Attorney Brower’s Response:
As is often the case, your question requires a response to multiple issues, as follows:
1. ABA services provided by the public schools under IDEA.
2. ABA services provided by private insurance pursuant to recent Michigan law.
3. ABA services provided by Medicaid.
ABA Services – Public Schools under IDEA
IDEA is a federal law that requires public schools (including public charter schools) to provide eligible disabled students up to age 26 (Michigan only) with a Free and Appropriate Public Education (“FAPE”). Public schools have an affirmative duty called “child find” to locate and then evaluate all resident students suspected of having a disability that would negatively impact their ability to benefit from a public education.
For student found eligible, FAPE requires the school to meet the unique needs of the student with an “appropriate” program. Our Sixth Circuit Court of Appeals has defined an appropriate program as one that confers meaningful educational benefit in relation to the potential of the child at issue. An “appropriate program” is determined by a team (IEP Team) that is made up of qualified regular and special education trained school personnel and the student’s parents. The IEP Team determines if ABA services are appropriate, and if they are, at what frequency, duration and in what setting will ABA services be provided.
Determining Eligibility – To be found eligible under IDEA, a student must meet certain eligibility requirements and demonstrate that the disability adversely impacts educational performance. The role of the Multidisciplinary Evaluation Team (MET) and the requirements for eligibility under the Autism Spectrum Disorder (ASD) are found in the Michigan Administrative Rules for Special Education (MARSE). R 340.1701(b) and R 340.1715.
Provision of ABA Services – Once a student is found eligible, the parent in the IEP Team meeting that is required to create the child’s annual plan of services can request that ABA services. That may require a presentation that the child’s unique needs require ABA if the child is to make reasonable progress in the curriculum and to benefit educationally from the provided instruction. Having a qualified professional such as a BCBA (Board Certified Behavior Analyst) and any supporting documentation demonstrating progress with any ABA services that have privately been provided will be helpful in convincing the IEP Team to include ABA as a related service for the student.
At the same time, the choice of what methodologies to use to address the disability is one left up to the school staff. Therefore it is possible the school staff will elect to use something else rather than to commit to the cost of 1:1 ABA. However, IDEA does require that the school must be willing to at least consider the parents’ request. Upon request from the parent the school staff must also provide information regarding the service they selected to provide that accomplishes the same goals as ABA. Specifically that it is research based, has a proven record of positive outcomes and will provide “meaningful” educational benefit to this child.
Resolving Disagreements – If the parents disagree with any of the determinations made by the child’s IEP Team, then IDEA provides a number of avenues to resolve disagreements. First, the parent may elect to be accompanied to the IEP meeting by qualified persons able to address the child’s unique needs and to discuss how ABA can address those needs. Next, if the school members and the parents disagree, IDEA provides for voluntary third-party non-binding mediation if both parties agree. Finally, IDEA does provide for an administrative appeal process (IDEA “due process hearing”) before an impartial IDEA administrative law judge (ALJ). Before the actual hearing, the parties are required to meet in a Resolution Session and try to solve their differences without proceeding with the hearing. If they cannot, then in a trial type setting, with a court reporter present, both the parents and the school present expert and other testimony and evidence to support their position to the ALJ. Upon the conclusion of the hearing, the ALJ presents written findings fact and conclusions of law. Either side may appeal these finding to a court of competent jurisdiction, usually the federal district court. As these proceedings are legalistic and require an organized presentation, the public school is usually represented by skilled legal counsel.
ABA Services – Private Insurance
In 2012, the Michigan Legislator, under the leadership of Lt. Gov. Calley, partially addressed the needs of students with autism by requiring autism related treatments to be covered under certain employer insurance programs. The mandated coverage included insurance benefits for the treatment of autism, including medically needed ABA services. As only certain types of insurance plans are required to provide this coverage as part of the insurance benefits they provide their employees, a parent needs to check with their employer to determine if their plan does provide coverage.
To receive coverage, the covered member must receive a diagnosis of ASD by a licensed physician or a licensed psychologist. Treatment of ASD must be evidence based and includes the following care as determined by a licensed physician or a licensed psychologist:
Behavioral health treatment (applied behavior analysis (i.e. ABA),
Psychological care, and/or.
Therapeutic care (speech therapy, occupational therapy).
ABA Services – Medicaid
In 2013 Michigan amended the applicable Medicaid rules to provide ABA coverage for Medicaid eligible children 18 months to five years of age with an ASD diagnosis. (Note: Consideration is being given to expanding the age coverage to 18 years of age). Eligibility is based on a family’s adjusted gross income as compared to the federal poverty level (FPL). Child support received by the custodial parent is considered income.
The Medicaid and MIChild income eligibility rules are complex. Determination includes the concept of a “fiscal group” and a “tax unit”. Generally the income of a person residing in the same home, but who is not the child’s parent and does not claim the child as a dependent on their income tax return, is not included in determining Medicaid eligibility for the child. At the same time the rules are complex. A good source for information is the State web site: http://www.michigan.gov/mdhhs/0,5885,7-339-71547_2943_4931—,00.html. Also, in each county (or area) the Michigan Department of Health and Human Services has an office. See the county listing under the Inside MDHSS on their web site: http://www.michigan.gov/mdhhs. When someone is denied, the notification of the denial of eligibility includes the family’s right to appeal, along with the Request for Department Review form to be completed.