Lawsuit: AHCCCS chief illegally using position - East Valley Tribune: East Valley Local News

Lawsuit: AHCCCS chief illegally using position

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Posted: Friday, October 3, 2008 7:38 pm | Updated: 11:16 pm, Fri Oct 7, 2011.

Backers of a measure to bar universal health care in Arizona are asking a judge to block the director of the state's indigent care system from campaigning against it.

Legal papers filed late Friday in Maricopa County Superior Court claim that Anthony Rodgers, director of the Arizona Health Care Cost Containment System, is illegally using his position and state resources to urge the defeat of Proposition 101. That measure, if enacted, would constitutionally bar any law which restricts an individual's freedom of choice in medical care.

Eric Novack, a Phoenix doctor and one of the organizers of the initiative, said it is aimed at precluding any sort of government-mandated health care system where people are forced to enroll. He said it has nothing to do with the type of program run by AHCCCS where eligible individuals are provided free care.

But Rodgers said the language in the measure is not that clear.

That resulted in the three-page memo at the heart of the lawsuit that Rodgers sent last month to editorial page writers and others saying that Prop. 101 could have "unintended consequences" and change how AHCCCS has to operate - and do it in a way to make the taxpayer-provided care for those eligible more expensive. Novack says that's not the case, citing legal opinions he has obtained from others.

Regardless of how Prop. 101 is interpreted, that still leaves the question of whether what Rodgers is doing violates laws that forbid the use of public resources to campaign for or against ballot measures. Technically, nothing in his memo tells people how to vote.

But courts have ruled that an item does not need to use the words "vote for" or "vote against" to constitute advocacy. And attorney Gary Lassen, who filed the lawsuit, said the memo clearly expresses a viewpoint.

"This crosses the line," he said, because it contains "misleading information" specifically designed to lead to the defeat of the measure.

"It's a little bit troubling when the government's out there fighting us," Lassen said.

But Jeanine L'Ecuyer, press aide to Gov. Janet Napolitano - who is Rodgers' boss - said that's not the case.

"We just don't agree with their legal reasoning on this one," said L'Ecuyer. She said the real aim appears to be more in the realm of publicity and less in a bona fide legal issue.

"Clearly, I think they're trying to get a headline in prior to the election," she said. "That's fine. It's all part of the game."

Lassen acknowledged there is probably nothing a judge can do now about the memo which already has been widely circulated. But the attorney said he still wants to ask the court to bar Rodgers or anyone else from the agency from "any further such action."

L'Ecuyer has said that Napolitano does support universal health care of some sort, precisely the kind of program that Prop. 101 would outlaw.

Rodgers is basing his arguments on language in the initiative which would add a provision to the constitution saying "no law shall be passed that restricts a person's freedom of choice of private health-care systems or private plans of any type." He contends that while AHCCCS is not a private plan, it does contract with private companies to provide care for those whose family income is below the federal poverty line, currently $21,200 for a family of four.

The key is that AHCCCS essentially operates like a health maintenance organization, paying a set fee to providers for each person enrolled. AHCCCS recipients can get free care only from the doctors and hospitals the state has approved.

Rodgers said approval of Prop. 101 could force AHCCCS to convert to a fee-for-service model, where patients choose their own doctors and the state has to pay the bills. He said that could increase costs to the state by $1 billion a year.

Jeff Singer, the initiative's other key organizer, said nothing in the measure would affect AHCCCS. Singer, also a doctor, said he believes the real aim of the memo is to keep the door open for universal health care where individuals can get care only through a government-run program.

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