Order Directing Florida Medicaid to Cover ABA Upheld on Appeal

MIAMI (September 23, 2013) -- A federal appeals court has upheld an order directing Florida to cover applied behavior analysis (ABA) under its Medicaid program, rejecting claims the therapy is "experimental."

The decision by the 11th Circuit U.S. Court of Appeals was hailed as a victory by the Autism Speaks Legal Resource Center, which intervened on behalf of the plaintiffs, three children diagnosed with autism, against the Florida Agency for Health Care Administration (AHCA), which administers the state's Medicaid program. The plaintiffs had sued the state in 2011, contesting its blanket denial of ABA coverage on the basis the therapy was "experimental."

In a strongly worded opinion, U.S. District Court Judge Joan Lenard in March 2012 ordered the state to cover ABA, asking, "How many children were lost?" as a result of the state's denials.

“This case will have national impact because, while most states mandate that private insurance companies must cover ABA, most Medicaid programs do not provide coverage,” said Miriam Harmatz of Florida Legal Services, lead counsel for the plaintiffs. The children’s treating physicians explained the extreme disparity between the prognosis of privately insured children with autism, who receive ABA, and those on Medicaid, who do not, she said.

Dan Unumb, Esq., executive director of the Autism Speaks Legal Resource center, said the abundance of high quality scientific literature presented during the 2012 trial “laid to rest the outrageous claim that ABA is experimental.”  The appeals court decision underscored that Florida must cover ABA through Medicaid whenever the therapy is deemed medically necessary, he said. 

The three-judge appeals panel agreed with Lenard that Florida violated the federal Medicaid Act when it excluded coverage of ABA therapy needed by the children. Lenard acted properly in ordering AHCA to remove coverage restrictions and to take steps needed to assure that Medicaid coverage of ABA therapy moves forward, the appeals court ruled. 

The appeals court, however, did remand the case to Lenard to clarify that AHCA retains the authority to determine the medical necessity for ABA coverage on a case-by-case basis. The appeals court noted that AHCA in its appeal had dropped its claims that ABA was experimental, but was concerned Lenard's order could be misinterpreted to require blanket coverage of ABA.

Lenard had found that “there exists in the scientific and medical peer-reviewed literature a plethora of meta-analyses, studies and articles that clearly establish ABA as an effective and significant treatment to prevent disability and to restore children to their best possible functional level and restore their developmental skills.”