The Great Insurance Debate-It's Time for the North Carolina General Assembly to Act

When Charlie was diagnosed as being on the autism spectrum, one of the first great sources of comfort that Caroline and I had was that autism therapies had progressed so far and that studies were showing that early intervention therapies do make a dramatic difference.  With that in mind, Caroline and I sought to get Charlie involved in as many therapies as possible as quick as possible. What we quickly came to learn was that therapies work wonders but they are not cheap. We also learned that most insurance plans, including ours at the time, did not cover the therapies that we saw were making such a dramatic difference with Charlie's development.  Upon learning that insurance didn't typically cover therapies, my first question was "Why Not?"

Nexsen Pruet, the law firm of which I am a member, has offices in North Carolina and South Carolina.  As I researched to find out why our insurance was not covering these therapies that worked so well I learned that my firm's insurance plan was self funded.  Because it is a self funded plan, our plan fell under federal ERISA laws rather than under any specific state laws.  This distinction was important for us because if our plan fell under state laws it would be subject to South Carolina law, which does require coverage for autism therapies.  Because our plan was subject to ERISA and ERISA does not have the requirements for coverage, our plan did not have to provide the coverage. This lead me to great disappointment

Alas, I found a source of great information on the Autism Speaks website.  Autism Speaks has put together a comprehensive library of information on its website here where one can get all the information they need to learn about the issue of insurance coverage of autism therapies. Important for me at the time was the "Self Funded Employer Tool Kit," which provides information for companies with self funded plans, like my law firm, that want to do the right thing and provide coverage for their employees.  With this information in hand, I approached the powers that be at my law firm with the request that our firm add the coverage.  I was happy to hear that I had a receptive audience and to find out that my firm voluntarily added coverage of autism therapies within six (6) months of my request.  I am now proud to see Nexsen Pruet listed in the Tool Kit alongside companies such as Wells Fargo, Bank of America, Eli Lilly, Microsoft, Oracle, Apple, and Merck as companies who have voluntarily taken the steps to do what is right by their employees and voluntarily adopt coverage of autism therapies.  If you want to read more about my story in this regard, here is a post I wrote for Autism Speaks last summer.

I was happy that my family had gotten the coverage that we needed, but I was still disappointed to see that my home state, North Carolina, was among the minority of states that does not require insurance coverage for autism therapies.  I'm never one to just sit with my disappointment so I decided to get involved in the mission to push North Carolina from the minority to the majority.  I quickly learned that one of those who was leading the cause was Lorri Unumb with Autism Speaks. I had a connection with Lorri because one of my roommates from law school clerked for the same judge that Lorri had clerked for in the past.  I used this connection to get in touch with Lorri and join the cause for change in North Carolina in the summer of 2013.

In April of 2013, a bill was introduced in the North Carolina House of Representatives to require coverage for autism therapies.  This bill gained traction with the help of some caring sponsors and was eventually heard in Committee and before the  House.  I was pleased to see the bill pass rather easily in the House. Unfortunately, that was the end of that bills movement for the following two years. The 2013 session of the North Caroline Senate came and went without as much as a hearing on the bill.  We were hopeful for 2014 that the North Carolina Senate would finally come around and give the bill the hearing it deserved. I traveled to Raleigh on two occasions, including one time with Charlie and Keller in tow, to ask the Senators to give our bill a hearing. Unfortunately, that hearing never happened and the bill eventually died.

2015 has brought better news for autism families in this regard, but the news is not perfect. SB 676 was introduced by Senator Apodaca in the North Carolina Senate on March 26, 2015.  The bill made it through the Senate and is now in the House. This bill does provide for insurance coverage of autism therapy but unfortunately it also has some rather large holes in it that were carved by the insurance lobby. Most notably, SB 676 exempts Autism Spectrum Disorders from the protections of the Mental Health Equity requirements. Interestingly, the only other two types of mental health illnesses that are exempted from these protections are "substance-related disorders" and "sexual dysfunctions not due to organic diseases." 

For the life of me, I cannot figure out why anyone would group autism with these two categories and carve it from these protections. The only partial explanation I can come up with is that it is because people do not understand the ramifications of not affording the protections. So what are the ramifications? Many of them don't have anything to do with insurance whatsoever. Instead, the ramifications include that:        

• A mental illness designation is relevant to a finding that an individual lacks the capacity to manage the individual's own affairs.
•  A mental illness designation is relevant to a determination that an individual is eligible for voluntarily admission (or involuntarily commitment) to a facility for inpatient or outpatient mental health treatment.
• The designation is relevant in a variety of family court contexts pertaining to divorce, custody, guardianship, and conservatorship.
•   A mental illness designation is relevant in a variety of trust and estate matters.
• A mental illness designation helps determine whether an individual is entitled to special protection under NC’s law dealing with “Assaults on handicapped persons.” (G.S. § 14-32.1, creating harsher punishments for an individual who “inflicts serious injury or serious damage to a handicapped person”).
•  If a person with autism has a brush with the law, the “mental illness” legal designation is relevant in determining whether the individual is mentally incompetent to proceed to criminal trial.
•  In the event that an individual does stand criminal trial, the mental illness designation is a precursor to a finding that an individual is “not guilty by reason of insanity.” (There is a case pending now where the defense is that the child with autism was incapable of forming the requisite intent for the “criminal” act.)
• Mental health status is relevant as to insurance issues unrelated to the autism bill; for example, NC law prohibits insurers from refusing to enroll an individual in a physical illness/injury plan or having higher premiums for physical coverage solely because the individual has or had a “mental illness.
• North Carolina law deems “mental illness” relevant in determining whether early repayment of a reverse mortgage loan maybe required (§ 53-267 - Repayment upon borrower's default).
• Eligibility requirements for NC Supportive Housing Program give priority to individuals diagnosed with mental illness.  (G.S. § 122C-20.8)

One of the major ramifications that I have personal experience with is that it allows insurance companies to limit the number of "in network" providers who are allowed to provide covered therapies.  This is an issue that we have run into and worked out with our insurance provider.  In looking to get covered therapies, we soon found that there were barely any "in network" providers we could use to provide Charlie the therapies that he needed.  Because the carve out had not yet occurred, I was able to convince our insurance company to add more providers who we had used as in network providers.  If the carve out was in place, I do not believe I would have been as successful in that regard and we would have been in a position where we had coverage but could not get the services because the providers just did not exist.

I plan to write more on this in the future, but I wanted to get the information out there as it is my hope that the North Carolina House of Representatives will soon take up SB 676 and work to amend it to remove the Mental Health Equity carve out and to fix some other holes.  I am pleased to see that the North Carolina Senate is now seeing the importance of this coverage and its my hope that the Senate will work with the House to structure a bill to provide North Carolina Autism Families with the coverage that they deserve.

If you want to help join the fight, please contact your representative and ask them to help amend SB 676 and get rid of the Mental Health Equity carve out. To find your representative's contact information, click here.