By Bobby Harrison/NEMS Daily Journal
JACKSON – Any effort by Republican Gov. Phil Bryant to run the Division of Medicaid after June 30 without a legislatively approved budget or authorization appears to be ripe with problems.
“The whole thing is messy,” said House Speaker Pro-Tem Greg Snowden, R-Meridian, who conceded at some point “a whole lot of things must be addressed” by the Legislature.
The 2013 session ended without the Legislature passing bills to fund Medicaid or to reauthorize it for the new fiscal year, which begins July 1. The thought was that the Legislature would come back in special session before July 1 to address those issues.
But Bryant has said he would not call a special session unless there is an agreement. He said last week that if House Democrats continue to block funding and reauthorization until there is a vote on expanding the program as allowed under federal law, he will try to run the agency by executive order.
Any attempt to run the $5.4 billion state-federal health care agency without legislative funding would be fraught with constitutional questions.
A 2009 legal opinion by the office of Attorney General Jim Hood pointed out the state Supreme Court had “held emphatically that the power of the purse is exercised by the Legislature.”
The opinion said the state’s highest court has referred to the Legislature “as the sole repository of power to make appropriations of money to be paid out of the state treasury.”
But the Hood decision did say that even with the lack of a legislatively approved appropriation, certain vital entities expressly described in the state Constitution must continue to receive “basic” funding to carry out their constitutional mandate, such as the courts, governor’s office, and even schools.
In 2009, when Hood issued the opinion, the Legislature had adjourned the session without funding any state agency. It did not finally pass a budget for the Division of Medicaid until about two hours before the fiscal year ended on June 30.
At the time, Hood was speaking of trying to obtain a court order to keep the Division of Medicaid in operation, though no one knew exactly what would have happened if the agreement had not been reached.
This year Snowden said the governor is essentially saying, “If you want to sue me to prevent me from keeping people in the nursing homes, then have at it … He is saying I am going to do what I can to keep this going.”
Kim Wiggins, a spokeswoman for the Department of Finance and Administration, without speaking on the Medicaid issue, said the authority of DFA to spend money on behalf of an agency “is determined by the appropriations bill.” She said the amount of funding established by the appropriations bills is programmed into the DFA computer system before the new fiscal year begins and that establishes how much each agency can spend. Normally, the appropriations bills also detail how much can be spent in each area, such as on salaries, travel and equipment.
Even if Hood or someone else got a court order allowing the governor to take funds out of the treasury to keep Medicaid afloat, there still would be other problems with running the health care program without legislative authority.
Part of what died when the 2013 session ended were taxes imposed on hospitals and nursing homes to draw down federal funds for the operation of the agency. Under the current program, the federal government provides roughly $3 for every $1 spent by the state on the Medicaid program.
Part of the state money used to draw down federal funds comes from taxes totaling $280 million on hospitals and from about $40 million on nursing homes. Those taxes stand repealed if the Legislature does not pass a bill reauthorizing them.
Snowden said he does not believe the entities would be able to pay “a voluntary tax” if they are not reauthorized by the Legislature.
“The tax would be gone,” said Rep. Steve Holland, D-Plantersville. “…It will not work without legislative authorization.”
The program currently provides health care for about 640,000 Mississippians, primarily the elderly, disabled, poor pregnant women and poor children.