Chisholm, et al v. Jindal, et al

Filing 395

ORDER AND REASONS denying 384 Motion for Clarification and Stay of the May 21, 2013 Order. Signed by Judge Carl Barbier on 8/13/2013. (mmm)

Chisholm, et al v. Kliebert

Doc. 395

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
Before the Court is a Motion to Clarify and Temporarily Stay
the Court’s May 21, 2013 Order Pending Appeal (Rec. Doc. 384). The
motion was filed by Defendant, Kathy Kliebert, Secretary of the
Louisiana Department of Health and Hospitals (“LDHH”).1 Plaintiffs
have opposed LDHH’s motion. (Rec. Doc. 388) The motion was set for
hearing

on

considered

Wednesday,
the

motion,

July
the

3,

2013,

memoranda,

on

the

the

briefs.

record,

Having

and

the

applicable law, the Court finds that LDHH’s motion should be
DENIED, for reasons explained more thoroughly below.

1

Given that Plaintiffs sued Defendant, Kathy Kliebert, in her official
capacity as the Secretary of LDHH, the Court will refer to the Defendant as
“LDHH” throughout this Order.

Dockets.Justia.com

PROCEDURAL HISTORY AND BACKGROUND FACTS
In October 1997, Plaintiffs filed suit under 42 U.S.C. § 1983
against LDHH alleging numerous Medicaid violations.2 On March 17,
1998, the 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

The instant motion concerns a subset of the class consisting
of those class members diagnosed with autism or other Pervasive
Developmental Disorders (“PDD”). On February 21, 2013, Plaintiffs
filed a Motion for Modification of Contempt Remedy. (Rec. Doc. 364)
In their motion, Plaintiffs requested that the Court make extensive
modifications to a 2002 Contempt Order (Rec. Doc. 140) requiring
LDHH to allow direct enrollment of licensed psychologists as a
remedy for LDHH’s contempt of an earlier order – the 2001 Remedial
Order. (Rec. Doc. 124) The 2001 Remedial Order required LDHH, among
other things, to establish fifteen teams statewide to provide
behavioral and psychological treatment to class members diagnosed
with autism or PDD. (Rec. Doc. 124) After hearing oral argument on
Plaintiffs’ Motion on May 8, 2013, the Court took the matter under
advisement. On May 21, 2013, the Court issued a short order
granting Plaintiffs’ Motion and indicating that the Court’s written

2

The Court’s written reasons for its May 21, 2013 Order contain a more
thorough account of the procedural history and background facts in this case.
(See Rec. Doc. 391, pp. 1-17)

2

reasons would be forthcoming at a later date. (Rec. Doc. 380) The
May 21, 2013 Order directed 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 services governed by orders in this case;3
(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;

3

First Stipulation and Order, Rec. Docs. 43, 17, 31, 37-51.

3

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
e) the amount of Medicaid expenditures on each of
these types of services for class members with PDD.
(May 21, 2013 Order, Rec. Doc. 380)
On June 14, 2013, LDHH filed a Notice of Appeal of the Court’s
May 21, 2013 Order. (Rec. Doc.

383) and the instant motion to

clarify and temporarily stay the May 21, 2013 Order. (Rec. Doc.
384) On June 25, 2013, Plaintiffs filed their opposition. (Rec.
Doc. 388) The instant motion came on for hearing on the briefs on
July 3, 2013. (Rec. Doc. 384) On July 18, 2013, the Court issued
its written reasons for its May 21, 2013 Order. (Rec. Doc. 391)
PARTIES’ ARGUMENTS
A.

LDHH’s Arguments Regarding Clarification of the Order

In the instant motion, LDHH first requests clarification of
the provisions of the May 21, 2013 Order using the term Pervasive
Developmental Disorders or “PDD,” due to recent changes in the
terminology and diagnostic criteria used in the Diagnostic and
Statistical Manual (“DSM”).4 LDHH asserts that the Fourth Edition
of the DSM (“DSM-IV”) identifies a set of Pervasive Developmental
Disorders, considered “autism spectrum disorders,” that include
4

The DSM is a manual published by the American Psychiatric Association that
is used by clinicians to diagnose autism and related disorders.

4

Autistic Disorder, Asperger’s Disorder, and Pervasive Developmental
Disorder Not Otherwise Specified (“PDD-NOS”). LDHH asserts that the
Fifth Edition of the DSM (“DSM-V”), which was published on May 27,
2013,

eliminates

the

separate

diagnostic

labels

of

Autistic

Disorder, Asperger’s Disorder, and PDD-NOS and replaces them with
one

umbrella

term,

“Autism

Spectrum

Disorder,”

with

further

distinctions made according to severity levels. The severity levels
in the DSM-V are based on the amount of support needed as a result
of the individual’s restricted interests, repetitive behaviors, and
challenges with social communication. LDHH points out that PDD, a
term that is used in the May 21, 2013 Order and the DSM-IV, is not
included in the DSM-V and asserts that its program will need to be
modified to accommodate these changes to terminology and diagnostic
criteria in the DSM. LDHH requests that the Court clarify its
ruling “to provide guidance on how [LDHH] should proceed.”
Second, LDHH requests clarification of the provision of the
May 21, 2013 Order pertaining to reimbursement rates. LDHH appears
to assert that it sets reimbursement rates consistent with federal
regulations, in particular 42 C.F.R. § 447.204, which requires that
LDHH provide reimbursement “sufficient to enlist providers so that
services under the plan are available to beneficiaries at least to
the extent that those services are available to the general
population.” (Rec. Doc. 384-1, p. 3) LDHH also contends that the
reimbursement

provision

of

the

Court’s

May

21,

2013

Order

“overlooks the fact that Louisiana does not recognize the specific
provider type, BCBAs, and therefore has not implemented the Board
5

or licensing rules and regulations which will set forth the
qualifications

for

licensure.”

(Rec.

Doc.

384-1,

p.

3)

LDHH

reiterates that the provider type – BCBAs – “is simply not set up
within Louisiana Medicaid.” (Rec. Doc. 384-1, p. 3)
Third,
provisions

LDHH
of

asserts

the

May

that
21,

the

Court

must

“clarify”

2013

Order

imposing

the

reporting

requirements, because it does not currently capture the information
that it is required to report to class counsel on a monthly basis
and “must create a computer program and integrate the program with
the various program offices in order to capture the requisite
information.” (Rec. Doc. 384-1, p. 4) LDHH also points out that
there is no termination date for the required monthly reporting and
contends that these circumstances warrant “clarification” of the
reporting provisions of the Court’s May 21, 2013 Order.5
Fourth,

LDHH

contends

that

the

Court

must

clarify

the

provision of the May 21, 2013 Order requiring it to “identify any
other providers who are enrolled in Medicaid who have documented
evidence

of

equivalent

education,

professional

training,

and

supervised experience in ABA.” (Rec. Doc. 384-1, p. 5) LDHH
contends that as of the date of the filing of the instant motion,
ABA falls within the scope of the practice of psychology under
Louisiana law, and thus, every licensed psychologist in Louisiana
enrolled

in

Medicaid

has

documented

5

evidence

of

equivalent

LDHH also asserted that it would be unable to gather the required
information before July 15, 2013, the date on which its first report was due
to class counsel and the Court. However, this contention is now moot,
considering that LDHH's deadline to submit its first report has passed and
LDHH has already submitted the report. (Rec. Doc. 393)

6

education, professional training, and supervised experience in ABA
therapy. LDHH contends that psychologists use ABA therapy as a form
of

treatment

“clarification”

and
of

that
the

this

provision

circumstance
in

the

May

21,

necessitates
2013

Order

requiring it to identify enrolled providers with training in ABA
therapy equivalent to that of BCBAs.
B. LDHH’s Arguments Regarding a Stay of the Order Pending
Appeal
LDHH contends that a stay of the Court’s May 21, 2013 Order is
warranted for several reasons. First, LDHH contends that BCBAs must
be licensed under Louisiana law before they can enroll as Medicaid
providers and that the May 21, 2013 Order requiring LDHH to allow
direct enrollment of BCBAs should be stayed while LDHH creates a
Board to license and regulate BCBAs. The factors a court must
consider in evaluating the propriety of a stay pending appeal
include: “(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest
lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). LDHH argues
that all four factors support a stay of the May 21, 2013 Order
pending its appeal.
With respect to the second factor, LDHH asserts that it will
suffer irreparable harm if the May 21, 2013 order is not stayed,

7

because it will spend inordinate amounts of time and resources
working toward an objective that requires statutory authority and
approval from the Centers for Medicaid Services (“CMS”). LDHH
asserts that (a) it lacks the resources to perform work towards an
objective that is subject to change based on what is handed down
from the Legislature, what is approved by CMS, and changes in the
DSM, and (b) that it lacks resources to incorporate a new provider
type. With respect to the first factor, LDHH asserts that “the
dictates of due process and the balancing of the need of Plaintiffs
to have ABA therapy against the interest of protecting the health,
safety, and welfare of Louisiana citizens that LDHH has been
charged to protect and serve, increases the probability of success
on appeal.” (Rec. Doc. 384-1, p. 7) With respect to the third
factor, LDHH merely states in a conclusory manner that a stay would
not harm Plaintiffs. With respect to the fourth factor, LDHH argues
that a stay will further the public’s interest by promoting
judicial efficacy and the efficiency of LDHH.
C. Plaintiffs’ Arguments Regarding Clarification of the Order
In their opposition, Plaintiffs preliminarily note that LDHH
has failed to articulate either (a) the reasons why clarification
of the May 21, 2013 Order is needed or (b) the substance of the
desired clarifications in a manner sufficient for Plaintiffs to
evaluate them. However, in regard to LDHH’s concerns about changes
in the terminology and diagnostic criteria in the DSM, Plaintiffs
note that the DSM-V was published on May 27, 2013 and that existing

8

class members’ current diagnoses obviously could not have been done
under the provisions of the DSM-V, given that they were diagnosed
when the DSM-IV was still in effect. Plaintiffs also point out that
the records available to LDHH from which it can report on: (a) the
number of class members with PDD, (b) the number of class members
with PDD who are receiving ABA therapy, (c) the number of class
members with PDD receiving other psychological and behavioral
services, (d) the type of practitioner from whom they are receiving
services, and (e) Medicaid expenditures on these services for those
class members with PDD, could not reflect any of the changes in
terminology or criteria in the DSM-V. Plaintiffs contend that if
LDHH has specific questions about whether persons who are diagnosed
using the terminology of the DSM-V should be included or omitted
from the reports, it should articulate them for the parties and the
Court. Plaintiffs assert that while these issues involving the new
terminology of the DSM-V may need to be addressed in the future,
there does not appear to be a real need for clarification at
present.
With respect to LDHH’s request for clarification of the
provisions of the May 21, 2013 Order pertaining to reimbursement
rates, Plaintiffs assert that LDHH has failed to explain why it
needs clarification of these provisions. Plaintiffs (a) point out
that in its motion, LDHH merely notes the requirements of 42 C.F.R
§ 447.204 and 42 C.F.R § 447.200, and (b) contend that nothing in
the Court’s May 21, 2013 Order is inconsistent with these federal
regulations. Plaintiffs assert that the May 21, 2013 Order goes
9

further than these federal regulations by requiring that rates be
set so that necessary ABA services are provided to class members
with “reasonable promptness,” and contends that this additional
requirement in the May 21, 2013 Order is consistent with the
requirements of paragraph three of the Court’s 2001 Remedial Order
(Rec. Doc. 124),6 of which LDHH continues to be in contempt.
Plaintiffs further assert that LDHH’s contention that it needs
to create a computer program and implement it before it can report
on some of the information required by the May 21, 2013 Order is
not grounds for seeking clarification of the Order. Plaintiffs also
point out that the 2001 Remedial Order (Rec. Doc. 124), the 2002
Contempt Order, and the discovery that Plaintiffs propounded on
LDHH in October 2012 all requested information that is subsumed
within the reporting requirements of the May 21, 2013 Order.
Plaintiffs assert that it is time for LDHH to end its willful
ignorance of class members’ needs and of the providers who are
available to treat them.
Plaintiffs also assert that there is no need for a termination
date

for

any

of

the

provisions

of

the

May

21,

2013

Order.

Plaintiffs assert that the Order is a remedy for LDHH’s continuing
contempt of the 2001 Remedial Order, an order that both parties
crafted and agreed to, and that LDHH should not be permitted to
escape the requirements of the contempt remedy until it has purged
itself of contempt, either by complying with the original 2001
6

Paragraph three of the 2001 Remedial Order provides, similar to the May 21,
2013 Order, that “sufficient qualified providers will be available to insure
that the necessary services may be provided to all class members with
reasonable promptness.” (Rec. Doc. 124, p. 2, ¶ 3)

10

Remedial Order, by order of the Court, or by agreement of the
parties.

D. Plaintiffs’ Arguments Regarding a Stay Pending Appeal
Plaintiffs

contend

that

the

arguments

LDHH

advances

for

obtaining a stay of the Court’s May 21, 2013 Order pending appeal
are essentially the same arguments it made in opposing Plaintiffs’
Motion

for

Modification

of

Contempt

Remedy.

In

particular,

Plaintiffs note that LDHH continues to insist that in order to be
covered by Medicaid, ABA therapy rendered by BCBAs must fit within
42 U.S.C. § 1396d(a)(6), which authorizes Medicaid coverage for
“remedial care recognized under State law, furnished by licensed
practitioners within the scope of their practice as defined by
state law.” Plaintiffs assert that they refuted this argument in
their reply to LDHH’s Opposition to their Motion to Modify Contempt
Remedy by pointing out that ABA therapy rendered by BCBAs are
within the scope of a parallel provision, 42 U.S.C. § 1396d(a)(13),
which

encompasses,

“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 note
that LDHH never responded to this argument at oral argument and
have not addressed it in their instant motion. Plaintiffs also

11

contend that they have already dealt with the argument that the
Louisiana Psychology Practice Act should prevent the Court from
requiring LDHH to compensate BCBAs.
Plaintiffs assert that LDHH’s only new argument in favor of
the stay is the claim that it must seek and obtain permission from
CMS before it may offer ABA services to class members through
BCBAs. Plaintiffs assert that regulations implementing the Medicaid
Act, in particular, 42 C.F.R. § 431.250(b)(2), make it clear CMS
approval is not a prerequisite to obtaining federal financial
participation in the cost of these services, because they are
provided pursuant to this Court’s Order. Plaintiffs also point out
that courts have rejected contentions by States that they must
amend their State Medicaid plans before implementing court-ordered
compliance

with

federal

Medicaid

requirements.

Plaintiffs

acknowledge that LDHH will wish to file an amendment to its State
Plan to include ABA services, but asserts that even before LDHH
does so, federal financial participation is available for the
services this Court ordered in the May 21, 2013 Order.
Plaintiffs agree with LDHH on the substance of the factors
that should be used in evaluating the appropriateness of a stay
pending appeal but argue that LDHH has failed to satisfy any of the
factors and that all factors weigh in favor of denying a stay.
First, Plaintiffs argue that LDHH has failed to show likelihood of
success on the merits of its appeal. Plaintiffs contend that LDHH
has not articulated any basis for appeal, other than reiterating
its assertion that it cannot enroll BCBAs who are not licensed as
12

psychologists

under

the

Louisiana

Psychology

Practice

Act

as

independent Medicaid providers. Plaintiffs assert that, as LDHH
predicted at the oral argument on Plaintiffs’ Motion to Modify
Contempt Remedy, Senate Bill 134 — which makes it clear that ABA
therapy is neither within the scope of “practice of psychology” nor
subject to regulation to the Louisiana State Board of Examiners of
Psychologists — was signed into law by the Louisiana governor as
Act 351 after the Court issued the May 21, 2013 Order. Plaintiffs
contend

that

the

Louisiana

Behavior

Analyst

Board

is

to

be

constituted and have its first meeting by October 1, 2013 and that
the practice of behavior analysis will soon be tied to state
licensure. Plaintiffs also assert that starting December 31, 2013,
it

will

be

a

misdemeanor

for

a

person

not

licensed,

state

certified, or registered by the Louisiana Behavior Analyst Board to
engage in the practice of behavior analysis. However, Plaintiffs
contend that although it is not explicitly mentioned by name in Act
351,

the

National

credentialing

process

Behavior
for

Analyst

BCBAs7

Certification

clearly

Board

satisfies

major

the

qualifications for state licensure embodied in Act 351, La. R.S.
37:3706(6) and (8).
Second, Plaintiffs contend that LDHH has failed to show that
it will suffer any irreparable injury if a stay is not granted.
Plaintiffs

assert

implementation

of

that
the

although
Order

will

7

LDHH

has

require

claimed
the

that

expenditure

the
of

This process is described in detail in the declaration of Gina Green, which
was attached as Exhibit 13 to Plaintiffs’ Motion to Modify Contempt Remedy.
(Rec. Doc. 377-2, pp. 4-5, ¶¶ 10-11)

13

“inordinate

amounts

of

time

and

resources”

towards

what

it

characterizes as a contingent objective, it has failed to explain
why it will be burdensome to: (a) enroll qualified providers of ABA
therapy in Medicaid, (b) to establish fair and reasonable rates for
their services, and (c) to publicize the availability of this
necessary

therapy.

Plaintiffs

contend

that

given

that

LDHH’s

primary objection to the provisions of these services has been
resolved by the state legislature’s action, the only purpose that
a stay of the Court’s May 21, 2013 Order will serve is that of
delay.
Plaintiffs contend that they will suffer irreparable injury if
a stay is granted. Plaintiffs assert that the Fifth Circuit has
found that threatened or actual denial of necessary Medicaid
services

constitutes

irreparable

harm

and

rely

on

several

authorities in support of their position that the denial of
services to class members would give rise to substantial injury to
class members diagnosed with autism. Plaintiffs also point out that
in connection with their Motion for Modification of Contempt
Remedy,

they

have

presented

evidence

demonstrating

that

(a)

autistic children need intensive behavioral health services as
early as possible to achieve the maximum reduction of their
disability, (b) autistic children are at grave risk of remaining
unnecessarily disabled for the rest of their lives unless they
receive adequate services early, and (c) autistic children are at
risk of becoming more disabled through injury or loss of skills
previously attained if they do not receive adequate services
14

early.8 Given these circumstances, Plaintiffs contend that a stay
would substantially harm class members and is contrary to the
public interest.
DISCUSSION
A. Clarification of the Court’s Order is Not Warranted
The Court is not convinced that the changes in the terminology
used in the DSM-V warrant any clarification of the Court’s May 21,
2013 Order at present. LDHH has not articulated the substance of
the “clarifications” it believes to be necessary, instead generally
asserting that it will at some time in the future need to modify
its program to accommodate the changes and seeking “guidance on how
it should proceed.” If LDHH has specific questions about whether,
and if so, how, the provisions of the May 21, 2013 Order apply to
individuals diagnosed under the new criteria and terminology used
in the DSM-V, the Court will address them once LDHH has properly
articulated and raised them. The Court agrees with Plaintiffs that
the changes in the DSM-V should not, at present, impact LDHH’s
ability to comply with the requirements of the May 21, 2013 Order,
given that class members were diagnosed under the DSM-IV. As
Plaintiffs point out, the records that LDHH has access to, which
bear on the categories of information it is required to report on
under the May 21, 2013 Order, should not reflect the changed
criteria and terminology in DSM-IV.

8
See Declaration of James A. Mulick, Exhibit 5 to Plaintiffs’ Motion to
Modify Contempt Remedy. (Rec. Doc. 364-6, ¶¶ 12-14, 33, 37)

15

The Court also finds that no clarification is necessary to the
provisions of the May 21, 2013 Order regarding reimbursement rates.
Paragraph four of the May 21, 2013 Order directs LDHH to "provide
reimbursement rates such that sufficient qualified providers are
available and that necessary services are provided to class members
with reasonable promptness." (Rec. Doc. 380, ¶ 4) LDHH has failed
to explain why clarification of this provision is needed. Under 42
C.F.R § 447.204, LDHH is required to set rates "sufficient to
enlist enough providers so that services under the plan are
available to beneficiaries at least to the extent that those
services are available to the general population." Under 42 C.F.R
§ 447.200, payments must be "consistent with efficiency, economy,
and quality of care." As Plaintiffs point out, there is nothing in
paragraph four of the May 21, 2013 Order that is inconsistent with
these federal regulations. To the extent that the reimbursement
provision in the May 21, 2013 Order goes further than these
regulations by requiring LDHH to set rates sufficient to ensure
that class members receive services with reasonable promptness, the
difference is to be expected given that the reimbursement provision
is part of a contempt remedy designed to compensate Plaintiffs for
LDHH's decades long failure to implement the 2001 Remedial Order.
Moreover,

LDHH

should

be

familiar

with

and

understand

the

reimbursement provision, given that it is nearly identical to the

16

provision in paragraph three of the 2001 Remedial Order that
counsel for LDHH agreed to over a decade ago.9
The Court also notes that counsel for LDHH touched on the
subject of reimbursement rates during the May 8, 2013 oral argument
on Plaintiffs’ Motion for Modification of Contempt Remedy. After an
extensive discussion of the provision in the May 21, 2013 Order
requiring LDHH to allow direct enrollment of BCBAs, the Court
inquired whether LDHH objected to any other of the provisions of
the Order. (May 8, 2013 Oral Arg. Tr., p. 42, lines 13-19) After
stating that she was “not sure”

whether LDHH objected to certain

other provisions of the Order, counsel for LDHH requested that LDHH
be given discretion with respect to rate setting, stating:
Well, as far as the rate setting, Medicaid, as you know,
is strapped financially and whenever we’re ordered to
provide funding in one area, that usually means that
funds are taken away from another program. So I think the
State should have discretion and leeway as to the rates
that were set. We already have rates that are set.
(May 8, 2013 Oral Arg. Tr., p. 43, lines 5-10) (emphasis added).
Thereafter, the Court reiterated its conclusion that rates be
set to cause sufficient numbers of providers to enroll:
It doesn’t look good to order the remedy if the rates are
so low that no one enrolls … it’s a hollow remedy then.
I don’t know what the proper rate is or should be … but
it certainly has to be sufficient that it would allow or
cause sufficient numbers of providers to enroll.
(May 8, 2013 Oral Arg. Tr., p. 43, lines 11-16).

9

Paragraph three of the 2001 Remedial Order provides that "sufficient
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)

17

Counsel for LDHH then re-suggested that Medicaid has an
established rate structure:
Right. Currently, I think, the rate structure is based on
the percentage of what a psychiatrist is paying other
licensed professionals. It’s in the State plan.
(May 8, 2013 Oral Arg. Tr., p. 43, lines 17-19) (emphasis added).
This exchange between counsel for LDHH and the Court bolsters
the Court's conclusion that

there is no need to “clarify” the

provision of its Order pertaining to reimbursement rates. Given (a)
that the Order is perfectly clear that LDHH must set reimbursement
rates that cause a sufficient number of providers to enroll, (b)
that LDHH has conceded that the State Plan contains the rate
structures, and (c) that Plaintiffs have not yet challenged the
rate structure in LDHH’s State Plan on the grounds that it is
insufficient to cause a sufficient number of providers to enroll,
the Court finds that there is no need to “clarify” the provisions
in the May 21, 2013 Order pertaining to reimbursement rates at this
time.
LDHH's contention that the reimbursement provision of the
Court’s Order “overlooks the fact that Louisiana does not recognize
the

specific

provider

type,

BCBAs,

and

therefore

has

not

implemented the Board or licensing rules and regulations which will
set forth the qualifications for licensure,” (Rec. Doc. 384-1, p.
3) provides no basis for "clarification" of the May 21, 2013 Order.
The Court has clearly ordered LDHH to recognize BCBAs based on
their national certification alone and allow them to enroll as
independent Medicaid providers. This contention is merely LDHH's
18

attempt to reiterate their argument that it is premature to order
direct enrollment of BCBAs, which the Court has already rejected
both in the May 8, 2013 oral argument on Plaintiffs' Motion for
Modification of Contempt Remedy and in its written reasons for the
May 21, 2013 Order. Counsel for LDHH contended at oral argument
that it was premature to allow direct enrollment of BCBAs, before
they could obtain state licenses. (May 8, 2013 Oral Arg. Tr., p.
38, lines 1-2) The Court responded that it saw "no logical reason
why we should allow some kind of bureaucratic morass to delay or
red tape to delay services." (May 8, 2013 Oral Arg. Tr., p. 40,
lines 2-4) When the Court pressed LDHH on whether her argument
regarding state licensing requirements for BCBAs amounted to a
bureaucratic morass, even counsel for LDHH ultimately conceded: "If
I had to say 'yes' or 'no', I would have to say 'yes.'" (May 8,
2013 Oral Arg. Tr., p. 40, lines 14-15) In its written reasons for
the May 21, 2013 Order, the Court again rejected LDHH's argument
that direct enrollment of BCBAs was premature:
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, 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 .
19

. .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.
(Written Reasons for May 21, 2013 Order, Rec. Doc. 391, pp. 60-61)
(emphasis added).
The Court finds no more merit to LDHH's prematurity argument
now than it did then. The fact that BCBAs, at present, lack state
licenses is inconsequential. The practice of behavior analysis in
Louisiana is not yet tied to licensure by a state licensing board,
although the board is to be constituted and have its first meeting
by October 1, 2013. La. R.S. 37:3703(C). In addition, the major
requirements for state licensure are the same as the requirements
to obtain the national BCBA certification. (See Greene Aff., Rec.
Doc. 379-1, pp. 5-6, ¶¶ 10-11; La. R.S. 37:3706(1)-(8)). To be
eligible for the BCBA designation, an applicant must demonstrate
that they have at least a master's degree in behavior analysis or
a closely related field from an accredited institution of higher
learning. (Greene Aff., Rec. Doc. 379-1, p. 6, ¶ 10) To obtain a
state license under La. R.S. 37:3706(8), the applicant is similarly
required to prove that he or she "holds a master's degree from any
regional accredited university or other institutions of higher
learning."La. R.S. 37:3706(8). To obtain the BCBA certification, an
applicant

is

required

behavior

analysis

to

pass

administered
20

a

professional
by

the

examination

Behavior

in

Analyst

Certification

Board

("BACB"),

an

independent

nonprofit

credentialing body that is accredited by the National Commission on
Certifying Agencies. (Greene Aff., Rec. Doc. 379-1, pp. 5-6, ¶ 10)
Under

La. R.S. 37:3706(5), an applicant for state licensure is

required

to

prove

that

he

or

she

"has

passed

a

nationally

recognized examination administered by a nonprofit organization
accredited by the National Commission for Certifying Agencies." La.
R.S. 37:3706(5). Under La. R.S. 37:3706(7), the applicant for state
licensure is required to prove that he or she conducts their
activities in accordance with accepted standards, including the .
. . Ethical Standards of the Behavior Analyst Certification Board
. . ." La. R.S. 37:3706(7). Clearly, any applicant for state
licensure who has already obtained a national BCBA certification
has simultaneously satisfied the major requirements for state
licensure. Moreover, although the law was effective August 1, 2013,
it is currently impossible for BCBAs to attempt to satisfy the
remaining state licensure requirements, given that there is no
board

yet

established

to

accept

completed

applications,

application fees, and proofs of good moral character, or to
administer background checks or examinations on Louisiana law. La.
R.S. 37:3706(1)-(4), (7). Whether BCBAs who enroll in the near
future as independent Medicaid providers on the basis of their BCBA
credential

alone

might

later

be

required

to

satisfy

these

additional state licensure requirements is a question the Court may
address at a later time, if the need arises.

21

Similarly, LDHH's contention that the provider type – BCBAs –
“is simply not set up within Louisiana Medicaid” (Rec. Doc. 384-1,
p. 3) provides no basis for the Court to "clarify" its Order.
LDHH's apparent admission that it has not yet complied with the
Court's clear orders to "make provisions for the numerous [BCBAs]
who specialize in ABA therapy" to: (1) "enroll as independent
Medicaid providers," (2) "submit claims for their services," and
(3) "be reimbursed by Medicaid for intensive behavior interventions
designed and supervised by [BCBAs],"10 does not somehow render those
orders unclear.
The Court also finds that there is no need to "clarify" the
reporting requirements in the May 21, 2013 Order. Paragraph eight
of the May 21, 2013 Order requires LDHH 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
e) the amount of Medicaid expenditures on each of
these types of services for class members with PDD.
The Court agrees that the fact that LDHH must create and
implement a computer program before it can report on some of the
10

(May 21, 2013 Order, Rec. Doc. 380, ¶¶ 1-2)

22

information required under the May 21, 2013 Order does not warrant
clarification of the Order. The Court also notes that these
reporting requirements are very similar to reporting requirements
that were included in both the 2001 Remedial Order and the 2002
Contempt

Order.11

Consistent

reporting

on

the

categories

of

information outlined in the May 21, 2013 Order is necessary to
monitor the effectiveness of the modified contempt remedy in
compensating Plaintiffs for LDHH's continued failure to implement
the 2001 Remedial Order, just as it was necessary to monitor and
discover

the

ineffectiveness

of

the

2002

Contempt

Order.

Furthermore, the Court agrees with Plaintiffs that the absence of
11

Paragraph seven of the 2001 Remedial Order provided 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, and their parishes of residence; the number of class
members, and, if available, the total number of children,
evaluated, and their diagnosis, and whether behavioral services
were recommended, by provider and parish of residence; numbers and
reasons for discontinuations of services, sorted by provider and
parish.
(2001 Remedial Order, Rec. Doc. 124, p. 4, ¶ 7)
Paragraph seven of the 2002 Contempt Order provided in pertinent part
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. The number of providers enrolled;
b. The locations from which the providers offer
services;
c. The total number of class members;
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)

23

a termination date for the reporting requirement, or any other
provision

of

the

May

21,

2013

Order

provides

no

basis

for

clarification. Moreover, as Plaintiffs point out, the May 21, 2013
Order is a remedy for LDHH’s continuing contempt of the 2001
Remedial Order, an order that both parties crafted and agreed to,
and that LDHH should not be permitted to escape until it has purged
itself of contempt, either by compliance with the original 2001
Remedial Order, by order of the Court, or by agreement of the
parties. Given that (a) the Court shares Plaintiffs' frustration
with LDHH's ongoing willful ignorance of class members’ needs and
the providers available to treat them, and (b) LDHH has articulated
no basis for clarification, the Court finds no reason to alter or
clarify the reporting provisions of the May 21, 2013 Order.
Similarly, the Court finds no merit in LDHH's contention that
the Court must clarify paragraph five of the May 21, 2013 Order,
because ABA fell within the scope of the practice of psychology as
of the date of the filing of the instant motion. Paragraph five
requires LDHH to "identify any other providers who are enrolled in
Medicaid who have documented evidence of equivalent education,
professional training, and supervised experience in ABA." LDHH
contends that because ABA fell within the scope of the practice of
psychology, as of the date of filing of the instant motion, every
licensed

psychologist

in

Louisiana

enrolled

in

Medicaid

had

documented evidence of equivalent education, professional training,
and supervised experience in ABA therapy. Even assuming the truth
of

this

dubious

proposition,
24

it

would

not

warrant

any

“clarification” of paragraph five of the May 21, 2013 Order. The
May 21, 2013 Order is clear that if every licensed psychologists
enrolled in Medicaid had documented evidence of training in ABA
therapy equivalent to that of BCBAs, LDHH should identify every
licensed psychologist in its reports pursuant to paragraph five. In
any

event,

the

Court

notes

that

LDHH's

contention

has

been

undermined by the enactment of Senate Bill 134 as Act 351, La. R.S.
§§ 37:3701-3717, subsequent to the filing of the instant motion.
B. A Stay of the May 21, 2013 Order Pending Appeal Is Not
Warranted
The Court finds that all factors weigh against staying the May
21, 2013 Order. The Court agrees with Plaintiffs that LDHH has not
made a strong showing of likely success on appeal. As Plaintiffs
correctly observe, LDHH's only new contention related to the
likelihood of success on appeal is

that

it must obtain approval

from the Centers for Medicare and Medicaid Services ("CMS") before
it may offer ABA therapy to class members through BCBAs. LDHH has
offered no support for this contention. As Plaintiffs point out,
federal regulations implementing the Medicaid Act make it clear
that CMS approval is not a prerequisite for obtaining federal
financial participation in the cost of these services, because the
services are being provided pursuant to this Court' s May 21, 2013
Order. 42 C.F.R. § 431.250(b)(2)(providing that federal financial
participation is available in expenditures for payments made for
"services provided within the scope of the Federal Medicaid program

25

and made under a court order.") As Plaintiffs acknowledge, although
LDHH will wish to file an amendment to its State Plan to include
ABA

services,

participation

even
is

before

available

it
for

does
these

Moreover, the Court has already

so,

federal

financial

Court

ordered

services.

addressed the argument that the

May 21, 2013 Order should be stayed until BCBAs can obtain state
licenses. Such a stay, and the delay occasioned by it, would
undermine the most critical imperative of the May 21, 2013 Order —
to provide class members with access, as soon as possible, to
essential ABA services that the evidence demonstrates must be
administered

early

to

achieve

their

maximum

effect.

(Written

Reasons for May 21, 2013 Order, Rec. Doc. 391, pp. 57-58; Mulick
Decl., Rec. Doc. 364-6, p. 14, ¶¶ 35-38) Considering that there is
no risk in class members obtaining sub par treatment, because
BCBAs, by virtue of their national certification, have satisfied
the most important requirements for state licensure, any additional
delay that would be occasioned by a stay of the March 21, 2013
Order is unacceptable.
LDHH alleges that without a stay, it will expend inordinate
amounts of time and resources working toward what it characterizes
as an objective contingent on CMS approval. As discussed above, the
direct enrollment objective is not contingent on CMS approval,
because LDHH may obtain federal financial participation for ABA
services provided to classmembers without CMS approval by virtue of
the Court's order. The Court finds LDHH's vague explanation of the
hardships it anticipates in the absence of a stay unsatisfactory,
26

especially

when

contrasted

with

the

irreparable

injury

that

Plaintiffs will endure and the harm to the public interest that
will result if Plaintiffs are denied access to necessary ABA
services while LDHH appeals the May 21, 2013 Order. LDHH has
offered no more than an unexplained allegation that a stay will
further the public interest by promoting judicial efficacy and
LDHH's efficiency. Rather than promote judicial efficacy or LDHH's
efficiency, the Court finds that a stay would achieve exactly the
opposite. It would effectively: (a)

guarantee that the Court's

Order does not achieve the desired result of providing class
members with ABA services

as soon as possible, and (b) lend

official sanction to LDHH's attempts to continue its decade-long
inefficiency in providing necessary services to class members.
Accordingly,
IT IS HEREBY ORDERED that LDHH's Motion for Clarification and
Stay of the May 21,
2013 Order (Rec. Doc. 384) is DENIED.
New Orleans, Louisiana, this 13th day of August, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

27