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VIA CERTIFIED MAIL
[INSURANCE COMPANY REPRESENTATIVE]
RE: [ENROLLEE’S NAME]
[ENROLLEE’S DATE OF BIRTH]
[ENROLLEE’S SOCIAL SECURITY NUMBER]
[HEALTH PLAN CONTRACT NAME]
SUBJECT: Authorization for Enrollee’s Applied Behavior Analysis
Dear [INSURANCE COMPANY REPRESENTATIVE]:
This letter is a formal request for the immediate authorization of payment for behavioral interventions, which have been recommended by [ENROLLEE’S NAME]’s treating healthcare provider(s). Enclosed with this letter are the reports of the treating providers asserting the current and ongoing medical necessity of the following treatments:
[INCLUDE ALL THAT APPLY:]
_ number of Applied Behavioral Analysis/behavior modification therapeutic sessions;
And/or other types of non-experimental and non-investigational interventions that are known in their respective disciplines to be reliable in treating and reducing the more severe aspects of autism.
California Mental Health Parity Laws
Any contractual terms in your plan that attempt to limit coverage for autism are unenforceable in California if they violate California’s state mandates on minimal levels of autism care. Samson v. Transamerica (1981) 30 Cal. 3d 220, 231.178. Cal. Rptr. 323, 350. This remains true regardless of any terms in your company’s health care plan that would purport to assert otherwise. Any contractual terms that are contrary to California’s state mandates are nullified by the mandates. Your company has already had to agree to these state mandates as a condition of doing business in California. Your company must continue to abide by these state mandates as it continues to do business in California.
These state mandates are one of two forms: either general state mandates that apply to all medical conditions, or state mandates that specifically require that all medically necessary care for autism be covered.
For example, as a condition of doing business in California, your company had to agree to offer general or “basic health care services” to all medical conditions, including “physician referrals, hospital inpatient services, home health services, preventive and emergency healthcare services.” Health and Safety Code 1345(b) (1)-(6); 1367(i). In addition, your company had to agree to provide specific treatments for autism that are “medically necessary,” that do not discriminate based on age, and that cover an amount equal to those benefits offered “to other medical conditions.” Health and Safety Code 1374.72(a) and (d)(7); Insurance Code 10144.5(a) and (d)(7).
Specifically regarding the treatment of autism, your company also had to agree to cover “out patient services, inpatient hospital services, partial hospitalization services, and prescription drugs if the [plan’s] contract includes coverage [already] for prescription drugs.” Health and Safety Code 1374.72(b)(1)-(4); Insurance Code 10144.5(b)(1)-(4) [part of AB88].
The foregoing provided citations to the applicable California state mandate law, which your company has agreed and must continue to abide by. The California state mandate law includes general mandates as well as mandates specific to autism. Again, I must reiterate that these mandates nullify any contrary coverage limitations that may otherwise be available to your company in your contract terminology.
Urgency and Medical Necessity, Defined
In addition, the California Legislature has defined “medically necessary” as all care which is “reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain.” Welfare & Institutions Code 14059.5.
In the “historical and statutory notes” preamble to the Mental Health Parity Act, the California Legislature conclusively “declares and finds” that autism is “treatable” and that inadequate treatment “causes relapse and untold suffering” as well as “homelessness…and other significant social problems. Thus, the California Legislature has conclusively determined that autism intervention does indeed work; hence, it is not experimental and is indeed medically necessary.
The medical literature also supports this determination. It proves what seems to be inherently intuitive: that the earlier the autism intervention, the better the expected medical result. An example of the medical literature provides: “[A}t least six comprehensive [autism intervention] treatment programs designed to stimulate widespread changes in young children with autism have published positive outcome data in peer-reviewed journals…[paragraph]. All the studies reported (a) significant acceleration of developmental rates, resulting in significant I.Q. gains; (b) significant language gains in the treated children; (c) improved social behavior and decreased symptoms of autism…[paragraph]. Children with autism appear most able to benefit which intervention is begun very early, between ages two and four, making far more progress than do older children receiving the same interventions…, and when intervention is intensive, including 15 or more hours per week of focused treatment with very low child-to-adult ratios over one to two years or more.” Rogers, “Early Intervention in Autism” Journal of Autism and Developmental Disorders (April 1996), Vol. 26, No. 2, Plenum Press, New York and London, pp. 243-245 (internal citations omitted).
Clearly, when a healthcare plan refuses to authorize autism treatment at the earliest possible moment, it fails “to prevent…significant [future] disability.” Additionally, it fails “to alleviate severe pain” by preventing one from learning how to communicate and become productive and independent, in violation of what California mandates as “medically necessary” care under Welfare & Institutional Code 14059.5. Moreover, financial inducements to limit medically necessary care are illegal in California. Health & Safety Code 1348.6(a).
Accordingly, I request that you authorize payment for all the interventions recommended in the enclosed report(s) by [ENROLLEE’S NAME]’s provider immediately.
Despite all of the aforementioned authority, if you refuse to authorize or pay for any interventions, you must immediately identify those interventions and give any and all reasons which you allege would support your denial. As your company is aware, denials of coverage cannot be arbitrary or capricious. Insurance Code 790.03(h) (13) states that “[f]ailing to provide promptly a reasonable explanation of the basis relied on in the insurance policy, in relation to the facts or applicable law, for the denial of a claim or for the offer of a compromise settlement” is an unfair claims settlement practice. Courts have applied this section to self-insured corporations. Nathanson v. Hertz Corporation (1986) 183 Cal.App.3d78,227Cal.Rptr.799, review denied.
Therefore, if you deny any interventions, you must immediately notify me of which interventions you are denying and why. Otherwise, please authorize payment for the interventions recommended in the enclosed reports.
Simultaneous Petition for Internal Appeal
If there are any claims which you intend to refuse to pay, please deem this letter to also be a petition for appeal of said refusal within the appeal and grievance procedures set out in your plan. Pursuant to this appeal request, I request that you immediately photocopy and distribute the instant letter and its enclosures to each and every member of each and every appeal and grievance panel in your plan. This should guarantee that timely treatment remains a viable option. In other words, this should prevent your response from developing into an untimely treatment program that could forever injure the optional recoverability of [ENROLLEE’S NAME]. Please copy me on this distribution list and provide me with the dates and times for which I may appear before these panels to advocate for my clause.
Under California law, managed care entities have “a duty of ordinary care to arrange for…medically necessary healthcare service.” Civil Code 3428. Pursuant thereto, if the breach of this duty causes “substantial harm” through the unreasonable “denial, delay or modification” of services recommended for an enrollee, then the victim may sue. Injunctive relief to stop abusive managed care practices in court is no longer defeated by arbitration clauses. Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 90 Cal.Rptr.2d334.
Very truly yours,
[ENCLOSE REPORT(S) FROM ENROLLEE’S PROVIDERS]
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