December 16, 2018
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Advocates take Maine Medicaid expansion fight with LePage to court

Robert F. Bukaty | AP
Robert F. Bukaty | AP
Mainers for Health Care rally outside the State House prior to Gov. Paul LePage's State of the State address, Tuesday, Feb. 13, 2018, in Augusta, Maine.

AUGUSTA, Maine — Supporters of Medicaid expansion sued Maine on Monday to force state officials to implement the voter-approved law that has been held up by Gov. Paul LePage, who has stalled it for months while imploring the Legislature to first fund it on his terms.

In doing so, they put Attorney General Janet Mills on the hot seat, with a lawyer saying the suit will end quickly if the Democratic gubernatorial candidate and frequent foe of the Republican governor agrees with them because she controls the state’s legal representation.

The lawsuit against the Maine Department of Health and Human Services was filed Monday in Kennebec County Superior Court by Maine Equal Justice Partners, a progressive anti-poverty group, health groups and individuals who would be eligible for coverage in July under the law.

Maine became the first state to pass expansion under the Affordable Care Act at the ballot box in 2017, where 59 percent of voters backed it. But LePage — who has five times vetoed Medicaid expansion efforts passed by the Legislature — has blocked it thus far.

A day after it passed, the Republican governor said that he wouldn’t implement it unless lawmakers fund it at a disputed cost estimate and without tax hikes or raids of Maine’s surplus fund. Democrats have argued that it doesn’t need to be fully funded immediately.

But on Monday, Robyn Merrill, the executive director of Maine Equal Justice Partners, said the state’s surplus — estimated earlier this year to be more than $130 million — could be used to fund expansion immediately and that the governor’s roadblocks constituted “excuses.”

“He really doesn’t have any excuses any longer, but the fact of the matter is the law is the law and he needs to follow it,” Merrill said.

The voter-approved law set out a specific timeframe for Maine to implement expansion. By April 3, the state was supposed to send an expansion plan to the U.S. Department of Health and Human Services, but the deadlined came and went.

Since then, advocates have contended that the state is in “clear” violation of the law, and by July 2, the state is supposed to be covering an estimated 70,000 more people with incomes between 101 percent and 138 percent of the federal poverty level.

LePage spokesman Peter Steele said in an email that he “cannot comment on active litigation,” but that the governor’s position hasn’t changed since he outlined his conditions for expansion in a December letter to legislative leaders.

On Monday, James Kilbreth, an attorney representing the groups that are suing the state, said that Mills could end the suit “within a day or two” if she agrees with their position. In a brief statement, Mills shot back by saying that Kilbreth was “wrong” that she could end the suit because she isn’t a party to it.

The issue is laden with election-year politics. Mills is one of seven Democrats running in a June primary for the nomination to replace the term-limited LePage, and her office controls legal representation for state agencies, though she has often been in conflict with LePage and has often refused to represent him in certain cases.

LePage sued Mills over that last year, but his complaint was dismissed. State law says that Mills must sign off before a state government entity can hire outside lawyers to represent it. While that power could be used in a bid to block LePage’s legal effort, the Maine Supreme Judicial Court said in 2015 that it was unaware of any time that approval has been withheld.

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