Medicaid

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Autism-Related Legal Issues

Decided Law

Parents League for Effective Autism Treatment v. Jones-Kelley
339 Fed. Appx. 542 (6th Cir. 2009)
Affirming grant of preliminary injunction requiring state Medicaid agency to cover ABA treatments for children with ASDs under Medicaid’s mandatory EPSDT program which requires states to provide necessary health care, diagnostic services, treatment, and other measures described at 42 U.S.C. §1396d(a) to correct or ameliorate defects and physical and mental illnesses.
In upholding the injunction, the court held that plaintiffs were likely to succeed on the merits and rejected the Medicaid agency’s argument that ABA was uncovered “habilitative” care rather than “rehabilitative” treatment, described at 1396d(a)(13) as “remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts . . . for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.”  339 Fed. Appx. at 547-48.  The state’s argument that therapy for children with ASDs was limited to restoring them to a prior level of functioning they had attained would arguably mean that no child with a disability could ever receive rehabilitative services contrary to the broad EPSDT coverage contemplated by statute.  The court affirmed the lower court’s rejection of this reading and concluded that the statute could be read to require coverage for both recommended therapy for the maximum reduction of disability and recommended therapy to restore an individual to the best possible functional level.  Bolstering this was the fact that prior case law held similar therapies to be covered under 1396d(a) and that proposed federal regulations relied on by the state had been halted by Congress.
Prior history: Affirming, Parents League for Effective Autism Treatment v. Jones-Kelley, 2008 U.S. Dist. LEXIS 109396 (S.D. Ohio July 17 2008)
Denying defendants motion to stay preliminary injunction, the court held that plaintiffs were likely to succeed on the merits and would be irreparably harmed if deprived of ABA services; the state’s view that services were limited to restoring a child to a previously obtained level of functioning “does not meet the expansive and remedial nature of the EPSDT mandate and makes no sense as applied to children”.

S.A.H. v. Department of Social and Health Services
149 P.3d 410 (Wash. Ct. App. 2006)
Indicating ABA being provided under Medicaid EPSDT program in case involving reimbursement for transportation costs.

Hummel v. Ohio Department of Job & Family Services
164 Ohio App. 3d 776; 844 N.E.2d 360; (Ct. App. 2005)
Holding plaintiff entitled to ABA treatment under state’s Medicaid program.
The court affirmed the lower court’s ruling that the agency’s determination that the prescribed ABA therapy was not medically necessary was unsupported by reliable, probative and substantial evidence. The court also rejected the state’s argument that ABA was not a compensable “medical service,” but instead an educational program or at most a behavior modification technique.

Pending Litigation

K.G. v. Dudek
864 F. Supp. 2d 1314 (S.D. Fla. 2012), appeal docketed, Case No. 12-13785-DD (11th Cir. July 19, 2012)
Hholding that state Medicaid agency (Florida) wrongfully failed to cover medically necessary ABA for children with ASDs under mandatory EPSDT program available to all Medicaid eligible children under 21 covering necessary health care, diagnostic services, treatment, and other measures described at 42 U.S.C. §1396d(a) to correct or ameliorate defects and physical and mental illnesses whether or not such services are covered under the state plan. 
The court held that the state Medicaid Agency’s determination “that ABA is experimental   was arbitrary, capricious, and unreasonable.”  K.G., 864 D. Supp. at 1331-32. The Court further held that because ABA is recommended for the maximum reduction of physical and mental disability from ASDs  with a focus on improving a child’s functional level and restoring him to normal potential , it falls within the broad range of Medicaid services set forth at 42 U.S.C. $1396d. Id. at 1319-20.  The court concluded that “Florida's exclusion of ABA for Medicaid-eligible minors diagnosed with autism or ASD violates the broad EPSDT mandate in the federal Medicaid Act” and “it is imperative that autistic children in Florida receive ABA immediately to prevent irreversible harm to these children's health and development.” Id. at 1327.
Prior HistoryK.G. v. Dudek,  839 F. Supp. 2d 1254, (S.D. Fla. 2011)
Granting preliminary injunction requiring defendant to provide Medicaid coverage for Plaintiff’s ABA coverage as prescribed by his treating physician during pendency of litigation.