Judge orders LePage administration to expand MaineCare

Gov. Paul LePage plans to appeal a judge’s order that his administration move forward with a voter-approved expansion of MaineCare, the state’s Medicaid system.

In an order issued Wednesday, Kennebec County Superior Court Justice Michaela Murphy detailed seven steps the Maine Department of Health and Human Services must take to comply with the expansion law, which extends health care coverage to as many as 80,000 low-income Mainers. The law was approved by 59 percent of state voters in November of 2017, but LePage repeatedly has blocked implementation by vetoing funding legislation and refusing to take administrative steps.

“Although the Governor may believe implementation to be unwise and disagree with the (expansion law) as a matter of policy, he may not ignore the will of the people and refuse to take any action toward accomplishing the policy objectives of the (law),” Murphy wrote in her 21-page order.

LePage plans to appeal Murphy’s order, Julie Rabinowitz, the governor’s spokeswoman, said in an email Wednesday.

The order is retroactive to July 2, 2018, and it requires DHHS to file an amendment to paperwork already submitted to the federal government stating that there are no legal or constitutional grounds for delaying the expansion. In the paperwork previously filed by DHHS, in a process known as a state plan amendment, the administration urged the federal Centers for Medicaid and Medicare Services to reject the state’s application.

Murphy’s order Wednesday directs acting DHHS Commissioner Bethany Hamm to “… amend the eligibility SPA it submitted to the federal government on September 4, 2018 to reflect an effective date of the Expansion Act to be January 3, 2018; the effective date requiring coverage to be July 2, 2018; and to inform CMS that no constitutional or statutory impediment exists which prevents the Commissioner from using existing appropriations to implement the Expansion Act. The Commissioner must further take all necessary steps to ensure that approval of the SPA is retroactive to July 2, 2018.”

The order gives DHHS until Dec. 5 to comply.

Robyn Merrill, the executive director of Maine Equal Justice Partners, which sued LePage over his delays in implementing the law, called the order a “huge victory” for the thousands of Mainers who have “been unfairly denied health care.”

“This is also a victory for the Maine voters and for the rule of law,” Merrill said in a written statement. “The executive branch has a duty to carry out all the laws, not pick and choose, and today’s ruling holds them accountable.”

In August, the Maine Supreme Judicial Court ruled against the administration when it sought to delay implementation of the expansion until the Legislature funded the state’s cost, estimated to be about $55 million a year.

Under the 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 on July 2 and many did only to receive letters of denial from DHHS.

“The governor’s excuses and obstructionism did not hold water with the courts,” Merrill said.

Jack Comart, litigation director for Maine Equal Justice Partners, said Wednesday that the practical implications of Murphy’s order for those who are eligible for MaineCare services under the law, is that any covered services should be paid by the state and any costs that were incurred by health care providers that accept Medicaid should be reimbursed. Comart said that anyone who was eligible for services as of July 2 should also be reimbursed by the state if they paid for their medical costs out of pocket.

“This is tremendous news for anyone who applied for or was terminated from MaineCare on or after July 2 who meets the eligibility requirements for the expansion group,” Comart said. “The court now says that these people should receive MaineCare right away, whether or not the federal application for funds has been approved. We see no impediment to Maine receiving that approval, but as the court said, it will not hold up care for people who have already waited a long time.”

Comart said he did not believe that President Trump’s recent appointment of Mary Mayhew – the former DHHS commissioner under LePage – to head the federal CMS would have any bearing on whether the federal government approves Maine’s expansion plan or not.

Though LePage has argued that expansion was not funded by the Legislature, he vetoed a funding bill approved by lawmakers and the Legislature failed to override the veto in a July 9 vote.

LePage has consistently opposed Medicaid expansion, arguing that doing so would be financially disastrous for the state. In June, he said the Legislature’s $60 million funding bill contained “unsustainable budget gimmicks,” and he vetoed it. Prior to the ballot question measure passing into law, LePage successfully vetoed legislation to expand the system five different times – on one occasion he even held a news conference to ceremonially veto an expansion bill even before it reached his desk.

And on a July radio show, LePage said he would rather go to jail than implement the expansion law because of his concerns about the potential impact on the state budget.

“The one thing I know is nobody can force me to put the state in red ink and I will not do that,” the Republican said at the time. “I will go to jail before I put the state in red ink. And if the court tells me I have to do it, then we’re going to be going to jail.”

Governor-elect Janet Mills, a Democrat, has said she will make expansion of Medicaid under the voter-approved law the first priority for her administration when she takes office in January. Mills, currently the state’s attorney general, has refused to represent the LePage administration in its legal efforts to stop implementation and instead sided with the plaintiffs in the case by filing an amicus brief in support of the expansion law in October.

Mills’ office did authorize LePage to hire a private attorney to defend the administration against the suit. Murphy, the judge who issued Wednesday’s order, previously rejected a separate court complaint that LePage brought against Mills over the costs to taxpayers of hiring an outside counsel. Those costs, according to state records obtained by the Associated Press likely exceed $200,000.

“This decision is a victory for the people of Maine,” Mills said in a statement released Wednesday. “Medicaid expansion is the law of the land, and, as governor, I will implement the law. Not only will Medicaid expansion result in health care for tens of thousands of Mainers, it will also reduce health insurance costs, support small businesses, bolster our rural hospitals, and create jobs to expand our economy.”