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Judge refuses to block AHCCCS freeze, but case isn’t over

Attorneys for a group trying to stop an upcoming partial enrollment freeze in the state’s Medicaid program said a judge’s refusal to block the freeze is only a temporary setback.

Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, said he will file another request for a temporary restraining order against the freeze as soon as it goes into effect. The freeze on new enrollment for childless adults in the Arizona Health Care Cost Containment System was scheduled to go into effect tomorrow, but won’t be implemented until the state receives approval from the U.S. Centers for Medicare and Medicaid Services.

Maricopa County Superior Court Judge Mark Brain refused Hogan’s request for a temporary restraining order today. He ruled that the four AHCCCS patients listed as plaintiffs don’t have standing to sue because they won’t actually lose coverage when the freeze goes into effect, meaning none will suffer the irreparable harm they had to show in order to get the restraining order.

Hogan said he has already identified several possible plaintiffs and plans to re-file his motion once the freeze begins.

“We’ll be able to identify new plaintiffs and take quick action once the freeze goes into effect,” he said after the hearing. “Once you have standing resolved, the irreparable harm is clear.”

Brain questioned attorneys on both sides about some of the merits of the case, such as whether Proposition 204, the 2000 ballot measure that expanded AHCCCS eligibility to childless adults, required the Legislature to appropriate additional funds for the Medicaid program.

The judge did not address those issues in his ruling. But Brain, who hadn’t yet had a chance to read a motion the state filed less than two hours before the hearing, said there are “serious questions” about the case that could be explored if Hogan’s plaintiffs had standing to sue.

“If you had one of those plaintiffs … that would be an interesting case,” Brian said.

Assistant Attorney General Kevin Ray said he was confident the state will win on the merits of the case.

“The merits were contained in our briefing papers. It’s a shame he didn’t get the chance to read them before the hearing. We’re very confident we’ll prevail,” he said.

Gov. Jan Brewer said the ruling was an important step in her Medicaid reform plan, which is expected to cut more about 100,000 people from the AHCCCS rolls over the next year.

“I applaud the Superior Court for not issuing a temporary restraining order that would have interfered with this phase of Arizona’s Medicaid reform,” Brewer said in a written statement. “That said, I do not revel in this court decision. I recognize that our move to freeze Medicaid enrollment of adults without children will have real-world impacts on real people. But I remain convinced this cost-cutting move is fiscally necessary and will allow the state to maintain its core services.”

The state expects to save about $207 million from the AHCCCS cuts. But those cuts won’t begin until the feds give Arizona formal permission to make the cuts. Brewer spokesman Matthew Benson said CMS has not given any indication as to when that will happen.

“It may come in a week. It may come in a few days,” he said.

During the hearing, attorneys for the state informed Brain and Hogan that CMS would not give formal approval by the end of the day.

Brain scheduled a hearing in the case for Aug. 3, though another will be called before then if Hogan files a new request for a temporary restraining order.

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