Appeals court hears arguments in dispute over Arizona Medicaid cuts - East Valley Tribune: Politics

Appeals court hears arguments in dispute over Arizona Medicaid cuts

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Posted: Wednesday, October 19, 2011 12:44 pm | Updated: 10:30 pm, Sat Oct 22, 2011.

A 2000 voter-approved mandate to provide free health care to everyone in poverty is no more than a legally meaningless request to the Legislature, attorneys for the state argued Wednesday.

Assistant Attorney General Kevin Ray acknowledged for the Court of Appeals that the initiative does direct expansion of the Arizona Health Care Cost Containment System to cover everyone below the federal poverty level. That is now about $18,530 a year for a family of three.

And he agreed that the measure does preclude lawmakers from imposing caps on the number of people who can enroll.

But Ray said that did not preclude lawmakers from concluding earlier this year they did not have enough money to do all that.

“I think the voters thought that they were telling the Legislature, ‘We hope you fund it,’ ” he told the judges. “But that hope and that understanding that the Legislature should fund that is simply unenforceable.”

And Joe Kanefield, who represents AHCCCS and the administration of Gov. Jan Brewer, argued that the language in prohibiting a cap on enrollment “is qualified ... by funding availability.”

But Tim Hogan, who represents individuals who can no longer get care under the new standards, said the plain language of the initiative says otherwise.

“The language is unequivocal and cannot be misunderstood,” he said. “It establishes eligibility at 100 percent (of the federal poverty level), prohibits caps on enrollment and requires that it be funded, no ifs, ands or buts about it.”

Hanging in the balance is whether about 100,000 single adults living in poverty who otherwise qualify for AHCCCS, the state’s Medicaid program, will get care. The appellate judges gave no indication when they will rule.

In a bid to cut expenses, state lawmakers directed the governor to find ways to save about $500 million a year in health care costs. AHCCCS came up with a package of proposals, ranging from requiring some people to make co-pays to refusing to enroll any more single people, though those already in the program could stay.

Federal Medicaid officials rejected several of the changes but allowed Arizona to alter the program for single adults. AHCCCS officials estimated they will turn away about 100,000 people this budget year.

Hogan sued, citing a provision in the Arizona Constitution that bars lawmakers from ignoring or altering anything approved at the ballot without first seeking voter approval.

Maricopa County Superior Court Judge Mark Brain ruled the Voter Protection Act cannot force legislators to do anything — including appropriate funds. That sent Hogan to the appellate court.

Hogan told the judges they have to acknowledge the intent of the voters. And he said the language of the 2000 measure was carefully crafted to give lawmakers no wiggle room.

He pointed out that voters approved a similar mandate in 1996 directing lawmakers to use money from the Arizona Lottery to expand coverage. But he said legislators essentially ignored that directive by crafting a plan that included caps on enrollment, something he knew that the federal government, which provides most of the funds for Medicaid programs, would never accept.

The Voter Protection Act was passed two years later. And two years after that, backers of expanded health care returned to the ballot once more with a very specific requirement to provide coverage and a ban on caps.

But Kanefield pointed out the initiative spells out funding will come from tobacco taxes, the state’s share of a nationwide settlement with cigarette manufacturers and “other available sources.” He argued voters put that last part in to give lawmakers discretion not to fully fund the program if they have other, higher priorities.

Hogan said that makes no sense — and lawmakers know that.

He noted they put a measure on the 2004 ballot to require that future voter-approved programs have a specific dedicated funding source. And Hogan pointed out that proponents of that constitutional change specifically cited the mandates of the 2000 health care initiative and the fact that it required the state to provide other funds as a prime reason for making the change.

That 2004 measure, Hogan said, was approved, but it applies only to anything enacted subsequent to that.

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