A Superior Court judge heard arguments Thursday about whether the LePage administration is obligated to expand Medicaid without funding from the Legislature, even as the state continues to turn away thousands of applicants for coverage.

In the latest round of legal wrangling over Medicaid expansion, attorneys for Maine Equal Justice Partners and Gov. Paul LePage once again offered starkly different interpretations of what should have happened since voters approved expansion last November.

Expansion advocates argue an estimated 70,000 lower-income Mainers became eligible for MaineCare – the state’s Medicaid program – on July 2 and that the LePage administration is breaking the law by ignoring the implementation date.

While advocates acknowledge lawmakers have yet to fund expansion – because LePage vetoed the bill – they insist there is ample money within DHHS’ Medicaid account to cover costs well into next year.

“The court is just looking at: Has the executive branch followed the law? And the answer is no, they haven’t,” Robyn Merrill, executive director of Maine Equal Justice Partners, said after the court hearing at the Cumberland County courthouse. “They haven’t implemented the law that voters passed – clearly, with nearly 60 percent of the vote – and they are doing everything they can at each step of the way to obstruct the will of the voter and to prevent 70,000 people from getting health care.”

More than 3,500 people have applied for and been denied coverage since July, according to figures shared Thursday with Superior Court Justice Michaela Murphy. While that is a small fraction of the 70,000 believed eligible, Merrill said she believes the LePage administration’s steadfast refusal to expand coverage has had a chilling effect on applicants.

But Patrick Strawbridge, a private attorney representing the LePage administration, continued to argue before Murphy that DHHS cannot legally implement a program that hasn’t been funded by the Legislature.

“The Maine Constitution prohibits expenditures without an appropriation and it requires a balanced budget,” Strawbridge said. “Everyone agreed that expanding Medicaid was going to cost millions and millions and millions of dollars. The Legislature had ample opportunity to try to fund it. They failed to enact it … and therefore the reality is that no law can move forward.”

Medicaid expansion has been stuck in a political and legal quagmire ever since nearly 60 percent of voters approved it in a statewide referendum last year.

On Aug. 23, the Maine Supreme Judicial Court ordered the LePage administration to file a “state implementation plan” with federal Medicaid regulators that is the critical first step toward implementation. DHHS complied several weeks later, but LePage personally asked the regulators to reject the plan.

“I strongly encourage CMS (U.S. Centers for Medicare and Medicaid Services) to reject the State Plan Amendment that may soon be submitted by the Maine Department of Health and Human Services pursuant to court order,” LePage wrote in the letter. “If accepted, the SPA would commit Maine to expanding the Medicaid program to an additional 70,000 to 90,000 individuals. However, not one dime of the hundreds of millions of dollars that will be needed to pay for the state’s share of the expansion has been appropriated.”

The Legislature passed a bill this summer appropriating $60 million to Medicaid expansion. But LePage vetoed the bill and expansion advocates failed to convince enough House Republicans to vote to override the veto.

But even as Maine’s high court ordered LePage to submit an implementation plan, the justices also wrote there were “substantial unresolved issues” that had to be resolved before it could rule on the core issue of whether the administration had to expand coverage without legislative funding.

That’s how the issue ended up back before Murphy on the Superior Court bench. The hearing will resume Friday when a former top Medicaid administrator during the Obama administration, Cindy Mann, testifies on behalf of Maine Equal Justice Partners. A DHHS official may also testify on behalf of the LePage administration.

Afterward, Murphy is expected to hear arguments on a separate but related request from Maine Equal Justice Partners seeking to have the court appoint an independent third party to oversee implementation of Medicaid expansion in Maine.

The nonprofit filed the request because, Merrill said at the time, the implementation plan “was not submitted in good faith” given the governor’s additional letter urging federal officials to reject the state plan.

Kevin Miller can be contacted at 791-6312 or at:

[email protected]

Twitter: KevinMillerPPH

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