"ABA is "medically necessary" and is not "experimental" as defined under Florida administrative law and federal law. ... (p 11).
Dr. Vasconcellos, Dr. Bailey, and Dr. Mulick all testified that ABA is the standard means of treatment for autism and ASD. Dr. Vasconcellos testified that she prescribes ABA to all of her autistic patients and believes it would be medical malpractice not to prescribe ABA for a child with autism. Dr. Bailey testified that “we know ABA works. It’s been well established. It’s accepted in the medical community.” Furthermore, Dr. Mulick testified that the consensus in the medical community is that ABA has been the standard means of treatment for children with autism and ASD since the 1990’s, evidenced by consensus statements from the following sources: Centers for Medicare and Medicaid Services, United States Surgeon General Schachter, the Center for Disease Control and Prevention, the National Institute for Child Health and Human Development, the National Institute for Neurological Disorders and Stroke, the National Institute for Mental Health, the American Society of Child and Adolescent Psychiatry, the American Academy of Pediatrics, and the American Psychological Association. Kidder testified that she did not consider any of these consensus statements when determining the standard means of treatment for autism. In sum, the Court finds that AHCA’s failure to follow its own unwritten but formal standard practice for making treatment coverage decisions, failure to apply Florida’s definition for “experimental,” and failure to use “reliable evidence” as defined by Florida law, was unreasonable, arbitrary, and capricious. .... (pp 21-22).
The “reliable evidence,” as defined by Florida law, conclusively shows that ABA is not “experimental.” Plaintiffs have established through their expert witnesses that there exists in the medical and scientific literature a plethora of peer-reviewed meta-analyses, studies, and articles that clearly establish ABA is an effective and significant treatment to prevent disability and restore developmental skills to children with autism and ASD. Dr.Bailey testified that the four peer-reviewed meta-analyses listed at the end of the Hayes Report (two by Eldevik, one by Reichow, and one by Virues-Ortega) show that ABA is effective though they received scarce attention in the Hayes summary report. These metaanalyses included findings of large to moderate changes in IQ, intensive ABA intervention leads to positive medium to large effects in terms of intellectual functioning, language development, acquisition of daily living skills, and social functioning in children with autism and ABA is the treatment of choice. Dr. Bailey further testified about three additional studies (by Dawson, Zachor, Smith) that show that ABA is effective. For example, Dr. Bailey testified that the Zachor study is “well-conducted,” “well-respected,” “highly cited,” and “published in a good journal . . . with peer review,” and that the study concluded that the children receiving ABA “showed significantly greater improvements” than those children in the eclectic group. Further, Dr. Bailey stated that AHRQ did not acknowledge the significance of the Zachor study or its findings. Dr. Bailey testified that he is aware of 25 to 30 reviews of the literature and an additional 30 to 50 meta-analyses showing that ABA has been proven effective for children with autism. Notably, all the experts that testified for Plaintiffs and Defendant stated that they have never seen a study in the peer-reviewed literature where the authors concluded that ABA was ineffective as a treatment for children with autism or a study that characterized ABA as experimental. ... (pp 23-24)."