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Disability Law Center of Alaska v. Davidson

United States District Court, D. Alaska

March 28, 2018

DISABILITY LAW CENTER OF ALASKA, and R.S. and J.S., minors, through their parent, KIKONA SAVO, Plaintiffs,
VALERIE DAVIDSON, in her official capacity as Commissioner of the Alaska Department of Health and Social Services; and STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendants.


          H. Russel Holland United States District Judge

         Cross-motions for Summary Judgment

         Defendants move for summary judgment.[1] This motion is opposed, and plaintiffs cross-move for partial summary judgment.[2] Plaintiffs' cross-motion is opposed.[3] Oral argument was requested but was waived by counsel for plaintiffs and defendants at a status conference held on March 27, 2018.


         Plaintiffs are the Disability Law Center of Alaska, Inc. (“DLC”); and R.S. and J.S., minors, through their parent, Kikono Savo. DLC “is designated as the protection and advocacy (‘P&A') system for the State of Alaska.”[4] “P&A agencies are a nationwide network of disability rights agencies, which are mandated, under various interrelated federal statutory programs, to provide legal representation and other advocacy services on behalf of individuals with disabilities.”[5] R.S. and J.S. are children who have been diagnosed with autism spectrum disorder (ASD) and who are Medicaid recipients.[6]

         Defendants are Valerie Davidson, in her official capacity as the Commissioner of the Alaska Department of Health and Social Services; and the State of Alaska, Department of Health and Social Services. The Department of Health and Social Services administers the Medicaid program in Alaska.

         “Section 1396a of Title 42 of the United States Code sets forth the requirements for state plans for medical assistance under federal Medicaid law.” J.E. v. Wong, 125 F.Supp.3d 1099, 1104 (D. Haw. 2015). “Section 1396a(a)(10)(A) provides that a state plan for medical assistance must make certain care and services available to Medicaid recipients.” Id. “Section 1396a(a)(10)(A) references 42 U.S.C. § 1396d(a)(4)(B).” Id. “Under Section 1396d(a)(4)(B) ‘early and periodic screening, diagnostic, and treatment services [‘EPSDT'] ... for individuals who are eligible under the plan and are under the age of 21' are required services.” Id. “[A]ll medical assistance, including EPSDT, must be furnished” to Medicaid recipients “with ‘reasonable promptness[.]'” Katie A., ex rel. Ludin v. Los Angeles County, 481 F.3d 1150, 1159 (9th Cir. 2007) (quoting 42 U.S.C. § 1396a(a)(8)). “In addition to providing early and periodic screening, diagnostic, and treatment services, a participating state must also ensure that persons eligible to receive EPSDT services are informed of the EPSDT program.” J.E. v. Wong, Case No. 14-00399 HG-KJM, 2016 WL 4275590, at *14 (D. Haw. Aug. 12, 2016).

         Alaska's Medicaid State Plan includes an EPSDT program. See 7 AAC 110.200-.210. But, Alaska's Medicaid State Plan has not provided Applied Behavioral Analysis (“ABA”) therapy pursuant to the EPSDT program. “ABA therapy is an intensive behavior therapy that, among other things, measures and evaluates observable behaviors. Evidence shows that ABA therapy may help autistic children with cognitive function, language skills, and adaptive behavior.” A.F. v. Providence Health Plan, 173 F.Supp.3d 1061, 1066 (D. Or. 2016). Neither R.S. or J.S. receive ABA therapy as part of their Medicaid benefits.

         In addition to administering the Medicaid State Plan, defendants also administer two Medicaid waivers, the CCMC[7] Waiver and the PIDD[8] Waiver, which have been approved by the Center for Medicare and Medicaid Services (“CMS”) and are funded pursuant to § 1915(c) of the Social Security Act.

         Although it was suggested in 2007 that intensive early intervention for children with autism could be offered as “part of the existing Medicaid program, e.g., by designating treatment through the EPSDT program[, ]”[9] Alaska currently provides Intensive Active Treatment Services (IAT) pursuant to the CCMC and PIDD Waivers. Defendants consider a service to be an IAT service, if the service

(1) provides specific treatment or therapy that will maintain or improve the ability of the recipient to function effectively;
(2) is in the form of time-limited interventions that address
(A) the recipient's personal, social, behavioral, or mental problem;
(B) the recipient's substance use disorder; or
(C) a family problem related to the recipient's problem or disorder;
(3) requires the knowledge possessed only by professionals specially trained in specific disciplines, and the services of those professionals are not otherwise covered as Medicaid services, as day habilitation services under 7 AAC 130.260, or as residential habilitation services under 7 AAC 130.265; and
(4) provides treatment or therapy that is planned and rendered by
(A) an individual certified under AS 14.20.010 with a special education endorsement obtained under 4 AAC 12.330; or
(B) a professional licensed under AS 08 with expertise specific to the diagnosed problem or disorder, or by a paraprofessional supervised by that professional and licensed under AS 08 if required.

7 AAC 130.275(b). Defendants consider ABA therapy to be an IAT service. Currently, 16 children receive IAT services under the waiver programs.[10] It is not clear, however, whether any of these children are receiving ABA therapy as an IAT service.

         On July 7, 2014, CMS issued a bulletin, the subject of which was “Clarification of Medicaid Coverage of Services to Children with Autism.”[11] In the “Background” section, CMS noted that “[t]reatments for children with ASD [autism spectrum disorder] can improve physical and mental development.”[12] CMS also noted that “[w]hile much of the current national discussion focuses on one particular treatment modality called Applied Behavioral Analysis (ABA), there are other recognized and emerging treatment modalities for children with ASD[.]”[13] The bulletin “provide[d] information related to services available to individuals with ASD through the federal Medicaid program.”[14] One of the programs CMS reviewed in the bulletin was the EPSDT program. CMS stated that “[a]ll children, including children with ASD, must receive EPSDT screenings designed to identify health and developmental issues, including ASD, as early as possible” and that “EPSDT also requires medically necessary diagnostic and treatment services.”[15] CMS explained that “[t]he role of states is to make sure all covered services are available as well as to assure that families of enrolled children, including children with ASD, are aware of and have access to a broad range of services to meet the individual child's needs[.]”[16]

         In September 2014, CMS provided answers to questions that had been raised by states in response to the July 7, 2014 bulletin. Question 1 was whether “CM mandated [ABA] services for children under 21 with” ASD?[17] CMS replied:

No. Applied Behavior Analysis (ABA) is one treatment modality for ASD. CMS is not endorsing or requiring any particular treatment modality for ASD. State Medicaid agencies are responsible for determining what services are medically necessary for eligible individuals. States are expected to adhere to long-standing EPSDT obligations for individuals from birth to age 21, including providing medically necessary services available for the treatment of ASD.[18]

         Question 2 was “[w]hen will CMS begin to assess state compliance with coverage requirements for children” with ASD?[19] CMS replied that

[t]here is no specific time frame for CMS review of state practices in this area. The CMCS Information Bulletin released July 7, 2014 ... related to Autism Spectrum Disorder discusses the obligations under the Medicaid statute and regulations that are already in effect. However, CMS recognizes that states may not have focused on the application of these requirements in this area. As a result, a state may need time to review its current program policies to determine if changes are needed to existing state regulations and/or policy to ensure compliance. States may also want to confer with the stakeholder community for public input on the benefit design of autism services for children. CMS believes states should complete the work expeditiously and should not delay or deny provision of medically necessary services.[20]

         Question 4 asked “[h]ow should a state that has a section 1915(c) home and community-based services waiver that is limited to EPSDT-age individuals but includes services related to [ASD] that are now available through the state plan respond to this policy clarification?”[21]CMS responded that

[t]he ASD-related services should be provided through the Medicaid state plan for the EPSDT-eligible individuals, rather than the 1915(c) waiver. CMS will work with states to ensure that such services are able to be made available under the state plan. Accordingly, CMS w[ill] also work with states to remove the service from the 1915(c) home and community-based services waiver at the next amendment or renewal, whichever comes first.[22]

         In renewal requests submitted to CMS in October 2015 and February 2016, defendants proposed removing IAT services from the CCMC and PIDD Waivers by January 1, 2017.[23]

         On July 1, 2016, defendants sent a notice, in which they stated that they “anticipat[ed] an implementation date of July 1, 2017 for full application of ABA services in the State of Alaska.”[24] The Notice explained that

[t]he changes contemplated by the adoption of ABA services are being incorporated into [the Division of Behavioral Health's] broader systems review, and it is for these reasons that the Division is delaying full implementation of ABA services until next year, so that together with the key partners both within and outside of State government, the Division can develop the most robust and integrated program possible.[25]

         The Notice stated that children currently receiving IAT under the Waiver program would continue to receive these services during the transitional period.[26] As “[f]or families who are waiting for ABA service coverage through the Medicaid program, ” the Notice stated that defendants were

working very hard to ensure we have the strongest regulations in place to ensure the highest quality of services for your children. We are also working diligently with our partner State agencies to ensure that the Medicaid system is ready, so that new ABA providers can successfully enroll, bill, and receive payment for these vital services. All of this takes time, but we are confident with the final roll out of this new program, that your children will receive the highest quality of services available in Alaska.[27]

         The Notice was sent to “75 different individuals and/or entities[, ...

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