Parents League for Effect. Autism v. Jones-Kelley

• Decision Date: 30 June 2008
• Docket Number: No. 2:08-CV-421.,2:08-CV-421.
• Citation: 565 F.Supp.2d 905
• Parties: PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al., Plaintiffs v. Helen JONES-KELLEY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

565 F.Supp.2d 905

PARENTS LEAGUE FOR EFFECTIVE AUTISM SERVICES, et al., Plaintiffs v. Helen JONES-KELLEY, et al., Defendants.

No. 2:08-CV-421.

United States District Court, S.D. Ohio, Eastern Division.

June 30, 2008.

COPYRIGHT MATERIAL OMITTED

Michelle Francine Atkinson, Susan Gail Tobin, Ohio Legal Rights Service, Columbus, OH, for Plaintiffs.

Ara Mekhjian, Jennifer Anne Adair, Ohio Attorney General's Office, Roger Francis Carroll, Ohio Attorney General, Columbus, OH, for Defendants.

Memorandum Opinion and Order

JAMES L. GRAHAM, District Judge.

This matter comes before the Court on Plaintiffs' Motion for a Temporary Restraining Order (Doc. 3) filed on May 2, 2008, contemporaneously with a complaint for injunctive and declaratory relief. (Doc. 2)¹. The Court held a hearing on Plaintiffs motion on June 27, 2008. On June 30, 2008, the Court denied the joint motion to dismiss filed by Defendants Helen Jones-Kelley and Sandra Stephenson (State Defendants). Because the Plaintiffs have established a likelihood of success on the underlying allegation that Ohio's proposed administrative rules violate federal Medicaid law, the Court grants Plaintiffs' motion.

I. Factual Findings

Plaintiffs are Parents League for Effective Autism Services (PLEAS), X.C., a minor and his parent, W.G., a minor and his parent, and K.W., a minor and his parent. Plaintiff PLEAS is an association of parents and families and children, including the three individual plaintiffs, who are children under the age of twenty-one with a diagnosis on the autism spectrum. Plaintiff children represented by PLEAS, as well as the three individual children, receive allegedly medically necessary services, funded by Medicaid, from Step By Step Academy (SBSA). SBSA is a nationally accredited and state certified community mental health agency that provides mental health services to children with autism.

Autism is a "complex neurodevelopmental disability that generally appears during the first three years of life which impacts the normal development of the brain, resulting in impairments of social interaction, verbal and non-verbal communication, leisure and play activities, and learning." (Complaint at ¶ 53). It is a diagnosis found in the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed., 1994 (DSM IV). See, Declaration of James A. Mulick, Ph.D at ¶ 17. In recent years, research has demonstrated that by providing a child with autism appropriate services and supports, significant gains in most life areas can be achieved and some children can go on to live and work independently as adults. See Id. at ¶ 11. For an autistic child, "the best treatment plan will include ABA [applied behavioral analysis], the only treatment approach confirmed as effective by a comprehensive evaluation of all proposed therapies in a well known government sponsored review process." Id. at ¶ 20; see also, Id. at ¶ 21 (ABA therapy is "a highly effective form of behavioral treatment in virtually all cases"). ABA therapy uses a one-on-one teaching approach that relies on reinforced practice of various skills, with the goal of getting the child as close to typical developmental functioning as possible. Id. at ¶ 21. Research has also shown ABA therapy for autistic children is most effective when it is provided 30-40 hours per week in an intensive one-on-one setting. Declaration of Beth Ann Rosner, Ph.D, at ¶ 3. ABA programs are usually conducted under the supervision of a behavioral psychologist. Mulick Decl. at ¶ 25. Intensive behavioral interventions for autistic children "represent the treatment modality that provides the maximum reduction of physical and mental disability to achieve their best possible functional level." Id. at ¶ 35.

Plaintiff children have been receiving ABA therapy, along with other services, at SBSA. SBSA provides a full-day year round treatment program that offers services to children in one-on-one and small group settings. See, Rosner Decl. at ¶ 3. Treatment offered at SBSA includes the development of language, self-help, socialization, gross and fine motor skills, cognition, and early learning skills. Id. Treatment also focuses on decreasing the severity and frequency of behavior problems that interfere with learning and social adoption in autistic children. Id. Children are generally referred to SBSA by licensed health care providers or are evaluated at SBSA by a licensed psychologist. For instance, children evaluated at Nationwide Children's Hospital Developmental Evaluation Program are often referred to SBSA because "SBSA can offer center based behavioral intervention and because they offer a high quality of service." Mulick Decl. at ¶ 34.

Plaintiffs have also provided evidence indicating that plaintiff children have benefitted from the services received at SBSA. Individual Plaintiff, X.C., is a six year old boy diagnosed with autism disorder and attention deficit hyperactivity disorder (ADHD). See, Declaration of A.C. at ¶ 2. X.C. began receiving services at SBSA in January of 2007. Upon enrolling in SBSA, X.C. was in constant motion, any change in routine led to tantrums (crying yelling, screaming and banging his head), he could not be taken out in public due to his unruly behavior, he was withdrawn and did not acknowledge others when spoken to, he ate a very limited diet, and he ate non-food items whenever he could. See, Rosner Decl. at ¶ 16. Due to his behavioral issues, X.C. receives one-to-one sessions in a room separate from other children. A.C. Decl. at ¶ 15. Since attending SBSA, X.C.'s diet has improved, he is able to communicate by tapping his mother's shoulder for attention and using "I want," "I have," and "I am' not" sentences. A.C. Decl. at ¶¶ 15, 16. X.C has tried placements with other providers with no success. Id. at ¶ 19.

PLEAS member, J.L. is autistic and has attended SBSA since April of 2006. (Plaintiffs Ex. 9). When he started SBSA, J.L. was non-verbal, had little receptive or expressive language, and severely delayed gross motor skills. Id. In addition, J.L. was exhibiting rumination (the regurgitation of previously swallowed food and liquid) at a rate of as much as 600 times per day. After starting services at SBSA, J.L.'s communication skills have increased (although they remain at the one year old level), he now responds to his name, listens to instructions and smiles when smiled at. Id. The most notable improvement has been the reduction in rumination. J.L. now typically ruminates less than five times per day. Id. Other plaintiff children have experienced similar improvement.

Defendant Helen Jones-Kelley is the Director of ODJFS, which is the agency responsible for the administration of the Medicaid program in Ohio. As Director, Jones-Kelley is responsible for ensuring that Ohio's Medicaid program complies with federal Medicaid statutes and regulations. Jones-Kelley is also responsible for ensuring that other state and county agencies and subdivisions which provide services funded by Medicaid comply with applicable federal laws. Defendant Sandra Stephenson is the Director of ODMH. As Director, Stephenson is responsible for adopting standards for services provided by community mental health facilities. ODJFS and ODMH are parties to an interagency agreement to provide behavioral health services to people who are eligible for Ohio Medicaid benefits. Defendant Kerry Weems, is the Acting Administrator of the Federal Centers for Medicare and Medicaid Services (CMS).²

In October of 2005, CMS sent a letter to Barbara Riley, then-Director of ODJFS, concerning Ohio's proposed Medicaid State plan amendments. See, Defendant's Ex. M. The letter indicated that "habilitation services" are not included in the definition of "medical assistance" and therefore, the proposed plan to cover such services under the "rehabilitative" services category could not be approved. The letter does not define "habilitation services." In August of 2007, CMS filed a proposed rule that would limit the services covered under the "rehabilitative" services category. Congress has placed a moratorium on these and other proposed restrictions on Medicaid Law.

Not long after CMS proposed rules that would curtail coverage of services under Medicaid, ODJFS proposed its own new Administrative Rules. The proposed rules change the definition of "rehabilitative services" and effectively limit the services that can be provided under Medicaid. At present, Ohio's state plan covers certain community mental health services, so long as those services are "rendered by eligible medicaid providers." Ohio Admin. Code 5101:3-27-02(A). Under this section, mental health services include community psychiatric supportive treatment (CPST) services. See, Ohio Admin. Code 5101:3-27-02(A)(6). The new version of 5101:3-27-02, effective July 1, 2008, is amended to clarify that only "rehabilitative" mental health services will be reimbursed by Medicaid. See, Ohio Admin. Code 5101:3-27-02(A), eff. 7/1/08. "Rehabilitative services" are defined in the amended version as providing for the "maximum reduction of mental illness and are intended to restore an individual to the best possible functional level." Id. CSPT services will continue to be covered by Medicaid subject to certain limitations. Ohio Admin Code 5101:3-27-02(A)(6), eff. 7/1/08. The changes to the rule reflect a much more narrow definition of "rehabilitative" than that found in the Federal Medicaid Act, which defines "rehabilitative" as "any medical or remedial services recommended by a physician or other licensed practitioner of the healing arts, within the scope of his practice under State law, for maximum reduction of physical or mental disability and restoration of a recipient to his best possible functional level." See 42 C.F.R. § 440.130(d). The federal regulations do not require that the rehabilitative services reduce "mental illness."

The second proposed change is to Ohio Admin. Code 5122-29-17, which...