Kentucky’s tea party challenge to state implementation of ObamaCare took a big step forward today with the first in a series of arguments to reach the Commonwealth’s Supreme Court.
David Adams said the case centered on preventing “improper and illegal use of government powers to effect an optional expansion of Kentucky’s Medicaid program under the Affordable Care Act.”
Adams is petitioning the Court to transfer his appeal immediately from the Court of Appeals in order to gain a faster resolution to the case. Governor Steve Beshear and Cabinet for Health and Family Services Secretary Audrey Haynes are the Respondents.
“Respondents cited KRS 205.520(3) and KRS 194A.050(1) as providing justification for their actions, while ignoring that both statutes explicitly call for the Commonwealth’s regulatory review process to be engaged and completed,” Adams said. “That is the first key fact in this case, but it was ignored by Respondents and by the Circuit Court.”
Beshear and Haynes have claimed throughout the case that legal limits on their powers under state statute were of no consequence because they are merely obeying federal law and that the expansion can be reversed later at the state’s option when it becomes clear the expansion is unaffordable and not a workable solution to the state’s indigent care problem. The U.S. Supreme Court, however, made clear that the Medicaid expansion is optional for states and the supposed state withdrawal option simply does not exist.
The issue of the false claim of a state exit strategy was a contentious one in Franklin Circuit Court written and oral arguments, but was ignored by Judge Phillip Shepherd in his September 3 ruling in favor of the Medicaid expansion.
Governor Beshear’s failure to follow Kentucky’s administrative review process earlier this year when there was time to complete the process legally — it can easily take nine months for a contentious issue — now boxes him in to claiming that there is no process limiting his actions, despite ample clarity in statute. Inexplicably, that strategy worked in the Circuit Court. It is now a key part of the appeal.
“KRS 13A.090 states ‘the courts shall take judicial notice of any administrative regulation duly filed under the provisions of this chapter after the administrative regulation has been adopted.’ In this instance, an administrative action effecting the optional Medicaid expansion was neither ‘duly filed’ nor ‘adopted’ pursuant to Kentucky law,” Adams said. “The Franklin Circuit Court ignored those facts and recognized a regulation that does not exist.”
Adams said the time for initiating the process of accepting the Medicaid expansion has now passed.
“Before required public hearings, discussion and votes could take place to possibly adopt the administrative regulation necessary to effect the ACA Medicaid expansion, the provision would pass beyond being a state option as it is now to becoming a part of permanent federal law on January 1, 2014 without legal and proper completion of the review process required by KRS 13A,” Adams said. “The law, once subverted in this way, renders the voice of the people silent in all matters proscribed by law to be governed by regulatory review.”
The two sides now await word from the Supreme Court to set up a hearing schedule.