What will KentuckyOne Health and other employers do?

For a single day following Judge G. Heyburn’s historic court order requiring Kentucky to recognize legal same-sex marriages from out-of-state, such couples were legally able to do things that many of us take for granted such as changing names on drivers licenses. Sadly, there are reports that despite having two weeks to prepare, some clerks turned people away yet again. Confusion about what to do seemed the socially acceptable and perhaps even understandable excuse. This was the justification offered by the Attorney General’s office in requesting a 90-day stay of the Judge’s order so that the Commonwealth could prepare for an orderly implementation of the new law, and to minimize confusion.

The Judge balanced the lack of any strong argument that the Commonwealth would be harmed by moving forward, against the further injustice of enforcing unconstitutional policy. He may also have been influenced by information presented at Friday’s hearing that some married couples would in fact be harmed by a further 90-day interval. In the end, Judge Heyburn stayed his order of February 27 for 20 days until March 20 to allow the state “proper time to administratively prepare for compliance with the Order.”

Will or won’t the Commonwealth appeal?
A decision of whether or not the Commonwealth will appeal the underlying Order within the allowable 30 days will apparently be made soon. The basis for such an appeal would likely be that the Attorney General has a responsibility to enforce state laws and policy. Of course that is a justification used in the past to suppress the civil rights of minorities. I believe that our Governor and Attorney General will not appeal, even without the cover provided by the United States Attorney General advising that states’ Attorneys General need not defend unconstitutional laws, or last June’s US Supreme Court’s United States v. Windsor decision that turned gay-rights marriage law on its head. This high-drama matter will play out in Kentucky and several other states as it will. In the meanwhile, it is not only the Commonwealth of Kentucky that must prepare for compliance with the new law, but other public and private institutions that have used Defense of Marriage- type laws to support their choice not to recognize legal same-sex marriages. I predict much squawking and maneuvering to avoid doing the right thing as occurred following other civil rights actions in the past.

Here in Kentucky, one of the most prominent actors who will have to change their spots is KentuckyOne Health, the hospital corporation that manages several facilities around the state including in Louisville: Jewish, Sts’ Mary and Elisabeth, Our Lady of Peace, and the University of Louisville Hospitals. Currently in these hospitals, the legal marriages of same-sex families are not recognized for the purposes of employee healthcare and other benefits. In the case of University Hospital, and following the directives of its Catholic parent company, benefits that same-sex partners earned from the previous manager of the hospital were taken away by KentuckyOne Health.

What will KentuckyOne Health do? What should it do?

Before Judge Heyburn issued his final Order, I asked KentuckyOne the following questions without a response. After his Order, I resubmitted my questions but am still waiting. In the meantime I submit them for your consideration too. How do you think KentuckyOne should respond?

On February 12, Federal Judge John Heyburn ruled that Kentucky’s statutes and constitutional amendment that prohibit recognition of the marital status of same-sex couples legally married in other states is unconstitutional, [and on February 27 issued a final Order that changes Kentucky’s law.]

1. Will KentuckyOne Health change it’s policy with respect to employee health and other employee benefits and make the same benefits currently available to other married couples available to same-sex married couples?

2. If KentuckyOne Health is not going to change its policy, how is this being justified to your employees?

3. If KentuckyOne Health is going to accept Judge Heyburn’s ruling on same-sex employees legally married in other states, will you also extend the same benefits to same-sex partners in committed relationships who are not legally married as the University of Louisville currently does? Would such same-sex partners be treated differently from married ones?

4. KentuckyOne Health currently allows the same-sex partners of employees to be covered for health insurance purposes if the employee is willing and able to claim their partner as a dependent. Are any children of the “dependent” partner who is not a legal child of the employee covered under that designation, or is only the same-sex partner [“dependant”] covered as an individual?

5. Does KentuckyOne Health currently allow an unmarried employee with a “different-sex” partner in a committed relationship to claim that individual as a dependent for purposes of health insurance or other employee benefits?

6. Does KentuckyOne Health have any other comments on Judge Heyburn’s ruling?

[7. Today I add an additional question.]  University Hospital is now two hospitals under one roof. One part is still managed by University Medical Center, Inc., largely including women’s reproductive health and the hospital pharmacy; and all the rest managed by KentuckyOne and constrained by the Ethical and Religious Directives of the Catholic Church. Which corporation provides employee benefits to which segment of the hospital or both? Are employee benefits for the two segments of employees working under the same roof different, or are the employees of UMC in legal marriages or committed same-sex relationships still receiving the benefits they have earned and enjoyed for years? If different, what is the justification for the disparity?

Thank you for your help.

Peter Hasselbacher, MD
President, KHPI
Emeritus Professor of Medicine, UofL
March 2, 2014
Eighteen days to go!