Supreme Court declines to review Arizona, incontinence case

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News from the U.S. Supreme Court

Without comment, the Supreme Court announced December 15 that it has declined to grant certiorari in an appeal from an appellate court decision requiring Arizona to fully cover incontinence briefs in its Medicaid program.

Under federal Medicaid law, states cannot deny Medicaid recipients “medically necessary services,” meaning that it is “provided…to prevent disease, disability, or other adverse health conditions or their progression, or to prolong life.”

Arizona argued it could save money by not providing coverage for incontinence briefs to people over age 21 for preventive purposes, as opposed to treatment purposes for when people have already developed skin impairments or infections.

The Arizona Center for Disability Law challenged the policy in a 2009 class action lawsuit, on the basis that the state could not distinguish between preventive and treatment services in its coverage of medically necessary services.

The U.S. District Court for the District of Arizona ruled against the state in 2012. The U.S. Court of Appeals for the 9th Circuit upheld the decision in May 2014, noting that the state conceded the services were medically necessary, even when used just for preventative purposes.

The Arizona Center for Disability Law received support in the litigation from an amicus brief signed by 20 disability advocacy groups, including Disability Rights Washington and the National Disability Rights Network.

“No medical facts support these Arizona Medicaid rules or their interpretation,” the amicus brief stated. “They are contrary to professional literature, policy and practice, and to funding program policy and practice.

“In addition, prevention is an inherent element of medicine as well as of the Medicaid program, as is stated plainly in Arizona Medicaid’s own definition of medical necessity. Moreover, the primary preventive role served by incontinence briefs is to protect against skin impairment, which can cause extraordinary pain, disability or death, and enormous costs.”

The Arizona Center for Disability Law previously sued the state in 2005 regarding its Medicaid coverage of incontinence briefs. At the time, the state did not provide coverage for incontinence briefs for people under age 21. The U.S. District Court for the District of Arizona ruled against the state the following year, but the state persisted with its policy for people over age 21 nonetheless.

Disability Rights Washington, the publisher of this DisAbility Galaxy website, is part of the federally funded protection and advocacy system and a member of the National Disability Rights Network.