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Nebraska won’t appeal ruling expanding autism coverage under Medicaid

By Martha Stoddard / World-Herald bureau

LINCOLN — Nebraska won’t fight a judge’s order for Medicaid to start covering a potentially costly but effective treatment for children with autism.


Calder Lynch, the state Medicaid director, said Wednesday that the state would not appeal the June ruling. He wants to have all the pieces in place so Medicaid can start paying for applied behavior analysis and similar treatments by the end of the year.


“I think it’s a good service, and I’m glad that we’ve been able to move forward to provide it,” Lynch said.


The state’s decision represents a long-sought victory for parents of autistic children and their advocates.


In the past, Nebraska officials have resisted efforts to add coverage for the treatment, citing concerns about potential costs.


Lynch said the change in the state’s position stems from several factors, including a directive from the federal government and changes in what professionals consider best practices in autism treatment.


“Given the judge’s ruling and how we’ve seen this issue evolve, it didn’t make sense to continue the appeal process,” he said.


Lancaster County District Judge John Colborn issued the ruling June 30 in a class-action lawsuit.


The suit was filed in 2012 by the Nebraska Appleseed Center for Law in the Public Interest and the National Health Law Program on behalf of two boys, identified only as K.D. and S.L.


Robert McEwen, an attorney for the boys, said he was pleased that the state would not appeal.


“We now look forward to swift and complete implementation of the court’s decision so that children with serious behavioral needs can get the important services they need,” he said.


In his ruling, Colborn ordered Medicaid to start paying for applied behavior analysis and similar treatments for children if recommended by medical professionals.


Applied behavior analysis uses positive reinforcement and other techniques to change behavior. It can eliminate symptoms of autism for some children and dramatically reduce the symptoms in others. But depending on a child’s needs, it can be very intensive and expensive.


Previously Nebraska Medicaid barred coverage of behavior modification services, including applied behavior analysis. The program also prohibited coverage of mental health treatments when aimed at treating developmental disabilities.


In his order, Colborn found that the prohibitions violate federal law.


Lynch said it would take some time to implement the change, starting with developing a plan and getting court approval of the plan.


The process also involves getting federal approval, rewriting state regulations, contracting with providers and developing payment rates.


Lynch said it is too early to calculate the cost of covering the treatment.


The boys named in the lawsuit had both been denied coverage of applied behavior analysis, though their doctors had recommended the treatment to help them function better.


K.D., now 7, has been diagnosed with autism, among other conditions.


According to the petition, his behavior includes screaming, twirling, throwing tantrums, pinching, biting and banging his head.


A psychologist recommended applied behavior analysis to help him learn to follow directions, talk more, tolerate frustration better, and reduce aggression and tantrums.


S.L., now 6, has severe behavioral disorders, including running away, eating objects such as sponges and toys, slapping and biting himself, hitting others, destroying property, and licking electrical sockets.


A psychologist recommended applied behavior analysis to curb his aggression and self-injuring behavior, as well as to prolong his life and reduce his disabilities.


State officials last year estimated that 2,305 children in the Medicaid program may need the treatment. About 30 percent of Nebraska children have health coverage through Medicaid.


In Missouri, a study found that health insurance claims for applied behavior analysis treatment averaged $1,704 annually in 2013. However, the treatment can cost as much as $50,000 a year for some children.


Advocates argued that the treatment can reduce future costs by making autism less disabling or by helping people overcome it altogether.


Last year, Nebraska lawmakers mandated that some private health insurance plans cover autism diagnosis and treatment for children, including applied behavior analysis.


The new law, which applied to policies taking effect this year, was expected to benefit about 1,000 Nebraska children.


The law does not apply to self-funded insurance policies, which cover about 60 percent of Nebraskans and are regulated by federal law. The law also does not apply to most individual or small-group policies. Including those policies would have triggered a provision in the federal Affordable Care Act that requires states to pay for insurance mandates exceeding what the federal law requires.



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Nebraska Appleseed Court Victory

Court victory allows Children access to Vital Behavioral Health Treatments

Lancaster County District Court sides with Appleseed in important decision

LINCOLN — Yesterday, Lancaster County District Court Judge John Colborn issued an order protecting the rights of Nebraska children with autism and developmental disabilities to get vitally important behavioral health treatments through the Medicaid program.

The case, K.D. & S.L. v. Winterer, was filed on behalf of two Nebraska children who each have serious behavioral and mental health conditions, but had been denied coverage for necessary treatments recommended by their doctors.  The suit challenged a Nebraska Department of Health and Human Services’ (HHS) policy that excludes Medicaid coverage of certain treatments for children with developmental disabilities.  Yesterday’s decision granted the plaintiff children’s motions for class certification and summary judgment.  As a result of the judge’s order, HHS can no longer enforce these policies which have been determined by the court to be unlawful.  Part of the judge’s ruling was to certify the case as a class action, meaning the ruling applies to all children in a similar situation as the named plaintiffs.

“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 Sarah Helvey, Nebraska Appleseed Legal Director. “The Court’s ruling will allow more children to get the care they need to have the best possible future.

“Now that this order is in effect, we look forward to working with the Department to begin covering these vital treatments immediately for the hundreds of Nebraska children who need them.”

The children in this case were represented by Nebraska Appleseed, the National Health Law Program, and Husch Blackwell LLP.

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Autism Society National Conference

National Conference

Since 1965, the Autism Society has embraced its mission to make a better world for all with autism. Shortly after its founding, the Autism Society held an inaugural national conference to discuss the state of children with ASD in America. This meeting brought together parents of children with ASD to share resources, experiences and develop strategies to be effective advocates for their children

Today, the Autism Society’s annual conference represents one of the largest gathering of autism families, service providers, educators, policymakers and key allies in the disability community. Each year, the Autism Society’s annual conference and exposition features a keynote presentation, close to 100 breakout sessions, a conference exhibit hall with autism resources and networking opportunities with conference attendees from around the nation. Here you will find a comprehensive guide to the Autism Society National Conference.

46th Annual Autism Society National Conference
July 8 – 11, 2015

Register Today



LB 505 Talking Points

  • Requires certain health insurance plans sold in Nebraska to provide coverage for the diagnosis and treatment of Autism Spectrum Disorders in children and youth less than age 21.  Covered services included behavioral health treatment including applied behavior analysis (ABA) when provided or supervised by a board certified behavior analyst or licensed psychologist.  Caps coverage for ABA treatment at $40,000 each year annually to age 21.


This bill won’t cover all children in Nebraska.  Should we wait for a bill that will cover everyone?

  • We are aware that this legislation does not cover every child in Nebraska.  We estimate this bill will reach 1000 additional children.  LB 505 as amended is a compromise with insurers and limits types of policies it would affect, satisfying concerns regarding ACA. It is a compromise we are willing to make to ensure at least some families get coverage rather than know their son or daughter will not get treatment.  The amendments have been agreed to by all three health insurers in Nebraska.  Every child is worth helping.  This is a first step.  Are we saying if we can’t help everyone than we shouldn’t help anyone?  No child is dispensable.  We do not know when federal legislation may be passed.  Every minute counts for our kids.  No child can afford to wait.

Will this bill bring an additional cost to the state?

  • Language in LB505 clarifies that the proposed benefits will only apply to plans offered outside the Nebraska Exchange therefore, there will be no cost to the State of Nebraska if Health and Human Services under the Affordable Care Act determines that the benefit exceed the essential health benefits.
    • Essentially there is language that covers possible interpretations that are yet to come out of the Affordable Care Act.  This benefit will not result in the State of Nebraska paying anything to cover this benefit – excluding any requirement to cover state employees as part of their health insurance plan.


Will this bill cause an increase in my insurance premiums?

  • Small employers with group plans may receive a waiver from the Nebraska Department of Insurance if the required coverage results in a 2.5% increase or more in policy cost in one year.
    • If this benefit results in 2.5% increase in premiums, small businesses can opt out.  Missouri has a similar provision in their law and no small business has applied for the waiver since their law went into effect.
    • Actual claims data from States that were among the first to enact autism insurance reform laws demonstrate the average cost of this benefit to the insurance company to be 31 cents per member per month.
      • This issue has been studied in other states with similar legislations the cost increase is less than 1% of current health care policy premiums.  Anyone who tells you this mandate will result in an increase in premiums, demand to see the data that proves that.  There is none!  All the data from the 36 other states that have passed autism insurance legislation demonstrates that it has not resulted in any significant increase in premiums.
      • This legislation will also generate savings to public school districts ($208,500 over the educational life span) and other publicly funded organizations that try to provide services today.
      • Further, the long-term costs savings of providing early intervention services have been estimated to be $2.5M per person over their lifetime by enabling people with autism to become contributing members of society rather than remaining dependent upon public assistance for the rest of their lives. It will reduce the financial burden on society.


Are Autism therapies proven to be effective?

  • There are evidence based therapies, including ABA, that are proven and effective. This has been documented through multiple scientific studies and ABA has been endorsed as an effective method for autism treatment by the US Surgeon General, the AmericanAcademy of Pediatrics and The National Institute of Mental Health.


Is Autism an educational issue and be solved by the schools?

  • Autism is a recognized developmental disability and medical condition by the American Medical Association (AMA). Autism is a medical diagnosis, not an educational issue. It is diagnosed by a doctor, not a principal. Both diagnosis and treatment need to be performed by trained medical professionals.  The school systems don’t have, and shouldn’t be expected to have, the expertise to treat this medical condition. This situation results in higher costs in the public schools and ineffective treatments being delivered to people with autism.


This ‘mandate’ is a slippery slope and will open the door to a lot of other mandates

  • This is an argument that the insurance companies use all the time and it just doesn’t make sense.  This issue and all others should be evaluated on their own merits and that is what is happening with this bill and will happen with any future bills put before the legislature.