Injunction Sought for Boys Denied Autism Treatment

Dec. 13, 2016, SAN ANTONIO, TEXAS – Attorneys for twin boys and a teenager, who are suing top Texas health officials because state Medicaid fails to cover a vital treatment for autism, filed for a preliminary injunction Tuesday. Lawyers with Texas RioGrande Legal Aid (TRLA) and Disability Rights Texas (DRTx) asked the court to order state Medicaid coverage of Applied Behavioral Analysis (ABA) therapy for the boys until the conclusion of their suit.

The complaint from the Bexar County twins and the teenager was filed last week against the Texas Health and Human Services Commission’s (HHSC) Executive Commissioner Charles Smith and Texas Medicaid Director Gary Jessee in U.S. District Court for the Western District of Texas in San Antonio. Under Texas’ Medicaid program, ABA is excluded from coverage, even though federal Medicaid law requires that children receive treatment deemed medically necessary and HHSC itself has described ABA as the “most recommended, evidence–based-treatment” for children with autism spectrum disorder.

The five-year-old twins have received extremely limited ABA therapy and the teenager has received none at all.

“These children are already suffering because they’re not getting the therapy proven to be most successful in treating their condition,” said Dr. Michelle Barajaz, the twins’ pediatrician and director of the pediatric residency program at the Baylor College of Medicine in San Antonio. “We need a legal mechanism to give these boys the ABA therapy they desperately need – especially considering that this case could go on for a long time.”

The number of children diagnosed with autism has increased so rapidly in recent years that the U.S. Centers for Disease Control and Prevention (CDC) now describes its prevalence as a “national health crisis.”

In Texas, the plaintiffs are among nearly 160,000 children who are estimated to have autism spectrum disorder. Texas Health and Human Services defines ABA as “the treatment approach identified across the research literature as showing the most evidence of positive impact on child developmental trajectory.” Still, state health officials have acknowledged that less than 4% of the children who require ABA are served under Texas’ limited public ABA program, which provides abbreviated services that do not address the full range of need for children with autism spectrum disorder.

“It’s not fair that some children are able to get the most effective treatment simply because they have different insurance while other children are denied because they’re on Medicaid,” said Susan Zinn, lead counsel and an attorney for TRLA.

“This is economic injustice that will affect these children for rest of their lives,” said Peter Hofer, co-counsel and an attorney for DRTx. “And it has broad implications for all the other children who are on Medicaid and have been diagnosed with autism spectrum disorder. That’s why, when other children in these circumstances have sued, invariably they’ve won.”

One of the twins has been diagnosed with “severe symptoms” of autism spectrum disorder, and the other has been diagnosed with “mild to moderate” symptoms. In both cases, ABA, which has been studied for decades, has been shown to be the most effective way to reduce symptoms while improving children’s abilities to communicate, learn, self-regulate, navigate interpersonal relationships and in others ways develop the skills needed to function.

“With sufficient ABA treatment, some children with autism spectrum disorder can be fully functional in a school setting and became, as adults, able to live independently,” said Dr. Mark Gilger, pediatrician-in-chief for the Children’s Hospital of San Antonio and vice chair of the Department of Pediatrics at Baylor College of Medicine in San Antonio. “It is beyond frustrating that we have this extremely effective therapy in hand, yet for many children, it might as well not have been developed.”

For more information or to arrange interviews with attorneys, who will be available Tuesday, please contact Nancy Nusser, communications director, 512 374 2764 (o) 410 934 9588 (m); nnusser@trla.org

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