Judge hears arguments for Medicaid expansion injunction

Superior Court Judge Frank Pfiffner is expected to issue a ruling Friday on whether to halt the start of new Medicaid enrollment Sept. 1 under an expansion of the program ordered by Gov. Bill Walker.

In a hearing Thursday on the Legislative Council’s request for a temporary restraining order or injunction, attorneys for the Republican-led legislative committee and the state Department of Law rehashed some of the basic elements of the lawsuit, whether a U.S. Supreme Court decision can be interpreted that a Medicaid expansion is “required” by the Affordable Care Act or only an “option.”

Erin Murphy, attorney for Bancroft Pllc, a Virginia-based law firm representing the legislators, told the judge that the plaintiffs’ petition meets one standard for a restraining order or injunction: “We make a clear case that we will prevail on the merits,” that the expansion is optional and requiring legislative approval, Murphy said, speaking on a videoconference.

In a comment, Pfiffner questioned that assumption. “In several legal opinions the Legislature’s own attorneys told the Legislative Council that it is likely to lose this case.”

However, if that isn’t sufficient, Murphy argued that the second standard, to preserve the status quo until the legal issues are settled, would also be met by halting Walker’s acceptance of new Medicaid applicants starting Sept. 1.

“It doesn’t make sense to extend coverage to people (on Sept. 1) only to have it terminated,” if the legal case requires it, Murphy told the court. “All we’re asking is to have this put on hold, perhaps for just a matter of weeks. It doesn’t make sense to begin implementing this before the court decides that it is legal.”

The case could be resolved quickly because it’s a straightforward legal question, an interpretation of a Supreme Court decision, that requires no evidence or extensive briefings, she said.

The state argued, however, that the plaintiffs failed to make a case that harm will be done if new applicants under the Medicaid expansion are accepted.

“There has been no showing that there will be harm done,” by the expansion, which is another reason restraining orders or injunctions are ordered, said Dario Borgheson, an attorney with the Department of Law who was representing the Walker administration.

“On the contrary, there will be real benefits given to people. Some people will get health care. It might save lives, and the state won’t have to spend money to care, to prison inmates for example, that would be paid by the federal government if the expansion is allowed,” Borgheson said.

On the merits of the law case, whether expansion is optional or not, Borgheson said existing state law extends to the commissioner of Health and Social Services the power to “define the contour” of the state Medicaid program, under which Commissioner Valerie Davidson has powers to extend certain services without explicit legislative approval.

“This is pretty standard procedure, where agencies are given discretion to define how complex programs will be administered, and Medicaid is very complex,” Borgheson said.


08/31/2015 - 5:34pm