June 18, 2018
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Power grab by DHHS oversteps the law, basic integrity

Courtesy of Maine.gov
Courtesy of Maine.gov
Maine Department of Health and Human Services Commissioner Mary Mayhew

If you don’t get your way by following the legal channels, try the illegal channels. That’s the message the Maine Department of Health and Human Services is sending with what is supposedly a new rule to prevent state dollars from funding general assistance for undocumented immigrants.

The department says it doesn’t want to pay for emergency aid for people in Maine who do not have documents. And it’s going to make the change on its own, without going through the process outlined in Maine law. Apparently we now live in an autocracy.

DHHS previously proposed a broader rule change to make all asylum seekers and immigrants — even those here legally — ineligible for state general assistance money. The proposal went through the proper rulemaking process, and the attorney general determined it was illegal.

It would have imposed an unfunded mandate on towns and cities, represented an overreach by DHHS, and violated the equal protection clauses of both the Maine and U.S. constitutions.

So DHHS is going to do it anyway — for undocumented immigrants.

Of course, even if such a rule were not legally suspect, and towns tried to follow it, it would be extraordinarily burdensome. How would a town or city know whether people seeking aid were in Maine without permission, especially if their status was in transition? It can take more than a year to prepare an asylum application, and determining someone’s immigration status is rarely easy.

But the larger, overarching problem is one of basic integrity. DHHS exists not for its own sake but for the good of Maine. That’s why there’s an established rulemaking process. It allows for public input and ensures the agency considers how a proposed change would affect people’s lives. Ignoring that process is completely beyond the department’s authority.

State agencies go through the rulemaking process regularly. The Maine Department of Environmental Protection has recently discussed topics such as regulating arsenic in children’s products and managing odor at wastewater treatment facilities. The Maine Department of Education is currently proposing procedures for suicide prevention awareness in schools. And DHHS proposes rules on a wide range of issues, from allowable pesticides for growing marijuana to hospital oversight.

Circumventing the process, as it’s laid out in the Administrative Procedures Act, is unheard of.

DHHS has said it is following federal law, but don’t be fooled. Eligibility requirements for general assistance — a program funded entirely with local and state dollars, not federal money — are set by the state.

The Maine Municipal Association may fight back by encouraging municipalities to not follow the so-called rule. And some communities have already said they will defy it. In this unfortunate situation, someone needs to stand up to the LePage administration. It can’t be allowed to do whatever it wants without repercussions.

It seems, however, that the likelihood of a court battle isn’t much of a deterrent for the administration.

“Anybody can sue anybody at any time,” LePage told the Sun Journal recently. And there’s another problem. If an administration isn’t put off by being sued, or doesn’t care to follow the law, what will it do next?

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