Judge: Medicaid must cover some child behavioral treatments

By MARGERY A. BECK

Associated Press

OMAHA, Neb. (AP) - A judge ordered the Nebraska Department of Health and Human Services to stop excluding Medicaid coverage of certain behavioral treatments for children with developmental disabilities, saying the policy conflicts with federal law.

Lancaster County District Judge John Colburn issued the order Tuesday in a lawsuit filed on behalf of two children, listed only as “K.D.” and “S.L.”, who are covered by Medicaid and suffer from severe behavioral disorders.

The lawsuit says the children’s doctors recommended a treatment called applied behavior analysis to help them reach their full potential and be less likely to be institutionalized.

In the case of K.D., an autistic 7-year-old boy, a doctor said the treatment would help the boy’s use of verbal communication, ability to tolerate frustration and reduce aggression and tantrums.

In the case of S.L., a 6-year-old boy, the treatment was prescribed to help prevent his aggressive and self-injurious behavior and prolong his life. Without the treatment, his doctor said, the boy is at risk of being institutionalized for the rest of his life.

But the state agency’s contractor, Magellan Health Services, denied Medicaid coverage for the treatments, enforcing a state regulation that says applied behavior analysis is excluded from coverage.

According to court records, S.L. has not received the prescribed applied behavior analysis and his “behaviors have become so severe that he now resides in an extended family home.”

On Tuesday, Colburn sided with the families of the boys, saying the state regulation violates federal law that requires Medicaid to cover such services deemed medically necessary. The judge issued summary judgment for the plaintiffs and ordered the state to stop enforcing the exclusion.

Colburn also certified the case as a class action, meaning it applies to all children similarly situated to the plaintiffs.

The order drew praise from public advocacy group Nebraska Appleseed.

“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’s legal director. “The court’s ruling will allow more children to get the care they need to have the best possible future.”

Kathie Osterman, a spokeswoman for the Nebraska Department of Health and Human Services, said the agency is reviewing the judge’s order and working with the Nebraska Attorney General’s Office to determine its next steps.

Nebraska Attorney General Doug Peterson was traveling Wednesday and had not had time to thoroughly study the order and discuss it with other officials, said spokeswoman Suzanne Gage.

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