A federal judge on Monday slapped down a cost-cutting bid by the state’s Medicaid program to deny incontinence briefs to adults who need them.

Judge Wallace Tashima rejected arguments by the Arizona Health Care Cost Containment System that the briefs for adults were not “medically necessary” supplies for all those who are eligible for home health care from the state program. Attorneys for the state said that, absent some condition that mandates the briefs, like a rash, nothing in the law requires taxpayers to fund them.

Tashima also brushed aside the state’s contention it cannot afford the cost of the briefs and that requiring AHCCCS to provide them would necessarily mean cuts to other services. The judge said the state cannot unilaterally decide what services it can afford.

Monday’s ruling, unless overturned, will have financial consequences beyond the future cost of the briefs: The judge ordered the state to reimburse patients who have had to purchase the supplies in the more than two years the case has been in court.

Peri Jude Radecic, director of the Arizona Center for Disability Law, which filed the lawsuit, said this is a crucial victory.

“The AHCCCS policy has had a negative impact on the disability community,” she said. “Without these incontinence briefs, people with disabilities who are incontinent and unable to afford these incontinence briefs are confined to their home and are unable to participate in community activity.”

That policy provides briefs for all those to age 21. Briefs are made available by AHCCCS to those 21 and older who are disabled and incontinent, but only when they are ordered by a doctor to treat skin breakdown or infection.

More to the point, the lawsuit argued, briefs have not been provided to those receiving home health services even when a doctor orders them as “medically necessary to prevent skin breakdown and infection and to allow integration into the community.” But they are provided for preventative purposes for those living in nursing homes.

What all that means, the lawsuit said, is adults who want to be “fully integrated into the community” have to purchase the briefs with their own funds.

Tashima said federal law requires state Medicaid programs to provide “medical supplies ... suitable for use in the home.” He said while the law does not define what are medical supplies, no one disputes that incontinence briefs used to prevent skin breakdown fits within what the regulations require.

The judge acknowledged that federal law does not requires AHCCCS to cover all medical supplies in all circumstances. And he said states may place “appropriate limits” on services based on whether they are medically necessary.

But Tashima rejected the state’s argument that the briefs are not medically necessary if they are being used only to prevent a future medical condition like skin deterioration and infection.

Monica Coury, a deputy AHCCCS director, said her agency had not had a chance to review Monday’s ruling and could not comment on its implications or the possibility of appeal.

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