Saying thousands are at risk, an attorney asked the state Supreme Court on Friday to force lawmakers to restore full funding for the state's Medicaid program - and soon.
Tim Hogan of the Center for Law in the Public Interest said the Court of Appeals got it wrong earlier this month when it rejected his request to order lawmakers to provide enough cash so that everyone below the federal poverty level gets coverage under the Arizona Health Care Cost Containment System. In that ruling, the judges said the question of what programs do and do not get funds was a political matter beyond their reach.
But Hogan, in his legal brief to the state's high court, said that ignores the wording of the 2000 voter-approved initiative.
That measure spells out that everyone below the federal poverty level is entitled to be enrolled in AHCCCS. It says funding would come from a tobacco tax and Arizona's share of a nationwide settlement with cigarette companies, with that supplemented as necessary by other "available funds."
Despite that, lawmakers directed Gov. Jan Brewer earlier this year to find ways to cut $500 million from AHCCCS funding. And one of her choices was to refuse to enroll any more single adults, regardless of income, a move designed to save $190 million this year.
Hogan sued. And the appellate court acknowledged that the initiative is, in fact, a direction to lawmakers to provide care to everyone in poverty
But the judges concluded, however, it is totally up to lawmakers to determine whether there are, in fact, available funds. Judge Patricia Norris, writing for her colleagues, said they cannot "inquire into and second-guess the complexities of decision-making and priority-setting that go into managing the state's budget."
In his petition to the Supreme Court, Hogan argued that this is neither a political question nor an effort to have judges set spending priorities for the Legislature.
"It is about whether the voters have established a mandatory duty on the part of the state to provide health care benefits to individuals with incomes below the federal poverty level and, if so, whether the state has breached that duty," Hogan wrote.
He said one big flaw in the appellate court ruling is the judges did not differentiate between legally required funding and cash for discretionary programs.
Hogan pointed out that the Arizona Constitution has several such mandates on the Legislature, ranging from having a mine inspector to establishing a public school system.
He acknowledged that the 2000 ballot measure is only a statutory mandate. But Hogan pointed out that it is shielded from legislative tinkering by the constitutional Voter Protection Act, which prohibits lawmakers from repealing or altering any voter-approved measure without taking it back to the ballot.
Hogan also argued that the appellate court looked only at half of the wording of the ballot measure: the part about providing other available funds. He noted, though, the measure also mandates the state provide services to everyone below the federal poverty level and bars lawmakers from capping enrollment, provisions he said the lower court ignored when refusing to order lawmakers to comply with the initiative.
Brewer and lawmakers have so far successfully fought off the challenge, contending that they are legally entitled to determine if there are available funds without having those decisions reviewed by the court.
Hogan, in seeking expedited high court review, said time is critical. He said in the five months since AHCCCS stopped enrolling adults, the number of people in that program has dropped by 50,000; estimates are that figure will triple by the end of the budget year.
To make his point, Hogan has obtained declarations from some who have been turned away.
One, from Belen Cartagena, says she was notified her AHCCCS coverage would end this past July because her youngest daughter turned 18 that month.
Hogan says she has thyroid cancer, diabetes, gastritis and diverticulitis.
"Without the medical benefits that had been provided by AHCCCS, her ability to secure treatment for her thyroid cancer is uncertain," he said. Hogan said without coverage she cannot pay for her cancer treatments, any medications and even visits to a doctor.
"If she gets any medical treatment, it will only be in a hospital emergency room," he wrote.