Can a group health plan exclude coverage for Applied Behavior Analysis therapy related to treatment of autism spectrum disorder?

It is not recommended that a group health plan exclude coverage for Applied Behavior Analysis (ABA) therapy related to the treatment of autism spectrum disorder (ASD). The recommendation applies to both fully insured and self-insured plans. Please see considerations below.

In its recent 2022 MHPAEA Report to Congress, the DOL stated that ASD is a developmental disorder and ABA is a primary treatment for the disorder. As such, the DOL stated their concern over an ABA coverage exclusion. The report detailed cases in which the DOL requested a comparative analysis of the exclusion and found the plans to be noncompliant. As a result of the findings, the DOL has established a national enforcement working group focused on the coverage of ASD.

Most states mandate certain coverage related to ASD, and policies governed by that state must provide the required coverage for ASD, which generally includes ABA.

A self-insured plan is generally not subject to state insurance mandates. However, a non-grandfathered group health plan is subject to the federal prohibition on annual and lifetime maximums of essential health benefits. To administer this federal mandate, the plan must identify a state benchmark plan to which they will match for the purpose of defining essential health benefits. A plan should provide the same coverage as the benchmark and should not place a greater restriction on a benefit identified as an essential health benefit. (Many states include ABA therapy as an essential health benefit.)

Finally, there is also case law establishing the exclusion of ABA as a possible violation of the Americans with Disabilities Act and/or the Mental Health Parity and Addiction Equity Act.

If an employer wishes to exclude coverage for ABA therapy, we recommend working with outside counsel and documenting the comparative analysis for the exclusion.