Free Reply in Support of Motion - District Court of Arizona - Arizona

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1 Logan T. Johnston, AZ Bar #009484 h E
2 JOHNSTON LAW OFFICES, P.L.C. 1
One N. lst Street, Suite 250 l
3 Phoenix, AZ 85004 i
602 452-0615
4* Attorney for Defendant Rodgers
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IN THE UNITED STATES DISTRICT COURT
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3 FOR THE DISTRICT OF ARIZONA l
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DQ C5, SI—LaRON NEWT ON-NATIONS, et al., )
g 5 8 ) No. CV-03-2506-PHX-EHC 1
{Q 9 Plaintiffs, )
35*-5 1 1
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sy {Q ) DEFENDANT R()DGERS’ 1
g Q U ANTHONY RODGERS, Director ofthe ) JOINDER IN DEFENDANT
,3 12 Arizona Health Care Cost Containment ) LEAVIT'I"S REPLY IN SUPPORT E
$ § System, and MICHAEL O. LEAVITT, ) OF CROSS-MOTION FOR l
E § 13 Secretary of the United States ) SUl\/IMARY JUDGMENT E
gf E Department of Health and Human )
§ ,§_ I4 Services, in their official capacities, )
ri -3% > A 1
é E 15 Defendants. ) l
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§ 17 Defendant Rodgers joins in defendant Leavitt’s Reply in Support of Cross—Motion
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§ § 18 for Summary J udgrnent and offers the following additional comments.
19 The plaintiffs contend that the state defendant lacked legal authority under state law
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20 to impose the very copayments the legislature created. Their argument is based upon a §
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misreading of A.R.S.§36-2903.01 .D.4, which provides:
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Notwithstanding any other law, require persons eligible pursuant to 36-2901,
23 paragraph 6, subdivision (a), 36-2931, paragraph 5 and 36-2981, paragraph 6 to be
24 financially responsible for any cost sharing requirements established in a state plan
or a § 1115 waiver and approved by the centers for medicare and medicaid services.
25 Cost sharing requirements may include copayments, coinsurance, deductibles,
· · · · - enrollment fees and monthly premiums for enrolled members, including households _ 1
26 with children enrolled inthe Arizona long-term care system.
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2 The plaintiffs argue that the legislature thereby limited cost sharing to requirements
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3 approved by CMS in a state plan or in a §l 115 waiver, and they interpret “waiver" in this I
4 context to mean only an approval under §l 1 l5(a)(l). 1 "Section lll5 waiver,” as used in
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the Arizona statutes, is a defined term that "means the research and demonstration waiver I
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7 granted by the United States department of health and human services." A.R.S.§36— I
8 290l(l4) The research and demonstration waiver granted by the federal government is the I
9 entire authorization under section 1115. It is not parsed, as plaintiffs would have it, to a
10 mean only "waivers" under l1l5(a)(l) and to exclude "expenditures" under 1ll5(a)(2). I
11 Therefore, the premise that defendant Rodgers has proceeded in violation of the legislation
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that authorized eopayments by selecting the one form of federal approval that, plaintiffs I
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contend, would be illegal is without merit. I
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15 RESPECTFULLY SUBMITTED this L day of June, 2008. I
16 ` JOHNSTON LAW OFFICES, P.L.C, I
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17 By s I
Logan T. J ohnston I
18 One N. 1S* Street, Suite 250 g
19 Phoenix, AZ 85004 I,
602 452-0615 Q
20 Attorney for Defendant Rodgers I
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22 COPY of the foregoing filed electronically _ I
23 This __{?_ day of June 2008, with: I
24: cieik ofthe Court I
U.S. District Court _
26 l·U.S.C.§1315(a)(1)
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1 401 W. Washington U _ I
Phoenix, AZ 85003 ‘ I
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, COPIES of the foregoing mailed `
3 This day of June 2008, to:
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4 Hon. Earl H. Carroll
5 U.S. District Court
401 W. Washington I
6 Phoenix, AZ 85003
7 Ellen Sue Katz
8 WILLIAM E. MORRIS INSTITUTE FOR JUSTICE
202 E. McDowell Road, Suite257
9 Phoenix, AZ 85004
Attorney for Plaintiffs I
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Jane Perkins I
11 NAr1oNAL HEALTH LAW Paooaam I
12 2ll North Columbia Street, Second Floor
Chapel Hill, NC 27514 I
13 Attorney for Plaintiffs I
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14 Vesper Mei
Trial Attorney
15 Federal Programs Branch I
I6 U.S. Department of Justice, Civil Division
20 Massachusetts Ave., N.W. I
17 Washington, D.C. 20530 I
Attorneys for Defendant Leavitt I
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