By Bobby Harrison/NEMS Daily Journal
JACKSON – The Division of Medicaid, which does not have legislative authority to exist past June 30, cannot be run solely by Gov. Phil Bryant, according to an opinion issued Wednesday by the office of Attorney General Jim Hood.
Hood issued the official opinion Wednesday in response to an inquiry by Rep. Cecil Brown, D-Jackson. The Republican Bryant had said earlier that if the federal-state health care program was not reauthorized and funded by the Legislature for the new fiscal year, beginning July 1, that he would try to run the agency by executive order and dared anyone to take him to court and try to shut down a program providing health care to 640,000 Mississippians – the elderly, disabled and poor pregnant women and poor children.
In Wednesday’s decision, the attorney general’s office said, the opinion was the same as it was in 2009 when Medicaid also faced repeal because of legislative action.
“We know of no intervening changes in the law that would allow the governor to recreate an agency expressly repealed by the Legislature or to simply shift functions delegated to a repealed agency to another existing agency or to other employees within the office of the governor,” said the opinion.
“Likewise, we found no intervening authority that would allow the governor to expend funds not appropriated by the Legislature.”
When asked to respond to Hood’s opinion, Bryant spokesman Mick Bullock said, “that’s all it is, his opinion.”
An attorney general’s opinion does not carry the weight or law or of a judicial ruling, but does legally protect public officials who adhere to the opinion.
During the 2013 session, reauthorization and funding of the health care agency got caught up in the fight over whether to expand Medicaid to cover those earning up to 138 percent of the federal poverty level as is allowed under a new federal law.
Bryant is expected to call a special session before July 1 for the Legislature to consider whether to fund and reauthorize the program. Some believe the same issue – expanding the program – could again be an issue during the special session.
But because of an Ethics Commission ruling last week saying legislators who work for health care providers do not have a conflict of interest by voting to fund and to reauthorize the program, it is believed there will be enough votes to fund the existing program. But there may not be the three-fifths majority needed to reauthorize the program.
If it is not reauthorized, according to Hood’s opinion, it could create chaos.
In 2009 when the agency faced the possibility of repeal because of a legislative fight over whether to impose an additional tax on hospitals to help fund the Medicaid program, the attorney general’s office opined “a governor cannot create or recreate a state agency that has been repealed by operation of law, nor can a governor divert funds which may be appropriated to a statutorily repealed agency to some other agency.”