Ekloff v. Rodgers

443 F.Supp.2d 1173

Rachel EKLOFF, et al., Plaintiff, v. Anthony D. RODGERS, Director of the Arizona Health Care Cost Containment System, and the Arizona Health Care Cost Containment System Administration, Defendant.

No. CV05-407TUC-RCC.

United States District Court, D. Arizona.

March 3, 2006.

Sally Hart, Arizona Center for Disability Law, Tucson, AZ, Robin C. Murphy, Arizona Center for Disability Law, Phoenix, AZ, Jennifer Lynne Nye, Arizona Center for Disability Law, Tucson, AZ, for Leon Igras, Mary Hull, Sarah Ekloff, Steve Harris, Tracy Hoel, Plaintiffs.

Logan T Johnston, Johnston Law Offices PLC, Phoenix, AZ, for Arizona Health Care Cost Containment System, Anthony D. Rodgers, Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT

COLLINS, District Judge.

Oral argument was heard on February 24, 2006, regarding Plaintiffs' Motion for Summary Judgment (Docket # 11) and Defendants' Cross-Motion for Summary Judgment (Docket # 28). Plaintiffs' Motion for Summary Judgment is hereby granted.

I. FACTUAL AND LEGAL BACKGROUND

Plaintiffs filed a class action law suit in June 2005. The named Plaintiffs are all minors under 21 years of age with numerous developmental and other disabilities who reside with their parents in various cities throughout Arizona.¹

Plaintiff children are each eligible for medical services from the Arizona Medicaid program, known as the Arizona Health Care Cost Containment System (AHCCCS). Medicaid is a medical assistance program for low income and disabled people jointly funded by the federal and state governments and authorized by Title XIX of the Social Security Act (42 U.S.C. §§ 1396-1396v). The AHCCCS is Arizona's version of the Medicaid program.

As a result of their disabilities, Plaintiff children are incontinent of bowel and/or bladder. Although they do not currently have skin breakdown, their physicians have prescribed incontinence briefs for them. The children need incontinence briefs in order to avoid skin breakdown and infection and to enable the children to participate in social, community, therapeutic and educational activities. Currently, the parents of Plaintiff children buy the incontinence briefs at personal cost, on average over $100 per month.

Defendant Anthony D. Rodgers is the Director of the AHCCCS. Defendant AHCCCS Administration ("AHCCCSA") is the single state agency responsible for ensuring that health services are provided to eligible Arizona residents in compliance with federal Medicaid law, Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq. as well as state laws. AHCCCSA contracts with managed care organizations throughout the state to deliver a specified package of AHCCCS services in return for a monthly payment per beneficiary.

Plaintiffs contend that Rodgers has a duty to ensure that AHCCCSA complies with federal and state law which mandates the provision of incontinent briefs for preventive purposes rather than merely after there are skin breakdowns with open sores. The current policy of AHCCCSA covers incontinence briefs for children with disabilities only when a child has skin breakdown that could become infected but not for preventative purposes.

In their Complaint, Plaintiffs asked that the Court certify this action as a statewide class action pursuant to Federal Rules of Civil Procedure Rule 23.² Additionally, they requested for the Court to issue a declaratory judgment holding that Defendants' practice of denying coverage for incontinent briefs for Plaintiffs to be in violation of Early and Periodic Screening, Diagnostic, and Treatment ("EPSDT") provisions of the Medicaid statute; for the Court to issue a permanent injunction prohibiting Defendants from denying Plaintiff children coverage of incontinent briefs prescribed to them as a preventive measure; for the Court to issue an order requiring AHCCCSA to reimburse Plaintiff parents for the cost of incontinent briefs purchased by the parents and to award Plaintiffs' reasonable attorneys' fees and costs.

Defendants filed a Motion to Dismiss alleging lack of subject matter jurisdiction and failure to state a claim. A hearing on Defendants' motion was held on October 11, 2005, where the Court denied the motion.

Plaintiffs subsequently filed a motion for summary judgment and Defendants responded with their own cross-motion for summary judgment. One of Defendants' main contentions in their cross-motion is that the facts are sufficiently in dispute to necessitate a jury trial. However, the core facts are indisputable: the children have disabilities requiring incontinent briefs, the treating physicians of these children have prescribed incontinence briefs for being necessary for the treatment of the children, and AHCCCSA is not currently providing the incontinence briefs. The rest of the case revolves around questions of law suitable for resolution through summary judgment.

II. DISCUSSION

1. Standard for Motion for Summary Judgment

Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The initial burden rests on the moving party to point out the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party has the burden of proof at trial—"the plaintiff on a claim for relief or the defendant on an affirmative defense"—that party carries its initial burden by presenting evidence showing no reasonable trier of fact could find for the nonmoving party. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991); Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986). If the moving party does not have the burden of proof, that party carries its initial burden either by presenting evidence negating an essential element of the nonmoving party's claim or demonstrating that the nonmoving party cannot meet its burden at trial. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548; Nissan Fire & Marine Insurance v. Fritz, 210 F.3d 1099, 1101 (9th Cir.2000).

Once satisfied, the burden shifts to the opponent to demonstrate through production of probative evidence that an issue of fact remains to be tried. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "[A]n adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, ... the adverse party's response must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "A trial court can only consider admissible evidence in ruling on a motion for summary judgment." Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002). Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of element essential to the party's case, and on which that party will bear the burden of proof at trial." Thomas v. Douglas, 877 F.2d 1428, 1430 (9th Cir.1989).

When considering a motion for summary judgment, the court is not to make credibility determinations or weigh conflicting evidence. Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir.1990). Instead, the court should draw all inferences in the light most favorable to the nonmoving party. Id.

2. Federal Medicaid Law Requires Incontinence Briefs Be Included In EPSDT Coverage

Both AHCCS and ALTCS provide coverage for medical supplies which includes incontinence briefs. The State of Arizona has chosen to provide medical services to AHCCCS beneficiaries and under the ALTCS program, medical supplies are mandated for all individuals who are entitled to receive nursing facility services. A.R.S. § 36-2907(A)(6); 42 U.S.C. § 1396a(a)(10)(D), 42 C.F.R. § 440.70.

Plaintiffs claim that having made this election, Defendants are required under federal Medicaid law to provide incontinence briefs to beneficiaries of both the AHCCCS and ALTCS programs. This is because medical supplies must be provided if they are medically necessary. The AHCCCS regulations define "medically necessary" as "a covered service provided by a physician or other licensed practitioner of the healing arts within the scope of practice under state law to prevent disease, disability, or other adverse health conditions or their progression, or prolong life." A.A.C. R9-22-101(B). The physicians of Plaintiff children have indeed prescribed incontinence briefs to avoid skin breakdown as well as to allow Plaintiff children to be able to participate in limited daily activities. Therefore, the incontinence briefs are "medically necessary."

a. Purpose of EPSDT Within Medicaid

Medicaid is a federal and state government jointly funded medical assistance program for low income and disabled people. 42 U.S.C. §§ 1396-1396v. AHCCCS, as Arizona's version of the Medicaid program, provides acute and long term care services. Arizona Long Term Cary Systems ("ALTCS") provides long term care services.

A state is not required to participate in the Medicaid program. However, once a state chooses to participate and accept matching federal funds, it must comply with federal Medicaid law. Wilder v. Virginia Hospital Ass'n, 496 U.S. 498, 502, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990). Arizona is a participant in the federal Medicaid program requiring it to comply with federal Medicaid law.

Two years after it was enacted in 1965, Congress augmented the federal Medicaid program's coverage to provide early and periodic screening, diagnosis and treatment ("EPSDT") services to Medicaid eligible children. Se...