insurance policy:

Employer Based ERISA Claims

If your insurance is part of an employee benefit plan, meaning you get your insurance through your employer, then challenging an autism therapy claims denial will be regulated by ERISA, the Employee Retirement Income Security Act of 1974 – a federal program enacted to protect the interests of employees covered under employee benefit plans.

Your appeal rights and instructions will be outlined in the denial letter you receive from your insurance company and a lawsuit can only be filed after your insurance company denies your appeal. It’s important to know that ERISA has a mandatoryappeal period of six moths from the date of denial and following ERISA appeal procedures is a must – so having an experienced ERISA attorney to make certain that all your t’s are crossed and i’s dotted can make or break your case.

Here’s a synopsis of the ERISA appeal process:

  • Make a written demand.You must first make a written demand to the insurance company for the “administrative record” or “claim file.” This is necessary to determine proper or improper conduct in the denial of the claim.

  • Review record.Once the claim file is received, it must be reviewed to determine if a comprehensive investigation was made prior to denial. Did the insurer obtain the necessary medical records? Did they speak with your child’s health care providers? Was there a full and fair review of the claim? If the answer to any of these questions is “no,” your attorney will use this information to support your ERISA appeal.

  • Obtain additional documentation.You will need to obtain an extensive amount of documentation, including letters and medical files to support the ERISA appeal. Doctors and care providers need to support the medical necessity of the care – however, you must know what should or should not be contained in such letters. These reports, letters and files should be included with the ERISA appeal.

  • File an appeal.The next step is to send the ERISA appeal to the ERISA “plan fiduciary” for determination. There is no hearing, trial or jury. Your ERISA appeal is the basis for the Federal Court’s ruling in any later ERISA lawsuit brought if the ERISA appeal is denied. It is generally based on the insurer’s “administrative record” and the ERISA appeal only; pre-trial discovery is generally not allowed.

  • File a lawsuit. If your appeal is denied, you may be able to file a lawsuit against your insurance company alleging breach of contract – which essentially alleges that your insurance company did not live up to its end of the contract and you incurred expenses that should have been covered by your policy. Your damages are limited to the expenses you incurred and reasonable attorneys’ fees.

Self Funded Insurance Plans.In a self funded plan, the employer pays employee benefits from the its own pocket and assumes the direct risk for payment of the claims for benefits. These plans can be potentially difficult for parents of autistic children because ERISA pre-empts most state insurance regulation – including benefits mandates.

Since self-funded plans aren’t subject to state mandates, the new regulations will not apply. Parents of autistic children need to understand what is the best health care policy for their family, how to submit their claims correctly and how to appeal a decision (which is similar to an ERISA appeal) if their claim has been denied. An experienced health care attorney can help you plan your way through this insurance maze.

Individual Health Insurance Plans

If you have an individual health insurance policy and your autism therapy claim has been wrongfully denied, you can make an appeal to the respective regulatory body. However, unlike the employer-sponsored plans discussed above, filing an appeal is not required in order to file a lawsuit against the insurance company and you may be able to sue for bad faith insurance practices instead of, or in addition to, breach of contract and also receive punitive damages, emotional distress damages and more.

Seek The Help You Need & Even The Odds

Appealing an autism therapy denial can be daunting – especially when you’re up against an insurance company’s team of attorneys who will do whatever it takes to protect the insurer’s interests. Make sure you even your odds by speaking with an experienced ERISA lawyer, health care lawyer or bad faith insurance lawyer who understand how insurance companies operate and can represent your best interests.

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