On August 12th, Judge Carroll granted a verdict in favor of the plaintiffs in Ball v. Biedess, No. CIV 00-067-TUC-EHC (D. Ariz. Aug. 12, 2004). The plaintiffs were a certified class of Medicaid recipients who needed home and community-based services who had not been receiving necessary home-based personal and attendant care services that they needed. They claimed violations of Medicaid law, Title II of the ADA and state law. Stating that "plaintiffs have a property right in the health care benefits for which they qualify,” the court held that the defendants violated federal Medicaid law by failing to provide enough attendant care workers to meet the needs of beneficiaries, largely due to low wages. Specifically, the Judge found violations of the "equal access", "quality of care" and "freedom of choice" requirements and ordered the Medicaid program to provide "services for which each individual qualifies without gaps in services." Without much discussion, the court held that these Medicaid claims were enforceable through Section 1983.

The Court ordered the following remedies. The state Medicaid director must:

1) develop adequate or alternative contingency plans when the agency cannot provide necessary home care service;

2) ensure a rate of pay to home care workers so as to deliver adequate services to qualified individuals; and so as "to attract enough health care workers to deliver all the services for which an individual qualifies." The program "need not offer a particular rate of pay (i.e. a minimum)
just a rate of pay which guarantees that each individual will receive the services for which he or she qualifies;"

3) monitor the program so that gaps in services are detected "in enough time to implement the alternative or contingency plan and eliminate the gap in service in less than four (4) hours;"

4) implement a grievance process which an individual to: (a) call and speak to a live person to report a gap in service; (b) receive a standardized form to mail to report a gap; (c) receive a response via telephone or mail acknowledging the gap and providing a detailed explanation of the reason; and (d) offer the "alternative plan being created to rectify the particular gap in service and any possible future gaps in service; and

5) ensure that the program "inform each of its members as to his or her rights pursuant to this order.

Counsel in the case are the Arizona Center for Disability Law, the Native American Protection and Advocacy Project, and the American Association of Retired Person. Thanks to Elizabeth Priaulx, of the National Association of Protection and Advocacy Systems, for this summary.