Link to the Journal Star Story
Nebraska must pay for autism services — and any other treatments deemed medically necessary — for the state’s Medicaid-eligible children, a Lancaster County judge has ruled.
In a 19-page order filed Tuesday, District Judge John Colborn found a state Department of Health and Human Services policy that excluded Medicaid coverage of Applied Behavior Analysis services, often prescribed to treat development disabilities like autism, violated federal law.
The judge also agreed to certify the case as a class action, meaning his order applies to all children in similar situations in Nebraska. And he also ordered the state to stop enforcing its unlawful policy.
A day later, the Nebraska Appleseed Center, which filed the suit on behalf of two unnamed boys now 6 and 7, hailed the decision as a big win.
“This ruling is an important victory for Nebraska families with children who have been wrongfully denied access to essential mental and behavioral health treatments that were recommended by their doctors,” said Appleseed legal director Sarah Helvey. “The court’s ruling will allow more children to get the care they need to have the best possible future.”
Asked how HHS would move forward as a result of the ruling, spokeswoman Kathie Osterman said: “I can tell you that we’re reviewing the decision and working with the Attorney General’s Office to determine our next steps.”
The state has 30 days to decide if it wants to appeal.
Helvey said Nebraska Appleseed is looking forward to working with the department “to begin covering these vital treatments immediately for the hundreds of Nebraska children who need them.”
She believes Medicaid-eligible children should be able to get the treatments immediately.
It’s been a long time coming, Helvey said.
In 2012, working with the National Health Law Program and Husch Blackwell LLP, the Nebraska Appleseed Center filed the lawsuit on behalf of the two Nebraska boys against then-HHS director Kerry Winterer and Vivianne Chaumont, then director of the Division of Medicaid and Long-Term Care.
At the time, one was a 4-year-old diagnosed with disruptive behavior disorder, autism spectrum disorder and attention deficit hyperactivity disorder, among other issues.
The other was a 3-year-old diagnosed with Pica, an eating disorder, and stereotypic movement disorder, characteristic of repetitive, purposeless movements that can cause bodily harm.
Doctors for both boys, who are from separate families and both eligible for Medicaid, had recommended treatment that included Applied Behavior Analysis services.
But Magellan Health Services, a contractor that reviews requests for mental and behavioral health treatments for Medicaid-eligible children, denied the treatments based on HHS policy.
The policy categorically excludes Medicaid coverage for Applied Behavior Analysis services and behavior modification management.
Neither of the boys got the treatment that Nebraska Appleseed staff attorney Robert McEwen said has been shown to prevent the further progression of self-injury for developmentally disabled kids and, if provided at an early enough age, can put them back on the developmental track where they started.
“It’s been a long haul for them,” McEwen said of the boys and their families, with whom he talked on Tuesday. “It was a really happy conversation.”
He said the judge was clear about coverage of services for children under Medicaid: If a service can be covered and is allowed under Medicaid, it must be covered by the state when it’s deemed medically necessary.
Moving forward, McEwen said, the decision not only will help ensure Medicaid-eligible kids in Nebraska get Applied Behavior Analysis services but also other treatments deemed medically necessary.
He called it a big step forward for Nebraska children.