TALLAHASSEE (CBS Miami)
Florida is trying to fend off a potential class-action lawsuit alleging Medicaid denies coverage for incontinence supplies in violation of laws like the Americans with Disabilities Act.
Attorneys for the state last week filed documents in federal court in Jacksonville, disputing that the two named plaintiffs have standing to continue the case and arguing that it should not be treated as a class action.
The lawsuit, filed in July, said the Medicaid program stopped providing coverage incontinence supplies to plaintiffs Blanca Meze and Destiny Belanger after they reach the age of 21, although they are incontinent and unable to care for themselves. It alleges the state is in violation of federal Medicaid law and laws including the Americans with Disabilities Act.
But in a document filed last week in response to the complaint, state attorneys argued in particular that the women lacked legal standing because they “were not at unreasonable and serious risk of unnecessary institutionalization.”
The attorneys also wrote that the state Medicaid program operates under rules approved by the federal Centers for Medicare & Medicaid Services.
“Defendant (the state) has a comprehensive, effective plan to provide qualified individuals with necessary services to prevent unnecessary institutionalization,” the document states. “Alternatively, any medical relief the court deems necessary must be limited to a narrow resolution of the harm caused to him and not unduly affect the defendant’s comprehensive, well-functioning Medicaid plan that has been reviewed and approved by CMS (Centers for Medicare & Services Medicaid).”
The lawsuit says the state provides incontinence supplies, such as panties, diapers and pads, to Medicaid beneficiaries under the age of 21 and to certain adults, including people in nursing homes and people in what is known as a “denial of services Medicaid at home and in the community.” “programs.
But that coverage does not extend to Meza, a Duval County resident, and Belanger, a St. Johns County resident. As examples of their disabilities, the lawsuit said Meza “has been diagnosed with cerebral palsy with spastic quadriplegia, muscle spasticity, neuromuscular scoliosis and partial epilepsy.”
“The plaintiffs are adults with medical disabilities, each suffering from bladder and bowel incontinence,” according to the lawsuit, which also includes a Florida disability rights group as a plaintiff. “As low-income Floridians with significant disabilities, they receive health care services through Florida’s Medicaid program. Plaintiffs’ physicians prescribed certain incontinence products, including briefs and pads, as medically necessary to treat Plaintiffs’ incontinence, keep their skin dry and clean, prevent skin damage and infection, and maintain their ability to live in the community.
The lawsuit names Simone Marstiller, secretary of the Florida Health Care Agency, which administers the massive Medicaid program, as a defendant. The plaintiffs are also seeking a preliminary injunction.
A judge in 2010 ordered the state to provide incontinence briefs to Medicaid beneficiaries under the age of 21, the lawsuit says.
Medicaid also provides supplies for incontinence care for adults in health care settings; adults with AIDS and a history of “opportunistic infections associated with AIDS”; and adults participating in the state’s long-term care and iBudget programs, according to documents in the case. The iBudget program, for example, serves people with developmental disabilities.
But the lawsuit, filed by attorneys for the Florida Health Equity and Disability Rights Project, says the waiver programs have long waiting lists, and Meza and Belanger are receiving care in their families’ homes. The lawsuit said Meza’s family faces $188 a month in costs and Bélanger’s $200 a month.
In addition to challenging key arguments in the lawsuit, attorneys for the state also argued last week that the case should not move forward as a class action on behalf of the vast number of Medicaid beneficiaries.
“Here, the alleged generality of the proposed class and the typicality of the named plaintiffs should not be excused because neither the named plaintiffs nor the proposed class suffer the same damages that depend on the resolution of the general dispute,” state attorneys Eric Filho and Alexandra Akre wrote.
