Arizona Center for Disability Law

FOR IMMEDIATE RELEASE                       Contact: Peri Jude Radecic, Director of Public Advocacy

Wednesday, February 22, 2006                      (520) 327-9547, extension 23

                                                      Cell: (623) 308-5111

Children with Disabilities to have Hearing in Federal District Court

Class Action Lawsuit Against the Arizona Health Care Cost Containment System Moves Forward

Tucson, February 22, 2006.....On Friday, February 24, 2006, in federal district court in Tucson, the Arizona Center for Disability Law (Center) will argue that children with disabilities are entitled to win their class action lawsuit against the Arizona Health Care Cost Containment System (AHCCCS), Arizona’s Medicaid system, in the case of Ekloff v. Rodgers.  Plaintiffs in this case are children with disabilities who are recipients of state Medicaid services and need incontinence briefs because of their disabilities.  Currently, AHCCCS will only cover incontinence briefs for children with disabilities when a child has experienced skin breakdown, sores or infections, but not to prevent disease or injury.

The hearing in the U.S. District Court will center on a motion for summary judgment filed by the Center in November 2005.  A motion for summary judgment means that both sides agree on the facts of the case and all that is left for the Judge to decide is whether the Plaintiffs’ (children with disabilities) or the Defendant’s (AHCCCS) interpretation of the law should prevail.  AHCCCS will oppose the Center’s motion and has filed its own motion for summary judgment.

The Center will argue that incontinence briefs are medically necessary for children who are incontinent of bowel and bladder because of their disabilities to prevent skin breakdown, bacterial and fungal infections, and other adverse health consequences.  In addition to preventing adverse medical conditions, incontinence briefs allow children with disabilities to fully participate in social, community, therapeutic and educational activities.  According to federal Medicaid law, which includes enhanced services for children under Early and Periodic Screening, Diagnosis and Treatment (EPSDT), the state must provide comprehensive medical services to children with disabilities under the age of 21. 

“It is well recognized by Medicaid programs across the United States that incontinence briefs for children are medically necessary and must be provided,” said Henry G. Watkins, Executive Director of the Center.  “We are talking about families whose incomes are stretched to the limit trying to care for their child.  Arizona’s policy to help families only after their child has experienced skin breakdown, sores or infections is contrary to federal law and common sense.  The harsh result of the state’s policy on these children causes them emotional trauma and seriously impedes their ability to participate in basic activities.  Further, it costs more to address serious medical conditions after the fact than to prevent them.”

The Center represents:

Rachel, Rebecca and Grace Ekloff.  The Ekloffs live in Tucson, Arizona.  Prior to 1997, the Ekloffs lived in New York, a state which covered medically necessary incontinence briefs for their daughter Rachel.  Rachel, age 10, has been diagnosed with severe, low-function Down Syndrome, sensory integration disorder, and severe eczema.  Rebecca, age 5, has Down Syndrome and is severely developmentally delayed.  Grace, age 7, has Down Syndrome and is profoundly mentally retarded.  All children are incontinent of bowel and bladder as a result of their disabilities and all were denied medically necessary incontinence supplies as a result of the AHCCCS policy.  The Ekloffs must spend approximately $320 per month for incontinence supplies for their disabled children to participate in social, therapeutic and community activities.

Richard Harris is 8 years old and lives with his family in Tucson, Arizona.  Richard was born at 29 weeks, weighed approximately 1.5 pounds at birth, and has been diagnosed with developmental delays, periventricular leukomalacia and hypospadias (an abnormal position of the opening from which urine passes).  Richard’s surgery to correct the hypospadias failed to ameliorate the condition.  Richard is incontinent of bowel and bladder and requires medically necessary incontinence briefs.  His family has to spend approximately $100 per month for incontinence briefs as a result of the AHCCCS policy.  These costs are a significant financial hardship for the family as his father and mother receive social security insurance/disability income as their sole source of income. 

Caitlin Hoel is 14 years old and lives in Mesa, Arizona with her family.  Caitlin has Aicardi Syndrome and requires medically necessary incontinence briefs because she is incontinent of bowel and bladder.  Because of the AHCCCS policy, her family must spend approximately $120 per month for Caitlin’s incontinence briefs.

Kristina Richards is 16 years old and lives with her family in Phoenix, Arizona.  Kristina has Spina Bifida, mental retardation and is paralyzed from the waist down.  She is incontinent of bowel and bladder and requires medically necessary incontinence briefs which AHCCCS will not cover.  The cost to her family is approximately $100 per month. 

Nicholas Igras is 9 years old and lives with his family in Scottsdale, Arizona.  Nicholas has profound Autism, profound mental retardation and is non-verbal.  He is incontinent of bowel and bladder and requires medically necessary incontinence briefs which AHCCCS will not cover.  The cost his family must spend is approximately $180 per month.

In the lawsuit, the Center is asking the court to find in the children’s favor and issue a permanent injunction to prohibit AHCCCS from denying them incontinence briefs prescribed as a preventative measure.  The Center is also asking for an order to be issued to require AHCCCS to reimburse parents for the cost of incontinence briefs purchased by them since their requests for AHCCCS coverage of the briefs were denied.

A favorable ruling would not make Arizona the first state in the country to pay for incontinence briefs for children with disabilities who are Medicaid eligible. Research conducted by Center staff indicates as many as 36 other states supply incontinence briefs for Medicaid recipients.

Ekloff v. Rodgers is a continuation of the Center’s work to ensure that people with disabilities have the health care services they need.  The Center’s Health Care Services Team handles issues ranging from the denial of assistive technology such as an electric wheelchair to another class action lawsuit against AHCCCS, Ball v. Rodgers, which was filed to remedy on-going problems with the provision of adequate in home personal care attendant services for individuals enrolled in Arizona’s Long Term Care Program.

Robin Murphy, Sally Hart and Jennifer L. Nye are the Center’s lead attorneys on this case.

- 30 -

The Arizona Center for Disability Law is a not for profit public interest law firm, dedicated to protecting the rights of individuals with a wide range of physical, mental, psychiatric, sensory and cognitive disabilities.  The Center is authorized under various federal statutes and appointed by the Governor of Arizona to ensure the protection and advocacy of all individuals with disabilities in the state.  The Center does not charge clients for its services.  The Center is funded through grants as well as the generous contributions of individuals in the community.