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Court hears arguments on health care cutoff


Gov. Robert L. Ehrlich Jr. acted within the budgeting powers of Maryland's chief executive when he eliminated a health care benefit for low-income immigrant children, attorneys for the administration told Maryland's highest court yesterday.

Lawyers for 13 immigrant families countered that when Ehrlich eliminated the state's $7 million medical assistance program in July, he discriminated against noncitizens, violating the state constitution's equal protection clause.

Judges of the Maryland Court of Appeals peppered both sides with questions throughout the hourlong arguments, the latest skirmish in a yearlong battle over health care for about 3,000 legal permanent resident children statewide.

The administration has said that it eliminated the Medicaid program to save costs.

Last fall, the Maryland Legal Aid Bureau and Bethesda attorney Douglas M. Bregman filed a lawsuit in Montgomery County on behalf of the families. In January, a Montgomery Circuit Court judge sided with the children, ordering the state to cover their health care costs dating back to July.

The administration appealed the order, and the Court of Special Appeals stayed the lower court's decision until the arguments were heard yesterday by the state's highest court.

Meanwhile, Ehrlich allocated $3 million in the coming year's budget for grants to some local health departments to help cover the children. And the General Assembly passed legislation this year requiring the governor to earmark at least $3 million for coverage in future budgets. Ehrlich signed the bill this month.

Assistant Attorney General Margaret Ann Nolan argued that Ehrlich acted within his bounds and that the question of budget priorities was a policy issue, not a legal one.

"If the court is going to engage in this kind of debate, there is nothing to prevent any other group who feels it has been discriminated against from coming before the court and asking it to rework the budget," Nolan said.

Bregman maintained that the lower court was correct when it ruled that the governor had mistreated a protected class.

"The governor said, 'I'm not going to protect them; I'm not going to take care of them,'" he said. "The fact is, there is a group that was denied their rights when money was taken away by the governor, and this does not pass strict scrutiny."

Both sides noted that legal arguments in the case could be traced to Congress' welfare reform act of 1996. The law prevented states from using federal Medicaid funds for legal permanent immigrants who have lived in the United State less than five years. The legislation left it to individual states whether to supplement the program with state funds, and Maryland was among a handful that did.

Chief Judge Robert M. Bell asked the attorneys for the children whether the law would have been violated if Maryland had decided not to continue the coverage after 1996.

"Suppose it had acted the other way. Would you be here?" he asked.

"I don't know, your honor," said Hannah Lieberman, a Legal Aid attorney.

Lieberman wondered what would have happened if the program had been geared toward African-Americans and had been suddenly eliminated.

Judge Dale R. Cathell responded, "You keep throwing out black people, and that's quite offensive to me," he said. "Immigration is far different from the problems this country has had with segregation and discrimination."

Altering her approach, Lieberman argued that when Maryland began covering legal immigrant children with state funds, it established a right that could not be taken way without a compelling reason.

"Sure, the executive can authorize budget authority broadly, as long as it does not infringe on the rights of a protected class," she said.

While the court considers the case, the children remain without routine health coverage, said Legal Aid attorney Regan Bailey after the arguments.

One child, 8-year-old Brayan Herrera, whose family emigrated from Mexico, has a complicated blood disorder. His father is a construction worker and his mother a housekeeper.

Brayan has been able to get specialized screenings from a program for seriously ill children but has no medical coverage for routine visits to doctors, which are vital to his health, Bailey said.

"He needs regular primary care visits," she said. "The mother doesn't have the money to afford it. That's not health care."

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