County prosecutor fights for insurance coverage for autistic daughter

Posted on November 27, 2010.

Author: MELODY MCDONALD

FORT WORTH — Leticia Martinez knew early on that something was not right with her baby girl.

Analisa wouldn't make eye contact, didn't respond when her name was called and showed no interest in her twin brother.

"It was like she was in her own world," Martinez said. "She didn't want to be close to anyone."

In February 2009, when Analisa was 21/2 years old, a doctor diagnosed her with autism spectrum disorder. The doctor prescribed 25 to 40 hours a week of applied behavior analysis, a type of intensive therapy used to treat autism.

Martinez and her husband, Jeffrey Cureton, said they noticed improvements in Analisa's condition almost immediately.

And almost immediately, they had problems with their insurance coverage.

At first, the insurance company wrongly denied the claims. And then, after that got straightened out, Tarrant County — Martinez's employer — switched to a self-funded insurance plan that doesn't cover ABA.

Since then, Martinez, a prosecutor with the Tarrant County district attorney's office, and Cureton, a federal magistrate judge, have been fighting to get their insurance to cover ABA and close a loophole in the law. Texas law requires private, fully funded insurance plans to cover ABA, but not self-funded plans, which are becoming more popular with county, state and federal entities because they are more cost-effective.

"We're talking about the health of a child, and that is not something that should be expendable," Martinez said.

Experts say stories like Martinez's are not uncommon in the convoluted, confusing world of health insurance. And as more companies go to self-funded plans, clients are discovering that some treatments and medications once paid for are no longer covered.

"It is not uncommon in the healthcare setting for a carrier, who has privilege and opportunity, to change what they offer," said Frank N. Darras, a nationally recognized insurance attorney. "They can do what they want. Unless it's a health-mandated state benefit, they truly are above the law. … Legally, it may be correct, but these are ugly facts. This county is going to have one black eye in the community."

In the past, Darras said, he has seen self-funded plans exclude proton treatment for prostate cancer and high-dose chemotherapy (with a bone marrow transplant) for breast cancer on the grounds that they're "experimental" or "investigational."

Coverage for autism treatment is the hot issue in the insurance industry, which is why there is a nationwide movement to persuade lawmakers to require insurers to pay for ABA, he said.

Autism strikes 1 in 110 children, according to the Centers for Disease Control and Prevention.

"The cry for coverage is loud and that drumbeat is getting louder and louder," he said.

'Do we move forward?'

Tarrant County commissioners have publicly stated that they will try to help Martinez, but it's unclear just what that means.

The county is part of the Public Employee Benefits Cooperative, which collectively administers a self-funded health insurance plan for Tarrant, Dallas, Denton and Parker counties and the North Texas Tollway Authority.

Tina Glenn, Tarrant County's human resources director and a PEBC board member, said amending the plan to cover ABA would require approval from the PEBC board and all of its employer groups, which means that the four county commissioners' courts and the NTTA would all have to sign off.

"I think Letty is a wonderful advocate for her child," Glenn said. "We all admire her for that. The difficulty is that the plan is what it is. The question is, 'How do we move forward? Do we move forward?'"

Moving forward undoubtedly would cost the county more money. ABA ranges from $3,000 to $5,000 a month, with Martinez and her husband paying about $3,200 a month out of pocket for Analisa's therapy.

"We pay our premiums just like anyone else," Martinez said. "I'm not asking for a handout. I'm just saying that it is wrong that a child is diagnosed with an illness and the most effective treatment is not being covered."

Martinez's supervisor, Assistant District Attorney Richard Alpert, said he has seen the toll the fight has had on her.

"The stress associated with being a prosecutor is bad enough without adding the daily stress of not knowing if you, as a public employee, can afford to get your child the treatment she needs," Alpert said.

'It was just deflating'

When Analisa was initially diagnosed in 2009, Martinez said, the family was covered under an HMO, fully funded insurance plan offered by Tarrant County. At the time, Cureton was in a private practice that didn't offer insurance.

Martinez said the insurance company initially denied Analisa's claims for ABA, but quickly paid after she pointed out the state legislature passed a law in 2007, mandating fully funded insurance companies cover ABA therapy for autistic children.

"They called me and said the denial of coverage was an error, and so I was able to get coverage for 2009," she said.

At first, Analisa received in-home therapy from a board certified behavior analyst and, later, began receiving therapy three times a week at the Texas Star Academy in Grapevine.

"She started verbalizing things, her eye contact got better, and she started interacting with her brother," Cureton said.

By the end of 2009, Martinez said, she learned Tarrant County was dropping the HMO option for its 2010 health plan and going solely to self-funded insurance, which basically means employees pay premiums to the county, which contracts with PEBC to design and administer its health plan.

"I wasn't all too concerned because I knew the law said it had to be covered," she said. "I looked at what the changes were going to be and nothing indicated there was going to be a change."

But when Martinez contacted the third-party administrators of the new plan to begin pre-certification, she was told there was no coverage for ABA.

"It was just deflating," she said.

Appeal denied

Undeterred, Martinez appealed, pointing out that autism is classified as a serious mental illness, that ABA is medically necessary and that Texas law says it has to be covered.

But the third-party administrators, HealthSmart and Managed Health Network, denied her appeal, saying self-funded plans are not subject to state law and ABA is considered "educational," which is excluded from her plan. In February, Martinez appealed to PEBC Executive Director Diana Kongevick, who sent Martinez a letter four months later upholding the denial.

"No medical plan covers everything," Kongevick said in a recent phone interview. "That doesn't mean one thing is more important than another. But we couldn't afford in this country to have everything covered, period. It is just not going to happen."

Meanwhile, in the midst of the appeals, Cureton was appointed a federal magistrate judge for the Northern District of Texas — a position that also offered a self-funded insurance plan but no coverage for ABA.

"I was surprised when I got this appointment that ABA was not covered under any of the federal health benefit plans," he said.

Deeia Beck, executive director of the Office of Public Insurance Counsel, a state advocate for insurance consumers, is among those who believe that self-funded insurance plans should also cover the therapy.

"People often believe state plans have better coverage than private plans and this is an example where, clearly, this is not the case," she said. "ABA therapy has been shown to be extremely effective and that is why it's mandated. It distresses me that other plans do not include that mandate."

'The rug was pulled out'

In September, Martinez made a presentation before Tarrant County's Risk Management Board, which oversees the county's self-insured programs. Afterward, the board members indicated that they would ask Tarrant County commissioners to consider reimbursing the couple for their 2010 out-of-pocket expenses, but were recommending next year's plan clearly state that ABA is not covered.

"At the same time we thought we were making this good progress in 2010, the rug was pulled out from under us for 2011," Cureton said.

In mid-October, Martinez went before the Tarrant County Commissioners' Court and made an impassioned plea in support of coverage for ABA.

Afterward, many of the commissioners seemed willing to help.

"I would like to see Tarrant County actively advocate the PEBC to look at the issue of whether or not this is a medically appropriate therapy," Commissioner Roy Brooks said during the meeting. "That is the issue as far as I'm concerned — not how much it costs or not who else is doing it, the issue is whether or not it is a medically appropriate therapy that treats a medically recognized disease. If the answer to that question is 'yes,' we ought to cover it."

Brooks said he stands by his comments: "We're between a rock and a hard place and so is the employee, and we just have to try and figure this out."

Martinez is scheduled to address the PEBC board Tuesday.

Analisa, meanwhile, continues to make progress with ABA. Tantrums are rare. She listens and communicates better. She is bonding with her parents and playing with her twin brother.

"Those things were virtually nonexistent in 2009," Cureton said.

And while the fight is exhausting, the couple said their daughter's continued improvement drives them. They have consulted with an attorney and said they will exhaust all avenues to protect Analisa's health.

"The whole thing has been a nightmare," Martinez said. "But the irony is that all of this mess is outshined by the fact that Analisa is doing so well. … I can't see myself walking away from it."