Alaska legislative leaders should abandon Medicaid lawsuit, deal with policy

The topic was Medicaid expansion, but House Speaker Mike Chenault sounded like the late Yogi Berra in an interview with Anchorage NBC affiliate KTUU: "There's more information that people are looking for and there's not enough certainty one way or the other to either go forward with the lawsuit or to dismiss the lawsuit."

And if you come to a legal fork in the road, take it.

Better yet, just drop it.

Somehow, it was no surprise that the Legislative Council emerged from a secret meeting in late September and refused to shut down its court fight against the Walker administration over whether the governor can approve Medicaid expansion this year. After all, the council members had decided during the summer it was smart strategy to pay the lawyers in advance. That might have something to do with it.

Stopping when only a limited effort had been expended would make it harder to justify the $100,000 signing bonus given to Bancroft LLC, or the $150,000 the firm will collect "when services in the Superior Court are completely rendered."

The flat fee obscures the typical hourly rates commanded by the Washington, D.C., attorneys -- from $500 an hour to $1,350 per hour. The Bancroft team would collect an additional $150,000 if the matter returns to the Alaska Supreme Court.

The agreement does not require a certain number of hours of work and it does not allow extra expense money for travel, which explains why the attorneys have not appeared in person, but through the miracle of Skype. The lawyers are not licensed in Alaska, so legislators also hired the firm of Holmes Weddle & Barcott to assist, paying $290 an hour to attorney Tim McKeever in Anchorage.


You may recall that legislative leaders blocked a vote on Medicaid expansion last spring -- fearing it would be approved by a majority of their colleagues -- and tried to stop the expanded coverage with a late summer lawsuit.

The sensible way to resolve this issue is for lawmakers to place Medicaid expansion on the agenda for an extra special session at the same time as the gas line special session later this month and put it to a public vote. There certainly were enough hearings early this year to make an up-or-down decision.

This is a political fight about a major policy call, disguised as a battle of principle.

Last November, the Legislative Affairs Agency told lawmakers exactly how they could amend state law to block expansion by the governor if that's what lawmakers wanted to accomplish. But instead of dealing with this question directly, legislators opted for the courts, a wasteful distraction.

In their lawsuit, legislators said providing additional health coverage to low-income people the way Walker has done "threatens to engender massive confusion and foster unfounded reliance interests on the part of the Alaskans who will be given the erroneous impression that they are covered by Medicaid when that is not, in fact, so."

The Washington, D.C., attorneys failed to persuade a Superior Court judge or the Alaska Supreme Court to issue an injunction stopping Walker. The revised version of their complaint excludes that dire warning, so perhaps massive confusion has not been engendered.

The early signs from the courts have not been promising for the legislative point of view. Anchorage Superior Court Judge Frank Pfiffner said in his first decision that "the council has made no clear showing of success on the merits" of the case.

In his Aug. 28 ruling, Pfiffner said that while legislators predicted that the system would "careen into chaos" when expansion took place, he saw no evidence that would happen. And if it did, he said, there was a simple solution -- the state could opt out of the program.

Given the enormous financial challenges facing the state, this lawsuit ought to be abandoned, even with the $250,000 already committed to the D.C. lawyers. As a lawsuit over a narrow procedural question, the case does not address the future of Medicaid or the merits of providing health coverage to more Alaskans. That much is certain.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints.

Dermot Cole

Former ADN columnist Dermot Cole is a longtime reporter, editor and author.