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Updated May 14, 2014 - 4:29 pm

Gov. Jan Brewer appeals ruling in Medicaid expansion suit

PHOENIX — Arizona Gov. Jan Brewer has asked the Arizona Supreme Court to
overturn a ruling that revived a lawsuit challenging her expansion of the
state’s Medicaid insurance plan for the poor.

Brewer’s lawyers filed the appeal Wednesday, arguing that the Arizona Court of
Appeals ruling would open the door for lawmakers on the losing side of
legislative fights over assessments or fees to rush to the courthouse.

“Permitting the appellate decision to stand confuses and misapplies existing
Arizona Supreme Court case law and would set a disturbing precedent in Arizona _
one that would result in our courts acting as referees in the legislative
process, and also opening a Pandora’s box for future baseless, politically
charged lawsuits,” Brewer said in a statement.

She also said that if the courts block her plan, thousands of Arizonans would
lose access to health care, hospitals will be financially damaged and the state
budget will be negatively affected.

The appeals court’s April 22 ruling said lawmakers have the right to sue over a
hospital assessment that funds the expansion. Republicans in the House and
Senate sued last year, arguing that the assessment it is essentially a tax that
required a two-thirds majority vote to pass. Only a bare majority passed the

A Maricopa County judge in February dismissed the case, saying lawmakers did
not have the right to sue. The judge said it is the legislature itself that
decided if a supermajority vote is needed.

But the appeals court rejected that decision and sent the case back to Judge
Katherine Cooper for more action. In an 11-page ruling, the unanimous
three-judge panel said the 36 Republican lawmakers who sued could have defeated
House Bill 2010 if the supermajority vote was required, so it was proper for
Cooper to decide if the Arizona Constitution required that vote.

Brewer wants that decision overturned and Cooper’s initial ruling reinstated.

The appeals court ruling was a major loss for Brewer, who pushed the Medicaid
bill through the Legislature by cobbling together a coalition of minority
Democrats and 14 Republicans.

Christina Sandefur, a Goldwater Institute attorney who represented the
Republican lawmakers, said the appeals court ruling allows for a court review of
the legality of the assessment and whether a two-thirds vote was required.

“This is not an argument about policy or politics. It is a fight to preserve
principles,” Sandefur said in a statement. “If lawmakers want to transform
Arizona’s Medicaid program, they must do it in a manner that complies with the
Constitution and that does not close the courtroom doors to those who seek to
defend the rule of law.”

Brewer is one of only a handful of Republican governors who embraced Medicaid
expansion, a key part of President Barack Obama’s health care law. In all, 25
states plus Washington, D.C., are moving ahead with the expansion, while 19
states have turned it down. An additional six states are weighing options.

The hospital assessment is expected to collect $256 million in the state’s 2015
budget year to pay the state’s share of expanding Medicaid to an estimated
300,000 more people. Those to be covered include people earning between 100
percent and 138 percent of the federal poverty level _ $23,850 and $31,721,
respectively, for a family of four this year _ and childless adults making less
than that who lost optional coverage provided by Arizona during a state budget

The federal government pays for most of the expansion costs, but restoring
optional coverage that Arizona voters have twice approved required the

Hospitals strongly backed it because they expect to see a much bigger reduction
in the cost of treating uninsured patients. Cooper had noted that hospitals did
not sue and are the only potentially injured party with a right to oppose the

The underlying argument is whether the assessment is really a tax. Brewer’s
staff has argued that the Republican-controlled Legislature has repeatedly
increased fees and assessments in recent years without imposing the two-thirds
vote requirement.

The governor herself repeated that argument in an interview following a
Wednesday afternoon event.

“I believe that we have seen it happen numerous times previously when they’ve
given directors the authority to assess an assessment,” Brewer said of the


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