I stand corrected

I have stated in recent posts that I don’t think it is appropriate for the government to declare any specific therapy as “medically necessary” by law. So much so that I wondered if there was examples of it happening. Well it does.

Consider House Resolution, H.R. 2413, the Autism Treatment Acceleration Act of 2009. Not a law, but a potential law (a bill).

3) TREATMENT OF AUTISM SPECTRUM DISORDERS- The term `treatment of autism spectrum disorders’ means the following care prescribed, provided, or ordered for an individual diagnosed with an autism spectrum disorder by a physician, psychologist, or other qualified professional who determines the care to be medically necessary:

`(A) Medications prescribed by a physician and any
health-related services necessary to determine the
need or effectiveness of the medications.
`(B) Occupational therapy, physical therapy, and
speech-language pathology.
`(C) Direct or consultative services provided by a
psychiatrist or psychologist.
`(D) Professional, counseling, and guidance services
and treatment programs, including applied behavior
analysis and other structured behavioral programs. In
this subparagraph, the term `applied behavior
analysis’ means the design, implementation and
evaluation of environmental modifications, using
behavioral stimuli and consequences, to produce
socially significant improvement in human behavior,
including the use of direct observation, measurement,
and functional analysis of the relationship between
environment and behavior.
`(E) Augmentative communication devices and other
assistive technology devices.’.

There it is–people trying to make a law to define some of what must be considered medically necessary for “an individual diagnosed with an autism spectrum disorder”.

I don’t think people should codify into law what is included in “medically necessary” for any condition. I am open to hearing dissenting views, especially from medical doctors.

Luckily the bill presents one reason why I don’t like this:

(13) Effective health care, treatment , and services for individuals with autism spectrum disorders depends upon a continuous exchange among researchers and caregivers. Evidence-based and promising autism practices should move quickly into communities, allowing individuals with autism spectrum disorders and their families to benefit from the newest research and enabling researchers to learn from the life experiences of the people whom their work most directly affects.

This is exactly why I object to codifying “medically necessary” treatments. How are effective new treatments supposed to move quickly into communities if we have a small subset that is declared medically necessary by law? How does a new treatment get into communities? Passage of a new law? The exchange should be as noted above–between researchers and caregivers (with practitioners in there as well). The process should not include legislators, in my opinion.

Imagine if secretin had been legally defined as “medically necessary”. We would now be in the situation where secretin is not considered medically necessary by the medical community, but it could be still legally defined as such.

It gets worse. The bill is being sold using the cure-them-because-they-cost-so-much mentality. From the “findings” section of the bill:

(8) The Harvard School of Public Health reported that the cost of caring for and treating individuals with autism spectrum disorders in the United States is more than $35,000,000,000 annually (an estimated $3,200,000 over an individual’s lifetime).

Others have taken apart the “cost of autism” argument far better than I can.

There is a lot more that can be (and I am sure will be) picked apart in this bill. I will bring up just one more point, again from the Findings section:

(6) Individuals with autism spectrum disorders often need assistance in the areas of comprehensive early intervention, communication, health, recreation, job training, employment, housing, transportation, and early, primary, and secondary education. With access to, and assistance with, these types of services and supports, individuals with autism spectrum disorders can live rich, full, and productive lives. Greater coordination and streamlining within the service delivery system will enable individuals with autism spectrum disorders and their families to access assistance from all sectors throughout an individual’s lifespan.

It strikes me very odd, and in fact, sad, that they would mention the value of recreation, job training, employment, housing, transportation and education, but not act to improve the way the US handles those issues.

But, I have drifted off topic. The main point is, yes, there is an effort in the US legislature to legally define ABA as “medically necessary”.

I did a search on thomas.gov for bills in the 111th congress that include the phrase “medically necessary’. I got 56 hits for bills in various stages of becoming law. Here are just a few examples (including one about autism).

House Resolution (H.R.) 995 states that annual mamography or MRI can not be denied as not medically necessary.

H.R. 870 is the “Medicare Medically Necessary Dental Care Act of 2009”

A bill that is directly related to autism: H.R. 1600, “To amend title 10, United States Code, to provide for the treatment of autism under TRICARE” states:

(g)(1) For purposes of subsection (a)(18), treatment of autism spectrum disorders shall be provided if a health care professional determines that the treatment is medically necessary . Such treatment shall include the following:

`(A) Habilitative or rehabilitative care.

`(B) Pharmaceutical agents.

`(C) Psychiatric care.

`(D) Psychological care.

`(E) Speech therapy.

`(F) Occupational therapy.

`(G) Physical therapy.

`(H) Group therapy, if a health care professional determines it necessary to develop, maintain, or restore the skills of the beneficiary.

`(I) Any other care or treatment that a health care professional determines medically necessary .

`(2) Beneficiaries under the age of five who have developmental delays and are considered at-risk for autism may not be denied access to treatment described by paragraph (1) if a health care professional determines that the treatment is medically necessary .

Talk about a wide open door. Any health care practitioner can declare any “care or treatment” to be medically necessary, and the insurance has to pay for it.

This whole post is about how I’ve been wrong before, but I can not see that bill passing without changing that giant loophole.

Again, I don’t think the government should be in the position of defining what is medically necessary. To me it is like legally defining pi to be 3.0000.

However, neither should insurance companies be the sole arbiters of what is and is not medically necessary. What do we do when an insurance company denies claims based on “lack of medical necessity”? One can appeal, although many do not know that. Usually insurance companies have internal appeals processes. I heard a lawyer once state that he had fewer appeals to bring a case to the supreme court than to get through an insurance company’s appeal process.

So, where does this leave us? First, yes, there is an effort to create laws which specifically call for ABA to be defined as medically necessary. Second, and more general, we have a system where medical necessity can and is defined in some cases by law.

In an ideal world, laws do not define medical necessity. We don’t live in an ideal world. What do we do?