January 21, 2019
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Delaying Medicaid expansion isn’t only cruel — it is unlawful

Mario Moretto | BDN
Mario Moretto | BDN
Andrew MacLean, deputy executive vice president of the Maine Medical Association, voices his organization's support for Medicaid expansion at the State House Welcome Center in Augusta, Jan. 23, 2014.

At a hearing late last month, a Maine judge said that Medicaid expansion was the law, “not a suggestion.” This week, the same judge ordered the LePage administration to file a plan within a week for extending public health insurance to thousands of Mainers.

We hope the administration will comply with the court order, but given Gov. Paul LePage’s long-standing opposition to Medicaid expansion — he vetoed it five times — we don’t necessarily expect that to happen. The administration has not publicly commented on the ruling.

Lawmakers can remove one of LePage’s excuses for not beginning the expansion process by appropriating the funds to do so. At least one legislative leader, Assistant Senate Majority Leader Amy Volk supports this course. “I think this is a good thing,” Volk, R-Scarborough, said on Twitter of the court ruling. “Conservative states across the country have models we can learn from. It’s time to implement what voters approved.”

Voters last year approved an expansion of Medicaid, largely to be paid for by the federal government, to extend health insurance to about 70,000 low-income Mainers. That set in place a timetable of state actions that the administration has ignored.

The Maine Department of Health and Human Services was required to file a plan for implementation of the expansion by April 3. The LePage administration has not filed the plan.

Health care and anti-poverty advocates filed suit in late April to compel DHHS to file the required plan.

At a hearing in late May, Superior Court Justice Michaela Murphy made it clear that complying with the expansion law was not optional. “The law is in effect. It’s not a suggestion,” Murphy said. “The executive branch has a duty to enforce that.”

Murphy reiterated that point in a 13-page ruling on Monday and blasted DHHS for taking no action to comply with the requirements of the expansion law.

“The [DHHS] Commissioner has not cited to any authority suggesting that an agency can be considered to have substantially complied with a directory statute by taking no action at all,” she wrote. “The Court concludes that the Commissioner’s complete failure to act cannot be considered substantial compliance” with the legal requirements.

Murphy ordered DHHS to file the implementation plan by June 11.

The judge also took a dim view of one of LePage’s chief excuses for not acting on Medicaid expansion — that the state cannot afford it. As a secondary argument, LePage has said his administration can’t act until the Legislature appropriates funds to pay for the expansion.

While steering away from saying whether the Legislature needed to appropriate such funds, Murphy said that the administration needed to file the implementation plan regardless of whether the funds to cover the expansion were currently available. Advocates argue that the initial work can be funded with surplus funds within DHHS. The administration argues that new funding must be appropriated by lawmakers.

“The Court is not persuaded that the executive branch is excused from clear statutory obligations by the legislature’s failure to follow through with legislative obligations,” Murphy wrote.

This is a clear reminder to lawmakers that appropriating funds to cover the initial expansion work must remain a priority if and when they return to the State House. The Legislature adjourned in early May without completing its work, leaving many issues, including Medicaid expansion, in limbo. Legislative leaders are continuing to negotiate in hopes of returning to Augusta soon to address these issues.

Lawmakers have the vehicle to appropriate the needed funding in LD 837. The bill would allocate $3.4 million in state funds to hire more than 100 people to administer the expansion of Medicaid to thousands of poor, working Mainers. The funding would be matched by $6.4 million in federal funds.

Delaying Medicaid expansion, as LePage and House Republicans are doing, won’t stop it. Instead, it just makes qualified people wait longer to obtain health insurance so they can visit a doctor, start substance abuse treatment or obtain other needed health services. This is cruel, and, according to Monday’s court ruling, runs afoul of the law.

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