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Ohio EPSDT lawsuit filed for autism-related Medicaid coverage

September 15, 2015

Earlier this month a federal lawsuit  was filed in the United States District Court for the Northern District  of Ohio against CareSource, one of the state’s largest Medicaid managed care organizations, for refusing to cover  medically necessary applied behavior Analysis (ABA) treatment  for children with autism.

The suit was filed by attorneys Richard Ganulin of Cincinnati and Aimee Gilman of Cleveland. By law, Medicaid is required to cover all medically necessary treatments for children under the age of 21 and an estimated one-third of all children with autism receive primary coverage through Medicaid.

The complaint alleges that even though both federal and state courts in Ohio, as well as the state’s own administrative hearing office, have ruled that this care must be provided when medically necessary for a child, CareSource has categorically refused to provide it.  The complaint also names the Ohio Department of Jobs and Family Services, the state Medicaid agency which has ultimate responsibility for compliance with federal Medicaid law, as a defendant. 

The federal Medicaid act mandates that all states provide Early Periodic Screening Diagnosis and Treatment (EPSDT) services for all Medicaid eligible children under 21 years of age.  The broad EPSDT mandate requires that states provide all coverable medical assistance to correct or ameliorate defects and physical and mental illnesses and conditions in these children even if that care is not currently in the state’s Medicaid plan.  Additional information about states’ EPSDT obligation is available here.

“The purpose of the program is to insure that conditions are treated early and that children enter adulthood as healthy and functional as possible,” says Dan Unumb, Executive Director of Autism Speaks Legal Resource Center.    

Unumb notes that in the last several years there have been a number of several successful lawsuits by Medicaid families whose children with autism had been wrongfully denied access to medically necessary ABA treatment.  In July of 2014, the federal Centers for Medicare & Medicaid Services (CMS) issued a written bulletin specifically reiterating states’ obligation to cover all medically necessary treatments for autism for children and young adults, based on individualized determinations of medical necessity.  This may include ABA treatment, speech, occupational and physical therapies, and other therapies and devices depending on the individual needs of the child.  

If a Medicaid beneficiary is denied treatment, they have a right to appeal the decision in court. Unfortunately, most Medicaid beneficiaries are low-income and do not have ready access to legal counsel. “It is unfortunate that too often the only way to guarantee access to needed treatment under Medicaid is via the courts, and this is wholly unacceptable,” says Angela Lello, a member of the Autism Speaks advocacy team. 

Dan Unumb concurs saying “despite the federal EPSDT mandate, and states’ actions to cover these services in the wake of the CMS guidance, we continue to see court challenges having to be brought against some states  by low-income children with autism who can’t get the medically necessary treatment they’re entitled to under the law.” Earlier this year, a Nebraska court ruled that that state’s categorical exclusion of ABA treatment for children with autism violated EPSDT law, and suits are pending in Hawaii and Pennsylvania. 

The state’s motion to dismiss the Hawaii case was denied last month and the parties are in settlement negotiations.  “We commend the attorneys who are fighting for the rights of these children and with whom we are committed to assuring that children with autism get the healthcare they need when they need it.” 

If you or your child are receiving Medicaid and have been denied medically necessary treatments related to autism, contact the Autism Response Team at 888-288-4762 or en Español 888-772-9050, or email via at familyservices@autismspeaks.org. Remember when making a request for services to insure that all documents you have showing that a qualified healthcare professional has determined the treatment to be medically necessary are included. 

If your state does not currently have a coverage plan for the service or if you are advised that what you seek is “not a covered service”, you should include in writing that you are making the request pursuant to EPSDT which requires medically necessary care even if it is not currently a “covered service.”