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Alaska legislative committee allows Medicaid lawsuit to proceed

  • Author: Tegan Hanlon
  • Updated: September 28, 2016
  • Published September 28, 2015

The Alaska Legislature's lawsuit to block Gov. Bill Walker's Medicaid expansion will continue in state Superior Court after a House-Senate committee met behind closed doors Monday to discuss the litigation, but declined to stop it with a public vote.

"Personally, I don't believe that litigation is a productive course of action," Rep. Mike Hawker, R-Anchorage, said after the Joint Legislative Council meeting. "However, as I look at the passion on both sides of this issue, no one is going to be satisfied until litigation is complete." That could take up two years, he said.

In July, with the Legislature adjourned for the interim between sessions, Walker announced he would use his executive powers to accept federal funds and expand Medicaid under President Barack Obama's Affordable Care Act. The Republican-controlled council, which handles legislative business between sessions, voted in August to sue Walker over expansion.

The Legislature asked the court to temporarily halt Medicaid expansion while the underlying lawsuit worked its way through the court system. But two separate courts, including the Alaska Supreme Court, denied that request and low-income Alaskans began enrolling in expanded Medicaid on Sept. 1, as planned.

On Monday, Sen. Gary Stevens, R-Kodiak, said during the Legislative Council meeting, lawmakers posed questions to their attorneys about the lawsuit and "presented a lot of options"on Medicaid expansion, but "there was no consensus on those options."

Stevens, who chairs the council, declined to go into any details because, he said, lawmakers discussed them in executive session. If lawmakers wanted to take an official action, they would have had to go into public session.

The council spent more than two hours in the private meeting Monday before a legislative staff member pulled the "executive session" signs off doors on the first floor of the Anchorage Legislative Information Office. Moments later, Stevens announced the meeting's end.

Sen. John Coghill, R-North Pole, said after the meeting that the Medicaid lawsuit was "on the way to summary judgment." Coghill, one of the original proponents of the lawsuit, said lawmakers asked in the case, "Does the governor have the unilateral authority to put us into a program that has later appropriations to it?

"And I think that's a reasonable question," he said.

Coghill said he could not comment on specifically what lawmakers and attorneys discussed Monday. "Unfortunately, it was all attorney-client privilege," he said.

Earlier this month, lawmakers signed contracts to pay two law firms up to $450,000 to work on the case. One -- Bancroft PLLC -- is based in Washington, D.C., and the other, Holmes, Weddle & Barcott, is based in Anchorage.

Margaret Paton-Walsh, an assistant attorney general and a member of Walker's defense team, said Walker's attorneys had to submit their answer to the Legislature's complaint in Superior Court by Oct. 5. "And then we would expect the Legislature to file a motion for summary judgment," she said.

Rep. Sam Kito III, D-Juneau, the only minority caucus member on the council, said in a statement that several legal opinions have concluded Walker had the legal authority to accept federal funds to expand Medicaid. Under the ACA, the federal government pays all of the costs of Medicaid expansion through 2016 before scaling back to 90 percent by 2020.

The House minority caucus said in the statement it was "disappointed" the council failed to withdraw the lawsuit.

"Flawed reasoning and political games have won out again as the Legislative Council has chosen to continue this wasteful lawsuit that will cost the state nearly half a million dollars, all in an effort to deny health care to thousands of our friends and neighbors," Kito said in the statement.

In response to the statement, Rep. Mike Chenault, R-Nikiski, released his own, saying he was disappointed in the minority caucus' reasoning. He said the lawsuit is not about whether to expand Medicaid, it's about protecting the Legislature's role and "keeping the governor, regardless of party or political persuasion, from being a dictator."

"We are suing the governor for his unilateral and what we believe to be an unlawful expansion of Medicaid under 'Obamacare,'" Chenault said. "We are suing to better delineate the separation of powers ensconced in our Constitution. They're disappointed? I am disappointed that they are the ones choosing to put politics before the institution they ran as candidates to join."

Hawker said after Monday's meeting he has proposed two new bills, both involving Medicaid expansion. One would cut off expansion if the program failed to meet anticipated benefits and expectations, including if more people enrolled in the program than projected. The second bill would prohibit the governor from accepting and spending additional federal money for an existing appropriation item. It "closes the loophole," Hawker said.

Hawker said he intends to introduce those bills during the next legislative session in January.

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