Can Mississippi's Medicaid agency negotiate liability caps with actuarial firms, or does the state constitution prohibit limiting their liability?

Plain-English summary

Section 43-13-117(K) of the Mississippi Code authorizes the Executive Director of the Division of Medicaid, when contracting for actuarial services, to "negotiate a limitation on liability to the state of prospective contractors." Director Snyder asked whether the Division can use that authority without violating Article 4, Section 100 of the Mississippi Constitution, which bars the legislature from remitting, releasing, postponing, or in any way diminishing an obligation or liability owed to the state.

The AG declined to answer the constitutional question. Citing its earlier Capps opinion and Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984), the AG explained that statutes passed by the Mississippi Legislature are presumed constitutional until a court of competent jurisdiction rules otherwise. As of the date of the opinion, the AG was not aware of any court having declared § 43-13-117 unconstitutional, so the statute "remains valid until such time as a court of competent jurisdiction declares it to be unconstitutional or until it is repealed or amended by the Legislature."

The practical effect: the Division of Medicaid can continue to rely on § 43-13-117(K) to negotiate liability limits with actuarial firms unless and until a court holds the statute unconstitutional. The AG did not decide whether such a limit conflicts with Section 100.

What this means for you

If you're the Mississippi Division of Medicaid

Under this opinion, § 43-13-117(K) remains valid and authorizes the Executive Director to negotiate a limitation on a prospective contractor's liability to the state when contracting for actuarial services. The authority is permissive (the statute says the Director "may negotiate"). The AG did not decide whether such a limit conflicts with Section 100; it rested on the presumption that the statute is constitutional until a court rules otherwise.

If you're an actuarial firm bidding on Mississippi Medicaid work

Section 43-13-117(K) authorizes the Division to negotiate a limitation on your liability to the state. The AG declined to say whether that authority survives Article 4, Section 100, noting only that the statute is presumed constitutional until a court holds otherwise, so its validity is an open question the opinion does not resolve.

If you're a state legislator

The opinion does not opine on whether § 43-13-117(K) is constitutional. It states that the statute remains valid until a court of competent jurisdiction declares it unconstitutional or the legislature repeals or amends it.

Common questions

Q: Can the AG declare a statute unconstitutional?
A: Not definitively. AG opinions are advisory and do not bind courts. Only courts can declare statutes unconstitutional. The AG can opine that a statute may be unconstitutional or raises constitutional concerns, but the actual ruling comes from the judiciary.

Q: What does "presumption of constitutionality" mean?
A: When the legislature passes a statute, courts assume it is valid until a party challenges it and a court rules otherwise. The party challenging the statute must overcome the presumption. Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984).

Q: Did the AG decide whether § 43-13-117(K) violates Section 100?
A: No. The AG expressly declined to opine on the statute's constitutionality, explaining that statutes are presumed constitutional until a court of competent jurisdiction rules otherwise.

Q: Can the Executive Director just decide not to use the cap?
A: The statute is permissive. Section 43-13-117(K) says the Executive Director "may negotiate a limitation on liability to the state of prospective contractors," so it authorizes, but does not require, a negotiated limit.

Background and statutory framework

Section 100 of the Mississippi Constitution reads:

No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the Legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the Legislature from providing by general law for the compromise of doubtful claims.

Section 43-13-117(K) provides that "[i]n the negotiation and execution of such contracts involving services performed by actuarial firms, the Executive Director of the Division of Medicaid may negotiate a limitation on liability to the state of prospective contractors."

Director Snyder's question asked the AG to opine on whether using that authority would violate Section 100. The AG declined to reach the constitutional question. AG opinions are advisory and cannot declare a statute unconstitutional; that is for the courts. Resting on the presumption of constitutionality recognized in its Capps opinion and in Mississippi Power Co. v. Goudy, the AG concluded that § 43-13-117 remains valid until a court of competent jurisdiction declares it unconstitutional or the legislature repeals or amends it.

Citations and references

Statutes and constitutional provisions:

• Miss. Code Ann. § 43-13-117(K) (Medicaid actuarial firm liability limitation authority)
• Miss. Const. § 100 (prohibition on legislative diminishment of state obligations)

Case:

• Mississippi Power Co. v. Goudy, 459 So. 2d 257 (Miss. 1984), statutes presumed constitutional

Prior AG opinion referenced:

• MS AG Op., Capps (Sept. 6, 1996), restating the presumption-of-constitutionality doctrine

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/D.Snyder-May-1-2023-Section-43-13-117K.pdf

Original opinion text

May 1, 2023

Drew Snyder, Executive Director
Mississippi Division of Medicaid
550 High Street, Suite 1000
Jackson, Mississippi 39201

Re: Section 43-13-117(K)

Dear Director Snyder:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

Does the Division of Medicaid have the authority under Mississippi Code Annotated Section 43-13-117(K) to diminish the liability of actuarial firms without violating Article 4, Section 100 of the Mississippi Constitution?

Brief Response

To the extent that your question asks us to opine on the constitutionality of Section 43-13-117, we must decline to do so. Statutes passed by the Mississippi Legislature are presumed constitutional until a court of competent jurisdiction rules otherwise. MS AG Op., Capps at 2 (Sept. 6, 1996) (citing Mississippi Power Co. v. Goudy*, 459 So. 2d 257 (Miss. 1984)). As of the date of this opinion, we are not aware that any court has declared Section 43-13-117 unconstitutional. This statute remains valid until such time as a court of competent jurisdiction declares it to be unconstitutional or until it is repealed or amended by the Legislature.

Applicable Law and Discussion

Section 100 of the Mississippi Constitution provides:

No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the Legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the Legislature from providing by general law for the compromise of doubtful claims.

According to Section 43-13-117(K), "In the negotiation and execution of such contracts involving services performed by actuarial firms, the Executive Director of the Division of Medicaid may negotiate a limitation on liability to the state of prospective contractors."

Section 43-13-117(K) remains valid until such time as a court of competent jurisdiction declares it to be unconstitutional or until it is repealed or amended by the Legislature.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General