Hood says governor cannot legally operate Medicaid

medicaidJACKSON — Mississippi’s governor does not have the legal authority to operate the Division of Medicaid by executive order, Attorney General Jim Hood said in a nonbinding legal opinion issued Wednesday.

The opinion from Hood, a Democrat, contradicts Republican Gov. Phil Bryant. The governor has said for weeks that he thinks he can run the program himself, even if lawmakers don’t vote to keep it alive beyond June 30, the end of the current budget year.

Some lawmakers say the attorney general’s opinion could increase pressure on Bryant to call the Legislature into special session by next week to reauthorize Medicaid, which covers 644,000 low-income, needy or disabled Mississippians.

But Bryant spokesman Mick Bullock had only a short response to what Hood wrote: “That’s all it is, his opinion.”

Hood issued his seven-page opinion in response to questions from Democratic Rep. Cecil Brown of Jackson, who has been working with other House Democratic leaders on Medicaid issues. Attorney general’s opinions are not legally binding but provide guidance for state leaders.

During their three-month session that ended in April, lawmakers locked up in a partisan dispute over whether to expand Medicaid, as allowed under the federal health law signed by President Barack Obama. Bryant and Republicans who control the House and Senate said the state can’t afford to add people to an entitlement program, while Democrats said expansion would boost the economy and help 300,000 currently uninsured people. In the past few weeks, Democrats have proposed a twist on Medicaid expansion — allowing low-income people to use federal subsidies to buy health insurance through a government-sponsored exchange, or online marketplace.

Because of the dispute over Medicaid expansion, lawmakers did not reauthorize the existing Medicaid program or set its budget for the fiscal year that begins July 1.

Medicaid is one of several state programs that come up for legislative review and reauthorization every few years.

In the document Wednesday, Hood relied largely on a legal opinion his office issued in 2009 during another dispute over the reauthorization of Medicaid. He said that in the past four years, there have been no changes to state laws or rulings from the state Supreme Court that would take away the Legislature’s responsibility for keeping Medicaid alive.

Hood wrote Wednesday that without legislative action to keep Medicaid in business beyond July 1, “the Division of Medicaid and the position of its Executive Director will no longer exist.” He also wrote that “it is the opinion of this office that the Governor cannot convert DOM’s employees to employees of his executive office staff.”

The House Democratic leader, Rep. Bobby Moak of Bogue Chitto, said the attorney general’s opinion makes clear that a governor doesn’t have the power to unilaterally run a program whose legislative authorization has expired, and that a governor can’t dip into the state treasury for funding that hasn’t been approved.

“He appears to be very much hamstrung, the way things sit today,” Moak said of the governor.

Bryant is in Europe this week for the Paris Air Show and is expected to return to Mississippi late Friday or early Saturday, Bullock said.

“I’m not going to speculate on any potential special session,” Bullock told The Associated Press in an interview hours before the attorney general’s opinion was made public.

The Division of Medicaid has not notified recipients or providers, such as hospitals and nursing homes, that the program is set to expire June 30 because Bryant has said he intends to run the program, Medicaid executive director David Dzielak told AP today before the attorney general’s opinion was issued.

“We continue to hope that our elected officials will get together and work out something regarding reauthorization and funding before July 1,” Dzielak said. “If they don’t, we fully believe the governor has the authority to run the agency by executive order…. If we really felt like we were going to shut down services, we would give notification.”

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