by Dan Margolies, Kansas News Service
A day after Kansas notified Planned Parenthood in May 2016 that it would cut off its participation in Medicaid, the nonprofit group sued to block the move.
So Kansas hired three high-powered East Coast law firms to defend it in a case that would slog on for nearly three years before Democratic Gov. Laura Kelly’s administration agreed to drop the termination effort in April.
The case dates back to the administration of Gov. Sam Brownback, a Republican who vowed to defund Planned Parenthood after he accused it of profiting from the sale of fetal tissue.
The state’s legal defense cost taxpayers at least $899,000, according to records obtained by KCUR through the Kansas Open Records Act.
One of the law firms retained by Kansas — Washington, D.C.,-based Consovoy McCarthy Park — represents President Donald Trump in a lawsuit seeking to block his accounting firm from complying with a congressional subpoena of Trump’s financial records. (A federal judge on Monday ruled that the accounting firm must comply with the subpoena.)
A boutique firm boasting several former U.S. Supreme Court law clerks, Consovoy McCarthy billed more than $396,000 for its work on the Medicaid termination case from August 2016 through August 2018, invoices from the firm show.
One of the biggest law firms in the world, Norton Rose Fulbright, billed Kansas more than $471,000 for work it performed during the same two-year span.
And a third firm specializing in litigation, Cooper & Kirk, billed nearly $31,000 for a month’s worth of work in June 2016. (The firm had initially billed $61,910, but a note on the invoice states it was “renegotiated per Governor’s office 12/22/16.”)
The law firms commanded billing rates ranging from $492 per hour to $750 an hour. Those compare with average billing rates for Kansas law firms of $244 an hour, according to a 2017 survey by the Kansas Bar Association.
Law firm invoices typically provide detailed descriptions of the services they rendered. However, those portions of the invoices were blacked out in the copies obtained by KCUR. So it’s unclear what work the firms performed for the money.
Katelyn Radloff, an attorney with the Kansas Department of Health and Environment, the defendant in the case, told KCUR in an email that the redacted portions fell under the attorney-client privilege exception to the Kansas Open Records Act.
Ordinarily, the state attorney general’s office defends Kansas in suits brought against it or its agencies. But occasionally — and especially in matters involving complex litigation — the state hires outside counsel to represent it.
A spokesman for Kansas Attorney General Derek Schmidt did not respond to questions about why the state chose to hire outside counsel in this case rather than have the attorney general’s office defend the case.
Ashley All, a spokeswoman for Kelly, made clear in an email that the newly elected governor regarded the case as a waste.
“Multiple courts ruled against the previous administration’s effort to remove Planned Parenthood as a KanCare provider,” All said. “To continue with this costly litigation would be unwise and out of step with the priorities of Kansas. Governor Kelly is focused on expanding healthcare options to women, not limiting them.”
It’s not clear how many patients would have been affected, or how much money Planned Parenthood would have lost, had Kanas succeeded in its effort to cut off its Medicaid funding. But a similar — and so far successful — effort by the state of Missouri has affected several thousand Planned Parenthood patients.
Video release
Kansas was originally represented in the case by Stephen R. McAllister, a former University of Kansas Law School dean who served as Kansas solicitor general for more than a decade before becoming U.S. attorney for Kansas in 2018.
McAllister, however, withdrew from the case without explanation less than two weeks after the suit was filed by Planned Parenthood of Kansas and Mid-Missouri (now Planned Parenthood Great Plains) and Planned Parenthood of the St. Louis Region, which had a handful of patients in Kansas.
Kansas was one of several Republican-controlled states that tried to defund Planned Parenthood after a video released in late 2015 by an anti-abortion group purported to show the organization sold fetal tissue for profit. Subsequent investigations discredited the highly edited video, which, in any case, concerned only the national Planned Parenthood organization, not its Kansas affiliate.
But in his State of the State address in January 2016, Brownback accused Planned Parenthood of trafficking in “baby body parts” and vowed to defund Planned Parenthood. The state made good on his threat on May 3, 2016, when the Kansas Department of Health and Environment notified Planned Parenthood that it was terminating its Medicaid contract.
Planned Parenthood of Kansas and Mid-Missouri and Planned Parenthood of the St. Louis Region sued the next day. At every stage of the case, the state lost.
In July 2016, U.S. District Judge Julie Robinson granted Planned Parenthood’s request for a preliminary injunction, ruling that the move likely violated federal law.
After Kansas appealed, the 10th U.S. Circuit Court of Appeals in February 2018 ruled that states may not cut off health care providers from Medicaid “for any reason they see fit, especially when that reason is unrelated to the provider’s competence and the quality of the healthcare it provides.”
Kansas then asked the U.S. Supreme Court to take up the case, but the court in December declined, turning away both the Kansas case and a similar case appealed by Louisiana.
The high court’s decision to stay out of the issue let stand decisions by five federal appeals courts that have ruled in favor of Planned Parenthood and one federal appeals court that has ruled against it.
While Planned Parenthood Great Plains, which operates health centers in Kansas, Missouri, Arkansas and Oklahoma, never lost its Kansas Medicaid funding, the story is different in Missouri.
A year ago, that state suspended Medicaid reimbursement payments to the organization’s affiliates in Missouri, saying the suspension was required by a provision in the 2018 state budget cutting off funds for abortion providers and counselors.
The move affected about 7,000 Medicaid patients who relied on Planned Parenthood’s 11 Missouri clinics for health services, including cancer screenings, testing for sexually transmitted infections and birth control.
Although federal law already barred the use of Medicaid funds for abortions, Missouri cut off funding for all of Planned Parenthood’s services.
Kate Maxcy, a spokeswoman for Planned Parenthood Great Plains, said that while the affiliates technically remained in the Medicaid program, they haven’t been reimbursed for services for nearly a year.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies. Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to kcur.org.
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