Eleventh Circuit Holds Florida Medicaid Program Required to Provide ABA Therapy When Medically Necessary As Treatment for Autism Spectrum Disorders

Garrido v. Interim Secretary, Florida Agency for Health Care Administration, 731 F.3d 1152 (11th Cir. 2013)

The Eleventh Circuit Court of Appeals upheld on September 30, 2013 the district court’s determination that Applied Behavioral Analysis (“ABA”) is not an experimental treatment and therefore must be provided to children screened under Florida Medicaid’s Early Periodic Screening, Diagnostic and Treatment Services (“EPSDT”) when the child’s physician determines the services are medically necessary.

Plaintiff K.G., through his next friend, Iliana Garrido, filed a complaint in federal district court in February 2011 against the Secretary of Florida’s Agency for Health Care Administration (“AHCA”) and Florida’s Medicaid administrator alleging that Florida’s denial of ABA therapy violates the Medicaid Act’s EPSDT provisions. Several months thereafter, I.D. and C.C. by their next friends were joined as plaintiffs. All three were Medicaid recipients under age 21 who had been diagnosed with autism or autism spectrum disorders during EPSDT screenings and had been prescribed ABA treatment by their physicians.

Medicaid is a jointly funded federal-state program that assists states in providing medical services to their needy citizens. Subject to the provisions of the Medicaid Act, states design their program. A state’s participation is voluntary, with all states now participating. But once a state decides to participate, it must comply with all federal statutory and regulatory requirements. One service states must provide is EPSDT for Medicaid-eligible minors under the age of 21. The EPSDT catch-all provision requires states to provide Medicaid-eligible minors “[s]uch other necessary health care, diagnostic services, treatment, and other measures…to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396(r)(5). Such services, including preventive and rehabilitative services, must be provided if the service is medically necessary to “correct or ameliorate” a condition or defect discovered during an EPSDT screening.

Medicaid permits states to place appropriate limits on services based upon medical necessity. Under Florida’s regulatory scheme medically necessary services excludes treatment that is experimental or investigational. Florida defines a treatment as “experimental” when “reliable evidence shows that the consensus among experts regarding the drug, device, or medical treatment or procedure is that further studies or clinical trials are necessary to determine its maximum tolerated dose, toxicity, safety, or efficacy as compared with the standard means of treatment or diagnosis.” Fla. Admin. Code r.59G-1.010(84)(a)3. Florida’s Medicaid Handbook enumerates the specific behavioral health services covered by Florida Medicaid, and specifically excludes community behavioral health services for treatment of autism or pervasive developmental delay.

At a four-day bench trial, AHCA employees testified that the Agency did not follow the standard process for determining whether ABA therapy was experimental. By contrast, the plaintiffs presented testimony from numerous experts that ABA is the standard means for treating autism spectrum disorders. Experts also testified that ABA treatment was medically necessary for the individual plaintiffs. The district court thus found that ABA is a preventive or rehabilitative service that is medically necessary and not experimental. It therefore found that Florida is required to provide the service to Medicaid eligible minors under age 21 if necessary to correct or ameliorate a condition discovered in an EPSDT screen. The district court then entered a permanent injunction and declaratory judgment in favor of the plaintiffs and ordered Florida to provide ABA services.

On appeal, the Eleventh Circuit upheld the decision of the district court as not an abuse of discretion, but remanded the case to the district court to clarify its order that the declaratory judgment order and permanent injunction did not eliminate the requirement that Florida make individual medical necessity determinations, consistent with that court’s own findings and written decision.

Found in DMHL Volume 32 Issue 4