Legal Expert Says State May Be Out of Compliance on Autism Therapy Benefit

A legal expert at the National Health Law Program said California health officials might be flirting with legal risk by moving slowly to implement federal guidance on Medi-Cal coverage of autism treatment.

According to Kimberly Lewis, managing attorney of the Los Angeles office of the National Health Law Program, California is mandated to cover an autism treatment called applied behavior analysis as part of the Early and Periodic Screening, Diagnosis and Treatment benefits for all children covered by Medicaid. Federal guidance issued July 7 makes it clear that ABA therapy is an EPSDT benefit and should be provided for all Medi-Cal beneficiaries under age 21, Lewis said.

“If it’s covered under the EPSDT mandate for children, then they have to cover it,” Lewis said. “If it’s medically necessary, that’s a required benefit. It is our belief that this means the state is not in compliance with the EPSDT mandate.”

State health officials at the Department of Health Care Services have said they’re still evaluating the federal guidance to determine coverage status.

“We are not changing course on this issue,” said René Mollow, deputy director of benefits and eligibility at DHCS, in a July 17 email. “Now that we have federal guidance, we are beginning the process of planning and implementing policy based upon that federal guidance and state statutory requirements.  It is a complex process involving the department and control agencies, stakeholders, Legislature, Administration and federal government.”

Mollow said the state would need federal approval, statutory authority and state funding before it could make autism therapy a Medi-Cal benefit. Federal approval would mean filing a State Plan Amendment or federal waiver, and that might be a long process. 

Lewis said a long process could leave the state open to legal risk.

“Kids won’t get the service, number one. And that’s where legal advocates might say they should bring legal action in violation of the mandate,” Lewis said. “We currently have a settlement on mental health services under EPSDT. This would be similar.”

What the state risks by delay is control over any autism therapy program, Lewis said. If legal action prompts eventual Medi-Cal coverage of ABA therapy, then the state might find itself being told how to implement it, she said.

“When a state takes charge itself, then it will be in control of the path of implementation, without responding to a court judge saying what they have to do and when,” Lewis said.

The National Health Law Program, a national not-for-profit legal advocacy group, has offices in Washington D.C., North Carolina and Los Angeles.