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Attorney general's office says Medicaid expansion petition flawed but fixable

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The Oklahoma Supreme Court should reject a proposed initiative petition to expand Medicaid because the summary contradicts the petition regarding income eligibility for the public health insurance program, the Oklahoma attorney general’s office argued Thursday.

The petition is otherwise constitutional, the attorney general’s office said in a brief to the court, which asked for the AG’s views in the matter.

“The substance of the Petition at issue is legally valid and challenges to its constitutionality must be rejected, but the gist is inaccurate and therefore should be struck,” the AG’s brief states.

“This will allow Petitioners to correct the legal flaws in the gist, file a new petition, and circulate it with ample time before the 2020 general election, while also rejecting or avoiding new restrictions proposed by Protestants that will permanently burden the right to initiative and referendum.”

Backers of the petition also filed a brief with the court on Thursday urging the Supreme Court to uphold the petition’s wording and its constitutionality.

The Oklahoma Supreme Court is set to hear oral arguments in the case on June 18 and render a decision some time later.

The petition to expand Medicaid was filed in April on behalf of two state residents. The proposed question would amend Oklahoma’s constitution to expand the federal-state health insurance program “to certain low-income adults between the ages of 18 and 65 whose income does not exceed 133 percent of the federal poverty level.”

The petition seeks to put the question before Oklahoma voters in the next general election, which would be November 2020. Supporters would have to gather nearly 178,000 signatures to qualify the question for the ballot.

Oklahoma is one of 14 states that has not expanded Medicaid under the Affordable Care Act. The expansion would provide an estimated $900 million a year in federal money and cost over $100 million a year in state funds.

The Oklahoma Council of Public Affairs, which opposes Medicaid expansion, filed a protest earlier this month claiming the gist — or summary — of the petition was legally inadequate because it states that Medicaid would be expanded to include adults at or below 133 percent of the federal poverty level “as permitted under the federal Medicaid laws.”

“Because federal law only permits Medicaid expansion for those adults at or below 138 percent of the federal poverty level, this statement is legally inaccurate,” the OCPA protest states.

Backers of the petition argued Thursday that the formula for Medicaid expansion is complicated but that the gist of the petition was accurate.

“The question would expand Medicaid up to 133 percent of the federal poverty level,” they stated in their brief.

“This methodology includes, among many other things, a 5 percent income disregard, which is why some commentators casually refer to expansion as covering those up to ‘138 percent of FPL.’”

The attorney general’s office agreed with the OCPA protest on that point, saying that the petition would have the practical effect of expanding Medicaid to certain individuals with income below 138 percent of the poverty line.

The gist, however, “does not reflect this practical reality” in using the income level of 133 percent of the poverty line, the AG argued.

The attorney general’s office and those who filed the petition argued Thursday that the court should reject the think tank’s attacks on the constitutionality of the petition.

The OCPA claims the petition “seeks to constitutionalize a massive entitlement program and would give the federal government, not Oklahoma, the authority to control eligibility and the cost borne to Oklahoma.”

The attorney general’s office agreed that the petition would restrict the state Legislature’s authority. But, the AG argued, the state constitution expressly provides for voters to limit the Legislature’s authority.

Chris Casteel

Chris Casteel began working for The Oklahoman's Norman bureau in 1982 while a student at the University of Oklahoma. Casteel covered the police beat, federal courts and the state Legislature in Oklahoma City. From 1990 through 2016, he was the... Read more ›

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