A federal lawsuit challenging Kentucky’s plan to overhaul Medicaid has been re-filed against the Trump administration, according to an announcement Tuesday.
The lawsuit was filed in Washington D.C. by more than a dozen Kentucky Medicaid beneficiaries and takes issue with the November re-approval of work requirements and “unreasonable premiums” that are part of Kentucky’s Section 1115 Medicaid waiver. The program, also known as Kentucky HEALTH, is set to start this spring.
“Kentucky HEALTH will harm Kentuckians across the state — custodians and cashiers, ministers and morticians, fast-food workers, musicians, students, caregivers, and retired workers — who need a range of health services, including check-ups, diabetes treatment, mental health services, blood pressure monitoring and treatment, and vision and dental care,” according to the lawsuit.
The plaintiffs also argue that greenlighting Kentucky’s waiver and allowing other states to proceed with similar demonstration projects constitutes an abuse of authority.
U.S. Health and Human Services Secretary Alex Azar “is working to effectively rewrite the Medicaid statute, ignoring congressional restrictions, overturning a half century of administrative practice, and threatening irreparable harm to the health and welfare of the poorest and most vulnerable in our country,” the lawsuit states.
U.S. District Judge James Boasberg ruled last June that the decision by the Trump administration to approve the waiver in January 2018 was “arbitrary and capricious” and sent it back to the U.S. Department of Health and Human Services for further review.
That put the brakes on the state’s plan to launch the program July 1, 2018, but the U.S. Centers for Medicare & Medicaid Services re-approved the waiver in November after a period of public comment that drew largely critical comments from people and organizations opposed to the plan.
The new lawsuit was filed in the same court and seeks to have the latest approval declared to be arbitrary and capricious, according to a news release from the plaintiffs, who are represented by the Kentucky Equal Justice Center, the Southern Poverty Law Center (SPLC) and the National Health Law Program.
“The Trump administration’s desire to explode Medicaid and transform it into a work program seems to have no limits,” Samuel Brooke, deputy legal director of SPLC, said in a news release. “After being declared arbitrary and capricious last year, the administration has now issued a virtually identical re-approval letter; it should face a similar fate and be declared illegal.”
However, Adam Meier, secretary of the Kentucky Cabinet for Health and Family Services, disagrees.
“The cabinet is not surprised by the refiling and will continue to work toward implementation of the Kentucky HEALTH waiver,” he said in a written statement. “Kentuckians, and specifically our Medicaid members, deserve a Medicaid program that will improve health outcomes and provide paths for employability, long-term stability, and future success while also ensuring the long-term sustainability of Medicaid for those who need it most.”
A response from the federal government was not immediately available.
Cara Stewart, a health law fellow for the Kentucky Equal Justice Center, says she is confident the plaintiffs will prevail and expects a decision before April 1, the state’s previously announced implementation date.
“I don’t see any reason why we wouldn’t (prevail),” Stewart said. “CMS approved the exact same proposal of changes and didn’t add any new explanations as to why it is acceptable that a hundred thousand Kentuckians or more will lose coverage.”
Kentucky initially was the first state to be allowed to require Medicaid recipients to work (or do other forms of “community engagement”) to keep their health insurance, but several other states have gotten approval since then, despite fears that such policies will deprive low-income people of much-needed coverage. About 17,000 people in Arkansas have lost coverage since a work requirement was imposed there in June; that program is also the subject of a lawsuit.
Fearing Kentucky will be a duplicate of Arkansas in terms of coverage losses, some health advocates in Kentucky are rooting for the latest lawsuit on Kentucky HEALTH to succeed.
“Knowing what we do about Arkansas’ disastrous experience rolling out reporting requirements over the past many months, Kentucky is on a dangerous path that could lead to even greater coverage losses than originally estimated. For that reason, we hope to see the waiver blocked again in federal court,” said Emily Beauregard, executive director of Kentucky Voices for Health.
This story has been updated with quotes from the lawsuit, Adam Meier and Kentucky Voices for Health. Samuel Brooke’s title has been corrected to deputy legal director.