Multiple filings have been made in recent days in the legal battle over Kentucky’s new Medicaid waiver program approved by the Trump administration, including an amicus brief in the federal lawsuit by a group of 43 public health scholars who assert that up to 300,000 Kentuckians could lose Medicaid coverage in the first year alone.
The original lawsuit was filed in U.S. District Court for the District of Columbia in January by 15 Kentuckians covered under Medicaid, who sued the Trump administration on the grounds that it approved Kentucky’s Medicaid waiver despite it being in violation of several federal laws and endangering the health care of tens of thousands of low-income families.
In February, Gov. Matt Bevin countered with a federal lawsuit against the plaintiffs in a Frankfort court, seeking to have a federal judge declare that his Medicaid waiver — dubbed the Kentucky HEALTH program — is indeed constitutional.
Kentucky HEALTH is the first Medicaid waiver approved by the U.S. Department of Health and Human Services that includes work requirements for “able-bodied” recipients to maintain coverage — though, state officials refer to this as a “community engagement” requirement that includes volunteering.
On Friday, a group of 43 public health scholars — including eight deans and associate deans at related schools — filed a “friend of the court” brief in the initial lawsuit on behalf of the 15 plaintiffs, arguing that the waiver approved by HHS was not only illegal, but that it would cause far more damage to enrollment than what the Bevin administration is claiming.
Noting that Kentucky projects almost 100,000 Medicaid beneficiaries to be culled from the rolls over a period of five years — an almost 15 percent reduction in Medicaid enrollment — the filing asserts that the “enrollment spiral will be larger and faster.”
Comparing the imposition of similar work requirements for SNAP benefits in others states that caused participant rates to decline by 50 percent to 85 percent within the first year, they contend that Kentucky would be more likely to see “somewhere between 175,00 to 300,000” dropped from Medicaid after the first full year of implementation.
The brief continues to say that if the Centers for Medicare & Medicaid Services goes on to approve similar work requirements in other states around the country, “medical assistance for millions of low-income individuals stands at risk under demonstrations whose true aim is to drive so-called ‘able-bodied’ nonelderly adults off Medicaid to cut spending. To accomplish this aim, CMS fabricates an entirely new Medicaid purpose — to encourage work — in order to shoehorn a blatantly political agenda into research authority.”
The Trump administration sought to transfer this lawsuit from D.C. to the Eastern District of Kentucky, but on Tuesday the judge issued an opinion dismissing that motion, ruling that “convenience and the interests of justice warrant keeping the matter in the District of Columbia.”
In Bevin’s federal suit in Frankfort, the Kentucky Hospital Association and the Kentucky Association of Health Plans have filed motions to intervene in support of the governor. The KHA argued that it is supporting Bevin’s waiver because they support the Medicaid expansion under the Affordable Care Act, which the governor has threatened to eliminate if the waiver is struck down in court.
On Monday, the 15 Medicaid plaintiffs filed memorandums to dismiss these two motions, in addition to a motion to outright dismiss Bevin’s lawsuit.
In the motion to dismiss, the plaintiffs’ attorneys call Bevin’s lawsuit “an unprecedented attack” by a state against its own residents for “exercising their constitutionally protected right to challenge federal agency action in a federal court.” They also state in the motion that the state lacks standing to assert its claims because the defendants have not caused it any harm due to unlawful conduct or violations of federal law.
“At best, the Commonwealth’s lawsuit amounts to forum shopping,” states the motion to dismiss. “At worst, it represents an attempt to intimidate private individuals for their decisions to engage in protected First Amendment conduct.”
At a forum in Louisville last week to explain the coming changes under Kentucky HEALTH, Bevin administration officials said that it was a “myth” that the state wants to kick people off Medicaid, as the community engagement aspect of the program is intended to provide people with “better jobs, better health.”
“It’s very different from just requiring someone to work,” said Kristi Putnam, a program manager for the Kentucky HEALTH. “It is intended to be an engagement that is meaningful, that provides a link and a network to that community because people who are actively engaged … tend to be healthier overall.”
This story has been updated to include the judge’s opinion on Tuesday dismissing the motion to transfer the original lawsuit from the District of Columbia to the Eastern District of Kentucky.