Maine Supreme Judicial Court justices heard lively arguments Wednesday over whether to allow the LePage administration to continue to delay filing plans with federal officials to expand Medicaid while the larger legal case plays out.

Chief Justice Leigh Saufley acknowledged that the court faced a “procedural conundrum” in hearing an appeal of a lower court ruling ordering the LePage administration to file expansion plans with federal Medicaid regulators. Those plans are a necessary, initial step to the state offering Medicaid coverage to an estimated 70,000 additional adults in Maine, as required by a ballot initiative approved by voters in November.

While advocates argued that Gov. Paul LePage is obligated under the law to file the plans, the administration countered that such a plan would create a “binding financial commitment” for the state. The conundrum, Saufley said, is that the Supreme Judicial Court has to decide whether to delve into the funding issue.

“What we have here is a question as to whether there is funding available for the program that the people have said must be implemented,” Saufley said to James Kilbreth, attorney for Maine Equal Justice Partners, which sued the administration to force it to expand Medicaid coverage. “And when you invoke the (judicial) branch to implement that, do we not have to know what the status of funding is?”

“I think those are political questions, your honor,” Kilbreth responded.

Saufley retorted: “A lot of this is a political question.”

Nearly 60 percent of voters supported expanding Medicaid in a strong rebuke of LePage’s years-long effort to block expansion. Under the voter-approved law, Mainers earning as much as 138 percent of the federal poverty level – $16,753 for an individual and $34,638 for a family of four – could begin applying for Medicaid coverage, known as MaineCare, on July 2.

Those applications have begun to trickle in, yet the LePage administration has not taken any steps to expand coverage. In response, Maine Equal Justice Partners sued in April arguing that the failure to expand Medicaid is harming low-income Mainers who by law should be eligible to receive Medicaid insurance this year.

Wednesday’s oral arguments were not focused on that larger issue, but, instead on whether the LePage administration is breaking the law by refusing to file an implementation plan with the U.S. Department of Health and Human Services.

‘A WHOLLY SELF-INFLICTED PROBLEM’

Patrick Strawbridge, the private attorney who LePage hired after Attorney General Janet Mills declined to represent the administration, argued that the plan would obligate the state to spend up to $50 million this year. Strawbridge said a Kennebec County Superior Court judge wrongly injected the judicial branch into the legislative decision-making process regarding appropriating money for programs.

“The Superior Court ordered the commissioner to make that binding commitment notwithstanding the Legislature’s failure to appropriate a single penny of the necessary money to expand Medicaid,” Strawbridge said. “In doing so, (the court) ignored statutory and constitutional principles that reserve to the Legislature – and not to the courts – the power of the purse.”

But Kilbreth noted that the Legislature passed a bill appropriating $60 million for Medicaid expansion last month, only to see it vetoed by LePage and sustained by House Republicans. Instead, Kilbreth suggested, LePage is trying to get around the constitutional prohibition on governors vetoing citizen initiatives by blocking the funding necessary to carry out expansion.

“You can’t have a circumstance in which the governor, after the Legislature appropriates the funds, where the governor is free to veto and veto and veto to thwart the implementation of the act,” Kilbreth said. “For them to argue now that ‘Oh, there is no appropriation’ is a wholly self-inflicted problem.”

LePage has also floated increasing taxes on hospitals as a way to pay for Medicaid expansion but has yet to flesh out the proposal, which received a chilly reception from Democratic leaders and is opposed by hospitals.

Several justices seemed sympathetic, at times, to the argument from Maine Equal Justice Partners that the LePage administration does not need full funding from the Legislature to move forward with expansion. Instead, the Legislature can always provide additional funds to cover a future shortfall through the routine supplemental budget process.

“So you’re saying just fund it on the run,” said Justice Andrew Mead. “Starting off, there may not be enough funding there, but we can appropriate funds at a later date to keep it running. I think that clarifies it for me.”

LEPAGE’S LAWYER: ‘WE ARE ENCOURAGED’

The question, Mead and other justices said, is whether the court needs to conduct additional “fact-finding” on funding before deciding how to proceed on the case.

Afterward, Strawbridge said he was pleased with the tenor of the justices’ questions.

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“We are encouraged,” he said. “The court seemed to be giving our arguments careful attention. I think that they were rightfully concerned about the possibility of forcing the state to embark on a binding commitment to the federal government without an appropriation being in place.”

As for the governor’s veto of the expansion funding bill, “the veto process is part of the legislative process,” Strawbridge said.

On the other side, Robyn Merrill of Maine Equal Justice Partners said her organization is “going to wait and see what happens.” But Merrill said it was obvious to her that the court felt it had a lot of issues to sort through.

“It is clear that the LePage administration is doing everything they can to drag their feet, not taking any action,” said Merrill, the organization’s executive director. “The Legislature actually appropriated funds – the funds that the governor claims to need – to cover costs through 2019 and then the governor vetoed that appropriation. So to then come in and say, ‘Well, there isn’t funding to do this’ is disingenuous and the administration really needs to be held accountable.”

Thirty-three other states have expanded Medicaid eligibility under the Affordable Care Act, taking advantage of the federal government’s offer to cover 90 percent of the expansion costs. LePage and other opponents argue, however, that expansion will cost the state more than anticipated and will siphon away dollars that should be flowing to the elderly and disabled.

Kevin Miller can be contacted at 791-6312 or at:

kmiller@mainetoday.com

Twitter: KevinMillerPPH

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