How a Legal Decision in Florida Might Affect California’s Autism Therapy Policy

A state Senate subcommittee’s discussion today about the possibility of including autism therapy as a Medi-Cal benefit may be influenced by a federal court ruling last fall in Florida.

Today’s meeting of the Senate budget subcommittee for Health and Human Services will discuss a number of important Medi-Cal issues, from provider reimbursement rates to the state’s many large program transitions — Community Based Adult Services, the Coordinated Care Initiative and pediatric dental care. California HHS Secretary Diana Dooley is scheduled to address the legislators.

Advocates’ struggles to make applied behavior analysis — known as ABA therapy — a Medi-Cal benefit will get a significant boost in today’s conversation from a recent decision by the 11th District federal appeals court in South Florida.

“The federal district appeals court said autism therapy is a required benefit under federal Medicaid law,” said Kristin Jacobson, president of Autism Deserves Equal Coverage, an advocacy group based in Burlingame.

“While the 11th circuit court is not binding over California, it is persuasive,” Jacobson said. “California is at significant risk because we believe they’re not in compliance with federal law, and that’s what the 11th circuit decision was about.”
The Sept. 20, 2013 ruling in Florida can only be appealed to the U.S. Supreme Court, so that has set a powerful precedent about coverage under a federal program. 

“If it’s required in Florida,” Jacobson said, “it’s required in California.”

Today’s Senate hearing will explore the possibility of settling the issue legislatively through a budget amendment.

“No state that has challenged ABA therapy in the courts has prevailed,” Jacobson said.

In the Florida case, the state argued that ABA therapy is experimental, but that’s an argument California can’t advance, Jacobson said, because it already requires private insurance to cover ABA as medically necessary.

“California has already concluded that it’s an essential treatment that can create harmful and irreparable harm if not applied,” Jacobson said. “So the Legislature will be discussing this as a potential budget add.”

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