Maine’s top court has ruled that the LePage administration must file a plan to expand Medicaid even as it fights implementation of the ballot initiative approved by voters last fall.

The ruling Thursday by the Maine Supreme Judicial Court delivers a blow to Republican Gov. Paul LePage, who has steadfastly opposed efforts to extend the public health coverage to an estimated 70,000 additional adults in Maine. But the courts have yet to rule on the core dispute: whether the administration must grant coverage to those people even though the governor and Legislature have not agreed on a specific funding source.

“There are substantial unresolved issues surrounding the petitioners’ appeal … and it is clear from the limited record before us that those issues must be resolved before we can consider the matter on its merits,” Justice Joseph Jabar wrote in the majority opinion.

Nearly 60 percent of voters approved Medicaid expansion in November, but the governor has not taken any steps to put the program in place. Maine Equal Justice Partners sued in April, arguing that inaction was harming low-income Mainers who should be eligible for insurance under the program this year. A Superior Court justice issued a partial judgment in June, ordering the LePage administration to file expansion plans with federal regulators without delay.

The governor and the commissioner of the state Department of Health and Human Services appealed that decision to the Supreme Judicial Court, which heard oral arguments in the case last month.

The justices dismissed the LePage administration’s appeal Thursday, saying the Superior Court still needs to resolve broader constitutional questions in the legal battle.

“Because the order of the trial court is, in practical terms, wholly preliminary, there is no basis for the Law Court to act in this piecemeal appeal from the action of the court,” Chief Justice Leigh Saufley wrote in a concurring opinion.

Now the administration will need to file what is called a state plan amendment to seek federal funding for expansion. The lower court had ordered the paperwork to be submitted by June 11, but the Supreme Judicial Court did not set a new deadline for that to happen.

A spokesman for LePage’s office said the governor’s legal team is studying the court’s decision.

“The decision does not address the merits of the constitutional issues raised by the governor, including the fact that an appropriation is required before any expenditure can be compelled by law,” Peter Steele, LePage’s director of communications, wrote in an email.

Robyn Merrill, executive director of Maine Equal Justice Partners, said the ruling should pave the way for implementation, which she believes will happen in the coming months, based on the court rulings by the Superior and Supreme courts.

“They have to submit the state plan amendment,” Merrill said. “It’s a clear directive by the court. It requires them to submit a state plan amendment right away or they could be held in contempt by the court.”

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Merrill said the Superior Court also will need to address the start date approved by voters. Under the new 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. Some people have been submitting those applications, and the state DHHS has issued some denial letters.

“The law is clearly on our side,” Merrill said. “The people of Maine voted and enacted a law, and that law is on the books. It’s not a question of if Medicaid expansion will happen, it’s a question of when.”

Medicaid is a program funded with state and federal dollars, operated by the states with federal oversight, and the governor has repeatedly said he cannot take steps toward Medicaid expansion until the Legislature appropriates money for the program. The Legislature passed a bill appropriating $60 million for Medicaid expansion earlier this year, only to see it vetoed by LePage and sustained by House Republicans.

In his solo dissenting opinion, Justice Donald Alexander echoed those concerns about rolling out an unfunded program. He wrote that the expansion should have been stayed, and the justices should have immediately considered the merits of the appeal.

“Before implementation of the program can begin, and before an implementation plan can be submitted to the federal government, there must be an appropriation to support the program enacted into law by the Legislature,” Alexander wrote. He also noted that the courts cannot compel another branch of government to appropriate state funds for the new program.

Even those justices who supported the majority opinion acknowledged the gap in funding. Saufley, supported by one other justice, wrote in her concurring opinion that the administration’s submission of the plan as ordered by the lower court “will likely have no practical effect.”

“Accordingly, on the limited record before us, where the Legislature has not acted and the trial court has not even reached the constitutional analysis regarding the implementation of this initiative, it is likely that any plan submitted by the executive branch will, by definition, have to report candidly that no legislative action or judicial adjudication regarding funding has been completed,” Saufley wrote.

Thirty-three other states have expanded Medicaid eligibility under the Affordable Care Act, with the federal government covering no less than 90 percent of the expansion costs. LePage and other opponents argue, however, that expansion will cost the state more than anticipated and will drain money that should be going to the elderly and disabled.

Estimates of the state’s expansion costs have varied widely. The nonpartisan Office of Fiscal and Program Review has projected they would be about $45 million in the first year. The LePage administration says it will cost as much as $60 million in the first year and as much as $100 million annually in future years.

Staff Writer Joe Lawlor contributed to this report.

Megan Doyle can be contacted at 791-6327 or at:

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