ABA Therapy coverage exclusions raise a red flag 

Employers sponsoring self-funded group health plans covering some treatments for autism spectrum disorders (ASDs), but excluding coverage of Applied Behavior Analysis (ABA) therapy, should evaluate the escalating compliance risk and clinical appropriateness of such an exclusion. Many group health plans eliminated ABA therapy exclusions at some point during the past decade – whether in response to state insurance mandates, employee requests, participant lawsuits under the Mental Health Parity and Addiction Equity Act (MHPAEA), or a reassessment of the clinical evidence relating to ABA therapy. The 2021 Consolidated Appropriations Act (CAA) provides yet another compelling reason for group health plans excluding ABA therapy coverage to reevaluate that exclusion.

The CAA requires that group health plans prepare a detailed, written comparative analysis for each of the plan’s nonquantitative treatment limitations (NQTLs), and disclose that analysis to the DOL, participant, or beneficiary on request. As we recently reported, the DOL is already asking some group health plans to produce a written comparative analysis—and within tight 7-14 day timeframes in some instances. The exclusion of ABA therapy is considered to be an NQTL if the group health plan covers other treatments for ASDs and we are aware of self-funded plan sponsors that have been asked for a comparative analysis of their ABA therapy exclusion. In addition, a DOL representative has informally indicated that ABA therapy exclusions raise a “red flag” and will continue to be a focus of DOL’s enforcement efforts.

In addition to the increased risk of agency enforcement against plans excluding this coverage, recent clinical evidence supports that ABA therapy is effective at improving a child's social and academic function, particularly when started early after a diagnosis of ASD. There are clinical criteria both for covering ABA therapy and for determining when it is no longer needed, similar to the criteria for deciding when to start and stop other therapies. Utilization management policies guide the appropriateness of treatment for the individual child as well as its duration; ABA therapy is not a lifelong treatment. Many employer plan sponsors see ABA therapy coverage as part of comprehensive and competitive benefit package, particularly when they consider its importance to an employee caring for a child with an ASD.

Employer plan sponsors that want to continue excluding coverage for ABA therapy should evaluate the compliance risks of this type of exclusion with legal counsel.

• If the employer has completed a written NQTL comparative analysis, consult with counsel about whether the comparative analysis of the ABA therapy exclusion can be justified under the mental health parity rules.
• If the NQTL comparative analysis has not yet been completed, the plan sponsor should retain clinical and legal experts to explore whether a comparative analysis can be prepared to justify the ABA therapy exclusion.

Past DOL guidance suggests that it may be difficult to justify excluding all ABA therapy coverage on the grounds that it is experimental or investigative. But we are not aware of what comparative analysis, if any, the DOL would find acceptable to justify a blanket exclusion of ABA therapy coverage.

We also recommend that employer plan sponsors review their plan’s ASD coverage to determine whether any coverage NQTL for ABA therapy or similar treatments exist. If the plan covers ABA therapy but imposes NQTLs on the coverage in some way (for example, by imposing medical management techniques, or by applying age limits), you should ensure that the processes, strategies, evidentiary standards and other factors used to apply the limit are comparable to and applied no more stringently than those applied to medical/surgical benefits. If you or your TPA haven’t prepared a written comparative analysis of the NQTL that can support this type of limit, consider whether it makes sense to remove or modify the NQTL on such coverage, or retain experts to develop a CAA-compliant comparative analysis.