How You Can Compel Your Insurer to Cover Your Child’s Private ABA Therapy Claims Pursuant to The Network Provisions in Your Insurance Plan

Jodi F. Bouer is a New Jersey attorney who will be speaking at our upcoming two-day Empowering Autism conference in Orange County, CA on June 27-28, 2014. The information in this article is specific to California.

By Jodi F. Bouer, Esq., Freeman Carolla Reisman & Gran LLC

This article is intended to provide a short summary of California network adequacy law and how you can use the law to require your insurer to cover your child’s out of network Applied Behavioral Analysis (ABA) therapy at 100% of bill charges, as if your private ABA therapist is in your insurer’s network.

California insurance and health code regulations require insurers to establish adequate networks, including adequate networks of autism service providers such as ABA therapy providers. See e.g. 28 CCR §1300.67.2.2 (stating network adequacy standards); 28 CCR 1300.74.73 (requiring insurers must certify to sufficient networks of autism service providers); and Cal Health & Saf Code § 1374.73 (requiring insurers to cover ABA therapy and establish adequate ABA therapy networks).

In California, insurers must also ensure they have sufficient numbers of contracted network providers for specialty services. Otherwise, an insurer must arrange for the provision of specialty services by a non-network provider and the policyholder can only be held responsible for in-network copays, coinsurance and deductibles. See 2009 CA Regulation Text 19136 7(B) (stating in such cases the enrollee costs “shall not exceed applicable co-payments, co-insurance and deductibles”).

In addition to the regulations, some California insurance policies contemplate situations where policyholders will be reimbursed for out of network services at 100% less the in-network deductible and coinsurance, up to the lower network out of pocket maximum, even though services are provided on by a non-network provider. You should use this language to support your argument that your insurer is required to cover your non-network ABA provider’s services as if they were rendered under the network provisions in the policy, because the insurer does not have a sufficient network of ABA providers. An example of insurance policy language that supports this position would state:

If specific Covered Health Services are not available from a Network provider, you may be eligible for Network Benefits when Covered health Services are received from non-Network providers. See Policy at p. 39. In this situation, your Network Physician will notify us and, if we confirm that care is not available from a network provider, we will work with you to … coordinate care through a non-Network provider.

As such, if you find yourself in a situation where you cannot find an in-network ABA provider to adequately treat your child for the number of hours he or she needs, you should rely on the California regulations above and your insurance policy language to compel your insurer to pay for the services of your private ABA therapist at 100% of charged as if the claims are in-network; and to process the claims using the lower network deductible up to the lower out of pocket maximum.

When your insurer denies your ABA claims because they were rendered by an out of network provider or pays such claims at the non-network rates, deductible, coinsurance and out of pocket maximum, file an appeal. Make sure your appeal is submitted timely, and attach and refer to whatever proof you can gather to show network inadequacy. Proof of an inadequate network could involve everything from the memo/notes summarizing your fruitless calls to network providers for the amount of services required by your child, to an admission by your insurer that it does not have a network of ABA providers in the vicinity where you live.

In addition to referencing the regulations, your appeal should reference any relevant language in your insurance policy that supports the argument that your insurer will allow non-network claims on network basis where network services are unavailable.

Moreover, your appeal should also include any medical documentation, reports, prescriptions, which support medical necessity for the hours of ABA therapy that you are requesting – and which has allowed your child to progress.

Finally, you should copy the California Department of Insurance (CDI) with your appeal papers and supporting documents and file a related complaint with CDI at http://www.insurance.ca.gov/contact-us/0200-file-complaint/ because California regulated insurers are subject to significant oversight by CDI, including administrative penalties of up to $2500 a day for failure to comply with the law and relevant policy terms. An appeal that is supported by appropriate documentation and copied to CDI with a complaint will open up an investigation on the issue of your insurer’s network adequacy, compliance with the relevant regulations and policy provisions, and help convince your insurer to cover your child’s private ABA therapy on a network basis.