A federal class action filed by the Arizona Center for Disability Law may lead to more effective home care services for long-term care patients through Arizona’s Medicaid program. The lawsuit, which had been threatened by changes in the law prohibiting individuals from asserting their rights in many circumstances, has been given a new vitality by a recent ruling in the Ninth Circuit Court of Appeals.

The Center originally filed on behalf of three individuals receiving “home and community based services” (HCBS) from ALTCS, Arizona’s long-term care Medicaid program. They alleged that they qualified for and had been enrolled in the program, but that its promise of attendant care in their homes was frequently hollow. Too often, they alleged, care workers quit on sort notice for better-paying jobs, proved not to be adequately trained to provide care, or were simply unavailable. The trial judge allowed the lawsuit to proceed as a class action.

The basic problem, the Center insisted, is that ALTCS simply pays too little to attract and retain qualified caretakers. A Federal District Court Judge agreed, and ordered Arizona to increase its hourly payment rate for caretakers from its current $6.25 to $8.50 tom something more like the $9.00 to $10.00 paid to caretakers who work outside the ALTCS system. He also ordered a number of other changes, including a telephone hotline for ALTCS patients to report gaps in critical services and a real grievance system.

Arizona appealed the decision. While the appeal was pending, an unrelated appellate case was decided in a way that appeared to dispose of most of the claims—and hence most of the relief—in the Center’s class action.

The appellate decision released last week recognized that one of the central arguments for relief in the Center’s case was undercut by subsequent case law denying individual claims for “equal access” to care. But, ruled the judges, the lawsuit could still have gone forward on a claim under the Medicaid “free choice” provisions, which guarantee ALTCS patients the right to know about, and select, feasible alternatives to institutionalization. Those claims, according to the court, can be pursued on behalf of individual patients, even though the “equal access” claims cannot.

The appellate decision also questions whether Arizona’s substandard payment rates might violate the Americans With Disabilities Act (the ADA). In order to address that possibility, and to allow the trial judge to consider whether the “free choice” provisions are implicated by Arizona’s administration of its HCBS system, the appellate court remanded the case back to the District Court for further proceedings. Ball v. Rogers, July 17, 2007.

Would you like to subscribe to Elder Law Issues? Simply provide your e-mail address and name below, and click "Subscribe". At the same time, you may choose to also subscribe to The Voice, the newsletter of the Special Needs Alliance.

Privacy note: We do not ever use your e-mail address or name for any purpose other than to send out our subscription-based newsletter. You can rest assured that we will not sell, trade or share this information with any other person or entity. We have no ancillary or associated companies or entities to which we could provide your e-mail address, either.

© 1993-2008 Fleming & Curti, P.L.C.
520-622-0400 /  FAX: 520-203-0240