SB 676: My View as an Attorney

I will start this post by making the point that I am an attorney. Along, those lines, I would add that I received a JD from the Wake Forest University School of Law in May of 2003. I became a member of the North Carolina Bar after passing the North Carolina Bar Exam in August 2003.  After two years practicing residential real estate law, I joined Nexsen Pruet in Greensboro in North Carolina in August 2005.  Since joining Nexsen Pruet, I have had a commercial real estate, land use, and real estate litigation practice.  In my practice as a land use lawyer and a real estate litigator, I have had the opportunity to spend a lot of time researching statutes and ordinances and arguing various interpretations of those statutes before local boards, superior court judges, and in briefs and oral arguments before the North Carolina Court of Appeals. As part of those arguments, I have spent a lot of time researching and arguing the various statutory interpretation rules that are applied by the North Carolina courts.

I do not usually make a point of the fact that I am an attorney.  However, I felt it was important to set out my professional experience and qualifications in this post because the point of the post is to provide my interpretation of SB 676 as it is pending as of July 19, 2015. 

In the last week, I have seen e-mails that were sent on behalf of the Autism Society of North Carolina to autism families in which the sender stated something along the lines of "All therapies and other medical needs but the coverage of ABA and Adaptive Behavioral Therapies will be covered by the Federal Mental Health Parity Provisions if SB 676 is enacted as currently written,"  

In addition to these e-mails, I was told a very similar thing by a legal staffer of one of the members of the General Assembly who was trying to convince me to accept the bill as written. In support of her statement, this staffer pointed me to the revised provision of NC Gen. Stat. 58-3-220(i), which provides "Notwithstanding any other provisions of this section, a group health benefit plan that covers both medical and surgical benefits and mental health benefits shall, with respect to mental health benefits, comply with all applicable standards of Subtitle B of Title V of Public Law 110-343, known as the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 and the applicable regulations, as amended." 

The reason I am not comfortable with this statement is because I took a look at the applicable regulations that are referenced.  In those regulations, which are located in 45 CFR 146.136(a), the Department of Health and Human Services defines "Mental Health Benefits" as "benefits with respect to items or services for mental health conditions, as defined under the terms of the plan or health insurance coverage and in accordance with applicable Federal and State law. Any condition defined by the plan or coverage as being or as not being a mental health condition must be defined to be consistent with generally recognized independent standards of current medical practice (for example, the most current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), the most current version of the ICD, or State guidelines)."  The way I read that, what the regulations do is refer back to the State definition of Mental Health Benefits, which would send one back to N.C. Gen. Stat. 58-3-220(a) and (h).  Going back to N.C. Gen. Stat. 58-3-220(a), if SB 676 is adopted as currently written, N.C. Gen. Stat. 58-3-220(a) and (h) will expressly exclude autism spectrum disorders from the definition of mental health conditions.  Accordingly, the way I read it, the federal provisions will thus no longer apply to autism spectrum disorders despite what N.C. Gen. Stat. 58-3-220(i) says. Keep in mind that N.C. Gen. Stat. 58-3-220(i) does not say that all of the protections of of federal Mental Health Parity Protections will apply to autism, This unfortunate interpretation is supported by the language in the regulations providing background and information on the regulations that states that "the MHPAEA requirements are not to be 'construed to supersede any provision of State law which establishes, implements, or continues in effect any standard or requirement solely relating to health insurance issuers in connection with group health insurance coverage except to the extent that such standard or requirement prevents the application of a requirement' of MHPAEA."

I am not aware of an attorney who is advising the Autism Society of North Carolina with respect to SB 676.  That is interesting given the fact the Autism Society's statements are so similar to those that were said to me by a staffer.  It really makes me wonder why the Autism Society is making the statements. Are they just relying on the determinations of the staffer's who are pushing the bill? Or, are they taking an independent view on SB 676 and trying to determine what is best for North Carolina Autism Families.  Given what I know, it seems like the former, not the latter, and I do not understand the reason for that. 

In an effort to try to figure out why the Autism Society of North Carolina is taking the position it is taking, I sent an e-mail to the Board of Directors. The e-mail that I sent was as follows:

First, I want to introduce myself. My name is Brian Pearce. I am an attorney with Nexsen Pruet in Greensboro. More importantly, I am the father of two young children, the older of which is a 4 year old boy who is on the Autism Spectrum. Over the past couple of years I have gotten involved in the lobbying for an Autism Insurance Bill in North Carolina. As you all now know, there are 2 bills in the General Assembly at this point. I understand that you are each on the Board of Directors of the Autism Society and I would ask that you share this email and the attached letter with the rest of your Board. I drafted the letter with the help of 2 other autism dads and circulated the letter to other autism families in a period of 2 days. You will see the good response that I received. I also will note that I posted this letter on ASNC’s Facebook page and rather than acknowledge the letter and issue, ASNC chose to remove the post and hide the sentiment from those families who may be visiting its site.

The reason I write is to open a dialogue in an effort to understand why ASNC is agreeing to the language in S676 with respect to federal Mental Health Parity Protections. I spoke with Julie Bradburn in Sen. Apodaca’s office and she of course makes a big point of ASNC’s agreement to this language. As a practicing attorney and autism dad, I am concerned regarding the effect this language will have on my child’s interests. I understand from my conversation with Ms. Bradburn that the purpose of the current language is to ensure that the age cap and insurance limits are enforceable, not to actually remove these protections. Ms. Bradburn asked that I trust the insurance companies that they really will interpret this language this way.  Again, as a practicing attorney who argues the interpretation of statutes and ordinances on a regular basis, this is not an acceptable request because (i) I do not trust the insurance companies to do the right thing and (ii) the current language of S676 could easily be interpreted to remove all mental health parity protections from my son as well as all other children who are on the spectrum in North Carolina. I simply do not believe it is a wise move to risk this removal, when BCBS’s stated concern about having enforceable limits can be addressed much more plainly and simply with another minor change that would not create ambiguous legislation that could be harmful to our children. I understand that the ASNC staff is unwilling to support this change. I hope you will see based on the large number of families who signed on to this letter in a short period of time that many more families agree with me on the apprehension of the language than with the ASNC staff. 

I don’t want to take any more of your time, but I do want to ask the three of you as Autism Parents, and the remainder of your board, whether you truly think this language is what your children deserve. Please give it some good thought and research and consider what it will look like if your children lose their Mental Health Parity rights. Also, consider how minor the change is that we are asking for. With all of that in mind, I hope you will consider changing ASNC’s position and help us get this one small change put in the bill so our kids are adequately protected. 

If any of you would like to discuss this more, I am happy to do so.

I only received one response to that e-mail. The response that I received was from one of the two lawyers that I am aware of on the Autism Society's Board.  That individual agreed with me on my concerns. Its interesting to me that none of the other Board Members even cared to respond to me. Keep in mind, according to their website, the Autism Society's Mission is "to provide support and promote opportunities that enhance the lives of individuals within the autism spectrum and their families." If the Autism Society of North Carolina really wants to work towards that mission they should start by really contemplating SB 676 and working with the North Carolina families to get it changed to include language that will protect our children's federal mental health parity rights.