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Federal Judge to Florida Medicaid: Cover ABA Now

November 10, 2013

MIAMI (November 10, 2013) -- A federal judge has ordered Florida's Medicaid program to immediately cover applied behavior analysis (ABA) for children with autism "to prevent irreversible harm to these children’s health and development." The Autism Speaks Legal Resource Center filed a friend-of-the-court brief in the case on behalf of the children.

U.S. District Court Judge Joan A. Lenard originally issued the order in March 2012 in a lawsuit, Garrido v Dudek, demanding, “How many children were lost?” The suit was brought on behalf of several Florida children with autism on Medicaid against the Florida Agency of Health Care Administration (AHCA), which administers the state's Medicaid program.

An appeals court upheld the order in September, but directed Lenard to amend her ruling to make clear that AHCA can make eligibility determinations for ABA coverage on a case-by-case basis.

Lenard issued a permanent injunction last week, directing AHCA to immediately provide ABA to the plaintiffs, to notify all community behavioral health services providers enrolled in Medicaid that ABA is now covered for children diagnosed with autism, and to notify all physicians enrolled in Medicaid who provide EPSDT screens that ABA is now a covered service.

In her ruling, Lenard found the AHCA failed to follow its own procedures, relied on an insurance industry-funded study to debunk ABA, failed to obey a mandate from the Legislature to pursue Medicaid waivers, and determined that ABA was "experimental" on the basis of being sued rather than careful analysis of medical literature. AHCA determined that ABA was experimental shortly after the lawsuit was filed in 2011.

"No analyst and/or nurse in AHCA ever reviewed any 'reliable evidence' about ABA, no one assessed whether ABA was covered by other states’ Medicaid programs, Medicare, or commercial insurance, no one consulted with any physician about ABA, and no memorandum regarding ABA was ever prepared by an analyst and reviewed by AHCA’s management," Lenard found.

"Instead, (Elizabeth Kidder, the AHCA Deputy Secretary for Medicaid) took on the role of analyst for the purpose of this litigation, and upon a cursory review of these materials, decided that ABA was experimental," Lenard said.

The AHCA analyzed three studies in making its determination. One was funded by Blue Cross and Blue Shield Association, a federation of 38 health insurance companies, and Kaiser Permanente. The other two relied on a study that was later found to have misrepresented findings regarding the benefits of ABA.

On the other hand, Lenard noted, the AHCA never reviewed consensus statements finding ABA a standard for treatment of autism that were issued by the:

  • Centers for Medicare and Medicaid Services
  • United States Surgeon General
  • Centers for Disease Control and Prevention
  • National Institute for Child Health and Human Development
  • National Institute for Neurological Disorders and Stroke
  • National Institute for Mental Health
  • American Society of Child and Adolescent Psychiatry
  • American Academy of Pediatrics
  • American Psychological Association

"In sum," Lenard ruled, "the Court finds that AHCA’s failure to follow its own unwritten but formal standard practice for making treatment coverage decisions, failure to apply Florida’s definition for 'experimental,' and failure to use 'reliable evidence' as defined by Florida law, was unreasonable, arbitrary, and capricious.

"It is imperative that autistic children in Florida receive ABA immediately to prevent irreversible harm to these children’s health and development," she ordered, adding that "the Court finds that paying for the cost of ABA for autistic children will ultimately save public funds."

As part of the litigation, Lenard made note that in 2008, the Florida legislature authorized AHCA to seek federal approval through a Medicaid waiver or a state plan amendment to provide occupational, speech, and physical therapy, behavior analysis, and behavior assistant services to children with autism through age 5. The legislature ordered AHCA to submit annual reports starting in 2009 regarding its progress along with recommendations for implementing these home and community-based services.

"Kidder testified that AHCA never complied with this directive," the ruling said.