FOR IMMEDIATE RELEASE                                               Contact:           Sally Hart     (520) 322‑0126

July 19, 2007                                                                                                   William E. Morris Institute for Justice

 

                                                                                                                                    Sarah Lenz Lock  (202)434-2073

                                                                                                                                    AARP Foundation Litigation

 

                                                                                                                                    Jennifer L. Nye  (520) 327‑9547 ext. 28

                                                                                                                                    Arizona Center for Disability Law

                                                                                               

 

Ninth Circuit Rules that Medicaid Beneficiaries can Sue to

Enforce Right to Receive Services in the Community

 

Ball Case Returned to U.S. District Court for Further Ruling on Scope of Injunctive Relief and the Plaintiff's Claims Under the Americans with Disabilities Act  and Section 504 of the Rehabilitation Act

 

Tucson, July 19, 2007.....On July 17, 2007, a three judge panel of the Ninth Circuit Court of Appeals ruled that Medicaid beneficiaries can sue in federal court to enforce two provisions of the federal Medicaid statute.  The provisions, commonly referred to as the "Freedom of Choice" provisions, provide Medicaid beneficiaries with disabilities the right to choose to get necessary health care at home and community based settings rather than in institutions.  The ruling was issued in Ball v. Rodgers, No. 04‑16963 (9th Cir. July 17, 2007).

 

In response to the decision, Sally Hart, one of the attorneys representing the plaintiff class said, “For over seven years now, the Plaintiffs have simply been asking Arizona to deliver the home health care services which have already been approved and that the state has already paid for.  This decision confirms that low income elderly people and people with disabilities have the right to sue to enforce their rights to receive reliable care services in their home, rather than be forced to go to more expensive nursing homes in order to get the care that they need.”

 

The original class action lawsuit, filed by the Arizona Center for Disability Law and AARP Foundation Litigation on behalf of Arizona Medicaid beneficiaries, alleged that the Arizona Health Care Cost Containment System (AHCCCS), Arizona’s Medicaid program, was not providing Medicaid beneficiaries with adequate home and community based services, such as attendant care, personal care, and homemaker services.  Such services allow people with disabilities to reside in the community, rather than in nursing homes, by assisting the person with activities of daily living such as bathing, toileting, transferring, and meal preparation.

 

After a four day trial in 2004, U.S. District Court Judge Earl H. Carroll found that the state’s failure to provide health care workers caused the Plaintiffs to be “trapped in bed unable to change position or care for personal hygiene, abandoned for hours in a bathroom, left without food or water.”  Judge Carroll also found that “it is the policy of AHCCCS that an HCBS beneficiary assumes the risk, by choosing to remain at home rather than be institutionalized, that services he or she depends on will not be delivered.” 

 

 Judge Carroll ruled that, by failing to provide the Plaintiff class with all of the home care services authorized in their care plans,  “Arizona failed to provide the representative class members with the equal access, quality of care, and freedom of choice to which they are entitled” under the federal Medicaid statute.  Judge Carroll issued a permanent injunction requiring Arizona to provide all the critical home health care services authorized without gaps in services and to fill all gaps in services within two hours.  Arizona appealed the decision to the Ninth Circuit.

 

In its appeal, Arizona argued that it was not bound to comply with the “Freedom of Choice” provisions because the Plaintiffs had no right of action to challenge its failures in federal court.  The Ninth Circuit affirmed that Plaintiffs have the right to sue under the “Freedom of Choice” provisions, but not the “Equal Access” provisions, and remanded the case to the District Court for further consideration of the Plaintiffs freedom of choice claims, as well as consideration of whether Arizona’s Medicaid program violated the Plaintiff’s rights to receive services in the least restrictive setting under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 

 

Jennifer L. Nye, another attorney representing the Plaintiffs, agreed that the decision was a victory for people with disabilities in Arizona and said that, “As the District Court found, these home services are the difference between people with disabilities living full and engaged lives in their communities and being trapped in nursing homes.  We will continue to work to ensure that every Arizonan has a meaningful choice to live in the community.”

 

The Plaintiffs in this case were represented by:  Sally Hart, former staff attorney at the Arizona Center for Disability Law, now with the William E. Morris Institute for Justice, Sarah Lock, of AARP Litigation in Washington, D.C., and Jennifer L. Nye  of the Arizona Center for Disability Law.

 

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The Arizona Center for Disability Law is a non-profit public interest law firm, which advocates for the rights of people with disabilities to be free from abuse, neglect and discrimination and to have access to education, health care, housing, jobs, and other services.  The Center is authorized and mandated under various federal statutes to protect the rights of all individuals with disabilities living in Arizona.  Ball 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 other class action litigation includes Ekloff v. Rodgers, which challenged the failure of the Arizona Medicaid program to provide incontinence briefs for children with disabilities, and Price v. Rodgers, which challenges the inadequate notice and appeals processes of the Arizona Medicaid program.

 

AARP is a nonpartisan, nonprofit membership organization of more than 35 million persons, age 50 and older, dedicated to addressing the needs and interests of older Americans.  AARP works to foster the health and economic security of individuals as they age, including attempting to ensure access to quality and economical health care.  AARP also litigates and supports cases around the country which enforce the rights of Medicaid and other federal program beneficiaries to appropriate services and procedural protections.