*1 Dist., B232338. Second Three. Div. [No. Apr. 2014.] al., CONSUMER WATCHDOG et Plaintiffs and v. Appellants, al., DEPARTMENT OF MANAGED HEALTH CARE et Defendants Respondents.
Counsel Rosenfield, Harvey Pamela M. Pressley, Jerry Strumwasser Flanagan; Woocher, Woocher, Fredric D. Grossman F. Kahr for Beverly and Byron Plaintiffs and Appellants. Sommers,
Law Office of P. P. and Una Lee Jost for Stephen Stephen Sommers California Association for Behavior as Curiae behalf Analysis Amicus on Plaintiffs and Appellants. Unumb;
Daniel R. Scholer and Robert Barnes for Autism Kaye Speaks Autism Deserves as Amici Curiae on behalf of Plaintiffs and Equal Coverage Appellants. Harris, Brereton; Pearson, Denton, Kamala D. L. Drew A. Debra
Holly General, General, P. Leslie Attorney Assistant Attorney Julie Weng-Gutierrez, General, for Defendants Attorneys and Carmen D. McElroy Snuggs, Deputy and Respondents. Insurance as Amicus Sturdevant for Department
Dave Jones Patricia Curiae, of the Court of Appeal. upon request Opinion
KITCHING, J. an intensive form analysis (ABA) behavior Applied treating symptoms which has had documented success therapy children. a While can be licensed by autism in ABA young performed or indi- by it is often psychologist, performed, supervised, physician (BACB). Analyst vidual certified Behavior Certification Board by private Health Managed The issue raised is whether Department case law, (DMHC) is to within its jurisdiction Care direct health required, BACB- for ABA when coverage provided, supervised, provide contends that it certified who are not otherwise licensed. DMHC therapists cover someone only ABA when is may require plans therapy Plaintiff, Watchdog,1 licensed to medicine or Consumer psychology. are, fact, nonlicensed, BACB-certified, but ABA argues therapists2 the medical recognized by community proper providers supervisors Thus, be ABA their services should covered by plans. therapy. writ DMHC to sought a of mandate directing respond plan member denial of challenging coverage therapy grievances cover a BACB-certified such by ordering provided by therapist trial the petition. court denied therapy. enacted authorizes Legislature
We conclude that statute recently under state laws licensing providers therapy perform and, therefore, can denial of longer no uphold plan’s *6 is not licensed. We also hold that the basis that BACB-certified provider a DMHC challenge to Watchdog’s trial court resolved Consumer correctly (Gov. as Procedure Act 11340 violative of Administrative policy 1 Batra, well, M.D. As Dr. Batra’s plaintiff There is an individual in case Anshu Watchdog, made references to Consumer arguments are not distinct those Dr. include Batra. 2 there providers practice psychology; are also medicine Some BACB-certified licensed such otherwise-licensed dispute requires plans therapy provided no that DMHC cover is Therefore, we refer providers. opinion, for the remainder of this when BACB-certified referring providers who are not providers, we are to those BACB-certified psychology. medicine or otherwise licensed et in judgment reversed seq.). part modified to DMHC from enjoin denial upholding of ABA services for the plan’s where basis denial is that a BACB-certified is not In all provider licensed. other respects judgment affirmed.
FACTUAL AND PROCEDURAL BACKGROUND In addition to the factual discussing background procedural instant litigation, we also consider relevant Addi- legislative framework. we discuss tionally, after the statutory developments which occurred trial court issued its judgment.
1. Autism and ABA “According to a Blue California Ribbon report Legislative Autism, Commission on neurologi- disorders are spectrum complex ‘[a]utism cal disorders of that onset in These development childhood.’ early [Citation.] disorders, autism, which include full ‘affect spectrum functioning difficulties, brain to cause mild to severe commu- including delays, language skills, nication limited problems, social and other repetitive unusual behaviors.’ autism disorders affect an esti- Nationally, spectrum [Citation.] racial, one ethnic, mated 150 children across all socioeconomic every Plan, (Arce v. Kaiser backgrounds. Foundation Health Inc. [Citation.]” 545], omitted.) fn. Amici Cal.App.4th curiae Cal.Rptr.3d that, Autism and Autism Speaks Deserves under Equal Coverage represent data, more current rate for autism is one prevalence approximately 88 children. every restores, is a form of behavioral health which treatment develops
to the maximum extent of an individual with practicable, functioning 1374.73, (Health (c)(1).) autism. & Saf. subd. Numerous studies indicate ABA is most effective treatment known autistic children. for also Studies demonstrate ABA has results. is understood lasting Autism to be a brain-based neurological disorder. ABA can create new brain therapy autism; connections in a child with are these new connections to be con- trasted with the abnormal connections caused autism. in this Neither party case that ABA is an disputes effective medical treatment for many young autistic children. is a It 26 to time-intensive treatment. is often 40 hours prescribed week. While can be no doubt that there the treatment
per providing established, modified, child any ABA to autistic must be and supervised by *7 ABA, in the evidence in this case that actual qualified expert indicates child A a services be delivery may nonexpert. performed technician need a frontline behavioral the BACB suggests publication in received training has subsequently be a school who only high graduate (BACB, Guidelines: and demonstrated competency. basic ABA procedures Autism Treatment for Coverage Analysis Health Plan Behavior Applied ABA, 1.1, 2012) and similar (ver. 27.) It appears Disorder p. Spectrum treatments in among medical behavior are somewhat therapies, unique created, modified, and must be supervised While treatment respect. plan the services. actually a a deliver may by professional, paraprofessional often cited as The landmark relatively study The field of new. in autistic children was first to establish effectiveness of ABA published Intel- Treatment and Normal Educational and (Lovaas, in 1987. Behavioral 55 J. (1987) Consulting Children Functioning Young lectual Autistic BACB, a to grant Clinical established Psychol. organization private (not was national credentials to frontline professionals providers), of Apr. established 23, 1998. (<http://www.bacb.com/index.php?page=l> [as ABA, 2014].) sought coverage When health members first plan plan denials were on the basis that ABA was upheld experimental. Independent a did not ABA as uniformly recognize medically medical review3 panels treatment necessary until 2007. (1)
The BACB has three levels of certification: Board Certified Behavior field, a Analyst in a related 225 hours of degree graduate master’s (requires and coursework in behavior substantial analysis, experience, supervised examination); (2) Analyst an Board Certified Assistant Behavior passing course- 135 hours’ (requires degree, undergraduate graduate bachelor’s work and in behavior lesser amount of analysis, experience, examination); Certified Behavior passing Analyst-Doctoral Board a Board Certified certification a doctorate (requires Analyst Behavior degree field). in related Act Parity
2. The Knox-KeeneAct Mental Health 1975, In Care enacted the Knox-Keene Health Service Plan Legislature (Knox-Keene). (Health Act of known as the Knox-Keene Act informally Knox-Keene, “has Saf. et Under seq.) charge § service and the plans execution of laws of this state to health care relating to, health care service business but limited those laws including, to ensure that health care service directing department plans provide with access to health care services and protect enrollees quality promote Code, 1341, (Health (a).) the interests of & Saf. subd. enrollees.” all health Knox-Keene directs “basic care services” provide (i).) & Saf. (Health to their subscribers and enrollees. subd. independent We later process opinion. discuss the medical review in this *8 services, Basic care health services are defined to include physician hospital services, services, services, inpatient diagnostic laboratory home health Code, 1345, health preventive (Health services. & Saf. DMHC’s (b).) subd. § director is authorized to the define health care required basic scope Code, 1367, services. & (Health Saf. (i).) subd. home health By regulation, § (as services of basic health care “where services) are defined to include part health the as medically appropriate, services at home of an enrollee 28, (Cal. or directed tit. prescribed . . . .” Code physician Regs., 1300.67, (e).) subd. a home agree § that ABA can constitute parties service; health in this case dispute identity proper concerns ABA provider.
Licensure requirements Safety are addressed in Health and Knox-Keene. 1367, Code (d) section “ready subdivision shall furnish provides plan referral of defines a other as Knox-Keene patients providers” appropriate. as health or other “provider” “any professional person, organization, facility, or institution care person licensed state to or furnish health deliver 1345, (Health services.” & Saf. Code (i).) Safety subd. Health and § 1367, section (b) subdivision provides that “[personnel employed under contract to the be shall licensed or certified their plan respective board or where Subdivi- agency, licensure certification is law.” required by (f) sion and utilize allied health requires plan “employ manpower with services to the extent law and consistent furnishing permitted by short, good medical In licensed practice.” Knox-Keene use of requires individuals when a license is law. required by
In enacted section Health Code Legislature Safety 1374.72, (MHPA). as the commonly referred to Mental Health Act Parity that, That statute health July every provid provides beginning plan medical or also ing coverage must hospital, surgical coverage- “provide necessary treatment of severe mental illnesses diagnosis medically child” and of emotional of a person any age, serious disturbances Code, §1374.72, (Health (a), statute. & Saf. subd. italics specified ” “ added.) The statute itemizes the ‘severe mental illnesses’ specifically covered, must be autism.” disorder or including “[pjervasive developmental 1374.72, Thus, (Health all (d)(7).) & Saf. subd. MHPA requires Knox-Keene cover the neces “medically under plans providing the term treatment” of autism. The MHPA does define sary specifically treatment,” state that certain benefits— necessary although does “medically services, services, services, outpatient hospital inpatient partial hospital (if be drugs otherwise covers drugs)—must prescription prescription Code, 1374.72, (b).) (Health Saf. subd. provided.
3. Resolution Grievances care, the to ‘ensure’ access quality “As of its mandate part legislative system a bifurcated grievance is establish Department required (California review grievances.” and ‘thoroughly’ patient ‘expeditiously’ Council, Care Health Department Managed Health Care Inc. v. 684, 215].) independent 161 Cal.App.4th Cal.Rptr.3d care health (IMR) resolves grievance system “disputed medical review Code, 1374.30.) which we refer (Health system, services.” & Saf. The other § including grievances, to as the resolves all other grievance” system, “standard coverage disputes. IMR, an concern a health
To be resolved under a must grievance “disputed service,” defined is any “eligible coverage care which service denied, has under a health service contract that been plan care payment modified, the a . . due to a that finding decision of . delayed by plan A health medically necessary. regarding service is not decision disputed not coverage care relates to the of medicine and is service Code, 1374.30, (Health (b), added.) decision.” & Saf. subd. italics § IMR, When is to an medical independent resolved grievance pursuant reviewers) reviewer whether health care service is (or determines the disputed based and such medically patient needs necessary specific evidence, information as nationally recognized pro- scientific peer-reviewed standards, fessional of medical generally practice. standards accepted Code, 1374.33, (Health (b).) & subd. A must promptly Saf. plan implement § 1374.34, Code, (Health If the (a).) decision of an IMR. & Saf. subd. § IMR favor shall decision is in either patient, plan promptly authorize the or the enrollee for services services reimburse provider (Ibid.) rendered. already contrast, an administrative review
In the standard grievance process denies or services on the basis conducted DMHC. When a delays plan clearly are not covered under the plan, services (Health & coverage. the contract exclude provisions purportedly specify Code, 1368, seek (a)(5).) may Saf. subd. If the patient disagrees, patient § (Health review the DMHC means of a standard & Saf. grievance. 1368, record and determines (b)(1)(A).) subd. The DMHC reviews the fact, is, (Health whether the service covered. Saf. challenged (b)(5).) subd. 4. DMHC’s Practice ABA Grievances—The March 2009 Regarding
Memo issues—i.e., ABA could both whether Plan denials of involve coverage and whether is covered plan. ABA is medically necessary when the Initially, denials appeared raise both DMHC chose to questions, send above, ABA grievances to IMR. As noted some of the IMR early decisions on ABA upheld on the plans’ basis that ABA was denials and did experimental constitute yet the standard of care. late By however, IMR decisions regarding were resolved favor consistently of its medical necessity.
As ABA became more medically focused their denials on accepted, plans coverage grounds. For some denied example, for ABA *10 because the therapists did not plans coverage for provide mental health services an provided by unlicensed individual. Other plans denied for ABA coverage based on an exclusion for treatment which any could safely be effectively provided by unlicensed individual. 9, 2009,
On March DMHC issued a memorandum to health plans regard- ing Plan Performance “Improving to Address Autism Disorders” Spectrum (March memo). The memorandum was not adopted pursuant Administrative Procedure Act. other Among the March 2009 memo things, reconfirmed that must plans all basic health care services required “[c]over [Knox-Keene], under including speech, physical, occupational therapies [autism], for with persons when those health care are medically services necessary.” memo goes on to state that mental must plans “[p]rovide health services only through who are or certified in providers licensed Thus, accordance with California applicable law.” the March memo specifically to be licensed if their to be required providers services were covered by plans. that,
With the March respect grievances, 2009 memo states “[t]he DMHC will make a determination initially whether the service being sought is a covered health care service. If that determination is made in the either; affirmative, then claim that a service any experimental or, (2) investigational; is not medically to treat the necessary patient’s condition, will be referred IMR for under In other California law.” words, the March 2009 memo stated all services for grievances regarding autism both of issues raising would be resolved types through first standard grievance and would be sent to IMR if the procedure only coverage was dispute resolved favor of the patient.
5. The Instant Action 30, 2009, On June Consumer writ of Watchdog brought for petition mandate and DMHC and its director complaint against in her official capacity DMHC). (collectively Watchdog’s Consumer first amended operative petition ais violation of the MHPA alleges “for health to refuse to cover any omitted.) (Italics necessary.” deemed medically for autism that is treatment imposed the licensing requirement further alleges Consumer coverage any the law requires because March memo is unsupported, a licensed autism “when it is treatment for necessary medically organization, certified a professional that is provider, provider (Italics or certified provider.” are a licensed individuals who omitted.) Ruling and the Trial Court’s
6. Briefing, Argument, Watchdog argued plans In of its petition complaint, support In medically necessary. opposition, ABA in all cases where it is must provide licensure as the bright-line “set forth state DMHC argued Legislature ar- of health services.” consumer regarding practitioners protection not, order with Knox-Keene’s licensure requirements, it could consistent gued an unlicensed ABA when administered by provide certification certified BACB—a private including therapists provider, board. *11 could, itself, obliga- a licensing
The trial court concluded DMHC impose to ensure that health care plans provide tion as of its duties general part of enrollees. As health care and to the interests services quality protect children, autistic the court of ABA work with intensively fragile providers to be subject ABA reasonably determined DMHC could require providers clear, Thus, there was no the court concluded state controls. licensing quality ABA when for DMHC to order duty provided ministerial The court observed It therefore denied the writ petition. therapists.4 not the courts. was “with the Watchdog’s remedy Legislature,” resolution grievance of action DMHC’s challenging As to causes memo was invalid the trial court concluded March 2009 procedures, Act in the Administrative Procedure because DMHC failed to with comply However, held DMHC could continue the court regulations. adopting an ABA before sending exercise its discretion to resolve disputes to IMR. grievance to discontinue imple- directing
The trial court entered judgment all The court denied the March memo. enforcing or menting, utilizing other relief. correct, adopt the court’s argues court’s result was does While DMHC the trial that was not suggest impose requirement a licensure DMHC does not it could conclusion. Plan, (Kaiser Zingale (2002) Health Inc. v. Foundation or the MHPA.
present in Knox-Keene 1018, 1024, 741].) Cal.Rptr.2d Cal.App.4th 1027 [121
7. The New Statute 9, 2011,
On October enacted Health and Code Legislature Safety (the section statute). 1374.73 The statute specifically governs MHPA, treatment. Like the the ABA statute with certain exceptions, applies, health medical or As of every plan providing coverage. hospital, surgical 1, 2012, date, the ABA July statute’s those are operative health “provide coverage behavioral treatment for developmen pervasive Code, 1374.73, tal (Health disorder or autism.” & Saf. italics (a)(1), subd. § added.) “Behavioral health treatment” defined to include various treatment 1374.73, programs, (Health includes ABA. & Saf. explicitly (c)(1).) subd. To constitute behavioral health treatment which must be covered, the (1) criteria must be met: must be following treatment pre scribed (2) licensed must be treatment physician psychologist; under a treatment service autism plan prescribed by “qualified and be administered either a autism service provider,” qualified provider, or a autism service “qualified autism service professional” “qualified (3) autism service paraprofessional” supervised by qualified provider; treatment must have measurable at six plan goals every be reviewed least (4) months autism service the treatment qualified provider; must not be (Health used for or educational services. & Saf. daycare 1374.73, (c)(l)(A)-(D).) subd. A autism service is defined as a either “qualified provider” person (as licensed under California law a physician, psychologist, occupational or one of several other entimerated who therapist, designs, professionals) *12 or treatment for disorder or supervises provides pervasive developmental Code, 1374.73, (Health (c)(3)(B)); (2) autism & Saf. subd. “certified by or § a national such as the and who entity, designs, supervises, [BACB] (Health treatment for or autism” & disorder provides pervasive developmental Code, 1374.73, (c)(3)(A)). Saf. subd. § defined
A “as anyone autism service is as “qualified professional” approved a vendor a California center to services as an Associate regional provide Assistant, Behav- Behavior Behavior Behavior Analyst, Analyst, Management Consultant, & (Health ior or Behavior Management Management Program.” Code, include, (c)(4)(D).) Saf. subd. regula- 1374.73. These categories § tion, Ana- individuals certified the BACB as “Board Certified Behavior (Cal. and “Board Certified Associate Behavior Code Analysts.”5 Regs., lysts” 17, 54342, (a)(8) (11).) tit. subd. § in categories degree experience also include individuals with a bachelor’s and certain 54342, (a)(12).) (Cal. Regs.,
ABA even Code tit. subd. without BACB certification. § unlicensed defined as “an
A autism service “qualified paraprofessional” education, and training, experi- uncertified individual” who has adequate Code, ence, (Health & Saf. certified autism service provider. by qualified 1374.73, (c)(5).) subd. § statute, short, they all health to the subject
In with respect plans treatment for autistic children when provided, are to cover ABA required Thus, the ABA a BACB-certified statute provides supervised, therapist. action, and in the instant Watchdog the relief Consumer precisely sought by does not otherwise.6 argue However, health from the three are plans specifically exempted types (2) in the Medi-Cal (1) of the ABA statute: health obligations plans program; entered (3) health in the Families health Healthy Program;7 plans plans (PERS). (Health & Saf. into with the Public Retirement System Employees’ Code, 1374.73, Medi-Cal are also (d).) subd. As health in the program plans § MHPA, are, effect, from the there two of health types plans exempt PERS) that are of the (Healthy Families subject requirements MHPA but not the of the ABA statute. requirements terms, be construed to
By its shall “[n]othing statute] [the 1374.72”—i.e., limit the services under Section obligation provide 1374.73, (Health (e).) MHPA. & Saf. subd. ON APPEAL
ISSUES While of this history framework applicable legislative procedural case are somewhat are relatively issues complex, presented appeal (1) moot in Watchdog’s light Is Consumer straightforward: appeal (2) filed between the date of ABA statute? With grievances respect statute, and the date of the ABA Consumer Watchdog’s petition operative should the trial court have DMHC to direct provide are the duties with ABA from BACB-certified What DMHC’s providers? 2017, and, extended, January repealed if inoperative The ABA statute becomes 1374.73, (Health (g).) as of such date. & Saf. subd. *13 12694.1, Healthy in the Families Pursuant to Insurance Code section subscribers enrolled 2013, January Program begin program were to to to the Medi-Cal no sooner than transition Healthy Program no than the and the Families was to cease to enroll new subscribers sooner 12694.1, (a) (f).) (Ins. Code begins. date the transition subds. Welfare and Institutions § Health Services to prescribes phases Department section 14005.27 four for the State (See Healthy Program program. to the Medi-Cal Welf. transition individuals from Families 14005.27, (e)(1).) begin was to no earlier than & Inst. subd. Phase transition 14005.27, (Id., (e)(1)(D).) September parties subd. The have not advised this court 2013. of the current status of the transition. for ABA respect grievances therapists provided in enrollees from ABA statute? plans exempted March additional issues are also raised with following respect (5) Did the trial 2009 memo: Is DMHC’s and cross-appeal untimely? memo court err in to direct DMHC to return to its refusing pre-March procedures?
DISCUSSION 1. Is Available Only Prospective Injunctive Relief we Because it the issues before us in this directly appeal, impacts properly and must be mindful of the Watchdog’s petition limitations of Consumer the next As we discuss more complaint. thoroughly part, relief, of writ of means Watchdog’s sought only pleading prospective mandate, directing an order relief. It injunction declaratory sought DMHC to in a certain and to cease grievances way implementing respond closed grievances. March 2009 memo. It no relief with sought respect Moreover, a defendant. No named DMHC as only petition complaint named, that seeks insurance is and this case is not a class action plan denied ABA services. compensation wrongfully defendant, Watchdog the relief Consumer Because DMHC is only a writ or sought overbroad. Consumer sought fundamentally Watchdog coverage ordering DMHC to to a injunction directing grievance by respond necessary for ABA where ABA was medically court, we, could nor the trial
a licensed or certified But neither professional. case in which every for ABA in mandating coverage issue blanket decision the health opportu- it is without first medically necessary allowing However, no to be heard on whether their exclusions nity coverage apply. action, at issue and no exclusion is health is a defendant in this policy Instead, determina- DMHC’s challenges this case. Consumer Watchdog solely aby health services rendered tion that is not for mental coverage required under California law. who is not licensed provider Watchdog’s complaint We therefore must construe Consumer petition coverage a denial of an order DMHC from seeking enjoining upholding a BACB-certified ABA treatment medically necessary performed ground where the denial is based on provider plan’s law. As under when the is not licensed provider California next, did not reopen we because Consumer request explain only direct can might operate closed relief we grievances, any injunctive prospectively.
877 2. Past Grievances Watchdog Consumer Did Not Seek Relief for statute, briefing enactment of the ABA we additional Following requested whether the issues raised on were moot in concerning from parties appeal of the action. In DMHC maintained the was light legislative response, appeal moot, relief, which citing and operative petition complaint’s prayer seeks relief’ with to DMHC’s only responses “prospective respect “future enrollee Consumer this court grievances.” Conversely, Watchdog argued should direct the trial court that have concerning to issue relief grievances been resolved DMHC. We with DMHC’s already agree position Consumer the trial court. relief in Watchdog sought only prospective
Consumer Watchdog’s first amended and do not seek petition complaint Rather, redress for with manda- previously adjudicated grievances. respect relief, and injunctive mus for relief states: “In any prayer response enrollee or complaint grievance a health decision to regarding deny plan’s ABA treatment to an autistic enrollee on that it is not a covered ground benefit, shall ‘order’ the ABA is both plan-where medically [the DMHC] necessary is ... a certified a provided by provider by professional organization, individuals who are a . . . certified pro- enrollee, vider—to either offer and ABA to the or to ‘promptly provide’ reimburse’ the enrollee ‘promptly reasonable costs’ associated with ‘any ABA, added.) whichever obtaining (Italics with applicable.” Similarly, relief, Consumer a respect declaratory declara- Watchdog sought judicial tion that DMHC and its director “have a enforce Mental legal duty Health Act and the Parity Knox-Keene Act to that health shall require plans for ABA when provide coverage both medically necessary ... that is certified provider professional organization, individuals who are (Italics added.) a . . . certified supervised by In provider.” short, the do not seek relief DMHC to petition complaint directing reopen closed grievances resolve them in favor of coverage.
Likewise, court, in its briefs to the trial Consumer Watchdog sought only relief—a writ of mandate prospective DMHC to to future directing respond enrollee grievances to cover ABA by ordering therapy, regardless licensure status. Consumer did provider’s also relief for Watchdog request adjudicated at the on the previously grievances hearing Because petition. did not seek relief regarding adjudicated previously court, in the (See trial it cannot seek such relief in grievances this court. v. County (2013) Browne Tehama Cal.App.4th [153 forfeited an of an Cal.Rptr.3d [petitioners argument regarding legality 62] ordinance because failed to it on that basis in their they challenge petition]; Industries, Richmond v. Dart Inc. Cal.App.3d cannot of relief on he did Cal.Rptr. plaintiff pursue theory appeal 184] [a *15 878 court];
not (1930) in the trial v. Excelsior Co. pursue O’Donnell Amusement 685, 110 691 could not a claim for Cal.App. [plaintiff pursue punitive below].) on when he did not assert claim damages appeal is a new Watchdog Consumer not a arguing legal theory support simply relief it in that it claim for the trial court. It seeks in this court sought relief did not seek below. “It is that an confined its court is elementary appellate review to the which took in the trial court. proceedings place [Citation.] ‘. . . when a matter was not tendered in court is Accordingly, the trial [it] ” (Bach (1989) outside the 215 review.’ v. Butte scope County of “ 294, (Bach).) will not be 306 Cal.App.3d judgment Cal.Rptr. [263 565] ‘[A] relief not reversed on because the failure of the to give lower court appeal . . . .” embraced in and which it was not pleadings give asked (Dimmick P.2d (1962) Dimmick 423 374 v. 58 Cal.2d Cal.Rptr. [24 on (Dimmick).) appeal “This a asserting rule from precludes party 824] (Id. 422.) claims to relief not asserted in the trial court.” at p. and that
Although concurring dissenting opinion agrees not relief with respect did seek retroactive Watchdog’s operative pleading that can such grant closed nonetheless this court grievances, presumes seeks a relief. This conclusion is based on the that when assumption party writ as of the date of mandate it seeks a relief necessarily judgment granting cited was filed. No is for this petition authority proposition. apposite
We and reliance are not persuaded concurring dissenting opinion’s v. Noguchi Cal.Rptr. Morris Cal.App.3d 347] hold, (Morris). concurring dissenting opinion’s Morris does as the necessarily for writ mandate suggests, citation to case that petitioner On seeks the date the is filed. relief as of judgment granting petition is nothing which relies the statement Morris the dissent contrary, upon dicta, that more stated relatively than unremarkable proposition, “ ‘ be one act which will be mandamus must compelled “[t]he the institution of of which the is entitled at performance complaining party ’ ” claim (Id. 523.) his at This that a mandate means proceeding.” p. simply filed. for the authority must be for review when a It is not ripe petition review of relief that must form proposition every possible ripe Morris the mandamus was filed. sought have been when necessarily petition that we lends concurring dissenting argument no support opinion’s to the trial a claim relief that was never should adjudicate presented court.8 important concurring dissenting suggests refusing we are to address opinion by Consumer ground not raised trial court question the stated that the issue was in the “on post, what (Conc. Respectfully, we Watchdog.” opn., p. & dis. at this mischaracterizes focused almost acknowledge proceedings aware below
have stated. We are well
It is not enough that Consumer could have mandamus Watchdog sought relief The fact that it did not relating already adjudicated grievances. seek such relief limits the of our review. We decline to issue an necessarily scope on a claim Consumer did not make in the trial advisory opinion *16 court.
3. The Bulk
Is Moot
Appeal
of
is clear under a
and uniform line of California
that the
long
precedents
“[I]t
validity
must be determined on the basis of the current
judgment
statutory
rather than on the basis of the
provisions,
statutory provisions
were in effect at the time the
order was entered. As observed
injunctive
future,
Witkin:
‘Because relief
in the
of
by injunction operates
appeals
are
injunctions
governed
law in effect at the time the
court
appellate
(Marine
its
Society
Forests
v.
gives
decision.’
Coastal
[Citations.]”
California
Com. (2005) 36 Cal.4th
1,
30,
23
1062].)
113 P.3d
“The
Cal.Rptr.3d
[30
reason a
court
reviewing
current
rather
than former
law
applies
when
reviewing
injunctive decree is because
relief
in the
injunctive
operates
future.
It would be an idle
to affirm an
gesture
decree
injunctive
[Citations.]
rendered,
it
because was correct when
‘with full
that it
knowledge
is incorrect
law,
that,
under
law,
and
full
existing
with
under
knowledge
existing
decree
rendered settles
so far as the future
nothing
rights
these parties
are concerned.’
It does not matter whether the
intended
Legislature
[Citation.]
the new law to be retroactive. The
court
reviewing
is interested in the law’s
effect since that
prospective
is when the decree under review will operate.”
exclusively
professional
on whether a
legally
license was
prior
administer ABA
Indeed,
enactment of the ABA
way,
statute.
it could have been no other
as the ABA statute was
only
enacted
way
after the case made
appeal.
may,
its
to this court on
Be that
itas
we have no
mandate to decide
grievances
what should have been
adjudicated
done with
before the ABA
statute’s enactment because
Watchdog
grievances
Consumer
did not seek relief for such
in the
trial court.
concurring
dissenting
Because the
opinion focuses on whether the issue was raised
below,
largely
impact
Watchdog’s
overlooks the
request
Consumer
limited
for
has
relief
423; Bach,
(Dimmick,
on the appropriate scope
supra,
of our
p.
supra,
review.
BACB-certified DMHC concedes this therapist. implemented moot. statute. but not Watchdog’s appeal largely, entirely, 4. DMHC Coverage Not Denial May Uphold Performed on the Basis Supervised by Therapist *17 Licensed, Is Provider Is Not Even When the Plan Exemptedfrom
the ABAStatute by decide DMHC denials We must whether still may uphold coverage statute'; the the in ABA these are expressly plans plans exempted are Families and entered into with PERS. Such Healthy Program plans plans under not the ABA statute to for ABA provide coverage 1374.73, Code, (Health BACB-certified & Saf. providers. § mean, their however, (d).) subd. This that these are relieved plans does & (Health to cover health care under Knox-Keene obligation “basic services” of severe (i)) Saf. and treatment “medically necessary subd. § 1374.72, (Health mental illnesses” under the MHPA & Saf. § Indeed, this that (a)). “[njothing ABA statute states subd. the unequivocally under be to limit the to services obligation provide section shall construed Code, 1374.73, (Health (e).) 1374.72.” & Saf. subd. Section case, can, that ABA constitute DMHC no longer appropriate disputes autism care and treatment for necessary a basic health service medically case in this under Knox-Keene the MHPA. As and we explained, dispute Knox- of ABA and whether concerns identity proper providers to from directing plans Keene’s licensure preclude requirements not other- a who is therapist cover ABA when provided by ABA. In with resolving respect wise licensed administer question statute, whether that are from the ABA we must determine excepted plans when create licensing effect of that is to a separate requirement exception ain administers to an individual enrolled a BACB-certified therapist hold the exception that is not We covered statute. regime. create such an inconsistent licensing cannot be interpreted man Families does not for PERS Healthy exception these considering existence of ABA statute when ignore date that we above, As noted exists in currently we law as it plans. apply resolving Moreover, “[wjhen claim for two relief injunctive appeal. seemingly we inconsistent statutes harmonize the statutes ‘avoid competing apply, one be ignored.’ statute to interpretation requires [Citation.]” (Watkins v. Alameda County Cal.App.4th law, 847].) we shall is no Cal.Rptr.3d argument As under current explain, longer valid that the in Knox-Keene licensure set forth requirements preclude DMHC from cover ABA treatment when administered ordering plans BACB-certified providers.
The ABA statute constitutes legislative approval ABA by BACB-certified under their providers individuals supervision. That legislative “li effectively BACB-certification as a approval qualifies cense” to ABA. Business and Code section provide Professions 23.7 defines “license, certificate, “license” to mean a or other registration, means in a engage (Italics business and this code . . . .” profession regulated by added.) The ABA statute states that ABA administered shall be by “quali fied autism service autism defines service provider,” “qualified provider” as, alia, inter . . . that is certified national person such as the entity, “[a] [BACB], that is accredited the National Commission Certifying Code, 1374.73, Agencies____” (Health & Saf. (c)(1)(B) (3)(A).) subd. statute, With the passage of the ABA BACB certification fits within squarely is, Business and Code Professions section definition of 23.7’s “license”—that *18 effect, is, BACB certification in “other which one is by means” authorized to provide ABA in this state.
Our conclusion is consistent with the broad other courts have interpretation given to the definition “license” under Business Professions Code section 23.7. In Sutter Prince v. Health Central Cal.App.4th (Prince), the court determined that an Cal.Rptr.3d “unlicensed 750] social worker” “health was a care under the Medical provider” Injury Reform Compensation (MICRA), Act that MICRA defines notwithstanding the term “health care to mean licensed or certified” provider” “any person 3333.2, Code, under (Civ. laws. applicable licensing (c)(1), subd. italics § added; Prince, see at Citing Business and Professions Code section p. 23.7, the Prince that court held the social was . worker effect . . “[i]n licensed,” sense, even she did not hold a “license” in the literal though because she was to by authorized in the Legislature engage subject (Prince, activities. at social 975-976 that worker’s pp. [observing registration with the Board of Behavioral Sciences her to in healing authorized engage 4996.18, Code, arts while she worked toward a license under & Prof. Bus. § (a)].) subd. MICRA,
Like the definition of “health found care provider” term Knox-Keene defines the to . . . or “provider” “any mean person care institution the state deliver or furnish health services.” licensed to (Health added.) & italics defini- (i), Saf. subd. Based tion, DMHC taken the that it direct ABA has cannot cover position plans treatment is a who when the BACB-certified prescribed “provider” therapist is not As we have with the otherwise licensed state. explained, passage statute, is, effect, of the ABA BACB certification a “license” as defined laws, state inasmuch as certification constitutes licensing legislative state as service authorization to ABA in this autism provide “qualified 1374.73, (See (c)(1)(B) (3)(B).) Saf. Health & subd. provider.” This authorization of whether a is regardless required, applies plan ABA treatment coverage exempted requirement, provide is, this state legislative statute. That authorization to ABA in provide cannot in which a enrolled. To hold health depend patient upon licensing otherwise create an in our state would irrational inconsistency laws.9
Thus, while the statute certain only requires plans provide under their coverage ABA BACB-certified and individuals providers the ABA statute has the effect licensing also supervision, We that and those under their ABA. stress providers practice supervision we are not that the health from the ABA statute concluding plans exempted fact, are, in to its terms. The ABA statute does not these subject require ABA; so, we do not them to do either. We hold simply provide require basis that BACB- DMHC’s denials on the upholding coverage longer certified are unlicensed is no With legally justified. therapists statute, has that these individu- the ABA concluded Legislature passage is unnecessary. als sufficient such further licensure possess qualifications cannot a denial of for ABA uphold on the that the therapist a BACB-certified basis therapist supervised by and effective authorization legislative unlicensed. Our interpretation *19 necessarily of to ABA in this state perform licensure BACB-certified therapist conclusion,- also dissenting agrees argues with but we concurring colleague Our this of engaged practice address were in the unlicensed therapists should whether BACB-certified this address issue in prior of the ABA We have no cause to this medicine to enactment statute. against proscription Code 2052’s case. Whatever Business Professions section applicability statute, it is of the ABA may prior passage unlicensed of medicine have had to statute, perform therapists are “authorized [ABA] clear that after the ABA (Bus. & of law ....” provision with some other pursuant certificate obtained accordance Indeed, acknowledges that ‘other is statute] Prof. DMHC “[ABA BACB- requirements” licensure provision provides exemption [from] law’ stake, at we see no light ABA in In of the interests therapist providing certified this state. no wishes presented party arrive at a conclusion beyond properly reason to reach the claims to advance. even when is that is from coverage exempted
applies extent, of the ABA statute. To that Consumer Watchdog requirements entitled to relief. Untimely
5. DMHC’s Is Cross-appeal next and the trial We turn to issues the March 2009 memo surrounding (1) court’s conclusions that the memo violated the Administrative Procedure (2) Act but DMHC would not be to return its pre-March method of and order all resolving grievances grievances regarding which raised both and medical to IMR. issues necessity
DMHC from the court’s order the March declaring purported appeal memo violative of the Administrative Procedure Act. We cannot reach issue, because notice DMHC’s under cross-appeal untimely any California Rules of Court. applicable
The notice of was not filed within 60 of service of notice cross-appeal days Court, (Cal. entry judgment. 8.104(a)(1)(A).) Rules of rule The motion for new trial extended the time to until 30 after the clerk days mailed appeal Court, (Cal. notice of entry 8.108(b)(1)(A).) denial. Rules of rule Such 1, 2011; notice was mailed on the notice of was April therefore cross-appeal under that timely extension. a notice of extends the Finally, time appeal a notice filing until 20 after the clerk cross-appeal serves days Court, notification (Cal. of the first Rules of rule In this appeal. 8.108(g)(1).) case, the notification was served on 2011. notice of cross- April was therefore appeal under this extension untimely as well. provision states transmitted the notice of timely cross-appeal through Federal for this claim. Express provides evidentiary There is no support evidence, however, as to when the document was delivered by Federal to the court. It Express (1) is clear that one of two occurred. Either things Federal erred and did not Express deliver the Federal timely shipment delivered the but Express timely of the Los shipment, employees Angeles Court failed to mark the notice of Superior timely as received.10 cross-appeal DMHC, however, clerk’s, has no evidence that the error was the rather than Federal DMHC has no information from Federal Express’s. tracking Express when the indicating was delivered and no package declaration its counsel that it indicating confirmed of the notice of timely cross- receipt Indeed, with the court clerks. appeal as between Federal superior Express clerks, court runs in superior favor clerks. “It is presumption *20 10 Court, 8.25(b)(1), Under California Rules of rule a document deemed filed on the date Thus, timely the clerk receives it. if the clerk cross-appeal, received the notice of even if it was later, not marked as timely filed until it would be considered filed. 884 (Evid. that official has been duty regularly performed.”
presumed addressed correctly While there is a similar that a letter presumption (Evid. of mail” mailed has been received “in the course ordinary properly of a notice 641), “no filing statute has application Curtis, (1971) v. Lawson & Parrish Thorne (Thompson, appeal.” there must 753].) DMHC’s cross-appeal Cal.App.3d Cal.Rptr. fore be dismissed as untimely. Watchdog’s Did Err in Consumer Rejecting
6. The Trial Court Not That DMHC Be Directed to Return to Pre-March Request Memo Procedures memo,
After the trial court invalided the March 2009 return to its the additional relief of an DMHC sought directing order to the provision methods of resolving grievances relating pre-March under IMR. to direct that those be resolved grievances ABA—specifically, The trial court denied this correctly relief. 1374.30, (d)(3) grants section subdivision
Health and Code Safety an issue raising to determine whether a grievance discretion grievance in IMR the standard through medical is to be resolved or necessity states, case (d)(2) any Subdivision statute expressly “[i]n procedure. delay or modify, asserts that a decision to deny, which an enrollee or provider based, consideration was in whole or in on health care services part, to determine authority shall have the final medical necessity, department more to an whether the resolved grievance properly pursuant [as [IMR] grievance].” standard issues raising directed to resolve all grievances DMHC cannot be discre- exercise its under IMR. DMHC must coverage medical necessity tion with to each grievance. respect
DISPOSITION DMHC from enjoin and modified to The is reversed judgment part be ABA services to denial of plan’s upholding that the the basis individual made on a BACB-certified all within DMHC’s jurisdiction, licensed. This plans is not applies provider The is otherwise from the ABA statute. judgment including exempted shall is dismissed as untimely. parties DMHC’s affirmed. cross-appeal bear their own costs appeal. J.,
Klein, P. concurred. *21 CROSKEY, J., my with disagree Concurring Dissenting. I respectfully of whether the Depart- refusal to address the colleagues’ important question (DMHC), to the date of the ment of Health Care Managed prior operative (the (Health & Saf. 1374.73 behavior statute analysis applied statute)), for autism deny coverage by could properly therapy provided that the issue was not unlicensed do so on the stated They ground persons. to the in the trial court Consumer This is by Watchdog. totally contrary raised in the relief to record in this matter and it makes a real difference which Moreover, entitled. the of licensure with Consumer issue respect is a issue to the of autism provision therapy seriously disputed important and, (which clause), not been from the ABA statute has a sunset has apart addressed the by Legislature. filed in on
Since Consumer was this action Watchdog’s petition1 initially 30, 2009, June have the issue of whether the law fully litigated parties (Health prior date of the ABA statute & Saf. operative 1374.73, 1, 2012) a denial of operative July permitted uphold for ABA2 to be a BACB-certified Indeed, on the basis that such not licensed. it was the therapist3 was therapist court, sole issue briefed until such time as this on its parties appeal motion, own that the ABA statute have mooted suggested may possibility claims for relief. initial oral which any Following argument, our prospective mootness, limited was to the issue of we were that the matter was persuaded merits, not moot. We then set the case on calendar for on the argument and, fact, additional invited amicus curiae briefs on permitted briefing those issues raised to the parties’ original briefing (primarily relating licensure laws on of ABA unlicensed impact provision therapy BACB-certified which the has now concluded therapists), majority opinion we have no to reach basis or discuss.
After substantial and a we resolved those second oral briefing, argument, issues, that, statute, date of the ABA concluding prior operative were in the unlicensed of medi- engaging therapists or, cine more thereof. We therefore specifically, psychology subpractice held that DMHC had denials of coverage, July properly upheld prior 2012, on that basis. In to a for which rehearing, challenged response petition issues, the merits of our resolution of the licensure but not the procedural requires, petition Unless the context I “petition” otherwise use term to refer to injunction complaint declaratory writ of mandate relief and filed Watchdog on June 2009. acronym majority 2 I use the “ABA” in same sense as it is defined and used in the opinion—an therapy treating intensive form of which has had documented success in formally symptoms young applied of autism in children and which is more known as behavior analysis. majority opinion, Analyst As in the “BACB” refers to the Certification stated Behavior Board, organization a private therapists qualified provide therapy. that certifies *22 so, that, fact, basis for the now concludes issues doing majority those were court, before this and therefore now declines to address them. properly view, fact In this court should not avoid were in my reaching issues which (1) (2) raised Consumer Watchdog’s litigated by parties 2009 petition, sought on which the principal subject parties’ specifically Thus, I while concur with the conclusion appellate guidance. majority’s the ABA statute an effective constitutes “license” for BACB-certified practi- 1, the date it 2012),4 tioners from became I operative (July respectfully dissent from that which declines to address whether portion opinion were to hold a license practitioners required professional sufficient to allow them to such to 2012. July services perform prior rationale for to either consider or resolve majority declining opinion’s in this matter. existence of this critical is not the record question supported 1. The Is Issue This Court Properly Before embrace There are three reasons why majority important opinion’s First, Consumer should be in this case. judicial impotency rejected resolution of the issue as to whether Watchdog’s clearly sought petition DMHC to order law date of the ABA statute prior operative required of unlicensed to services provide coverage medically necessary Second, the was liti- fully but BACB-certified of ABA. issue practitioners Third, and amici curiae. after we issued our gated by opinion parties issue, even suggested no or amicus curiae addressing argued party the issue was not before the court. properly Raised the Issue
a. Consumer Petition Watchdog’s Watchdog’s There are conclusion that Consumer petition two bases for my First, relief clearly sought did in fact this issue. Consumer Watchdog raise Second, sounded date Consumer Watchdog’s petition from the of its petition. relief, and the courts are therefore seeking declaratory equity, all between the resolve issues outstanding parties. that, by failing
In its first amended Consumer Watchdog alleged petition, for ABA therapy within its jurisdiction provide coverage compel plans but BACB-certified unlicensed practitioner, clear, violated, violate, and will continue to present, “ha[d] [its] Plan Act of to enforce the Knox-Keene Health Care Service mandatory duty” sought by analysis relief Consumer majority opinion’s prospective As the is limited to judgment the final Watchdog, majority grants Watchdog relief from the date of Witkin, case, (See 8 date of the ABA statute. operative to be entered in this and not from Writs, (5th 2008) Extraordinary p. Cal. Procedure ed. § and the Mental 1340 et seq.) (Knox-Keene; Health & Saf. 1374.72). Consumer Health & Saf. (MHPA; Act Parity
Health filed a enrollee” has in which an that “in all cases Watchdog alleged ABA, to order the DMHC had a duty of such the denial regarding grievance ABA or promptly either offer and provide enrollee’s promptly of the ABA. Consumer the reasonable cost the enrollee for reimburse necessary a writ would be that issuance of went on to assert time And needed critically therapy. children receive “ensure that autistic ABA, the medical *23 for the of delivery the essence in is of providing is ABA therapy that and consistent early demonstrates conclusively evidence that mandate directing a writ of for relief sought most effective.” The prayer health regarding or grievance enrollee any complaint response “[i]n on the ground to an autistic enrollee ABA treatment deny decision plan’s benefit, shall ‘order’ the plan—where not a covered that it is [DMHC] that is certified a . . . by provider and is medically necessary provided is both . . are a . by or individuals who supervised organization, by professional the en- ABA to offer and provide’ certified either ‘promptly provider—to rollee, reasonable costs’ ‘any reimburse’ the enrollee for or to ‘promptly ABA, with whichever is obtaining applicable.” associated was, time, its at the violating that the DMHC Watchdog alleged It therefore time was of the essence. It further that statutory duty. alleged with to seek relief intended Watchdog should be obvious that Consumer (Cf. the of its filing the date of petition.5 to all grievances respect after filed 520, 523 (1983) Cal.Rptr. 141 347] Morris v. Noguchi Cal.App.3d [190 mandate, at the it entitled to relief it that argues seeks party [when record conclude that this I would therefore institution of proceedings].) relief with respect did seek demonstrates that Consumer plainly date of the ABA statute— the a class of which grievances predated operative this action.6 after the commencement of those which arose Moreover, action declara seeking stated a cause of the operative pleadings relief, under the and duties of “the regarding obligations tory [DMHC] 5 Indeed, Watchdog, complaint which filed its certainly true that Consumer it cannot be 30, 2009, only in or later. beginning children intended to seek relief for autistic June Nonetheless, majority upon them the unjust result now forced that is the unfair fact, have, properly been that responsibility to decide the issues opinion’s abdication of its presented to this court. way sought language complaint in no agree majority 6 I do with 30, 2009). June There (i.e., grievances prior filed respecting relief relief retroactive and, indeed, grievances, no already resolved seeking reopening nothing prayer in the clear, any wrongly mandatory duty reopen allegation present, DMHC had a However, relief does not sought only prospective grievances. petition the fact that the resolved ultimately any to be writ the date sought relief petition prospective mean that from Instead, whether Consumer language to determine petition of the issued. we should review the date was filed. Watchdog sought relief [MHPA], [Knox-Keene], and their with regulations” implementing respect whether ABA must be covered when a BACB relief, certified individual. “In actions for the court should declaratory attempt to do all complete equity, resolving involved in the case as questions actually between all of the (Amerson Christman respective parties. v. [Citation.]” (1968) 378].) “It is the Cal.App.2d duty Cal.Rptr. court the action hearing relief to make a determina declaratory complete tion and (Ibid.) has disposition controversy.” narrowly majority construed Consumer failure to Watchdog’s that the petition, holding specifi cally seek “retroactive” relief bars our consideration of whether resolved properly any grievances declaratory But “in an action for past. relief the are facts found and rights to be determined parties upon are not limited (Id. the issues at joined claims of counsel.” p. “An action for will relief is declaratory equity a court equitable, administer relief when it of a controversy. assumes complete jurisdiction Hence, in grant any such an action it is court to for the proper [Citation.] relief consistent with the evidence and the issues embraced pleadings. (Westerholmv. 20th Century Ins. Co. 58 Cal.App.3d [Citations.]” *24 632, fn. 1 the 164].) “In an relief declaratory action Cal.Rptr. seeking [130 court must do even technical it extend the justice, though complete beyond reach of the (Bisno v. Sax pleadings. Cal.App.2d [Citations.]” Thus, 814].) P.2d while I do believe Consumer Watchdog’s petition action, did seek relief from the date it of the commencement even if of the not, had the that this court and resolve principles equity require address 30, 2009, issue as to the resolution of June plan grievances on or after arising 1, 2012, but to That July as of the cause of action. prior relief part declaratory was an question integral between the part controversy parties.
b. The Issue Was Fully Litigated law, The issue of whether the to the date of the ABA prior operative statute, DMHC to order within to cover ABA its plans jurisdiction individual, when it was to be aby BACB-certified provided, supervised, of whether the the authorizing a license irrespective therapist possessed such was before the trial court. therapist provide therapy, fully litigated until, Indeed, as the ABA statute was not enacted the trial court’s after judgment, was sole issue before the trial court.7 litigated course, The initial on followed the same with Consumer briefing appeal at that Knox-Keene and the MHPA Watchdog arguing length require plans that, majority opinion suggests Watchdog specifically because did not ask Consumer relief, court for retroactive raising legal trial But the appeal. it is therefore a new issue on obligation the trial prior issue of DMHC’s under the law to the ABA statute was raised before legal being court and is precisely issue raised here. a when or ABA medically necessary therapy provided cover kind, DMHC responded licensure. regardless BACB-certified therapist, date of the ABA to the duty, operative that it had no ministerial arguing prior statute, ABA treatment health plans provide compel I that this was dispute unlicensed individuals. emphasize to this for resolution. court presented record, the court informed this initial review of the briefs and court’s
Upon be that it whether the should briefing counsel additional sought appeal ABA statute. In of the recent enactment light dismissed moot was not to our Watchdog argued appeal response request, and Public Em- Program because the exclusion of Families Healthy moot (PERS) of the ABA statute Retirement ployee’ System plans scope those the law to the enactment prior meant that were still governed by actual, “an live Watchdog controversy statute. Consumer argued, still with that lies at heart of much exists very legal dispute respect Code 2052 or any this Business Professions section appeal—whether other law that behavior who administer medi- requires analysts provision children be as a treatment for autistic must necessary therapy cally argued licensed state.” Consumer also that its prayer relief was broad for reimbursement enough encompass request ABA-related costs from claims which were filed enrollees arising was denied while litigation improperly pending. moot, that the was indeed it was
While took matter position *25 that, least, a remained whether very regarding at the apparent controversy ABA Families and PERS were to cover Healthy required We therefore supervised by providers. tentatively unlicensed BACB-certified moot, indicated our belief that the was not set the case for oral appeal merits, on the and additional argument permitted briefing. followed, in whether argued
The additional which the briefing parties again the the to the enactment of the ABA statute licensure for required law prior issue, in which of ABA. This but difficult provision posed very important interest, entities so court amicus curiae strong requested had a the many stated, In our amicus curiae we “this court briefing, letter briefing. soliciting determine ABA required must whether law to prior statute] [the are care to ABA services which order health providers provide determined to be but are to be medically necessary provided by practitioners unlicensed, curiae who are but certified BACB.” We received amicus advocates, autism briefs from ABA organizations representing practitioners, Insurance, all some of this issue. To and the of Department discussing aspect time, that the and say amici curiae parties deal of expended great money, and effort this issue would be briefing an understatement.8
c. Our Opinion, Reconsideration But No One Sought, Was After That the Argued Issue Not the Court Was Properly Before This court then issued a unanimous the issue. We opinion resolving concluded that the of ABA of medicine— constituted practice practice that, of to the enactment specifically, subpractice psychology—and prior statute, the ABA of BACB-certified were necessarily engaging practitioners concluded, however, unlicensed We that practice also psychology. the enactment of the ABA statute endorsement of constituted a legislative 1, licensure, BACB-certification as an July but equivalent only forward.9
There followed the of a for Consumer receipt rehearing by petition Watchdog, several for reconsideration ABA requests practitioners. After we granted the we amicus curiae petition rehearing, further accepted briefing. While we received the amici curiae input parties many the merits of our not one that the of them took the issue of opinion, position the need for licensure ABA was not this court. There before therapists we were that should not reached whether arguments have issue of specific the practice of ABA constituted the no suggestion but psychology, we that should limit our analysis to issues therefore not prospective only address the state of law date the ABA statute. prior operative Consumer itself made no effort that we not address Watchdog argue should indeed, issue, and, this continued to assert we should. In conclusion its to amicus curiae response stated we briefing, alia, should “and our issue a decision that even modify holding, inter opinion date, prior July operative [the statute’s] behavior were be licensed analysts under the Business Professions and that DMHC its duty by violated ministerial improperly denying medically necessary administered unlicensed analysts.” BACB-certified behavior judicial That parties sought dispute is also evidence resolution of is clear. There *26 Legislature judicial Assembly the a dispute. that desired resolution of the At an Health hearing (2011-2012 Sess.), Reg. Committee on Senate Bill No. bill which would 946 statute, bill, stated, Steinberg, certainly become the ABA “this Senator the author of the bill has any existing litigation. no intention to stand on their own.” interfere with Those cases should Steinberg required Senator that personal therapy While indicated a belief under then was law, it recognized dispute. Steinberg current he was a matter of Senator stated that there was intent for the to make was under any no ABA statute comment about whether ABA law; existing only coverage. then the ABA statute to provide was intended immediate statute, terms, 1, 2017, by expires January represent This and does not a its therefore legislative of final resolution this issue. Raised
d. The Issue Was the ABA statute required as it existed prior issue of whether the law The BACB- by or for ABA to be provided DMHC order was license of kind any held no analysts they behavior even though certified trial, at and (2) litigated Watchdog’s fully (1) raised petition; court; our initial was (3) opinion this never once after argued, before this court. filed, and resolved by to have an issue considered improperly been short, addressed. My colleagues’ was raised and should be clearly In issue this significance existence or of justiciable either the recognize refusal a appellate issue is an unfortunate abandonment of principal important resolve the issues raised consider and obligation: presented resolve that issue. I now turn to I believe this court should how parties. 2. the Practice Medicine ABA Constitutes of 2052, Practice Code section of Medical
Business and Professions
part
&
that
who
(Bus.
“any person
Act
Prof.
2000 et seq.), provides
§
or
or
or holds himself
herself
or
who advertises
practices
practice,
attempts
the sick
afflicted in this
out as
or mode of
or
any system
treating
practicing,
for,
ailment,
state,
treats,
for any
or who
or
diagnoses,
operates
prescribes
disorder,
blemish,
disease,
or other
disfigurement,
injury,
physical
deformity,
a
or mental
at the time of so
having
doing
condition
without
any person,
valid, unrevoked,
as
this
chapter
certificate
unsuspended
a
without
authorized
the act
to certificate obtained
being
to perform
pursuant
law
of a
in accordance with some other
provision
guilty
[crime].”
broad,
This
“treats . . .
very
any
who
language
encompassing
person
has
. . .
or mental condition of
any
Legislature
any
physical
person.”
statute;
enacted several
from the burden
the language
exemptions
however,
serves to underline the breadth of
statute.
only
exemptions,
include “the domestic
remedies”10
family
These
administration
exemptions
Code, 2058,
(Bus.
(Bus.
&
of nutritional advice
(a));
Prof.
subd.
giving
(Bus.
2068);
& Prof.
schools”
“[Resting
guidance programs
1081],
Municipal
P.2d
In Bowland v.
Court
Cal.Rptr.
Case law also confirms of a broad necessity interpretation of medicine. practice Business and Professions Code section 2052 “represents a reasonable exercise of the state as the was designed statute police power, medical treatment state prevent provision to residents of the persons who are trained such or otherwise inadequately provide incompetent treatment, and regime who have not regulatory themselves to the subjected established Causing intending Medical Practice Act [citation]. not an element of the . . v. Court injury offense . .” (Hageseth Superior 1399, (2007) 150 . . . 385].) “The state Cal.App.4th Cal.Rptr.3d [59 has in its clearly strong demonstrable interest citizens protecting arts, who claim some whose persons expertise healing but qualifica- tions have been established of an certificate.” receipt appropriate (Bowland Court, v. That unli- 18 Cal.3d at Municipal supra, p. censed be “in may is no defense. Our order practitioner competent system, assure the be that a protection public, requires competency person’s determined v. (Magit state evidenced a license.” Board 488, P.2d Medical Examiners 57 Cal.2d Cal.Rptr. 816].) then,
It is that the construed apparent, very of medicine” is “practice However, (Bus. although licensed medicine broadly. physicians may practice 2051), Prof. are not individuals they only permitted perform acts which constitute of medicine. As noted Business may Professions Code section if the individual is “authorized to perform
893 with some other to. in accordance provision act a certificate obtained pursuant law,” This is of medicine. the act not constitute the unlicensed practice of will 2061, which Professions Code section provides, confirmed Business and of other limiting be construed as practice in this shall “Nothing chapter licensed, certified, of law or under other registered any provision persons in his her arts when such relating healing engaged person authorized and licensed practice.” licensed dentists may exist. For example,
Numerous such authorizations Code, 1600);-licensed nurses (registered) Prof. (Bus. & dentistry practice § Code, (Bus. 2732); & licensed nursing psychologists Prof. may practice § Code, 2903); (Bus. chiroprac- & Prof. licensed may practice psychology § Code, (Bus. 1000); & Prof. licensed occupa- tors may practice chiropractic § Code, (Bus. & Prof. may tional therapists practice occupational therapy (Bus. & 2570.3); may physical therapy licensed physical therapists practice § Code, 2630); care Prof. licensed practitioners may practice respiratory § Code, 3730); licensed (Bus. care & Prof. speech-language respiratory § pathology and audiologists may practice speech-language pathologists Code, (Bus. 2532); Prof. licensed may practice & audiology acupuncturists § Code, (Bus. 4937); may practice Prof. licensed midwives acupuncture § (Bus. 2507); opticians & Prof. and certificated midwifery dispensing Code, 2553). (Bus. fit & Prof. and contact lenses may adjust spectacles acts constitute the Each of these is authorized to which practitioners perform medicine, of In of as limited his her own license.11 scope practice short, medicine, while other every have broad physicians authority practice which are licensed health has a limited license to tasks perform professional license, within the of that which were within exclusive scope previously (58 (1975).) 187 province physicians. Ops.Cal.Atty.Gen. It
This is DMHC’s case concerned with the provision therapy. cannot direct plans performed by argument provide therapy individuals, do for the directing as to so would be pay unlicensed Given the broad definition practice unlicensed medicine. practice above, the conclusion that the it is not avoid medicine discussed possible of ABA constitutes of medicine. Consumer practice practice treat- “medically necessary that ABA constitutes argues premise autism, But as a which practice within the the MHPA. meaning ment” of cases, Indeed, profes statutory for the licensure of such providing in some scheme beyond practice medicine they practice states that are not licensed to expressly sionals (See, patholo e.g., [speech-language & Prof. 2530.4 specific healing §§ their art. Bus. practitioners].) care audiologists], [physical therapists], [respiratory gists . autism, “treat . . attempts mental condition” of it necessarily [the] constitutes the of medicine.12 *29 however,
There is some authority, that when suggesting an individual medicine, in the engaging unlicensed of it is to character- practice preferable ize the individual as in the unlicensed the engaging of practice particular for which a license is in specialty order to the act perform (See People v. McCall question. 214 1010-1012 Cal.App.4th such, 471].)13 Cal.Rptr.3d As it be may to discuss the preferable unlicensed of ABA the performance as unlicensed of practice specialty rather than as psychology, the unlicensed of medicine. simply practice Business and Code Professions section of 2903 the prohibits practice a psychology without license. “The of is defined as practice psychology individuals, to rendering offering render for a fee to organizations groups, or the public any service psychological application psycho including of methods, logical and principles, procedures and understanding, predicting, of behavior, influencing such as principles pertaining learning, percep tion, motivation, emotions, and and methods interpersonal relationships; 12 go saying policy support It should without that broad of reasons a construction Business and practice Professions Code section and an 2052 its inclusion of the of ABA. ABA is therapy. practitioners intensive behavioral spend per Frontline of ABA to 40 hours often working single week with years. correctly, a autistic child of tender If performed can create new brain child connections in a with autism. While this with the case is concerned provision practitioners of ABA and individuals BACB- individuals, whatsoever, practitioners, certified the prospect training that with no could offer as practitioners parents themselves ABA to the autistic legitimate of children is a matter of The BACB an certify Analyst concern. will not individual as a Board Certified unless Behavior field, person degree that has a in a graduate master’s related 225 hours of coursework analysis, supervised experience, behavior substantial and passed has an examination. If ABA medicine, practice does not constitute the nothing stop of there is untrained and uncertified calling “Applied Analysts” claiming they individuals from and that themselves Behavior can safely practice imagine ABA. is not a permanent It difficult harm could well result to therapy per vulnerable autistic child from 40 hours week of intensive behavior tested, trained, who supervised. someone is neither nor who, People prosecution midwifery v. involved the a while unsuper McCall of student vised, birth, manually patient, provided prenatal care for a and attended and assisted at a out, cord, guiding baby cutting an removing giving the umbilical the mother placenta, injection stop hemorrhaging, suturing argued she and a tear. defendant should have prosecuted midwifery, been for the misdemeanor of the rather than practice unlicensed of felony acknowledged practice general unlicensed of medicine. While the Court of Appeal one, general that a statute principle specific exception rejected is considered an argument, stating “may defendant’s that she have committed a misdemeanor violation of the Midwifery byAct performing required supervision midwife services without the of a licensed physician great or a But surgeon. midwife she did deal more than that. Her conduct found, constituted, beyond supervision jury practicing above failure to secure McCall, certification, felony (People general medicine without violation of the statute.” v. supra, p. at Cal.App.4th behavior counseling, psychotherapy,
and procedures interviewing, modifi of and methods cation, principles these The application .... hypnosis [¶] treatment, and amelio includes, diagnosis, is not restricted to: prevention, but and mental disorders problems ration psychological emotional added.) (Italics individuals and groups.” to influence methods ABA involves application psychological used modification. When be considered form of behavior behavior and can autism, the definition of psychol- it therefore falls within as a treatment for its practice As ABA falls within definition ogy. solidly psychology, to do or permitted licensed psychology, individual who license, the unlicensed practice psychology.14 so another constitutes *30 of that consequence arguing an to avoid the unintended in Perhaps attempt the of medi unlicensed committing practice are practitioners cine, BACB- novel that ABA argument performed DMHC makes the educational, while ABA otherwise certified is performed practitioners words, DMHC is medical treatment. In other that argues licensed individuals on of identity medical treatment the depends whether a constitutes a practice no in the the The conclusion finds law support individual performing practice. or logic. acts medical or nonmedical on may depending
There are some which be for the in which are they example, may circumstances performed. Hypnosis, or it only be used for the of entertainment self-improvement; purposes as a method of diagnosis the when it is used becomes of practice psychology 14 it exception provides and Code section that shall not An to Business Professions 2903 “qualified recognized groups practice in the prevent professional members of other licensed workers, California, as, to, physicians, not clinical social educational State of such but limited technicians, regis family therapists, or psychologists, marriage optometrists, psychiatric and Bar, nurses, duly attorneys the ... or ordained members tered admitted to California State duly religious doing of a clergy, practitioners from work recognized ordained (Bus. governing respective professions.” psychological nature consistent with the laws their case, Code, 2908.) amicus curiae response opinion initial in we received Prof. In our this Family Therapists, the Marriage and National briefing from the Association of California Workers, Association for Licensed Professional of Social and California Association Counselors, modify original opinion to that their we confirm requesting Clinical all that our specifically and Professions Code section 2908 legally practice members could ABA. Business recognized groups practice licensed to “qualified professional other provides that members of California,” marriage and including but limited to clinical social workers in the State of not fact, may, with the family therapists psychological work of a nature consistent “do[] beyond this governing respective professions.” scope opinion It of their is laws may practice” in California “recognized professional groups licensed determine which professions.” I governing respective simply wish perform ABA with the laws their “consistent that, psychology, of practice practice that of ABA constitutes the to note when I conclude only psychologists perform can does mean that I licensed doctors not believe Any may ABA. permits practice license professional ABA. licensed whose 896 (Bus.
or treatment. & Prof. 2908 [exempting prohibition the unlicensed practice psychology “persons utilizing hypnotic techniques which offer avocational or vocational not offer do self-improvement therapy disorders”];15 emotional or mental see 54 62 Ops.Cal.Atty.Gen. (1971).) Massage of relaxation purposes does constitute the (In practice (1943) medicine re Maki 56 P.2d Cal.App.2d [133 64]); when used to “cure massage or relieve a certain . . . ailment” practice medicine. v. (People (1961) Cantor 198 Cal.App.2d Supp. instance, 363].) In Supp. each Cal.Rptr. [18 focus on the goal the act—whether it is for a performed medical on the purpose—not identity of the individual it. The performing conclusion sense. An logical makes is a appendectomy medical whether or a short practice doctor performed by order cook. Similarly, frying egg would not be into medical transformed if practice by licensed is the performed It is act itself which physician. focus of (Cf. not the inquiry, actor. Board v. Quality Medical Assurance 1346, 1348, Andrews Cal.App.3d Cal.Rptr. 113] [acts performed by School of its “Religious Natural “first Hygiene” minister” indisputably medicine].) constituted practice
Thus, while I DMHC’s concern that its appreciate argument fact, constitutes the of medicine (as too much may, prove *31 has no interest in of of affecting practice ABA outside the context when is, fact, an HMO to it), is cover requested in correct. The argument medicine, of ABA constitutes the of practice practice specifically, practice follows,that, statute, of It to the psychology. date of the ABA prior operative BACB-certified were in of the unlicensed medi therapists engaging practice Thus, cine or the DMHC’s to psychology. refusal order to plans provide 1, coverage for ABA to 2012 was therapy performed prior July entirely correct. agree
I with the enactment of the ABA statute constitutes majority therefore, that, effective licensure of BACB-certified individuals16 and even excluded from of the ABA statute Families and plans (Healthy scope PERS) (i.e., 1, can 2012) no after longer My coverage on the deny ground permits The statute also hypnosis purposes nonpsychologist, for medical if the doctor, dentist, hypnotist (Bus. does so referral from a or psychologist. licensed Prof. 2908.) argues Watchdog regulations existing Consumer that certain to the prior statutes statute constituted effective licensure BACB-certified relies on a Specifically, of individuals. provision of Code providing person recognized by the Education as a “[a] [BACB] Analyst may Board Certified provide Behavior conduct behavior assessments and behavioral (Ed. exceptional intervention services for individuals with As there needs.” nothing statutory defining in the scheme “behavioral intervention to include the services” children, provision provision Watchdog. of ABA to this autistic is of little aid to Consumer also notes that BACB-certified individuals have been reimbursed centers, regional Department Developmental Regulations under State of allow Services which constitutes BACB-certified practitioners or
that ABA provided supervised However, prior or psychology. of medicine the unlicensed practice statute, who did not hold a of ABA of practitioners date the ABA operative in the clearly engaging ABA were them to practice license which permitted (an subpractice undisputed unlicensed practice psychology Thus, to have had ministerial medicine). cannot be considered to to coverage jurisdiction health under its duty provide to direct any plan 2012. enrollees for such therapy prior July However, Watchdog’s of Consumer due to the construction majority’s of the final from the date relief that is seeking only prospective petition action, filed only grievances relief will any resolution of this apply PERS plans in Families and Healthy behalf autistic enrollees after As I believe issue of resolved and writ has issued. litigation is finally for ABA to order plans whether DMHC was required provide the date provided supervised by practitioners from court, such relief for grant before this I would petition filing properly and PERS with respect any children in Families Healthy autistic was be BACB- filed for ABA which grievance the ABAstatute July date operative certified practitioners reason, onward. For that I concur and dissent part. part *32 (Cal. Regs., tit. analysts. behavior Code vendors be classified as reimbursement, however, allowing statutory exception not a regulation A licensure.