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More on Colorado Autism Insurance Case: Q&A with Tappert Family's Lawyer

R. Craig Ewing is managing partner at Ewing & Ewing, the Englewood, Colorado law firm which represented the Tappert family, who recently won an arbitration case for their health insurer to cover autism-related services for their young daughter Abby. Mr. Ewing last month agreed to respond to some questions I sent him via e-mail.

You can read more about the case in this article: Colorado Family Wins Insurance for Autism Services. A related article cited in the transcript below is here: After Colorado Arbitrator's Decision, More Information About Lovaas Model of Applied Behavior Analysis.

A key issue in this case was that the arbitrator's finding that Applied Behavior Analysis (ABA) is not an experimental therapy, but in fact an early intervention best practice for children with autism spectrum disorders and a service the insurer should cover. With advocates around the nation seeking to win support for legislation expanding such insurance coverage, Mr. Ewing suggests this arbitration decision could shed some light on what it takes to win support from organizations who may seek to deny such benefits.

The following is a transcript of his responses to questions:

  1. How important is the arbitrator's decision?
  2. We believe that the arbitrator's decision is quite important in that it recognizes that ABA therapy is medically necessary when children with autism engage in self-injurious behaviors. We also believe that it casts doubt on many other insurers’ medical policies (also known as clinical guidelines) that equate all forms of ABA therapy with "Lovaas therapy."

    I note with interest the letter from Scott Cross and Vincent J. LaMarca, BCBA on your website [see the letter here]. The arbiter's comments regarding Lovaas therapy are based upon the expert testimony of Dr. Phillip S. Strain and his review of Anthem's medical policy. I am attaching Dr. Strain's affidavit as well as Anthem's medical policy for your review. As you will note in reviewing the same, Anthem (as well as many other insurers) deem ABA therapy to be experimental and investigational because of the scientific criticisms of Dr. Lovaas' research. Thus, it is important to distinguish pivotal response training and other forms of ABA therapy from "Lovaas therapy" in order to defeat the rationale advanced by many insurers.

    To the extent it is not confidential, I am very interested in sharing the information I gleaned through discovery on the Tappert case with Mr. Cross, Mr. LaMarca and others at the Lovaas Institute for the purposes of working with them to rebut the position taken with respect to Lovaas therapy by many insurers/third party administrators in the United States.

    I am also enclosing United Healthcare's medical policy. As you will note, it relies on the criticisms of Dr. Lovaas' research as a basis for deeming all forms of ABA therapy "experimental and investigational."

  3. How far-reaching might the Tappert's victory be?
  4. The Tappert's victory opens the door for coverage for ABA therapy of the type Abby Tappert receives for Colorado residents who purchased the Anthem policy at issue. This is a major breakthrough for this subset of people.

    While the Arbitration Award (opinion) is not direct legal authority in the same sense that a decision from the Colorado Court of Appeals or Colorado Supreme Court would be, it is written by William G. Meyer, a highly respected former Denver District Court judge. The opinion is thoughtful and well reasoned and no doubt it will be used by attorneys to support their clients' claims for autism coverage.

    In his opinion Judge Meyer's states: "It appears both from the greater weight of the references and credible testimony that ABA therapy is the standard of care in treating autism." This statement should resonate with any judge or fact finder who confronts these issues.

  5. What role did Colorado state law play in your advocating this case on behalf of the Tapperts? How does the law as it stands now in Colorado help or hinder your efforts?
  6. The fact that the Tappert policy was not subject to the Employee Retirement Income Security Act of 1974 ["ERISA"] made the case easier with respect to the standard of review employed by the arbiter. In terms of Colorado state law, Colorado's common law that requires ambiguous terms of an insurance policy to be interpreted in favor of coverage was helpful in this case.

  7. Have you been following developments in other states, notably South Carolina and Texas, that have sought to pass legislation to require insurers to cover ABA and other autism-related services? There are other states which are considering similar moves, and I am wondering if this arbitration decision gives advocates of autism services coverage any points they may use to argue in favor of their efforts?
  8. Since becoming involved in this case, I have become very interested in the legislation regarding autism in other states. Given that approximately 1 in 91 children have been diagnosed with autism, funding for treatment must be addressed. It is my opinion that a neutral [party]'s recognition that ABA therapy is the standard of care for the treatment of children with autism may be useful to others seeking to enact legislation to require insurers to cover this expensive, but much needed treatment. I am hopeful that with more decisions recognizing the efficacy of ABA therapy, legislators will be more inclined to find ways to fund this treatment.

One last note: Mr. Ewing declined to say for publication on this blog [Autism Bulletin] whether he saw how insurers who study the Tappert case might try to bolster their efforts to deny coverage of ABA or other autism services.

Websites to Gather Supporting Research for ABA Treatment

A comparison of intensive behavior analytic and eclectic treatments for young children with autism

Applied Behavior Analysis and Neurodevelopmental Disorders: Overview and Summary of Scientific Support

Autism Treatment based on Applied Behavioral Analysis:  What Does the Current Research Tell Us?

Behavioral Treatment and Normal Educational and Intellectual Functioning in Young Autistic Children

California State Law Regarding Health Insurance Coverage and Reimbursement (AB 88)

How to Answer When an Insurance Company Says That They Will Not Pay for ABA because ABA is Experimental

Independent Reviews of Intensive Early Intervention Using Behavior Therapy

Surgeon General notation of ABA as an Effective Treatment for Autism

Replicating Lovaas’ Treatment and Findings: Preliminary Results

ABA References

Anderson, S. R., Avery, D. L., DiPietro, E. K., Edwards, G. L., & Christian, W.P. (1987). Intensive home-based early intervention with autistic children. Education and Treatment of Children, 10, 352-366.

Arendt, R.E., MacLean, W.E., & Baumeister, A.A. (1988). Critique of sensory integration therapy and its application in mental retardation. American Journal on Mental Retardation, 92, 401-411.

Birnbrauer, J. S., & Leach, D. J. (1993). The Murdoch Early Intervention Program after 2 years. Behaviour Change, 10 (2), 63-74.

Carr, J.E, & Firth, A.M. (2005). The Verbal Behavior approach to early and intensive behavioral intervention for autism: A call for additional empirical support. Journal of Early Intensive Behavioral Intervention, 2, 18-27.

Chasson, G.S., Harris, G. E., & Neely, W. J. (2007). Cost comparison of early intensive behavioral intervention and special education for children with autism. Journal of Child and Family Studies, 16, 401-413

Cohen, H., Amerine-Dickens, M., Smith, T. (2006). Early intensive behavioral treatment: Replication of the UCLA model in a community setting. Developmental and Behavioral Pediatrics, 27, 145-155.

Eikeseth, S., Smith, T., Jahr, E., & Eldevik, S. (2002). Intensive behavioral treatment at school for 4- to-7-year-old children with autism: A 1-year comparison controlled study. Behavior Modification, 26, 49-68.

Dawson, G., & Watling, R. (2000). Interventions to facilitate auditory, visual, and motor integration in autism: A review of the evidence. Journal of Autism and Developmental Disorders, 30, 415-421.

Eikeseth, S., Smith, T, Jahr, E., & Eldevik, S. (2007). Outcome for children with autism who began intensive behavioral treatment between ages 4 and 7: A comparison controlled study. Behavior Modification, 31, 264-278.

Eldevik, S., Eikeseth, S., Jahr, E., & Smith, T. (2006). Effects of low-intensity behavioral treatment for children with autism and mental retardation. Journal of Autism and Developmental Disorders, 36, 211-224.

Fenske, E. C., Zalenski, S., Krantz, P. J., & McClannahan, L. E. (1985). Age at intervention and treatment outcome for autistic children in a comprehensive intervention program. Analysis and Intervention in Developmental Disabilities, 5, 49-58.

Green, G. (1996). Early behavioral intervention for autism: What does research tell us? In C. Maurice, G. Green, & S. Luce (Eds.), Behavioral intervention for young children with autism: A manual for parents and professionals (pp. 29-44). Austin, TX: PRO-ED.

Green, G., Brennan, L.C., & Fein, D. (2002). Intensive behavioral treatment for a toddler at high risk for autism. Behavior Modification, 26, 69-102.

Guralnick, M.J. (1998). Effectiveness of early intervention for vulnerable children: A developmental perspective. American Journal on Mental Retardation, 102, 319-345.

Howard, J., Sparkman, C., Cohen, H., Green, G, & Stanislaw, H. (2005). A comparison of intensive behavior analytic and eclectic treatments for young children with autism. Research in Developmental Disabilities, 26, 359-383.

Jacobson, J.W., Mulick, J.A., & Green, G. (1998). Cost-benefit estimates for early intensive behavioral intervention for young children with autism: General model and single state case. Behavioral Interventions, 13, 201-226.

Kay, S., & Vyse, S. (2005). Helping parents separate the wheat from the chaff: Putting autism treatments to the test. In J.W. Jacobson, R.M. Foxx, & J.A. Mulick (Eds.), Controversial therapies for developmental disabilities (pp. 265-277).

Mahwah, NJ: Lawrence Erlbaum Associates.
Lovaas, O.I. (1987) Behavioral treatment and normal educational and intellectual functioning in young autistic children. Journal of Consulting and Clinical Psychology, 55. 3-9.

Mason, S.A., & Iwata, B.A. (1990). Artifactual effects of sensory-integrative therapy on self-injurious behavior. Journal of Applied Behavior Analysis, 23, 361-370.

Matson, J.L., Benavidez, D.A., Compton, L.S., Paclawskyj, T., & Baglio, C. (1996). Behavioral treatment of autistic persons: A review of research from 1980 to the present. Research in Developmental Disabilities, 17, 433-465.

Maurice, C., Green, G., & Foxx, R.M. (2001). Making a difference: Behavioral intervention for autism. Austin, TX: PRO-ED.

Maurice, C., Green, G., & Luce, S. C. (1996), Behavioral intervention for young children with autism: A manual for parents and professionals. Austin, TX: PRO-ED.

McEachin, J.J., Smith, T., & Lovaas, O.I. (1993). Long-term outcome for children with autism who received early intensive behavioral treatment. American Journal on Mental Retardation, 97, 359-372.

National Research Council Committee on Educational Interventions for Children with Autism (2001). Educating children with autism. Washington, DC: National Academy Press.

New York State Department of Health Early Intervention Program (1999). Clinical Practice Guideline Quick Reference Guide: Autism/Pervasive Developmental Disorders-- Assessment and Intervention for Young Children (Age 0-3 Years). Health Education Services, P.O. Box 7126, Albany, NY 12224 (1999 Publication No. 4216).

Ramey, C.T., & Ramey, S.L. (1998). Early intervention and early experience. American Psychologist, 53, 109-120.

Sallows, G.O. & Graupner, T. D. (2005). Intensive behavioral treatment for children with autism: Four-year outcome and predictors. American Journal on Mental Retardation, 110, 417-438.

Smith, T., Groen, A.D., & Wynn, J.W. (2000). Randomized trial of intensive early intervention for children with pervasive developmental disorder. American Journal on Mental Retardation, 105, 269-285.

Smith, T., Mruzek, D.W., & Mozingo, D. (2005). Sensory integrative therapy, In J.W. Jacobson, R.M. Foxx, & J.A. Mulick (Eds.), Controversial therapies for developmental disabilities (pp. 331-350).

Mahwah, NJ: Lawrence Erlbaum Associates. Weiss, M.J. (1999). Differential rates of skill acquisition and outcomes of early intensive behavioral intervention for autism. Behavioral Interventions, 14, 3-22.

Great searching tool for Medical Studies

Autism: Benefits of Speech-Language Pathology Services

American Speech, Language and Hearing Association. ASHA includes a Treatment Efficacy Summary as well

Supporting Research for AIT in Autism

Autism Research Institute, The Efficacy of Auditory Integration Training

Efficacy of Sensory and Motor Interventions for Children with Autism

Efficacy of Sensory and Motor Interventions for Children with Autism, Grace T. Baranek1, Journal of Autism and Developmental Disorders Volume 32, Number 5 / October, 2002

Appeal Resources for Biomedical Treatments

 

MB12 References

Metabolic biomarkers of increased oxidative stress and impaired methylation capacity in children with autism, S Jill James, Paul Cutler, Stepan Melnyk, Stefanie Jernigan, Laurette Janak, David W Gaylor, and James A Neubrander

A Preliminary Study of Methylcobalamin Therapy in Autism, Kazutoshi Nakano, Naoko Noda, Emiko Tachikawa, et al. Dept of Pediatrics, Women’s Medical University School of Medicine, Feb.2005

HBOT References

Improvement in Cerebral Metabolism in Chronic Brain Injury after Hyperbaric Oxygen therapy, Zarabeth Golden et al  (J. Neuroscience 112:119-131,2002) Stephen R. Thom, Veena M. Bhopale, Omaida C. Velazquez, Lee J. Goldstein, Lynne H. Thom, and Donald G. Buerk, Stem cell mobilization by hyperbaric oxygen, Am J Physiol Heart Circ Physiol, Apr 2006; 290: H1378 - H1386.

Brain Injury - HyperMED NeuroRecovery Australia

Hyperbaric oxygen therapy might improve certain pathophysiological findings in autism, by Daniel A. Rossignol , Med Hypotheses (2006), doi:10.1016/j.mehy.2006.09/064
(note: This paper has a reference list of many pertinent articles at the end)

Evidence of Mitochondrial Dysfunction in Autism and Implications for Treatment, Daniel A. Rossignol, J. Jeffrey Bradstreet, International Child Development Resource Center, American Journal of Biochemistry and Biotechnology 4 (2): 208-217, 2008 ISSN 1553-3468

The effects of hyperbaric oxygen therapy on oxidative stress, inflammation, and symptoms in children with autism: an open-label pilot study, Daniel A Rossignol*1, Lanier W Rossignol1, S Jill James2, Stepan Melnyk2 and Elizabeth Mumper3,4 BMC Pediatrics 2007

Hyperbaric oxygen therapy may improve symptoms in autistic children, Daniel A. Rossignol a,b,*, Lanier W. Rossignol Medical Hypotheses (2006) 67, 216–228, Hyperbaric Oxygen Therapy in Global Cerebral Ischemia/Anoxia and Coma