I thought that this court ruling on Medicaid services would be of
interest to some on this list because of current questions of whether
applications of ABA to treatment of children with autism therapeutic,
medical v. educational, and does it constitute habilitative or
rehabilitative (please read the section describing the distinction of
habilitative/rehabilitative carefully ) treatment under the rules of
Medicaid? While this has been appealed to the 6th Circuit Court of
Appeals, I think the points raised by the lower court are worth
considering, and I will be tracking the progress in the 6th Circuit.

Medicaid Coverage of Therapeutic Treatment for Children with Autism
February 18th, 2009

Q & A - Medicaid Coverage of Therapeutic Treatment for Children with Autism
Produced by Sarah Somers
National Health Law Program with a grant from the Training and Advocacy
Support Center (TASC)
January 2009

Q. My client is a Medicaid-eligible child with autism. Our state
Medicaid agency has taken the position that therapy services for
treatment of autism can only be covered through a home and
community-based waiver. But, I have heard that a recent court decision held
that Applied Behavior Analysis Therapy (ABA) must be covered for all
Medicaid-eligible children. Is this true?

A. Yes. The decision is Parents League for Effective Autism
Services, et. al. v. Jones-Kelly, 565 F. Supp. 2d 895 (S.D. Ohio 2008)
stay den. 2008 WL 2796744 (July 17, 2008). The court held that
Medicaid's Early and Periodic Screening, Diagnostic, and Treatment
(EPSDT) provisions require that ABA therapy be covered when necessary to
correct or ameliorate a child's condition. The plaintiffs are
represented by Ohio Legal Rights Services, Ohio's P & A. The decision
has been appealed to the Sixth Circuit Court of Appeals, which will
almost certainly address the scope of services that can be covered for
children with behavioral health needs.
(...)
Medicaid Policy

Medicaid's Early and Periodic Screening, Diagnostic and Treatment EPSDT requires
coverage of all Medicaid services that are necessary to
"correct or ameliorate" a physical or mental condition of beneficiaries under
age 21. This includes any service that falls into one of the categories listed
in the federal statute at 42 U.S.C. § 1396d(a), regardless of whether the state
chooses to cover the service for adults. These categories include physician
services, hospital services, private duty nursing, personal care services,
physical therapy, and others. One of the categories of services covered,
sometimes referred to as the "rehabilitation" option, is:

Other diagnostic, screening, preventative and rehabilitative services,
including any medical or remedial services (provided in a facility,
home, or other setting) recommended by a physician or other licensed
practitioner of the healing arts within the scope of their practice
under State law, for the maximum reduction of physical or mental
disability and restoration of an individual to the best possible
functional level. (my emphasis)

(My note: This difference is significant from that of IDEA, which does
not define "maximum reduction of disability or restoration to "best
possible" functional level, but rather FAPE to obtain meaningful benefit with
specific methodology disallowable as part of the IEP process, which can, and
often does translate to something quite a bit less than "maximum reduction of
disability or restoration to best possible functional level".)
(...)
The Court granted the injunctive relief. It held that the Plaintiffs
were likely to succeed on the merits because they had "provided
sufficient evidence that ABA therapy, when recommended by a licensed
practitioner of the healing arts, is a medically necessary service . . .
[thus] the proposed [state] rules will effectively cut off funding for
medically necessary services," violating the Medicaid Act
(....)
Unlike the definition of "rehabilitative" services, the definition of
"habilitative" services does not contain the requirement that the
services be "medical or remedial" and "recommended by a physician or
other licensed practitioner of the healing arts." Moreover,
habilitation services are not . . .recommended for the "maximum
reduction of physical or mental disability and restoration of a
recipient too his best possible functional level." What truly
differentiates "habilitative" and "rehabilitative" services is the
"medical necessity of those services."

In particular, the Court took issue with ODJFS' claim that in order to
be rehabilitative, a service would have to restore skills that a child
previously had. "Taken to its logical conclusion, such a restrictive
interpretation . . . would mean that no child who is born with a
disability, could ever receive rehabilitative services. This does not
comport with the broad coverage afforded under the EPSDT mandate." The Court
also noted that section 1396a(a)(13) provided for coverage of "preventive"
services as well as rehabilitative services and opined that the ABA services at
issue "may well be `preventative' as well as
`rehabilitative.'" The Court also found that the other requirements
necessary to issue an injunction were satisfied.

FULL ARTICLE
http://drnpa.org/alerts/id/586 <http://drnpa.org/alerts/id/586>