Kentucky Governor Retaliates Against Poor After Court Rejects Medicaid Changes

GOP cruelty is not new, but it seems to be reaching new depths. Case in point: In Kentucky, Gov. Matt Bevin is now using the lives of Medicaid patients like pieces on a chessboard in an act of revenge and political spectacle.

Governor Bevin’s administration announced that he would deprive Medicaid patients of dental and vision benefits, effective immediately. This unilateral (and some say illegal) maneuver impacts 460,000 people in Kentucky. This occurred just hours after a federal court stopped his Kentucky Health plan, which would throw people off Medicaid with work requirements, deductibles and other administrative and economic obstacles.

The case in question is Stewart v. Azar. Through the Centers for Medicare and Medicaid Services, the Trump administration announced new guidelines in January to remake the program in the GOP’s image. His administration told the states they could implement work requirements and many other “community engagement” policies. These approaches have nothing to do with providing care, and everything to do with gutting the rolls. They would fundamentally change Medicaid, turning a program aimed at helping the deserving poor into a program that disciplines them for being poor in the first place.

On June 29, Federal Judge James E. Boasberg of the DC circuit, rejected Trump’s Department of Health and Human Services (HHS) approval of Kentucky’s plan, setting a precedent that puts similar proposals in at least 10 other states in jeopardy. It was also just in the nick of time: A mere 36 hours before Kentucky Health would’ve been in effect.

It is an embarrassing defeat for Governor Bevin, who eagerly volunteered Kentucky to be the first state to approve work requirements. He did so with frightening vigor, approvingly saying this was “the biggest change to entitlements in 25 years.” His Kentucky Health plan, Truthout has reported, added many other changes to the program, including new deductibles, cuts to transportation services, ending retroactive coverage, health literacy exams and more.

Hours after Judge Boasberg’s opinion was rendered, Governor Bevin had what Topher Spiro called his “Trumpian Tantrum” and made the aforementioned cuts. A federal judge didn’t let him punish poor people, so he did so unilaterally and with seemingly no consideration for the law whatsoever.

“The word that came to my mind when I heard what the governor was doing was ‘spiteful’,” said Emily Beauregard, the executive director of Kentucky Voices for Health. “It seems to best describe what is going on here.”

Chaos in Kentucky on a Monday Morning

Governor Bevin’s actions were so unusual that advocates and lawyers were wrestling with how to respond. “It was surprising. We weren’t entirely sure how to move forward. There is process to change Medicaid and that process is not followed,” Beauregard said. “There was no notice, no time for public comment, no interaction with the federal government…. He just did it.”

As a result, there was bedlam in Kentucky on Monday morning, the first business day after the cuts were announced. Local organizers say Medicaid patients showed up to appointments, some scheduled months ago, only to be turned away by (often confused) providers. Calls by Truthout to providers confirmed that they were already turning away patients who are impacted by the decision.

“It can be hard to get an appointment for these services already since many providers don’t accept Medicaid patients,” said Cara Stewart, health law fellow at the Kentucky Equal Justice Center. “I spoke with one provider who said 17 of their 18 appointments [that] Monday were Medicaid patients. It is chaos. Nobody knows what is going on.”

While political and legal counter strategies are being considered, Kentucky Voices for Health is also trying to engage in harm reduction, arguing that Governor Bevin’s revenge plot will not survive judicial scrutiny and providers will be reimbursed with Medicaid rates.

The governor’s theatrics will almost assuredly end up in court, but even if a judge rules Governor Bevin’s plan is illegal, irreparable harm will likely have already been caused. Governor Bevin is putting his own people at risk and, advocates argue, should be held account if his action is determined to be unlawful.

“Bevin makes his political decisions through the mentality of a child. He couldn’t have what he wanted so he is now punishing innocent people for it,” said Tajah McQueen, an activist and member of the progressive organization Kentuckians for the Commonwealth, in an interview with Truthout. “I wish he would sit down and talk to the communities that are being hit directly by this…. But [for Governor Bevin], it’s never been about the people.”

While the Bevin administration claims, without evidence, that the Stewart ruling forced the cuts, this is disputed by legal experts and the text of Boasberg’s 60-page decision.

“The Court therefore believes that preserving the status quo — including Plaintiffs’ continuity of coverage — is appropriate,” Boasberg wrote on page 57. Clearly, continuity of coverage has not been maintained.

“There was nothing in the June 29 court ruling that called for Gov. Bevin to do what he has done,” said Jeremy Leaning, communications director for the National Health Law Program. “Indeed, the court in this case protected coverage of all Medicaid beneficiaries in Kentucky. The governor [needs to] walk back this vindictive approach.” The Law Program is among several national groups that took Trump’s HHS to court over the approval of the Kentucky plan. The Kentucky Equal Justice Center and Southern Poverty Law Center were also part of the lawsuit.

National Implications of the Court Ruling

Despite Governor Bevin’s vindictive approach, the opinion rendered last month is an important and under-reported victory for health advocates and anyone who thinks human beings ought to be treated with dignity.

“This is a victory for the people of Kentucky who rely on Medicaid for life-saving health care,” said Frederick Isasi, executive director of Families USA. “Governor Bevin’s illegal proposal that was approved by the Trump administration was misguided and ill-informed…. Let’s stop perpetuating stereotypes and stop trying to take health care away from families.”

Kentucky residents also praised the ruling. “I am extremely happy about the outcome of this ruling,” McQueen said. “Health care is a basic human right and no one should have to do anything to prove that they are worthy of receiving it.”

Boasberg’s opinion was a harsh rebuke of the Trump administration’s welfare reform efforts and of their legal defense. The Judge ruled that HHS Secretary Alex Azar “never adequately considered” if the changes “help the state furnish medical assistance to its citizens, a central objective of Medicaid.” Since the plan does not help furnish medical assistance — the state estimated 95,000 people would lose insurance — it is hard to know how any reasonable judge could claim it meets that standard.

“We thought that his opinion was a strong opinion. We are thrilled the judge saw through this very thin case the state had made,” Beauregard told Truthout. “He really took the public comments of Kentuckians into account.”

In his ruling, Boasberg wrote: “As required, HHS provided a 30-day public notice and comment period regarding the proposed program. The vast majority of those comments voiced concerns that [Kentucky Health] would ‘significantly reduce low-income people’s participation in health coverage programs.'”

While the ruling did not comment on the merits of other state proposals, legal advocates said the ruling could give pause to some efforts in the other states who are seeking or had approved waivers for these policies. Litigation is being considered in other states trying to implement the policy, such as Arkansas, Indiana and New Hampshire.

“This ruling will, I think, be an important precedent if other plans go to court,” Leaning said.

Should these changes to Medicaid be stopped, it will be an important act of defense by organizers. Policies based on the false notion that poor adults are lazy and don’t want to work have long been proposed by the GOP. They successfully implemented similar requirements to food and cash assistance in 1996, which progressives argue has been a failure.

“Since 1996, the share of single mothers with neither income nor cash benefits has risen from 12 to 20 percent. Meanwhile, the number of families in deep poverty has grown from 2.7 million to 3 million,” wrote Bryce Covert in The Nation.

Adding such policies to Medicaid would turn the policy from one aimed at furnishing care to people into a program that disciplines them, using the threat of stripping their insurance as a carrot to punish them. This kind of social welfare policy is what Yale’s Theodore Marmor, professor emeritus for political science, describes as “behaviorism,” where the objective is to change behavior, rather than provide help.

The Role of Obamacare in the Ruling

Interestingly, the judge cited the Affordable Care Act (ACA) as one reason Governor Bevin cannot target a certain adult population to make cuts, in this case childless adults under 65. The decision reads:

While the “original program was designed to cover medical services for four particular categories of the needy: the disabled, the blind, the elderly, and needy families with dependent children,” the Affordable Care Act … “transformed” Medicaid “into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level.”

Even while the ACA’s efficacy is being undermined by Trump and the Republicans, and even though it has many flaws, its broadening of the language to protect non-elderly adults under Medicaid may well be the program’s most important contribution. It also may turn out to be the key reason Trump’s workfare efforts are never implemented. This is important since Trump is so enthused about these policies that he made an executive order to extend work requirement standards across the federal government.

GOP, Motives and the Plight of the Poor

Governor Bevin’s petty response helps demonstrate his true motives, critics say, and his contempt or indifference to the plight of the poor. This enables him to propose these policies without concern for how it impacts others. In fact, since he announced the cuts, a common critique of the governor on social media was that he has “hatred for the poor.” Some, however, have an even more chilling interpretation of Governor Bevin’s disregard for the victims of his own policies.

“A lot of people claim Matt Bevin hates the poor, but I think it’s worse than that. I think he may just feel no emotion for them at all,” said Christian Lauritzen, a recent high school graduate from Lexington.

When you view GOP health policy through this lens it makes it easier to understand how they can support such unimaginably cruel reforms. This is the same political party that were drinking at a party on Capitol Hill to celebrate the House passing a bill that, according to the Congressional Budget Office, would throw 23 million Americans off insurance. At its lowest point, Trumpcare had just 12 percent support, yet the GOP pressed on anyway.

It appears many GOP power brokers simply do not care about Medicaid patients and what will happen to them when they are deprived of coverage. Understanding the depth of this cruelty may be the lasting lesson of the current Medicaid battles in Kentucky and beyond. It should also drive the resistance to these regressive, inhumane policies.