by Michael Bryan
HHS Secretary Sebelius has indicated that Gov. Brewer's plan to kick everyone who is not federally mandated to be eligible (about 250K people) off Arizona's Medicaid program (AHCCCS) will not violate federal law. Federal eligibility is governed by a number of factors , not income alone, which means that even some people under the federal poverty level are not required to be covered in order to maintain the state's maintenance of effort requirements . Sebelius does indicate that an additional 30K parents of qualified children cannot be removed from AHCCCS without violating federal guidelines. Also, nobody can be removed until the current contract expires on Sept. 30, likely preventing much of the short-term savings the GOP expects from the purge.
But remaining qualified for $7 billion in federal Medicaid funds is only the first roadblock to the GOP's attempted purge of AHCCCS. The insurmountable problem for the GOP is that Arizona's voters mandated in 2000 that everyone under the federal poverty level be covered by AHCCCS through a voter initiative (Prop 200). Because of 1998's Prop105 amendment to the state constitution, the legislature is unable repeal or amend voter initiatives, or divert funds appropriated by voter initiative, unless it furthers the purpose of the initiative and is passed by 3/4ths of both chambers. That ain't gonna happen: the Dems still hang on to enough seats to prevent that level of supermajority vote.
Brewer argues (quite speciously) that Prop 200 allows people under the federal poverty level to be purged from AHCCCS if there isn't available money in the general fund to cover them. Of course, funds being "available" is really a political decision, not a fiscal fact. Budgets are about spending priorities, not just revenues taken in.
Prop 200 includes the following language (emphases added):
"To ensure that sufficent monies are available to provide benefits to all persons who are eligible pursuant to this section, funding shall come from the Arizona tobacco litigation settlement fund established by section 36-2901.02 and shall be supplemented, as necessary, by any other available sources including legislative appropriations and federal monies."
Brewer argues that the language "other available sources" coupled with the state's deficit provides her with an exception; i.e. no money in the general fund is "available" therefore she can ignore the voter's mandate. Brewer asks disingenuously, "If the money's not there, how are you going to fund it?" Well the answer should be obvious: she and the legislature must reorient their budgeting priorities and do the job the voters directed them to do.
Prop 200 is quite clear. The voters wished to "ensure that sufficient monies are available to provide benefits to all persons who are eligible", and provided that the tobacco settlement would go toward that end. They also mandated that those funds "shall be supplemented, as necessary, by any other available sources", including "legislative appropriations". They did not provide that appropriations would supplement those funds only if there was spare cash laying about. The language is "available sources", not "available funds". The word "shall" in statutory interpretation is very specifically mandatory: what "shall" be done, must be done. The legislature and the Governor will have to find the money to fully fund everyone eligible for AHCCCS. No exceptions. They can get the money from "any other available sources", but get it they must.
In short, Brewer's argument is full of shit. So pitifully shit-full, in fact, that any reporter who conveys it to readers without noting how totally erroneous it is, is actively helping Brewer mislead the public.
The legislature was able to summon the political will to find a few hundred million over the next 6 years for corporate tax breaks in a special session, even though that "money's not there". Now they have to summon the will to find the money to obey the voters mandate to fund AHCCCS for people in poverty.
Luckily, we don't have to rely entirely on our Governor's and legislators' better angels to do right by Arizona's poorest (that would indeed be folly); Prop 200 anticipated that the powers that be might balk at properly funding AHCCCS and provides relief through the courts:
"An eligible person or a prospective eligible person may bring an action in the superior court against the director of the health care cost containment system adminstration and this state to enforce this section and section 36-2901.02. The court has jurisdiction to enforce this section and section 36-2901.02 and any rule adopted pursuant to these sections and may apply appropriate civil sanctions and equitable remedies."
That means that anyone whom Brewer and her GOP legislature try to kick off AHCCCS, or try to deny coverage though they meet the eligibility requirements, has the right to sue the state, and the court can force the legislature to find the money. That will be a truly interesting fight to watch.
Given that the Arizona's GOP seems to think that it can ignore federal laws it doesn't like, control federal agents in Arizona, and rewrite the Federal Constitution (at least the 14th Amendment) to suit their own prejudices, it may also think that it can get away with ignoring our own courts. I guess we'll see about that soon enough, because that is the only way that Brewer and Arizona's GOP class warriors are going to succeed at screwing the poor out of their AHCCCS coverage.