The ABCs of ABA Funding: Part Four of Four

By Attorney Franklin J. Hickman

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 for children up to 21 years of age diagnosed with Autism Spectrum Disorder. 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.

Background

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 as follows:

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 licensed therapists, 20 visits per year of each service; and

(b) 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;

(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.

What the Changes Mean (So Far)

(1)  All individuals who receive coverage through the Health Exchange in Ohio will be eligible for the habilitation services specified by Gov. Kasich in his 12/26/12 letter, including up to 20 hours of ABA or equivalent, empirically based, services per week.

Regardless of what type of plan you choose from the Health Exchange, the maximum out-of-pocket cost limit for any individual Health 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)  There is some discretion allowed to insurance plans under the ACA to alter coverage within the same EHB category, such as the rehabilitation/habilitation requirement. The rules allow substitution of a benefit only if the alternative meets requirements in 45 CFR 156.115(b). These requirements include a showing that the substitution is “actuarially equivalent to the benefit that is being replaced.” Id. 156.115(b)(1)(i). It seems unlikely that there could be a substitution which meets this requirement for the habilitation benefits in the 12/26/12 letter.

(3)  If an individual or family has coverage through the individual and small group market, but not through the Health Exchange, requirements for essential health benefits, including the Governor’s defined requirement, will apply to plans or policy years beginning on or after 1/1/14, (45 CFR 147.150; 78 Fed Reg 12836) unless the plan is grandfathered or unless the plan is otherwise exempt. Exemptions generally do not apply to individual or small group plans.

If the plan is grandfathered, and not subject to the EHB requirements, the individual/family could obtain coverage through the Health 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 Exchange.

Families could consider obtaining a separate plan, through the health exchange, which covers their child with autism.

(4)  As of 1/1/14, 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.

(5)  All individuals who are newly eligible under Medicaid expansion (138% of FPL) are eligible for the habilitation services specified by Kasich in his 12/26/12 letter. 42 CFR 440.347(a). Since the Medicaid expansion only applies to persons aged 19 and over, the habilitation benefit may be of limited value.

(6)  EHB requirements, including the habilitation requirement, do not apply 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 Early and Periodic Screening, Diagnosis and Treatment, as discussed in Part Two of this series.

Posted in Articles, Articles: Children with Special Needs.