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Case Note

Disability Law Center of Alaska v. Davidson

By Adriona Horton

I. Introduction
On March 28, 2018, the U.S. District Court for the District of Alaska, in Disability Law Center of Alaska v. Davidson1 denied defendants’ motion for summary judgment on plaintiffs’ three Title 42 U.S.C. § 1983 claims alleging that defendants were in violation of federal Medi­caid law by failing to do the following:

1. Provide adequate notice on how to apply for and access applied behavioral analysis (ABA) therapy under the Alaska early and periodic screening, diagnostic, and treatment (EPSDT) program;

2. Reimburse for ABA under the program; and

3. Provide ABA services under the program with reasonable promptness.2

Plaintiffs’ cross-motion for summary judgment was granted as to their claim that defendants were required to provide ABA services as part of the state EPSDT program and that the Centers for Medicare & Medicaid Services (CMS) was not authorized to relieve them of that obligation.3

II. Background
State plans for medical assistance under federal Medicaid law must comply with the requirements set out in Title 42 U.S.C. § 1396a.4 This section specifically references services that must be provided, including “[EPSDT services] … for individuals who are eligible for the [Medicaid state] plan and who are under the age of 21.”5 EPSDT services must be provided with “reasonable promptness,” and people who are eligible must be informed of the EPSDT program.6 The Alaska Medicaid State Plan included an EPSDT program, but it did not furnish ABA through the program.7

ABA therapy measures and evaluates observable behaviors, and it may help autistic children improve their cognitive function, language skills, and adaptive behaviors.8 Alaska classified ABA therapy as an intensive active treatment (IAT) and provided it under two of its state Medi­caid waiver programs.9

On July 7, 2014, CMS issued a bulletin stating that all children with autism spectrum disorder (ASD) are required to receive EPSDT screenings as early as possible.10 CMS stated, “The role of states is to make sure all covered services are available as well as to [en]sure that families of enrolled children, including children with ASD, are aware of and have access to a broad range of services to meet the individual child’s needs … .”11

III. Claims of Violation of the Medicaid Act
In September 2014, CMS answered questions that were raised by the states regarding the July 7, 2014, bulletin.12 CMS said that ABA services were not per se mandated for individuals under 21 because ABA is just one treatment for ASD.13 Because other treatments are available, CMS would not endorse or mandate any specific treatment.14 However, CMS emphasized, “States are expected to adhere to long-standing EPSDT obligations … including providing medically necessary services available for the treatment of ASD.”15

Even though CMS recognized that some states may not have been providing ASD services through their EPSDT programs, CMS indicated that there would be no specific time frame for its review of state compliance with coverage requirements for children with ASD.16 Nevertheless, states were cautioned that they should complete the task of becoming compliant “expeditiously.”17 Finally, CMS advised states that ASD-related services should be provided for EPSDT-eligible individuals through the Medicaid state plan, not through state Medicaid waivers.18

The defendants in this case were Valerie Davidson in her official capacity as the commissioner of the Alaska Department of Health and Social Services as well as the department itself.19 In the state’s October 2015 and February 2016 Medicaid waiver program renewal requests, defendants proposed removing IAT services from the two Medicaid waiver programs by January 2017.20 Defendants then sent a notice on July 1, 2016, to “75 different individuals and/or entities” stating that they anticipated a July 1, 2017, implementation date for “full application of ABA services in the state of Alaska.”21 Participants already receiving IAT services under a Medicaid waiver would continue to receive those services during the transition. Children newly eligible for ABA services during this period were assured that defendants were doing all that they could to ensure enrollment.22 On October 13, 2016, defendants received email from CMS (a) stating that Alaska could delay until July 1, 2017, the removal of IAT services from the Medicaid waiver programs23 and (b) recommending that Alaska submit these amendments as well as the amendment to the Medicaid state plan to include IAT, and thus ABA, under the EPSDT program at the same time.24

The plaintiffs in this case were the Disability Law Center of Alaska, Inc.,25 and two minors diagnosed with ASD, R.S. and J.S., through their parent, Kikona Savo.26 On October 14, 2016, plaintiffs alerted the state that it was not in compliance with the Medicaid Act because the defendants’ July 1, 2016, notice did not inform Alaska families how to apply for ABA therapy, thus making the notice insufficient.27 On October 31, 2016, the state responded that the law did not require it to inform families of “all of the possible ABA services available … and [how] to access those services [for] eligible children under the age of 21.”28 Plaintiffs responded by commencing suit on November 1, 2016.

Plaintiffs originally asserted three claims against defendants for violation of the Medicaid Act: (1) insufficient notice on how to apply for and access ABA under the Alaska EPSDT program, (2) failure to reimburse for ABA under the program, and (3) failure to provide ABA therapy under the program with reasonable promptness.29 Plaintiffs moved for summary judgment and a preliminary injunction.30 The court denied both motions because “plaintiffs had not
shown that defendants were required, but failed, to provide ABA therapy under the EPSDT program with reasonable promptness … .”31 The court did state that CMS could not ultimately waive the requirement that defendants provide ABA under the Alaska EPSDT program. However, the court also stated that (a) CMS could give Alaska instructions on how to implement the amendments to remove IAT, and thus ABA, from the state’s Medicaid waiver programs and insert IAT under the state EPSDT program and (b) the state could reasonably rely on those instructions.32

Defendants submitted proposed amendments to remove IAT from the Medicaid waiver programs on May 2, 2017. CMS sought to delay consideration of these amendments until the amendment to move IAT under the Medicaid state plan was submitted for approval by July 1, 2017.33 Defendants did not post draft regulations until August 9, 2017, for the purpose of receiving public comments, and the comment period did not close until October 10, 2017,34 thus resulting in further delay. The regulations were adopted by defendants on February 2, 2018, and sent off for review by the Alaska Department of Law; however, the regulations attorney failed to complete the review by March 2018.35 Defendants then moved for summary judgment on plaintiff’s three claims.36 Plaintiffs cross-moved for summary judgment on whether CMS had legal authority to authorize defendants to deny or delay the provision of ABA under the Alaska EPSDT program and, if so, whether CMS had actually exercised that authority.37

IV. U.S. District Court, District of Alaska, Decision
The court noted that in order to ultimately prevail under Title 42 U.S.C. § 1983, plaintiffs had the burden of proving that defendants had deprived them of these three rights under federal law: (1) the right to notice of the availability of ABA services under the EPSDT program, (2) the right to be reimbursed for ABA therapy under the EPSDT program, and (3) the right to have ABA therapy provided under the EPSDT program with reasonable promptness.38 However, the court stated that summary judgment is only applicable “when there are no genuine issues of material fact” and the movant “is entitled to judgment as a matter of law.”39

Defendants maintained that they were acting with reasonable promptness because they were acting under the instructions of CMS.40 Although CMS did not give a definite date on which defendants should submit the amendments, defendants pointed out that they were in the process of implementing them.41 Also, defendants argued that it is appropriate to rely on informal instructions issued by CMS because CMS is the federal agency charged with approving the state’s requests for amendments to its Medi­caid waiver programs and Medicaid state plan.42 In addition, the promulgation of regulations associated with these amendments are governed by certain administrative procedures that take time to follow.43 Defendants argued, therefore, that they could not be in violation of the Medicaid Act because they were acting with reasonable promptness in accordance with CMS instructions.

Plaintiffs argued that the fact that defendants were providing ABA services to some eligible children under the Alaska Medicaid waiver programs did not relieve them of the duty to provide such services to all eligible children under the state’s EPSDT program and to do so with reasonable promptness.44 Restricting provision of ABA to the waiver programs meant that extremely few Medicaid-eligible children were receiving these services.45 Plaintiffs also argued that if deference is to be given to any CMS statements, it should be given to the July 2014 bulletin mandating states to begin providing appropriate treatments (including ABA) for children with ASD under state EPSDT programs as expeditiously as possible.46 Finally, plaintiffs argued that that while it may have been reasonable to wait until July 2017 to amend the Medicaid state plan, it was unreasonable to delay providing ABA therapy under the state’s EPSDT program indefinitely.47

Given the conflicting factual arguments concerning the reasonableness of the state’s delay in providing ABA services through its EPSDT program, the court found that a genuine issue of material fact existed regarding the question of reasonable promptness; thus, the court could not decide on the motions for summary judgment raised by either party.48 Although a rational fact finder could justify that the defendants had not violated the reasonable promptness provision, the fact finder could also justify that the defendants had violated the provision.49 The court further held that it could not grant defendants’ motion for summary judgment on the issue of whether the state had furnished adequate notice because conflicting factual claims concerning this issue existed as well. However, the court did grant the plaintiffs’ cross-motion for summary judgment on the issue of whether CMS had authority to allow defendants to deny provision of ABA services under the Alaska EPSDT program and held that CMS could not authorize the state to refuse to provide ABA therapy through its EPSDT program.50

V. Conclusion
All three defendants’ motions for summary judgment were denied.51 Plaintiffs were entitled to partial summary judgment that CMS cannot authorize defendants to deny ABA therapy under the Alaska EPSDT program. Plaintiffs’ cross-motions for summary judgment were also denied.52 The decision in this case supports the position that states that have elected to participate in the Medicaid program must be prepared as a practical matter to provide services identified under the federal statute as mandatory because not even CMS can authorize states not to comply with such statutory provisions.

Following the issuance of the court’s decision, the parties entered into a settlement agreement that provided for the inclusion of behavioral health services, including medically necessary treatments for autism, under the Alaska EPSDT program beginning July 1, 2018.53 The settlement agreement further included remedial provisions that resolved the issue of notice, and it was incorporated into the final judgment order signed by Judge H. Russel Holland on August 1, 2018.54

1 2018 WL 1528158 (D. Alaska (March 28, 2018)).

2 Id. at *5, 9.

3 Id. at *9–10.

4 42 U.S.C. § 1396a(a)(10)(A) (2019).

5 Id. at § 1396d(a)(4)(B).

6 Disability Law Center of Alaska, supra n. 1, at *1 (quoting J.E. Wong, 125 F. Supp. 3d 1099, 1104 (D. Haw. 2015)).

7 Id. at *1.

8 Id. at *2.

9 Id.

10 Id.

11 Id.

12 Id. at *3.

13 ABA therapy is not specifically required under the EPSDT guidelines, but it is a recognized “treatment modality” for children with ASD. Therefore, if a state Medicaid agency determines that ABA therapy is a medically necessary service, it must be provided to eligible individuals. Id. at *2–3.

14 Id. at *3.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id. at *1.

20 Id. at *3.

21 Id.

22 Id. at *4.

23 Id.

24 Id.

25 The Disability Law Center of Alaska is “an independent non-profit law firm providing protection and advocacy for people with disabilities throughout the state” of Alaska. St. of Alaska Gov.’s Council on Disabilities & Spec. Educ., Disability Law Center of Alaska,
(accessed Mar. 12, 2019).

26 Disability Law Center of Alaska, supra n. 1, at *1.

27 Id. at *5.

28 Id.

29 Id.

30 Id.

31 Id. at *6.

32 Id.

33 Id.

34 Id.

35 Id.

36 Id. at *7.

37 Id.

38 Id.

39 Id. The court further noted that summary judgment is generally not available when the law involves an issue of reasonableness but that summary judgment might be appropriate in such cases if the issue of reasonableness becomes one of law because “the undisputed facts leave no room for a reasonable difference of opinion.” (quoting In re Software Toolworks Inc., 50 F.3d 615, 621–622 (9th Cir. 1994), quoting West v. State Farm Fire & Cas. Co., 868 F.2d 348, 350 (9th Cir. 1989)).

40 Id. at *7.

41 Id.

42 Id. at *8.

43 Id.

44 Id.

45 Id.

46 Id. at *9.

47 Id.

48 Id. at *10.

49 Id.

50 Id. at *10.

51 Id.

52 Id.

53 Settlement Agreement, No. 3:16-cv-00277-HRH, Docket No. 57 (filed July 26, 2018).

54 Judgment, No. 3:16-cv-00277-HRH, Docket No. 58 (filed Aug. 1, 2018).

About the Author

Adriona Horton is a JD candidate at the Cecil C. Humphreys School of Law, University of Memphis. She is expected to earn her degree in May 2020. She earned a BS in psychology, with a premedical concentration, in July 2017 from Mississippi State University. The author thanks Le Ernest and Melody Drummond for their support and guidance and Professors Campbell and Harkness for the opportunity to write this case note.