Fogliano v. Arizona

After the Arizona Supreme Court denied the Center’s motion for preliminary injunction and declined to accept jurisdiction in the special action filed to stop AHCCCS from implementing a freeze on the provision of health care benefits effective July 1, (see Roach et al. v. Brewer et al.), on June 27, 2011, the Center, along with the Morris Institute for Justice and the Arizona Center for Disability Law, filed a lawsuit against AHCCCS and the state of Arizona in Superior Court.    In this Superior Court action, we’ve alleged that the freeze on benefits for eligible individuals without children violates Proposition 204 which was approved by Arizona voters in 2000 and provides that all individuals with incomes at or below 100% of the federal poverty level are eligible for AHCCCS.  Proposition 204 further provided that neither the legislature nor the executive branch of state government could impose any caps on eligibility.  As a voter-approved initiative, Proposition 204 is protected from amendment or repeal by the Voter Protection Act which was approved by voters in 1998 to prevent the legislature from frustrating the intent of voters by repealing or amending voter-initiated laws.   

As its defense to the plaintiffs’ suit, the state claims that it had no other choice but to impose a freeze on eligibility because of the state’s budget deficit.  However, it’s clear that the budget deficit is simply an excuse for some legislators to cut a program they don’t like.  As a result of the freeze, it’s expected that the number of individuals enrolled in the AHCCCS program will decline by at least 150,000 people over the next year.  The impact on these individuals and the state will be devastating.  Individuals without health care will either go untreated or go to emergency rooms.  Meanwhile, the state will lose hundreds of millions of dollars in federal matching funds.  What’s crazy is that the move to exclude adults without dependent children from AHCCCS will only save the state $190 million this fiscal year.  Projected revenues for Arizona are already running $275 million higher than previously forecast.  Therefore, the state actually has enough money to comply with Proposition 204 and provide health care to everybody at or below the federal poverty level.  The legislature just doesn’t want to. 

On June 30, 2011, Judge Mark Brain denied our motion for a temporary restraining order on the grounds that none of the plaintiffs in the case were facing any irreparable harm from the freeze because they were already enrolled in AHCCCS.  Because of delayed federal approval for the freeze, it did not go into effect until July 8.  The judge scheduled a preliminary injunction hearing for August 3, 2011. 

Prior to the August 3 hearing, we added additional plaintiffs to the lawsuit who were denied eligibility for AHCCCS because of the freeze even though they qualify under Proposition 204.  On August 10, 2011, Judge Brain denied our request for preliminary injunction.  The court held that it could not require the state to provide the necessary funding even though 1) the Proposition included a provision “to ensure” that all eligible individuals would be covered if tobacco settlement funds proved to be insufficient; 2) that provision expressly stated that the state "shall" supplement the funding; and 3) the proposition also gave eligible individuals the right to enforce the funding requirement. 

The Center filed an immediate appeal as well as a Petition for Special Action seeking expedited review.  The Arizona Court of Appeals accepted special action jurisdiction and heard oral argument on the Petition on October 19, 2011.  You can listen to the argument at the following link.

On December 7, 2011, the Court of Appeals issued its decision.  The Court agreed that Proposition 204 directed the legislature to provide supplemental funding and agreed that it prohibited caps on enrollment, but held that it could not provide plaintiffs' any relief because notwithstanding the mandatory language in the statute, the matter of funding was a political question and not subject to judicial review.  The Opinion is available at

On February 15, 2012, the Arizona Supreme Court denied the Center's Petition for Review, so unfortunately, the Court of Appeals decision stands. 


PreviewLegal DocumentsSize
Petition for Special Action court of appeals FINAL.pdf136.57 KB

Case Updates

Arizona Supreme Court once again refuses to hear AHCCCS case

On February 15, 2012, the Arizona Supreme Court denied the petition asking it to review and reverse the Court of Appeals decision in Fogliano v. Arizona, the case challenging the legislature's refusal to appropriate supplemental funding to provide healthcare services to all individuals at or below the federal poverty level.  The Supreme Court let stand the Court of Appeals decision that had held that although the voter-enacted statute mandated that the state provide such services and appropriate the supplemental funds necessary to do so, the court was without power to enforce that mandate.  Both decisions were extremely disappointing and will have a devastating impact on the thousands of individuals who were cut from the AHCCCS program as a result of the legislature's blatant violation of the ostensibly "voter-protected" law. 

Center will Appeal Decision Allowing AHCCCS Cuts

The Center will immediately appeal the Court of Appeals decision issued on December 6, 2011 that affirmed the trial court's ruling that notwithstanding the plain language of Prop. 204, the state could eliminate AHCCCS coverage to adults at or below the poverty line if they do not have dependent children. 

Court of Appeals Hears Oral Arguments in AHCCCS Case

On October 19, 2011 the Arizona Court of Appeals heard oral argument on the Special Action filed by the Center challenging the state's unlawful denial of AHCCCS coverage to thousands of individuals who are eligible under the plain language of Proposition 204, passed by the voters in 2000.