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Kentucky Governor Countersues Residents Challenging State's New Medicaid Work Rules

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Kentucky Gov. Matt Bevin has countersued 16 of his residents who are challenging the state’s newly approved Medicaid work requirements in a federal class-action lawsuit in Washington, D.C.

(Related: Trump Clears Path for States to Require Employment for Medicaid)

In a lawsuit filed Monday in federal court in Frankfort, Kentucky, Bevin asks the court to find that Kentucky HEALTH, the state’s Medicaid waiver program, does not violate the Social Security and Administrative Procedure acts, or the U.S. Constitution.

It’s a countersuit to the complaint filed last month by the Kentucky activists against the federal government in the U.S. District Court for the District of Columbia.

The named plaintiffs, who range in age from 20 to 62 and rely on Medicaid, argue that they would be unable to comply with the new work and premium contribution requirements under the waiver, thereby jeopardizing their health coverage under the federal safety-net program. Thomas Perrelli and Ian Gershengorn, prominent Jenner & Block partners, represent the 16 Kentucky residents on behalf of advocacy groups National Health Law Program, Kentucky Equal Justice Center and Southern Poverty Law Center. They could not be reached for comment on Friday about Bevin’s countersuit.

Jane Perkins, legal director of the National Health Law Program, described Bevins’ countersuit in an email message as “bizarre and bullying.”

“The governor is using taxpayer money to sue his own residents … for exercising their legal rights. Our clients are simply trying to preserve their access to an efficient and effective Medicaid program,” she wrote.

“The plaintiffs sued in DC because that is where the Trump administration made the decisions to fundamentally alter Medicaid in Kentucky and nationwide. The claims in the case are only against federal officials and federal agencies, not the state of Kentucky or the governor of Kentucky.”

Approved last month by the U.S. Department of Health and Human Services’ Centers for Medicare & Medicaid Services, Kentucky’s Medicaid waiver effectively imposes a requirement that able-bodied Medicaid recipients aged 19 to 64 participate in 80 hours per month of employment or “community engagement” activities such as jobs training. In addition, the program imposes a monthly premium based on household income.

In that case, the federal government has asked the presiding judge to transfer the case to Kentucky, arguing that the state has a strong interest in deciding “a primarily local controversy,” according to the motion to transfer.

In his suit, Bevin argues that Kentucky’s “voice obviously must be heard on this issue,” according to the complaint. In addition to Bevin, the other named plaintiffs are Scott Brinkman, acting secretary of the Kentucky Cabinet for Health and Family Services, and Stephen Miller, commissioner of the Department for Medicaid Services within the Cabinet for Health and Family Services.

“Even though Kentucky HEALTH was created in Kentucky and will be administered in Kentucky by Kentucky agencies and officials to benefit Kentucky Medicaid recipients, the named plaintiffs who brought the D.C. action on behalf of a putative class of Kentucky Medicaid recipients chose not to sue the commonwealth of Kentucky or any of its agencies or officials,” according to the governor’s complaint.

“Governor Bevin, Secretary Brinkman, and Commissioner Miller, however, have a substantial controversy with, and legal interests that are adverse to, the named Kentucky residents who brought the D.C. action, who are the defendants here.”

Bevin’s complaint also states that officials intend to implement the waiver program “in short order.” Kentucky will, however, “withdraw entirely” from the Medicaid expansion under the Affordable Care Act if a court blocks “any part” of Kentucky HEALTH, it adds.

Steve Pitt, general counsel to Bevin, said in a statement Monday that Kentuckians “cannot sit idly by” while the issue is litigated in an out-of-state courtroom.

“A Kentucky court, with the full participation of the commonwealth, should decide this vital issue,” according to the statement. “We have complete confidence that Kentucky HEALTH will be upheld and will serve as a successful national model.”

— Read Trump Administration Challenged in Court on Medicaid Overhaul on ThinkAdvisor.

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