The Maine Attorney General’s Office has filed a brief supporting the lawsuit by Maine Equal Justice Partners that accuses the LePage administration of breaking the law by continuing to block the expansion of Medicaid coverage for more than 70,000 low-income Mainers.

The amicus curiae brief, which was submitted in Kennebec County Superior Court on Oct. 17, was signed by Chief Deputy Attorney General Linda M. Pistner and Assistant Attorney General Jonathan R. Bolton. Attorney General Janet Mills, the Democratic candidate running for governor, is not named in the filing.

Robyn Merrill, executive director of Maine Equal Justice Partners, said Mills has recused herself from the legal dispute. The brief names Bethany Hamm, LePage’s acting commissioner of the Department of Health and Human Services, as the respondent.

“The commissioner’s positions would also create unnecessary roadblocks to the implementation of laws enacted by citizen initiative, impairing the power that is reserved to the people by Maine’s Constitution,” the brief states. “The commissioner has acknowledged her refusal to take legally required steps to implement the MaineCare expansion duly enacted into law by Maine citizens.”

About 270,000 residents receive MaineCare, the state’s Medicaid program, which is free for those who qualify. Medicaid is a federal program administered by the states that is funded with a blend of federal and state dollars.

Hamm and the LePage administration, which is represented by Patrick Strawbridge, a private attorney, have argued that DHHS cannot legally implement a law that has not been fully funded by the Legislature.


But the AG’s office, in its amicus brief, said LePage’s argument is flawed because there is ample money available to pay the claims of MaineCare beneficiaries.

“The commissioner’s reliance on the Legislature’s failure to appropriate new funds is not – at least so long as money remains in MaineCare accounts – a legal objection to implementing expansion,” the brief states. “Rather, the commissioner’s justification boils down to a policy argument that the Legislature, by its inaction, has left MaineCare in a precarious financial situation.”

Later in the brief, the AG’s Office argues that the state’s executive branch has a “constitutional duty to execute and enforce the laws, whether they be enacted by the Legislature or through a citizen initiative … the executive branch has no authority to refuse to implement legislative programs, or, in this case, expansions to existing programs.”

A LePage spokeswoman did not respond to a request for comment late Tuesday.

Strawbridge declined to comment, referring instead to a response that he filed Monday on behalf of Hamm in the Portland Business and Consumer Court.

Strawbridge argues in the court documents that the dispute should be resolved through the political process rather than a court order.


“The case involves core questions of budgetary policy, including how to implement a massive expansion of the state’s largest entitlement program and what source of revenue should be used to fund that program,” Strawbridge wrote. “All of those decisions will be informed by projections about future revenues, expenditures, Medicaid enrollment, and healthcare costs – matters that are familiar to the legislative and executive branches but are wholly unsuited to judicial fact finding.”

Merrill said the fact that the AG’s Office has joined forces with Maine Equal Justice Partners further strengthens her agency’s position. Superior Court Justice Michaela Murphy has scheduled oral arguments for Nov. 7, the day after Election Day.

Murphy will be asked to answer the question – is LePage breaking the law by stalling Medicaid expansion, a law that was approved by nearly 60 percent of Maine voters in November 2017. The voter approved expansion law was to have gone into effect July 2.

“This case had already been dragged out for far too long,” Merrill said, noting that 3,500 Mainers have applied for coverage and been denied it since July 2. “There has been a significant human cost to this delay. There is no excuse. It’s unacceptable. It’s unconscionable.”

On Aug. 23, the Maine Supreme Judicial Court ordered the LePage administration to file “a state implementation plan” with federal Medicaid regulators. The Maine DHHS complied, but LePage personally asked regulators to reject the plan.

“If accepted, the State Plan Amendment would commit Maine to expanding the Medicaid program to an additional 70,000 to 90,000 individuals,” LePage wrote. “However, not one dime of the hundreds of millions of dollars that will be needed to pay for state’s share of the expansion has been appropriated.”

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

Only subscribers are eligible to post comments. Please subscribe or login first for digital access. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.

filed under: