In Support of Assembly Bill A6888B Expanding Insurance Coverage for ASD And In Opposition to S7000/A10372A

The Elizabeth Birt Center For Autism Law And Advocacy is a national organization of lawyers who advocate for individuals with autism and related disabilities on legal and policy issues. We urge enactment of legislation that will prohibit discrimination in insurance coverage for individuals with Autism Spectrum Disorder (“ASD”). We urge the legislature to stop unfair insurance coverage practices that deprive necessary health care for individuals with ASD. As legal practitioners who work closely with families affected by autism – or have affected children – we have all too often observed that insurers have worked to deny coverage for basic interventions that would make a real difference for individuals with autism. We applaud legislators in New York for taking a close look at the autism insurance coverage issue.

We urge the legislature to support an insurance bill that would meaningfully enhance insurance coverage for individuals with autism. We believe that Assembly Bill A6888B, legislation supported by the overwhelming number of autism organizations and families in New York, offers our children the best opportunity for fair and adequate insurance coverage. At the same time we urge the legislature to reject another bill, S7000B/A10372A, because it would operate as a regressive bar to insurance coverage in many instances even while it masquerades as a bill championing the cause individuals with ASD.

Among our members are attorneys whose practice focuses on helping children with ASD obtain health insurance coverage for evaluation and therapy. Our experience has demonstrated that unless insurance companies are compelled to cover specific medical interventions the industry will use every device available to deny coverage. This is the reality in the insurance industry and the experience of families who have for too long lived without certainty for medical and therapy interventions for their children. Insurance companies are expert in using policy and legal exclusions to deny or limit coverage.

We have learned from our practical legal experience in handling insurance coverage disputes that insurance companies, with disturbing regularity, successfully avoid coverage for many therapies vital to children with ASD. We need legislation that will mandate certain basic non-experimental therapies that are medically necessary for children and individuals with ASD.

We need legislation that will prevent insurers from denying coverage when a legitimate medical practitioner determines that therapy is medically necessary. Instead of providing this kind of legislative relief to families, S7000B/A10372A would erect new barriers to coverage by imposing an unprecedented requirement that an insured show that a prescribed intervention is "evidenced based, peer reviewed and clinically proven" to obtain coverage. As applied in practice these new requirements would preclude coverage for almost all interventions for autism, even those determined by a licensed physician to be medically appropriate and necessary. This standard would also serve to discriminate against individuals with ASD who would be required to meet this higher insurability standard, whereas all other individuals in New York would be required to meet only the traditional and less onerous “medically necessary” standard.

Our experience also has shown that unless legislation prescribes coverage for specific therapies insurers will find a way to deny coverage. Assembly Bill A6888B performs this function without limiting coverages that are not specifically identified in the language of the bill. Contrary to the claims of its critics, Assembly Bill A6888B specifically enumerates covered therapies "such as" speech, physical, occupational and ABA therapy, but allows for coverage of additional treatments that are medically necessary and not experimental.

S7000B/A10372A allows insurance companies to deny basic interventions such as speech therapy, physical therapy, occupational therapy, and ABA therapy on the ground that they are not “evidence based”, “peer-reviewed” and “clinically proven.” S7000B/A10372A opens up the insurance industry so that everything is fair game, and in the marketplace today the game has been played to deny or severely limit coverage.

We believe the law should explicitly confirm the fact that at the very least, speech, physical, occupational and ABA therapies are accepted by the medical community as medically necessary to treat autism. This will end the current intolerable practice that allows insurers to dispute their coverage obligations for these therapies. S7000B/A10372A, on the other hand will expand the opportunities for insurance companies to use a playing field that favors them to deny basic coverages by leaving it to the regulators and the insurance company lobbyists to negotiate behind closed doors over which therapies will be required to be covered.

The requirement that insurers cover specific therapies is not new. Throughout the country state legislation has done specifically that, including in South Carolina, where recently enacted legislation mandates coverage for behavioral therapy. It is strange that proponents of S7000 criticize specific enumeration of covered therapies, even when these very critics have supported legislation elsewhere that mandates coverage. Shouldn’t New York children have legal protection equal to or greater than children in other states, such as South Carolina?

We also believe that the new bureaucracies erected by S7000B/A10372A will create new obstacles to coverage. S7000/A10372A would create new commissions to interpret the meaning of "evidenced based, peer reviewed and clinically proven" with reference to specific medical interventions and therapies. It is completely unclear when the new bureaucracies will become operational, how they will make their determinations and how long the new bureaucratic process will take. In addition, New York State will incur new costs in administering this new, untested and unproven program. In the interim insurers will continue their practice of denying coverage for basic therapies such as speech, physical therapy, occupational therapy and ABA. In this case, coverage denied is health denied for it is universally understood that early, intensive therapy achieves the best outcomes for children diagnosed with ASD.

Our nation and State have all too often witnessed suffering that has resulted from well financed industries capturing regulators through well paid lobbyists and other methods. The recent financial and oil drilling debacles come to mind. The autism community watches with trepidation as the legislative process yields to the same kind of pressure. The prospect of erecting a new bureaucracy subject to the same kind of intimidation is unacceptable to families struggling to obtain health care for their children.

As lawyers and advocates who work for families that need insurance coverage we implore you as legislators to reject business as usual. A6888B offers the best chance to send a clear message that basic therapies for ASD should be covered. It will help to stop obfuscation in the legislative process and gamesmanship in the insurance industry.

The Elizabeth Birt Center for Autism Law and Advocacy joins the authentic autism community in urging enactment of A6888B. We urge rejection of the industry influenced legislative proposal contained in S7000B/A10372A.

It is time for New York to provide real help to families struggling with ASD and to say “No” to industry forces that seek to capture regulation of the insurance industry in New York.

June 21, 2010
New York, New York
Jodi Bouer, Attorney At Law
Lisa Colin, Attorney At Law
Mary Holland, Attorney At Law, Director
Robert J. Krakow, Attorney At Law