Opinion Number ( 2003 )

Dear Rep. DeWitt and Sen. Hainkel:

We were requested to clarify Op.Atty.Gen. No. 03-0241, which pertains to the settlement entered into by the Department of Health and Hospitals ("DHH") in connection with the lawsuit entitled Lee Barthelemy, et al.v. Louisiana Department of Health and Hospitals, Civ. Action No. 00-1083, Section "N" Mag. 3, U.S. District Court for the Eastern District of Louisiana. The settlement agreement required DHH to implement certain Medicaid state plan options. Your specific question is: Who determines the amount of State funds necessary to implement the settlement, the legislature or DHH?

As stated in our previous opinion, except as otherwise limited by the Constitution, the legislature is granted absolute power over the finances of the State. La. Const. Art. III, Sec. 16; Art. VII, Sec. 10. In this instance we are unaware of any provision of the Louisiana Constitution mandating that the DHH plan be funded or mandating the amount of that funding. Accordingly, the discretion to determine what amount to fund is vested in the legislature. Louisiana Association of Educators v.Edwards, 521 So.2d 390 (La. 1988); State ex rel. Assistant DistrictAttorneys Association v. Theriot, 242 So.2d 49 (La. 1970); Segura v.Louisiana Architects Selection Board, 353 So.2d 330 (La. 1977).

Thus, under the Louisiana Constitution, the legislature and only the legislature has the authority to determine whether or not it will fund, and at what level, the plans DHH agreed to implement under theBarthelemy settlement. However, we decline to predict what action, if any, a federal court would take in the event that there were not sufficient funds appropriated to implement the settlement agreement.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: ________________________________ MARTHA S. HESS Assistant Attorney General

RPI/MSH

DATE RELEASED: June 17, 2003