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Brewer asks Supreme Court to deny injunction, throw out AHCCCS lawsuit

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Citing the Arizona Constitution, a 2000 ballot measure and even a dictionary definition of the word “available,” attorneys for Gov. Jan Brewer have asked the Arizona Supreme Court to reject a lawsuit filed by a liberal advocacy group against an upcoming Medicaid enrollment freeze.

Attorneys for the state argued in a filing that was submitted today that the Arizona Center for Policy in the Public Interest is misinterpreting a 2000 ballot measure that drastically expanded Medicaid coverage and essentially asking the Arizona Health Care Cost Containment System to illegally spend money that the Legislature has not appropriated.

The Governor’s Office and Attorney General’s Office also asked the court to refuse the center’s request for an injunction against the enrollment freeze, which is scheduled to go into effect on July 1.

At stake is a potential $207 million deficit in the fiscal 2012 budget that would be created if the court rules against the state.

The ballot measure, Proposition 204, directed AHCCCS to fund the expanded eligibility through money from a court settlement with tobacco companies and other “available” funds, which ACLPI attorney Tim Hogan argued was a requirement that the state use whatever funds necessary to pay for the Medicaid expansion. But Brewer’s attorneys argued that the ballot measure was not a blank check for the Medicaid program.

In fact, the state’s attorneys argued, the lawsuit does not even name the correct defendants. The center sued Brewer and AHCCCS Director Tom Betlach, neither of whom have the authority to appropriate additional money for the state’s Medicaid program. The suit did not name the Legislature – the entity with the constitutional power to appropriate money – and even if it did, Brewer’s attorneys argued that the request would violate the Arizona Constitution on several fronts.

“Rather than challenge the Legislature overtly, the petitioners instead seek an order requiring the governor and director to continue coverage for the Proposition 204 expansion population without an appropriation to do so,” the state’s motion read.

The lawsuit “assumes the existence of the funds needed to pay for services,” Brewer’s attorneys wrote. Even if such funds were available – an assertion Brewer and Republican lawmakers have repeatedly disputed – the “requirement would have been unenforceable.”

Brewer’s lawyers argued that the writers of Proposition 204 did not intend to create an “open-ended black hole” for the state’s treasury. Arguments in favor of the ballot measure stated that the tobacco settlement fund would not only cover the AHCCCS expansion, but may have money left over for other programs. Voters clearly did not intend to create an open-ended, unspecified appropriation, they said.

The state’s attorneys argued that the court should deny Hogan’s petition for special action – meaning he asked the high court to hear the case without first going through the lower courts– because he is asking the Supreme Court to decide a political question. The attorneys cited Brewer’s 2009 lawsuit against the Legislature, in which the court ruled that a case over whether the Legislature should include particular items in the budget “clearly are political questions.”

“The determination of whether general fund revenues are available to be used or obtained to supplement the Tobacco Funds is solely within the discretion of the Legislature to decide,” the state’s motion read.

Both the Governor’s Office and Attorney General’s Office also filed motions asking the court to reject Hogan’s request for an injunction that would block the July 1 enrollment freeze for childless adults on AHCCCS. Attorneys for the two offices argued that Hogan did not show a high likelihood of success and did not show that the plaintiffs would suffer irreparable harm as a result of the freeze – both requirements for an injunction.

“Petitioners merely speculate as to the worse-case scenario possible,” Attorney General Tom Horne wrote in a separate request to deny the injunction, referring to the center’s arguments that the plaintiffs would be ineligible for AHCCCS if they lost coverage for some reason. “As a result, petitions request an equitable remedy against a situation that may never occur.”

Horne argued that it is the state, not the plaintiffs, which will suffer irreparable harm if there is an injunction. The state is expecting the AHCCCS cuts to save the state about $207 million, and if the Supreme Court blocks the enrollment freeze from going into effect, the money will have to come from other state agencies and departments.

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