Kyla Asbury Sep. 9, 2014, 10:32am

HONOLULU (Legal Newsline) - A single mother of an autistic child has filed a class action lawsuit against the State of Hawaii Department of Human Services and for allegedly ignoring federal Medicaid rules.

Suzanne Egan, whose child J.E. is a severely autistic 5-year-old, and the Hawaii Disability Rights Center claim Hawaii DHS violated the Medicaid Act by now allowing Medicaid recipients to receive a broad scope of early and periodic screening, diagnostic and treatment services, according to a complaint filed Friday in the U.S. District for the District of Hawaii.

Egan claims she can no longer afford the $5,000 per month treatments her son requires and that the treatments should be covered by Medicaid.

"J.E. is a 5-year-old boy. He qualifies for Medicaid and Medicaid's EPSDT services," the complaint states. "From birth in 2009, J.E. was neurologically 'jittery' and failed to meet appropriate developmental milestones at typical ages."

As an infant and toddler, J.E. suffered poor suck-and-swallow reflex, inability to latch, weak cry, sensory issues and food texture sensitivities, according to the suit.

Egan claims J.E. also exhibited difficulty in transitions, stereotyped and repetitive motor movements, such as spinning himself in a circle and under-developed social skills.

"At 2 years old, J.E. received 11 months of Early Intervention services at the Easter Seals East Sultan Program through the Hawaii Department of Health," the complaint states. "When J.E. was 3 years old, he was diagnosed with Severe Autistic Disorder by a licensed psychologist."

The autism diagnosis was confirmed when J.E. was 4 years old through re-evaluations requested by the State of Hawaii Department of Education in contemplation of J.E.'s qualification for Special Education services, according to the suit.

Egan claims since April 2012, J.E. has received DOE Special Education services during school hours, which do not include clinical 1:1 ABA treatment.

Egan assesses that the DOE services are inadequate and that J.E. has regressed, according to the suit. At 5 years old, J.E. remains non-verbal.

"J.E.'s treating neurologist prescribed ABA as the primary and only treatment supported by substantial empirical evidence for his condition," the complaint states. "J.E.'s treating psychologist has prescribed 35 to 40 hours a week of intensive 1:1 ABA treatment for J.E."

Egan claims the pervasive developmental delays that J.E. suffers make the recommended ABA medically necessary for J.E. to learn and correct, maintain or ameliorate the effects of his disability.

Despite requests and inquiries from J.E.'s mother, the DHS has consistently denied Medicaid coverage of ABA treatment for J.E., according to the suit.

"As a result, as of June... Egan has paid out-of-pocket for 27 hours of intensive 1:1 ABA treatment per week for J.E., which she cannot afford," the complaint states. "Ms. Egan will soon have no choice but to terminate the critical treatment for J.E."

Egan claims at J.E.'s young age, a lapse in ABA treatment could permanently impair his development.

Without ABA, J.E. faces serious consequences, including regression of his skills and increases in potentially dangerous behaviors, according to the suit.

J.E. and the members of the class have been or will be receiving health benefits insured by Medicaid that are subject to the Medicaid Act; diagnosed with ASD; and prescribed or determined to be in need of ABA treatment by a licensed physician, according to the suit.

The proposed class will consist of all current and future Medicaid-eligible children in Hawaii under 21 years of age diagnosed with an Autism Spectrum Disorder, who have been or will be eligible to receive, but have not received, applied behavioral analysis treatment as a Medicaid covered service.

The plaintiffs are seeking class certification and a preliminary and permanent injunction directing the defendant to cover ABA treatment for J.E. and the class. They are being represented by Paul Alston, Kristin Holland and Maile Osika of Alston Hunt Floyd & Ing; and Louis Erteschik and Matthew C. Bassett of Hawaii Disability Rights Center.

The case is assigned to District Judge Barry M. Kurren.

U.S. District Court for the District of Hawaii case number: 1:14-cv-00399

From Legal Newsline: Kyla Asbury can be reached at

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