Matt Bevin's attempt to sue Kentuckians over Medicaid plan is rejected

Deborah Yetter | Courier Journal

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FRANKFORT, Ky. — A federal judge in Frankfort has rejected Gov. Matt Bevin's effort to sue 16 of his own constituents in a dispute over his plan to overhaul the state's Medicaid program, adding new rules such as work requirements and monthly premiums.

It is the latest setback involving Medicaid for Bevin, a Republican whose initial plan to reshape the state's health plan for low-income and disabled individuals was rejected June 29 by a federal judge in Washington, D.C.

On Monday, U.S. District Judge Gregory Van Tatenhove dismissed a lawsuit Bevin filed in Frankfort against the 16 Kentuckians who challenged his Medicaid changes in the Washington lawsuit.

Van Tatenhove's ruling was praised by a top lawyer with the National Health Law Program, among a coalition of health law advocates who filed the successful challenge to Bevin's plan in Washington.

More: Federal judge strikes down Matt Bevin's effort to overhaul Medicaid

"The judge’s decision dismissing the governor’s case is straightforward and legally sound," said Jane Perkins, the program's legal director. Perkins added that if further proceedings are necessary on behalf of the 16 individuals, "our clients can consider their legal options without fearing the retribution from their governor.”

Bevin spokeswoman Elizabeth Kuhn released a statement saying the case was dismissed on "procedural grounds and did not address the substance of the case" but added the administration believes the matter should be "considered in Kentucky by a Kentucky judge."

She added: "We respect today's decision by the court and will continue to pursue the case in Washington D.C."

Van Tatenhove dismissed Bevin's lawsuit after finding the administration lacked "standing," or a sufficient basis, for bringing the case against 16 Kentuckians who had filed the legal challenge to the Medicaid changes.

"Not all disputes are capable of federal judicial review," Van Tatenhove wrote in a 12-page opinion. "Federal courts are limited in their jurisdiction and they can only hear cases where the plaintiff can establish jurisdiction. Here, the Commonwealth failed to do so."

Bevin's countersuit in Frankfort argued that "liberal interest groups" filed the case outside Kentucky and "failed to include the Commonwealth."

"We cannot sit idly by while the Commonwealth's plan is debated in an out-of-state courtroom," Bevin's general counsel, M. Stephen Pitt, said in a statement when the countersuit was filed. The lawsuit asked that the dispute be heard in Kentucky instead of Washington.

Also: Kentucky enacts, then drops Medicaid copays in surprise reversal

The Bevin administration filed its lawsuit in Frankfort on Feb. 19, about a month after a coalition of health law advocates filed the initial challenge to Bevin's Medicad changes in Washington. Also representing the plaintiffs are the Kentucky Equal Justice Center and the Southern Poverty Law Center.

On June 29, ruling in favor of the 16 individuals, U.S. District Judge James Boasberg of Washington struck down Bevin's plan.

Boasberg, a 2011 appointee of former President Barack Obama, a Democrat, found that approval of Kentucky's plan by the Trump administration conflicts with federal Medicaid law that created the federal-state health plan to provide coverage for low-income, vulnerable citizens.

The Washington judge, in a 60-page opinion, vacated the Trump administration's approval of Bevin's plan and sent it back for further review to the federal government, which provides the majority of funds for state Medicaid programs. That review is underway.

In dismissing Bevin's lawsuit in Kentucky, Van Tatenhove found Kentucky officials failed to meet the federal threshold of proving they had "standing," or legal grounds to bring their case by showing Kentucky could somehow be harmed by their actions.

Van Tatenhove is a former U.S. attorney for the Eastern District of Kentucky and was nominated to the federal bench in 2005 by former President George W. Bush, a Republican.

Monday's ruling comes just two days after the federal government closed a 30-day public comment period on Bevin's proposed changes under a five-year "waiver" that would allow him to substantially revise the program for some of the 1.4 million Kentuckians it covers.

Under Bevin's changes, aimed largely at "able-bodied" adults added under the expansion of Medicaid under the Affordable Care Act, those affected would have to pay monthly premiums of $1 to $15 and prove they work, volunteer or do other "community engagement" activities at least 20 hours a week.

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The plan also eliminates basic dental and vision coverage for those affected by the changes, though individuals could earn points toward purchasing such care with a "My Rewards" system through activities such as volunteering or taking online classes.

Bevin has said such changes are necessary to get people more engaged in their health care and less dependent on government programs. Health advocates have argued most of the people who would be affected by the changes already work at low-wage or part-time jobs that don't provide health insurance.

In vacating the Trump administration's initial approval of the plan, Boasberg found the federal government failed to consider the fact that an estimated 95,000 people would lose Medicaid coverage under the changes. The judge also found federal officials failed to show they considered previous public comments on the plan.

Last month the federal government said it would seek additional comments through Aug. 18 on what is essentially the same plan it had already approved in January.

More than 11,500 comments were submitted in the 30-day period that ended Saturday, said Emily Beauregard, executive director of Kentucky Voices for Health, a coalition of advocacy groups.

That compares to just 3,000 public comments submitted during the first round of public comments prior to the initial approval of the Bevin plan, she said.

Advocates said they haven't been able to analyze the latest comments. But Beauregard said those opposed to the changes appear to outweigh those in support of them.

Deborah Yetter: 502-582-4228; dyetter@courierjournal.com; Twitter: @d_yetter. Support strong local journalism by subscribing today: courier-journal.com/deborahy.