Gov. DeSantis administration’s proposed new autism rules challenged in state court

Changes afoot for the care of children with autism.

A proposed rule pushed by Gov. Ron DeSantis’ administration that would require poor children with autism to undergo comprehensive diagnostic evaluations twice a year to receive applied behavioral analysis (ABA) services has been challenged in state administrative court.

Florida Association of Behavior Analysis (FABA) challenged the proposed rule in state administrative court, arguing that it violates federal Medicaid law because it will slow down access to care and it will increase providers’ operating costs. The group is also arguing that the Agency for Health Care Administration (AHCA) overstepped its authority and that the proposed rules are vague, arbitrary and capricious.

FABA is asking that the proposed rule be deemed invalid and that the group be awarded attorney’s fees and costs.

The challenge has been assigned to Division of Administrative Hearings Judge Gar W. Chisenhall. A telephone conference has been scheduled for Oct. 7.

“The proposed Rule … appears focused on the reduction of challenging behaviors, but fails to adequately address other deficits and conditions, e.g., communication, social interaction, and skill building, treatment of which is required by governing law. The proposed rule further establishes a number of regulatory requirements and exclusions that are inconsistent with generally accepted standards of practice and that may result in the delay or denial of medically necessary services,” attorneys for FABA wrote in the Sept. 30 petition.

“In addition, the proposed rule unnecessarily imposes significant regulatory costs on ABA service providers.”

Prior to filing the challenge, FABA attorneys sent a letter to Agency For Health Care Administration (AHCA) Secretary Simone Marstiller on Sept. 19 asking the state to consider regulations that would cost less, which is allowable under state administrative law.

As an alternative, FABA’s attorneys suggested the state alter the rule to require ABA providers to conduct just one of the assessments AHCA is requiring in the proposed rule.  

Currently, the proposal would require providers use one of two assessments: the Vineland-3 Comprehensive Parent Interview Form Including Maladaptive Behavior Domain and the Behavior Assessment System for Children, referred to as Vineland, and the Third Edition, Parenting Relationship Questionnaire, referred to as the BASC-3 PRQ.

Additionally, FABA recommended the assessments be conducted once every three to five years, not twice a year.

“This would be more consistent with how the tools were designed and how they are often used in the educational system and other settings with the similar recipients of behavioral analysis services,” wrote FABA attorney Karen A. Putnal with the Tallahassee-based Moyle Law Firm.

Florida provides Medicaid-eligible minors under the age of 21 diagnosed with autism or autism spectrum disorder with applied behavior analysis services.

The proposed rule is the latest step the state has taken to alter how it delivers and pays for ABA services in an attempt to ferret out fraud and abuse and manage the cost of services. The proposed regulation works in tandem with a new regulation that, effective as of Aug. 1, requires ABA providers to use the national standard Current Procedural Terminology (CPT) code structure for behavior analysis. The CPT codes are developed by American Medical Association (AMA) Behavior Analysis.  

While Florida relies on managed care plans to administer most Medicaid-covered services to the poor, elderly and disabled, the care provided to autistic children is delivered on a fee-for-service basis. 

The changes come as the number of children diagnosed with autism increases. The Autism and Developmental Disabilities Monitoring (ADDM) Network at the Centers for Disease Control and Prevention released a study that estimated one in 44 8-year-old children in 2018 was diagnosed with autism spectrum disorder (ASD).