On May 2, 2008, the Parents' League for Effective Autism Services (PLEAS), along with three autistic children with autism who received medically necessary services funded by Medicaid, filed this suit in the United States District Court for the Southern District of Ohio, against the Director of the Ohio Department of Job and Family Services and the Director of the Ohio Department of Mental Health. The suit was brought under 42 U.S.C. § 1983 and alleged violations of plaintiffs' rights under federal Medicaid law. Plaintiffs sought injunctive and declaratory relief to prevent the loss or reduction of medically necessary services.

The plaintiffs claimed that amendments to Ohio administrative rules (O.A.C. §§ 5101:3-27-02 and 5122-29-17, which were scheduled to be effective July 1, 2008) promulgated by the defendants would deprive the plaintiffs of services required by the federal Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) program. The federal requirements for EPSDT require states to provide "such other necessary health care, diagnostic services, treatment, and other measures to correct or to 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). Further, the Medicaid Act required states to fund "preventive and rehabilitative services, including any medical or remedial services recommended by a physician . . . for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level[.]" 42 U.S.C. § 1396d(a)(13).

Plaintiffs received physician-recommended services including "full day center-based applied behavior analysis, psychological assessments and diagnosis, parent advocacy and resource information and home outreach services including one-to-one services," which plaintiffs characterized as rehabilitative and resulting in the "maximum reduction of physical and mental disabilities and restoration to the best possible functional level." Under the new rules promulgated by the defendants, only services that were rehabilitative, rather than services that were ameliorative or that prevented deterioration, would available to Medicaid recipients. The rules also would restrict the definition of certain rehabilitative services, including applied behavioral analysis, so that they would only to patients whose diagnoses were categorized as "mental illness," a grouping that did not include autism and related diagnoses.

Plaintiffs sought injunctions ordering the defendants to continue or begin providing 35-40 hours of applied behavioral analysis services to the plaintiff children. They sought orders enjoining the defendants from enforcing the new rules, and requiring them to develop new rules that complied with federal Medicaid law. That sought declarations that the rules violated the plaintiff's rights and that they were unlawful. Plaintiffs also sought attorney's fees and legal costs.

On June 20, 2008, the Court (Judge James L. Graham) ordered that, pursuant a motion filed by the defendants and to Fed. R. Civ. 19(a), the plaintiffs file an amended complaint, adding as a necessary defendant the Administrator of the Centers for Medicare & Medicaid Services, the federal agency responsible for approving state Medicaid plans. The amended complaint was filed on June 24, 2008.

On June 30, 2008, the Court found that the plaintiffs had standing to bring the suit and denied the Defendants' motion to dismiss the case. Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F. Supp. 2d 895 (S.D. Ohio 2008). On the same day, the Court issued a separate opinion granting the plaintiffs' motions for a temporary restraining order and preliminary injunction preventing the State from implementing the amendments to O.A.C. §§ 5101:3-27-02 and 5122-29-17, finding that the plaintiffs case had a strong likelihood of success on the merits, and that the plaintiffs would likely suffer irrevocable harm if the rules were to go into effect. Parents League for Effective Autism Servs. v. Jones-Kelley, 565 F.Supp.2d 905 (S.D.Ohio 2008).

The defendants appealed this decision and filed a motion for stay of the proceedings before the District Court and a stay of the preliminary injunction, pending the outcome of the appeal. On July 17, 2008, Judge Graham granted the motion to stay proceedings, but left the preliminary injunction in place. Parents League for Effective Autism Servs. v. Jones-Kelley, 2008 WL 2796744 (S.D. Ohio 2008).

On July 29, 2009, the Sixth Circuit Court of Appeals (Judge John M. Rogers) affirmed the District Court's grant of the preliminary injunction. Parents' League for Effective Autism Servs. v. Jones-Kelley, 339 F. App'x 542 (6th Cir. 2009). On September 18, 2009, the District Court referred the case to mediation. Two years later, on September 14, 2011, the parties informed the court that they had reached a settlement, and requested that the preliminary injunction and restraining order be lifted. The Court dissolved the restraining order and injunction the next day. On December 15, 2011, the parties filed a joint stipulation requesting the dismissal of the case with prejudice, which specified that the defendants had fulfilled their obligations under the settlement. The court dismissed the case.

The terms of the settlement do not appear to have been made public. According to the Ohio Disability Rights Law and Policy Center (Disability Rights Ohio) website, the settlement "[r]equires maintaining [the prior rules] that [do] not restrict services based on cognitive ability or recovery of lost skills; Authorizes [the filing of] a new rule that implements a prior authorization process for more than 104 hours of CPST services per year; Exempts 123 PLEAS member children and settlement beneficiaries from the prior authorization process for CPST services until those children reach age 21, and; Reimburses plaintiffs' attorneys' fees." See their summary of the case at http://www.disabilityrightsohio.org/legal-library/pleas for more information.

Alex Colbert-Taylor - 08/08/2013


compress summary