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Landrum Shouse
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Landrum & Shouse is recognized as the most prolific law firm for 2015 by the KY Trial Verdict Reporter!
Landrum & Shouse is recognized as the most prolific law firm for 2015 by the KY Trial Verdict Reporter!

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Congratulations Douglas L. Hoots!

The National Association of Distinguished Counsel is an organization dedicated to promoting the highest standards of legal excellence. The mission of the NADC is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate. By virtue of the incredible selectivity of our research process, only the elite few are invited to join the ranks of the NADC. Specifically, less than 1% of practicing attorneys in the United States are members of the “Nation’s Top Attorneys”. The recipients of this prestigious award have demonstrated the highest ideals of the legal profession. ~The National Association of Distinguished Counsel, http://www.distinguishedcounsel.org/ 2018


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7/10/18
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Title: Kentucky HEALTH – Why Did the Court Say No?
By: Erin C. Sammons

Last week a federal judge struck down Governor Bevin’s healthcare reform, Kentucky HEALTH, and sent it back for further review. Although the ink on the 60-page opinion (link provided below) has barely set, some hope that this reflects a continued opposition to community service or work requirements as preconditions for Medicaid eligibility. Others believe an appeal will be forthcoming even though the Bevin Administration indicated that it will work with the Centers for Medicare and Medicaid Services (CMS) to review Kentucky HEALTH and resolve the issues the Court identified. Meanwhile, dental and vision benefits under Medicaid have already been cut for nearly 500,000 Kentuckians in response to the Court’s decision. Is Kentucky HEALTH has faulty as media suggests? A review of Judge James Boasberg’s Memorandum Opinion suggests otherwise.

By way of short background, the Medicaid Act required states to obtain a waiver from the Secretary of the Department of Health and Human Services in order to deviate from the Act’s requirements. Kentucky HEALTH underwent a notice/hearing and comment process before being submitted to the Secretary for approval. In July 2017, the Administrator of CMS circulated what the Court refers to as the “Dear Governors” letter, encouraging states to apply for waivers from some of Medicaid’s coverage requirements, and focusing on those individuals who had acquired coverage under the Affordable Care Act (referred to as the “expansion group”), and promising to “fast-track” application approval. In January 2018, one day after the Director of CMS issued a follow-up letter to all state Medicaid Directors expressing CMS’s intent to improve Medicaid beneficiary health by encouraging employment, among other things, CMS notified Governor Bevin’s office that Kentucky HEALTH had been approved. Two weeks later, fifteen (15) Kentucky residents brought suit seeking declaratory and injunctive relief.

The Court saw its function as one of determining whether the agency’s actions were arbitrary or capricious, meaning the agency “entirely failed” to consider an important aspect of the problem, among other things. It is not enough for the agency to simply state that it has considered something; it must articulate a satisfactory explanation for its action, drawing the connection between the facts and its decision. This is what the Court said the Secretary failed to do when signing off on Kentucky HEALTH. So what does that mean?

First, the Court differentiated between Kentucky’s SUD program, which allows payments for individuals seeking treatment from mental health facilities for a substance use disorder, and Kentucky HEALTH, and found the two programs to be separate components of the state Medicaid plan. It then considered whether the Secretary had adequately considered all relevant factors and evidence. Keep in mind that doing so did not mean that the Court was deciding right from wrong, just whether there were adequate explanations for the agency’s conclusions.

What the Court did with its opinion was to suggest a quasi road map for Kentucky – or any other state – to use, and for the Secretary to follow, if it wants to seek waivers from Medicaid requirements. First, the Secretary must identify the objectives of the Medicaid program, which the Court determined to be (1) furnishing medical assistance, i.e. healthcare coverage, and (2) providing rehabilitation and other services designed to help individuals to retain capacity for independence. At a minimum, the Court found that the Secretary must be able to examine whether the requested waiver causes Medicaid recipients to lose coverage or whether it actually promotes coverage.

Another point of concern was the fact that neither Kentucky nor the Secretary had provided any bottom line estimate as to how many individuals would be losing coverage under the plan even though all had been put on notice through the comment period that Kentucky HEALTH would reduce access and utilization, while increasing tracking errors and inadvertent benefit terminations. Despite this, there had been no request seeking information on the impact that Kentucky HEALTH might have on its beneficiaries, and the Secretary never revised Kentucky’s estimate that some 95,000 individuals would leave the program over a five-year period. Although the Secretary had stated generally that Kentucky HEALTH would create incentives for the public to obtain coverage through private insurers, the record did not contain any research showing if or when that would happen, nor any hard numbers on how many individuals might go this route. Instead, the Secretary had lost focus on whether Kentucky HEALTH provided health coverage consistent with the Medicaid Act’s goals, and instead believed – incorrectly – that the project’s purposes was to promote beneficiary health and well-being.

An important point the Court made in summing up its findings is that it is still possible for the Secretary to approve projects that may reduce enrollment or healthcare coverage. The Court declined to decide how much of a change would be too much, thereby suggesting that some degree of reduction would still be acceptable. If the Secretary adequately considers whatever effect a state’s proposed project may have on its ability to provide coverage, this would presumably sustain the Secretary’s decision and prevent it from being considered arbitrary and capricious on review.

What all of this strongly suggests is that Kentucky HEALTH is not dead in the water. Instead, Governor Bevin and his team are able to flesh out the details to enable the Secretary to adequately analyze the consequences of approving Kentucky HEALTH on providing coverage and benefits to Kentucky residents. In the end, we may see more decisions providing guidance on this issue down the line. As of the Court’s opinion, at least ten states have applied for waivers. It remains to be seen exactly how far those waivers can go.
For a link to the 60-page opinion:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0152-74
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From the L&S family to yours, we want to wish you a happy and safe 4th of July!!!!
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Civil Rights - The plaintiff claimed a drug task force framed him for drug dealing in retaliation for his earlier successful pursuit of a civil lawsuit against one of the officers
Harris v. UNITE et al, 6:15-151 Plaintiff: David N. Ward and Kirsten R. Daniel, Clay Daniel Walton Adams, Louisville
Defense: Leslie P. Vose and Gregory A. Jackson, Landrum & Shouse, Lexington
Verdict: Directed verdict Federal: London, J. Reeves,
2-28-18
Alberto Harris of Pennington Hill Road near Manchester had a long history of run-ins with law enforcement. That included a list of drug-related offenses that dated to the 1980s. Harris also turned the tables once. In 2001 he successfully pursued a civil lawsuit against a Manchester police officer, Patrick Robinson.
Moving forward to 9-16-10, Harris was home at his residence. A drug task force operating in Manchester, known as UNITE, was working to interdict drug sales. UNITE stands for Unlawful Narcotics Investigation Treatment and Education. Robinson and a fellow police officer, William Goins, were UNITE members.
UNITE worked with a confidential informant, Christina Little. Little knew Harris well. Little was Harris' neighbor, sexual partner and the wife of his cousin. She also indicated that Harris sometimes sold her drugs or traded drugs with her for sex.
The sting was set by UNITE and Little was sent to Harris' home wearing a wire and taking marked bills. The buy was made and Harris was recorded making the sale. A short time later the police got a search warrant and discovered contraband at the Harris residence.
Harris was arrested and charged with a variety of drug charges. Over the next four years, he was incarcerated awaiting trial a total of 894 days. The days were not
consecutive, Harris bonding in and out two times. Ultimately the trial judge in Clay County (House) became frustrated by the slow pace of the prosecution. She dismissed the criminal charges in 2014.
Harris then sued UNITE, Robinson and Goins in this federal lawsuit. He denied there was any drug sale at all and that the police had framed him. That included planting drugs and marked bills at his home. The reason for the conspiracy? Robinson was retaliating against him (in concert with Goins) because of the 2001 lawsuit. As the case was tried, Harris presented malicious prosecution, conspiracy and civil rights counts.
The police denied there was any conspiracy and argued the evidence of Harris' guilt was significant. That included not just the contraband that was found, but as significantly, Harris' voice was caught on the wire and he admitted it was him. The police defendants moved for summary judgment. Judge Reeves concluded there were fact disputes and denied the motion.
The case advanced to trial and proof was introduced over three days. At the close of the plaintiff's case, the police moved for a directed verdict. Judge Reeves granted the motion from the bench. He did not reduce his reasoning to a writing. There was no appeal from the court's judgment and the case is over.
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6/28/18
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Landrum & Shouse LLP was a proud sponsor of the Bluegrass Claims Association golf tournament this past week!
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L&S's own, Leslie P. Vose has been featured in this month's ABA Journal Magazine. Read the full article here: Time's up: Legal, judicial systems slow to adapt to sexual harassment and assault issues http://www.abajournal.com/magazine/article/timesup_legal_judicial_harassment_assault/P2
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Pierce W. Hamblin spoke at the KY Bar Association Annual Convention as hundreds of lawyers statewide joined together at Rupp Arena for the ‘More than a Lawyer’ convention 2018. Mr. Hamblin’s topic was: Some Mediation Tactics that Don’t Work; Some Critical Mediation Negotiation Skills that Do. The presentation was well received by all. Special thanks to Pierce for all of his hard work, dedication and service over all of his years here at L&S.
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6/15/18
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Don't miss this - CLE credit 6.0 incl. 1.0 ethics. Special guest speaker - Partner, Bradley C. Hooks will be speaking at NBI on May 18th, 2018 in Lexington, KY. Register at www.nbi-sems.com
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Partners, Pierce W. Hamblin and John R. Martin have been inducted into the National Academy of Distinguished Neutrals - America's Premier Mediators and Arbitrators. Congratulations to you both!
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5/2/18
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