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Legal Experts Say Kentucky Will Likely Lose A Fight Over Medicaid Records

Frankfort, Kentucky - State Capitol Building
Henryk Sadura
Frankfort, Kentucky - State Capitol Building

Kentucky regulators say they’ll go to court to keep from handing over documents related to the state’s plan to reconfigure its Medicaid insurance program. But legal experts say Kentucky’s argument — that it doesn’t have to turn over emails and other communications because they are preliminary and about negotiations — doesn’t hold up.

Since they were first proposed in August 2016, Gov. Matt Bevin’s planned changes to Medicaid have been controversial. Medicaid is the federal program for disabled and low-income people — a program which Kentucky expanded under the Affordable Care Act and previous Gov. Steve Beshear.

Bevin’s plan includes a broad reworking of Medicaid, including for people making below the poverty limit and others who weren’t affected by Medicaid expansion. This includes co-pays or premiums for almost all Medicaid enrollees, except for pregnant women, caregivers and some others.

So in May, the Kentucky Equal Justice Center requested communications between Bevin’s staff and the federal government pertaining to negotiations. Health care advocates were worried that they would have little time to educate Medicaid enrollees on changes, and wanted to know where the negotiations stood.

“Particularly our outreach person has been concerned that people understand what they have to do now under any system and they’re able to do it,” said Kentucky Equal Justice Center Director Rich Seckel.

But in late August, the state refused KEJC’s open record request, saying the communications were ‘preliminary’ and about internal policy debates.

This is a common government argument for holding back requests for information, according to Michael Morisy, executive director of nonprofit public records organization Muckrock. He said while the debates Bevin’s office might have had before submitting the Medicaid changes would be exempt, communications between a state and federal government are not.

“When it becomes a state vs. federal government discussion, it’s a negation at the federal level, which is typically not exempt,” Morisy said.

In Camera Review

The Equal Justice Center next went to the Kentucky Attorney General’s office for help. The AG’s office asked the Kentucky Cabinet for Health and Family Services for the documents for an ‘in camera review.’ This means the Cabinet should have turned over all relevant communications, leaving it up to the attorney general to assess whether the requested information falls under the Kentucky Open Records Act. After this review, the documents are destroyed.

But the Cabinet sent Attorney General Andy Beshear’s office only five documents. Last week, Beshear said because of the lack of documents regulators gave his office, the Cabinet had not provided enough evidence to prove the communications were "preliminary.”

Cabinet Spokesman Doug Hogan said the state plans to appeal the opinion. That means they’re going to court.

“The Cabinet is confident in its determination that the records are exempt because they are preliminary recommendations or opinions on policy developments,” Hogan wrote via email.

Attorney Michael Abate said the court will likely not side with the state. Abate is a Louisville lawyer who specializes in First Amendment issues; as a comparison, he cited a 1992 case where the University of Kentucky failed to disclose documents about an investigation the NCAA was conducting.

“The court declared it irrelevant that the response was submitted prior to the NCAA decision because the University in that case was the agency subject to the [request] and its submission to the NCAA was its official action,” Abate said.

In this case, he said the proposed Medicaid changes Bevin submitted last year would be the state’s official action — and thus subject to a request under the state’s Open Records Act.

Bevin has maintained that the result of the state’s Medicaid negotiations will be released soon. But he’s also said some of the changes would take effect on January 1, 2018, which is less than three months away. This likely means the finished waiver will be released before a court decides whether the Cabinet for Health and Human Services has to hand over documents to the Kentucky Equal Justice Center.

But Abate said when the communications are eventually made public, they can still be of use.

“The federal government may well take action on the waiver before this dispute is decided, but that doesn’t mean there’s not a compelling interest in knowing what the state was staying to the federal government,” Abate said. “It’s important that the people know what agencies are doing in their name.”

Until then, the wait leaves Medicaid enrollees and health care advocates in the dark on what could be a very complicated shift in health insurance.

Lisa Gillespie is WFPL's Health and Innovation Reporter.