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From Health Law Daily, September 5, 2017

Medicaid agency’s hopes for knockout round dashed in behavioral services fight

By Kayla R. Bryant, J.D.

In light of the wait times class members are still experiencing for receiving applied behavioral analysis (ABA) therapy for Autism Spectrum Disorder (ASD), the U.S. District Court for the Eastern District of Louisiana decided against vacating the 2014 Stipulated Order requiring the Secretary of the Louisiana Department of Health (LDH) to improve access to behavioral services. In denying the LDH Secretary’s motion to vacate, the court found that there was evidence that reduced reimbursement rates have played a role in increasing the waiting period for receiving ABA services (Chisholm v. Gee, August 30, 2017, Barbier, C.).

Background. In 1997, a class of patients with ASD alleged that the LDH violated the federal Medicaid Act by failing to provide ASD patients sufficient access to needed behavioral and psychological services. Following the court’s determination in favor of the class, the parties agreed to the 2001 Remedial Order as a remedy. A year later, the department was found in contempt, and the court entered a 2002 Contempt Order intended to improve compliance. A 2013 Contempt Order was later entered to require LDH to enroll board certified behavior analysts (BCBAs) as independent Medicaid providers due to the success in improving intellectual functioning in ASD patients by using ABA, often provided by BCBAs (see Louisiana Medicaid agency found in contempt, ordered to provide applied behavior analysis (ABA) to children with autism, July 22, 2013; Court denied request by Louisiana Medicaid agency for clarification and stay, notes continuing contempt of prior order, August 14, 2013). The 2014 Stipulated Order stemmed from negotiations to replace obsolete obligations and streamline the LDH’s responsibilities.

Stipulated order requirements. The 2014 Stipulated Order provided that after 30 months, the LDH may move to vacate the order by showing it has achieved and maintained compliance for a significant period of time. This date passed on October 1, 2016. The LDH’s motion to vacate showed that the agency has ensured that a wide range of services are provided through the class and managed through the Medicaid program, including ABA therapy services. Although the court noted that some of the order’s requirements were "undisputedly met," the class claimed that LDH had not yet complied with five requirements:

  1. to provide services with reasonable promptness under 42 U.S.C. §1396a(a)(8);
  2. to provide equal access under 42 U.S.C. §4396a(a)(30)(A);
  3. to provide emergency mental health services;
  4. to provide services other than ABA; and
  5. updating informing and training manuals.

Medical assistance. Section 1396a(a)(8) requires that state plans provide individuals with the right to apply for medical assistance, and that "such assistance shall be furnished with reasonable promptness to all eligible individuals." Although "medical assistance" had been read by the Fifth Circuit to refer to payment for services only, section 2304 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) redefined medical assistance to include payment of the cost of care and services, the care and services themselves, or both.

Reasonable promptness. The court only addressed the reasonable promptness argument, finding that LDH had not demonstrated compliance with this requirement. The class argued that LDH’s changes implemented after the 2014 order were insufficient and provided evidence that any class members were on waitlists for a year or more for ABA services. In response, the LDH disputed the number of class members waiting for such extended periods and attributed delays to a lack of qualified, licensed professionals.

The court was persuaded by the class’s evidence of the number of members waiting an extended time to receive services and that this time frame could not be considered reasonably prompt, especially in light of previously submitted evidence showing that "children with autism require early and intensive intervention." The parties disputed whether the delays were caused by the LDH’s actions or factors outside of its control, with the LDH blaming the lack of BCBAs and psychologists in the state that provided ABA services.

Reimbursement rates. The class argued that the delays were caused by the insufficient reimbursement rates for ABA services. At the time the 2014 Stipulated Order was entered, the Medicaid program paid $72 per hour for ABA therapy provided by behavior analysts and $50 for services provided by a behavior technician. As of January 1, 2017, the rates were lowered to $46 per hour for ABA therapy provided by behavior analysts or technicians with a bachelor’s degree, and $38 for therapy provided by a behavior technician without a bachelor’s degree.

From statements submitted by the class from ABA providers, the court was persuaded that the reduced reimbursement rates have at least played a role in increasing the waiting period for ABA services. The court stated that even if LDH is correct in blaming the lack of qualified professionals as part of the reason for the delays, the department has a duty to mitigate the problem and not set reimbursement rates so low that the reasonable promptness provision is frustrated. The LDH’s motion to vacate was denied.

The case is No. 97-3274.

Attorneys: David Holman Williams (Southeast Louisiana Legal Services Corp.) for Melanie Chisholm. Rebecca Claire Clement, Louisiana Department of Health & Hospitals, for Rebekah Gee.

MainStory: TopStory CaseDecisions CMSNews MedicaidNews LouisianaNews

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