Treatment When You Need It
January 18, 2022
Advocating for Timely Medicaid Coverage of ABA
Through the NJ FamilyCare program, New Jersey Medicaid covers medically necessary ABA therapy for children under the EPSDT benefit. Nevertheless, it can be hard for families to find a behavior analyst in their MCO’s network near their home. Even if they find an in-network behavior analyst, the wait lists for new clients can stretch out to weeks or months.
As many parents reading this article will already know, the needs of individuals with autism can be unique and complex, affecting every aspect of their lives. There is often much for them to learn, and time is of the essence. In fact, decades of research strongly demonstrate better outcomes for children who participate in early and intensive intervention. Waiting months to begin ABA can exacerbate the symptoms of autism, deprive the individual of the opportunity to acquire new skills, and affect their long-term prognosis. For these reasons, there are limits on the amount of time families must reasonably be expected to wait to get medically necessary treatment.
Reasonable Promptness — Legal Definition
The Code of Federal Regulations (42 CFR § 435.930) makes clear that an agency furnishing Medicaid must do so “promptly to beneficiaries without any delay caused by the agency’s administrative procedures.” While there is no clear legal rule or standard about exactly how long it should take to get services, the guidance that has emerged is that services should be provided in a manner that is “reasonably prompt.”
Over the years, courts have done their best to interpret the language set out by state legislators and flesh out this concept to answer the question of “how long is too long?” For example, in a federal court decision from 1998, several judges found that delays of several years are “far outside the realm of reasonableness.” While that case is only controlling in Florida, Georgia, and Alabama, it remains persuasive elsewhere in the country, including here in New Jersey, and gives helpful context to the idea of what reasonably prompt means.
Reasonable Promptness — Practically Speaking
In short, the longer an individual must wait for treatment, the less reasonable that length of time becomes. A waiting list of a few weeks might be reasonable where a waiting list of more than a month may not.
A key way parents can use the concept of reasonable promptness when advocating for coverage is by looking at their child’s prognosis. If a delay in treatment affects a child’s prognosis, that is not a reasonable amount of time to wait for treatment.
Making Reasonable Promptness Work for You
When speaking with a representative from an MCO’s member services department, a parent should:
- Describe the issues they are having around reasonably prompt access to their child’s medically necessary treatment
- List the steps they’ve already taken to find and work with a provider. For example, keep track of when you:
- requested the names of in-network behavior analysts from the MCO
- called each of those providers
- recorded when they are put on waitlists and how long their child should be expected to wait before starting treatment
If necessary, a parent can also:
- Remind the representative of the MCO’s legal responsibility to provide reasonably prompt access to medically necessary treatment under the Code of Federal Regulations
- Describe the ways in which their child’s prognosis may suffer from the amount of time they’re expected to wait to access treatment
- Request to speak with a supervisor if the representative is being unhelpful or unresponsive
We’re Here to Help
The regulations, policies, and laws concerning health insurance change swiftly. Available funding for autism treatment – under both commercial health insurance plans and Medicaid – has greatly expanded in recent years. Autism New Jersey’s 800.4.AUTISM Helpline specialists will be happy to help you understand what coverage is available for your child and troubleshoot any insurance or reimbursement issues you may have with your service provider or MCO/insurance company.
If you experience difficulties, know that you’re not alone. The limited provider pool is a statewide issue and impacts many families. Autism New Jersey’s 800.4. AUTISM Helpline regularly assists families with insurance challenges, and our public policy team continues to strategically advocate for statewide solutions that will increase reimbursement rates and the provider pool to increase access to timely treatment.
This article is made possible by the New Jersey State Bar Foundation and their co-sponsorship of our outreach and education program, Medicaid-funded Autism Treatment: Knowing and Asserting your Rights.
This project is cosponsored by the New Jersey State Bar Foundation and made possible through funding from the IOLTA Fund of the Bar of New Jersey. For additional information about the Foundation’s other law-related activities, please call 800.FREE.LAW or visit the Foundation at njsbf.org.