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From Health Law Daily, May 15, 2014

Arizona governor files petition with state’s highest court to protect expansion efforts

By Patricia K. Ruiz, JD

Arizona Governor Jan Brewer and Arizona Health Care Cost Containment System (AHCCCS) Director Tom Betlach (the state) filed a petition in the Arizona Supreme Court asking the court to prevent a challenge of the state’s Medicaid expansion plan under the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) from moving forward. According to a statement released by Brewer, “[S]hould the implementation of the Medicaid Restoration Plan be prevented, it would throw approximately 150,000 Arizonans (and climbing) off of health insurance, thereby preventing them from receiving critical, cost-effective healthcare through our model AHCCCS program.”

Background. The Arizona legislature passed H.B. 2010, which added Arizona Revised Statute (A.R.S.) sec. 36-2901.08, authorizing AHCCCS to establish a limited hospital assessment that was to “be used for the benefit of hospitals for the purpose of providing health care for persons eligible for coverage funded by the hospital assessment.” According to the petition, lawmakers attempted to add Proposition 108 language to the bill, but the issue was “raised, debated and rejected at least three times.” Legislators’ challenge is based on the exclusion of Proposition 108 language from the bill. Brewer and Betlach are asking the Arizona Supreme Court to review an April decision by the appellate court overturning the granting of a motion to dismiss in favor of the state. The trial court originally held that the plaintiffs, state lawmakers who voted against the governor’s plan to expand the state’s Medicaid program lacked standing to sue.

Proposition 108. The language of the proposition requires “the affirmative vote of two-thirds of the members of each house of the legislature” for acts that create a net increase in state revenue. The proposition does not apply to “[f]ees and assessments that are authorized by statute, but are not prescribed by formula, amount or limit, and are set by a state officer and agency.” Even if the Proposition 108 language should have been included in the statute, the petition states, “then just as in any other case a plaintiff with a real and particularized injury can sue to challenge the constitutionality of the legislation.

Legislators’ standing to challenge a bill in court. Legislators who voted against H.B. 2010, constituents of the legislators who voted against the bill, and a citizen purporting to file a private attorney general action alleged a violation of Proposition 108 and a violation of the separation of powers due to improper delegation of legislative authority. The trial court previously held that the legislators and the private citizens did not have standing to bring either claim. Following a Petition for Special Action, the court of appeals affirmed the dismissal of the private citizens’ claims but reversed trial court’s decision as to the legislators’ standing.

“Legislators who were unable to win a legislative vote in their own chambers seek to use the courts to reverse that result,” the petition states. “Ignoring well-established law of legislator standing and that only those who actually pay a fee, assessment or tax may question its constitutionality, the Opinion allows individual legislators to move a political and procedural fight into the courts by a drastic and unprecedented expansion of the standing doctrine.”

Purported effect on Arizonans. Brewer stressed in her statement that the bill, called the Medicaid Restoration Plan, opens up essential care for citizens of Arizona. She also noted that it would “defy the will” of voters who supported Medicaid expansion and “decimate” the state’s budge, “undermining [the] ability to fund critical areas including child safety, education, public safety and services to Arizona’s most vulnerable populations.”

MainStory: TopStory NewsStory HealthCareReformNews StateLegislationNews HealthReformNews MedicaidNews

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