The question of whether Medicaid expansion can take effect in Maine without any dedicated funding went before Superior Court in Portland Thursday.
It's just one of the issues Justice Michaela Murphy has been asked to resolve, as supporters of expansion try to force the LePage administration to implement the voter-approved law.
The funding question has been a major sticking point ever since Medicaid expansion passed in a referendum last November. Within hours, Gov. Paul LePage announced that he wouldn't implement the law until it was funded, and his office placed several restrictions on where the legislature could get the money for it.
When lawmakers ultimately passed a $60 million funding bill in June, LePage vetoed it.
The administration did recently comply with a court order to file a federal application to begin the process of implementation, but LePage also sent a letter asking that the application be rejected due to the lack of funding.
In the Superior Court hearing on Thursday, the group that’s leading the effort to force the state to implement Medicaid expansion argued that the law can move forward without appropriated funds.
"The lack of appropriation, I think, is being used as an excuse to obstruct and delay implementing the law the voters passed," says Robyn Merrill of Maine Equal Justice Partners.
Speaking outside the courthouse, Merrill highlighted testimony from an analyst with the Office of Fiscal and Program Review, who said that the state is allowed to dip into current Medicaid accounts to cover people newly eligible under expansion.
"There is more than enough money in the Medicaid account to pay for expansion and all the other needs, in terms of the Medicaid program, till at least May of 2019," Merrill says.
The analyst, Luke Lazure, also confirmed that the legislature makes adjustments to the budget when a projected shortfall arises. Merrill says the legislature can address any potential shortfalls in Medicaid expansion when it reconvenes in January.
"The legislature watches and can make adjustments with supplemental budgets, and they do that all the time,” she says.
But the attorney representing the LePage administration, Patrick Strawbridge, says implementing expansion without appropriated funding is not allowed under the law.
"The Governor, everyone agreed that expanding Medicaid was going to cost millions and millions and millions of dollars,” Strawbridge says. “The legislature had ample opportunity to try to fund it. They failed to enact an appropriation. And therefore, the reality is no law can move forward if funding has not been provided for it. It's a matter of constitutional law."
During the hearing, Strawbridge pointed to prior cases in which Medicaid payments have increased to cover certain programs.
"The legislature still went through the trouble of enacting a separate appropriation,” he says. “Certainly that should have been the case with the $50 million annual price tag set to rise to over $100 million in the next four or five budget cycles.”
That's the state's share of the cost of expanding Medicaid. Maine would receive about $500 million annually in federal funds.
Whether implementation hinges on funding is now for Justice Michaela Murphy to decide. The hearing continues Friday, when Murphy will consider a motion to appoint a third party receiver to take over the implementation process.
She'll also consider the effective start date of the program. Since July 2, when supporters says the plan was due to take effect, 3500 people have applied and been denied for coverage. Medicaid expansion is projected to ultimately cover 70,000 people.