Chisholm, et al v. Jindal, et al
Filing
391
ORDER & REASONS granting 364 plaintiffs' MOTION to Modify Contempt Remedy as set forth in document. Signed by Judge Carl Barbier on 7/18/13.(sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MELANIE CHISHOLM, ON BEHALF
OF MINORS, CC AND MC, ET AL
CIVIL ACTION
VERSUS
NO: 97-3274
KATHY KLIEBERT, INTERIM
SECRETARY OF THE LOUISIANA
DEPARTMENT OF HEALTH AND
HOSPITALS
SECTION: "J"(5)
ORDER AND REASONS
On May 21, 2013, following an oral argument held on May 8,
2013, the Court issued a short order granting Plaintiffs the relief
requested in their Motion to Modify Contempt Remedy (Rec. Doc.
364).
Having
considered
the
motion,
the
parties’
written
submissions, the oral arguments of counsel, the record, and the
applicable law, the Court now issues its written reasons.
PROCEDURAL HISTORY AND BACKGROUND FACTS
Medicaid is a jointly administered federal-state program of
public
assistance
that
Congress
enacted
in
1965.
A
state's
participation in the Medicaid Program is completely voluntary.
Wilder v. Virginia Hosp. Ass'n., 496 U.S. 498, 502 (1990). Although
participating states are free to design their own Medicaid Programs
and determine exactly how and in what manner they provide services,
Beal v. Doe, 432 U.S. 438, 444 (1977), they must comply with
federal law. Mitchell v. Johnson, 701 F.2d 337, 343 (5th Cir.
1983). LDHH is the single state agency designated to administer the
Medicaid program within the State of Louisiana.
In October 1997, Plaintiffs filed suit under 42 U.S.C. § 1983
against Defendant, the Louisiana Department of Health and Hospitals
("LDHH"
or
"the
Department"),1
alleging
numerous
Medicaid
violations. On March 17, 1998, this Court certified this case as a
class action, defining the class as:
All current and future recipients of Medicaid
State of Louisiana under age twenty-one who are
will
in
the
future
be
placed
on
the
Retardation/Developmental Disabilities ("MR/DD")
waiting list.
in the
now or
Mental
waiver
Thereafter, the parties entered into two partial settlements
resolving some of the Plaintiffs' claims. The Court conducted
fairness hearings on February 16, 2000 and December 14, 2000 and
approved those partial settlements. In addition, on August 30,
2000, the Court entered partial summary judgment for Plaintiffs on
some of their claims while reserving a ruling on others until the
February 16, 2000 settlement had been given an opportunity to
resolve them. Following the foregoing rulings, on October 7, 2000,
the sole remaining issue — the extent of the State's obligation,
1
The Court recognizes that the named Defendant is Kathy Kliebert, the
interim Director or the Louisiana Department of Health and Hospitals. However,
because the suit is against her in her official capacity, the Court
hereinafter refers to the Defendant as "LDHH" or "the Department" for the sake
of convenience. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989) (suit against a state official in his official capacity is generally
suit against the State itself).
2
under federal Medicaid law, to provide community-based access to
psychological and behavioral services to class members diagnosed
with autism2 — came on for a bench trial before the Court.3
A. 2001 Findings of Fact and Conclusions of Law
On February 21, 2001, the Court issued its Findings of Fact
and Conclusions of Law pursuant to Federal Rule of Civil Procedure
52(a) on the sole question of the extent to which federal Medicaid
law requires the State of Louisiana, through the LDHH, to provide
community-based behavioral and psychological services, rendered by
licensed psychologists, to class members diagnosed with autism.4
(2001 Findings of Fact and Conclusions of Law, Rec. Doc. 118)
Plaintiffs
argued,
at
that
time,
(a)
that
licensed
psychologists, as opposed to psychiatrists or other practitioners,
2
Autism is a subset of a set of disorders known as Pervasive
Developmental Disorders, which has its onset in early childhood. This Court
has previously recognized that:
Pervasive Developmental Disorders or "PDD" are disorders
characterized by severe and pervasive impairment in several areas
of development: reciprocal social interaction skills,
communication skills, or the presence of stereotyped behaviors,
interests, and activities. The qualitative impairments that define
these conditions are distinctly deviant relative to the
individual's developmental level or mental age. They include
Autistic Disorder, Childhood Disintegrative Disorder, Rett's
Disorder, Asperger's Disorder, and Pervasive Developmental
Disorder Not Otherwise Specified.
(2001 Remedial Order, Rec. Doc. 124, p. 2, ¶ 2)
3
Prior to trial, the parties consented to try the sole remaining issue
by submitting all evidence in documentary form.
4
The Court explicitly stated that "as used throughout these Findings of
Fact and Conclusions of Law, the term 'psychologist' refers to an individual
so licensed in Louisiana," and further explained, that under Louisiana law at
the time, as codified in La. R.S. 37:2356, to qualify as a licensed
psychologist, "the individual must possess a doctoral degree with a major in
psychology, have a minimum of two years of experience practicing psychology
under the supervision of a psychologist, and must pass both a written and an
oral examination." (2001 Findings of Fact and Conclusions of Law, Rec. Doc.
118, p. 4, n. 3)
3
were uniquely qualified to render the behavioral and psychological
services essential to treating children with autism and (b) that
federal Medicaid law mandated that the State provide class members
diagnosed with autism with access to behavioral and psychological
services administered by licensed psychologists. (2001 Findings of
Fact and Conclusions of Law, Rec. Doc. 118, p. 5) Moreover,
although Plaintiffs conceded, at that time, that behavioral and
psychological services were not completely unavailable under the
State's then-existing system, they argued that under the State's
then-existing system, (a) access to psychological and behavioral
services was more theoretical than real and (b) the options
provided by the state did not provide psychological and behavioral
services to the extent mandated by federal law. (2001 Findings of
Fact and Conclusions of Law, Rec. Doc. 118, p. 6) LDHH, at that
time,
did
not
dispute
Plaintiffs'
contentions
that
(a)
psychological and behavioral services would benefit class members
with autism and (b) licensed psychologists are uniquely suited to
effectively render those services. (2001 Findings of Fact and
Conclusions of Law, Rec. Doc. 118, p. 6) Rather, LDHH contended
that its then-existing system provided class members diagnosed with
autism with sufficient access to psychological and behavioral
services, pointing to various avenues through which, it asserted,
class members could access psychological services. (2001 Findings
of Fact and Conclusions of Law, Rec. Doc. 118, p. 6)
After reviewing the pertinent evidence and applicable law, the
Court concluded that under federal law, Louisiana is required to
4
provide class members diagnosed with autism with behavioral and
psychological services rendered by licensed psychologists. (2001
Findings of Fact and Conclusions of Law, Rec. Doc. 118, pp. 6-7)
The Court explained that by choosing to participate in the federal
Medicaid program and accepting federal funds, Louisiana obligated
itself to comply with federal Medicaid law. (2001 Findings of Fact
and Conclusions of Law, Rec. Doc. 118, pp. 7-8) In particular, one
of
Louisiana's
mandatory
statutory
obligations
under
federal
Medicaid law is to provide early and periodic screening, diagnosis,
and treatment services ("EPSDT") to categorically needy individuals
under age twenty-one. (2001 Findings of Fact and Conclusions of
Law, Rec. Doc. 118, p. 8) The Court observed that, in addition to
those services enumerated in the definition of EPSDT, federal law
mandates that the State provide other services, not specifically
mandated in the definition of EPSDT, if those services are a type
of "medical assistance," as defined in Section 1396d(a), that is
"necessary . . . to correct or ameliorate defects and physical and
mental
illnesses
and
conditions
discovered
by
the
screening
services . . . ." 42 U.S.C. §§ 1396(r)(5), 1396d(a). (2001 Findings
of Fact and Conclusions of Law, Rec. Doc. 118, pp. 8-9) The Court
reasoned that if the behavioral and psychological services that
Plaintiffs sought — namely behavioral and psychological services
rendered
by
licensed
psychologists
assistance" "necessary . . .
—
constituted
"medical
to correct or ameliorate defects and
physical and mental illnesses and conditions discovered by the
screening services," they qualified as EPSDT services and the State
5
was obligated to provide them to class members diagnosed with
autism. (2001 Findings of Fact and Conclusions of Law, Rec. Doc.
118, p. 9)
The Court found that the psychological and behavioral services
Plaintiffs sought constituted "medical assistance" as defined under
Section 1396d(a), because they fell within two distinct prongs of
the
statutory
definition
of
"medical
assistance,"
namely
subsections 1396d(a)(6) and 1396d(a)(13). (2001 Findings of Fact
and Conclusions of Law, Rec. Doc. 118, pp. 9-10) The Court reasoned
that psychological and behavioral services rendered by licensed
psychologists fell within subsection 1396d(a)(6) of the statutory
definition of "medical assistance," because they constituted "any
other type of remedial care recognized under State law, furnished
by licensed practitioners within the scope of their practice as
defined by State law." Id. § 1396d(a)(6). The Court reasoned that
services in question also fell within subsection 1396d(a)(13) of
the statutory definition of "medical assistance," because they
constituted "other . . . preventative, and rehabilitative services,
including any medical or remedial services . . . recommended by a
physician or other licensed practitioner of the healing arts within
the scope of their practice under State law, for the maximum
reduction of physical or mental disability and restoration of an
individual
to
the
best
the
Court
possible
functional
level."
Id.
§
1396d(a)(13).
Moreover,
concluded,
6
based
on
the
unrebutted
testimony of Plaintiffs' expert, Dr. Grant Butterbaugh, Ph.D.,5
that psychological and behavioral services rendered by licensed
psychologists
were
necessary
to
correct
or
ameliorate
the
debilitating effects of autism and that services provided through
psychiatrists or other practitioners could not substitute for
behavioral services rendered by licensed psychologists.6 (2001
Findings of Fact and Conclusions of Law, Rec. Doc. 118, pp. 11-12)
Accordingly, the Court found that the State, pursuant to the
federal EPSDT mandate, was required to provide behavioral and
psychological services rendered by licensed psychologists to class
members with autism. (2001 Findings of Fact and Conclusions of Law,
Rec. Doc. 118, p. 12)
After considering the evidence offered by both parties, the
Court concluded that the State's then-existing system did not
comply with the mandates of federal Medicaid law stating:
[T]he Court is persuaded by Plaintiffs' contention that
the availability of behavioral and psychological
services, to class members diagnosed with autism, is more
theoretical than actual under the current system. Under
5
Dr. Butterbaugh was a licensed clinical psychologist and
neuropsychologist and also served as an associate clinical professor in the
psychiatry department of the Louisiana State University School of Medicine in
New Orleans.
6
Dr. Butterbaugh testified: (1) that psychological or behavioral
interventions have been shown to be effective in improving functioning in
children with autism, (2) that the use of behavioral interventions is
essential for teaching most children with autism daily functional skills and
modifying their misbehaviors, and (3) that the effects of autism can at least
be mitigated by psychological services, and that for many individuals with
autism, psychological services are a necessary service, for which other
services cannot substitute. (2001 Findings of Fact and Conclusions of Law,
Rec. Doc. 118, p. 11) Dr. Butterbaugh also testified that psychiatrists
generally are not trained in, and do not provide, the types of intensive
behavioral treatment methodologies that have been shown to be effective in
treating children with autism. (2001 Findings of Fact and Conclusions of Law,
Rec. Doc. 118, pp. 11-12)
7
the structure of the current system system, it would seem
to be more the exception than the rule that class members
with autism would have access to psychological services.
Given that Plaintiffs are entitled to these mandatory
services, the current system falls woefully short of
complying with federal law. [LDHH's] failure to make
behavioral and psychological services available to all
EPSDT recipients who need them violates the requirement
of 42 U.S.C. § 1396d(r)(5) that the defendant provide all
services within the scope of 42 U.S.C. § 1396(a)
necessary to correct or ameliorate health conditions of
EPSDT recipients.
(2001 Findings of Fact and Conclusions of Law, Rec. Doc. 118, pp.
21-22)
After finding that LDHH's then-existing system failed to
provide psychological and behavioral services rendered by licensed
psychologists to class members diagnosed with autism, as mandated
by federal law, the Court considered the appropriate remedy.
Plaintiffs proposed that LDHH be required to allow psychologists to
enroll directly in the Medicaid program as providers of services to
class members. (2001 Findings of Fact and Conclusions of Law, Rec.
Doc. 118, p. 22) LDHH argued that such a remedy would have sweeping
effects on Louisiana's Medicaid program and was much broader than
necessary to remedy the complained-of systemic shortcomings. (2001
Findings of Fact and Conclusions of Law, Rec. Doc. 118, p. 22)
After observing that there seemed to be a possibility that the
parties could agree on a remedy short of direct enrollment that
would put the state in compliance with its obligations under
federal law, the Court pretermitted fashioning a remedy at that
time, and ordered the parties to confer and jointly submit a
proposed remedy for the identified violation of federal law. (2001
8
Findings of Fact and Conclusions of Law, Rec. Doc. 118, p. 23)
B. The 2001 Remedial Order
On June 28, 2001, after the parties conferred and jointly
submitted a proposed remedy for the Court's consideration, the
Court entered a remedial order ("2001 Remedial Order"). In the 2001
Remedial Order, the Court ordered LDHH to make available to class
members with Pervasive Developmental Disorders ("PDD"), including
class
members
with
autism,
all
necessary
psychological
and
behavioral services to correct or ameliorate their conditions.
(2001 Remedial Order, Rec. Doc. 124, pp. 1-2, ¶ 1) The Court
ordered that "[s]ufficient qualified providers will be available to
insure that the necessary services may be provided to all class
members with reasonable promptness." (2001 Remedial Order, Rec.
Doc. 124, p. 2, ¶ 3) With respect to the services that LDHH was
obligated to provide to class members, the Court specified that:
[s]ervices provided will include the necessary
evaluations; family education and training; clinical
interventions; periodic follow-up; linkages to emergency
mental health services in crisis situations; as well as
those services routinely performed by psychologists in
the practice of psychology. The psychologist will assist
multidisciplinary service providers, such as providers of
educational services, speech therapy, occupational
therapy, physical therapy, psychiatric services, personal
care services, or primary medical care, in the design of
appropriate, effective learning-based formats for
behavioral support in the delivery of multidisciplinary
services.
(2001 Remedial Order, Rec. Doc. 124, p. 2, ¶ 4).
With
respect
to
the
permissible
justifications
for
LDHH
imposing limitations upon these services to class members, the
9
Court ordered that
[a]ny limitations imposed upon these services to class
members will be justified by the fact that services
beyond those limits are not necessary to correct or
ameliorate their condition, or are not within the
services listed in 42 U.S.C. § 1396d(a) . . . This Order
does not establish by implication or otherwise, that any
service not currently covered by Louisiana Medicaid is,
or should be, included in 42 U.S.C. § 1396d(a), other
than those services described in paragraph 4 of this
Order. Defendant is not subject to an action for contempt
of this Order for denying the inclusion of any services
(other than those services described in paragraph 4 of
this Order) currently not covered by Louisiana Medicaid.
(2001 Remedial Order, Rec. Doc. 124, p. 3, ¶ 5)
Attachment A to the 2001 Remedial Order outlined the manner in
which LDHH would make the behavioral and psychological services
available to classmembers diagnosed with autism or PDD. (2001
Remedial Order, Rec. Doc. 124, p. 3, ¶ 6) The remedy outlined
consisted of two components, the State Plan Program and the Center
for Excellence. Under the State Plan Program, LDHH would establish
fifteen
teams
throughout
Louisiana,
according
to
population
distribution, consisting of a least: (1) one psychologist who would
act as team leader, (2) one person with at least a master's degree
in psychology to work with the team leader, (3) one licensed
clinical
social
worker,
and
(4)
three
behavior
intervention
specialists. (2001 Remedial Order, Rec. Doc. 124, p. 9) In order to
be qualified as a team leader, a psychologist would: (1) be
licensed by the state of Louisiana, (2) possess a doctoral degree
with a major in psychology, as provided in the licensing standards
for Louisiana psychologists, with professional training in normal
10
and abnormal childhood development, (3) have accrued a minimum of
130
hours
working
with
children
with
autism,
and
(4)
have
experience in diagnosing and treating childhood developmental and
mental
disorders,
including
conducting
functional
behavioral
assessments and implementing positive behavior support plans. (2001
Remedial
Order,
psychologists
implementing
Rec.
were
to
Doc.
be
family-centered
124,
pp.
9-10)
responsible
treatment
for
plans
The
team
leader
developing
for
each
and
child
requesting services who meets the eligibility requirements.7 (2001
Remedial Order, Rec. Doc. 124, pp. 10-11, ¶¶
2, 10)
The 2001 Remedial Order also provided detailed requirements
for each family-centered treatment plan. (2001 Remedial Order, Rec.
Doc. 124, pp. 11-13, ¶¶ 1-16) The plans were, among other things,
to be multi-disciplinary, family-centered, culturally sensitive,
and arrived at by agreement between the parents or caregivers and
the provider-teams. (2001 Remedial Order, Rec. Doc. 124, p. 12, ¶¶
4, 6) The plans were also to identify the responsibilities of both
the parents or caregivers and the provider-teams in carrying out
the plan. (2001 Remedial Order, Rec. Doc. 124, p. 11, ¶ 1) The
7
In order to be eligible for services under the State Plan Program
outlined in the 2001 Remedial Order, a child must meet the following minimum
eligibility requirements: (a) the child has a diagnosis of PDD according to a
clinically appropriate diagnostic screening tool or other assessment, or (b)
the child has an impaired functional status that can be addressed by
psychological treatment, on an instrument or other assessment of individual
functioning that is appropriate for individuals with developmental
disabilities, or (c) the child engages in recurrent behaviors that are so
disruptive or dangerous that harm to others is likely, or (d) the child
engages in recurrent behaviors that are not the result of clinically suicidal
intent that have resulted in actual physical harm to the child himself or
herself, such as bruising, lacerations or other tissue damage, or would result
in same if the child was not physically restrained.
11
plans
were
supposed
to
be
"designed
to
achieve
the
maximum
improvement of the child's functioning, given the family systems,
family readiness for change, siblings' needs, peer reactions,
child's position with the family life cycle, and school curriculum"
and "must provide adequate support (i.e., coaching, mentoring, and
on-site
assistance,
if
necessary)
for
family/caregiver
implementation." (2001 Remedial Order, Rec. Doc. 124, p. 12, ¶ 5)
The 2001 Remedial Order further specified that treatments proposed
should be based on solid, empirical evidence and contemplated
follow-up assessments and ongoing treatment for eligible class
members. (2001 Remedial Order, Rec. Doc. 124, p. 13, ¶¶ c, d)
C. The 2002 Contempt Order
On May 16, 2002, Plaintiffs filed a Motion for Civil Contempt
and Alternative Remedies ("2002 Contempt Motion") alleging that
LDHH had failed to comply with the 2001 Remedial Order. (2002
Contempt Motion, Rec. Doc. 132) Plaintiffs attached to the 2002
Contempt Motion part of the Request for Proposals that LDHH had
issued
in
connection
with
the
"Psychological
and
Behavioral
Services for Children Program" that LDHH planned to establish to
provide the fifteen teams contemplated in the 2001 Remedial Order.8
(2002 Contempt Motion, Rec. Doc. 132, pp. 3-7) Plaintiffs asserted
in their 2002 Contempt Motion that LDHH should be held in contempt,
because the schedule LDHH published in the Request for Proposals
8
LDHH issued the Request for Proposals in order to seek offers from
interested persons for the implementation of the fifteen provider teams
contemplated in the 2001 Remedial Order. (Request for Proposals, Rec. Doc.
132, p. 7)
12
showed that LDHH did not intend to begin providing services to
class members until August 15, 2002 when a prior Court order
required LDHH to implement the 2001 Remedial Order and provide
services by June 1, 2002. (2002 Contempt Motion, Rec. Doc. 132, p.
1) Plaintiffs also pointed out: (1) that in the "Overview" section
of the RFP, LDHH indicated that it intended to submit a request for
a 1915(b)(4) waiver of provisions to the Centers for Medicare and
Medicaid Services9 ("CMS") so that providers could be limited to
those LDHH contracted with pursuant to the RFP and (2) that "the
entire program is contingent on CMS's approval of the [freedom of
choice] waiver." (2002 Contempt Motion, Rec. Doc. 132, pp. 1, 7)
Plaintiffs noted that LDHH only requested the waiver in March of
2002, had not received approval of the waiver as of the time of the
filing of the 2002 Contempt Motion in May of 2002, and that CMS had
ninety days within which to rule on the requested waiver, which
extended beyond the June 1, 2002 deadline for LDHH to implement
services. Asserting that it was apparent that LDHH would not
implement services by June 1, 2002, as ordered by the Court, and
that it not even guaranteed that LDHH would implement services by
August 15, 2002, Plaintiffs requested that the Court:
(1) order LDHH to make psychological and behavioral
services available to class members by allowing private
psychologists to enroll in the Louisiana Medicaid program
and provide services to recipients under age 21 without
delay and to continue to provide services in this way
unless and until services under the Request for Proposal
9
The Center for Medicare and Medicaid Services partially regulates
state Medicaid programs.
13
are available statewide;10
(2) order that LDHH make the availability of these
services known to psychologists in the state and to class
members with autism and other pervasive developmental
disorders;
(3) order that LDHH provide payment and coverage for the
psychologists' services under the same terms as it
provides payment and coverage for visits to physicians'
offices, without designing and implementing any "prior
approval" standards and procedures, unless and until
further order of the Court;11 and
(4) order appropriate reporting as to the provision of
such services and payments made for such services.
(2002 Contempt Motion, Rec. Doc. 132, p. 2)
Plaintiffs also specifically requested that the Court order
that "[LDHH's] conformance with this temporary civil contempt
remedy
would
not
excuse
it
from
its
obligation
to
continue
implementing the previously agreed and ordered remedy." (Rec. Doc.
132, p. 10) Plaintiffs contemplated that the temporary remedy
"would be ended, by subsequent court order, once [LDHH] makes a
showing that the previously ordered services are actually available
as required by this court's previous orders." (2002 Contempt
Motion, Rec. Doc. 132, p. 11)
10
Plaintiffs requested this relief "until and unless [LDHH] completes
its venture to make services available through 15 teams statewide." (2002
Contempt Motion, Rec. Doc. 132, p. 9)
11
(2002 Contempt Motion, Rec. Doc. 132, pp. 1, 9) Plaintiffs argued
that LDHH had delayed for over a year while it attempted to implement a
program with the freedom-of-choice cost containment elements it desired, and
that the time had come for the needs of the class members, whose needs had
been illegally unmet since before the suit's inception, to be given priority.
Plaintiffs further argued that coverage should be made available for services
of psychologists and their staffs on the same terms as coverage for visits to
physicians offices, without any "prior approval" standards and procedures,
because any potential losses were more than outweighed by LDHH having saved
millions of dollars by giving no required services during the preceding years.
(Rec. Doc. 132, pp. 8-9)
14
The Court held oral argument on the 2002 Contempt Motion on
June 7, 2002. (Rec. Doc. 138) On June 17, 2002,
the Court entered
a Judgment finding by clear and convincing evidence that LDHH was
in contempt of the 2001 Remedial Order, and the January 23, 2002
order amending the implementation date in the 2001 Remedial Order
from January 1, 2002 until June 1, 2002. (2002 Contempt Order, Rec.
Doc. 140, pp. 1, 2) In the 2002 Contempt Order, the Court further
ordered
that,
"[e]ffective
immediately,
LDHH
shall
implement
coverage for services provided by licensed psychologists for all
class members who qualify for them under the terms of [the 2001
Remedial Order]," and that LDHH "shall issue individual notice of
the availability of these services to class members by June 21,
2002."12 In addition, the Court ordered LDHH to issue individual
notices seeking enrollment of psychologists to all psychologists in
the state by June 21, 2002.13 (2002 Contempt Order, Rec. Doc. 140,
p. 3, ¶ 5) The Court also ordered that, until further order of the
Court, LDHH could limit enrollment to psychologists who: (1) have
a Ph.D., (2) are licensed as psychologists in Louisiana, and (3)
are professionally qualified to treat children and/or adults with
12
The Court also ordered LDHH to update its list of class members to
the extent practical before issuing the notice, to attempt to ensure both its
currency and completeness as to class members no longer on the MR/DD waiver
waiting list. (2002 Contempt Order, Rec. Doc. 140, p. 2, ¶ 4) The Court
further ordered that if the updates to the list could not be completed before
the date for issuing notices, LDHH should nonetheless send notices to those
added to the list thereafter. (2002 Contempt Order, Rec. Doc. 140, p. 2, ¶ 4)
13
The Court further ordered LDHH to attempt to obtain consent of
Plaintiffs' counsel as to the form of such notices. (2002 Contempt Order, Rec.
Doc. 140, p. 3, ¶ 5)
15
PDD, including autism and/or developmental disabilities.14 (2002
Contempt Order, Rec. Doc. 140, p. 3, ¶ 6) The Court ordered LDHH's
counsel to provide weekly updates, in writing, to the Court and
Plaintiffs' counsel on implementation of the contempt remedy,
covering, to the extent practical, the following elements from the
Court's 2001 Remedial Order: (a) the number of providers enrolled,
(b) the locations from which the providers offer services, (c) the
total number of class members, and (d) to the extent available, the
total number of class members with a diagnosis of PDD, and their
parishes of residence. (2002 Contempt Order, Rec. Doc. 140, p. 3,
¶ 7) With regard to the initial implementation of the remedy, the
Court denied the Plaintiffs' request that the LDHH provide services
to persons who are not class members and LDHH's request to impose
prior authorization procedures. (2002 Contempt Remedy, Rec. Doc.
140, p. 3, ¶¶ 8-9) The 2002 Contempt Order provided that:
[b]ecause this remedy is intended to correct compliance
by [LDHH], and compensate class members for the failure
to comply, [LDHH] may purge itself of contempt by a
showing to the Court that it has fully implemented the
Court's previous orders, and the remedies ordered herein
shall cease on such a finding by the Court. The remedy
may also be ended by agreement of the parties, approved
by the Court, or by further order of the Court.
(2002 Contempt Order, Rec. Doc. 140, pp. 3-4, ¶ 10)
The 2002 Contempt Order also provided that "[e]ither party may
by motion seek modification of the alternative remedy ordered
14
The 2002 Contempt Order specified that the parties agreed as to the
initial means for determining these qualifications, which could be changed by
their agreement or by order of the Court. (2002 Contempt Order, Rec. Doc. 140,
p. 3, ¶ 6)
16
herein." (2002 Contempt Order, Rec. Doc. 140, p. 4, ¶ 11) On
February 21, 2013, nearly a decade after the Court issued the 2002
Contempt Order, Plaintiffs filed the instant motion seeking to
modify the contempt remedy in the 2002 Contempt Order and set the
motion for hearing, without oral argument, on April 24, 2013. (Rec.
Doc. 364) On April 4, 2013, LDHH filed a motion to continue the
submission date on Plaintiffs' motion (Rec. Doc. 366), which
Plaintiffs opposed. The Court denied LDHH's motion to continue on
April 10, 2013. (Rec. Doc. 370) On April 16, 2013, LDHH filed its
opposition to Plaintiff's Motion for Modification of Contempt
Remedy. (Rec. Doc. 367) On April 17, 2013, Plaintiffs filed a
request for oral argument. On April 22, 2013, the Court issued an
order continuing the hearing and oral argument on Plaintiff's
Motion for Modification of Contempt remedy until Wednesday, May 8,
2013. On May 3, 2013, Plaintiffs filed a motion for leave to reply
to LDHH's opposition, which the Court granted on May 8, 2013. (Rec.
Doc. 379) On Wednesday, May 8, 2013, the Court heard oral argument
on Plaintiffs' motion and took the matter under advisement. On May
21, 2013, the Court issued a short order in which it granted
Plaintiffs'
Motion
for
Modification
of
Contempt
Remedy
and
indicated that it would issue written reasons at a later date.
(Rec. Doc. 380)
17
PARTIES’ ARGUMENTS
A. Plaintiffs' Arguments
1. Requested Modification of the Remedy in the 2002
Contempt Order
The instant motion concerns a subset of the class consisting
of class members who have been diagnosed with autism or other
Pervasive Development Disorders ("PDD").15 Plaintiffs assert that
LDHH continues to fail to comply with the remedy in the 2001
Remedial
Order
pertaining
to
services
to
ameliorate
autism.
Plaintiffs seek an order modifying the 2002 Contempt Order to
require LDHH to assist class members diagnosed with autism or PDD
in locating and obtaining Applied Behavioral Analysis therapy
("ABA"), an evidence-based treatment that both parties acknowledge
has proven to be and is widely recognized by experts as one of the
most, if not the most, effective method(s) of treating autism and
other PDDs. In addition, Plaintiffs seek an order requiring LDHH to
allow additional qualified practitioners of ABA, including Board
Certified Behavior Analysts and the McNeese Autism Program, to
enroll
as
Medicaid
providers
and
provide
services
for
class
members. In particular, Plaintiffs request that the Court order
LDHH:
(1) to make provisions for the numerous Board Certified
Behavior Analysts who specialize in ABA therapy to enroll
as independent Medicaid providers, to submit claims for
their services, and to be listed as a resource for class
members in all resources informing EPSDT recipients of
15
See supra n. 2.
18
services governed by orders in this case;16
(2)
to make provisions for Board Certified Behavior
Analysts, the McNeese Autism Program, and other programs
and agencies employing Board Certified Behavior Analysts
to be reimbursed by Medicaid for intensive behavior
interventions designed and supervised by Board Certified
Behavior Analysts;
(3) to identify any other providers who are enrolled in
Medicaid who have documented evidence of equivalent
education,
professional
training,
and
supervised
experience in ABA;
(4) to provide reimbursement rates such that sufficient
qualified providers are available and that necessary
services are provided to class members with reasonable
promptness;
(5) to develop and maintain outreach and referral systems
to direct class members to providers who possess this
certification or evidence of equivalent qualifications,
for evaluation and treatment;
(6) to arrange for intensive ABA therapy for class
representatives, F.F. and A.B.;
(7) to report to the Court within forty-five days of
entry of its Order as to LDHH's implementation of the
relief;
(8) to provide monthly reports to class counsel, as to
the following, in order to insure that the modified
remedy is working:
a) the number of Board Certified Behavior Analysts
or equivalently - qualified providers of ABA
therapy enrolled in Medicaid and their locations;
b) the number of class members diagnosed with PDD
and their locations;
c) the number of class members with PDD receiving
intensive ABA therapy;
d) the number of class members with PDD receiving
other psychological or behavioral services, and the
type of practitioners from whom they are receiving
services; and
16
First Stipulation and Order, Rec. Docs. 43, 17, 31, 37-51.
19
e) the amount of Medicaid expenditures on each of
these types of services for class members with PDD.
2. Background Information
Plaintiffs
provide
a
significant
amount
of
background
information, supporting evidence, and statistics relating to: (a)
2012 changes to LDHH's Medicaid and behavioral health services
system, (b) the class representatives, (c) Applied Behavioral
Analysis, (d) Board Certified Behavior Analysts, (e) the McNeese
Autism Program, and (f) recent changes in Louisiana law relative to
private insurance coverage of ABA therapy, which is summarized
below.
a. 2012 Changes to LDHH's
Behavioral Health Services
Medicaid
and
In March of 2012, LDHH made changes to its behavioral health
service system, contracting with a managed care organization,
Magellan of Louisiana, Inc., (“Magellan”) to provide most of its
behavioral health services, including the psychological services
offered to class members. (Abadie Decl., Rec. Doc. 364-7, p. 2, ¶
8) According to Plaintiffs, providers of behavioral health services
must now enroll through Magellan and services must be prior
authorized. Plaintiffs assert that the reimbursement rates for
psychologists have been reduced, and that fewer psychologists are
treating class members. In addition, Plaintiffs assert that as part
of the changes LDHH made in 2012, it expanded the types of
providers that are allowed to enroll in Medicaid and now permits
the
enrollment
of
licensed
clinical
20
social
workers,
licensed
professional counselors, licensed marriage and family therapists,
and unlicensed providers who meet certain criteria.
b. Class Representatives
The class representatives in this case are F.F. and A.B., five
and six year old boys who have been diagnosed with autism.17 Both
class representatives' pediatricians have recommended that they
receive Applied Behavioral Analysis therapy to treat their autism.18
(Owens Decl., Rec. Doc. 364-2; Schneider Decl., Rec. Doc. 364-4) In
addition, Dr. James Mulick, Ph.D.,19 an expert on the effective
treatment of autism, reviewed F.F. and A.B.'s medical records, and
concluded based on his review that (a) both class representatives
were
properly
diagnosed
with
autism,
and
(b)
both
class
representatives need and would benefit from additional intensive
ABA therapy (thirty to forty hours per week) to correct and
17
Plaintiffs have supported these facts regarding F.F. with
declarations under penalty of perjury from Kimberlee Owens, F.F.'s mother,
(Owens Decl., Rec. Doc. 364-2) and Christine Tilley, a Board Certified
Behavior Analyst who provides ABA therapy to children in the New Orleans area
and who began providing ABA therapy to F.F. in September of 2009. (Tilley
Decl., Rec. Doc. 362-3)
18
F.F.'s developmental pediatrician recommended that he receive ABA
therapy. (Owens Decl., Rec. Doc. 364-2, p. 2, ¶ 7) A.B.'s pediatrician stated:
(1) a program of ABA therapy is medically necessary for A.B.; (2) ABA therapy
is the only evidence-based therapeutic intervention for autism; and (3) ABA
therapy is accepted standard practice for treatment of autism. (Schneider
Decl., Rec. Doc. 364-4, p. 3, ¶¶ 6-7)
19
Dr. Mulick is a psychologist who is currently employed at the Child
Development Center at the Nationwide Children's Hospital in Columbus, Ohio and
at the Ohio State University College of Medicine. He is a full professor at
Ohio State University both in the Department of Psychology, Division of
Intellectual & Developmental Disabilities, and in the Department of
Pediatrics, Division of Behavioral and Developmental Pediatrics. Dr. Mulick
has practiced as a psychologist for 38 years, published numerous articles,
trained numerous professionals about autism and effective autism treatments,
and diagnosed and treated more than 3,000 individuals with autism and other
developmental disabilities. (Mulick Decl., Rec. Doc. 364-6, p. 2, ¶¶ 1-4)
21
ameliorate the effects of their autism on their learning, behavior,
and/or socialization. (Mulick Decl., Ex. 5 to Pl.'s Mot., Rec. Doc.
364-6, p. 18, ¶¶ 44-49)
Both class representatives assert that
because Medicaid does not cover ABA therapy, they are unable to
obtain as much ABA therapy as needed due to their families'
financial constraints. (Owens' Decl., Rec. Doc. 364-2, pp. 3-4, ¶¶
14, 16; Teekel Decl., Rec. Doc. 364-2, pp. 2-3, ¶¶ 8, 13)
c. Applied Behavioral Analysis
Since the Court issued the 2002 Contempt Order, there has been
an expansion of the availability of evidence-based treatments for
children with autism through Board Certified Behavior Analysts
("BCBAs") who provide ABA therapy. ABA therapy is a type of
behavioral health service that relies on reinforced practice of
various systematically taught skills and is highly effective in
treating autism in a high percentage of cases.20 ABA interventions
are based on scientific research and aim to help people develop new
behavior, increase or decrease existing behavior, and emit behavior
under specific environmental conditions. More than forty years of
peer-reviewed research validates early interventions for autism
that are conceptually grounded in ABA.21 In 1998, the United States
20
This information in this section regarding ABA therapy is based on
Dr. Mulick's declaration, which was submitted by Plaintiffs. See supra n. 19.
Defendants do not dispute this contention. (Def.'s Opp., Rec. Doc. 371, pp. 12).
21
According to Dr. Mulick, in 1987, Professor Lovaas wrote a landmark
paper that was published as the lead article in the most prestigious clinical
psychology journal published by the American Psychological Association. In
that article, Lovass announced the results of his Young Autism Project,
outlined the "UCLA model" of early intensive behavioral treatment, and
demonstrated that young children with autism given intensive behavior therapy
22
Surgeon
General
demonstrate[s]
reducing
concluded
the
efficacy
inappropriate
that
of
"[t]hirty
applied
behavior
and
years
behavioral
increasing
of
research
methods
in
communication,
learning, and appropriate social behavior."
d. Board Certified Behavior Analysts
Board Certified Behavior Analysts ("BCBAs") are professionals
who have (a) completed either a Master's Degree or a Doctorate from
an accredited university with rigorous coursework, training, and
supervised experience in ABA therapy and (b) passed the national
credentialing
exam
administered
by
the
Behavior
Analyst
Certification Board. (Mulick Decl., Rec. Doc. 364-4, p. 15-16, ¶
39) The Behavior Analyst Certification Board is a credentialing
organization that has established uniform content, standards, and
criteria for professionals to meet and establish their competence
and experience in ABA therapy.22 BCBAs are independent practitioners
who may work as employees or independent contractors for an
organization. (Mulick Decl., Rec. Doc. 364-4, p. 16, ¶ 39) BCBAs
during preschool could achieve normal levels of intellectual functioning. Dr.
Mulick explains that the UCLA model had several important components. First,
the treatment is usually required to be carried out for approximately three
years and it is intensive, in that it is delivered five to six hours per day
during one-on-one sessions with a trained therapist implementing the
treatment. Second, the treatment program is administered by four to five
therapists who work part-time with the individual child. Third, therapists are
closely supervised by senior therapists and other professionals who assure
treatment fidelity. Fourth, parents are encouraged to observe treatment
sessions so that they can be able to expect the child to perform what they
learned outside of therapy. Fifth, therapists convey to the parents how to use
the behavior analytic teaching procedures with their children. The use of
several therapists and the involvement of parents promotes generalization of
skills learned during therapy sessions and provides additional practice.
22
See http://www.bacb.com/index.php?page=1.; (Green Decl. Rec. Doc. 791, p. 4, ¶ 10)
23
design behavior analytic interventions and supervise Assistant
Behavior
Analysts
and
others
who
actually
implement
behavior
analytic interventions. (Mulick Decl., Rec. Doc. 364-4, p. 16, ¶
39) According to the Behavior Analyst Certification Board, there
were 65 BCBAs in Louisiana on February 1, 2013, none of whom were
certified prior to 2003.23 (Abadie Decl., Rec. Doc. 364-7, p. 2, ¶¶
12, 16) None of these 65 BCBAs is included on the list of providers
that LDHH submitted to Plaintiffs or the Magellan website, and
although one BCBA provider was on the 2011 list of Medicaidenrolled psychologists, it is no longer on the list. (Abadie Decl.,
Rec. Doc. 364-7, pp. 3-4, ¶¶ 11-16) At present, LDHH does not
permit BCBAs to enroll and be reimbursed as Medicaid providers
solely by virtue of their certification, and does not maintain
records of Medicaid-enrolled providers who are certified to provide
ABA therapy.24
23
This information was based on a declaration under penalty of perjury
from Jeanne Abadie ("Ms. Abadie"), the Compliance Specialist in the Advocacy
Center's New Orleans office, whose responsibilities at the Advocacy Center
include monitoring compliance with settlement agreements and consent decrees,
including the orders in this case. (Abadie Decl., Rec. Doc. 364-7, p. 2, ¶ 1)
Ms. Abadie stated that she gathered this information by reviewing the Behavior
Analyst Certification Board's website, which provides the original
certification date of each BCBA, and found that the earliest date that any of
the current BCBAs in Louisiana was certified was in 2003, after the Court
issued the 2002 Contempt Order. (Abadie Decl., Rec. Doc. 364-7, p. 2, ¶¶ 1116)
24
In support of this assertion, Plaintiffs rely on LDHH's response to
interrogatories 5 and 6, in which LDHH stated:
"[LDHH] does not distinguish psychologists who provide ABA from
those who provide other psychological services. They are simply
enrolled as licensed psychologists. In addition to the psychologists
enrolled in Medicaid, there are licensed psychologists who contract
with Magellan through the Louisiana Behavioral Health Partnership.
Magellan also contracts with licensed clinical social workers,
licensed professional counselors, and licensed marriage and family
therapists, as well as unlicensed providers who meet certain
criteria. Any of these providers could be providing ABA therapy
24
e. The McNeese Autism Program
The
McNeese
Autism
Program
is
housed
in
the
Kay
Dore
Counseling Clinic of McNeese State University and provides a full
range of ABA-based services for children with autism.25 The McNeese
Autism Program is part of the Department of Psychology and serves
as the training site for master's level students in the ABA
concentration. The McNeese Autism Program has a Director — a
masters' level BCBA — who provides clinical direction, and also
employs two other BCBAs, one of whom has earned a Ph.D. In addition
to
providing
clinical
service,
each
of
the
BCBAs
serve
as
supervisors, trainers, and teachers for master’s level interns
assigned to the McNeese Autism Program. In the typical McNeese
Autism
Program
service,
the
BCBAs
develop
a
recommended
because ABA therapy consists of an assessment and treatment.
Treatment
could
be
cognitive
behavior
therapy,
individual
psychotherapy or behavior therapy, but any of these therapies could
be billed under the same code.
(LDHH Resp. to Interrogatory No. 5, Rec. Doc. 364-13, p. 4)
When asked to list the Medicaid-enrolled providers who are certified as
behavior analysts by the Behavior Analyst Certification Board or who have
documented evidence of equivalent education in ABA, the locations from which they
provide services, and the last date of services to a class member for which that
provider submitted a request for Medicaid reimbursement, LDHH responded that:
The Department does not capture this information when licensed
psychologists enroll in the Medicaid program. Likewise, Magellan
does not capture this information when providers contract with them.
(LDHH Resp. to Interrogatory No. 6, Rec. Doc. 364-13, p. 4)
25
These facts about the McNeese Autism Program are based on the
declaration under penalty of perjury of Cameron Melville, Ph.D. (Melville
Decl., Rec. Doc. 364-8). Dr. Melville is a psychology professor at McNeese and
the Director of Graduate Training for the Department of Psychology. (Melville
Decl., Rec. Doc. 364-8, p. 2, ¶¶ 1, 2) He has a Ph.D in psychology with a
specialization in behavior analysis and extensive experience behavior analysis
and psychology. (Melville Decl., Rec. Doc. 364-8, p. 2, ¶¶ 1, 2)
25
Intervention Plan26 based on a functional assessment of many of the
child's behavior domains, and the one-on-one treatment sessions27
are conducted by master’s level interns with close supervision by
the
BCBAs.
Allison
Bennett,
Ph.D.,
a
licensed
psychologist,
oversees every aspect of the intervention but does not directly
deliver the intervention. (Melville Decl., Rec. Doc. 364-8, p. 4,
¶ 6)
The Intervention Plan is reviewed with the child’s family,
which also receives training and practice in the basic ABA-based
procedures to be used with the child, along with data collection
procedures
for
the
targeted
behavior.
Once
per
week,
formal
treatment team meetings are conducted to review progress and update
Intervention Plans, and at least once per month, follow up meetings
between the treatment team and the family are conducted. Functional
re-assessments are conducted every six months and the child’s
Intervention Plan is updated based on the results of the reassessment. Treatment outcomes of the McNeese Autism Program have
been
consistent
with
the
studies
that
have
demonstrated
the
effectiveness of ABA methods.
The McNeese Autism Program is funded through fees charged for
26
The Intervention Plans include behaviors targeted for change,
sequence, ABA procedures to be implemented, data to be tracked, and the
recommended intensity of intervention, or hours per week, required to achieve
goals, based on a functional assessment of many of the child’s behavior
domains.
27
Each one on one session follows precise ABA-based procedures focused
on the skills identified in the Intervention Plan and involves within-session
recording of targeted behavior that is used to monitor the child’s ongoing
behavioral changes and evaluate and adjust the intervention.
26
service paid by the families receiving the service or a third party
insurance carrier. The service rates are set at $50 per hour for
one-on-one treatment, $95 dollars per hour for BCBA services, and
$45 per hour for family training. Although the McNeese Autism
Program is enrolled as a Medicaid provider, LDHH does not permit it
to bill for services because of its service delivery model.
Louisiana Medicaid staff has informed McNeese Autism Program staff
that Medicaid rules require that the licensed psychologist deliver
the services directly to the client and that Medicaid will not
reimburse for ABA services provided by others – such as the
graduate
interns
–
under
the
supervision
of
the
licensed
psychologist. (Melville Decl., Rec. Doc. 364-8, pp. 6-7, ¶ 10)
f. Changes in Louisiana Law Relative
Private Insurance Coverage of ABA therapy
to
Plaintiffs point out that in 2008, the Louisiana Legislature
passed a law, Act 648 of 2008, codified at La. R.S. 22:1050,
requiring private insurance companies to cover ABA therapy when
provided by a BCBA. The statute provides that all health coverage
plans issued in the state after January 1, 2009 are required to
provide coverage for the diagnosis and treatment of autism spectrum
disorders in individuals under 17 years of age. Treatment services
include
“applied
behavioral
analysis,”
a
service
that
is
specifically defined, when provided by a BCBA or a person who has
provided documented evidence of equivalent education, professional
training, and supervised experience in ABA. La. R.S. 1050(G)(2).
27
3. Plaintiffs' Arguments
Plaintiffs argue that the 2002 Contempt Order provides for its
modification and should be modified to enlist additional providers,
because the civil contempt sanction in the 2002 Contempt Order (a)
has not resulted in LDHH’s compliance with the 2001 Remedial Order
and (b) has not compensated Plaintiffs by providing services as
extensive as those the parties agreed to in the 2001 Remedial
Order. Plaintiffs contend that LDHH has not complied with the
requirement in paragraphs 1 and 3 of the 2001 Remedial Order that
it “make available to class members with Pervasive Developmental
Disorder or “PDD,” all necessary psychological and behavioral
services, including diagnostic services and treatment, to correct
or ameliorate their conditions,” and that “[s]ufficient qualified
providers will be available to insure that the necessary services
may be provided to all class members with reasonable promptness.”
Plaintiffs also assert LDHH has failed to comply with the provision
of the 2001 Remedial Order requiring LDHH to establish fifteen
multi-disciplinary
psychologists,
teams
masters
throughout
level
Louisiana
psychologists,
consisting
licensed
of
clinical
social workers, and behavior intervention specialists. Plaintiffs
emphasize that although the Plaintiffs' case had centered on the
need for the services of licensed psychologists in ameliorating
autism,28 the agreed-upon remedy established in the 2001 Remedial
28
The Court's 2001 Findings of Fact and Conclusions of law focused on
the narrow issue of whether the State was obligated to provide class members
with access to licensed psychologists, although the 2001 Remedial Order, which
both parties agreed to, contemplated the formation of 15 teams, dispersed
28
Order did not rely on psychologists alone to meet class members’
needs, instead supplementing the psychologists with teams of other
persons without doctorates whose services could be accessed more
frequently than those of licensed psychologists, thereby allowing
the
implementation
of
the
intense
behavioral
interventions
necessary to reverse autism. Plaintiffs assert that this is the
essence of ABA therapy.29 (Pl.’s Mem. In Supp. of Mot., Rec. Doc.
364-1, p. 3). In addition, Plaintiffs assert that LDHH has not
provided
reports
to
Plaintiffs'
counsel
on
the
numbers
and
locations of enrolled psychologists and the number and parishes of
residents of class members diagnosed with PDD, as it is required to
do under the 2001 Remedial Order and the 2002 Contempt Order,30 for
throughout the State of Louisiana according to population, which would consist
of one licensed psychologist who would serve as team leader and oversee
several non-psychologist individuals, including 3 "behavior intervention
specialists" per team. (2001 Remedial Order, Rec. Doc. 124, pp. 9-10, ¶
3(A)(a)).
29
The 2001 Remedial Order provided in pertinent part: "DHH will
establish 15 teams throughout the state consisting of at least the following:
1 psychologist who will act as the team leader; 1 person with at least a
master's level in psychology, to work under the team leader; 1 Licensed
Clinical Social Worker; 3 behavior intervention specialists." (2001 Remedial
Order, Rec. Doc. 124, p. 9, ¶ 3(A)(a)) (emphasis added).
30
The 2001 Remedial Order provides in pertinent part that "[LDHH] will
report to Plaintiffs' counsel bi-monthly on the following: the number of
providers enrolled and the locations from which the providers offer services;
the total number of class members, and, if available, the total number of
children, with a diagnosis of PDD (whether or not they have been evaluated by
a provider) . . . " (2001 Remedial Order, Rec. Doc. 124, p. 4, ¶ 7) The 2002
Contempt Order provided, with respect to reporting, that:
LDHH's counsel shall provide weekly updates to the Court and
plaintiffs' counsel in writing on the implementation of the remedy,
until further order of the Court. These reports shall also, to the
extent practicable, cover the following elements from the Court's
previous order:
a.
b.
c.
d.
The number of providers enrolled;
The locations from which the providers offer services;
The total number of class members;
To the extent available, the total number of class members
29
several years.31
Plaintiffs
argue
that
the
2002
contempt
remedy
has
not
adequately compensated Plaintiffs for LDHH's contempt of the 2001
Remedial Order. Plaintiffs contend that the actual provision of
psychological services to class members diagnosed with autism is
minimal. Plaintiffs contend that they propounded discovery on LDHH
in October of 2012 and that LDHH responses regarding (a) the amount
of its expenditures on psychological services for class members
diagnosed with autism or PDD between 2010 and 2013, and (b) the
number of class members who received Medicaid services from a
licensed psychologist between 2010 and 2013 demonstrate that the
contempt
remedy
in
the
2002
Contempt
Order
is
inadequate.
Plaintiffs assert that there are at least 1,027 class members that
have diagnoses of autism or PDD, and that a 2008 report from the
federal Centers for Disease Control indicates that the prevalence
of autism spectrum disorders in the population has increased
with a diagnosis of PDD, and their parishes of residence.
(2002 Contempt Order, Rec. Doc. 140, p. 3, ¶ 7)
31
In support of this proposition, Plaintiffs cite the declaration of
Jeanne Abadie, an Advocacy Center employee whose job responsibilities include
monitoring compliance with court orders and consent decrees. Ms. Abadie's
affidavit reflects that there was period between September of 2010 and October
of 2012, during which time LDHH did not send Plaintiffs' counsel any reports
regarding the number of providers enrolled pursuant to the contempt remedy
embodied in the 2002 Contempt Order. (Abadie Decl., Rec. Doc. 364–7, p. 2, ¶¶
1-3) In October of 2012, Plaintiffs' counsel propounded interrogatories on
LDHH seeking information about the number of licensed psychologists enrolled
as Medicaid providers, the locations from which the psychologists provide
services, and the last dates that these licensed psychologists provided
services to class members for which they submitted a claim for Medicaid
reimbursement. Id. ¶ 4.
30
substantially over the last decade.32 The Plaintiffs provide the
following table showing the amount of LDHH's expenditures on
psychologists's services for class members between 2010 and 2013.33
State Fiscal Psychologists’ Evaluations,
Non-evaluation
Year
2010
2011
2012
2013 (part)
services
Testing, or
Services
$28,122
$36,828
$34,888
$11,439
Assessments
$11,315
$13,542
$9,759
$2,192
$16,807
$23,286
$25,129
$9,247
Plaintiffs have offered another table, also derived from
LDHH's recent discovery responses, designed to show how many of the
approximately 1027 class members diagnosed with autism or PDD
received Medicaid services from a licensed psychologist between
2010 and 2013.34
32
Autism and Developmental Disabilities Monitoring Network Surveillance
Year 2008 Principal Investigators, "Prevalence of Autism Spectrum
Disorders—Autism and Developmental Disabilities Monitoring Network, 14 Sites,
United States, 2008," Morbidity and Mortality Weekly Report 61:3 (March 30,
2012), U.S. Department of Health and Human Services, Centers for Disease
Control and Prevention, online at http://www.cnn.com/2012/03/29/health/autism/
index.html (last visited July 17, 2013).
33
This table was created by Jeanne Abadie, the Advocacy Center's
Compliance Specialist in the New Orleans office based on documents that LDHH
produced in response to Plaintiffs' recent discovery requests, in particular
LDHH's First Supplemental Answer to Interrogatories 2 and 3 (Rec. Doc. 364-10,
pp. 7-8) and LDHH's Third Supplemental Answers to Interrogatories 2, 3, and 4
(Rec. Doc. 364-11, pp. 24-26) In her affidavit, Ms. Abadie explains how she
derived the numbers in the table. (Abadie Decl., Rec. Doc. 364-7, pp. 5-7, ¶¶
17-21)
34
This table was also created by Jeanne Abadie, see supra n. 33, based
on LDHH's First Supplemental Response to Interrogatories 2 and 3 (Rec. Doc.
364-10), and LDHH's Fourth Supplemental Answer to Interrogatory 1. (Rec. Doc.
364-12) In her declaration, Ms. Abadie explains how she derived the figures.
(Abadie Decl., Rec. Doc. 364-7, pp. 22-23, p. 6, ¶¶ 22-23)
31
State Fiscal
Psychologists’ Evaluations,
Non-evaluation
Year
services
Testing, or
Services
2010
2011
2012
2013 (part)
47
68
66
45
Assessments
24
27
18
-
23
41
48
-
Plaintiffs contend that these tables demonstrates that the
2002 contempt remedy (a) has failed to adequately compensate class
members for LDHH’s failure to implement the 2001 Remedial Order and
(b) that the 2002 contempt remedy has been insufficient to coerce
LDHH's compliance. Plaintiffs assert that these tables show that
the services LDHH has been providing to class members under the
2002 Contempt Order fall far short of those promised in the 2001
Remedial Order by fifteen multi-person teams, which would have been
supplemented if necessary.35 For example, Plaintiffs point out that
Louisiana Medicaid's expenditure of $34,888.00 on services of
licensed psychologists to class members diagnosed with PDD amounts
to less than $35.00 in services per class member with autism for
state fiscal year 2012. Plaintiffs also assert that the fact that
nearly $10,000.00 of that amount went to evaluations, testing, or
35
The 2001 Remedial Order provided in relevant part:
[LDHH] anticipates that 15 teams will be a sufficient number to meet
the needs of the relevant population, and that this number of
providers will be willing and able to provide the services. In the
event that this proves to be an insufficient number to meet the need
and that further providers are not immediately obtained, or in the
event that an insufficient number of providers is willing and able
to provide the services, Defendant will notify the Court and
Plaintiffs' counsel immediately so that further relief may be
considered.
(2001 Remedial Order, Rec. Doc. 124, p. 4, ¶ 6( c)) (emphasis added).
32
assessments, rather than therapeutic services for class members
with PDD, makes the figures worse. Plaintiffs also point out that
during state fiscal year 2012, only 48 of the approximately 1,027
individual class members diagnosed with PDD received non-evaluation
services, and the total amount spent on those non-evaluation
services was $25,129.00, resulting in an average expenditure of
$523.52 per participating recipient per year. Plaintiffs also
observe
that
in
state
fiscal
year
2011,
only
41
of
the
approximately 1,027 individual class members with PDD received nonevaluation
services,
and
the
total
amount
LDHH
spent
on
psychological or behavioral services was only $23,286.00, resulting
in an average of $567.95 per participating recipient per year.
Plaintiffs also point out that under Magellan, the managed care
organization which assumed control of behavioral health services in
March 2012, only 45 class members have received services from a
licensed psychologist.
Plaintiffs contend that given the failure of the remedy in the
2002 Contempt Order, class members should be permitted to access
the pool of ABA providers in the state in order to meet their unmet
needs. Plaintiffs argue that ABA providers are: (1) available, (2)
effective, (3) within the scope of “medical assistance" that LDHH
is required to provide pursuant to the federal EPSDT mandate, and
(4) can help fulfill the requirements of the 2001 Remedial Order
that
LDHH
provide
all
necessary
psychological
and
behavioral
service to class members with reasonable promptness. Plaintiffs
33
argue that the Medicaid statute requires LDHH, as part of its EPSDT
obligations, to provide:
Such . . . necessary health care, diagnostic services,
treatment, and other measures described in [42 U.S.C. §
1396d(a)] to correct or ameliorate defects and physical
and mental illnesses and conditions discovered by the
screening services, whether or not such services are
covered under the State plan.
42 U.S.C. § 1396d(r)(5).
Plaintiffs assert, relying on S.D. ex rel. Dickson v. Hood,
391 F.3d 581, 590 (5th Cir. 2004), that the Fifth Circuit has held
that “[s]tates must cover every type of health care service
necessary for EPSDT corrective or ameliorative purposes that is
allowable under 1396d(a).” Plaintiffs point out that the Court has
already found, in its 2001 Findings of Fact and Conclusions of Law,
that psychological and behavioral health services “undeniably
constitute
‘medical
assistance’
as
defined
in
42
U.S.C.
§
1396d(a),” in part because these services fall within 42 U.S.C. §
1396d(a)(13),
which
includes
“other
.
.
.
preventive,
and
rehabilitative services, including any medical or remedial services
. . . recommended by a physician or other licensed practitioner of
the healing arts within the scope of their practice under State
law, for the maximum reduction of physical or mental disability and
restoration of an individual to the best possible functional
level.”
They
argue
that
ABA
therapy,
like
psychological
and
behavioral health services, also constitute “medical assistance”
under this same provision 42 U.S.C. § 1396d(a)(13) when (a)
34
provided
by
qualified
practitioners
such
as
BCBAs
and
(b)
recommended by a physician or other licensed practitioner.
Finally, Plaintiffs assert that despite LDHH's implementation
of the 2002 contempt remedy, class members like F.F. and A.B. have
not been able to obtain the therapy they need to correct or
ameliorate their conditions — ABA therapy. Plaintiffs assert that
a
modification
of
the
remedy
in
the
2002
Contempt
Order
is
necessary to enable class members to readily locate and access ABA
therapy, pointing out A.B. and F.F. have only been able to locate
and access ABA therapy except through BCBAs, all of whom were
certified since the entry of the 2002 Contempt order and none of
whom are enrolled in Medicaid. Plaintiffs contend that if LDHH had
implemented the remedy in the 2001 Remedial Order, this subset of
the class would have a ready means of locating and obtaining
treatment specifically focused on their autism or PDD, which they
presently lack.
4. LDHH's Arguments
In its opposition, LDHH concedes that ABA has proven to be an
effective treatment, and concedes that a modification to the remedy
in the 2002 Contempt Order is warranted, given (a) the evolution of
autism treatment and (b) LDHH's creation of an entirely new way of
providing behavioral health services. Nevertheless, LDHH asserts
that the remedy should not be modified to the extent or in the way
that Plaintiffs request. Specifically, LDHH argues that instead of
requiring it to enroll BCBAs in the Medicaid program as independent
35
providers of ABA to class members with autism, the Court should (a)
modify the 2002 Contempt Order to allow LDHH to authorize ABA
services through its Children's Choice Waiver and (b) modify the
2002 Contempt Order to reflect the availability of other services,
such as the services of licensed clinical social workers and
licensed professional counselors, that LDHH can now offer through
Magellan to address the needs of children with autism.
LDHH asserts that it is willing to request approval from CMS
to amend its Children's Choice Waiver so that class members
diagnosed with autism could receive ABA services through priority
placement instead of remaining on the registry until they advance
to the top of the list, which can sometimes take five or more
years. LDHH explains that (a) every waiver program has a registry
or
list
of
children
and
the
date
when
waiver
services
were
requested, and (b) ordinarily, when a slot opens, the child with
the oldest date is eligible for that opening. LDHH asserts that its
proposed amendment to its Children's Choice Waiver would allow
class members with autism to be considered regardless of when their
names were placed on the registry. LDHH notes that Children's
Choice Waiver services have an annual cap of $16,410 per child, but
that a family can avail itself of the "Crisis Provisions" in the
draft Children's Choice Waiver rule and can exceed the cap if the
circumstances warrant a "crisis designation." LDHH asserts that the
Children's Choice Waiver could accomodate class members with autism
within the time it would take for CMS to approve the amendment as
to priority placement, which LDHH asserts would probably be six
36
months. LDHH also asserts that the State Plan Amendment which would
be required by Plaintiffs' request could take considerably longer,
probably years.
Second, LDHH argues that state legislation is needed to
authorize BCBAs to provide ABA therapy independent of licensed
psychologists. LDHH asserts that ABA constitutes the practice of
psychology under the Louisiana Psychology Practice Act, La. R.S.
37:2351 et seq. and that a BCBA who is not also a licensed
psychologist
is
only
authorized
to
provide
ABA
under
the
supervision of a licensed psychologist. LDHH further argues that
because BCBAs are not licensed under Louisiana law, they cannot
enroll as independent Medicaid providers and bill independently for
providing ABA therapy to this subset of class members. LDHH
acknowledges that in an effort to address the licensing issue, the
Louisiana Legislature recently introduced Senate Bill 134.36 LDDH
contends that Senate Bill 134 would (a) require the creation of a
state board which would establish regulations governing (1) the
licensure of behavior analysts and (2) the state certification of
assistant behavior analysts, and (b) allow licensed BCBAs to
practice
in
psychologist.
Louisiana
LDHH
without
asserts
the
that
supervision
the
of
existence
a
licensed
of
pending
legislation to authorize licensed behavior analysts to practice
independently indicates that BCBAs are not authorized to practice
36
When LDHH filed its opposition on April 16, 2013, Senate Bill 134 had
recently been introduced. It has now been passed as Act No. 351 with an
effective date of August 1, 2013.
37
independently under current Louisiana law.37 LDHH
argues that it
is premature for the Court to order LDHH to permit BCBAs to enroll
as independent Medicaid providers until BCBAs are authorized to
practice independently in Louisiana.
Third, in response to Plaintiffs' observation that private
insurers are required to cover ABA services, LDHH contends that,
La. R.S. 22:1050 places restrictions on BCBAs. In particular, LDHH
argues
that
under
La.
R.S.
2:1050(G)(5),
"applied
behavior
analysis" is considered "habilitative or rehabilitative care,"
which is listed among those treatments that must, pursuant to La.
R.S. 22:1050(G)(11), be prescribed by a licensed physician or
licensed psychologist who must also supervise the provision of such
care.
Fourth, LDHH asserts that the Children's Choice Waiver, as
currently written, is consistent with the Louisiana Psychology
Practice Act in that it would require that ABA therapy only be
provided only by a licensed psychologist or an unlicensed assistant
with a Master's degree working under the direction of a licensed
psychologist.
Fifth, LDHH asserts that in light of the evolution of autism
37
LDHH notes that other states have recognized the need to regulate the
practice of ABA and behavior analysts and have enacted legislation creating
state licensing boards or placing behavior analysts under the oversight of an
existing board LDHH points out that Nevada requires the Board of Psychological
Examiners to regulate the licensing of behavior analysts; North Carolina
requires behavior analysts to obtain a license from the North Carolina
Psychology Board; Virginia has authorized its Board of Medicine to enact
regulations governing the practice of behavior analysts; North Dakota requires
behavior analysts to be licensed by its Board of Psychologist Examiners;
Kentucky has established a separate licensing board for behavior analysts; and
Massachusetts enacted legislation in January recognizing the practice of ABA
as an independent profession and establishing standards for practice.
38
treatment over the past ten years, it determined that it needed to
offer
an
array
of
services
by
different
types
of
licensed
professionals. LDHH asserts that in furtherance of that goal it (a)
created the Louisiana Behavioral Health Partnership, through which
Magellan would manage the provision of behavioral health services
and (b) obtained CMS approval to amend the State Plan governing
psychological and behavioral health services for EPSDT recipients
to allow licensed clinical social workers and licensed professional
counselors, among others, to enroll as providers. LDHH contends
that Court should modify the 2002 Contempt Order to reflect the
availability of these other services through Magellan to class
members diagnosed with autism or PDD.
LDHH disputes Plaintiffs' allegations that LDHH's discovery
responses show that class members were not receiving an adequate
amount of services between 2010 and 2013. LDHH contends that
Plaintiffs' table (Rec. Doc. 364-1, p. 8) summarizing LDHH's
expenditures under the 2002 Contempt remedy during state fiscal
years 2010, 2011, 2012, and 2013,38 does not accurately represent
Medicaid's expenditures on services for class members diagnosed
with autism for two reasons. First, LDHH alleges that the table
understates LDHH's expenditures during state fiscal years 2012 and
2013, because Plaintiffs omitted data compiled by Magellan for 2012
and 2013 that LDHH provided to Plaintiffs in its Third and Fourth
Supplemental Responses to Interrogatories. Second, LDHH argues that
38
The table only summarizes Medicaid expenditures during part of 2013.
39
Plaintiffs' table is not representative of Medicaid expenditures on
services for class members diagnosed with autism, because it does
not include Medicaid expenditures to providers other than licensed
psychologists.
LDHH also asserts that Kimberlee Owens, F.F.'s mother, did not
inquire what other services available through Magellan might be
recommended for F.F. when she found out that ABA was not available.
LDHH
contends
that,
contrary
to
the
testimony
of
A.B.'s
pediatrician, Dr. Patricia Schneider, ABA therapy it is not the
only
evidence-based therapeutic intervention for autism. LDHH
relies on the National Autism Center's National Standards Project
for the proposition that there are eleven established treatments,
including ABA, for individuals with Autism Spectrum Disorder. To
summarize, LDHH argues that the Court should deny Plaintiffs'
requested modification, because: (1) it is premature to order
direct enrollment of BCBAs when they are not allowed to practice
independently
under
Louisiana
law
unless
they
are
licensed
psychologists, (2) Plaintiffs have not inquired into what services
other than ABA are currently available through Magellan, and (3)
LDHH is willing to offer class members ABA services through an
amendment to its Children's Choice Waiver.
5. Plaintiffs' Reply
In their reply brief, Plaintiffs assert that LDHH agrees that
the evolution in autism treatment warrants modification of the 2002
contempt remedy, and only disputes how ABA therapy should be
40
provided to class members diagnosed with autism or PDD. Plaintiffs
argue that LDHH's proposed modification of the 2002 Contempt Order
— giving class members with autism priority for the Children's
Choice Waiver — will not compensate the class for LDHH's failure to
comply with the 2001 Remedial Order. Plaintiffs assert that the
2001
Remedial
Order
(a)
provided
that
"sufficient
qualified
providers" would be available, (b) provided that the services were
to
be
made
available
to
each
class
member
with
"reasonable
promptness," (c) did not set arbitrary dollar limits on services,
and
(d)
did
not
result
in
class
members
receiving
services
experiencing a diminution in the kind or quantity of other Medicaid
services that the class member might need. Plaintiffs argue that
services are not likely to be delivered with reasonable promptness
given that there are a limited number of spots on the Children's
Choice Waiver registry and that as of January 30, 2013 (the most
recent date for which information is posted), the registry date
being served on the Children's Choice Waiver is March 5, 2005.39
Plaintiffs also point out that LDHH has not apprised the Court or
counsel for Plaintiffs how many class members, if any, could
immediately receive a waiver slot if class members with autism were
immediately given priority for the next available slots, or whether
current and future class members would have to remain on the
waiting
list
before
they
could
39
receive
services.
Plaintiffs
Louisiana Department of Health & Hospitals Website,
http://new.dhh.louisiana.gov/ index.cfm/page/155 (last visited July 17, 2013).
41
emphasize that delay in provision of ABA therapy can be harmful, as
experts stress the importance of receiving sufficient intensive ABA
therapy at an early age in order to achieve maximum benefit.40
Plaintiffs also point out that although LDHH claims it has received
permission from CMS to offer ABA through the Children's Choice
waiver, it has not evidenced this, and it is thus uncertain whether
such approval is final, tentative, or dependent upon details not
yet worked out.
Plaintiffs argue that LDHH has not shown that "sufficient
qualified providers" will be available to provide ABA therapy to
all class members through the Children's Choice waiver, because the
proposed rule that includes ABA services in the Children's Choice
waiver requires that:
[s]ervices must be provided by a licensed psychologist or
an unlicensed assistant with a Master's degree working
under the direction of a licensed Psychologist. All work
performed by the unlicensed assistant must be approved by
the licensed Psychologist.41
Plaintiffs
assert
that
BCBAs
are
educated,
trained,
and
credentialed to be independent providers of ABA therapy and that
most BCBAs in Louisiana are not licensed as psychologists and are
not
practicing
under
the
direct
supervision
of
a
licensed
psychologist.42 Plaintiffs argue that if such supervision were to
be required, it would greatly reduce the available BCBA services
40
(Mulick Decl., Rec. Doc. 364-6, ¶¶ 13, 38)
41
(Proposed Children's Choice Waiver regulations, Rec. Doc. 371-1, p.
42
(Second Melville Decl., Rec. Doc. 379-1, p. 29, ¶ 9)
25)
42
and result in many fewer children being able to access ABA therapy
through a qualified provider.
Plaintiffs also note that the Children's Choice Waiver has an
annual cap of $16,412.00 on all services received under the waiver.
Plaintiffs argue that the amount of ABA therapy that could be
provided within a child's entire Children's Choice Waiver budget
would often be less than the amount the child needed and that most,
if not all, of the recipients' annual budgets would likely be
expended on ABA therapy leaving recipients with little access to
other Children's Choice Waiver services. Plaintiff points out that
the cap can be exceeded on the basis of a "crisis" designation only
for "catastrophic changes" like the death or incapacitation of a
caregiver, with no other source of support. (Rec. Doc. 371-1, pp.
43-44) Plaintiff also points out that the proposed waiver rule
clearly states that
"[e]xhausting available funds through the use
of
not
therapies
does
qualify
as
justification
for
crisis
designation." (Rec. Doc. 371-1, pp. 43-44) In sum, Plaintiffs
contend that provision of ABA therapy through the Children's Choice
waiver will not satisfy the Medicaid mandate to provide all
medically
necessary
services.
In
addition,
Plaintiffs
assert
because children placed on the Children's Choice Waiver are no
longer on the waiting list for NOW services, children given
priority on the Children's Choice waiver would no longer be class
members. As a result, Plaintiffs' counsel and the Court would lose
the ability to enforce all Court-ordered and agreed upon remedies
as to class members who received ABA therapy through priority
43
placement on the Children's Choice waiver.
Plaintiffs contend that LDHH's argument that BCBAs must be
licensed by the State to provide Medicaid services ignores the fact
that the Medicaid statute, in particular 42 U.S.C. § 1396d(a)(6)
defines the "medical assistance" that must be provided under EPSDT
to include
other ... preventive, and rehabilitative services,
including any medical or remedial services ...
recommended by a physician or other licensed practitioner
of the healing arts within the scope of their practice
under State law, for the maximum reduction of physical or
mental disability and restoration of an individual to the
best possible functional level.
Plaintiffs also argue that neither the Louisiana Psychology
Practice
Act
nor
La.
R.S.
22:1050
—
the
Louisiana
statute
requiring private health insurance plans to cover ABA therapy
provided by BCBAs — should prevent the Court from requiring
Louisiana Medicaid to compensate BCBAs as independent providers.
Plaintiffs contend that as of February 1, 2013, there were 65 BCBAs
in Louisiana. Plaintiffs contend that these Louisiana BCBAs are
currently providing services to children with autism and PDD and
receiving
payment
from
these
children's
private
insurance
companies. Plaintiffs also contend that BCBAs’ national board
certification
from
the
Behavior
Analyst
Certification
Board
establishes their training, education, supervised experience, and
knowledge of ABA methods.43 Plaintiffs assert that Behavior Analyst
43
Plaintiffs support this contention with a declaration under penalty
of perjury from Gina Green, Ph.D., an international expert in ABA and the
current Executive Director of the Association of Behavior Analysts. (Greene
Decl., Rec. Doc. 379-1, pp. 1-7, ¶¶ 1-14) Dr. Greene received a bachelor’s
degree in psychology with high honors and a master’s degree in educational
44
Certification Board credentials have been accepted in laws and
regulations
in
many
states
as
appropriate
qualifications
to
practice ABA and are the foundational requirement for licensure in
the ten states that require the licensing of ABA practitioners.44
Plaintiffs assert that it is not surprising that Louisiana has not
yet adopted a licensing statute for BCBAs givent that (a) all of
the 65 Louisiana BCBAs who were listed by the Behavior Analyst
Certification Board as of February 1, 2013 received their BCBA
credentials after 2002 and the Louisiana statute requiring private
health insurance plans to cover ABA therapy by BCBAs was passed in
2008.45
Plaintiffs assert that while efforts are underway to pass
Senate Bill 134, children with autism or PDD who receive Medicaid
should be able to receive the same ABA services as children who
have private insurance. Although Plaintiffs concede that private
insurance coverage is not required by La. R.S. 22:105 unless it is
given
under
the
supervision
of
a
physician
or
licensed
psychology with high honors from Michigan State University. (Greene Decl.,
Rec. Doc. 379-1, p. 2, ¶ 1) In 2005, she was awarded a Doctor of Science
degree from the Queen’s University of Belfast, Northern Ireland for her work
in autism. (Greene Decl., Rec. Doc. 379-1, p. 2, ¶ 1) She has extensive
professional experience, has received several awards, has authored several
books and articles, has delivered hundreds of professional conference papers,
addresses, and lectures, and has served as an expert witness in numerous legal
cases. (Greene Decl., Rec. Doc. 379-1, pp. 2-4, ¶¶ 2-7)
44
(Greene Decl., Rec. Doc. 379-1, p. 5, ¶ 11)
45
That statute, La. R.S. 22:1050, requires private health insurance
plans to cover ABA therapy provided by (a) BCBAs or (b) others with documented
evidence of equivalent education, professional training, and supervised
experience in ABA, for individuals diagnosed with an autism spectrum disorder
if it is recommended by a licensed physician or psychologist who supervises
the provision of the care. See La. R.S. 22:1050.
45
psychologist, they assert that in practice, BCBAs who are not
supervised
by
licensed
psychologists
are
being
reimbursed
by
private insurance companies cover for their services, as well as
the
services
of
"line"
therapists46
supervised
by
the
BCBA.47
Plaintiffs assert that the private insurance companies do not
require that the BCBA be supervised by a licensed psychologist in
order to reimburse them for ABA services.48
According to Plaintiffs, the typical Louisiana service model
is that (a) children with autism or PDD are diagnosed by a
physician or psychologist who recommends ABA therapy and (b) BCBAs
actually
provide
the
ABA
therapy
in
conjunction
with
"line
therapists"49 who are closely monitored by the BCBA.50 Plaintiffs
contend that the McNeese Autism Program operates under this typical
service model and is compensated by private insurance companies for
both the services of the BCBA and the "line therapists."51
Plaintiffs assert that in 2012, the Louisiana Legislature
passed SR 110, which established a Behavior Analysts Licensure and
Regulation Study Commission ("the Study Commission") to study the
46
A line therapist is an individual with training in ABA therapy who
provides ABA therapy under the supervision of a BCBA but lacks a masters
degree or a doctoral degree. (Tilley Decl. 2, Rec. Doc. 379-1, p. 33, ¶ 5)
47
To support this contention, Plaintiffs submitted a second declaration
from Christine Tilley, the BCBA who provides ABA therapy to class
representative F.F. (Tilley Decl. 2, Rec. Doc. 379-1, p. 33, ¶¶ 3-7).
48
(Tilley Decl. 2, Rec. Doc. 379-1, pp. 33, ¶ 7).
49
See supra n. 46.
50
Plaintiffs support his contention with a second declaration from Cam
L. Melville, Ph.D. (Melville Decl. 2, Rec. Doc. 379-1, pp. 30-31, ¶ 12)
51
(Melville Decl. 2, Rec. Doc. 379-1, pp. 30-31, ¶¶ 12-13)
46
licensing and regulation of behavior analysts. Plaintiffs assert
that one of their experts, Dr. Melville,52 served on the Study
Commission
as
the
designee
of
the
McNeese
State
University
Psychology Department. Plaintiffs contend that despite the fact
that BCBAs perform services that fall within the scope of the
Louisiana Psychology Practice Act, La. R.S. 37:2352(5), no actions
have been taken to stop BCBAs from practicing in Louisiana.
Plaintiffs
assert
that
the
Study
Commission
—
rather
than
recommending that BCBAs cease providing ABA therapy until they were
licensed under state law or practice under the supervision of
licensed psychologists —
acknowledged the need for ABA services,
recognized that there are many BCBAs in Louisiana who are being
compensated by private insurers for providing ABA therapy to
children with autism and PDD, and sought to expand access to ABA
therapy rendered by BCBAs. Plaintiffs contend that the Study
Commission
accepted
certification
by
the
Behavior
Analyst
Certification Board as the only necessary credential to establish
the education, training, and supervised experience of behavior
analysts. Plaintiffs contend that BCBAs are well qualified to
provide
the
ABA
therapy
that
has
been
recommended
by
class
members's physicians to ameliorate their autism. Plaintiffs argue
that the Court should order Medicaid to enroll BCBAs as providers
and establish competitive rates to allow class members access to
the same medical or remedial services that are available to other
52
See supra n. 25.
47
children in the state through private insurance.
Plaintiffs assert that although LDHH originally indicated in
its initial responses to Plaintiffs' discovery that it does not
know which enrolled providers provide ABA therapy, it has since
become apparent that LDHH does not currently reimburse for ABA
services through Medicaid, regardless of the type of provider
involved. In support of this claim, Plaintiffs report that they
propounded a discovery request on LDHH for, inter alia, "documents
sufficient to show whether intensive ABA therapy (20 hours a week
or more) has actually been authorized through Magellan for any
class
members
with
autism
or
PDD."
Plaintiffs
assert
that
Magellan's counsel responded via email on April 12, 2013, "None.
The State Plan does not offer ABA therapy."53 Plaintiffs also assert
that Kimberlee Owens, class representative F.F.'s mother, was
informed by a Magellan representative that, as far as he knew, ABA
therapy was not covered.54 Plaintiffs further assert that the
McNeese Autism Program has attempted to provide services through
Louisiana Medicaid, but has not been able to do so.55
Plaintiffs argue that LDHH has not shown that the other
services it makes available to class members with autism or PDD
compensate the class for LDHH's failure to comply with the 2001
Remedial Order. LDHH suggests in its opposition that ABA therapy is
53
(April 12, 2013 Winters email, Rec. Doc. 379-1, p. 38)
54
(Owens Depo, Rec. Doc. 379-1, p. 52, line 11; p. 54, line 11)
55
(Melville Decl., Rec. Doc. 364-8, pp. 6-7, ¶ 10)
48
not the only evidence-based therapeutic intervention for autism and
refers to eleven other established treatments set forth in the
Findings and Conclusions of the National Autism Center's National
Standards Project.56 Plaintiffs assert, based on Dr. Melville's
declaration, that the eleven "established treatments" are not
necessarily separate treatment methodologies distinct from ABA.57
They
also
assert
that
Defendant
has
not
even
attempted
to
demonstrate that any of these treatments identified in the National
Autism Center's National Standards Project are available to class
members through Louisiana Medicaid providers. Although Plaintiffs
concede that licensed psychologists might be providing some of
these treatments, they assert that if they are, they are providing
very little, based on the fact that less than fifty class members
have
received
services
from
psychologists
for
non-evaluation
services in each of the last two years and that Medicaid spent less
than $26,000 per year on these services. Plaintiffs also dispute
LDHH's assertions that its expenditures figures are inaccurate and
contend
that
they
did
not
omit
any
information
provided
by
Magellan.58
As to all of the other services listed in LDHH's Louisiana
Behavioral Health Partnership Service Definition Manual, Plaintiffs
contend that they are insufficient to compensate LDHH's failure to
56
(Rec. Doc. 371-8, pp. 11-15)
57
(Melville Decl. 2, Rec. Doc. 379-1, p. 31, ¶ 15)
58
(Pl.'s Reply, Rec. Doc. 379, pp. 14-16)
49
comply with the 2001 Remedial Order as none are specifically geared
toward autism and many are not available to many class members.59
Thus, Plaintiffs request that the Court modify the 2002 Contempt
Order to provide ABA therapy to class members through direct
enrollment of BCBAs rather than through a Children's Choice Waiver
or a modification to reflect other services available through
Magellan.
LEGAL STANDARD
Civil contempt is "a failure of a litigant to do something
ordered to be done by a court in a civil action for the benefit of
the opposing party therein.” Walling v. Crane, 158 F.2d 80, 83 (5th
Cir. 1946). A contempt sanction is considered civil if it "'is
remedial and for the benefit of the complaining party.'" Int’l
Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827
(1994). The purpose of a civil contempt sanction is “to coerce the
contemnor into compliance with a court order, or to compensate
another party for the contemnor’s violation.” American Airlines,
Inc. v. Airline Pilots Ass'n, 228 F.3d 574, 584 (5th Cir. 2000);
Lamar Fin. Corp. v. Adams, 918 F.2d 564, 566 (5th Cir. 1990).
Because civil contempt sanctions are considered coercive and may be
avoided through obedience, they "may be imposed in an ordinary
civil proceeding upon notice and an opportunity to be heard."
Alberti, 46 F.3d at 1359-60. (internal quotations and citations
omitted). "The paradigmatic civil contempt sanction order . . .
59
(Pl.'s Reply, Rec. Doc. 379, pp. 16-17, n. 39)
50
involves confining a contemnor indefinitely until he complies with
an affirmative command such as an order to pay alimony, or to
surrender property ordered to be turned over to a receiver, or to
make a conveyance." Id. at 1359 (internal quotations and citations
omitted). Another typical civil contempt sanction is "a per diem
fine imposed for each day a contemnor fails to comply with an
affirmative court order." Id. (internal quotations and citation
omitted). Nevertheless, because “‘[c]ourts have and must have, the
inherent authority to enforce their judicial orders and decrees in
cases of civil contempt," the Fifth Circuit has recognized that
"discretion . . . must be left to a court in the enforcement of its
decrees.’” U.S. v. Alcoa, Inc., 533 F.3d 278, 287 (5th Cir. 2008)
(quoting Cook v. Ochsner Foundation Hosp., 559 F.2d 270, 272 (5th
Cir. 1977)). The Fifth Circuit reviews remedial civil contempt
measures that a district court imposes for abuse of discretion. See
id.
at
283
(explaining
that
if
a
district
court’s
action
constituted a remedy for a party’s contempt of a consent decree, as
opposed to a modification of the consent decree, the issue is
whether the district court abused its discretion in implementing
the remedial measure).
DISCUSSION
Typically, “[a] movant in a civil contempt proceeding bears
the burden of establishing by clear and convincing evidence: 1)
that a court order was in effect, 2) that the order required
certain conduct by the respondent, and 3) that the respondent
51
failed to comply with the court’s order.” Am. Airlines, Inc., 228
F.3d at 581 (internal quotations and citations omitted). However,
in the 2002 Contempt Order, the Court found that LDHH was in
contempt by clear and convincing evidence and placed the onus on
LDHH to purge itself of its contempt by, inter alia, a showing that
it
has
fully
implemented
the
Court’s
previous
orders.
(2002
Contempt Order, Rec. Doc. 140, p. 3, ¶ 10) The Court also ordered
in the 2002 Contempt Order that the civil contempt remedy could be
ended, without any showing by LDHH that it had purged itself of its
contempt, upon an agreement of the parties approved by the Court,
or by further Court order. (2002 Contempt Order, Rec. Doc. 140, p.
4, ¶ 10) Given that the record demonstrates that subsequent to the
2002 Contempt Order: (1)
LDHH never made a showing that it fully
implemented the Court's previous orders;60 (2) the parties never
reached any agreement that was approved by the Court, and (3) the
Court never issued an order purging LDHH of the 2002 contempt, LDHH
remains in continuing contempt of the Court's 2001 Remedial Order.
Although the 2002 Contempt Order, like all civil contempt
remedies, was designed, in part, to coerce LDHH's compliance with
the 2001 Remedial Order, it has clearly failed in this regard. LDHH
implemented the remedial provisions of the 2002 Contempt Order
requiring it to permit direct enrollment of licensed psychologists.
Nevertheless, over a decade later, despite (a) LDHH's estimation in
60
LDHH also admitted in oral argument that it has not yet purged itself
of its contempt by fully implementing the Court's previous orders or
establishing the fifteen teams to which the parties agreed in 2001. (May 8,
2013 Oral Arg. Tr., p. 30, lines 21-25; p. 31, lines 1-11).
52
2002 that it was merely three months away from implementing the
2001 Remedial Order and (b) an intervening overhaul of LDHH's
behavioral health services system, the provisions of the 2001
Remedial Order remain unfulfilled.
Although
the
Court
is
skeptical
that
the
extensive
modifications Plaintiffs seek will coerce LDHH's compliance with
the 2001 Remedial Order, the Court finds that Plaintiffs' proposed
modifications
to
the
2002
Contempt
Order
are
necessary
to
adequately compensate Plaintiffs for LDHH's failure to implement
the 2001 Remedial Order for over a decade. Although the Court's
2001 Findings of Fact and Conclusions of Law were limited to LDHH's
obligation to provide class members with autism or PDD with the
services of licensed psychologists, the 2001 Remedial Order did not
restrict the class of persons authorized to provide class members
with
behavioral
and
psychological
services
to
licensed
psychologists. The 2001 Remedial Order contemplated that LDHH would
make services available to class members by establishing fifteen
teams, which would be dispersed throughout Louisiana according to
population distribution and consist of at least: one psychologist
who would act as team leader, one person with a master's degree in
psychology to work with the team leader, one licensed clinical
social worker, and three behavior intervention specialists. Under
that
team
responsible
model,
treatment
for
plans
the
team
developing
that
were
leader
and
psychologists
implementing
designed
to
were
to
be
family-centered
achieve
the
maximum
improvement of the child's functioning based on treatments grounded
53
in solid, empirical evidence. Under the 2001 Remedial Order, LDHH
was obligated to provide class members diagnosed with autism or PDD
with all necessary psychological and behavioral services to correct
or
ameliorate
their
conditions,
including
necessary
clinical
interventions. LDHH was also obligated to ensure that sufficient
qualified providers would be available so that the necessary
services may be provided to all class members with reasonable
promptness. In line with these provisions, the 2001 Remedial Order
provided that further relief could be considered if the fifteen
teams proved to be insufficient to meet the needs of class members
diagnosed with autism or PDD. (2001 Remedial Order, Rec. Doc. 124,
p. 4, ¶ 6(c)).
The Court agrees with Plaintiffs that the 2002 Contempt Order
has not compensated Plaintiffs by providing services as extensive
as those provided for in the 2001 Remedial Order. The team model
contemplated in the 2001 Remedial Order, by supplementing the
services of licensed psychologists with behavior intervention
specialists whose services could be accessed more frequently,
facilitated
the
implementation
of
the
intense
behavioral
interventions necessary to reverse autism. By contrast with the
current contempt remedy, it would have provided this subset of
class members with a ready means of locating treatment specifically
focused on their autism. Under the 2002 Contempt Order, class
members, such as A.B. and F.F. have not been able to obtain the ABA
therapy that they need to correct or ameliorate their conditions,
because they only way they have been able to access ABA therapy is
54
through BCBAs, most of whom are neither licensed psychologists nor
operating under the supervision of licensed psychologists.
Moreover, LDHH's expenditures on psychological services
for class members diagnosed with autism or PDD under the 2002
Contempt Order are properly characterized as de minimis. Having
reviewed the issue, the Court is convinced that LDHH's allegation
that the figures in Plaintiffs' table for state fiscal years 2012
and 2013 omit data that LDHH provided to Plaintiffs in their
discovery
responses
is
factually
incorrect
for
the
reasons
expressed by Plaintiffs in their reply memorandum. (Pl.'s Reply,
Rec. Doc. 379, pp. 16-17) However, even if LDHH were correct, those
relatively inconsequential understatements would only impact the
figures for state fiscal years 2012 and 2013 and would not affect
the Court's conclusion that the provision of services under the
2002 Contempt Order has been insufficient. Under the Insurance Code
provisions which will apply to policies issued in Louisiana by
private insurers on or after January 1, 2014, coverage for autism
treatment, which includes ABA therapy, will be subject to a yearly
benefit cap of $36,000 per covered individual.61 In state fiscal
years 2010, 2011, and 2012, LDHH's expenditures on the services of
licensed psychologists for the entire class were within the range
61
The Insurance Code provision that mandates that private insurers
provide coverage for diagnosis and treatment of autism spectrum disorders,
including ABA therapy, provides that coverage shall be subject to a maximum
benefit of $36,000 per year. La. R.S. 22:1050(B), (D)(1). An insurer or issuer
of a health coverage plan is prohibited from applying any payments it makes
for covered individuals for services that are not related to autism spectrum
disorders towards the $36,000 per year maximum benefit. La. R.S.
22:1050(D)(2).
55
of $28,122.00 and approximately $50,000.00. The parties' best
estimate is that there are, at present, approximately 1,027 class
members
with
a
diagnosis
of
autism
or
pervasive
development
disorder.62 In addition, in every state fiscal year, a significant
fraction of these funds went toward testing and evaluation rather
than treatment for class members diagnosed with autism. These
amounts that LDHH paid for the entire subset of the class per year
are either less than or only slightly more than the maximum that a
private insurer may be compelled to pay per covered individual.
Given that LDHH has conceded that ABA is a recognized, valid
treatment for autism that should be made available to class members
diagnosed with autism (May 8, 2013 Oral Arg. Tr., p. 32, lines 813), the dispute centers on the manner in which ABA therapy should
be made available to class members diagnosed with autism. (May 8,
2013 Oral Arg. Tr., p. 32,
lines 8-16) When recommended by a
physician or licensed psychologist, ABA therapy provided (a) by
BCBAs or (b) through behavior interventions designed and supervised
by BCBAs and administered through programs like the McNeese Autism
Program, are within the scope of the federal EPSDT mandate. In
addition
to
those
services
specifically
enumerated
in
the
definition of EPSDT, federal law mandates that LDHH provide other
services, not specifically described in the definition of EPSDT, if
62
As of October of 2000, the date of the trial in this case, the
parties had stipulated that there were 350 class members diagnosed with
autism. (2001 Findings of Fact and Conclusions of Law, Rec. Doc. 118, p. 4)
The estimate of 1,027 class members with an autism or PDD diagnosis is based
on LDHH's Fifth Supplemental Response to an interrogatory Plaintiffs
propounded on LDHH in October of 2012. (Rec. Doc. 364-9, p. 4)
56
those services are a type of "medical assistance," as defined in
Section 1396d(a), that is "necessary . . . to correct or ameliorate
defects and physical and mental illnesses and conditions discovered
by the screening services, whether or not such services are covered
under the State plan." 42 U.S.C. §§ 1396d(r)(5), 1396d(a). In S.D.
ex rel. Dickson v. Hood, 391 F.3d 581, 590 (5th Cir. 2004), the
Fifth Circuit held that “[s]tates must cover every type of health
care
service
necessary
for
EPSDT
corrective
or
ameliorative
purposes that is allowable under 1396d(a).” To qualify as "medical
assistance" under Section 1396d(a)(13), the remedial service only
needs
to
be
"recommended
by
a
physician
or
other
licensed
practitioner of the healing arts within the scope of their practice
under State law, for the maximum reduction of physical or mental
disability and restoration of an individual to the best possible
functional level." Id. § 1396d(a)(13)(C) (emphasis added). The
Court finds that ABA therapy, when recommended by a physician or
licensed
psychologist,
constitutes
"medical
assistance"
under
Section 1396d(a)(13), regardless of whether it is rendered by a
BCBA or through an intensive behavior intervention designed and
supervised by a BCBA through the McNeese Autism Program.
As to the class representatives, A.B. and F.F., it is clear
that ABA therapy is medical assistance that is necessary to correct
or ameliorate the debilitating effects of their autism. Both class
representatives' physicians have recommended that they receive ABA
therapy. (Owens Decl., Rec. Doc. 364-2, ¶ 7; Schneider Decl., Rec.
Doc. 364-4, ¶ 4) In addition, Dr. Mulick's testified that both A.B.
57
and T.M. should be in an ABA program receiving 30 or more hours of
services per week. (Mulick Decl., Rec. Doc. 364-6, pp. 17, 20 ¶¶
42-43, 46) LDHH has offered no countervailing opinions. Similarly,
for class members for whom ABA therapy has been recommended or will
be recommended by a physician or licensed psychologist, the Court
finds that ABA therapy is necessary to correct or ameliorate the
debilitating effects of their autism and PDD, within the meaning of
42 U.S.C. §1396d(r)(5), based on Dr. Mulick's testimony that:
It is generally well accepted among psychologists and
physicians with expertise in treating autism that a
sufficient amount of ABA is (for most children) medically
necessary to ameliorate the problematic aspects of autism
. . . If a child diagnosed with autism does not receive
sufficient behavioral health services, the child is at
grave risk of remaining unnecessarily disabled for the
remainder of the child's natural life span. There is also
a risk that an untreated person could become even more
disabled through injury or loss of skills previously
demonstrated . . . [I]t is well established that autistic
children need intensive behavioral health services as
early as possible in order to achieve the maximum
reduction of their disability and restore them to their
best possible functional level. It is also well
established that ABA is a highly effective form of
behavioral health service.
(Mulick Decl., Ex. 5 to Pl.'s Mot., Rec. Doc. 364-6, p. 14, ¶¶ 3538) Thus, LDHH is obligated to provide this service to class
members. Although LDHH has contended that ABA therapy is only one
of eleven established treatments for individuals based with autism
spectrum disorders based on the National Autism Center's National
Standards Project,63 Dr. Melville has testified that the eleven
63
In their Findings and Conclusions, the National Autism Center stated
that it had"identified 11 treatments as Established (i.e., they were
established as effective) for individuals with Autism Spectrum Disorders
58
"established treatments" the National Autism Center identified are
not necessarily separate treatment methodologies distinct from ABA
therapy. (Melville Decl. 2, Rec. Doc. 364-8, pp. 6-7) In addition,
LDHH has failed to establish that any of the other treatment
methodologies identified are accessible to class members through
Magellan.
The Court agrees with Plaintiffs that the best way to provide
this service to class members, as compensation for LDHH's continued
failure to implement the 2001 Remedial Order, is (a) to require
LDHH to allow BCBAs to enroll as independent Medicaid providers and
submit claims for their services, and (b) to require LDHH to make
provision for the McNeese Autism Program and other programs that
employ BCBAs to be reimbursed by Louisiana Medicaid for intensive
behavior interventions that are designed and supervised by BCBAs.
LDHH contends that it is premature to allow BCBAs to enroll as
independent Medicaid providers and bill independently for providing
ABA services to class members diagnosed with autism. LDHH asserts
that the state legislature must pass legislation providing for the
licensure of BCBAs and actually license BCBAs before they may
practice
independently
independent
Medicaid
of
a
licensed
providers,
and
psychologist,
bill
enroll
independently
as
for
providing ABA services to class members diagnosed with autism. In
(ASD). Established Treatments are those for which several well-controlled
studies have shown the intervention to produce beneficial effects."
(National Standards Project Findings and Conclusions, Rec. Doc.
371-8, pp. 11-15)
59
an attempt to dissuade the Court from ordering direct enrollment of
BCBAs, LDHH also points out that under La. R.S. 22:1050, ABA
therapy must be provided under the supervision of a physician or
licensed psychologist.
The Court disagrees with LDHH's argument that it would be
premature to order direct enrollment of BCBAs until the state has
created a licensing board and begun issuing licenses. This argument
is a red herring. LDHH has a present obligation under federal law
to provide ABA therapy to class members when it is recommended by
a
physician
or
licensed
psychologist.
LDHH
is
not
presently
complying with this obligation,64 and it should not be allowed to
continue its noncompliance while the State updates its licensing
law to reflect developments in autism treatment and creates a state
board to issue licenses. Delaying direct enrollment until BCBAs can
be licensed would create needless delay in providing class members
with
services
that
the
evidence
demonstrates
are
medically
necessary, must be provided early to achieve their maximum effect,
and are currently being provided to children with private insurance
by independent BCBAs.
Although,
BCBAs
providing
ABA
therapy
independently
are
engaging in an activity that constitutes the practice of psychology
under the Louisiana Psychology Practice Act, La. R.S. 37:2352(5),
the state has taken no action taken to stop them from practicing.
(Melville Decl. 2, Rec. Doc. 379-1, p. 28, ¶ 6) Rather, the Study
64
(Winters email, Rec. Doc. 379-1, p. 38) (stating that "[t]he State
Plan does not offer ABA therapy).
60
Commission, which was established by Senate Commission to study the
licensure and regulation of behavior analysis in 2012, recognized
that despite the lack of a state licensing statute, there were
approximately 70 BCBAs in Louisiana who are currently providing ABA
therapy to numerous children with autism and PDD and sought to
expand access to BCBA services, finding that they are needed by
more individuals than are currently receiving them. (Melville Decl.
2, Rec. Doc. 379-1, p. 29, ¶ 7) The Study Commission never
recommended that BCBAs (a) be licensed as psychologists, (b)
practice under the supervision of licensed psychologists, or (c) be
licensed under some other board for consumer protection purposes.
(Melville Decl. 2, Rec. Doc. 379-1, p. 29, ¶ 7) Under these
circumstances, the Court finds that there is no need to prevent
BCBA from enrolling as Medicaid providers until they have a state
license.
A
BCBA's
certification
by
the
Behavior
Analyst
Certification Board, a national independent nonprofit credentialing
body, is sufficient to demonstrate his or her qualification to
independently provide ABA therapy and supervise the provision of
ABA therapy through programs following a service model like the
McNeese Autism Program. (Green Decl., Rec. Doc. 379-1, pp. 4-6, ¶¶
10-14)
Similarly, the Court finds that it would be counterproductive
to impose a requirement that BCBAs be supervised by licensed
psychologists. Technically, private insurance coverage is not
required under La. R.S. 22:1050 unless it is provided under the
supervision of a physician or licensed psychologist. However, in
61
practice, private insurance companies are reimbursing independent
BCBAs, who are providing ABA therapy in Louisiana, for both their
services and the services of line therapists that they supervise
based solely on their Behavior Analyst Board Certification. (Tilley
Decl. 2, Rec. Doc. 379-1, p. 33, ¶¶ 2-7; Melville Decl. 2, Rec.
Doc. 379-1, pp. 28-29, ¶ 6) A requirement that BCBAs provide ABA
therapy
under
the
supervision
of
licensed
psychologists
is
inconsistent with the current practice model in Louisiana (Melville
Decl. 2, Rec. Doc. 379-1, p. 29, ¶ 9) and would needlessly impede
class members ability to access necessary ABA therapy that children
with private insurance have been accessing.
Moreover, the Court agrees with Plaintiffs, for the reasons
expressed in their reply, that LDHH's proposal to provide ABA
therapy to class members diagnosed with autism through an amendment
to its Children's Choice Waiver would not adequately compensate
Plaintiffs for LDHH's failure to implement the 2001 Remedial Order.
Although LDHH asserts that it could accomodate class members
through the Childrens' Choice Waiver in approximately six months
and that the modifications Plaintiffs request will necessitate a
State Plan Amendment that will probably take years, the Court is
skeptical of LDHH's projected timelines. In its opposition to
Plaintiffs' 2002 Contempt Motion, LDHH represented to the Court
that it was approximately three months away from implementation of
the 2001 Remedial Order by August of 2002. Over a decade later,
LDHH still has not implemented it. LDHH has provided no basis for
its contention that the State Plan Amendment that would be required
62
to accomodate Plaintiffs' request could take years. The Court finds
this
contention
indication that
particularly
suspect
given
that
there
is
no
LDHH was unable to comply with the 2002 Contempt
Order, which stated that "[e]ffective immediately" [LDHH] shall
implement
coverage
for
services
provided
by
licensed
psychologists," and directed LDHH to issue individual notice of the
availability of these services to class members within seven days
of the Court's order. (2002 Contempt Order, Rec. Doc. 140, p. 2, ¶¶
2-3)
Finally, LDHH did not oppose any of the other modifications to
the 2002 Contempt Remedy that Plaintiffs proposed. The Court
specifically inquired whether counsel for LDHH objected to any of
the Plaintiffs' other proposed modifications during oral argument.
(May 8, 2013 Oral Arg. Tr., p. 42, lines 13-19) Although counsel
for LDHH requested that the State be discretion with respect to
rate setting, counsel ultimately agreed with the Court that the
rates should be set to allow or cause sufficient numbers of
providers to enroll. (May 8, 2013 Oral Arg. Tr., p. 43, lines 5-21)
Counsel for LDHH also acknowledged that even though Magellan does
not currently capture information about providers enrolled in
Medicaid
with
documented
evidence
of
equivalent
education,
professional training, and supervised experience in ABA, it could
easily obtain the information through inquiries to its enrolled
providers. (May 8, 2013 Oral Arg. Tr., p. 42, lines 13-25, p. 43,
lines 1-2) Given that LDHH has not opposed Plaintiffs' other
proposed
modifications,
the
Court
63
finds
that
they
should
be
granted.
New Orleans, Louisiana, this 18th day of July, 2013.
____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
64
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