The Affordable Care Act, as implemented in Ohio, requires covered health plans to pay for up to 20 hours per week of Applied Behavior Analysis (ABA) or other comparable evidentiary based services. This is an extraordinary advance for families with children with autism. While the implications and implementation of this directive are not fully realized at this point, the following provides some guidance based on information available to date.
The Affordable Care Act requires states to ensure that covered plans include specified Essential Health Benefits (EHB). EHBs are listed at 45 CFR 156.110 and include rehabilitative and habilitative services and devices. “Habilitative Services” are not defined in the Federal rules; states have discretion to define services to be included in this category. 45 CFR 156.110(f).
On December 26, 2012, Governor Kasich confirmed that Ohio was exercising its authority to define habilitative services to include certain services, including:
(a) Clinical Therapeutic Intervention defined as therapies supported by empirical evidence, which include, but are not limited to, Applied Behavioral Analysis provided by or under the supervision of a professional who is licensed, certified, or registered by an appropriate agency of this state to perform the services in accordance with a treatment plan, 20 hours per week.
What the Changes Mean (So Far)
1. All individuals who get coverage through the Health Insurance Exchange in Ohio will be eligible for the habilitative services specified by Governor Kasich in his December 26, 2012, letter, including up to 20 hours per week of ABA or equivalent, empirically based, services.
Regardless of what type of plan you choose from the Health Insurance Exchange, the maximum out-of-pocket cost limit for any individual Health Insurance Exchange plan for 2014 can be no more than $6,350 for an individual plan and $12,700 for a family plan. This limit includes deductibles, coinsurance, copayments, or similar charges and any other expenditure required of an individual which is a qualified medical expense for the essential health benefits.
2. If an individual or family has coverage through the individual and small group market, but not through the Health Insurance Exchange, requirements for essential health benefits, including the Governor’s defined requirement, will apply to plans or policy years beginning on or after January 1, 2014, (45 CFR 147.150; 78 Fed Reg 12836) unless the plan is grandfathered or unless the plan is otherwise exempt. Plans obtained on the individual and small group market are, in general, not exempt.
If the plan is grandfathered, and not subject to the EHB requirements, the individual/family could obtain coverage through the Health Insurance Exchange, but will lose the employer contribution and may not qualify for lower cost premiums or subsidy for out-of-pocket costs through the Health Insurance Exchange.
3. As of January 1, 2014, new plans and existing group plans cannot impose annual or lifetime limits. Using ABA services or equivalent covered services will thus not jeopardize access to other necessary health coverage.
4. According to Federal Rules, all individuals who are newly eligible under Medicaid expansion (adults aged 19 and over whose income is 138% of FPL) are eligible for the habilitative services specified by Governor Kasich in his December 26, 2012, letter. 42 CFR 440.347(a).
5. EHB requirements, including the habilitative requirement, are not being applied in Ohio to people who are currently on regular Medicaid, Medicaid for people who are aged, blind or disabled, or Medicaid waivers. Medically necessary services may be accessed through other means available under the State Plan and waivers, including EPSDT.
But Wait – There’s More!
In addition to the references to ABA services, the Governor’s letter also included the following as part of habilitative services under the Essential Health Benefit:
“Habilitative services benefits shall be determined by the individual plans and must include, but shall not be limited to, Habilitative Services to children (0 to 21) with a medical diagnosis of Autism Spectrum disorder which at a minimum shall include:
(1) Out-Patient Physical Rehabilitation Services including
(a) Speech and Language therapy and/or Occupational therapy, performed by a (sic) licensed therapists, 20 visits per year of each service; and
(b) Clinical Therapeutic Intervention [defined above];
(2) Mental/Behavioral Health Outpatient Services performed by a licensed Psychologist,
Psychiatrist, or Physician to provide consultation, assessment, development and oversight of treatment plans, 30 visits per year total.”
The Speech/language/OT and other services are subject to the same requirements, summarized above, as ABA and similar services.
- Posted by Attorney Franklin J. Hickman