Disability Law Center of Alaska et al v. Valerie Davidson, et al
Filing
48
ORDER denying 30 Motion for Summary Judgment; granting in part and denying in part 32 Motion for Partial Summary Judgment. Signed by Judge H. Russel Holland on 3/28/18. (JLH, COURT STAFF)
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DISABILITY LAW CENTER OF ALASKA, )
and R.S. and J.S., minors, through their parent, )
KIKONA SAVO,
)
)
Plaintiffs, )
)
vs.
)
)
VALERIE DAVIDSON, in her official
)
capacity as Commissioner of the Alaska
)
Department of Health and Social Services;
)
and STATE OF ALASKA, DEPARTMENT
)
OF HEALTH AND SOCIAL SERVICES,
)
)
Defendants.
)
_______________________________________)
No. 3:16-cv-0277-HRH
ORDER
Cross-motions for Summary Judgment
Defendants move for summary judgment.1 This motion is opposed, and plaintiffs
cross-move for partial summary judgment.2 Plaintiffs’ cross-motion is opposed.3 Oral
argument was requested but was waived by counsel for plaintiffs and defendants at a status
conference held on March 27, 2018.
1
Docket No. 30.
2
Docket Nos. 32 and 33.
3
Docket No. 34.
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Facts
Plaintiffs are the Disability Law Center of Alaska, Inc. (“DLC”); and R.S. and J.S.,
minors, through their parent, Kikono Savo. DLC “is designated as the protection and
advocacy (‘P&A’) system for the State of Alaska.”4 “P&A agencies are a nationwide
network of disability rights agencies, which are mandated, under various interrelated federal
statutory programs, to provide legal representation and other advocacy services on behalf of
individuals with disabilities.”5 R.S. and J.S. are children who have been diagnosed with
autism spectrum disorder (ASD) and who are Medicaid recipients.6
Defendants are Valerie Davidson, in her official capacity as the Commissioner of the
Alaska Department of Health and Social Services; and the State of Alaska, Department of
Health and Social Services. The Department of Health and Social Services administers the
Medicaid program in Alaska.
“Section 1396a of Title 42 of the United States Code sets forth the requirements for
state plans for medical assistance under federal Medicaid law.” J.E. v. Wong, 125 F. Supp.
3d 1099, 1104 (D. Haw. 2015). “Section 1396a(a)(10)(A) provides that a state plan for
medical assistance must make certain care and services available to Medicaid recipients.”
Id. “Section 1396a(a)(10)(A) references 42 U.S.C. § 1396d(a)(4)(B).” Id. “Under Section
4
Complaint for Declaratory and Injunctive Relief at 2, ¶ 3, attached to Defendants’
Notice of Removal, Docket No. 1.
5
Id.
6
Id. at 3, ¶ 4.
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1396d(a)(4)(B) ‘early and periodic screening, diagnostic, and treatment services [‘EPSDT’]
... for individuals who are eligible under the plan and are under the age of 21’ are required
services.” Id. “[A]ll medical assistance, including EPSDT, must be furnished” to Medicaid
recipients “with ‘reasonable promptness[.]’” Katie A., ex rel. Ludin v. Los Angeles County,
481 F.3d 1150, 1159 (9th Cir. 2007) (quoting 42 U.S.C. § 1396a(a)(8)). “In addition to
providing early and periodic screening, diagnostic, and treatment services, a participating
state must also ensure that persons eligible to receive EPSDT services are informed of the
EPSDT program.” J.E. v. Wong, Case No. 14-00399 HG-KJM, 2016 WL 4275590, at *14
(D. Haw. Aug. 12, 2016).
Alaska’s Medicaid State Plan includes an EPSDT program. See 7 AAC 110.200-.210.
But, Alaska’s Medicaid State Plan has not provided Applied Behavioral Analysis (“ABA”)
therapy pursuant to the EPSDT program. “ABA therapy is an intensive behavior therapy
that, among other things, measures and evaluates observable behaviors. Evidence shows that
ABA therapy may help autistic children with cognitive function, language skills, and
adaptive behavior.” A.F. v. Providence Health Plan, 173 F. Supp. 3d 1061, 1066 (D. Or.
2016). Neither R.S. or J.S. receive ABA therapy as part of their Medicaid benefits.
In addition to administering the Medicaid State Plan, defendants also administer two
Medicaid waivers, the CCMC7 Waiver and the PIDD8 Waiver, which have been approved
7
CCMC stands for Children with Complex Medical Conditions.
8
PIDD stands for People with Intellectual and Developmental Disabilities.
-3-
by the Center for Medicare and Medicaid Services (“CMS”) and are funded pursuant to §
1915(c) of the Social Security Act.
Although it was suggested in 2007 that intensive early intervention for children with
autism could be offered as “part of the existing Medicaid program, e.g., by designating
treatment through the EPSDT program[,]”9 Alaska currently provides Intensive Active
Treatment Services (IAT) pursuant to the CCMC and PIDD Waivers. Defendants consider
a service to be an IAT service, if the service
(1) provides specific treatment or therapy that will maintain or
improve the ability of the recipient to function effectively;
(2) is in the form of time-limited interventions that address
(A) the recipient’s personal, social, behavioral, or mental
problem;
(B) the recipient’s substance use disorder; or
(C) a family problem related to the recipient's problem or
disorder;
(3) requires the knowledge possessed only by professionals
specially trained in specific disciplines, and the services of those
professionals are not otherwise covered as Medicaid services, as
day habilitation services under 7 AAC 130.260, or as residential
habilitation services under 7 AAC 130.265; and
(4) provides treatment or therapy that is planned and rendered by
9
The Governor’s Council on Disabilities & Special Education, Early Intensive
Intervention Services for Alaska Children with Autism: A Policy Analysis (Aug. 7, 2007)
at 4, available at http://dhss.alaska.gov/gcdse/Documents/Publications/pdf/
autism_policy.pdf. The policy analysis also suggested four other means for providing timelimited early intensive intervention services for children with autism. Id. at 4.
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(A) an individual certified under AS 14.20.010 with a
special education endorsement obtained under 4 AAC
12.330; or
(B) a professional licensed under AS 08 with expertise
specific to the diagnosed problem or disorder, or by a
paraprofessional supervised by that professional and
licensed under AS 08 if required.
7 AAC 130.275(b). Defendants consider ABA therapy to be an IAT service. Currently, 16
children receive IAT services under the waiver programs.10 It is not clear, however, whether
any of these children are receiving ABA therapy as an IAT service.
On July 7, 2014, CMS issued a bulletin, the subject of which was “Clarification of
Medicaid Coverage of Services to Children with Autism.”11 In the “Background” section,
CMS noted that “[t]reatments for children with ASD [autism spectrum disorder] can improve
physical and mental development.”12 CMS also noted that “[w]hile much of the current
national discussion focuses on one particular treatment modality called Applied Behavioral
Analysis (ABA), there are other recognized and emerging treatment modalities for children
with ASD[.]”13 The bulletin “provide[d] information related to services available to
10
30(b)(6) Deposition of State of Alaska, Department of Health and Social Services
Designee Maureen Harwood at 28:18-29:22, Exhibit 1, Memorandum of Points and
Authorities in Opposition to Defendants’ Motion for Summary Judgment and in Support of
Plaintiffs’ Cross-Motion for Partial Summary Judgment, Docket No. 33.
11
Exhibit F, Opposition to Motion for Preliminary Injunction and to Motion for
Summary Judgment, Docket No. 14.
12
Id. at 1.
13
Id.
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individuals with ASD through the federal Medicaid program.”14 One of the programs CMS
reviewed in the bulletin was the EPSDT program. CMS stated that “[a]ll children, including
children with ASD, must receive EPSDT screenings designed to identify health and
developmental issues, including ASD, as early as possible” and that “EPSDT also requires
medically necessary diagnostic and treatment services.”15 CMS explained that “[t]he role of
states is to make sure all covered services are available as well as to assure that families of
enrolled children, including children with ASD, are aware of and have access to a broad
range of services to meet the individual child’s needs[.]”16
In September 2014, CMS provided answers to questions that had been raised by states
in response to the July 7, 2014 bulletin. Question 1 was whether “CM mandated [ABA]
services for children under 21 with” ASD?17 CMS replied:
No. Applied Behavior Analysis (ABA) is one treatment modality for ASD. CMS is not endorsing or requiring any particular
treatment modality for ASD. State Medicaid agencies are
responsible for determining what services are medically
necessary for eligible individuals. States are expected to adhere
to long-standing EPSDT obligations for individuals from birth
to age 21, including providing medically necessary services
14
Id.
15
Id. at 4.
16
Id.
17
Medicaid and CHIP FAQS: Services to Address Autism at 1, Exhibit G, Opposition
to Motion for Preliminary Injunction and to Motion for Summary Judgment, Docket No. 14.
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available for the treatment of ASD.[18]
Question 2 was “[w]hen will CMS begin to assess state compliance with coverage
requirements for children” with ASD?19 CMS replied that
[t]here is no specific time frame for CMS review of state
practices in this area. The CMCS Information Bulletin released
July 7, 2014 ... related to Autism Spectrum Disorder discusses
the obligations under the Medicaid statute and regulations that
are already in effect. However, CMS recognizes that states may
not have focused on the application of these requirements in this
area. As a result, a state may need time to review its current
program policies to determine if changes are needed to existing
state regulations and/or policy to ensure compliance. States may
also want to confer with the stakeholder community for public
input on the benefit design of autism services for children. CMS
believes states should complete the work expeditiously and
should not delay or deny provision of medically necessary
services.[20]
Question 4 asked “[h]ow should a state that has a section 1915(c) home and communitybased services waiver that is limited to EPSDT-age individuals but includes services related
to [ASD] that are now available through the state plan respond to this policy clarification?”21
CMS responded that
[t]he ASD-related services should be provided through the
Medicaid state plan for the EPSDT-eligible individuals, rather
than the 1915(c) waiver. CMS will work with states to ensure
that such services are able to be made available under the state
18
Id.
19
Id.
20
Id.
21
Id. at 2.
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plan. Accordingly, CMS w[ill] also work with states to remove
the service from the 1915(c) home and community-based
services waiver at the next amendment or renewal, whichever
comes first.[22]
In renewal requests submitted to CMS in October 2015 and February 2016, defendants
proposed removing IAT services from the CCMC and PIDD Waivers by January 1, 2017.23
On July 1, 2016, defendants sent a notice, in which they stated that they “anticipat[ed]
an implementation date of July 1, 2017 for full application of ABA services in the State of
Alaska.”24 The Notice explained that
[t]he changes contemplated by the adoption of ABA services are
being incorporated into [the Division of Behavioral Health’s]
broader systems review, and it is for these reasons that the
Division is delaying full implementation of ABA services until
next year, so that together with the key partners both within and
outside of State government, the Division can develop the most
robust and integrated program possible.[25]
The Notice stated that children currently receiving IAT under the Waiver program would
continue to receive these services during the transitional period.26 As “[f]or families who are
waiting for ABA service coverage through the Medicaid program,” the Notice stated that
22
Id.
23
Exhibit I, Exhibit J, Opposition to Motion for Preliminary Injunction and to Motion
for Summary Judgment, Docket No. 14.
24
Exhibit 3 at 1, Memorandum in Support of Plaintiffs’ Motion for Preliminary
Injunction and Partial Summary Judgment, Docket No. 12.
25
Id.
26
Id.
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defendants were
working very hard to ensure we have the strongest regulations
in place to ensure the highest quality of services for your
children. We are also working diligently with our partner State
agencies to ensure that the Medicaid system is ready, so that
new ABA providers can successfully enroll, bill, and receive
payment for these vital services. All of this takes time, but we
are confident with the final roll out of this new program, that
your children will receive the highest quality of services
available in Alaska.[27]
The Notice was sent to “75 different individuals and/or entities[,]”28 including the DLC.
On October 3, 2016, Jetta Whittaker, a Health Program Manager for the State, emailed
Shante Abarabar, a CMS regional office coordinator, to ask questions about the timing of the
amendments to the CCMC and PIDD Waivers removing IAT services.29 Whittaker noted
that the Waivers currently “specify that Intensive Active Treatment is removed as of January
1[,]” 2017, but given the time required for public comment on the proposed amendments and
CMS approval, Whittaker asked whether the July 1, 2017 date should be used.30
On October 4, 2016, Abarabar asked if Whittaker knew “why the services won’t be
27
Id.
28
Letter from Stacie L. Kraly, Chief Assistant Attorney General, to Mark Regan,
Disability Law Center of Alaska; and James J. Davis, Jr., Alaska Legal Services Corporation,
at 1, Exhibit 6, Memorandum in Support of Plaintiffs’ Motions for Preliminary Injunction
and Partial Summary Judgment, Docket No. 12.
29
Exhibit L at 5, Opposition to Motion for Preliminary Injunction and to Motion for
Summary Judgment, Docket No. 14.
30
Id.
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effective in the state plan until July 1, 2017?”31 That same day, Whittaker responded that as
she understood it, the delay was because “the Division of Behavioral Health [was] working
on regulatory amendments” to the Medicaid State Plan.32
On October 13, 2016, Abarabar emailed Whittaker and others and said that
CMS has determined that the state may delay the removal of
IAT services from the PIDD and CCMC waivers until July 1,
2017.
CMS would like the state to submit the PIDD and CCMC
waiver amendments, removing IAT services at the same time as
the SPA [State Plan Amendment] to align the effective dates and
to ensure these changes are reviewed and approved in tandem.
Before Alaska officially submits its waiver amendments for
review and approval regarding the proposed changes, ... please
reinsert IAT services for children in the [CCMC and PIDD]
waivers and indicate in the brief waiver description and in the
service definitions for each waiver that as of July 1, 2017, IAT
will no longer be available to children and youth ages 0-21
through the PIDD and CCMC waiver[s] ..., and it will instead be
available through the state plan per EPSDT requirements.[33]
At some point thereafter, defendants submitted amendments to both the CCMC and
PIDD Waivers to CMS for approval, in which defendants indicated that IAT services would
be removed from the Waivers as of July 1, 2017.34
31
Id.
32
Id. at 4.
33
Id. at 3-4.
34
Exhibit B, Exhibit C, Opposition to Motion for Preliminary Injunction and to Motion
for Summary Judgment, Docket No. 14.
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On October 14, 2016, the DLC sent the State a letter in which it alleged that the State
was not in compliance with the notice provision of the Medicaid Act, 42 U.S.C. §
1396a(a)(43)(A), because the July 1, 2016 Notice was insufficient. The DLC asserted that
the July 1, 2016 Notice was insufficient because it did not inform Alaska families about how
to apply for ABA therapy.
On October 31, 2016, the State replied to the DLC’s October 14, 2016 letter.35 The
State disagreed with the DLC’s position that “the State of Alaska [must] provide, in a single
notice, a description [of] all of the possible ABA services available under the [EPSDT]
program and [how] to access those services to eligible children under the age of 21.”36
On November 1, 2016, plaintiffs commenced this action. In their complaint, plaintiffs
assert three claims: 1) a § 1983 claim based on allegations that defendants violated the notice
provision of the Medicaid Act by failing to provide adequate notice about how to apply for
and access ABA therapy under the EPSDT program, 2) a § 1983 claim based on allegations
that defendants violated the Medicaid Act by failing to reimburse for ABA under the EPSDT
program, and 3) a § 1983 claim based on allegations that defendants violated the Medicaid
Act by failing to provide ABA therapy under the EPSDT program with reasonable
promptness. For relief, plaintiffs seek a declaration that defendants have violated the
Medicaid Act by providing “inadequate notice about ABA to eligible children, and delay[ed]
35
Exhibit 6, Memorandum in Support of Plaintiffs’ Motions for Preliminary Injunction
and Partial Summary Judgment, Docket No. 12.
36
Id. at 1.
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providing ABA services to eligible children[.]”37 Plaintiffs also seek injunctive relief
directing the State to provide notice to Medicaid-eligible
children about how they may receive ABA, to begin to provide
ABA services as a covered EPSDT benefit under Alaska’s
Medicaid program to treat children with ASD, and to make
ABA providers available to Medicaid recipients who are
minors[.38]
On January 23, 2017, plaintiffs moved for a preliminary injunction “enjoining
[defendants] from failing to cover [ABA] as a service under the [EPSDT] program, from
failing to provide Alaskan families with adequate notice about [ABA], and from failing to
provide [ABA] services with reasonable promptness.”39 Plaintiffs also moved for summary
judgment on their claims for declaratory relief and asked that the court declare that
“[d]efendants have failed to cover [ABA] as a service under the [EPSDT] program;” that
“[d]efendants have failed to provide Alaskan families with adequate notice about [ABA];”
and that “[d]efendants have a legal duty to provide [ABA] services with reasonable
promptness.”40
37
Complaint for Declaratory and Injunctive Relief at 10, ¶ 1, attached to Defendants’
Notice of Removal, Docket No. 1.
38
Id. at 11, ¶ 3,
39
Proposed Preliminary Injunction at 2, attached to Plaintiffs’ Motion for Preliminary
Injunction, Docket No. 10.
40
Proposed Partial Summary Judgment Order at 2, attached to Plaintiffs’ Motion for
Partial Summary Judgment, Docket No. 11.
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On March 16, 2017, the court denied both of plaintiffs’ motions.41 The court
concluded that plaintiffs had not shown that defendants were required, but failed, to provide
ABA therapy under the EPSDT program with reasonable promptness to Medicaid-eligible
children with ASD because “defendants were reasonably following the instructions they were
receiving from CMS as to the timing of the amendments to the Waivers to take out IAT and
to the State Plan to include IAT under the EPSDT program.”42 In reaching this conclusion,
the court did, however, observe that “CMS could not waive the requirement that defendants
provide ABA under the EPSDT program[.]”43 The court also observed that “ABA is
provided to some Medicaid-eligible children through the Waiver program” and that it was
“not convinced, based on what [was] currently before it, that it could order defendants to start
providing ABA under the EPSDT program immediately, rather than waiting until July 1,
because they have violated the ‘reasonable promptness’ provision of the Medicaid Act by not
providing ABA at all.”44 The court also concluded that plaintiffs had not shown that
defendants were required, but failed, to provide families with notice about how to apply for
ABA therapy under the EPSDT program since ABA therapy was not yet available under the
41
Order re Motion for Preliminary Injunction; Motion for Partial Summary Judgment
at 28, Docket No. 22.
42
Id. at 25.
43
Id. at 23-24.
44
Id. at 26.
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EPSDT program.45
On May 2, 2017, defendants submitted proposed amendments to the CCMC and PIDD
Waivers to CMS.46 One of the changes included “in this package of amendments” was “[f]or
service of Intensive Active treatment, remove references limiting the service to those 21+
(per Regional Office advice), until the State Plan Amendment adding Applied Behavioral
Analysis is near CMS approval (then amend the waivers at that time to remove IAT for
<21).”47
On June 1, 2017, Abarabar provided the following comments to the proposed change:
CMS has determined that the state may delay the removal of
IAT services from the PIDD and CCMC waivers.
CMS would like the state to submit the PIDD and CCMC
waiver amendments, removing IAT services at the same time as
the SPA for the provision of ABA services by Licensed Behavior Analyst under Other Licensed Practitioners to align the
effective dates and to ensure that these changes are reviewed
and approved in tandem.
The state will need to submit waiver amendments for review and
approval, removing any language specifying that as of July 1,
2017, IAT service will no longer be available to children and
youth ages 0-21 through the PIDD and CCMC waiver (respectively), and it will instead be available through the state plan per
EPSDT requirements. This language should be replaced with
language specifying that the IAT service will be removed from
the PIDD and CCMC waivers pending its approval in the state
45
Id. at 27.
46
Exhibit A, Motion for Summary Judgment, Docket No. 30.
47
Id. at 2.
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plan per EDST requirements.[48]
On June 15, 2017, Abarabar sent an email to Whittaker that contained much the same
language. The email read:
CMS has determined that the state may delay the removal of
IAT services from the PIDD and CCMC waivers and continue
offering IAT as a waiver service for <21 until th[e] SPA is
approved.
The state will need to submit waiver amendments for review and
approval, removing any language specifying that as of July 1,
2017, IAT service will no longer be available to children and
youth ages 0-21 through the PIDD and CCMC waiver (respectively), and it will instead be available through the state plan per
EPSDT requirements. This language should be replaced with
language specifying that the IAT service will be removed from
the PIDD and CCMC waivers pending its approval in the state
plan per EDST requirements.[49]
Defendants published the draft regulations for public comment on August 9, 2017.
The public comment period on the draft regulations closed on October 10, 2017. On
February 2, 2018, the regulations were adopted by defendants,50 and then sent to the
Department of Law for review. The agency attorney at the Department of Law has
completed the required review but the regulations attorney has not and will need at least
thirty more days to complete the review.51 This review could take longer than thirty days
48
Id. at 3-4.
49
Exhibit B, Motion for Summary Judgment, Docket No. 30.
50
Exhibit 1, Joint Status Report, Docket No. 45.
51
Joint Status Report at 2, Docket No. 45.
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because “[i]t is nearing the end of the State’s regular legislative session” and “[t]here is also
the possibility of special legislative session(s)[.]”52
Defendants now move for summary judgment on all three of plaintiffs’ claims.
Plaintiffs cross-move for summary judgment on the issues of whether CMS has the legal
authority to authorize defendants to deny or delay the provision of ABA therapy under the
EPSDT program, and if it has such authority, whether CMS has actually exercised that
authority.
Discussion
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to show that there is an absence of genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn in
its favor. Id. at 255.
Section 1983 provides that “[e]very person who, under color of [State law] ... subjects,
or causes to be subjected, any citizen of the United States or other person within the
52
Id.
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jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured....” 42 U.S.C. § 1983. To prevail
on their section 1983 claims, plaintiffs will need to prove that defendants have deprived them
of their right to notice of available EPSDT services, their right to be reimbursed for ABA
therapy under the EPSDT program, and their right to have ABA therapy under the EPSDT
program be provided with reasonable promptness. The parties’ arguments focus on this last
alleged deprivation.
“[A]ll medical assistance, including EPSDT, must be furnished” to Medicaid
recipients “with ‘reasonable promptness[.]’” Katie A., 481 F.3d at 1159 (quoting 42 U.S.C.
§ 1396a(a)(8)). Although “summary judgment is generally an inappropriate way to decide
questions of reasonableness[,] ... reasonableness ‘becomes a question of law and loses its
triable character if the undisputed facts leave no room for a reasonable difference of
opinion.’” In re Software Toolworks Inc., 50 F.3d 615, 621-22 (9th Cir. 1994) (quoting West
v. State Farm Fire & Casualty Co., 868 F.2d 348, 350 (9th Cir. 1989)). “Accordingly,
‘reasonableness [is] appropriate for determination on [a] motion for summary judgment when
only one conclusion about the conduct’s reasonableness is possible.” Id. at 622 (quoting
West, 886 F.2d at 351).
Defendants argue that there can be no question that they are acting with reasonable
promptness because they are acting at the direction of CMS. CMS has instructed defendants
to submit the PIDD and CCMS Waiver amendments at the same time as it submits the
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amendments to the Medicaid State Plan. Defendants argue that it is reasonable for them to
follow these instructions. Although CMS’s current instructions do not indicate by what date
defendants should submit the required amendments, defendants point out that they are in the
process of promulgating the necessary amendments. And, defendants contend that there is
no way for them to speed up the regulatory process. Defendants argue that given that they
are following the instructions of CMS as to the timing of offering IAT services, which would
include ABA therapy, under the EPSDT program, the only possible conclusion a rational
fact finder could reach is that defendants have not failed to comply with the statutory
requirement that EPSDT be furnished with reasonable promptness. Thus, defendants argue
that they are entitled to summary judgment on plaintiffs’ § 1983 claim that defendants have
deprived them of their right to have ABA therapy provided under the EPSDT program with
reasonable promptness.
Plaintiffs, however, argue that a rational fact finder could conclude that defendants
have unreasonably delayed providing ABA therapy under the EPSDT program. Plaintiffs
argue that it is significant that defendants are providing IAT services to only a few Medicaideligible children. Plaintiffs cite to Rosie D. v. Romney, 410 F. Supp. 2d 18 (D. Mass. 2006),
in support of this argument. There, the plaintiffs asserted that the “[d]efendants ha[d] failed
to provide medically necessary EPSDT services to ... children suffering from serious
emotional disturbances....” Id. at 22. The court agreed because the defendants had failed to
complete comprehensive clinical assessments, had not offered ongoing case management and
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monitoring, and had not provided adequate in-home support. Id. at 52-53. The court
concluded that because the defendants had “failed to meet the substance of the EPSDT
mandate, ... they ha[d] not satisfied Congress’ command to provide services with ‘reasonable
promptness.’” Id. at 53 (quoting 42 U.S.C. § 1396a(a)(8). The court found that “[t]he fact
that [the d]efendants provide some services does not relieve them of the duty to provide all
necessary services with reasonable promptness.” Id.
In its earlier order on plaintiffs’ motions for a preliminary injunction and summary
judgment, the court distinguished this case from Rosie D., explaining that in Rosie D.
services that were required as part of the EPSDT program were
not being provided at all. Id. at 52-53. Here, ABA is provided
to some Medicaid-eligible children through the Waiver program.
Although plaintiffs contend that very few children receive ABA
under the Waiver program and they have offered evidence that
R.S. and J.S. do not, the court is not convinced, based on what
is currently before it, that it could order defendants to start
providing ABA under the EPSDT program immediately, rather
than waiting until July 1, because they have violated the
“reasonable promptness” provision of the Medicaid Act by not
providing ABA at all.[53]
But plaintiffs argue that the evidence now shows that defendants are only offering IAT
services to 16 children under the PIDD Waiver (and 0 children under the CCMC Waiver) and
that as of May 26, 2017, there were 348 children on the PIDD Waiver wait list and that the
53
Order re Motion for Preliminary Injunction; Motion for Partial Summary Judgment
at 26, Docket No. 22.
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average time a child spent on the wait list was 12 months in 2015 and 27 months in 2016.54
In addition, plaintiffs point out that IAT is not the same as ABA therapy and thus it is
unlikely that the children receiving IAT are actually receiving ABA therapy. Plaintiffs argue
that with what is now before it, the court should find that this case is just like Rosie D. in that
defendants are providing IAT services to so few children, it is as though they are not
providing ABA therapy at all.
Plaintiffs next argue that defendants cannot rely on the directions it has received via
emails from CMS because CMS does not have the authority to allow defendants to deny or
delay the provision of ABA therapy under the EPSDT program. There can be no question
that CMS cannot authorize defendants to deny the provision of ABA therapy under the
EPSDT program. CMS made clear in the July 7, 2014 bulletin and its September 2014
answers to questions about the bulletin that states are to provide ASD related services, such
as ABA therapy, through the EPSDT program. The question here is whether CMS has the
authority to allow defendants to delay providing ABA therapy under the EPSDT program.
As to that question, defendants argue that the court already held that it was appropriate
for defendants to rely on the informal instructions they have received in the emails from
CMS. Thus, defendants argue that there can be no question that CMS has the authority to
authorize a delay, and plaintiffs do not really argue to the contrary. Rather, their arguments
54
Harwood Deposition at 8:17-21; 9:9-25; 10:3-6; 11:3-6: Exhibit 1, Memorandum
of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment and
in Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment, Docket No. 33.
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focus on whether CMS has actually authorized such a delay.
First of all, plaintiffs dispute that the CMS emails state that defendants may start
providing ABA therapy whenever they choose to send a Medicaid State Plan amendment to
CMS, no matter how long that might take. Plaintiffs contend that at most CMS has indicated
that defendants may continue to offer IAT services under the waiver program until they begin
to provide ABA therapy under EPSDT. Plaintiffs argue that the point of the emails was to
ensure that children who are currently receiving IAT under the PIDD waiver are not left
without services while defendants get the autism services program in order. But, plaintiffs
argue that there is nothing in the emails that indicate that defendants may indefinitely delay
offering ABA therapy under the EPSDT program.
Secondly, plaintiffs contend that the email exchange only pertains to the effective date
of the Waivers and has nothing to do with any amendment to the Medicaid State Plan to
include ABA therapy under the EPSDT program. Plaintiffs argue that defendants have
offered nothing to show that the CMS employee who sent the emails had as one of her job
functions approval of state plan amendments having to do with EPSDT. Yet it is the
Medicaid State Plan that must be amended in order for ABA therapy to be provided under
the EPSDT program. And, plaintiffs emphasize that it is defendants, not CMS, who control
when amendments to the Medicaid State Plan are submitted for approval.
Plaintiffs also argue that if any deference is to be given to a statement from CMS, then
deference should be given to CMS’s statement in the July 2014 bulletin that states were to
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begin providing ABA therapy under the EPSDT program as expeditiously as possible.
Plaintiffs argue that “[a]lthough not entitled to Chevron deference, relatively informal CMS
interpretations of the Medicaid Act,” such as these “are entitled to respectful consideration
in light of the agency’s significant expertise, the technical complexity of the Medicaid
program, and the exceptionally broad authority conferred upon the Secretary under the Act.”
S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 590 n.6 (5th Cir. 2004).
Ultimately, regardless plaintiffs’ foregoing arguments, the issue here is whether
defendants have violated the reasonable promptness provision. Defendants argue that they
have reasonably relied on CMS’s direction to coordinate the removal of IAT services from
the Waivers with the addition of IAT services to the Medicaid State Plan. Defendants
dispute that they are asking to delay providing ABA therapy under the EPSDT program
indefinitely. Rather, defendants contend, and the evidence presently before the court tends
to show, that defendants are in the process of promulgating the necessary regulations and that
the steps remaining (review by the Department of Law and transmission to the Lieutenant
Governor’s office) are required by statute and are reasonable.
Plaintiffs, on the other hand, argue that while it may have been reasonable, as the
court previously found, for defendants to wait to amend the Medicaid State Plan until July
2017 to include ABA therapy as part of the EPSDT program, it would be entirely
unreasonable for defendants to be allowed to delay providing ABA therapy under the EPSDT
program indefinitely based on emails from CMS. Plaintiffs make much of the fact that
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defendants had represented that ABA therapy would be provided under the EPSDT program
by July 1, 2017. Plaintiffs argue that defendants have offered nothing to show why there has
been now been additional delay, and even now, in March of 2018, cannot even offer a date
by which ABA therapy under the EPSDT program might be made available.55 Plaintiffs
contend that defendants are basically arguing that CMS has told them that they can delay
implementing ABA therapy under the EPSDT program indefinitely and that there is nothing
they, or the court, can do to speed up the regulatory process. But, plaintiffs argue that this
court is not powerless to make defendants comply with federal law, which, plaintiffs argue
it is undisputed defendants are not doing.
In light of the foregoing, the court cannot decide reasonableness in this case on a
motion for summary judgment. A rational fact finder could just as easily decide that
defendants have not violated the reasonable promptness provision as it could decide that
defendants, as of the date of this order, have violated that provision. While it may have once
been reasonable for defendants to rely on the guidance they were receiving from CMS,
defendants are now arguing that CMS has told them they can take as long as they want to
begin providing ABA therapy under the EPSDT program. If that were established, such
would not be consistent with the statutory requirement that EPSDT be provided with
reasonable promptness. A rational fact finder could conclude that defendants have failed to
provide ABA therapy under the EPSDT program with reasonable promptness. Defendants
55
See Joint Status Report at 2, Docket No. 45.
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have known since July 2014 that they needed to begin providing ABA therapy under the
EPSDT program and it is now March 2018 and they are still not doing so. While they argue
that the regulatory process cannot be sped up, it is worth noting that the Medicaid regulations
provide that a state agency must “[f]urnish Medicaid promptly to beneficiaries without any
delay caused by the agency’s administrative procedures[.]” 42 C.F.R. § 435.930(a).
Defendants are not entitled to summary judgment on plaintiffs’ § 1983 claim that they
have been deprived of their right to have ABA therapy under the EPSDT program be
provided with reasonable promptness. As for plaintiffs’ other two claims, which relate to
notice about the availability of ABA therapy under the EPSDT program and reimbursement
for ABA therapy, if defendants are not entitled to summary judgment on the reasonable
promptness claim, which they are not, defendants are not entitled to summary judgment on
these claims either.
As for plaintiffs’ motion for partial summary judgment, plaintiffs only ask the court
to decide whether CMS has the authority to allow defendants to delay or deny providing
ABA therapy under the EPSDT program and whether CMS has exercised that authority.
Plaintiffs are entitled to summary judgment that CMS cannot authorize defendants to deny
providing ABA therapy under the EPSDT program, but plaintiffs are not entitled to summary
judgment as to whether CMS can authorize a delay. As for whether CMS has actually
authorized a delay, CMS has asked defendants to submit the amendments to the Waivers and
the Medicaid State Plan at the same time. That request could be viewed as CMS authorizing
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a delay. However, that request does not necessarily mean that defendants could not be
violating the reasonable promptness provision, given that CMS has also directed defendants,
along with all other states, to begin providing ABA therapy under the EPSDT program as
expeditiously as possible.
Conclusion
Defendants’ motion for summary judgment is denied. Plaintiffs’ cross-motion for
partial summary judgment is granted in part and denied in part. Plaintiffs are entitled to
summary judgment that CMS cannot authorize defendants to deny providing ABA therapy
under the EPSDT program. Plaintiffs’ cross-motion is otherwise denied.
DATED at Anchorage, Alaska, this 28th day of March, 2018.
/s/ H. Russel Holland
United States District Judge
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