DHHS Commissioner Ricker Hamilton argues that a Maine judge’s order to expand Medicaid violates the state Constitution. Staff file photo by Joe Phelan

The LePage administration on Thursday appealed a judge’s order this week requiring the state to begin Medicaid expansion as voters demanded in 2017.

The appeal was filed with the Maine Supreme Judicial Court in Portland on behalf of Ricker Hamilton, commissioner of the Department of Health and Human Services, and asks the court to grant an expedited hearing on the dispute.

“The commissioner respectfully requests the Law Court shorten the time for response to this motion to two days, so the expedited briefing schedule can be set as soon as possible,” Patrick Strawbridge, the state’s attorney in the matter, wrote in his filing.

On Monday, Superior Court Judge Michaela Murphy ruled against the state, ordering DHHS to submit a state plan amendment with the U.S. Department of Health and Human Services by no later than next Monday. The plan amendment would set in motion a program to expand Medicaid to more than 70,000 low-income Mainers under age 65, offering health care coverage to those who earn 138 percent of the federal poverty level – $16,753 for an individual or $34,638 for a family of four.

Republican Gov. Paul LePage and his administration have steadfastly opposed expansion, arguing that the Legislature failed to provide funding to cover the costs. In the appeal filing, Hamilton says the judge’s order violates the Maine Constitution’s separation of powers.

Julie D. Rabinowitz, the governor’s press secretary, said the administration has asked the state’s highest court to consider expediting what she described as “an important constitutional question.”

“An appropriation is essential to implementing any major public program, and Medicaid expansion is no different,” she said in an email.

Estimates on the cost of expanding Medicaid have varied widely, but the nonpartisan Office of Fiscal and Program Review has projected the expense to be about $45 million in the first year.

“Those costs are indisputably substantial,” the state said in its court filing, adding that it would require a net annual appropriation from the state General Fund of $54 million.

Strawbridge argues that the suit filed by Maine Equal Justice Partners and other expansion advocates seeking a court order to compel Hamilton to submit a “binding” state plan amendment would commit the state to expanding Medicaid immediately, despite the lack of approved funding.

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“But the (state plan amendment) is the document that binds the state to future expenditures as a matter of both contract and federal law,” Strawbridge wrote. “And it can not be altered without federal approval. The Superior Court’s reasoning is akin to holding that a borrower’s execution of a mortgage contract requires no expenditures because it costs nothing to drive to the bank and sign the papers.”

Strawbridge argues that the lower court order violates the constitution’s separation of powers.

The state proposed in its Thursday filing that the Supreme Judicial Court expedite the hearing and allow the parties to argue their positions July 18. The state also asks that the court not force the state to file the plan amendment while the appeal is pending.

Strawbridge said the state will not file the plan amendment until the dispute is resolved by the Supreme Judicial Court.

“The appeal was expected,” Jack Comart, an attorney for Maine Equal Justice Partners, said in an email Thursday night. “Until a court says otherwise, it is our position that the commissioner must comply with the order of the Superior Court and submit the state plan amendment on Monday.”

LePage vetoed Medicaid expansion proposals five times before voters approved it in a referendum in November. Advocacy groups sued in April to force the LePage administration to submit the plan amendment paperwork, which is the first step to eventually receiving more than $500 million a year in federal funding.

“We want them to file the paperwork … as soon as possible,” Maine Equal Justice Partners Executive Director Robyn Merrill told the Associated Press on Thursday. “Too much time has gone by. People are eligible as of July 2. The clock is ticking.”

Merrill said her group will fight the appeal and the LePage administration’s argument that it should not have to submit the paperwork until the court decides the appeal.

The lawsuit contends there are already enough funds in the state’s Medicaid account to get through the current budget, ending in June 2019. There also is more than $140 million in unallocated funds that the state could draw from at any time, the lawsuit argues.

The governor has called on lawmakers to appropriate money to cover the state’s share of the expansion cost. LePage disagrees with estimates that Medicaid expansion will save Maine money and contends the cost will grow exponentially.

Dennis Hoey can be contacted at 791-6365 or at:

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