FABA announces an end to its litigation with the Agency for Health Care Administration (AHCA) regarding the proposed revisions to the Medicaid Behavior Analysis Services Coverage Policy. 

AHCA proposed a new Behavior Analysis Services Coverage Policy in March of 2022. FABA objected to a number of provisions in the proposed policy, testified at the rule development workshop in April of 2022, and continued to work with the Agency to address concerns. In August of 2022, the Agency published the proposed rule and held a hearing on the proposed rule in September of 2022, at which FABA again testified. 

FABA then filed a petition to challenge the proposed rule on September 30, 2022, challenging the:

• Agency’s calculation of estimated regulatory costs for providers (SERC);
• Definition & process for obtaining a comprehensive diagnostic evaluation (CDE);
• Necessity and interval period for conducting multiple assessments; and,
• Process for authorization requests for services to be delivered in schools. 

FABA’s litigation team proceeded to conduct discovery of documents from AHCA and eQHealth, depose witnesses, and draft multiple motions on various issues before the administrative law judge. 

FABA was successful in revising the requirements for data to be included in the CDE; revising the interval for periodic core assessments to be administered from 6 months to 12 months; and providing a process for the authorization of requests for services in schools where neither an IEP or 504 plan is provided. AHCA has also given FABA its assurance that it will continue to review eQHealth’s internal policies for administering behavioral analysis services to ensure no eQHealth policy would constitute a “rule” as that term is defined by section 120.52(16), F.S.

Although FABA is confident it would have prevailed on its challenge to the SERC issue and others, ending the litigation in advance of the October hearing date allows FABA to re-engage with AHCA on a number key concerns with the behavior analysis program and prepare for the transition of the delivery of behavior analysis services from the current fee-for-service program to a managed care program under the recently-released Statewide Medicaid Managed Care ITN.

For additional information and to engage in further discussion on this, please be sure to attend the Public Policy Committee update at the FABA Conference on Wednesday, September 27^th at 5:30pm EST.

Missy

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Melissa L. Olive, Ph.D., BCBA-D, LBA (CT, LA, NY, TX)

Executive Director

Florida Association for Behavior Analysis