Arizona Center for Disability Law

Padilla v. Biedess & Thompson - On December 1, 2001, AHCCCS discontinued coverage of out-patient kidney dialysis and chemotherapy for otherwise eligible legal permanent resident aliens who have been in the United States for less than five years or other aliens who are here without documentation. AHCCCS issued new regulations reversing its earlier policy covering kidney dialysis for both resident and non-resident aliens as an “emergency medical service.” Public outcry forced the legislature to provide relief for a portion of the population currently receiving dialysis treatments, however, that funding will run out in the end of June. Knowing that this was only a temporary solution to a problem that affects almost two hundred individuals statewide, the Arizona Center for Disability Law, Southern Arizona Legal Aid, and the William Morris Justice Institute decided to take action.

Representing clients statewide in need of kidney dialysis, these public interest lawyers filed a lawsuit in United States District Court challenging AHCCCS’ interpretation of the federal Medicaid law. Under its current regulations, AHCCCS claims that dialysis is not an “emergency medical service” because it doesn’t have a “sudden onset.” However, under the AHCCCS program, if the person’s health condition deteriorates as a result of not having kidney dialysis and the individual is taken to a hospital emergency room, AHCCCS will then cover the service. “This new policy is not warranted under either federal Medicaid Law or state cost-saving concerns,” states Sally Hart, Staff Attorney for the Arizona Center for Disability Law. “We will be asking the Court to strike down the AHCCCS regulation as invalid and to require that medically necessary kidney dialysis be provided for all persons in Arizona regardless of their immigration status.”

The Plaintiffs include:

Fatima Padilla. Ms. Padilla is fifteen years old, lives in Phoenix and has failing kidneys. She applied to AHCCCS for kidney dialysis six weeks too late to benefit from the temporary funding appropriated by the legislature. Currently, she is existing day-to-day on donated medical supplies from Good Samaritan and Phoenix Children’s Hospital.

Guillermo Lujan. Mr. Lujan is a 52 year old man who has a serious kidney disease. Guillermo has been receiving dialysis through the AHCCCS program since 1991. He was briefly terminated from the program due to AHCCCS’ change in regulations in December and his health deteriorated rapidly. His dialysis was reinstated after the legislature’s actions, but will end in June unless something is done.

Rosa Lopez. Ms. Lopez is a 45 year old woman who resides with her husband, daughter and granddaughter in Tucson, Arizona. Her husband is a United States citizen and she is a citizen of Mexico. Although her husband has filed for her immigration status to be changed to Lawful Permanent Resident, she is still waiting for an adjustment to her immigration status. Ms. Lopez’ kidneys began to fail approximately two years ago, and she now has end stage renal disease. Ms. Lopez requires kidney dialysis 3 times a week, however, she has not been receiving regular dialysis treatments for lack of a method of payment. In addition to her renal disease, Ms. Lopez has recently been diagnosed with breast cancer. Although she was scheduled for cancer surgery at the University Medical Center in February 2002, it was postponed because she is not receiving dialysis. Her doctors say that her body cannot process the anesthesia for the surgery without proper kidney function.

PRELIMINARY INJUNCTION ISSUED FOR PLAINTIFFS
On June 17, 2002 Judge William D. Browning of the United States District Court in Tucson granted plaintiffs’ motion for a preliminary injunction in this case. The judge found that the denial of regular renal dialysis services would result in “serious, and perhaps fatal consequences” for plaintiffs. In addition, the judge held that the plaintiffs had raised “serious questions” of law concerning the AHCCCS decision to end coverage of regular dialysis as an emergency medical service.

The preliminary injunction orders AHCCCS not to limit plaintiffs’ access to dialysis, but to provide them with coverage of medically necessary outpatient dialysis treatments. It also orders the plaintiffs to file an amended complaint adding the federal Medicaid administration as a defendant in the lawsuit.

The preliminary injunction will provide regular dialysis treatments for the five named plaintiffs pending a final decision in the case. Although other individuals in the state who would have qualified for dialysis as an emergency service prior to the change in AHCCCS policy on December 1, 2001 are not protected by the preliminary injunction, the state has agreed to continue providing dialysis for them while the funds appropriated by the legislature remain.

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