Lawsuit challenges Brewer's planned cut of Medicaid access - Ahwatukee Foothills News: Valley And State

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Lawsuit challenges Brewer's planned cut of Medicaid access

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Posted: Monday, May 23, 2011 4:41 pm

An attorney for a public interest law firm wants the Arizona Supreme Court to block Gov. Jan Brewer from eliminating health care for more than 100,000 Arizonans.

A lawsuit filed Monday on behalf of some who would be affected contends the state is violating the requirements in a 2000 voter-approved measure mandating free care for anyone below the federal poverty level. Attorney Tim Hogan of the Center for Law in the Public Interest said that makes Brewer's plan to stop enrolling childless adults and some others in the Arizona Health Care Cost Containment System illegal.

The high court late Monday agreed to consider the argument -- but not until September. That is a setback for challengers because the changes Brewer wants to make are supposed to take effect July 1.

Hogan said he is studying his options. One would be to ask a lower court judge to issue an injunction blocking the state from turning away otherwise eligible applicants while the case makes its way through the legal system.

He also said a quick ruling is needed because the state's $8.3 billion budget is built on being able to save $500 million this coming fiscal year based on scaling back AHCCCS, the state's Medicaid program. More than $200 million of that is directly linked to the changes that Hogan contends are illegal.

The lawsuit will get a fight from the governor. She contends that the wording of the 2000 ballot measure gives her and lawmakers sufficient legal room to make the cuts.

Hogan, however, said it is Brewer who is misreading the law.

Prior to 2000 the state health care program was pretty much limited to those who the federal government required to be covered. The initiative, known as Proposition 204, expanded the program to anyone below the federal poverty level, a figure that currently computes out to about $18,500 a year for a family of three.

The measure spelled out that the expansion was to be paid for by tobacco taxes, the state’s share of the settlement of a nationwide lawsuit with tobacco companies and “supplemented as necessary by any other available sources, including legislative appropriations and federal monies.’’

Hogan wants the high court to read the language of the initiative as a requirement for the state to provide other funds when it is necessary to cover expenses.

“This population of poor people has a first claim on the state budget,’’ he said.

But Gov. Jan Brewer contends that’s not what the law means. Gubernatorial press aide Matthew Benson said a plain reading of the language makes providing extra cash contingent on having money “available.’’

“Given that we have cut in the state of Arizona now well over $1 billion in the last year or two from the state general fund, it seems apparent that those ‘other available sources’ simply aren’t there,’’ he said.

The cuts at issue here largely involve childless adults whose income is below the federal poverty level. The federal government, which provides about two-thirds of the funds for AHCCCS, does not require states to include them in their program.

Beginning July 1, the state would stop enrolling anyone in this category, though those already in AHCCCS could continue to get care. The same thing would happen to parents whose income is at least 75 percent of the federal poverty level, though their children would remain eligible.

Hogan said the savings to the state of this particular change would save the state about $200 million this coming fiscal year. At the same time, he said, revenue are projected at $8.3 billion.

“It’s obvious that they could have funded this population if they wanted to,’’ he said.

Benson, however, said that makes no sense.

“If you take this argument to its logical conclusion, we’d have to cut public safety, decimate education, de-fund virtually all other state services in order to meet the funding obligations’’ of the ballot measure.

“Is that what the voters intended?’’ he continued. “I don’t think so.’’

Hogan said there is a legal way for the state to shrink the program: Take the question back to voters. In fact, Hogan noted that Brewer, in her State of the State speech last year, told lawmakers that “in these times, voters must be asked to reconsider the Prop 204 expansion.’’

It was only later, he said, that Brewer adopted the argument that she does not need voter OK to make the changes based on her interpretation of the “other available sources’’ language. He said that is intellectually dishonest.

“Of course, if they spend all of the ‘other available sources’ like general fund monies, then the funds are no longer ‘available,’ ’’ he said in arguments to the court. “This is obviously a self-realizing assertion contrived years after the fact to avoid the state’s legal obligation to comply with the mandate.’’

If the justices cannot determine what the plain words of the initiative mean, then they have to try to ascertain what voters intended in approving the measure.

Benson said that works to the governor’s benefit, saying the proposal was sold to voters as “something for nothing,’’ with the cost of expanding the program being funded by tobacco taxes and settlement cash.

Hogan said that’s not the way the measure was explained to voters.

He also noted that former Attorney General Grant Woods, in a formal argument against Proposition 204, said once the tobacco money runs out “the Arizona taxpayers will be left holding the bill.’’ And Hogan said foes of the initiative used that argument in an unsuccessful effort to defeat it.

“Faced with a clear choice, Arizona voters chose to provide health care coverage to persons living below the federal poverty level even if that meant using general fund revenues to do it,’’ he said. He said the outcome was clear, with 63 percent of those voting in support of it.

Aside from four individuals who would lose their AHCCCS coverage, plaintiffs in the lawsuit include Tucson pediatrician Eve Shapiro, who helped champion the 2000 ballot measure, and the El Rio Community Health Center in Tucson which serves many AHCCCS patients.

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