Lawsuit Seeks Coordination of Medicaid Benefits with Educational Services for Autistic Students

We want to share some good news for families with autistic children, and members of the special education community. On November 28, 2018, the Hawaii Disability Rights Center (HDRC) filed a lawsuit in federal district court against the Superintendent of the Department of Education (DOE) and the Director of the Department of Human Services (DHS), alleging the Departments violated the Americans with Disabilities Act (ADA), the Medicaid Act, and sections 504 and 1983, by failing to provide applied behavior analysis (ABA) to autistic students. The lawsuit is based in part on law made in our case, R.E.B. v. State Dept. of Educ., 870 P.3d 1025 (9th Cir. 2017), en banc reh’g denied, panel reh’g granted, R.E.B. v. State Dept. of Educ., 886 F.3d 1288 (9th Cir. 2018). The HDRC seeks to implement and build upon that law.

Among other things, HRDC seeks an injunction on behalf of families with autistic children that: directs DHS to provide medically necessary ABA during school hours, directs DOE to allow private ABA providers onto campus to provide medically necessary ABA for students with autism during school, directs DOE to individually evaluate each student with autism using Licensed Behavioral Analysts or other qualified professionals, and appoints a special master to coordinate and monitor Defendants’ compliance with these injunctions. HRDC also requested that the court declare and establish: that DOE’s refusal to provide or accommodate medically necessary ABA during school violates the ADA and sections 504 and 1983, that DHS’ failure to ensure that Medicaid recipients under the EPSDT mandate have access to medically necessary ABA treatment during the school day violates the ADA, the Medicaid Act, and sections 504 and 1983, and that the DOE’s predetermined policy not to consider, provide, or accommodate qualified ABA services as an educational service for students with autism violates section 1983.

If you are the parent of an autistic child who has questions or concerns about your child’s rights to applied behavioral analysis services, or whether these services are sufficient in quality and quantity to allow him or her to make meaningful academic and functional advancement, then contact Robert E. Badger (REB) at or through this website to schedule a confidential free consultation. We look forward to speaking with you.

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