[DATE]

VIA CERTIFIED MAIL

[INSERT CLAIM HANDLER’S NAME

CLAIM HANDLER’S TITLE

HEALTHCARE PLAN’S NAME

CLAIM HANDLER’S ADDRESS

CLAIM HANDLER’S CITY, STATE, ZIP]

      Re: [ENROLLEE’S NAME]

[ENROLLEE’S DATE OF BIRTH]

[ENROLLEE’S SOCIAL SECURITY NUMBER]

[HEALTH PLAN PURCHASER’S NAME]

[HEALTH PLAN IDENTIFICATION NUMBER]

[CLAIM NUMBER]

            Subject: Payment Authorization for Enrollee’s Autism or Other AB88 Special   Needs Disorder

Dear Mr./Ms. [CLAIM HANDLER]:

      Please deem this letter to be a formal, emergent and continuing claim for you to promptly authorize payment of multi-disciplinary interventions recommended by the Enrollee’s treating healthcare provider(s) in the enclosed report(s) as being medically necessary, now and over a period of recommended time.

      As you can see from the enclosed report(s), the following is recommended: 

• A number of sensory (auditory) integration therapy sessions spread out over a consistent period of time;

• A number of speech therapy sessions spread out over a consistent period of time;

• A number of physical therapy sessions spread out over a consistent period of time;

• A number of behavior modification therapy sessions spread out over a consistent period of time;

• A number of discreet trial training therapy sessions spread out over a consistent period of time;

• A number of professional progress and assessment evaluations spread out over a consistent period of time for the purpose of measuring the occurrence and rate of improvement;

• Medication treatments as needed;

• Parent training sessions as needed;

• PET brain imaging and other diagnostic and functional laboratory testing as needed to assist in the direction of future treatment; and

• Other types of non-experimental and non-investigational interventions that are known in their respective disciplines to be reliable in treating and reducing the more severe aspects of autism, thereby creating a more self-reliant and productive citizen.

CALIFORNIA STATE MANDATE LAWS

      While your employer may have trained you in the meaning of different terms as these terms are used in your company’s own healthcare plan, please remember that these contractual terms are unenforceable to the extent that they violate California’s local/state mandates on minimal levels of special needs care as indicated in AB88, aka Health & Safety Code § 1374.72, and repeated in Insurance Code § 10144.5. In short, state mandates nullify contrary private healthcare plan language. Samson v. Transamerica (1981) 30 C.3d 220, 231. Moreover, these state mandates are not overruled or preempted by the less generous federal ERISA law. Metropolitan Life v. Massachusetts (1985) 471 U.S. 724; McCall v. Pacificare (2001) 25 C.4th 412.

      AB88 requires all medically necessary care, unlimited by any exclusion or $5,000-$25,000 lifetime coverage limitation, to be extended to the following "severe" mental disorders:

1. Schizophrenia;

2. Schizoaffective disorder;

3. Bipolar disorder – manic-depressive illness;

4. Major depressive disorders;

5. Panic disorders;

6. Obsessive-compulsive disorders;

7. Pervasive development disorder or Autism;

8. Anorexia nervosa;

9. Bulimia nervosa;

10. [See Health & Safety Code § 1374.72(d)(1)-(9) and Insurance Code § 10144.5(d)(1)-(9)].

      Among those "medically necessary treatments" mandated by AB88 are:

• Outpatient services

• Inpatient hospital services

• Partial hospitalization services [recurring confinement for less than 24 hours per day, but more than the usual one hour outpatient limit]

• Prescription drugs, if the healthcare plan contract includes coverage already for prescription drugs relative to other unrelated medical conditions

• [See Health & Safety Code § 1374.72(b)(1)-(4) and Insurance Code § 10144.5(b)(1)-(4)]

      "Medically necessary" means "when it is reasonable and necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain." Welfare & Institutions Code § 14059.5. Medical necessity is a jury question. Holmes v. Kizer (1992) 11 Cal.App.4th 395.

      Medical necessity can be proven not only by the expert opinions of treating healthcare providers, but also by medical literature. In the case of the severe mental disorder of autism, as an example, early intervention is medically necessary because "at least six comprehensive [early intervention] treatment programs designed to stimulate wide-spread changes in young children with autism have published positive outcome data in peer-reviewed journals ... [¶]. All the studies reported (a) significant acceleration of developmental rates, resulting in significant IQ gains; (b) significant language gains in the treated children; (c) improved social behavior and decreased symptoms of autism ... [¶]. [Children with autism appear most able to benefit when intervention is begun very early, between ages 2 and 4, making far more progress than do older children receiving the same interventions..., and when intervention is intensive, including 15 or more hours per week of focused treatment with very low child-to-adult ratios over one to two years or more". Rogers, "Early Intervention in Autism," Journal of Autism and Developmental Disorders (April, 1996) Vol. 26, No. 2, Plenum Press, New York and London, pps. 243-245. Jurors may determine medical necessity unless an enrollee has waived this right. Holmes v. Kizer (1992) 11 Cal.App.4^th 395, 13 Cal.Rptr.2d 746.

      Financial inducements to limit medically necessary care are illegal and healthcare plans may not assert contested requests in a claim as justification for not paying uncontested portions of that same claim. Health & Safety Code § 1348.6(a); 1371.37. 

      In the "historical and statutory notes" of AB88, the California legislature "finds and declares" that the above AB88 "severe" mental disorders are in fact "treatable", and that inadequate treatment does in fact "cause relapse and untold suffering for individuals . . . and their families." The California legislature further finds that there has been a lack of adequate treatment in our state which has factually "contributed significantly to homelessness . . . and other significant social problems experienced by [these] individuals." The California legislature observed that the failure of private healthcare plans to provide adequate coverage "has resulted in significant increased expenditures for State and Local governments." For these reasons, the State of California enacted AB88 and required that AB88 be followed by all private healthcare plans.

      Violations by healthcare plans of AB88 justifies revocation by the State of California of the offending healthcare plan’s license to continue to do any business in California. Health & Safety Code § 1386.

PLAN’S EXTRACONTRACTUAL DUTIES TO AVOID

CAUSING DEVELOPMENTAL INJURIES

      Every healthcare plan owes a duty of good faith and fair dealing to all enrollees. Sarchett v. Blue Shield (1987) 43 C.3d 1, fn. 1. This includes a duty to investigate every possible basis of coverage. Egan v. Mutual of Omaha Insurance Co. (1979) 24 C.3d 809; Mariscal v. Old Republic Life Insurance Co. (1996) 42 Cal.App.4th 1617, 1623. ["An insurer must liberally construe claims forms and the policy in favor of coverage; exclusions are strictly interpreted against the insurer."]

      This good faith duty to investigate is breached if substantial harm is caused through the unreasonable "denial, delay or modification of healthcare service recommended." Civil Code § 3428. 

      Developmentally disabled children have rights that include treatment "directed toward the achievement of the most independent, productive, and normal lives possible." Welfare & Institutions Code § 4502(a). In relation, a healthcare plan may not use its right to profit in a manner that will "infringe upon the rights of another." Civil Code § 3514. Every person has "the right of protection from bodily . . . harm, from personal insult . . . and from injury to his personal relations." Civil Code § 43. Every entity "is bound . . . to abstain from injuring . . . another, or from infringing upon any of his rights." Civil Code § 1708. This is because, as acknowledged by the California Supreme Court in Egan above, insurers are "vested with a public interest"; in other words, they are quasi-public entities. 

      In the event that you refuse to authorize payment for healthcare deemed medically necessary by treating healthcare providers, thereby slowing what would otherwise be an optimal level of improvement, you could be held accountable for permanently injuring the development rate of this enrollee. 

      Pursuant to Health & Safety Code §§ 1363.5 and 1367.01(b), you are required to provide upon request, and this letter must be deemed such a request, to disclose the Plan’s "guidelines used . . . to determine whether to authorize, modify or delay services" requested. I will provide these guidelines to our treating healthcare providers to determine whether they are inadequate for this particular case. These guidelines are required to be "consistent with sound clinical principles," and must be updated annually. Health & Safety Code §§ 1363.5 and 1367.01(b). 

      Unreasonable delay in payment authorization, thereby injuring optimal development in the life of this enrollee, further violates the law that medical decisions be rendered "by qualified medical providers, unhindered by fiscal and administrative [i.e., red tape] management." Health & Safety Code § 1367(g). Such excessive delay tactics also violate the affirmative duty on the part of healthcare plans to provide "basic healthcare services" such as "preventive and emergency" care. Health & Safety Code §§ 1345(b)(1)-(6) and 1367(I).

      "Emergency" means "medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death." Health & Safety Code § 1799.110(b). Emergency services may be denied only if the Plan reasonably determines that "the enrollee did not require emergency services" and "the enrollee reasonably should have known that an emergency did not exist." Health & Safety Code § 1371.4©. Given the fact that the enclosed healthcare providers conclude that immediate intervention is medically necessary to achieve, and will most likely achieve, optimal development in the life of this enrollee, and given the fact that the undersigned may reasonably rely upon the highly reliable and prestigious medical literature provided by us to you, it appears that this enrollee is currently in an emergent condition. Meaning, immediate payment authorization by you for all of the enclosed recommended interventions will prevent "serious mental disability" in the form of non-improvement in development.

SIMULTANEOUS PETITION FOR INTERNAL APPEAL

      As stated above, every plan must provide for medically necessary care "unhindered by fiscal and administrative management." Health & Safety Code § 1367(g). Your Plan has multiple layers of appeal before one even qualifies for arbitration. These multiple layers of appeal can consume years of time that this enrollee does not have. The amount of time consumption and delay caused by these layers of appeal will forever reverse the optimal ability of this enrollee, had there been immediate payment authorization, to develop into a productive and interactive citizen.

      For this reason, the purpose of this letter is to demand that all of your internal appeal panelists from all contractual layers of appeal meet at one time within 30 days from the date of this letter to review the entirety of this letter and its enclosures. After this is done, the undersigned requests an immediate arbitration within 60 days from the date of this letter to address those portions of this claim that have not been the subject of immediate payment authorization by you. Failure on your part to comply with these conditions during the course of the next 30 and 60 days will be deemed to mean that you have waived your right to arbitrate because of this unreasonable delay. Engalla v. Permanente (1997) 15 C.4th 951; Broughton v. CIGNA (1999) 21 C.4th 1066. 

      The undersigned also refers you to the Illinois federal decision of Wheeler v. Aetna Life Insurance (2003) WL 21789029 (N.D. Ill.); 31 Employee Benefits Cas. 1782, Pens. Plan Guide (CCH) P 23985Q. In this decision, the federal court explains in great detail why health insurance policies should cover sensory (auditory) integration therapy, speech therapy and physical therapy for autistic children. These were the only forms of therapy brought to the attention of this particular court. Please be advised that California courts may rely on unpublished decisions like Wheeler, so long as these decisions originate from other states, as is the case with Wheeler. See, Labrilla v. Farmers Group (2004) 119 Cal.App.4th 1070. 

      I look forward to your immediate response within the next 30 days, which response, if not a complete authorization of that which is requested, must lead to you providing me within the next 30 days thereafter an immediate arbitration date on those claim requests which you contest.

Very truly yours,

[Parent or Guardian’s Name]