ButterflyEffects.com

Many people want to know more about what is going on in the Florida legislature regarding treatment of children diagnosed with autism spectrum disorders. It is hard to keep up and the information is not easy to find. I have included a number of links below so that you can learn as much as you want. There is a lot to digest, particularly the complexities of the expanded House bill.

The Senate passed its bill. The House bill has not yet made it to the floor of the House and time is running out for action in 2008. FYI:

• The Florida regular legislative session is 60 calendar days long; today is day 53.  After the regular session, special session would have to be called specifically to address this legislation.
• During the session, the House and Senate much each pass their bills and then negotiate and agree on compromise legislation. 
• For those who do not know and want some insight into the complexities of the process, the Florida House has posted: How A Bill Becomes Law (Explanation) and How a Bill Becomes a Law (Chart)
• Just for fun, you may have seen this: Schoolhouse Rock- How a Bill Becomes a Law

The original House bill was very similar to bill passed by the Senate.  On April 4th, Speaker Rubio encouraged a broader approach and appointed a Select Committee to study alternatives.  The Special Committee approved a substitute bill which it forwarded to the Healthcare Council.  The Healthcare Council approved the substitute bill at its meeting on this week (April 22nd).  During that meeting, Speaker Rubio told the Healthcare Council not to worry about having the time to address the recommended changes (see summary below and this article) or having the funds necessary to implement those changes. The Healthcare Council has not yet forwarded the bill to the full House.  The Healthcare Council indicated that discussions would be ongoing through the week and weekend before submission to the House next week.  It was suggested during the meeting that negotiations were ongoing with the Senate.

If the House and Senate agree on one bill, they must submit the legislation to the Governor for his signature.  Governor Crist has spoken favorably about such insurance mandates (click here) and about the Senate legislation (click here and click here), but perhaps not the House legislation promoted by Speaker Rubio (click here).  Governor Crist formed the Autism Task Force (click here) to address some of the new issues addressed by the substitute House bill.  The Governor and Chief Financial Officer Sink disagree about the House bill (click here).  FYI, CFO Sink oversees the Department of Financial Services and its 13 divisions, including the Office of Insurance Regulation. 

Interestingly, representatives from the Florida Insurance Council and Blue Cross Blue Shield of Florida told sponsors they support the plan approved by the Special Committee and Healthcare Council, while insurance companies generally oppose the Senate bill and insurance mandates generally (click here and click here).

Florida Senate:

• SB 2654 – Relating to Autism Spectrum Disorder
  • General Information: click here: bill summary – "Steven A. Geller Autism Coverage Act."
  • Last Action Taken in the Senate: Approved 39-0 and sent to the House
    • Text of bill approved

Florida House:

• HB 1291 - Autism Spectrum Disorder
  • General Information: click here: bill summary – “Window of Opportunity Act”
  • Last Action Taken in the House: Healthcare Council 4/22/2008 meeting
    • click here: webcast of 4/22/2008 Healthcare Council meeting: see link “Committee Video Archives” in box at bottom right of web page
    • click here: Summary Analysis and Proposed Bill (4/22/1008)
    • click here: Proposed Committee Bill
      • The proposed House bill is now significantly different from the Senate bill, particularly:
        • Insurance Coverage Mandate:
        • Amount: Includes the same $36,000 per year coverage mandate, but adds a lifetime limit of $108,000 (per person, per incident)
        • Effective Date: Delays the effective date of coverage mandate from 1/1/2009 until July 2010:
      • Alternatives: Offers alternative mechanisms:
        • Insurance:
          • Insurance Compact:
            • Pending the effective date of the mandate, the bill delegates to a workgroup the legislative responsibility of formulating a solution.  The workgroup is to study, propose and approve a compact that can be adopted by an insurance company to avoid the delayed coverage mandate.
            • The compact would address penalties for noncompliance, disclosure to consumers, and the development of new insurance products to address such needs
            • The workgroup would consist only of insurers, self-insured employers, and designees of the Governor, House and Senate.  The Healthcare Council was encouraged to include a citizen representative, but so far has declined.
          • Healthy Kids: expands coverage, effective 1/1/2009, by:
            • Eliminating existing income cap purportedly making the coverage available to all Florida citizens
            • Expanding benefits to include habilitative benefits such as PT, OT, speech therapy, and ABA
          • Medicaid: Seeks to expand Medicaid state plan
        • State Education:
          • Expands eligibility of McKay scholarships effective for 2012-2013 school year
          • Creates VPK program offering early intervention services beginning with the 2012-2013 school year for children with IEP and otherwise eligible for VPK
          • Assigns to CARD added responsibilities for establishing regional learning gateways within the seven CARD regions
            • Applies to ASD children and children with other defined developmental disabilities
            • The Healthcare Council was encouraged, but so far has declined, to:
              • change the name of CARD if responsibilities expand beyond autism 
              • consider significant funding increases due to significant expansion of CARD’s responsibilities
        • Medical:
          • Addresses expanded continuing education for healthcare professionals to increase ability to identify children with autism spectrum disorders and other developmental disabilities
        • Funding: not yet addressed
    • click here: final Committee Action - reflected here:
      • proposed bill passed 18-0
      • proposed amendments
    • Listing of all meeting handouts and action packets for Select Committee on Autism & Developmental Disorders

Previous action of interest

Florida Senate:

• Bill analyses by the Senate:
  • Health and Human Services Appropriations Committee (04/10/2008)
  • Health Policy Committee (04/03/2008)
  • Banking and Insurance Committee (3/18/2008)

Florida House:

• Original House bill
• Bill analyses by the House:
  • Committee on Health Innovation (4/2/2008)
  • Committee on Health Innovation (3/17/2008)
• Select Committee on Autism & Developmental Disorders:
  • General Information About the Select Committee: includes meeting handouts and action packets
  • Webcasts of Select Committee meetings in April: see links in box at bottom right of web page
  • Committee materials handed out at meetings
• Speaker of the House press release announcing Select Committee: summary of Speaker Rubio’s proposals:
  • Broaden Scope of Disabilities Covered: “The purview of the committee will be to consider ways to best utilize public and private resources to assist families in Florida with children coping with autism spectrum disorders or other developmental disabilities.”
  • Increase Number of Citizens Covered: “While mandatory insurance coverage has been suggested as one solution, it is important to note that more than 50 percent of the health insurance sold in Florida is not subject to state mandates. . . . Policies that are subject to such mandates cover fewer than three million citizens.”  This part of the story is complex, but essential to understanding why the Florida House and Senate cannot do more at this time:
    • ERISA State Law Preemption: The release addresses federal law (ERISA) that effectively invalidates state law mandates specifically applicable to employer sponsored health plans.  To be effective, the mandates must specifically apply only to state regulated insurance companies that provide insurance to these health plans.
    • Self-insured plans not subject to mandate: Many employers (typically larger employers who can afford it) self-insure the risk of their health plans.  In these cases, insurance companies only administer the plans.  Most employees are not aware of the difference.  It is also difficult to ask the employer to confirm self-insurance without giving up privacy rights regarding existing medical conditions and risking lost coverage for otherwise covered costs.
    • Fewer than 50% covered by mandates: Studies have shown that, overall, 45 percent of workers were covered by fully insured health plans and 55 percent were covered by self-insured health plans (see EBRI February 2008 Issue Brief).  It is not clear what portion of the 45% of insured plans is also not covered by either the FL Senate or the FL House bills.  Both bills specifically exclude insurance carried by health plans of small employers (undefined) or individual insurance.
    • ERISA Preemption Explanation: ERISA is a federal law that was initially proposed to protect beneficiaries of employer sponsored pension plans.  The law was drafted much more broadly to cover all employer sponsored benefit plans, including health care plans, with a goal of seeking uniformity in the administration of plans by employers.
      • A good summary of dilemma created by ERISA preemption is included on pages 22-24 of a summary (click here) of a US House mental health parity bill (H.R. 1424):
        • “Understandably, large employers who operate in multiple states prefer a single unified system—with one set of rules with which they must comply and treat their employees. . . . The employer community has used the Employee Retirement Income Security Act (ERISA) as a shield against both federal and state health care protections.
        • “Only the most sophisticated legal and health care experts know that ERISA contains few health care standards. ERISA is primarily a pension law that establishes detailed standards for information, coverage, and funding of pension promises. While ERISA applies to all employer provided employee benefits, it does not generally contain minimum health care standards. Enacted in 1974, Congress expected that it would shortly adopt comprehensive federal standards. Congress has attempted to enact national health care standards on several occasions, but without success.”
        • “Further complicating the issue is the illogical treatment of ‘insured’ versus ‘self-insured’ plans. Under current judicial interpretation of ERISA, if an employer establishes a health plan and the employer is the insurer of the plan, then the states are generally preempted from regulating the health plan. However, if the employer contracts with a state licensed insurance company or other state sanctioned health care entity, then the state may directly regulate the behavior of the insurer or other entity, and indirectly affect the actions of the health plan. Despite the illogic of this regulatory scheme, in the absence of broader Congressional direction on comprehensive health care reform, H.R. 1424 continues this existing system of split federal versus state oversight of health plans and benefits.
      • Generally, insurance companies and employers favor ERISA preemption  (for example, ERIC fights to preserve the ERISA preemption)
    • Good news pending in DC: More interestingly, H.R. 1424 includes provisions to weaken ERISA preemption:
      • Mental health parity bills typically apply to children with autism spectrum disorders because ASD is considered a mental illness under the Diagnostic and Statistical Manual of Mental Disorders DSM -IV-TR (fourth edition, text revision
      • H.R. 1424 passed in the US House and was submitted to US Senate
      • The US House bill currently in conference committee to address differences from Senate bill S.358 - apparently the conference committee may be close to reaching a compromise on the bill and the preemption provision may survive.
    • Avoid Costly Mandates: “A costly mandate could jeopardize the ability of many to maintain their insurance.”
    • Public Education Based Solutions: “Florida in the past decade has deliberately moved toward an educational system that offers flexibility and choice, both in early childhood education through the VPK program, and as children grow, through our public education system and the McKay scholarship program. Our challenge and your charge is to examine how to best meet the needs of children with autism spectrum disorders and other developmental disabilities that involve behavioral health disciplines and educational programs, and how these programs might best be funded.”

Richard Probert: husband of Debra Kaszovitz and father of twins born prematurely in 2004 after only 25 weeks Jack (diagnosed with ASD) and Samantha: probert_richard@yahoo.com