We are pleased to see that a Superior Court has agreed with our colleagues at Consumer Watchdog that the refusal of the Department of Managed Health Care to refer denials of care for autism to independent medical review was an underground regulation as well as a violation the Mental Health Parity statute, as reported by the LA Times.
Autism is a difficult condition to treat but there are at least some treatments, including intensive behavioral therapy, that increase the odds that a child will be able to lead a more normal and productive life. Intensive behavioral therapy such as applied behavioral analysis is no picnic for either the child or the parents and demands extensive efforts on the part of parents as well as skilled intervention of certified practitioners.
We have been troubled about how DMHC has handled autism claims: a number of cases were referred to independent medical review and the independent medical reviewers found that peer-reviewed science justified the treatment as medically necessary. HMOs than asserted that the care was being denied because it was not a covered benefit rather than on grounds of medical necessity.
Independent medical review was one of the victories consumers won in the HMO Patient Bill of Rights, sponsored by Health Access California and signed into law in 1999. Consumers who are denied care on the grounds that it is not medically necessary can appeal to an independent panel of medical experts who determine whether the science and the particular circumstances of the patient justify the care. (Some treatments work but not for the particular patient.)
There are some flaws in California law with respect to independent medical review. One of them is made obvious by the autism case: independent medical review deals only with determinations of medical necessity, not with whether something is a covered benefit. In some instances whether something is a covered benefit is clear: the coverage does not include durable medical equipment so wheelchairs are not covered. But other times the line between a covered benefit and a determination of medical necessity is murkier: does someone need more than the normal regimen of physical therapy after breaking a leg either because the injury is worse than usual or the individual has diabetes so recovery is delayed? Are the additional physical therapy visits a covered benefit question or a medical necessity determination? The autism question falls into this category as well: the HMOs allege that it is not a covered benefit; the consumer side said the care is medically necessary and a denial violated the Mental Health Parity Act.
Another flaw in the California law with respect to independent medical review is that appeals are not automatic: consumers must push forward at each step, first filing a grievance, then seeking an independent medical review. In this case, a number of very determined parents pushed even further—by filing a lawsuit with the help of Consumer Watchdog. It is an important case and one we will watch carefully as it progresses.