Maricopa County judge refuses to block Arizona Medicaid freeze - East Valley Tribune: Arizona

Maricopa County judge refuses to block Arizona Medicaid freeze

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Posted: Thursday, June 30, 2011 4:00 pm | Updated: 3:02 pm, Fri Jul 1, 2011.

A judge refused late Thursday to stop the state from refusing to provide health care to some people below the federal poverty level.

Maricopa County Superior Court Judge Mark Brain noted that all of the clients represented by several public interest law firms already receive care through the Arizona Health Care Cost Containment System. And he noted that the new rules, set to take effect Friday, will not affect them. Instead, the rule says that childless adults and some others who are not now enrolled will not be able to sign up.

But there will be no immediate effect.

Gubernatorial press aide Matthew Benson noted that the state has not yet received the required federal approval of the state’s plan to change its enrollment standards. Benson said, though, that approval could come any day.

The ruling is a victory for Gov. Jan Brewer and the Republican-controlled Legislature, who decided to scale back the program in an effort to save money. But Brewer, in a prepared statement, said she “does not revel in this decision’’ and “recognized its real-world impact on thousands of Arizonans.’’

Attorney Tim Hogan estimated that, once implemented, 17,000 people who were eligible for care under the old standard will be turned away in the first month alone. Estimates put the effect at between 135,000 and 150,000 in the first year.

The battle is over the wording of a 2000 ballot measure that says everyone below the federal poverty level — currently about $18,500 a year for a family of three — is entitled to free health care.

Hogan told Brain that the initiative specifically requires lawmakers to provide the funds when there is not enough coming from tobacco taxes and the state’s share of a nationwide settlement with cigarette manufacturers. The decision by lawmakers to slash the AHCCCS budget, he argued, will mean “irreparable harm’’ to those turned away.

Brain said the legal problem with that argument, especially when seeking a restraining order against the state, is that none of the people he represents are in that category. Hogan conceded that point but said he essentially is in a no-win situation.

“They don’t exist yet,’’ Hogan told the judge about representing people who are not now enrolled in AHCCCS but might need the care in the future. But he said that does not make the harm these yet-to-be-identified people who won’t get care any the less real.

“The notion that you can’t prevent irreparable harm until it occurs makes no sense,’’ he said.

In more than an hour of legal arguments, Assistant Attorney General Kevin Ray told the judge that Hogan’s arguments about the requirement of the state to fund care for everyone below the federal poverty level are flawed.

He noted the ballot measure said the tobacco funds shall be supplemented by other “available sources.’’

“The Legislature has decided there are no available funds,’’ he told Brain, saying the decision cannot be legally challenged.

Hogan disagreed. But he said there are other provisions in the voter-approved initiative that back his claim, including a prohibition against the state capping the number of people enrolled.

“That’s what they’re trying to do,’’ he said.

Technically speaking, Brain was not being asked to decide the legality of the decision by lawmakers to cut AHCCCS funding and direct the governor and the agency to find ways to live within the lower limits, at least not now. Instead, the only question is whether to prohibit the agency from making the changes in eligibility, some beginning Friday, while the issue is litigated.

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