To:       All Health Insurance Companies, Health Maintenance Organizations, Self-Funded Plans, and Other Interested Parties

Re:       Applied Behavioral Analysis Benefits and Autism Age Limitations Under Mental Health Parity

From:  Glen Mulready, Commissioner

Date:   August 12, 2021

The Oklahoma Insurance Department (Department) previously issued guidance on the interpretation of 36 O.S. § 6060.11 following amendments passed by the Oklahoma Legislature under SB1718 (effective November 1, 2020) (LH Bulletin No. 2020-04 and LH Bulletin No. 2020-05). The purpose of this bulletin is to provide additional guidance on the subject of Mental Health Parity (MHP) specifically relating to autism Applied Behavioral Analysis (ABA) benefits and age limits for treatment of autism spectrum disorder (ASD).

Pursuant to 36 O.S. § 6060.11, all health benefit plans that cover physical diseases and disorders shall provide equal benefits for mental health and substance use disorders that are subject to the same preauthorization and utilization review mechanisms unless otherwise exempted by statute. 36 O.S. § 6060.11(B)(2) requires that “[t]reatment limitations applicable to mental health or substance use disorder benefits shall be no more restrictive than the predominant treatment applied to substantially all medical and surgical benefits covered by a benefit plan.”

The Department understands that Oklahoma insurance companies may be or are applying treatment and dollar amount limitations for ABA, a treatment therapy for ASD. Recently, the courts and federal agencies have cited violations related to ABA benefit exclusions and other mental health or substance abuse disorder treatment or benefit limitations that were more restrictive than treatments covered by medical and surgical benefits under the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), as amended, and federal guidance and regulations, including 45 C.F.R §§ 146.136, 147.160, and 156.115(a)(3).

The Department advises that if a group health plan or other health insurance coverage includes medical or surgical benefits and mental health or substance use disorder benefits, then under MHPAEA and 36 O.S. § 6060.11, the health plan cannot impose limitations on a quantitative basis (financial, access, or other limitations with numerical measures) or on a non-quantitative basis (medication limitations, medical management, or other non-quantitative measures). Under MHPAEA and 36 O.S. § 6060.11, if any plan includes limitations on mental health or substance use disorder benefits, such as treatments for ASD, those limitations must be comparable to and applied no more stringently than the standards and factors used in applying limitations with respect to medical or surgical benefits under the plan.

Oklahoma statute 36 O.S.§ 6060.21(E) permits coverage for ABA to be subject to a maximum benefit of twenty-five (25) hours per week and no more than twenty-five thousand dollars ($25,000) per year. The Department hereby advises that these limits conflict with 36 O.S. § 6060.11 and the federal statutes and regulations governing MHPAEA, and MHPAEA and 36 O.S. § 6060.11 likely control with regards to the application of ABA benefit limitations as discussed in this bulletin. Additionally, the age restrictions related to the diagnosis and treatment of ASD as set forth in 36 O.S. § 6060.21(A) will be considered discriminatory under MHPAEA.

The Department recommends that all carriers that include ABA benefits in health benefit plans update these plans to be in compliance with the guidance in this bulletin in regards to potentially discriminatory age restrictions and comparable benefit coverage for mental health or substance use disorder treatments and services no later than December 31, 2021.

Questions concerning this bulletin should be directed to Mike Rhoads, Deputy Commissioner, at Mike.Rhoads@oid.ok.gov or Kim Bailey, General Counsel, at Kim.Bailey@oid.ok.gov.