Lawsuit challenges AHCCCS cuts as unconstitutional

PHOENIX -- Attorneys for a legal watchdog group are going to the Arizona Supreme Court on behalf of about 150,000 people on the verge of losing their health care.

Tim Hogan of the Arizona Center for Law in the Public Interest contends the elimination of health insurance under the Arizona Health Care Cost Containment System, which covers the state's poor, violates the state Constitution. Hogan said voters agreed to cover the group being eliminated when Proposition 204 was approved in 2000.

He said Prop 204 provided coverage for individuals up to 100 percent of the federal poverty level and the Legislature cannot change voter-approved initiations. Prop 204 expanded AHCCCS eligibility, using millions of dollars in funds from settlement of a tobacco lawsuit.

In the past legislative session, lawmakers eliminated some AHCCCS coverage in a budget bill recently signed by Gov. Jan Brewer. The cut is based on enrollment freezes to prohibit new signups by people in several eligibility categories that are not federally mandaged.

The cut is projected to save the state about $500 million in the next fiscal year.

Arizona State University law professor Paul Bender believes Hogan has "a very strong case."

Bender said there is a reason Arizona has a voter protection act and the AHCCCS issue is a prime example.

"The thing to do is to do what the Constitution says which is -- when the voters pass something and the Legislature, the governor or anybody else feels it's unwise -- the way you do it is to go back to the voters and ask them to change it.

"You go back to the voters and you say, `Hey, you made a mistake and you say there are certain things that have to come before AHCCCS -- police, prisons."

Bender said lawmakers "can't not follow 204 because the Constitution says they have to."

Republican Representative John Kavanagh claims, however, that Prop 204 gave lawmakers authority to make cuts under certain conditions.

"We think that the law is on our side, that the proposition wording clearly stated that we only are required to provide these funds if available," said Kavanagh.

He said funding is not available right now, and "Arizona can't afford to be overly generous and give benefits beyond what almost every other state gives in this time of fiscal crisis."

Sen. Kyrsten Sinema, a Democrat, disagreed.

"This lawsuit has, I think, a very good chance of succeeding," Sinema said. "It seems quite clear that the governor's and the legislature's action to cut AHCCCS for eligible Arizonans violates the state Constitution."

She added, "This represents the first time that the Legislature and the governor have flagrantly ignored the will of the voters by violating a voter-approved initiative, so this is a landmark case."

The special action Hogan planned to file Monday will ask the Supreme Court to block the changes in AHCCCS eligibility. Should the court rule the cuts violated the Constitution, lawmakers would have to come up with another idea to balance the budget.