Consumer Watchdog v. Dept. Managed Health Care ( 2013 )

Filed 9/10/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CONSUMER WATCHDOG et al., B232338
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BS121397)
v.
DEPARTMENT OF MANAGED
HEALTH CARE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert H. O‟Brien and James C. Chalfant, Judges. Judgment is affirmed in part and
reversed in part and remanded with directions.
Consumer Watchdog, Harvey Rosenfield, Pamela M. Pressley and
Jerry Flanagan; Strumwasser & Woocher, Fredric D. Woocher, Beverly Grossman and
Byron F. Kahr for Plaintiffs and Appellants.
Law Office of Stephen P. Sommers, Stephen P. Sommers and Una Lee Jost as
Amicus Curiae for California Association for Behavior Analysis on behalf of Consumer
Watchdog.
Autism Speaks and Daniel R. Unumb; Kaye Scholer and Robert Barnes for
Autism Speaks and Autism Deserves Equal Coverage as Amicus Curiae on behalf of
Plaintiffs and Appellants.
California Department of Managed Health Care, Holly Pearson, General
Counsel, Debra L. Denton, Assistant Chief Counsel and Drew A. Brereton, Senior
Counsel; Attorney General of California, Kamala D. Harris, Attorney General,
Julie Wend-Gutierrez, Senior Assistant Attorney General, Leslie P. McElroy,
Supervising Deputy Attorney General and Carmen D. Snuggs, Deputy Attorney
General.
Department of Insurance, Dave Jones, Insurance Commissioner and
Patricia Sturdevant, Deputy Commissioner & Health Enforcement Advisor as Amicus
Curiae upon the request of the Court of Appeal.
_______________________________________
2
Applied Behavioral Analysis (ABA) is an intensive form of therapy which has
indisputably been documented to be successful in treating the symptoms of autism in
young children. While ABA can be performed by a licensed physician or psychologist,
it is often performed, or supervised, by an individual certified by the private Behavior
Analyst Certification Board (BACB). The issue raised by this case is whether the
Department of Managed Health Care (DMHC), which has jurisdiction over health plans
commonly known as health maintenance organizations,1 is required, by law, to direct
health plans within its jurisdiction to provide coverage for ABA when provided, or
supervised, by BACB-certified therapists who are not otherwise licensed to practice
medicine or psychology. DMHC contends that it may require plans to cover ABA
therapy only when it was provided by someone licensed to practice medicine or
psychology. Plaintiff, Consumer Watchdog,2 argues that non-licensed, but
BACB-certified, ABA therapists3 are, in fact, recognized by the medical community as
proper providers and supervisors of ABA therapy. Thus, their services should be
1
In contrast, the Department of Insurance has jurisdiction over health plans
commonly known as preferred provider organizations (also known as “PPOs”). Unless
otherwise indicated by context, references to “plans” refer only to health plans within
the jurisdiction of DMHC.
2
There is an individual plaintiff in this case as well, Anshu Batra, M.D. As
Dr. Batra‟s arguments are not distinct from those made by Consumer Watchdog,
references to Consumer Watchdog include Dr. Batra.
3
Some BACB-certified providers are also licensed to practice medicine or
psychology; there is no dispute that DMHC requires plans to cover therapy provided by
such otherwise-licensed BACB-certified providers. Therefore, for the remainder of this
opinion, when we refer to BACB-certified providers, we are referring to those
BACB-certified providers who are not otherwise licensed to practice medicine or
psychology.
3
covered by the plans. Consumer Watchdog sought a writ of mandate directing DMHC
to respond to any plan member‟s grievance challenging a denial of coverage for ABA
therapy to be provided or supervised by a BACB-certified therapist by ordering the plan
to cover such therapy.
We conclude that, under a statute recently enacted by the Legislature,
BACB-certification has implicitly been recognized as an exception to the licensing laws
and, therefore, DMHC can no longer uphold a plan‟s denial of coverage for ABA on the
basis that a BACB-certified provider is not licensed. However, to the limited extent the
issue of DMHC decisions prior to the effective date of the new statute are before us, we
hold that DMHC had, prior to July 1, 2012, no clear, ministerial duty to order plans to
provide coverage for therapy provided or supervised by BACB-certified providers.
Thus, the trial court had no authority to issue the requested writ of mandate with respect
to such claims. Additionally, we hold that the trial court correctly resolved Consumer
Watchdog‟s challenge to a DMHC policy as violative of the Administrative Procedures
Act. We therefore affirm in part and reverse in part the trial court‟s judgment denying
Consumer Watchdog‟s petition for writ.
FACTUAL AND PROCEDURAL BACKGROUND
In addition to discussing the factual and procedural background of the instant
litigation, we also consider the relevant legislative framework. Additionally, we discuss
statutory developments which occurred after the trial court issued its judgment.
4
1. Autism and ABA
“According to a 2007 report of the California Legislative Blue Ribbon
Commission on Autism, „[a]utism spectrum disorders are complex neurological
disorders of development that onset in early childhood.‟ [Citation.] These disorders,
which include full spectrum autism, „affect the functioning of the brain to cause mild to
severe difficulties, including language delays, communication problems, limited social
skills, and repetitive and other unusual behaviors.‟ [Citation.] Nationally, autism
spectrum disorders affect an estimated one in every 150 children across all racial,
ethnic, and socioeconomic backgrounds. [Citation.]” (Arce v. Kaiser Foundation
Health Plan, Inc. (2010) 181 Cal.App.4th 471, 478, fn. omitted.) Amici Curiae Autism
Speaks and Autism Deserves Equal Coverage represent that, under more current data,
the prevalence rate for autism is approximately 1 in every 88 children.
ABA is a form of behavioral health treatment which develops or restores, to the
maximum extent practicable, the functioning of an individual with autism. (Health &
Saf. Code, § 1374.73, subd. (c)(1).) Numerous studies indicate that ABA is the most
effective treatment known for autistic children. Studies also demonstrate that ABA has
lasting results. Autism is understood to be a brain-based neurological disorder. ABA
therapy can create new brain connections in a child with autism; these new connections
are to be contrasted with the abnormal connections caused by autism. This is not to say
that ABA is always successful. Some children show dramatic improvements with ABA,
while others make modest or few gains. Studies show that some 10% of children make
few or no improvements despite intensive ABA. Evidence indicates that ABA is most
5
effective when begun when the child is very young. There is a “relatively narrow
„window of opportunity‟ for young autistic children during which [ABA] can mean the
difference for many between lifelong severe disability and some approximation to
normal functioning.” There is no real dispute in this case that ABA is an effective
medical treatment for many young autistic children.4
ABA is a time-intensive treatment. It is often prescribed for 26 to 40 hours per
week. While there can be no doubt that the treatment plan for providing ABA to any
autistic child must be established, modified, and supervised by a qualified expert in
ABA, the evidence in this case indicates that the actual delivery of services to the child
may be performed by a non-expert. A publication by the BACB suggests that a front-
line behavioral technician need only be a high school graduate, who has subsequently
received training in basic ABA procedures and demonstrated competency. (BACB,
Guidelines: Health Plan coverage of Applied Behavior Analysis Treatment for Autism
Spectrum Disorder (ver. 1.1, 2012) p. 27.) It appears that ABA, and similar behavior
therapies, are somewhat unique among medical treatments in this respect. While the
treatment plan must be created, modified, and supervised by a professional, the actual
delivery of services may be done by a paraprofessional.
The field of ABA is relatively new. The study often cited as the landmark study
which first established the effectiveness of ABA in autistic children was published in
1987. (O. Ivar Lovaas, Behavioral Treatment and Normal Educational and Intellectual
4
Indeed, if DMHC questioned the effectiveness of ABA, it would not require it to
be covered when provided by any therapist, even one licensed to practice medicine or
psychology.
6
Functioning in Young Autistic Children, 55 J. Consult. Clin. Psychol. 3 (1987).) The
BACB, a private organization established to grant national credentials to ABA
professionals (not front-line providers), was established in 1998.
( [as of Sept. 6, 2013].) When health plan
members first sought coverage for ABA, plan denials were upheld on the basis that
ABA was experimental. Independent medical review5 panels did not uniformly
recognize ABA as a medically necessary treatment until 2007.
The BACB has three levels of certification: (1) Board Certified Behavior
Analyst (requires a Master‟s degree in a related field, 225 hours of graduate coursework
in behavior analysis, substantial supervised experience, and passing an examination);
(2) Board Certified Behavior Assistant Analyst (requires a Bachelor‟s degree, 135 hours
undergraduate or graduate coursework in behavior analysis, a lesser amount of
supervised experience, and passing an examination); and (3) Board Certified Behavior
Analyst-Doctoral (requires a Board Certified Behavior Analyst certification and
a doctorate degree in a related field).
2. The Knox-Keene Act and Mental Health Parity Act
In 1975, the Legislature enacted the Knox-Keene Health Care Service Plan Act
of 1975. (Health & Saf. Code, § 1340.) The Act is informally known as the
Knox-Keene Act (Knox-Keene). That Act provides that DMHC “has charge of the
execution of the laws of this state relating to health care service plans and the health
care service plan business including, but not limited to, those laws directing the
5
We discuss the independent medical review process later in this opinion.
7
department to ensure that health care service plans provide enrollees with access to
quality health care services and protect and promote the interests of enrollees.” (Health
& Saf. Code, § 1341, subd. (a).)
Under Knox-Keene, plans shall provide to their subscribers and enrollees all
“basic health care services.” (Health & Saf. Code, § 1367, subd. (i).) Basic health care
services are defined to include: physician services; hospital inpatient services;
diagnostic laboratory services; home health services; and preventive health services.
(Health & Saf. Code, § 1345, subd. (b).) DMHC‟s director is authorized to define the
scope of required basic health care services. (Health & Saf. Code, § 1367, subd. (i).)
By regulation, home health services (as part of basic health care services) are defined to
include “where medically appropriate, health services provided at the home of an
enrollee as prescribed or directed by a physician . . . . ” (Cal. Code Regs., tit. 28,
§ 1300.67, subd. (e).) The parties agree that ABA can constitute a home health service;
the dispute in this case revolves around the identity of the proper providers of ABA.
Knox-Keene speaks to the issue of licensing. Health and Safety Code
section 1367, subdivision (d) provides that a plan shall provide ready referral of patients
“to other providers” as appropriate. Knox-Keene defines a “provider” as “any
professional person, organization, health facility, or other person or institution licensed
by the state to deliver or furnish health care services.” (Health & Saf. Code, § 1345,
subd. (i).) Health and Safety Code section 1367, subdivision (b) provides that
“[p]ersonnel employed by or under contract to the plan shall be licensed or certified by
their respective board or agency, where licensure or certification is required by law.”
8
Subdivision (f) of that same section provides that the plan “shall employ and utilize
allied health manpower for the furnishing of services to the extent permitted by law and
consistent with good medical practice.”6 Each section confirms that Knox-Keene
requires the use of licensed individuals when the law otherwise requires it. (Cf. People
v. Cole (2006) 38 Cal.4th 964, 969 [Knox-Keene cannot override restrictions of the
Business and Professions Code].)
Subsequently, the Legislature enacted the Mental Health Parity Act (MHPA).
(Health & Saf. Code, § 1374.72.) That statute provides that, beginning in July 2000,
every health plan providing hospital, medical or surgical coverage must also “provide
coverage for the diagnosis and medically necessary treatment of severe mental illnesses
of a person of any age, and of serious emotional disturbances of a child” as specified in
the statute. (Health and Safety Code section 1374.72, subd. (a); italics added.) The
6
With no citation to California authority, Consumer Watchdog assumes that
a BACB-certified ABA practitioner is “allied health manpower.” We are not so certain.
“Allied health manpower” is not defined in Knox-Keene, nor in the Business and
Professions Code. At one time, the California Medical Board specifically had
a “Division of Allied Health Professions.” (See, e.g., Stats. 1993, ch. 1267, § 12.)
Although that division no longer exists, the Medical Board of California governs five
specific “Allied Health Care Professions.” (
[as of Sept. 6, 2013].) The term “allied health manpower” could refer only to such
professionals. However, a Health & Safety Code statute uses the term somewhat more
broadly. Health and Safety Code section 127900, describes “allied health
professionals” as “including, but not limited to” seven different types of professionals,
including some, such as “physician assistants,” who are licensed (Bus. & Prof. Code,
§ 3501), and others, such as “health educators,” who are not. In short, it is very difficult
to determine, from the California statutes, what is meant by “allied health manpower,”
as used in Knox-Keene. It is clear, however, that Knox-Keene directs the use of allied
health manpower “to the extent permitted by law.” If any particular allied health
manpower individual was engaging in the unlicensed practice of medicine or
psychology, that individual could not be utilized.
9
statute specifically itemizes the “severe mental illnesses” which must be covered,
including “[p]ervasive developmental disorder or autism.” (Health & Saf. Code,
§ 1374.72, subd. (d)(7).) Thus, the MHPA provides that all plans providing coverage
under Knox-Keene must provide coverage for the “medically necessary treatment” of
autism.7 The MHPA does not specifically define the term “medically necessary
treatment,” although it does state that certain benefits – outpatient services, inpatient
hospital services, partial hospital services, and prescription drugs (if the plan otherwise
covers prescription drugs) – must be provided.8 (Health & Saf. Code, § 1374.72,
subd. (b).)
7
The MHPA provides that the medically necessary treatments must be provided
“under the same terms and conditions applied to other medical conditions as specified in
subdivision (c).” (Health & Saf. Code, § 1374.72, subd. (a).) Those conditions are
financial in nature – the maximum lifetime benefit, copayments, and deductibles.
(Health & Saf. Code, § 1374.72, subd. (c).)
8
The question has therefore arisen as to whether a type of treatment, which is
excluded from coverage under Knox-Keene as not being a “basic health care service,”
must nevertheless be provided if “medically necessary” to treat an enumerated mental
illness under the MHPA. (Harlick v. Blue Shield of California (9th Cir. 2012) 686 F.3d
699 [considering the issue in the context of residential treatment for anorexia, when the
policy otherwise excluded residential care].) Even if only “basic health care services”
under Knox-Keene are mandated for mental illnesses under the MHPA, the question
arises as to whether certain treatment which could be excluded under Knox-Keene as
not constituting a basic health care service for physical illnesses and disabilities may
constitute a basic health care service for an enumerated mental illness. To some extent,
this question must be answered in the affirmative. Indeed, the DMHC‟s regulation
effectuating the MHPA requires plans to cover basic health care services under
Knox-Keene and “at a minimum . . . services from licensed mental health providers
including, but not limited to, psychiatrists and psychologists.” (Cal. Code Regs., tit. 28,
§ 1300.74.72.) In any event, the precise scope of the coverage required under the
MHPA is not before us. The dispute in this case is whether licensing is required for
ABA to be covered by the plans, not whether ABA is a treatment required to be covered
by the plans.
10
3. Resolution of Grievances
“As part of its legislative mandate to „ensure‟ access to quality care, the
Department is required to establish a bifurcated grievance system and to „expeditiously‟
and „thoroughly‟ review patient grievances.” (California Consumer Health Care
Council, Inc. v. Department of Managed Health Care (2008) 161 Cal.App.4th 684,
687.) One grievance system resolves “disputed health care services.” This is the
independent medical review (IMR) system. (Health & Saf. Code, § 1374.30.) The
second system, which resolves all other grievances, including coverage disputes, will be
referred to as the “standard grievance” system.
To be resolved under IMR, a grievance must raise an issue regarding a “disputed
health care service,” which is defined as any service “eligible for coverage and payment
under a health care service plan contract that has been denied, modified, or delayed by
a decision of the plan . . . in whole or in part due to a finding that the service is not
medically necessary. A decision regarding a disputed health care service relates to the
practice of medicine and is not a coverage decision.” (Health & Saf. Code, § 1374.30,
subd. (b).)
When a grievance is resolved pursuant to IMR, an independent medical reviewer
(or reviewers) determines whether the disputed health care service is medically
necessary based on the specific needs of the patient, and such information as
peer-reviewed scientific evidence, nationally recognized professional standards, and
generally accepted standards of medical practice. (Health & Saf. Code, § 1374.22,
subd. (b).) A plan must promptly implement the decision of an IMR. (Health & Saf.
11
Code, § 1374.34, subd. (a).) If the IMR decision is in favor of the patient, the plan shall
either promptly authorize the services, or reimburse the provider or the enrollee for
services already rendered. (Ibid.)
In contrast, the standard grievance process is an administrative review conducted
by DMHC. When a plan denies or delays services on the basis that the services are not
covered under the plan, the plan is required to clearly specify the contract provisions
that purportedly exclude coverage. (Health & Saf. Code, § 1368, subd. (a)(5).) If the
patient disagrees, the patient may seek review by the DMHC, by means of a standard
grievance. (Health & Saf. Code, § 1368, subd. (b)(1)(A).) The DMHC reviews the
record and determines whether the challenged service is, in fact, covered. (Health &
Saf. Code, § 1368, subd. (b)(5).)
This case concerns, among other things, the decision as to whether particular
grievances (regarding ABA) should be resolved by IMR or through the standard
grievance process. “All enrollee grievances involving a disputed health care service are
eligible for review under the [IMR] [s]ystem . . . . ” (Health & Saf. Code, § 1374.30,
subd. (d)(1), emphasis added.) “If there appears to be any medical necessity issue, the
grievance shall be resolved pursuant to [IMR] or pursuant to [the standard grievance
procedure].” (Health & Saf. Code, § 1374.30, subd. (d)(3), emphasis added.) “In any
case in which an enrollee or provider asserts that a decision to deny, modify, or delay
health care services was based, in whole or in part, on consideration of medical
necessity, the department shall have the final authority to determine whether the
grievance is more properly resolved pursuant to an [IMR] or [as a standard grievance].”
12
(Health & Saf. Code, § 1374.30, subd. (d)(2), emphasis added.) DMHC “shall be the
final arbiter when there is a question as to whether an enrollee grievance is a disputed
health care service or a coverage decision.” (Health & Saf. Code, § 1374.30,
subd. (d)(3).)
4. DMHC’s Practice Regarding ABA Grievances
Plan denials of ABA could involve both issues (i.e., whether ABA is medically
necessary and whether ABA is covered by the plan). Initially, when the denials
appeared to raise both questions, DMHC chose to send ABA grievances to IMR. As
noted above, some of the early IMR decisions on ABA upheld the plans‟ denials, on the
basis that ABA was experimental and did not yet constitute the standard of care. By
late 2007, however, IMR decisions regarding ABA were consistently resolved in favor
of its medical necessity.
As ABA became more medically accepted, plans focused their denials of ABA
on coverage grounds. For example, some plans denied coverage for ABA by
BACB-certified therapists because the plans did not provide coverage for mental health
services provided by an unlicensed individual. Other plans denied coverage for ABA
based on an exclusion for any treatment which could safely and effectively be provided
by an unlicensed individual.
On March 9, 2009, DMHC issued a memorandum to health plans regarding
“Improving Plan Performance to Address Autism Spectrum Disorders” (March 2009
memo). The memorandum was, concededly, not adopted pursuant to the Administrative
Procedures Act. Among other things, the March 2009 memo reconfirmed that plans
13
must “[c]over all basic health care services required under [Knox-Keene], including
speech, physical, and occupational therapies for persons with [autism], when those
health care services are medically necessary.” The memo goes on to state that plans
must “[p]rovide mental health services only through providers who are licensed or
certified in accordance with applicable California law.” Thus, the March 2009 memo
specifically required providers to be licensed if their services were to be covered by the
plans.
As to the resolution of grievances, the March 2009 memo states that, “[t]he
DMHC will initially make a determination whether the service being sought is
a covered health care service. If that determination is made in the affirmative, then any
claim that a service is either: (1) experimental or investigational; or, (2) is not
medically necessary to treat the patient‟s condition, will be referred for IMR as required
under California law.” In other words, Health and Safety Code section 1374.30,
subdivision (d)(3) granted the DMHC the authority to determine whether any grievance
raising both medical necessity and coverage issues should be resolved through IMR or
the standard grievance procedure. By the March 2009 memo, DMHC stated that all
grievances regarding services for autism raising both types of issues would first be
resolved through the standard grievance procedure, and would only be sent to IMR if
the coverage dispute was resolved in favor of the patient.
14
5. The Instant Action
On June 30, 2009, Consumer Watchdog brought a petition for writ of mandate
and complaint against DMHC and its director, Lucinda Ehnes, in her official capacity9
(collectively DMHC). The operative pleading is the first amended petition and
complaint. According to the allegations of the petition, it is violative of the MHPA “for
a health plan to refuse to cover any treatment for autism that is deemed medically
necessary.” (Emphasis omitted.) Consumer Watchdog alleged that the licensing
requirement imposed by the March 2009 memo is unsupported by the law, as the law
requires coverage for any medically necessary treatment for autism “when it is provided
by a licensed provider, a provider that is certified by a professional organization, or
individuals who are supervised by a licensed or certified provider.” (Emphasis
omitted.)
The relevant portion of the petition and complaint alleged six causes of action.10
The first cause of action sought a writ of mandate directing DMHC, in response to
a grievance, “to „order‟ any plan that has denied coverage for ABA to an autistic
enrollee – where ABA was both medically necessary and was to have been provided or
supervised by a licensed or certified professional – to either „promptly offer and
provide‟ ABA to the enrollee, or to „promptly reimburse‟ the enrollee for „any
9
The director is now Brent A. Barnhart.
10
A seventh cause of action, relating to the Public Records Act, is not at issue in
this appeal.
15
reasonable costs‟ associated with obtaining ABA.” The second and third causes of
action sought the same relief, by injunction or declaratory relief, respectively.
The fourth cause of action sought writ relief directing DMHC not to enforce the
March 2009 memo, as it was adopted in violation of the Administrative Procedures Act.
The fifth and sixth causes of action sought the same relief, by injunction or declaratory
relief, respectively. These causes of action specifically related to the grievance
procedure set forth in the March 2009 memo.
It is important to note the limitations of Consumer Watchdog‟s petition and
complaint. The pleading sought only prospective relief, by means of writ of mandate,
injunction and declaratory relief. It sought an order directing DMHC to respond in
a certain way to grievances, and to cease implementing the March 2009 memo. It
sought no relief with respect to grievances already resolved. Moreover, the petition and
complaint named only DMHC as a defendant, not any insurance plan. This case is not
a class action seeking compensation from plans for ABA services wrongfully denied.11
We also note, at this point, that the relief sought by Consumer Watchdog was
necessarily overbroad. Consumer Watchdog sought a writ or injunction directing
DMHC to respond to a grievance by ordering the provision of ABA where the ABA
11
At least one such case had already been filed. Arce v. Kaiser Foundation Health
Plan, Inc., supra, 181 Cal.App.4th 471 was a class action filed against Kaiser,
challenging Kaiser‟s denial of coverage for behavioral therapy (and speech therapy) to
members with autism spectrum disorders, on the grounds that such therapies were
non-health care, educational, or custodial care. (Id. at p. 480.) The merits were not
reached; the appellate opinion in that case related to class certification issues only, and
it appears that the case has since been settled.
( [as of Sept. 6, 2013].)
16
was medically necessary and was to have been provided or supervised by a licensed or
certified professional. Such a request is overbroad because it fails to take into account
the statutorily-mandated limitations on coverage identified in the MHPA: maximum
lifetime benefits, copayments, and deductibles. If, for example, a patient grieved
a denial of medically necessary ABA, but the ABA was denied on the basis that the
patient‟s maximum lifetime benefit had been exceeded, the denial would have been
proper and DMHC would have had no duty to order that the ABA be provided.
Moreover, the instant litigation, in which the only defendant is DMHC, could not
possibly consider every possible coverage exclusion in every possible plan. We cannot
issue a blanket decision mandating that ABA be provided in every case in which it is
medically necessary, without first allowing the health plans an opportunity to be heard
on whether their coverage exclusions may apply. To take but one example, DMHC‟s
regulation defining basic health care under Knox-Keene states that “[p]hysician
services” constitute basic health care services which must be covered, but referral to
other professionals, including, among others, occupational therapists and physical
therapists, may be covered under the plan. (Cal. Code Regs., tit. 28, § 1300.67,
subd. (a)(1).) DMHC has provided, by the regulation implementing the MHPA, that
“services from licensed mental health providers including, but not limited to,
psychiatrists and psychologists” must be provided in addition to basic health care
services. (Cal. Code Regs., tit. 28, § 1300.74.72, subd. (a).) Setting to one side the
licensing issue, if a health plan has chosen, as it is permitted to do so, to exclude
coverage for occupational and physical therapists under Knox-Keene, can this exclusion
17
legally be applied to medically necessary treatment for autism under the MHPA? The
issue is not before us, and cannot properly be considered without the presence of the
health plan which seeks to enforce such an exclusion.
No health plan is a defendant in this action; no policy exclusion is at issue in this
case. Instead, Consumer Watchdog raises a challenge solely to the DMHC policy that
no coverage will be required for mental health services provided by a provider not
licensed or certified under California law. We therefore construe Consumer
Watchdog‟s petition and complaint as seeking an order directing DMHC not to uphold
a denial of coverage for medically necessary ABA services on the ground that coverage
need not be provided when the provider is not licensed or certified under California
law.
6. Briefing, Argument, and the Trial Court’s Ruling
In support of its petition and complaint, Consumer Watchdog argued that ABA
must be provided in all cases where it is medically necessary. In opposition, DMHC
argued that the Legislature “set forth state licensure as the bright-line consumer
protection regarding practitioners of health services.” DMHC argued that if
BACB-certified therapists were treating autism, they were engaging in the unlicensed
practice of medicine or psychology under the Business and Professions Code. DMHC
took the position that since BACB-certified therapists must not be doing the illegal act
of practicing medicine or psychology without a license, their ABA must therefore
constitute something other than treatment. DMHC concluded that the ABA performed
by BACB-certified therapists was educational and need not be covered, while only the
18
ABA performed by individuals licensed under California law was medical treatment
and therefore required to be provided under the MHPA.
The trial court rejected DMHC‟s argument that non-licensed ABA providers
were engaging in the unlicensed practice of medicine. The court reasoned that the
Business and Professions Code concerns itself only with individuals who perform acts
for which licenses can be issued. As there are no California licenses for ABA, there is
no unlicensed practice of medicine by those who perform ABA. However, the court
concluded that DMHC could, itself, impose a licensing obligation as part of its general
duties to ensure that health care plans provide quality health care services and to protect
the interests of enrollees. As providers of ABA work intensively with fragile autistic
children, it was reasonable for DMHC to require that providers of such therapy be
subject to the quality controls of state licensure. The court concluded that there was
therefore no clear, ministerial duty for DMHC to order ABA when provided by
BACB-certified therapists.12 It therefore denied the writ petition. The court observed
that Consumer Watchdog‟s remedy was “with the Legislature,” not the courts.
As to Consumer Watchdog‟s causes of action with respect to the DMHC‟s
grievance resolution procedures, the trial court concluded that the March 2009 memo
constituted a regulation which had not been adopted pursuant to the Administrative
12
While DMHC argues that the trial court‟s result was correct, it does not adopt the
trial court‟s argument. DMHC does not suggest that it could, itself, impose a duty of
licensure which was not present in Knox-Keene or the MHPA. If an obligation is not
imposed on plans by Knox-Keene (or the MHPA), and the statutes do not delegate to
DMHC the power to impose such an obligation, it has no authority to do so. (Kaiser
Foundation Health Plan, Inc. v. Zingale (2002) 99 Cal.App.4th 1018, 1024, 1027.)
19
Procedures Act. Therefore, the March 2009 memo was invalid. However, the court
noted that DMHC could continue to exercise its discretion to resolve coverage disputes
before sending an ABA grievance to IMR.
7. Judgment, Appeal, and Cross-Appeal
The court entered judgment directing DMHC to discontinue implementing,
utilizing or enforcing the March 2009 memo. All other relief was denied. Notice of
Entry of Judgment was served on February 1, 2011. Consumer Watchdog filed
a motion for new trial, which was denied on April 1, 2011. Consumer Watchdog filed
a timely notice of appeal on April 14, 2011.
DMHC filed a notice of cross-appeal from the trial court‟s ruling with respect to
the viability of DMHC‟s March 2009 memo. The notice of cross-appeal was dated and
served on April 29, 2011. However, it was not filed, nor stamped as received by the
“Civil Appeals Room,” until May 11, 2011. After this court sought additional briefing
on the timeliness of the cross-appeal,13 counsel for DMHC submitted a declaration
indicating that the notice of cross-appeal was sent to the court via “Federal Express
overnight delivery” on Friday April 29, 2011, with an expected date of delivery to the
court of May 2, 2011. Counsel supported this declaration with a copy of the Federal
13
The notice of cross-appeal was not filed within 60 days of service of notice of
entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1)(A).) The motion for new trial
extended the time to appeal until 30 days after the clerk mailed notice of entry of denial.
(Cal. Rules of Court, rule 8.108(b)(1)(A).) Such notice was mailed on April 1, 2011;
the notice of cross-appeal was therefore not timely under that extension. Finally,
a notice of appeal extends the time for filing a notice of cross-appeal until 20 days after
the clerk serves notification of the first appeal. (Cal. Rules of Court, rule 8.108(g)(1).)
In this case, the notification was served on April 15, 2011. The notice of cross-appeal
was therefore untimely under this extension provision as well.
20
Express airbill dated April 29, 2011, but had no evidence indicating whether the
document had been timely delivered to the Los Angeles Superior Court. Indeed,
counsel‟s declaration stated that he attempted to obtain package tracking information
from Federal Express after this court had raised the timeliness issue, but Federal
Express tracking information was no longer available for this delivery. It is therefore
unclear if: (1) Federal Express failed to timely deliver the notice of cross-appeal to
Los Angeles Superior Court; or (2) the notice of cross-appeal was timely delivered, and
some court error resulted in it not being timely stamped “received” and filed.
8. Settlement Agreements
While the appeal was pending, DMHC reached a settlement agreement with
California Physicians‟ Service dba Blue Shield of California. The agreement noted that,
although Blue Shield had previously agreed to provide ABA to its members when
rendered by licensed health care providers, it now contended that it was unable to locate
sufficient licensed health care providers willing to directly provide ABA to its enrollees.
It therefore came to the conclusion that BACB certification constituted a sufficient
credential to provide ABA services, and agreed to provide coverage for such services.
A similar agreement was reached on July 15, 2011 with Anthem Blue Cross.
9. The New Statute
The trial court had spoken presciently when it stated that Consumer Watchdog‟s
remedy was with the Legislature. On October 9, 2011, Health and Safety Code
section 1374.73 was enacted, specifically governing the provision of ABA. We will
therefore refer to the statute as the ABA statute.
21
The ABA statute applies, with certain exceptions we discuss below, to every
health plan providing hospital, medical or surgical coverage, which is the same
language used in the MHPA. As of July 1, 2012, the effective date of the ABA statute,
those plans are required to “provide coverage for behavioral health treatment for
pervasive developmental disorder or autism.” (Health & Saf. Code, § 1374.73,
subd. (a)(1).) “Behavioral health treatment” is defined to include various treatment
programs, and explicitly includes ABA. (Health & Saf. Code, § 1374.73, subd. (c)(1).)
To constitute behavioral health treatment which must be covered, the following criteria
must be met: (1) the treatment must be prescribed by a licensed physician or
psychologist; (2) the treatment must be provided under a treatment plan prescribed by
a “qualified autism service provider,” and be administered by either a qualified autism
service provider, or a “qualified autism service professional” or “qualified autism
service paraprofessional” supervised by the qualified autism service provider; (3) the
treatment plan has measurable goals and is reviewed at least every six months by the
qualified autism service provider; and (4) the treatment plan is not used for day care or
educational services. (Health & Saf. Code, § 1374.73, subds. (c)(1)(A)-(c)(1)(D).)
A qualified autism service provider, who must prescribe the plan and supervise
the delivery of services, is defined as either someone licensed under California law (as
a physician, psychologist, occupational therapist, or one of several other enumerated
professionals) who designs, supervises or provides treatment for pervasive
developmental disorder or autism (Health & Saf. Code, § 1374.73, subd. (c)(3)(B)) or
a person “certified by a national entity, such as the [BACB] and who designs,
22
supervises, or provides treatment for pervasive developmental disorder or autism.”
(Health & Saf. Code, § 1374.73, subd. (c)(3)(A).)
A qualified autism service professional, who may provide services under the
supervision of a qualified autism service provider, is defined by reference to approved
vendor lists for regional centers.14 Anyone approved as a vendor as an Associate
Behavior Analyst, Behavior Analyst, Behavior Management Assistant, Behavior
Management Consultant, or Behavior Management Program for a regional center is
a qualified autism service professional. (Health & Saf. Code, § 1374.73. subd. (4)(D).)
These categories include, by regulation, individuals certified by the BACB as Board
Certified Behavior Analysts and Board Certified Associate Behavior Analysts.15
(Cal. Code Regs., tit. 17, § 54342, subds. (a)(8) & (a)(11).)
A qualified autism service paraprofessional, who may provide services under the
supervision of a qualified autism service provider, is defined as “an unlicensed and
uncertified individual” who has adequate education, training, and experience, as
14
“[T]he State Department of Developmental Services contracts with private
nonprofit corporations to establish and operate regional centers. [Citation.] These
regional centers are „responsible for determining eligibility, assessing needs and
coordinating and delivering direct services to individuals with developmental
disabilities and their families within a defined geographical area. [Citation.]‟
[Citation.]” (Arce v. Kaiser Foundation Health Plan, Inc., supra, 181 Cal.App.4th at
p. 479, fn. 3.)
15
Indeed, the categories also include individuals with a bachelor‟s degree and
certain experience in ABA even without BACB certification. (Cal. Code Regs., tit. 17,
§ 54342, subd. (a)(12).)
23
certified by a qualified autism service provider.16 (Health & Saf. Code, § 1374.73,
subd. (c)(5).)
In short, with respect to all health plans subject to the ABA statute, they are
required to provide ABA treatment for autistic children when provided, or supervised,
by a BACB-certified therapist. The ABA statute provided precisely the relief sought by
Consumer Watchdog in the instant action, and Consumer Watchdog does not argue to
the contrary.
The ABA statute, however, becomes inoperative by its own terms on July 1,
2014, and, if not extended, is repealed on January 1, 2015. (Health & Saf. Code,
§ 1374.73, subd. (g).) Moreover, three types of health plans are specifically exempted
from the obligations of the ABA statute: (1) health plans in the Medi-Cal program;
(2) health plans in the Healthy Families Program; and (3) health plans entered into with
the Public Employees‟ Retirement System (PERS). (Health & Saf. Code, § 1374.73,
subd. (d).) As health plans in the Medi-Cal program are also exempt from the MHPA,17
16
Such an individual must also meet criteria set forth in regulations adopted
pursuant to Welfare and Institutions Code section 4686.3. (Health & Saf. Code,
§ 1374.73. subd. (c)(5)(C).) That section directs the adoption of emergency regulations
“to address the use of paraprofessionals in group practice provider behavioral
intervention services and establish a rate. The regulations shall also establish a rate and
the educational or experiential qualifications and professional supervision requirements
necessary for the paraprofessional to provide behavioral intervention services.”
(Welf. & Inst. Code, § 4686.3.) Regulations do not yet appear to have been adopted.
17
Both parties assume that Medi-Cal plans not subject to the ABA statute are
nonetheless subject to the requirements of the MHPA. With respect to Medi-Cal plans,
the ABA statute exempts “A health care service plan contract in the Medi-Cal program
(Chapter 7 (commencing with Section 14000) of Part 3 of Division 9 of the Welfare and
Institutions Code).” (Health & Saf. Code, § 1374.73, subd. (f).) The MHPA likewise
24
there are, in effect, two types of health plans (Healthy Families and PERS), which are
subject to the requirements of the MHPA, but not the requirements of the ABA statute.
10. The Task Force
The ABA statute also created an Autism Advisory Task Force, to be convened by
DMHC, in consultation with the Department of Insurance, and in collaboration “with
other agencies, departments, advocates, autism experts, health plan and health insurer
representatives, and other entities and stakeholders that it deems appropriate.” (Health
& Saf. Code, § 1374.74.) Among other things, the task force was directed to “develop
recommendations regarding the education, training, and experience requirements that
unlicensed individuals providing autism services shall meet in order to secure a license
from the state.” (Health & Saf. Code, § 1374.74, subd. (b).)
The task force issued its report on February 21, 2013. (DMHC Autism Advisory
Task Force, Report to the Governor of California and the California State Legislature,
Feb. 21, 2013.) Among other things, the Task Force unanimously recommended that
California create a new license titled Licensed Behavioral Health Practitioner, for the
“top level clinicians” of autism services. (Id. at p. 19.) The Task Force unanimously
recommended that BACB-certified practitioners would qualify for the license (id. at
pp. 19-20) and that, until such time as the license is established, BACB-certification
would be sufficient for top level clinicians (id. at pp. 15, 20). As for the front-line
provides that it “shall not apply to contracts entered into pursuant to Chapter 7
(commencing with Section 14000) . . . of Division 9 of Part 3 of the Welfare and
Institutions Code, between the State Department of Health Services and a health care
service plan for enrolled Medi-Cal beneficiaries.” (Health & Saf. Code, § 1374.72,
subd. (f).)
25
providers of treatment, they need only have high school diplomas, sufficient training,
and be adequately supervised. (Id. at pp. 17-18.) The Task Force also unanimously
recommended that, in order to ensure consumer safety, all providers of autism services
be registered with the state‟s Trust Line Registry. (Id. at p. 21.)
In short, the Task Force unanimously recommended that ABA be provided or
supervised by BACB-certified individuals, and that a license be created for
BACB-certified individuals. However, the Task Force also recommended registration
with Trust Line of all providers of autism services.
11. Current Legislative Activity
On February 19, 2013, Senate Bill 322 was introduced. The bill was apparently
intended as a placeholder, as it read, in its entirety: “It is the intent of the Legislature to
enact legislation to provide for the certification of [ABA] therapists.” (Sen. Bill
No. 322 (2013-2014 Reg. Sess.) as introduced Feb. 19, 2013.) However, the Senate
subsequently amended the bill to pertain to a different topic entirely (water recycling).
(Sen. Bill No. 322 (2013-2014 Reg. Sess.) as amended Apr. 9, 2013.) As a result, there
does not appear to be any legislation pending regarding licensure of ABA therapists, as
recommended by the Task Force.
However, a bill is currently pending to extend the operation of the ABA statute,
currently set to expire on July 1, 2014, to Jan. 1, 2017. (Sen. Bill No. 126
(2013-2014 Reg. Sess.) as amended Aug. 8, 2013.)
26
ISSUES ON APPEAL
While the applicable legislative frameworks and procedural history of this case
are, as set forth above, somewhat complex, the issues presented by this appeal are
relatively straightforward: (1) Under law existing prior to the ABA statute, did
BACB-certified therapists engage in the unlicensed practice of medicine or psychology?
(2) Is the bulk of Consumer Watchdog‟s appeal moot in light of the ABA statute?
(3) What are the DMHC‟s duties with respect to grievances regarding ABA provided by
BACB-certified therapists to enrollees in plans exempted from the ABA statute? and
(4) With respect to the grievances filed between the date of Consumer Watchdog‟s
petition and complaint and the effective date of the ABA statute, should the trial court
have required DMHC to direct the plans to provide ABA from BACB-certified
providers?
The following additional issues are also raised with respect to the March 2009
memo: (5) Is DMHC‟s cross-appeal untimely? and (6) Did the trial court err in
refusing to direct that DMHC return to its pre-March 2009 memo procedures?
DISCUSSION
1. The Practice of ABA Therapy Constitutes the Practice of Psychology
In order to properly analyze the issues before us, we first consider whether the
practice of ABA therapy constitutes the practice of medicine (or any subset thereof).
Business and Professions Code section 2052, part of the Medical Practice Act (Bus. &
Prof. Code, § 2000 et seq.), provides that “any person who practices or attempts to
practice, or who advertises or holds himself or herself out as practicing, any system or
27
mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for,
or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder,
injury, or other physical or mental condition of any person, without having at the time
of so doing a valid, unrevoked, or unsuspended certificate as provided in this chapter or
without being authorized to perform the act pursuant to a certificate obtained in
accordance with some other provision of law is guilty of a [crime].”
This language is very broad, encompassing any person who
“treats . . . any . . . physical or mental condition of a person.” The Legislature has
enacted several exemptions from the statute; the language of the exemptions serves to
underline the breadth of the statute. These exemptions include “the domestic
administration of family remedies”18 (Bus. & Prof. Code, § 2058, subd. (a); the giving
of nutritional advice (Bus. & Prof. Code, § 2068); “[t]esting and guidance programs in
schools” (Bus. & Prof. Code, § 2062); medical students performing medical acts as part
of their course of study (Bus. & Prof. Code, § 2064); and the limited practice of
alternative and complementary healing arts services, if certain disclosures are made.
18
In Bowland v. Municipal Court (1976) 18 Cal.3d 479, a defendant charged with
the unlicensed practice of medicine argued that the statute was unconstitutionally vague,
as it is unclear whether the statute forbids such conduct as “the statement by an
unlicensed person to a friend that the friend sounds like he has a cold; the suggestion
that a grief be assuaged by a long trip; or advice by an unlicensed person that one
suffering from a cold administer to himself aspirin and orange juice.” (Id. at p. 491.)
Our Supreme Court did not hold that these hypotheticals do not constitute the practice
of medicine. Instead, it suggested that “[i]nformal recommendation among friends as to
the efficacy of nonprescription vitamin compounds or ocean cruises seems akin to
sharing a „family remedy,‟ ” under the precursor statute to Business and Professions
Code section 2058, subdivision (a). (Bowland v. Municipal Court, supra, 18 Cal.3d at
p. 492.)
28
(Bus. & Prof. Code, §§ 2053.5, 2053.6). Indeed, in enacting the latter statutes,
governing the practice of alternative and complementary medicine, the Legislature
made express findings and declarations stating, “Notwithstanding the widespread
utilization of complementary and alternative medical services by Californians, the
provision of many of these services may be in technical violation of the Medical
Practice Act [citation]. Complementary and alternative health care practitioners could
therefore be subject to fines, penalties, and the restriction of their practice under the
Medical Practice Act even though there is no demonstration that their practices are
harmful to the public. [¶] The Legislature intends, by enactment of this act, to allow
access by California residents to complementary and alternative health care practitioners
who are not providing services that require medical training and credentials. The
Legislature further finds that these nonmedical complementary and alternative services
do not pose a known risk to the health and safety of California residents, and that
restricting access to those services due to technical violations of the Medical Practice
Act is not warranted.” (Stats. 2002, ch. 820, § 1, subds. (b) & (c).)
Case law also confirms the necessity of a broad interpretation of the practice of
medicine. Business and Professions Code section 2052 “represents a reasonable
exercise of the state police power, as the statute was designed to prevent the provision
of medical treatment to residents of the state by persons who are inadequately trained or
otherwise incompetent to provide such treatment, and who have not subjected
themselves to the regulatory regime established by the Medical Practice Act [citation].
Causing or intending an injury is not an element of the offense . . . . ” (Hageseth v.
29
Superior Court (2007) 150 Cal.App.4th 1399, 1416-1417.) “The state . . . clearly has
a strong and demonstrable interest in protecting its citizens from persons who claim
some expertise in the healing arts, but whose qualifications have not been established by
the receipt of an appropriate certificate.” (Bowland v. Municipal Court, supra,
18 Cal.3d at p. 494.) That the unlicensed practitioner may be competent is no defense.
Our system, “in order to assure the protection of the public, requires that a person‟s
competency be determined by the state and evidenced by a license.” (Magit v. Board of
Medical Examiners (1961) 57 Cal.2d 74, 85.)
It is apparent, then, that the practice of medicine is very broad. However,
although licensed physicians may practice medicine (Bus. & Prof. Code, § 2051), they
are not the only individuals permitted to perform acts which constitute the practice of
medicine. As noted in Business and Professions Code section 2052, if the individual is
“authorized to perform the act pursuant to a certificate obtained in accordance with
some other provision of law,” the act does not constitute the unlicensed practice of
medicine. This is confirmed by Business and Professions Code section 2061, which
provides, “Nothing in this chapter shall be construed as limiting the practice of other
persons licensed, certified, or registered under any other provision of law relating to the
healing arts when such person is engaged in his or her authorized and licensed practice.”
Numerous such authorizations exist. For example, licensed dentists may practice
dentistry (Bus. & Prof. Code, § 1600); licensed (registered) nurses may practice nursing
(Bus. & Prof. Code, § 2732); licensed psychologists may practice psychology (Bus. &
Prof. Code, § 2903); licensed chiropractors may practice chiropractic (Bus. & Prof.
30
Code, § 1000-4); licensed occupational therapists may practice occupational therapy
(Bus. & Prof. Code, § 2570.3); licensed physical therapists may practice physical
therapy (Bus. & Prof. Code, § 2630); licensed respiratory care practitioners may
practice respiratory care (Bus. & Prof. Code, § 3730); licensed speech-language
pathologists and audiologists may practice speech-language pathology and audiology
(Bus. & Prof. Code, § 2532); licensed acupuncturists may practice acupuncture (Bus. &
Prof. Code, § 4937); licensed midwives may practice midwifery (Bus. & Prof. Code,
§ 2507); and certificated dispensing opticians may fit and adjust spectacles and contact
lenses (Bus. & Prof. Code, § 2553). Each of these practitioners is authorized to perform
acts which constitute the practice of medicine, as limited by the scope of their own
licenses.19 In short, physicians have broad authority to practice medicine, while every
other licensed health professional has a limited license to perform tasks which are
within the scope of that license, which were previously within the exclusive province of
physicians. (58 Ops. Cal. Atty. Gen. 186, 187 (1975).)
We are concerned, in this case, with the provision of ABA therapy, and DMHC‟s
argument that it cannot direct plans to provide ABA therapy performed by unlicensed
individuals, as to do so would be directing plans to pay for the unlicensed practice of
medicine. The parties focus their arguments on the general statute prohibiting the
unlicensed practice of medicine (Bus. & Prof. Code, § 2052), while we believe the more
19
Indeed, in some cases, the statutory scheme providing for the licensure of such
professionals expressly states that they are not licensed to practice medicine beyond the
practice of their specific healing art. (See, e.g, Bus. & Prof. Code, §§ 2530.4
[speech-language pathologists and audiologists]; 2621 [physical therapists];
3705 [respiratory care practitioners].)
31
appropriate statute is the specific statute prohibiting the unlicensed practice of
psychology (Bus. & Prof. Code, § 2903). While the unlicensed practice of psychology
could constitute the unlicensed practice of medicine, it is more appropriate to focus on
the narrower statute. (See People v. McCall (2013) 214 Cal.App.4th 1006,
1010-1012.)20
Business and Professions Code section 2903 prohibits the practice of psychology
without a license. “The practice of psychology is defined as rendering or offering to
render for a fee to individuals, groups, organizations or the public any psychological
service including the application of psychological principles, methods, and procedures
of understanding, predicting, and influencing behavior, such as the principles pertaining
to learning, perception, motivation, emotions, and interpersonal relationships; and the
methods and procedures of interviewing, counseling, psychotherapy, behavior
modification, and hypnosis . . . . [¶] The application of these principles and methods
includes, but is not restricted to: diagnosis, prevention, treatment, and amelioration of
20
People v. McCall involved the prosecution of a midwifery student who, while
unsupervised, provided prenatal care for a patient, and attended and assisted at a birth,
manually guiding the baby out, cutting the umbilical cord, removing the placenta,
giving the mother an injection to stop hemorrhaging, and suturing a tear. The defendant
argued that she should have been prosecuted for the misdemeanor of the unlicensed
practice of midwifery, rather than felony unlicensed practice of medicine. While the
Court of Appeal acknowledged the general principle that a specific statute is considered
an exception to the general one, it rejected the defendant‟s argument, stating that she
“may have committed a misdemeanor violation of the Midwifery Act by performing
midwife services without the required supervision of a licensed midwife or a physician
and surgeon. But she did a great deal more than that. Her conduct above and beyond
the failure to secure supervision constituted, as the jury found, practicing medicine
without certification, a felony violation of the general statute.” (Id. at p. 1016.)
32
psychological problems and emotional and mental disorders of individuals and
groups.”21 (Emphasis added.)
ABA involves the application of psychological methods to influence behavior,
and can be considered a form of behavior modification. When used as a treatment for
autism, it therefore falls within the definition of psychology.22 As ABA falls solidly
within the definition of psychology, its practice by an individual who is not licensed to
practice psychology, or permitted to do so by another license, constitutes the unlicensed
practice of psychology.
Perhaps in an attempt to avoid the unintended consequence of arguing that
BACB-certified practitioners are committing the unlicensed practice of psychology, 23
21
An exception to the statute shall not prevent “qualified members of other
recognized professional groups licensed to practice in the State of California, such as,
but not limited to, physicians, clinical social workers, educational psychologists,
marriage and family therapists, optometrists, psychiatric technicians, or registered
nurses, or attorneys admitted to the California State Bar, . . . or duly ordained members
of the recognized clergy, or duly ordained religious practitioners from doing work of
a psychological nature consistent with the laws governing their respective professions.”
(Bus. & Prof. Code, § 2908.)
22
DMHC requires plans to cover ABA therapy when the child‟s physician
indicates that the child‟s condition requires the services of a licensed health care
provider, such as a psychologist, marriage and family therapist, or clinical social
worker. Each of these individuals may “do[] work of a psychological nature consistent
with the laws governing their respective professions.” (Bus. & Prof. Code, § 2908.)
23
DMHC expressly does not want to make this argument. In its final brief in this
appeal, DMHC stated, “The DMHC has never argued that [BACB-certified therapists‟]
services are illegal – an argument raised repeatedly by amici to sensationalize the issue
without any basis. Rather, the DMHC‟s position has consistently been that persons that
provide ABA to treat autism (as opposed to providing ABA in an educational or other
non-healthcare setting) must meet the State‟s licensing requirements.” This is a very
fine distinction, and, as we shall discuss, one which cannot be sustained. In any event,
33
DMHC makes the novel argument that ABA performed by BACB-certified practitioners
is educational, while ABA performed by otherwise licensed individuals is medical
treatment. In other words, DMHC argues that whether a practice constitutes a medical
treatment depends on the identity of the individual performing the practice. The
conclusion finds no support in law or logic.
There are some acts which may be medical or non-medical depending on the
circumstances in which they are performed. Hypnosis, for example, may be used for
the purposes of entertainment or self-improvement; it only becomes the practice of
psychology when it is used as a method of diagnosis or treatment. (Bus. & Prof. Code,
§ 2908 [exempting from the prohibition on the unlicensed practice of psychology
“persons utilizing hypnotic techniques which offer avocational or vocational
self-improvement and do not offer therapy for emotional or mental disorders”]24; see
also 54 Ops. Cal. Atty. Gen. 62 (1971).) Massage for the purposes of relaxation does
not constitute the practice of medicine (In re Maki (1943) 56 Cal.App.2d 635, 644);
massage when used to “cure or relieve a certain . . . ailment” is the practice of medicine.
(People v. Cantor (1961) 198 Cal.App.2d Supp. 843, 848.) In each instance, the focus
despite DMHC‟s express intent to avoid arguing that BACB-certified therapists‟
services are illegal, they have, in fact, repeatedly made the argument. Before the trial
court, DMHC argued that it should not “compel plans to commit an illegal act by
providing ABA through unlicensed providers.” In its respondent‟s brief before this
court, DMHC stated, “[A]bsent a Legislative exemption, unlicensed ABA therapists are
precluded from providing ABA health care treatment to children with autism.”
24
The statute also permits hypnosis for medical purposes by a non-psychologist, if
the hypnotist does so by referral from a licensed doctor, dentist, or psychologist.
(Bus. & Prof. Code, § 2908.)
34
is on the goal of the act – whether it is performed for a medical purpose – not on the
identity of the individual performing it. The conclusion makes logical sense. An
appendectomy is a medical practice whether performed by a doctor or a short order
cook. Similarly, frying an egg would not be transformed into a medical practice if
performed by a licensed physician. It is the act itself which is the focus of the inquiry,
not the actor. (Cf. Board of Medical Quality Assurance v. Andrews (1989)
211 Cal.App.3d 1346, 1348, 1358 [acts performed by the “Religious School of Natural
Hygiene” and its “first minister” indisputably constituted the practice of medicine].)
We therefore necessarily reach the conclusion that no party or amicus wishes us
to reach: the practice of ABA constitutes the practice of psychology. It follows that,
prior to the enactment of the ABA statute, BACB-certified therapists were engaging in
the unlicensed practice of psychology. We stress the reluctance with which we reach
this legally-mandated conclusion.25 BACB-certified therapists are indisputably
25
We note that, as a historical matter, it appears that California has not chosen to
license practitioners of a particular health care specialty until such time as those
practitioners had already been practicing their professions in California. For example,
the Legislature initially passed a bill to license occupational therapists in 1976. That
bill was vetoed by the governor as unnecessary regulation (see Cal. Dept. of Health,
Enrolled Bill Rep. on Assem. Bill No. 1100 (1977-1978 Reg. Sess.) September 15,
1997, p. 1), and in 1977, the Legislature enacted a statute providing that anyone holding
himself or herself out as an occupational therapist was required to meet certain
qualifications. (Bus. & Prof. Code, fmr. § 2570.) By the time this so-called “title
protection” statute was enacted in 1977, occupational therapy “ha[d] for many years
been an accepted part of the health care team.” (See Cal. Dept. of Health, Enrolled Bill
Rep. on Assem. Bill No. 1100 (1977-1978 Reg. Sess.) September 15, 1997, p. 1.) In
other words, California tends to wait until perhaps thousands of individuals are
routinely engaging in the unlicensed practice of medicine before creating the legal
framework within which those individuals can legally practice their specialty. This case
35
recognized as proper practitioners of ABA. Before this litigation arose, BACB-certified
practitioners were providing services in regional centers. The Department of Insurance
was requiring plans within its jurisdiction to provide coverage for BACB-certified
providers. After the trial court issued its ruling, at least two plans reached private
agreements with DMHC to provide coverage for ABA provided by BACB-certified
therapists. The Task Force unanimously agreed that BACB-certified therapists should
provide, or supervise, the delivery of ABA, and recommended they be licensed. While
otherwise licensed individuals could also provide ABA services, using such individuals
to provide the time-intensive therapy is substantially more costly than using
BACB-certified providers (and BACB-certified supervision of unlicensed providers),
with no documented evidence that the ABA which otherwise-licensed providers
perform is, in any way, superior.26 Moreover, there is some evidence that there are not
enough licensed individuals willing and able to provide ABA to all autistic children in
need of ABA in California. In short, the law previously characterized as illegal
a practice which everyone agrees should be authorized and encouraged. Ultimately,
with the enactment of the ABA statute, the Legislature provisionally resolved the
simply presents another such example. As we shall next discuss, the Legislature has
recently acted in the case of BACB-certified practitioners of ABA therapy.
26
DMHC required ABA to be provided when a prescribing physician would
indicate that the child‟s needs required that ABA be provided by a licensed practitioner.
The record does not indicate that a plan ever disputed such a prescription; that is to say,
there are no records of IMR‟s in which a medical review panel determined whether any
particular child‟s needs for ABA were so serious that a licensed ABA provider was
required over a BACB-certified provider.
36
then-existing disconnect between the law and reality. We now turn to the effect of the
enactment of this statute on the instant appeal.
2. The Bulk of the Appeal is Moot
“[I]t is clear under a long and uniform line of California precedents that the
validity of the judgment must be determined on the basis of the current statutory
provisions, rather than on the basis of the statutory provisions that were in effect at the
time the injunctive order was entered. As observed by Witkin: „Because relief by
injunction operates in the future, appeals of injunctions are governed by the law in
effect at the time the appellate court gives its decision.‟ [Citations.]” (Marine Forests
Society v. California Coastal Com. (2005) 36 Cal.4th 1, 23.) “The reason a reviewing
court applies current rather than former law when reviewing an injunctive decree is
because injunctive relief operates in the future. [Citations.] It would be an idle gesture
to affirm an injunctive decree because it was correct when rendered, „with full
knowledge that it is incorrect under existing law, and with full knowledge that, under
existing law, the decree as rendered settles nothing so far as the future rights of these
parties are concerned.‟ [Citation.] It does not matter whether the Legislature intended
the new law to be retroactive. The reviewing court is interested in the law‟s prospective
effect since that is when the decree under review will operate.” (City of Watsonville v.
State Dept. of Health Services (2005) 133 Cal.App.4th 875, 884.)
As we have construed the petition and complaint in this matter, Consumer
Watchdog sought prospective relief (in the form of a writ of mandate, injunction, and
declaratory relief) providing that, in response to future grievances, DMHC can no
37
longer uphold a denial of ABA coverage on the basis that ABA to be provided or
supervised by a BACB-certified therapist constitutes the unlicensed practice of
medicine or psychology. This question, in large part, has been resolved by the recent
enactment of the ABA statute. With respect to all plans which were not expressly
excluded from the ABA statute, the statute requires those plans to provide coverage for
ABA to be provided or supervised by a BACB-certified therapist. DMHC concedes
this, and has implemented the statute. Writ relief is therefore unnecessary; Consumer
Watchdog‟s appeal is largely, but not entirely, moot.
3. DMHC May Not Uphold a Denial of Coverage for ABA Performed or
Supervised by a BACB-Certified Therapist, on the Basis that the Provider
Is Engaging in the Unlicensed Practice of Medicine or Psychology,
Even When the Plan is Exempted from the ABA Statute
We next consider plans expressly exempted from the ABA statute; these are
plans in the Healthy Families Program and plans entered into with PERS. Such plans
are not required, under the ABA statute, to provide coverage for ABA provided or
supervised by BACB-certified providers.
This does not mean, however, that we ignore the existence of the ABA statute
when considering these plans. As noted above, we apply the law as it currently exists
on appeal in resolving a claim for injunctive relief. Under current law, the argument
can no longer be made that BACB-certified providers are engaging in the unlicensed
practice of medicine or psychology. The ABA statute constitutes legislative approval of
the practice of ABA by BACB-certified providers and individuals under their
supervision. While the ABA statute only requires certain plans to provide coverage for
38
ABA by BACB-certified providers and individuals under their supervision, the ABA
statute also has the effect of implicitly authorizing BACB-certified providers and those
under their supervision to practice ABA, regardless of Business and Professions Code
sections 2052 and 2903.27 This authorization is not limited to the BACB-certified
therapists providing services under plans covered by the ABA statute. Such
a conclusion would mean that a BACB-certified therapist providing ABA for an autistic
child under one health plan is acting legally, but the very same BACB-certified therapist
providing the very same ABA for the very same autistic child is committing the
unlicensed practice of psychology if the child‟s parent changes employers and obtains
health coverage through a Healthy Families plan or one which has contracted with
PERS. Such a result would be nonsensical. The legality of an act which constitutes the
27
We have focused our argument on the unlicensed practice of medicine and
psychology under the Business and Professions Code. It could be argued that even if
BACB-certified therapists are exempted by the ABA statute from the licensure
requirements, Knox-Keene requires licensure, and is not satisfied by a mere exemption
from licensure. The argument is unpersuasive for three reasons. First, Knox-Keene
indicates that personnel employed by plans “shall be licensed . . . where licensure . . . is
required by law.” (Health & Saf. Code, § 1367, subd. (b).) Second, and similarly,
Knox-Keene requires plans to utilize allied health manpower “to the extent permitted by
law.” (Health & Saf. Code, § 1367, subd. (f).) Thus, to the extent Knox-Keene requires
licensure, it requires licensure only as required by law; the ABA statute‟s exemption
from licensure is sufficient. Third, the Business and Professions Code itself defines
“license” to mean “license, certificate, registration, or other means to engage in
a business or profession . . . . ” (Bus. & Prof. Code, § 23.7.) The ABA statute, which
impliedly permits BACB-certified individuals to practice or supervise ABA, constitutes
“other means” sufficient to satisfy the licensure statute. Indeed, DMHC concedes this
point, stating that the ABA statute provides the necessary authorization “for the
provision of ABA by an individual who is unlicensed, but certified by a private
organization, or supervised by a licensed or certified individual.”
39
practice of medicine or psychology cannot be determined by the identity of the health
plan covering the patient for whom the act is performed.
Thus, DMHC cannot uphold a denial of coverage for ABA provided or
supervised by a BACB-certified therapist, on the basis that the therapist is unlicensed,
even when the plan is exempted from the requirements of the ABA statute.28 To that
extent, Consumer Watchdog is entitled to relief.
4. Consumer Watchdog is Not Entitled to Relief With Respect to
Grievances Which Predate the Effective Date of the ABA Statute
Although our review of the issues is mainly forward-looking, there is one group
of already-resolved grievances which we must address. Consumer Watchdog filed its
petition and complaint on June 30, 2009. When a party seeks mandate, it argues that it
is entitled to relief at the institution of proceedings. (Morris v. Noguchi (1983)
141 Cal.App.3d 520, 523.) If, under the law as it existed on June 30, 2009, Consumer
Watchdog was entitled to relief, the trial court erred in denying Consumer Watchdog‟s
writ petition, and we must order retroactive relief for all grievances improperly resolved
by DMHC from the date of the complaint going forward.
Consumer Watchdog, however, is not entitled to such relief. As discussed above,
the practice of ABA constitutes the practice of psychology. Prior to the effective date of
28
We again stress that we are not concluding that the health plans exempted from
the ABA statute are, in fact, subject to its terms. The ABA statute does not require
these plans to provide ABA; we do not require them to do so, either. We simply hold
that DMHC‟s practice of upholding denials of coverage on the basis that
BACB-certified therapists are unlicensed is no longer legally justified. The ABA
statute has concluded that these individuals possess sufficient qualifications such that
further licensure is unnecessary.
40
the ABA statute, BACB-certified therapists practicing ABA were engaging in the
unlicensed practice of psychology. Thus, DMHC had no clear duty to order plans
within its jurisdiction to provide coverage for the unlicensed practice of psychology.
Indeed, Knox-Keene requires the use of licensed personnel where licensure is required
(Health & Saf. Code, § 1367, subd. (b) & (i)), and, clearly, a license is required for the
practice of psychology (Bus. & Prof. Code, § 2903). Thus, DMHC did not act
improperly by denying coverage for ABA provided by unlicensed practitioners prior to
the effective date of the ABA statute.
5. DMHC’s Cross-Appeal is Untimely
We next turn to issues surrounding the March 2009 memo and the trial court‟s
conclusions that: (1) the memo violated the Administrative Procedures Act; but
(2) DMHC would not be required to return to its pre-March 2009 method of resolving
grievances, and order all grievances regarding ABA which raised both coverage and
medical necessity issues to IMR.
DMHC purported to appeal from the court‟s order declaring the March 2009
memo violative of the Administrative Procedures Act. We cannot reach this issue, as
DMHC‟s notice of cross-appeal is untimely. As discussed above (see fn. 13, ante),
DMHC‟s notice of cross-appeal was not timely under any applicable Rule of Court.
DMHC states that it timely transmitted the notice of cross-appeal through Federal
Express, and provides evidentiary support for this claim. There is no evidence,
however, as to when the document was delivered by Federal Express to the court. It is
clear that one of two things occurred. Either: (1) Federal Express erred, and did not
41
timely deliver the shipment; or (2) Federal Express timely delivered the shipment, but
employees of the Los Angeles Superior Court failed to timely mark the notice of
cross-appeal as received.29 DMHC, however, has no evidence that the error here was
the clerk‟s, rather than Federal Express‟s. DMHC has no tracking information from
Federal Express indicating when the package was delivered, no declaration from its
counsel indicating that it confirmed timely receipt of the notice of cross-appeal with the
superior court clerks, and certainly no evidence that Federal Express never makes
a mistake.30 Indeed, as between Federal Express and the superior court clerks, the
presumption runs in favor of the clerks. “It is presumed that official duty has been
regularly performed.” (Evid. Code, § 664.) While there is a similar presumption that
a letter correctly addressed and properly mailed is presumed to have been received “in
the ordinary course of mail” (Evid. Code, § 641), the statute has “no application to the
filing of a notice of appeal.” (Thompson, Curtis, Lawson & Parrish v. Thorne (1971)
29
Under California Rules of Court, rule 8.25(b)(1), a document is deemed filed on
the date the clerk receives it. Thus, if the clerk timely received the notice of
cross-appeal, even if it was not marked as filed until later, it would be considered timely
filed.
30
DMHC‟s counsel‟s declaration states only that counsel‟s “office had a history of
filing documents with the Los Angeles County Superior Court using Federal Express
overnight service. That service had reliably resulted in proper and on-time filings.”
That no overnight delivery company is perfect is a fact of such common knowledge that
it would be a proper subject of judicial notice under Evidence Code section 452,
subdivision (g). While this court has not found a reasonably indisputable source for
Federal Express‟s on-time rate, a frequently cited “infographic” from 2011 indicates
a rate of “express packages delivered on time” of 88%.
(as of Sept. 6,
2013).
42
21 Cal.App.3d 797, 801.) DMHC‟s cross-appeal must therefore be dismissed as
untimely.31
6. The Trial Court Did Not in Err in Rejecting Consumer Watchdog’s
Request that DMHC Be Directed to Return to Pre-March 2009
Memo Procedures
After the trial court invalided the March 2009 memo, Consumer Watchdog
sought the additional relief of an order directing DMHC to return to its pre-March 2009
methods of resolving grievances relating to the provision of ABA – specifically, to
direct that those grievances be resolved under IMR. The trial court correctly denied this
relief.
Health and Safety Code section 1374.30, subdivision (d)(3) grants DMHC
discretion to determine whether a grievance raising an issue of medical necessity is to
be resolved in IMR or through the standard grievance procedure. Subdivision (d)(2) of
that statute expressly states, “[i]n any case in which an enrollee or provider asserts that
a decision to deny, modify, or delay health care services was based, in whole or in part,
on consideration of medical necessity, the department shall have the final authority to
31
However, based on the record before us, we believe that the trial court‟s ruling
was correct. The March 2009 memo was indisputably adopted without compliance with
the Administrative Procedures Act. DMHC argues that compliance with the Act was
not required as the March 2009 memo constituted the only legally tenable interpretation
of the grievance procedures. The contention is without merit. When considering
a grievance raising both issues of coverage and medical necessity, the grievance “shall
be resolved pursuant to [IMR] or pursuant to [the standard grievance procedure].”
(Health & Saf. Code, § 1374.30, subd. (d)(3).) As the grievance shall be resolved under
either procedure, it is clear that the position taken in the March 2009 memo – that such
grievances were to be resolved under the standard grievance procedure first – was not
the only tenable interpretation of the governing statutes. Indeed, the fact that DMHC
had previously resolved such grievances through IMR demonstrates that this was
a viable alternative under the statutes.
43
determine whether the grievance is more properly resolved pursuant to an [IMR] or [as
a standard grievance].” DMHC cannot be directed to resolve all grievances raising
issues of medical necessity and coverage under IMR any more than it can determine, by
rule not adopted in accordance with the Administrative Procedures Act, to resolve all
such grievances under the standard grievance process. DMHC must exercise its
discretion with respect to each grievance. That DMHC may have overreached in the
March 2009 memo does not mean that DMHC loses its discretion in future cases. (Cf.
Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 576-577 [an
interpretation adopted in an invalid regulation is not necessarily wrong].)
44
DISPOSITION
The judgment is affirmed in part and reversed in part and the matter remanded
for further proceedings consistent with the views expressed in this opinion.
Specifically, the judgment should be modified to provide that DMHC be enjoined from
upholding a plan‟s denial of ABA services to be provided or supervised by
a BACB-certified individual on the basis that the provider is not licensed as required by
Knox-Keene. This applies to all plans within DMHC‟s jurisdiction, including plans
exempted from the scope of the ABA statute. Such relief shall apply retroactively from
the effective date of the ABA statute, and continue as long as that statute is in effect.32
The judgment is otherwise affirmed. DMHC‟s cross-appeal is dismissed as untimely.
The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
CROSKEY, J.
WE CONCUR:
KLEIN, P. J. KITCHING, J
32
This modification in the judgment will not prevent DMHC from upholding such
a denial on any other legal basis; it simply enjoins DMHC from upholding a denial on
the basis that a BACB-certified provider, or someone working under the
BACB-certified provider‟s supervision, is unlicensed.
45