Tea Party headed to Kentucky Supreme Court

Franklin Circuit Court Judge Phillip Shepherd ruled today in favor of Kentucky Gov. Steve Beshear's illegal actions to force his state into ObamaCare.

Shepherd ruled KRS 12.028, which provides the Governor with temporary reorganization powers, ignored language in section 5 of that statute which requires re-issuance of temporary restructuring to wait until after the 2014 General Assembly session starts. Gov. Beshear created the Kentucky Health Benefit Exchange under a 2012 Executive Order which was not ratified by the 2013 General Assembly. He then issued a new Executive Order creating the Kentucky Health Benefit Exchange, an action which is specifically prohibited by this statute.

Shepherd also ruled that the regulatory process explicitly required by KRS 205.520(3) and KRS 194A.050(1) does not apply to Gov. Beshear in expanding Medicaid, though it clearly does.

Governor Beshear had to lie in court and break state law in order to pretend to have authority specifically denied him by statute and the Constitution. He needed a judge to ignore these facts and now he needs four of seven who are elected in districts whose people understand and oppose ObamaCare. I don't think he can do it.

Beshear wasting $4.2 million ObamaCare grant

Kentucky's Department of Insurance is ignoring multiple open records requests for 2014 individual market health insurance rates under ObamaCare despite accepting more than $4.2 million in federal grant money over the last three years to improve transparency of the rate review process.

In fact, a federal grant application summary from 2011 promises "(t)he State will also enhance its website further to allow consumers access to rate filings without going through the open records process."

Employers and insurance brokers around the state report group health premium rates almost doubling from 2013 to 2014 with ObamaCare taking effect, an unprecedented explosion in health insurance costs.

According to the Department of Insurance web site, all the health plans set to participate in the Kentucky Health Benefit Exchange individual market had their rates approved in August.

The incompetence and fraud on display at the Kentucky Department of Insurance and the lack of media coverage of same is easily the biggest political scandal of 2013 in the state. A functioning Republican Party would be all over this.

Do left wing blog readers hate garlic, too?

All I did earlier today was helpfully post information to the biggest leftist political blog, Daily Kos, hoping to stir up a conversation about separation of powers and constitutional limits on elected officials.

Before banning me for life for my trouble, they pretty much responded like vampires to sunlight. Pretty funny stuff.

Criminalize Beshearism

Kentucky Gov. Steve Beshear seems to be determined to gain a legacy of law-breaking. Kentuckians must respond by criminalizing his illegal behavior so his shenanigans are not repeated.

Specifically, when Beshear violated KRS 12.028, he did so knowing there was no penalty for his actions. In fact, he clearly expected to get away with it. KRS 12.028 should be amended to penalize any governor who attempts to reorganize government as the statute provides without following the requirements of the statute. Specifically, when Beshear sought to create the Kentucky health benefit exchange via executive order he needed subsequent ratification of his temporary action by the legislature to make it permanent. He did not get such ratification. Though the law clearly states that the executive order then becomes null and void, Beshear has attempted to ignore that limitation on his power by continuing to develop the ObamaCare "exchange."

The statute contains no criminal penalties for violation of its provisions. It needs them. A member of the Kentucky General Assembly with courage should file a bill creating criminal penalties for a governor who ignores these legal limits.

Also, when Gov. Beshear sought to expand Medicaid under ObamaCare he claimed KRS 205.520(3) gave him the authority to do so. It does, but with the provision that such may be effectuated only "by regulation." Gov. Beshear has ignored that part of the statute and has, therefore, violated that statute. He has waited so long to initiate the administrative review process that it can not now be used to expand Medicaid under the provisions of PPACA -- ever. Case law in Kentucky provides for statutes that are abused like this can be found unconstitutional. Both statutes are being challenged in this manner in Franklin Circuit Court.

If the statutes are not found unconstitutional, they should be amended to include criminal penalties. Those bills should be pre-filed immediately.

Kentucky health insurance secret ends Friday

Kentucky Department of Insurance officials confirm that 2014 individual health insurance rates will be approved by the end of this week. That comes six weeks after it became clear ObamaCare would blow up the state's health insurance market.

Expect a late Friday afternoon document dump and next week all kinds of ferocious spinning about how your own eyes are misleading you into thinking ObamaCare presents any kind of a problem.

Rhymes with "smallpox"

Gov. Steve Beshear was in Lexington today ripping on Kentucky citizens who have challenged his ObamaCare-related law breaking.

"I believe these critics are blinded by a disease that I would call knee-jerk partisan politics, and that disease clouds their vision and quite frankly sometimes wonder if it doesn't harden their hearts a bit," Beshear told the Lexington Herald Leader.

Xerox officials stood by quietly and smiled while Beshear poured out his absurd ObamaCare attacks. Under state statute KRS 12.028 the 100 Xerox jobs they were celebrating today can not exist because they were not legally authorized.

This matter is currently being litigated in Franklin Circuit Court.

Hold your nose: McConnell likes parts of ObamaCare

In one television interview, Kentucky Senator Mitch McConnell managed to open up two cans of worms for himself on ObamaCare.

Better grab your nose.

"There are a handful of things in the 2,700-page bill that are probably are okay," Mitch told WYMT Hazard on Tuesday. Do tell, Senator, but please try to keep the waste in the hundreds of billions for the rest of us.

And speaking of waste, McConnell squanders more time distorting the effort to defund ObamaCare when he said "the problem with the bill that would shut down the government wouldn't shut down ObamaCare."

Senator McConnell, the bill supported by Senators Rand Paul, Mike Lee and Ted Cruz would prohibit federal spending on ObamaCare and destroy it too quickly for anyone to find out what parts of the law McConnell likes. The fact that mandates and taxes would stay on the books for a little while without any federal funding is a distinction without a difference if you are measuring distance between defunding and repealing.

Framing the debate as defunding the disastrous law in the current continuing resolution versus allowing the current spending plan to expire without a replacement is merely about buying time to unwind the law in an orderly fashion that works better for all Americans than stumbling on into the train wreck we are in no way ready for.

The truth Sen. McConnell doesn't want you to know is that his biggest campaign donors are perfectly happy with him making meaningless speeches about ObamaCare as long as he doesn't stop its implementation. That's what is really behind all this senatorial doubletalk.

Another example of Facebook replacing mainstream media

Under ObamaCare, Kentuckians face enormous 2014 health premium increases you would never know about if you depended on mainstream media for your news.

Today's example comes from Lexington Trailer & Hitch, whose Anthem renewal specified a 94% increase if they renew in 2014 and only a 10% increase if they renew early before ObamaCare hits.

We learned about this, of course, on Facebook:

And if you are wondering, off-cycle policy renewal is not available to individuals.

Huge crowd expected for ObamaCare hearing in Frankfort

Kentucky's Interim Joint Committee on Health and Welfare is still trying to cram ObamaCare down our throats, ignoring KRS 12.028(5) and its limits on the Governor's ability to re-issue expired executive orders that failed to achieve legislative ratification.

If you oppose ObamaCare and have the ability to join us at the State Capitol Annex at noon on Wednesday, August 21, the meeting will be in Room 129. Bring friends.

Activist: Beshear "has chosen the side of evil"

Kentucky Citizens Judicial President David Adams filed a lawsuit in state court yesterday challenging the constitutionality of a state law regulating health coverage options for Christians.

The case brings up issues about the proper role of government in healthcare just weeks before ObamaCare is supposed to take effect in Kentucky and around the nation.

"The Beshear Administration violating rights of Christians is nothing new, but us fighting back is," Adams said. "The Governor has chosen the side of evil in this fight and he will lose for several reasons, not the least of which is that we have the Constitution on our side."

Adams says Kentucky's Insurance Code effectively forbids a practice called "religious health sharing," an alternative to health insurance for people of faith. A decade long court battle to single out one such group of Christians ended last month with an agreement to let them practice their faith, but without resolving problems in the law.

"Kentucky's Constitution is unique in America in specifically prohibiting arbitrary application of the law and that is the most important fact in this case," Adams said. "You can't criminalize an activity as a government and then pick out some participants to grant special permission to proceed anyway. Western society has been fighting this kind of outrageous imperial behavior going back 800 years to the Magna Carta."

"Even the ObamaCare law gets out of the way of Christian health sharing for the most part. I don't know why Kentucky can't get this right, too," Adams said.

Governor Beshear has three weeks to respond to the lawsuit.

Suing for health freedom in Kentucky

COMMONWEALTH OF KENTUCKY

FRANKLIN CIRCUIT COURT

DIVISION ___

CASE NO. 13-CI-__________

 

DAVID ADAMS                                                                                           PLAINTIFF

 

v.                                                         COMPLAINT

 

COMMONWEALTH OF KENTUCKY                                                   DEFENDANTS

OFFICE OF THE GOVERNOR, Steven L. Beshear

OFFICE OF THE COMMISSIONER, DEPARTMENT OF INSURANCE,

Sharon P. Clark

Serve: Governor Steven L. Beshear

Office of the Governor

700 Capitol Avenue, Suite 100

Frankfort KY 40601

 

Serve: Commissioner Sharon P. Clark

Department of Insurance

215 W. Main

Frankfort KY 40601

Serve: Attorney General Jack Conway

Office of the Attorney General

700 Capitol Avenue, Suite 118

Frankfort KY 40601

___________________________________________________________________________

 

Plaintiff, David Adams, respectfully states as follows:

 

NATURE OF ACTION

This is a civil action for declaratory and injunctive relief relating to KRS 304.1-120(7), a statute regulating health insurance in the Commonwealth. Plaintiff seeks a declaration that this statute is unconstitutional in that it violates Sections 2 and 190 of the Constitution of the Commonwealth of Kentucky. Further, Plaintiff seeks a court order forbidding Defendants from enforcing the statute’s arbitrary provisions which limit Plaintiff’s clear understanding of rights under an agreement with a private corporation regulated by KRS 304.1-120(7). Attorney General Jack Conway is being served with a copy of this Complaint pursuant to KRS.418.075 in as much as the constitutionality of KRS. 304.1-120(7) is brought into question.

 

FACTS

Plaintiff is a citizen of the Commonwealth and a member of Samaritan Ministries, a religious health sharing organization purportedly exempted from state insurance regulation by KRS 304.1-120(7) and from federal mandates under the Patient Protection and Affordable Care Act (PPACA) in Section 1501 of that law under the heading “Health Care Sharing Ministry.”

The federal PPACA law, in an attempt to expand healthcare coverage choices for Americans, makes few unnecessary restrictions on the ongoing operations of such health sharing groups. Kentucky law, however, declares these entities must have “no assumption of risk or promise to pay either among the participants or between the participants and the organization.”

These restrictions defeat the purpose of the health sharing organizations, which exist to limit personal liability for healthcare expenses by sharing mutual assumptions of risk and multiple payment agreements involving explicit promises to pay. Enforcement of state law in regard to this type of entity and arrangement has been haphazard and reckless, substantially depriving consumers fleeing government regulated insurance of a rational basis upon which to make risk management decisions and perpetuating an arbitrary and capricious application of state law in violation of the Section 2 prohibition of “absolute and arbitrary power” and the Section 190 limit on state regulation of corporations to “general laws” only.

Time is of the essence in resolving this issue because the PPACA is set to take full effect on January 1, 2014 with substantial premium increases in government-regulated health insurance and very limited alternatives such as religious health sharing for Kentucky consumers generally and Plaintiff specifically to properly manage healthcare costs. Lack of clarity in the application of the law is both expensive and needlessly hazardous.

ARGUMENT

Existing statute and case law combine to wreak havoc on the market for health coverage in the United States and in Kentucky. If followed to the letter, state law would eliminate the alternative of religious health sharing organizations in the Commonwealth, despite efforts on the federal and state level to preserve such alternatives for the benefits they provide to the health and welfare of their members, and the safety valve they form for consumers who would otherwise be trapped in the government-created and controlled system as it fails increasingly large segments of the population.

Plaintiff merely seeks clarity from government officials where precious little currently exists. The only way to achieve that is with a court ruling that KRS 304.1-120(7) unconstitutionally singles out and inhibits religious health sharing groups and their members from protecting themselves efficiently against the risk of large medical expenses. Such is certainly not within the bounds of any kind of public purpose envisioned by the legislature as the people’s representatives and therefore calls for swift action from the Court.

JURISDICTION

Jurisdiction is proper pursuant to KRS 418.040 and Kentucky Constitution Section 112 (5).

PRAYER FOR RELIEF

            Plaintiff seeks a Court ruling that KRS 304.1-120(7) is unconstitutional in that it effectively prohibits the existence of Plaintiff’s chosen health care coverage provider whose operation is both legal under federal law and has been found constitutional by the United States Supreme Court. Legislative action in the 2013 General Assembly (Senate Bill 3) in conjunction with a July 23, 2013 order from this court sought to clarify availability of religious health sharing options but did not address the statute’s constitutional infirmities. Such is the purpose of this action.

 

Respectfully submitted,


David Adams
121 Nave Place
Nicholasville, KY 40356
859-537-5372
kyprogress@yahoo.com

Plaintiff
 
 


   
This certifies the forgoing was served this ____ day of __________, 2013 via U.S. Mail upon:


Serve: Governor Steven L. Beshear
Office of the Governor
700 Capitol Avenue, Suite 100
Frankfort, KY 40601

Serve: Commissioner Sharon P. Clark

Department of Insurance

215 W. Main

Frankfort, KY 40601

Attorney General Jack Conway
Office of the Attorney General
700 Capitol Avenue Ste. 118
Frankfort KY 40601



       _________________________________
      
       David Adams

Beshear telegraphs Medicaid budget games

Kentucky Governor Steve Beshear showed in a Finance and Administration document obtained yesterday how he plans to hide Medicaid costs under ObamaCare and state employees will be underwhelmed by his lack of creativity.

Beshear plans to hide about ten percent, and possibly more, of Medicaid costs in the first year of ObamaCare by pushing it off to the first budget year after he leaves office.

Commonwealth's Request for Proposal 758 1300000399 for Medicaid managed care contracts including an illegally expanded Medicaid program under ObamaCare states in Section 30.060.30.10.45 "(f)or members added pursuant to Medicaid expansion under the ACA, the methods used to determine the risk assessment and risk adjustment amount will be designed to be budget neutral to the Commonwealth."

That means provider payments will be cut and services denied in order to balance the books, if you believe the books will actually be balanced. They won't be.

Section 30.060.30.10.10 state "(t)he Department reserves the right, if needed, to delay the monthly payment due on or before June 8, 2014 to on or before July 8, 2014."

The Commonwealth's fiscal year ends June 30. Get the picture?

Kentucky's procurement officials were informed to not share this information, though one eventually did.

NSA, eat your heart out (state ObamaCare email edition)

In case you have been wondering about the silence of media, insurance bureaucrats and left-wing politicians in the two weeks since the initial report of Humana of Kentucky's request for an eighty percent rate increase for health insurance under ObamaCare, wonder no more.

We now have proof.

An internal Kentucky Insurance Department email exchange between Department of Insurance employee Lynda Johnson and Humana actuary Nick Mueller dated June 19 and June 20 clearly refers to Humana's rate increase request. Here is Ms. Johnson's email:

This information has been publicly available for two weeks. The failure of Kentucky's media to cover this great failure of ObamaCare is a disgrace.

My favorite bureaucratic dodge

An attorney for Kentucky Governor Steve Beshear inadvertently makes the case for getting state government under control via the courts in a legal brief filed quietly on Friday.

"Only the Legislature has the authority to decide what constitutes a valid public purpose, and its determination cannot be disturbed as long as the basis is reasonable," said Beshear attorney John C. Enochs. (emphasis added)

This came in Franklin Circuit Court case 13-CI-785 Adams v. Commonwealth, in which the plaintiff seeks a determination that Kentucky's economic development subsidies and tax breaks violate Section 177. Click here and decide for yourself if arbitrarily giving deals or donations to individual companies comports with the plain language of our founding document.

Mr. Enochs also claims this issue was already decided when the Kentucky Supreme Court upheld in 1987 a statute enacted in 1986 to allow such donations to be given to Toyota Motor Manufacturing. This miscarriage of justice, as well-intentioned as it was, opened the flood gates to many more such well-intentioned but far less beneficial deals.

That 1987 court case was based on theory. The one in 2013 will be based on a quarter century of facts. Those facts will not be kind to those who want to argue that the basis for violating the Constitution in 1986 was reasonable.

Rooting out invalid "public purposes" in Kentucky law will not be a comfortable process for the bureaucrats and politicians who have built great fortunes subverting constitutional principles in the name of the public "good."

The evidence will convict them.

Let my people go!

There is a quick, cheap and easy way out of ObamaCare for most Kentuckians but the powers that be conspire to keep it from us in a way that shines a bright light on all that is wrong with government-controlled health insurance.

Consider first an Associated Press story out this weekend with the headline "Christian health program back in Kentucky." The story refers to a judge's ruling allowing Christian Medi-Share back into the state while mentioning that a legislative bill signed by Governor Beshear had a similar effect a month ago and that the company had actually resumed operations then.  

These actions return the number of such religious health sharing plans to three for Kentuckians as Christian HealthCare Ministries and Samaritan Ministries were never forced out as Christian Medi-Share was.

This AP story glosses over the significance of this event in by failing to mention that individuals and families who join these groups become exempt from the ObamaCare individual coverage mandate and federal penalties attached to not buying government-controlled health insurance. It also misleads readers about costs of these programs when it states "Medi-Share ... participants, who pay an average of $300 a month" without specifying that this amount covers an entire family. Kentucky's ObamaCare premiums will cost about that much per person.

Unfortunately, this media perpetuated ignorance is just part of the problem.

Kentucky needs to go back in and expand its exemption to eliminate the state government created black market effect in these plans and our congressional delegation should lead the way on expanding the federal exemption to allow creation of more competition in the marketplace for free market healthcare.

Politicians who talk about repealing ObamaCare but refuse to help with these needed reforms need to explain in detail how they are not part of the problem. Click here for a detailed explanation of what we need to do.

And to be completely clear, we need to expand this coverage option to include non-Christians as soon as possible, too. It's the Christian thing to do and if the people who pushed us into the trainwreck want a way out politically from the disaster they have created, this would do it.

Beshear preparing to shut ObamaCare Exchange

Kentucky Governor Steve Beshear has removed responsibility for Kentucky's unconstitutional Medicaid expansion from his illegal Health Benefit Exchange, we learned today.

That's probably a good idea because a hearing in Franklin Circuit Court on Thursday, August 1 could result in the state shutting down it's ObamaCare "exchange."

And that's very likely to happen because the Constitution sets clear boundaries between the authority of the legislature and the Executive Branch.

"If the Governor's challenged actions are upheld, the Legislative Branch would become irrelevant," said Michael Dean, attorney for the tea party plaintiffs.

Completing the application process for Medicaid, now the job of the Department for Medicaid Services, was made more difficult today by a ruling opening the door for finding that process unconstitutional before state bureaucrats can complete their work.

Judge paves way for win in Medicaid Expansion lawsuit

With two just issued court orders, a Franklin County (KY) Circuit Court judge changed the dynamics of Kentucky Governor Steve Beshear's plan to expand Medicaid under ObamaCare, increasing the likelihood of a tea party victory.

Judge Phillip Shepherd has effectively placed Tea Party activist David Adams, plaintiff in the case, on an even playing field with the Governor going forward in the case by forcing the Governor to answer questions about his ObamaCare actions, by setting a date for resolution of the case prior to ObamaCare open enrollment on October 1 and leaving the door open for stopping the Beshear Administration from making an end run around the process and signing Kentucky up for Medicaid expansion with the Obama Administration before the case is fully heard.

"Governor Beshear needs to follow proper procedure in Kentucky because our laws and our Constitution are stronger than those of the federal government in protecting individual rights," Adams said. "Of course, neither are any good if we don't use them. I appreciate Judge Shepherd for recognizing the value of our republican form of government and acting to restrain the Governor in this way. Without proper process, we couldn't win. With it, the facts and the Constitution speak for themselves and for us. Now we can win."

The application process for the Medicaid expansion is being managed by the Kentucky Health Benefit Exchange, whose very existence is in jeopardy with an August 1 hearing back in Judge Shepherd's courtroom.   

Beshear defaults

Kentucky Governor Steve Beshear has failed to respond to a lawsuit challenging the constitutionality of his most potent political weapon, economic development incentives. The suit was filed on July 2; Beshear and Attorney General Jack Conway were served on July 3. 

"Governor Beshear has raised abusing this illegitimate power of picking winners and losers in the marketplace to an art form," David Adams, plaintiff in the lawsuit, said. 

"The flimsy legal case for doling out 'incentives' in Kentucky hinges on something called 'public purpose,' while the results of decades of this practice show that if we were really interested in serving the public we wouldn't be screwing around like this. The Kentucky Constitution literally demands that we stop the corporate welfare nonsense and lower regulatory costs on job creators if jobs are what we want to create." 

Beshear/Obama lose again in Kentucky

Gov. Steve Beshear lost another motion in court today when a Franklin Circuit judge refused to grant his request to skip discovery in a Tea Party case challenging the legality of Kentucky's ObamaCare Medicaid expansion.

Judge Phillip Shepherd set the next order of business as ruling on constitutionality of KRS 205.520(3), the statute Beshear cited as justification for attempting to accept a dramatic increase in the size of the state's Medicaid program.

"The law grants extraordinary power to the Governor to accept federal money for 'medical assistance' and that violates the plain language of Section 2 of the Kentucky Constitution," said David Adams, plaintiff in the case.

Section 2 of the Constitution of the Commonwealth of Kentucky says "Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority."

KRS 205.520(3) says: Further, it is the policy of the Commonwealth to take advantage of all federal funds that may be available for medical assistance. To qualify for federal funds the secretary for health and family services may by regulation comply with any requirement that may be imposed or opportunity that may be presented by federal law. Nothing in KRS 205.510 to 205.630 is intended to limit the secretary's power in this respect.

Beshear sends ridiculous letter

Governor Steve Beshear has refused to answer even a single discovery question in our lawsuit to stop his illegal creation of the ObamaCare Kentucky Health Benefit Exchange, so when I got a letter from his attorney today chastising me for investigating his unconstitutional Medicaid Expansion I had to laugh.

"Showing up unannounced at the offices of the Health Benefit Exchange is not an appropriate way to obtain information so long as your lawsuit is pending," wrote Beshear attorney Mark D. Guilfoyle. He asked me to submit questions to him in writing, including open records requests.

My suggestion to Mr. Guilfoyle (and Mr. Beshear hiding behind Guilfoyle's skirt) is that he (or perhaps, they) take the earliest possible opportunity to travel to somewhere near the middle of Mammoth Cave underground without navigational tools of any kind.

Click here to read the whole letter.