PHOENIX - Foes of Gov. Jan Brewer's Medicaid expansion were already moving to undo at the ballot box and in court what they could not block at the Legislature - even before Brewer has a chance to sign it into law.
Former state Sen. Frank Antenori said he is meeting with attorneys today to firm up language for a referendum on key portions of the law. He needs at least 86,405 signatures before Sept. 12 to stall enactment of the Medicaid expansion until it goes to the ballot next year.
Antenori is not trying to block what some consider a $240 million tax on hospitals designed to pay for the program. He conceded that provision is likely exempt from voter review and veto. But that part of the package is not going to go unquestioned.
Christina Sandefur, an attorney with the Goldwater Institute, is reviewing whether that levy is a tax and not an "assessment" as Brewer has contended.
If it were found to be a tax, the levy would be illegal because it was not approved by a two-thirds margin as required by the Arizona Constitution. Sandefur said if her organization deems that to be the case, it will likely sue to prohibit the state from collecting it.
If they are successful, it would effectively kill Medicaid expansion because there would be no money to leverage the $1.6 billion a year in federal aid.
On Thursday, the Senate approved the expansion plan 18-11. Five Republicans broke ranks with the other 12 members of the GOP majority, joining with the 13 Democrats to provide the margin of support.
Sen. Al Melvin, R-Tucson, on the losing end of that vote, said he is counting on the referendum to overturn the legislative action.
"I appeal to my fellow Arizona citizens to sign those petition papers," Melvin said.
With the 33-27 House approval earlier Thursday, that sends the measure to Brewer, along with the rest of the $8.8 billion budget for the new fiscal year that begins July 1. Medicaid expansion, however, would not occur until Jan. 1, when the necessary provisions of the federal Affordable Care Act take effect.
Brewer said she was pleased by the approval, even if it did come over the very vocal objection of a majority of lawmakers from her own Republican Party.
Rep. Eddie Farnsworth, R-Gilbert, referred to her as the "puppet master," pulling the strings on the bipartisan coalition of mostly Democrats. And Rep. John Kavanagh, R-Fountain Hills, said Brewer and her allies used "Chicago-style politics" to get their way.
"In the heat of the moment, people say a lot of things," the governor said. "Certainly, I can understand that," saying she will just try to "let it go."
Cathi Herrod, president of the Center for Arizona Policy, also lashed out at Brewer. Herrod, normally an ally, heavily lobbied legislators to add abortion-restriction language to the plan, which would have blown up the coalition and taken Brewer's Medicaid down.
Brewer was so miffed that she publicly tweeted, "It's a sad day when a respected pro-life advocate uses this sacred issue to bludgeon supporters of life-SAVING legislation."
Herrod refused to discuss the issue.
Brewer's next hurdle could be the referendum. But she expressed doubts the issue will get enough signatures to make the ballot, and even if it does, she believes voters will uphold expansion.
Brewer acknowledged, though, a successful petition drive also means Medicaid expansion could not take place until after the November 2014 election, 11 months after its anticipated start date. "And that would be a shame."
Gubernatorial press aide Matthew Benson said it won't get that far, contending voters have no right to second-guess this measure. The Arizona Constitution says that voters, unhappy with something the Legislature has done, can put measures on "hold" until they get a chance to ratify or reject them at the next general election.
One exception, though, bars referral of measures necessary "for the support and maintenance of the departments of state government and state institutions." Benson contends the Medicaid expansion, part of the budget package, fits within that exemption.
Paul Bender, former dean of the Arizona State University College of Law, however, said the referendum does not seek to block funding for the ongoing operation of the Arizona Health Care Cost Containment System, the state's Medicaid program.
Instead, it would prevent the state from expanding the program. And Bender said voters have an inherent right to review both new and expanded programs.
The question of whether the "assessment" on hospitals is a "tax," subject the constitutional two-thirds vote rule, will likely be decided in a court.
That rule includes an exception for "fees and assessments that are authorized by statute … and are set by a state officer or agency." And Brewer crafted the Medicaid expansion to give the AHCCCS director discretion on how much to assess each hospital.
But foes of expansion note this is not a fee being levied by an agency to regulate the entity, but rather a levy on all hospitals, whether they accept Medicaid patients or not, to pay for the program, which Bender said may make it more of a tax than an assessment or fee.
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