FAQ: In light of DOL guidance on the coverage of ABA therapy and mental health parity, must plans cover ABA therapy?

July 9, 2019

There is currently no law federal law that would require a plan to cover ABA therapy. As background, the mental health parity rules generally require that mental health treatment (if it’s offered) must be provided in parity with medical surgical benefits. But mental health parity does not require plans to offer mental health treatment; it simply outlines what must happen if an employer does cover mental health treatment.

So let’s start there: A self-funded plan would likely be allowed to exclude mental health treatment altogether. They could also choose to exclude treatment for autism or simply for ABA therapy. However, some state laws mandate autism treatment and ABA therapy. So fully insured plans might be required to provide the therapy under state law.

Sometimes, self-funded plans do have to follow the state benchmark when it comes to essential health benefits (which are the benefits that must be covered under small plan insurance). This happens because the benchmarks are also used to identify the essential health benefits for purposes of determining whether lifetime or annual limits can be imposed on certain treatment. However, currently, only the state of Ohio and the District of Columbia seem to include ABA therapy as an essential health benefit.

This question has recently come up as some practitioners and employers are familiar with the DOL FAQ that discusses ABA therapy. However, it’s important to note that the DOL did not actually opine on whether or not ABA therapy must be covered. Instead, they answered the question of a hypothetical situation where an employer tries to deny coverage for ABA therapy as an experimental treatment. The problem is that ABA therapy is not considered experimental by professional guidelines. So the FAQ was prohibiting the hypothetical plan from excluding certain mental health treatments as “experimental” when there is not support for that under professional/industry guidelines. (See Q2 of the FAQ: https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-39-proposed.pdf)

So in summary, plans are not necessarily required to offer ABA therapy sessions and can likely exclude them or seek to limit those sessions to a certain number unless they are subject to a state insurance mandate that requires the therapy. Keep in mind, though, that autism is an issue with increasing visibility; so it’s likely that we’ll see more guidance/regulations on it as parents and medical practitioners continue their advocacy.