Group asks judge to remove ND from ACA lawsuit

A group of North Dakota physicians and health care consumers are asking a judge to order the Attorney General’s Office to withdraw from Texas-led litigation that aims to invalidate the Affordable Care Act.

Last February, Attorney General Wayne Stenehjem enjoined North Dakota in multi-state litigation to have the ACA declared unconstitutional.

Petitioners are asking a South Central District Court judge for a Writ of Mandamus to force Stenehjem to back away from the case on the grounds he failed to follow legal requirements necessary to commit North Dakota to the litigation.

Petitioners are Drs. Kimberly Krohn of Minot and Eric Johnson of Grand Forks; Anthony Arnold of Grand Forks, who receives benefits under the Affordable Care Act; Krisanna Peterson of Bismarck, who has a child with pre-existing medical conditions; and 20-year-old Wyatt Ell, a Burleigh County resident who is insured under his parents’ policy. Bismarck attorney Sarah Vogel also signed an affidavit of support, although not a petitioner.

Petitioners claim Stenehjem has not filed a motion allowing him to represent North Dakota in the litigation, as required by Texas rules.

They also argue that under North Dakota law, attorneys with the Texas Attorney General’s Office cannot represent the state unless Stenehjem appoints them as special assistant attorney generals for North Dakota, which he has not done and cannot do without consulting with the affected state agency.

Although the Texas litigation intends to nullify the N.D. Legislature’s directive to the state Department of Human Services to implement Medicaid Expansion, Stenehjem didn’t join the Texas litigation on behalf of the Department of Human Services, petitioners argue in their brief.

The Affordable Care Act, passed in 2010, provided for Expanded Medicaid, which North Dakota adopted in 2013.

In court records, they say Stenehjem is “required to defend the laws of North Dakota, including the Medicaid Expansion adopted by the legislature.” He also “has a duty to defend state laws and lacks legal authority to bring actions that threaten or jeopardize North Dakota state laws,” according to their court filing.

The Attorney General’s Office had not responded to a request for comment as of Thursday afternoon.

Bismarck attorney Thomas Dickson, who represents the petitioners, said Stenehjem failed to follow any rules in enjoining North Dakota to an out-of-state lawsuit.

“If he wants to address the constitutionality, he’s free to do it here in North Dakota, in front of the citizens of North Dakota,” Dickson said.

The petitioners ask for no monetary compensation other than court costs.

In her affidavit, Krohn states many of her patients have obtained medical treatment through insurance coverage under the Affordable Care Act.

“The elimination or loss of the coverage available to my patients under the Affordable Care Act would reduce the quality of health care in North Dakota. It would reduce the quality of health care to my patients and it would harm my ability to provide medically necessary health care to my patients,” she wrote. As a parent of adult children with pre-existing conditions, she added, “The Affordable Care Act provides parents of children with pre-existing conditions peace of mind, knowing that their children cannot be discriminated against in the health marketplace.”

Byron Dorgan, a former North Dakota senator at the time of passage of the ACA, also called this week for Stenehjem to remove the state from the litigation.

“I am really disappointed that the Attorney General has joined the other states in trying to invalidate a piece of health care legislation that’s so important,” Dorgan said. “Who did he consult on this? Did he ask North Dakotans? Did he take a poll? Did he take a vote? Did he visit with doctors, patients or did he decide just to do it because 19 other states that didn’t like the Affordable Care Act did it? I think it’s just the wrong thing to have done.”

Dorgan said he particularly is concerned if ACA is overturned and Americans lose coverage for pre-existing conditions. Although Republicans have said they support continuing coverage for pre-existing conditions, he noted Republicans previously pushed legislation that would have enabled states to obtain waivers to avoid requiring that health plans offer that benefit.

“My hope would be that the Attorney General would withdraw the state of North Dakota from that suit. It’s not in the state’s interest to be part of that. Being part of it puts at risk a lot of very important health care provisions in North Dakota,” he said. “I was involved in writing pieces of this bill that I thought were really, really important and I don’t want to see them go away. I think they are good public policies for the country.”

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