There has been a massive push to legislate mandatory insurance coverage of autism treatment. Legislation has already passed in many states. Autism Speaks is doing an amazing job coordinating these efforts across the country.
When I first heard about it, I thought it was a brilliant idea. As an attorney who represents children with special education needs in general, and many, many children with autism spectrum disorders (ASD) in particular, my initial reaction was that any help families can get, from any source, was a good thing. “Great,” I thought, “let’s get the insurance companies involved in this!”
But then I thought about it some more. And thought about it. And thought about it. And the more I did, the more concerned and conflicted I became.
Unfortunately, my experience litigating against school districts for many years now as a Connecticut special education attorney has led me to the conclusion that, in a very large percentage of cases, they will use whatever tools they have in their arsenal to avoid compliance with, and funding for, special education mandates and services. There are, of course, exceptions, but the standard approach seems to be to deny parental requests for additional services, even when it’s clear that those services are something to which the child is entitled, and hope that in 99 out of 100 incidents, they get away with it.
And that is, in fact, what usually happens. Then, for the one family who hires an advocate or attorney and fights it, even if the school ends up spending a lot of money on that one child, it is far less than they would have spent on the 99 other cases that they got away with.
It’s classic “bean counting.” It’s actually a lot like dealing with…insurance companies.
So I got to thinking how insurance coverage for autism treatment might be distorted by school districts to their advantage, and I came up with a frightening number of scenarios. I began to envision that when parents ask school districts for special education services under the IDEA for their children with Autism Spectrum Disorders, the district will respond: “oh, autism treatment is a medical service, not an educational service; you should ask your insurance company.”
Allowing school districts the window of opportunity to characterize all autism treatment as “medical” in nature could lead to disastrous results in our public schools when it comes to evaluations and services.
I am proud to say that, here in Connecticut, those of us who were worried about this were able to have incredibly positive and productive discussions with the individuals who were working on the legislation, and those concerns were heard. As a result, our proposed legislation, SB 301 (http://www.cga.ct.gov/2009/TOB/S/2009SB-00301-R01-SB.htm) which I really hope will pass soon, has clear language in it that underscores that an insurance company’s obligations to provide autism treatment do not supplant a school district’s obligations to provide appropriate special education services.
As this legislative initiative continues across the country, I urge those of you interested in this subject to work with those drafting the legisiation in your states to suggest the addition of similar language.
While no state statute can lawfully overturn the federal requirements which fall on school districts under the IDEA, as a practical matter, my prediction is that school districts will try, hard and often, to use insurance coverage requirements as an excuse for not providing autism intervention services themselves.
If and when that happens, we who advocate on behalf of children with ASD will have to fight legal battle after legal battle to prove their position legally flawed, and we will probably eventually win those arguments. But how many children will be denied services during that time? How many families will lose valueable time for intervention while we prove the point?
What must be done is to insist that any legislation that mandates insurance coverage for autism treatment EXPLICITLY state that these mandates augment, rather than substitute, obligations on school districts under state and federal special education laws. If this is clearly spelled out in the statutes, then while we can not entirely prevent obfuscation on the part of school districts, at least we will be able to point to the very legislation cited and say “nice try.”