Ehrlich v. Perez

Citation394 Md. 691,908 A.2d 1220
Decision Date12 October 2006
Docket NumberNo. 137, Sept. Term, 2005.,137, Sept. Term, 2005.
PartiesRobert L. EHRLICH, Jr., Governor, et al. v. Flor PEREZ, et al.
CourtCourt of Special Appeals of Maryland

Margaret Ann Nolan, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of MD, Steven M. Sullivan and Joel Tornari, Asst. Attys. Gen., on brief), Baltimore, MD, for Appellants.

Hannah Lieberman (Regan Bailey of Legal Aid Bureau, Inc, Riverdale, MD, on brief); Douglas M. Bregman (Heather Libman Kafetz and Catherine Harrington of Bregman, Berbert, Schwartz & Gilday, L.L.C., Bethesda, MD; Dan Friedman of Saul Ewing, L.L.P., Baltimore, MD, all on brief), for Appellees.



Pursuant to Maryland Code (1973, Repl. Vol. 2002), Courts and Judicial Proceedings Article, § 12-303(3)(i),1 Appellants (Defendants below), the Honorable Robert L. Ehrlich, Jr., the Honorable S. Anthony McCann, and the Honorable Nancy Kopp, each sued in his or her official capacity as Governor of Maryland, Secretary of the Maryland Department of Health and Mental Hygiene ("DHMH"), and State Treasurer, respectively, sought appellate review of a preliminary injunction issued by the Circuit Court for Montgomery County. The injunction essentially ordered the payment of medical assistance benefits to Appellees (Plaintiffs in the Circuit Court), comprised of Flor Perez and Ana Perez (minors, by their father and next friend, Fidel Perez); Brayan Herrera, Osvaldo Herrera, and Leslie Herrera (minors, by their mother and next friend, Martha Herrera); and Gabriel Ntitebem, Henry Anu, and Vitalis Atemafac (minors, by their mother and next friend, Ajong Pamela Nkahinjo),2 under the Medical Assistance Program, Maryland Code (1982, Repl. Vol. 2005), Health-General Article, § 15-103.3

Appellees, all residents of Maryland, are lawful permanent resident aliens of the United States who immigrated from their respective foreign countries on or after 4 August 2003. Section 15-103(a)(2)(viii) provides that the State [s]hall provide, subject to the limitations of the State budget and any other requirements imposed by the State, comprehensive medical care and other health care services for all legal immigrant children under the age of 18 years and pregnant women who meet Program eligibility standards and who arrived in the United States on or after August 22, 1996, the effective date of the federal Personal Responsibility and Work Opportunity Reconciliation Act [8 U.S.C. § 1601, et. seq. (1996) (hereinafter "PRWORA").]

The Circuit Court granted the preliminary injunction based, in part, upon its conclusion that Appellees likely would prevail on their claim that the failure of the State of Maryland to appropriate funds for Fiscal Year ("FY") 2006 (1 July 2005 through 30 June 2006) for medical benefits, as provided under § 15-103(a)(2)(viii), to resident alien children and resident alien pregnant women in Maryland who immigrated to the United States on or after 22 August 1996, while funding similar benefits to citizens and resident aliens in Maryland who immigrated lawfully before 22 August 1996, violated Article 24 of the Maryland Declaration of Rights.4 Appellants filed a timely appeal with the Court of Special Appeals. We issued, on our initiative, a writ of certiorari to the Court of Special Appeals, Ehrlich v. Perez, 391 Md. 577, 894 A.2d 545 (2006), before our colleagues on the intermediate appellate court could decide the merits of the case, in order to consider:5

1. Whether Appellants violated Article 24 of the Maryland Declaration of Rights by not appropriating monies for the State-funded Medical Assistance Program to resident alien children and pregnant women who immigrated to the United States on or after 22 August 1996 (a group not otherwise covered under federal analogous law — Medicaid) where federal law, enacted under the authority held by the Federal Government over national immigration policy, expressly provides the States with complete discretion to provide wholly State-funded medical benefits to this class of legal resident aliens.

2. Whether the Circuit Court was authorized to order, through a preliminary injunction, Appellants to reinstate medical benefits to Appellees, as prescribed under the Medical Assistance Program, both retrospectively from 26 October 2005, the date the original Complaint and Motion for Preliminary Injunction were filed, back to 1 July 2005 and prospectively from 26 October 2005 until final disposition of the case.


In its written memorandum opinion explaining why it issued the preliminary injunction, the Circuit Court summarized the relevant factual and legislative background as follows, in pertinent part:

* * *


Based solely on the original Complaint filed on October 26, 2005, the Plaintiffs are comprised of Flor Perez and Ana Perez (by their father and next friend, Fidel Perez); Brayan Herrera Osyaldo Herrera, and Leslie Herrera (by their mother and next friend, Martha Herrera); and Gabriel Ntitebem, Henry Anu, and Vitalis Aternafac (by their mother and next friend, Ajong Pamela Nkahinjo). They have filed their original Complaint against the Defendants, who are comprised of the Governor (Robert L. Ehrlich, Jr.), the Secretary of the Department of Health and Mental Hygiene (S. Anthony McCann), and the Treasurer (Nancy Kopp) for one count of Violation of Maryland Declaration of Rights. On the day of the scheduled hearing for the Request for a Preliminary Injunction, the Plaintiffs filed an Amended Complaint, identifying five additional Plaintiffs. However, for purposes of this Preliminary Injunction, the Court viewed the case in light of the facts as set forth in the original Complaint.

Generally, the Plaintiffs' Complaint alleges that the State of Maryland, through Governor Ehrlich's budgetary authority, discriminated and otherwise unconstitutionally denied certain persons living in the State access to health care [under § 15-103, called the Medical Assistance Program]. The Plaintiffs[] further contend that the State relied upon the classification of "alienage" in making their decision to deny health care coverage of these individuals.

On April 7, 2005, the General Assembly enacted the fiscal year 2006 Budget. In mid-June, the Department of Health and Mental Hygiene mailed a notice to all resident alien recipients, including the Plaintiffs named herein, to inform them that their current benefits would end starting June 30, 2005 as a result of the Governor's decision to eliminate such funding. The notice provided for a right to appeal the termination of coverage to the Office of Administrative Hearings (OAH).6 The notice also informed the recipients that there were alternative options for publicly subsidized health care coverage. Specifically, the recipients were advised to apply to their local health department for Maryland Children's Health Program (MCHP) coverage if they are under 19 years of age. The Department also notified the local health departments in each jurisdiction that funding for this coverage group had been eliminated from the fiscal year 2006 Budget and thereby instructed the local departments to assist persons in this group with finding similar care wherever possible.

Despite the Department's efforts, Plaintiffs, and others similarly situated, have been precluded as a result of their own indigence. Coupled with their inability to pay, most of these programs are unable to provide such necessary services that were previously covered under the Medical Assistance Program. Often times these alternative programs are simply closed to new patients.


In order to thoroughly understand the issues at hand, it is imperative that this Court outline the Federal and State statutory programs upon which the Plaintiffs previously relied for their health care services.

i. Medicaid

Medicaid is a federal program established by Title XIX of the Social Security Act. See 42 U.S.C. §§ 1396-1396v. "Congress has authorized grants to states for the purpose of enabling each state, as far as practicable under the conditions in such state, to furnish medical assistance to persons who are eligible thereof." 81 C.J.S. Social Security and Public Welfare § 247. Eligible individuals include certain indigent persons, such as the "aged," "blind" and "disabled." Medicaid also provides coverage for pregnant women and children who fall below a certain income threshold, in addition to covering medically needy persons, such as elderly persons who are confined to nursing homes and whose medical expenses have exhausted their other assets. If a state chooses to take part in the federal Medicaid program, it must comply with the requirements set forth in Title XIX and its implementing regulations in order to receive federal matching funds. In Maryland, the federal matching fund is about 50% of the total expenditures. See Federal Matching Shares for Medicaid, 68 Fed. Reg. 67676 (Dec. 3, 2003).

ii. Federal Welfare Reform Act

On August 22, 1996, Congress enacted legislation that significantly impacted Medicaid coverage for select individuals residing in the U.S. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, generally know as the "Welfare Reform Act," was a program designed to further the national immigration policy of "self-sufficiency." 8 U.S.C. § 1601(1). The statement of national policy concerning welfare and immigration reads, in part: "It is a compelling government interest to remove the incentive for illegal immigration provided by the availability of public benefits." 8 U.S.C. § 1601(6).

The Act ultimately rendered non-qualified aliens ineligible for Federal Medicaid benefits, while also creating two categories for qualified aliens. Ali[e]ssa v. Novello, 96 N.Y.2d 418, 426, 754 N.E.2d 1085 (2001); see also 8 U.S.C. § 1613....

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