State Health Officials Sued for Failing to Provide Medically Necessary Autism Treatment

Posted on

December 6, 2016

Nancy Nusser
Texas Rio Grande Legal Aid Communications Director
512 374-2764 (o); 410 934 9588 (m)

SAN ANTONIO—Texas Rio Grande Legal Aid (TRLA) and Disability Rights Texas (DRTx) filed suit today on behalf of five-year-old Bexar County twins and a teenager with autism, asserting their rights to Medicaid coverage of medically necessary treatment. The suit was filed against Texas Health and Human Services Executive Commissioner Charles Smith and Texas Medicaid Director Gary Jessee.

Federal Medicaid law gives children the right to receive medically necessary treatment. However, even though Applied Behavioral Analysis (ABA) is described by the Texas Health and Human Services Commission as “the most recommended, evidence-based treatment” for autism spectrum disorder, it is excluded from the Texas Medicaid program.

The twin boys have received some ABA therapy but not enough to substantially improve their condition, while the teenager has received no ABA therapy.

“It is time for the Texas Medicaid Program to provide this important service for children with autism spectrum disorder,” said Dr. Mark Gilger, Pediatrician-in-Chief for the Children’s Hospital of San Antonio and Vice Chair of the Department of Pediatrics at Baylor College of Medicine in San Antonio. “Applied Behavior Analysis is critical for the future success of children with autism because with proper ABA, some can live independently and function fully in school and as adults.”

The suit, filed in the U.S. District Court for the Western District of Texas, has broad implications because the number of children diagnosed with autism has risen as diagnostic efforts have improved in recent years. The U.S. Centers for Disease Control and Prevention has said that the increase in autism cases constitutes a “national health emergency.”

Child psychologist Andrew Martinez said, “I have evaluated the three boys before the Court. Each has autism spectrum disorder, and each needs Applied Behavior Analysis as soon as possible.” Dr. Martinez is one of two directors of the Autism Clinic at the Children’s Hospital of San Antonio and an assistant professor in the Department of Pediatrics at Baylor College of Medicine in San Antonio.

“But these boys are not unique,” he continued. “Almost all of the children diagnosed in our clinic with autism spectrum disorder need ABA.”

The plaintiffs are among nearly 160,000 children in Texas who are estimated to have autism spectrum disorder. State health officials have acknowledged that less than 4% of the children who require ABA are served under Texas’ limited public ABA program, which provides abbreviated services not intended to address the full range of need for children with autism spectrum disorder.

“In other states, children with autism spectrum disorder have sued to get ABA from Medicaid,” said Susan Zinn, lead counsel in the case and a TRLA attorney. “Every time children sue, they win.”

Peter Hofer, co-counsel and an attorney with DRTX, said, “Texas is one of only a handful of states still refusing to comply with the law and provide children with autism spectrum disorder the ABA treatment they medically need, and which their treating professionals have prescribed. Until Texas Medicaid decides to comply with the law or is ordered to do so, these young children will continue to suffer irreversible harm to their health and development.”

As the sole evidence-based treatment for autism spectrum disorder, ABA uses proven behavioral treatments to help children with autism improve their ability to communicate, develop personal relationships, control their behavior, and adapt to their surroundings. The treatment also reduces dysfunctional behaviors.