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From Health Law Daily, July 22, 2013

Louisiana Medicaid agency found in contempt, ordered to provide applied behavior analysis (ABA) to children with autism

By Michelle L. Oxman, JD, LLM

The director of the Louisiana Medicaid agency, the Department of Health and Hospitals (LDHH) had been in continuing contempt of court because it failed to comply with the court’s order of 2001 directing the agency to provide psychological and behavioral services necessary to treat individuals under age 21 with autism, who were eligible for early and periodic screening, diagnosis and treatment (EPSDT) services (Chisholm v Kliebert, July 18, 2013, Barbier, C). As a remedy for contempt, the court ordered the agency to: (1) cover applied behavioral analysis (ABA) services provided by Board Certified Behavior Analysts (BCBA) as independent practitioners who bill for their own services; (2) set reimbursement rates sufficient to enlist enough certified providers of ABA to serve the needs of the class; (3) list BCBAs as resources for beneficiaries with autism or pervasive developmental disorder (PDD); and (4) conduct outreach and referrals to inform beneficiaries of the availability of ABA.

History of the litigation. The litigation began in 1997 as a class action in which Medicaid beneficiaries eligible for EPSDT sought home and community based treatment for autism and related disorders. A class was certified in 2001. Later that year, the court found the Medicaid agency violated Soc. Sec. Act sec. 1905(r)(5)which requires state Medicaid programs to provide any EPSDT services that could be covered by the Medicaid state plan and that are necessary to correct or ameliorate the conditions found during screening and diagnosis, whether or not the services are included in the state’s Medicaid plan. The court ordered the agency to: (1) cover the behavioral and psychological services of licensed psychologists; (2) provide individuals eligible for early and periodic screening, diagnosis and treatment (EPSDT) services with the behavioral services necessary to correct or ameliorate their condition as required by Soc. Sec. Act sec. 1905(r)(5); and (3) establish 15 multidisciplinary teams in locations around the state to serve EPSDT beneficiaries with autism. The agency was ordered to make bimonthly reports to the court and counsel on the number of providers enrolled, their locations, and the number of beneficiaries receiving services.

In 2002, the court found the agency in contempt of court for failure to comply with the order. Among other failures, the agency had not submitted any requests to CMS for approval of a state plan amendment to cover ABA, and responses to the request for proposals to develop the multidisciplinary teams were not due until after the date the agency had committed to begin providing services. The court ordered state officials to file progress reports with the court and plaintiffs’ counsel weekly. It specifically denied the state agency’s request to impose prior authorization requirements.

Developments in treatment of autism and PDD. Since the court’s original order, ABA had been recognized more widely as the most effective treatment for autism and PDD based on 40 years of research; the state agency conceded the point. A Behavior Analyst Certification Board applied uniform credentialing standards that required BCBAs to have either a master’s degree or a doctorate with extensive course work, training, and supervised experience in furnishing ABA, and passage of a national examination. BCBAs design the treatment plan and oversee its implementation by assistant behavior analysts, referred to as “line therapists.” In 2008, the Louisiana legislature enacted a statute requiring private insurers to cover BCBA services, and most insurers covered the services of line therapists as well as the BCBA.

Evidence of noncompliance with the court’s order. LDHH never established the 15 treatment teams required by the 2001 order. Counsel for the class presented evidence that there were 1,027 class members, but in 2011, only 68 had received any services from a psychologist, including 41 who received services other than evaluation. In 2012, 66 class members received services from a psychologist, 48 of whom received nonevaluation services. In 2012, LDHH had spent less than $35,000 on these services; plaintiffs pointed out that this was less than 35 cents per class member.

In March 2012, LDHHcontracted with Magellan of Louisiana, Inc. (Magellan), a managed care organization, to provide behavioral health services for Medicaid beneficiaries. Magellan imposed prior authorization requirements. Although the types of providers who could be reimbursed were expanded to include social workers, licensed professional counselors, and even certain unlicensed providers, BCBAs were not included, and Magellan did not ask whether any providers were certified to furnish ABA services. None of the psychologists or other covered professionals who were certified BCBAs were enrolled as providers.

The state’s arguments and the ruling. LDHH argued that there were other treatments as effective as ABA. The court found that the other treatments were not necessarily distinct from ABA and that the state had not provided those services anyway. The court also rejected the state’s suggestions that it enroll the children in a waiver program because it would not provide the required services and would not begin to serve all class members.

The case number is 97-3274.

Attorneys: Nancy Catherine Grush, Louisiana Department of Health & Hospitals (Baton Rouge) Bureau of Legal Services, for Kathy Kliebert, Interim Secretary, Louisiana Department of Health and Hospitals.

Companies: Louisiana Department of Health and Hospitals

MainStory: TopStory MedicaidNews MedicaidPaymentNews LouisianaNews

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