STATEMENT OF SALLY HART
Senior Litigation Attorney,
June 22, 2005
Good morning.
Thank you for coming to hear about the new public interest lawsuit filed
by the Arizona Center For Disability Law.
My task this morning is to describe the legal foundation
for Plaintiffs' claims in Ekloff v.
Rodgers. Fortunately, it is quite
simple. The AHCCCS Administration's
policy of denying incontinence supplies to children with disabilities
violates requirements of federal law.
The federal Medicaid statute authorizes states to
establish medical assistance programs
for eligible individuals. These Medicaid
programs are jointly funded by the federal and state governments.
AHCCCS has gotten around this requirement by covering
incontinence briefs only as treatment after a beneficiary has developed open
sores, but not to prevent such sores.
Ironically, this policy violates Defendants' own definition of
"medical necessity" for health care.
The AHCCCS regulations state that "‘Medically necessary' means a
covered service provided . . . to prevent disease, disability, or other adverse
health conditions or their progression, or prolong life." But the Defendants have made an exception to
this definition in order to justify their refusal to cover incontinence briefs
needed to prevent skin breakdown and allow beneficiaries to participate in
educational and community activities.
Furthermore, federal Medicaid law expresses a special concern for the health
care needs of children and youth under 21 years of age. They are entitled to a broader than usual
package of services called Early and Periodic Screening, Diagnosis and
Treatment services. EPSDT services include
health care needed "to correct or ameliorate defects and physical and
mental illnesses and conditions . . . , whether or not such services are
covered by the State plan." 42
U.S.C. § 1396d(r)(5). A recent decision
by the 5th Circuit Court of Appeals held that a
We are optimistic that the strong legal basis for this
lawsuit will bring relief to children and their families throughout the State
of
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