Litigation - AZ Medicaid Program Must Ensure Home and Comm. Based Services

Judge Rules That Managed Care Program
Must Ensure That Needed Health Services
Are Actually Delivered

As Medicare beneficiaries throughout the country know, managed care plans too often fail to actually deliver the health care they promise. Elderly and disabled individuals in Arizona, as elsewhere, struggle to continue living at home as an alternative to institutionalization. The Home and Community Based Services (HCBS) program under the state's managed care Medicaid program purports to provide medically necessary care, but those services have often not been delivered as promised. Home care services through the Arizona Health Care Cost Containment program (AHCCCS), a Medicaid managed care model, were unreliable because workers could not be found to fill schedules or did not appear for scheduled care. As a result, recipients were left stranded alone in their wheelchairs or beds.

In January, 2000 a lawsuit was brought to contest this mismanagement. The suit was filed in the U.S. District Court in Tucson by eight Arizona Medicaid recipients on behalf of a statewide class of HCBS recipients. Plaintiffs alleged that under federal Medicaid law and the Americans with Disabilities Act, the AHCCCS administration is required to make home care services available in a scope and amount necessary to allow the named plaintiffs as well as other HCBS recipients to live in the community. Center for Medicare Advocacy attorney Sally Hart was lead council for the plaintiffs in her role as consulting attorney for the Arizona Center for Disability Law.

On August 13, 2004, Judge Earl H. Carroll issued a decision finding that the State AHCCCS program has failed to assure that recipients of Home and Community Based Services actually receive their prescribed services. Ball v. Biedess, No. CIV00-67-TUC-EHC (D.Ariz. 2004). As a preliminary matter, the Judge held that plaintiffs have a private cause of action to enforce the access to services requirement of the Medicaid law, and distinguished other recent cases holding to the contrary. The Judge also ordered AHCCCS to make extensive reforms to assure that it “provide[s] each individual who qualifies for its services with those services for which the individual qualifies without gaps in service.”

In the ruling, the court ordered AHCCCS to take specific steps to provide HCBS services to individuals without gaps in service. AHCCCS was ordered to monitor delivery of services by its program contractors, and to develop adequate contingency plans for instances when care is not provided, including a grievance process with a phone line for reporting gaps, and guaranteeing provision of the missed service within 4 hours. In addition, the AHCCCS program must offer a rate of pay sufficient to attract enough health care workers to deliver all the services for which people qualify.

Although this case was brought on behalf of Medicaid managed care patients, the lesson rings true for elderly and disabled Medicare beneficiaries as well. As Medicare continues to rely more heavily on managed care, these plans must be required to make good on their promises and ensure that medically necessary services really are delivered.

The plaintiffs were represented at trial by Sally Hart and Steven Palevitz of the Arizona Center for Disability Law, the Protection and Advocacy Program that provides assistance to persons with disabilities in the State of Arizona, and Sarah Lock of AARP Litigation. The DNA Legal Services/Native American Protection and Advocacy Project were also co counsel in the case. For more information, contact Sally Hart at (520) 527-9547 or shart@medicareadvocacy.org.