Free Motion for Summary Judgment - District Court of Arizona - Arizona

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ELLEN SUE KATZ, AZ Bar. No. 012214 WILLIAM E. MORRIS INSTITUTE FOR JUSTICE 202 E. McDowell Rd., Suite 257 Phoenix, AZ 85004 (602) 252-3432 [email protected] JENNIFER L. NYE, AZ Bar No. 019230 ARIZONA CENTER FOR DISABILITY LAW 100 N. Stone Ave., Suite 305 Tucson, AZ 85701 (520) 327-9547 [email protected] JANE PERKINS NATIONAL HEALTHnd LAW PROGRAM 211 N. Columbia St., 2 Floor Chapel Hill, NC 27514 (919) 968-6308 [email protected] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) Anthony Rodgers, Director of the Arizona ) ) Health Care Cost Containment System; and Michael O. Leavitt, Secretary of the ) ) United States Department of Health and ) Human Services, in their official ) ) capacities, ) ) Defendants. ) ) Sharon Newton-Nations; Manuela Gonzalez; Cheryl Bilbrey; Donald McCants; Hector Martinez; Anne Garrison; Dawn House; Dana Franklin; Edward Bonner; D.H.; Jack Baumhardt; Manuel Esparza; and Patricia Jones, on behalf of themselves and all others similarly situated,
Case 2:03-cv-02506-EHC Document 135 -1

No. CIV 03-2506 PHX EHC

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED (Assigned to Hon. Earl H. Carroll)

Filed 03/10/2008

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Plaintiffs, pursuant to Rule 56 of the Federal Rules of Evidence, submit their Motion for Summary Judgment. Plaintiffs' motion should be granted because there are no material facts in dispute and Plaintiffs are entitled to judgment, as a matter of law, on their claims that the copayments in Arizona Administrative Code Rule 9-22-711(E) exceeded the amounts allowed in the Medicaid Act and allow services to be denied because of the inability to pay the copayments, in violation of 42 U.S.C. §§ 1396o(f) and 13960-1; Defendants evaded the congressionally mandated requirements for copayments by continuing to label the approval as an experiment when it is not; the copayments do not promote the objectives of the Medicaid Act; the implementation of the copayments did not adhere to the federal protections for human experimentation subjects under 42 U.S.C. § 3515; and Defendant Rodgers' notices of enhanced copayments violated the due process requirements of the Medicaid Act and the United States Constitution. In support of this Motion, Plaintiffs submit their Memorandum in Support of Plaintiffs' Motion for Summary Judgment and Supplemental Statement of Undisputed Facts in Support of Plaintiffs' Motion for Summary Judgment, Supplemental Declaration of Ellen Sue Katz, and Second Declaration of Leighton Ku. Previously, in 2004,

Plaintiffs filed a motion for summary judgment in this case. In support of this motion, Plaintiffs rely on declaration and exhibits filed with Plaintiffs' original motion. Plaintiffs rely on Plaintiffs' Statement of Undisputed Facts in Opposition to Defendant Thompson's Motion for Summary Judgment and in Support of Plaintiffs' Motion for Summary Judgment (Docket No. 88), and the declarations of Leighton Ku (Docket No. 92), John Gallagher (Docket No. 91) and Ellen Sue Katz (Docket No. 90) filed on August 27, 2004. In addition, Plaintiffs rely on the Declarations of the Named Plaintiffs Jack Baumhardt, Cheryl Bilbrey, Manuel Esparza, Dana Franklin, Anne Garrison, Manuela Gonzalez, D.H., Dawn House, Patricia Jones, Hector Martinez, Donald McCants, and Sharon Newton-Nation and the Declarations of Class Members Virgil Alwood, Charlotte Brown, Rick Puckett, and Maria Ward filed in Support of Plaintiffs' Motion for Preliminary Injunction Motion and Motion for Class Certification in Appendices I

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(Docket No. 15) and II (Docket No. 16) filed on January 26, 2004. Plaintiffs also rely on the Certified Administrative Record (Docket No. 63) filed on May 21, 2004, by Defendant Thompson in support of Defendant Thompson's Motion for Summary Judgment. Those documents are incorporated into this Motion. WHEREFORE, Plaintiffs request that this Court: A. B. Grant Plaintiffs' Motion for Summary Judgment in its entirety; and Grant such other relief as is just.

Respectfully submitted this 10th day of March 2008. ARIZONA CENTER FOR DISABILITY LAW WILLIAM E. MORRIS INSTITUTE FOR JUSTICE NATIONAL HEALTH LAW PROGRAM By /s/Ellen Sue Katz Ellen Sue Katz William E. Morris Institute for Justice 202 East McDowell, Suite 257 Phoenix, Arizona 85004 Attorneys for Plaintiffs

ORIGINAL of the foregoing electronically filed with the Clerk of the Court this 10th day of March 2008. COPY of the foregoing emailed via Electronic Case Filing System this 10th day of March 2008 to: Logan Johnston Johnston Law Office PLC One North First Street, Suite 250 Phoenix, Arizona 85004-2359 Attorney for Defendant Rodgers COPY of the foregoing mailed this

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10th day of March 2008, to: Vesper Mei U. S. Department of Justice Federal Programs Branch Civil Division ­ Room 7316 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Attorney for Defendant Leavitt COPY of the foregoing mailed this 10th day of March 2008, to: Honorable Earl H. Carroll United States Senior District Judge United States District Court District of Arizona Sandra Day O'Connor U. S. Courthouse 401 West Washington Street, SPC 56, Suite 621 Phoenix, Arizona 85003-2156

By /s/ Gaynell Carpenter

Case 2:03-cv-02506-EHC

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