Kinney & Associates, Inc.
National Health Law Program (2/04) Page 13
Chisholm v. Hood, 133 F. Supp. 2d 894 (E.D. La. 2001)
Background: The class action case was filed in 1997. While the parties were able to settlement most of the case, one issue could not be resolved. This issue concerned the State's obligation under EPSDT law to provide psychological and behavioral services rendered by psychologists to class members diagnosed with autism. The Medicaid agency argued that these services were adequately covered through other health care providers. The Court's decision. The Court ruled for the child plaintiffs. It noted that psychologists are licensed health practitioners who provide both preventive and rehabilitative services to persons with autism. The Court then turned to the treatment provisions of the EPSDT statute, § 1396d(r)(5). Applying the statute, the Court looked at whether the behavioral and psychological services at issue come within the listing of coverable services at §
1396d(a). Looking over the benefits, the Court found these services fall within at least two of the described services: remedial care recognized under state law, § 1396d(a)(6), and preventive and rehabilitative services recommended by a health care provider for the "maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level," § 1396d(a)(13). Therefore, the Court reasoned, the services "must be provided when needed to correct or ameliorate conditions, as required by 42 U.S.C. § 1396d(r)(5)." Id. at 898. Next, the Court addressed the State's arguments that needed services were available through the current mental health system:
Psychiatrists. Plaintiffs' expert testimony established that psychiatrists do not substitute for psychologists because they generally are not trained in and do not provide the types of intensive behavioral treatments that have been shown to be effective in treating autism.
Mental health clinics and rehabilitation programs. The State's criteria conditioned access on a diagnosis of mental illness and did not include autism as mental illness. Also, these programs were not required to have psychologists on staff.
Rural health clinics and federally qualified health centers. These sites provide mostly acute and preventive services and are not primarily engaged in providing mental health services. Psychologists are not commonly on staff.
School services. Services in schools are focused on the educational needs of the child and do not address other needs such as behavioral services. Individual plans are used during school hours and do not meet a child's needs at home or elsewhere in the community.
Physician's offices. Psychologists generally have independent practices. Unlike speech or occupational therapists, they do not provide services through other providers.
Id. at 899-901. After considering all of the State's current offerings, the Court said they were "more theoretical than actual." Id. at 901. It found the EPSDT treatment statute, § 1396d(r)(5), was being violated and ordered the parties to develop a remedial plan.