New Court Opinion Establishes that ABA Providers are not Illegally Practicing Psychology

By Scott Glovsky on April 25th, 2014 in Arbitration, Autism Insurance Coverage, Class Action, Insurance, Insurance and Healthcare Denials, Insurance Bad Faith

We recently helped change a California Court of Appeal decision that would have had disastrous implications for hundreds, if not thousands, of children with autism spectrum disorders who need applied behavioral analysis (“ABA”). On June 30, 2009, Consumer Watchdog, a consumer advocacy group, brought a legal action against the California Department of Managed Health Care (“DMHC”), the organization that regulates health plans. Consumer Watchdog sought an injunction requiring the DMHC to stop health plans from denying coverage to children with autism who seek ABA coverage on the ground that the ABA provider is “unlicensed” regardless of whether the ABA provider is certified by the Behavior Analyst Certification  Board (“BACB”) or not. This is an important issue because nearly all ABA providers are BACB certified or supervised by BACB certified personnel and ABA is one of the most effective treatments for autism.

The Court of Appeal initially determined that before the enactment of SB 946, the ABA mandate law, ABA providers that were not licensed by the state of California were illegally practicing psychology. Thus, before the enactment of SB 946, health plans could legally deny ABA to all children with ASDs because almost no ABA providers were licensed in California. Our office saw the harm that such an order could have on children with autism and took action.

We filed a brief with the Court of Appeal asking it to change its opinion.  In our brief, we explained how based on our experience as advocates for children with autism, we were acutely aware of the harm that the unnecessary ruling could have on children with autism.  The Court of Appeal considered our brief, in addition to the briefs of other friends of the court and autism advocates such as Autism Speaks, and on April 23, 2014 issued a new ruling.  The new ruling omitted the troubling language that unlicensed ABA providers were illegally practicing psychology. We are very pleased with the result.

A full copy of the opinion is available at the link here.