In a ruling potentially affecting thousands of Arizonans, a federal appeals court on Tuesday voided a cost-saving bid by the state's Medicaid program to deny incontinence briefs to some adults who need them.

In an unsigned opinion, a three-judge panel of the 9th U.S. Circuit Court of Appeals said attorneys for the Arizona Health Care Cost Containment System conceded the agency is are required under federal law to provide “medically necessary” services to those who are eligible for coverage.

But AHCCCS contended the briefs for adults do not qualify, saying they are medically necessary only when prescribed to treat skin breakdown or infection due to incontinence. In this case, the state agency argued, the briefs were being prescribed by doctors ahead of any indication of an actual medical problem.

The judges, however, said that conclusion of what is necessary is belied by AHCCCS’ own regulations.

Those rules say services are medically necessary when provided by a doctor “to prevent disease, disability, or other adverse health conditions or their progression.” The judges pointed out that AHCCCS admits the briefs were, in fact, being prescribed for preventative purposes.

The court was no more impressed by the fact that AHCCCS had amended its rules to exempt the briefs. The judges said that the federal Centers for Medicaid and Medicare Services had approved the AHCCCS definition of medical necessity “but not the carve-out concerning incontinence briefs.”

“To the contrary, the fact that CMS approved the definition of ‘medical necessity’ described above makes it even more unreasonable for AHCCS to rely on a provision never reviewed by CMS as the basis for its categorical refusal to cover a service that plainly qualifies as 'medically necessary,’” the judges wrote.

Attorney Sarah Kader of the Arizona Center for Disability Law, which filed the lawsuit, said Tuesday's ruling is a significant victory.

“We continue to receive calls on this issue,” she said. “We know how important it is for families in their day-to-day lives and the issue of basic human dignity.”

Kader said the ruling does not mean any adult can get incontinence briefs. She said the items must first be prescribed by a doctor who certifies that they are medically necessary.

Calls seeking comment from AHCCCS, along with cost estimates of the ruling, were not immediately returned.


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