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Florida Autism Legislation Chapter 1: Introduction
There are three key components of the Florida autism legislation:
- Mandate: an insurance mandate that covers children with autism spectrum disorders.
- Compact: a proposed compact among health benefits providers that relates to insurance and access to services for individuals with developmental disabilities (including autism spectrum disorders).
- Medicaid waiver: a proposed supplemental Medicaid waiver to provide treatment to children age five or younger who have diagnosed developmental disabilities (including autism spectrum disorders).
In this and other Chapters, in a Q&A format, I provide some basic information that I hope will help you answer questions you may have on various topics related to the Florida autism legislation. See Table of Contents. In this Chapter, I summarize the information covered in the other Chapters.
Please keep in mind that I am answering general questions that may or may not apply to your specific circumstances. You should consult a lawyer or other specialist if you think you are entitled to benefits that you do not receive.
Q: How many Floridians will the Florida autism legislation actually help?
A: Speaker Rubio estimated that the mandate would cover only 14% of children with an autism spectrum disorder (to watch his speech, click here and fast forward to the end at the 8:49.15 mark). Sadly, I think this estimate is accurate. See “Q: If these exemptions are so extensive, how many Floridians will the autism insurance mandate actually help?” in Chapter 4.
Despite the accuracy of the estimate, the percentage could actually be reduced to as low as 0% if benefit providers utilize the proposed developmental disabilities compact to their advantage. The compact is more likely to help insurance companies and employers than children with autism spectrum disorders. See Chapter 5.
The supplemental Medicaid waiver will not help any Floridians without further approval and funding by our legislators. See Chapter 8.
If you expect the Florida autism legislation to help you, your family, or your friends, it is important that you take the time to understand the scope of the legislation. Each component of the legislation is complex. Most short summaries only cover the mandated benefits, not the extensive exemptions. It takes additional effort to comprehend the limited number of Floridians to which the legislation will apply and why its scope is so limited.
Q: How will the autism insurance mandate help Florida’s children and their families?
A: The autism insurance mandate specifies general categories of required treatment and diagnostic services related to autism spectrum disorders. See Chapter 3. The mandate will not begin to affect health plans until the first plan year that starts after April 1, 2009. All insurance companies and HMOs subject to the mandate must be incompliance by April 1, 2010. Most employer sponsored plan years start at the beginning of the plan sponsor’s fiscal year, which in many cases is January 1st. The mandate requires coverage for diagnosing and treating autism spectrum disorders subject to aggregate dollar limits per child of $36,000 annually and $200,000 lifetime (Chapter 2). The mandate also includes extensive exemptions and limitations on the services covered (Chapter 4). As a result, it is more likely than not that you will learn that the mandate will not provide the help you expected.
Q: If only 14% of the eligible children are covered by the autism insurance mandate, who is covered?
A: The answer to this question must be complex because of the extensive exemptions to the mandate. After you take into account the extensive exemptions to the mandate (Chapter 4), other than the developmental disabilities compact, a child will not be covered by the mandate unless the child meets the age criteria, the group plan is sponsored by a medium or large employer (more than 50 employees), the plan is not self-insured, the effective date of the group coverage is after April 1, 2009, the insurance company or HMO is licensed in Florida, the insurance or HMO contract is subject to regulation in Florida (this factor is subject to a number of variables), and the services for the diagnosis and treatment of autism spectrum disorders are mandated. See the details in Chapter 2. Despite all of this, if the insurance company or HMO that insures a group plan signs the developmental disabilities compact (see below), an otherwise eligible child will not be covered under the plan.
Please do not rely on this article to answer all your questions if you think you are entitled to benefits that you do not receive. You should consult a lawyer or other specialist.
Q: How will the proposed developmental disabilities compact help Florida’s children and their families?
A: The legislation directs the establishment of a workgroup the purpose of which will be to negotiate a developmental disabilities compact. The proposed compact will be a binding agreement among any of the workgroup participants that elect to sign the compact. The compact creates exemptions from the autism insurance mandate that could reduce the number of children that otherwise would benefit from the mandate from approximately 14% to almost 0% if benefit providers utilize the compact to their advantage. Any insurance company or health maintenance organization (HMO) that signs the compact by April 1, 2009, will be exempt from the mandate and will have until April 1, 2010, to comply with the terms of the compact. While the legislation requires that the compact include certain components, the benefits mandated by the compact are significantly less comprehensive than in the mandate. The legislation also does not establish any procedures for approving the compact. See Chapter 5.
Q: How will the proposed supplemental Medicaid waiver help Florida’s children and their families?
A: If the autism insurance mandate and the proposed compact do not provide the help you expected, you should not expect to find that help in the Medicaid waiver. This part of the legislation directs a state agency to seek federal approval of a supplemental Medicaid waiver. The proposed waiver would provide occupational therapy, speech therapy, physical therapy, behavior analysis, and behavior assistant services to children five and younger who have specified diagnosed developmental disabilities (including autism spectrum disorders). The proposed Medicaid waiver cannot help Floridians without further Federal and state legislative action approving implementation and funding of the waiver. The Florida legislature’s track record is not good on this topic. The legislature has not approved sufficient funding for the existing Medicaid waiver that the proposed waiver would supplement. For example, in 2007 and 2008, they cut funding by a total of $180 million. In late 2007, almost 22,000 children were on a waiting list for services, and 85% of those children had been on that list for over five years. See Chapter 8.
Q: Could the Florida legislature have done more?
A: Several states have enacted, and other states are considering, legislation that includes autism insurance mandates that are similar to the Florida mandate. So far, with rare exceptions, limited bills are all that state legislatures have approved.
Efforts to pass such legislation in Florida have been ongoing for years. More comprehensive legislation was proposed in the Florida Senate and House during the 2008 legislative session. Nevertheless, on the last day of the 2008 session the last of those efforts stalled. The conclusion generally expressed was that something was better than nothing. I will explain why Floridians may disagree. Governor Crist and many members of the Florida Senate and House acknowledged at the end of the 2008 session that there is much more work that should be done to help Florida’s children with autism spectrum disorders and other developmental disabilities. See Chapter 9.
With respect to the scope of the mandate, there are some steps that the Florida legislature could not take to help Florida’s children. For example, ERISA preemption creates a significant exemption for any health care mandate (Chapter 6). ERISA preemption does not apply to state laws that regulate insurance. As a result, typically, state benefit mandates, such as the Florida autism insurance mandate, only affect an employer sponsored health benefit plan if the employer purchases insurance. In Florida, HMOs also are subject to insurance regulation. We must rely on our Federal representatives to reduce the scope of ERISA preemption and allow states to enact legislation with broader benefits or to enact Federal legislation that will help children across the nation (Chapter 10).
Q: What can I do if the Florida autism legislation does not help as I expected?
A: I expect that many Floridians will be depressed or angry when they first learn that this legislation will not help their children, their family, or their friends as they expected. I know how I felt after I learned that no more than 14% of the children in Florida with autism spectrum disorders could expect to be helped by the autism insurance mandate, and that the developmental disabilities compact could reduce that percentage as low as 0%. Since then, I have been compelled to help Floridians better understand the limits of this legislation and to help form a meaningful coalition to promote meaningful change. Our legislators need to win the battle they have only just begun to fight – the battle to give all of Florida’s children a realistic opportunity to lead a normal life. These children cannot help themselves and most parents do not have the resources to give their children all of the help that they need to be contributing members of society.
Do not wait until your first claim is rejected to begin to understand why. If you wait, you are likely to blame only the insurance company, thinking incorrectly that the rejection reflects noncompliance. The correct answer is more likely to be that the mandate does not apply and that the employer sponsoring your plan exercised a legal right to offer more limited coverage primarily because of skyrocketing medical costs and medical insurance premiums, and ever increasing demands for quarterly profit growth. See “Q: What motivates an employer to self-insure a health plan?” in Chapter 6.
The Florida autism legislation was a very small first step. I encourage you to join the battle. To be successful, the parents, families, friends, and caregivers of Florida’s children with autism spectrum disorders must coordinate their efforts with the nonprofit organizations that make bold claims to support the interests of all these children. Everyone in this coalition must look past their individual needs and advocate for state and Federal legislation that will deliver critical care to each of these children, not just a select few. To better understand how to help Florida’s children with autism spectrum disorders get the help that they need to be contributing members of society, please read Chapter 10.
© 2008 Richard W. Probert
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