Gov. Jan Brewer asked the state Supreme Court today to kill a bid by foes of Medicaid expansion to challenge the law.
Attorneys for the governor claim that the Arizona Court of Appeals erred in concluding that dissident lawmakers are entitled to assert that the expansion — and, specifically, the levy to fund it — is illegal because it really is a tax but did not get the constitutionally required two-thirds vote. Douglas Northup, the private attorney Brewer hired to pursue the issue, warned the justices that allowing that ruling to stand “opens a Pandora's box” of having courts intercede every time a there's a complaint by a minority of lawmakers — or even just one — who is on the losing end of a vote.
Brewer, speaking with reporters, warned that if the challengers prevail, it would endanger the health insurance now being provided to about 300,000, coverage made available because of the levy.
“In order to replenish those funds, we would have to take that money, if we chose to, out of education,” the governor said.
“That's the only place we can get that money,” she continued. “So it's a lose-lose, particularly when the federal government has stepped up to pay 90 percent of those costs.”
None of that, however, made any difference to the appellate court. They said there's nothing inherently wrong with letting the lawmakers have their day in court.
The fight surrounds Brewer's decision last year to take advantage of the Affordable Care Act and expand eligibility for the state's Medicaid program to 138 percent of the federal poverty level, about $27,000 a year for a family of three. Prior to that change, the state program, known as the Arizona Health Care Cost Containment System, covered only those below the poverty level.
Federal dollars will pay for virtually all of the newly enrolled.
But to qualify for those federal dollars, Brewer had to reverse an earlier cost-cutting where the state stopped enrolling single adults, even those below the poverty level. That part comes at a cost to the state.
Brewer's plan was to subject hospitals to what she termed an “assessment” to cover that $256 million annual cost.
The hospitals went along after AHCCCS Director Tom Betlach designed the plan to ensure that all hospital chains actually would make money: The levy would be more than offset by having fewer people show up without insurance to pay their bills. And he even exempted some hospitals with few indigent patients, like the Mayo Clinic, from the levy entirely.
Lawmakers approved the plan, but only by a simple majority. The legislators on the losing end sued, contending the plan illegally raises taxes without the two-thirds vote.
In its ruling last month, the appellate judges did not decide that issue. But they said they have the right to make their case because they make up more than a third of each chamber, enough to block the levy if it truly is a tax. Today's filing by Brewer seeks to overturn that decision.
Northup contends that the question of whether to call something a “tax” — and make it subject to a two-thirds vote — is decided by a majority of legislators. He said the only ones who have legal standing to challenge that decision are those affected by the assessment, meaning the hospitals. But they have shown no interest in challenging the financially beneficial plan.
But Judge John Gemmill, writing the appellate court ruling, rejected Northup's contention that a simple majority of the Legislature gets to decide when to require a two-thirds vote. He said that ignores the plain language of the constitution.
Even if the Supreme Court rebuffs Brewer's latest filing, that does not end the matter. All that does is give the lawmakers on the losing end of last year's vote a chance to try to prove that the assessment is, in fact, a tax and therefore subject to the two-thirds vote.