Kent Masterson Brown

Law Offices of Kent Masterson Brown
315 N. Broadway
Lexington, Kentucky 40508-1705
(859) 455-9330
(859) 455-9430 Facsimile

B.A. History, Centre College of Kentucky, Danville, Kentucky, 1971

J.D., Washington & Lee University School of Law, Lexington, Virginia, 1974

Phi Alpha Theta Honorary History Fraternity

Attorney in the private practice of law in Kentucky and Washington, DC, 1974 to the present.

Emphases of law practice are in the fields of health, Medicare, Medicaid, administrative and constitutional law, civil trials, and appeals.

Bar Register of Preeminent Lawyers

Member of the Kentucky Bar since 1974

Supreme Court of the United States (1978)

Supreme Court of Kentucky (1974)

United States Courts of Appeals for the Sixth (1975), Fifth (1989), Eighth (2005), Eleventh (1985) and District of Columbia (1993) Circuits

United States District Courts for the Eastern District of Kentucky (1977), Central District of Illinois (1985) and Western District of Kentucky (1999)

Trial and appellate litigation involving mostly the adjudication of issues (most of them constitutional issues) arising out of the regulation of the health care industry and the administration of the Medicare and Medicaid programs and other state and federal health care programs. Many of the published cases are frequently-cited.

Exemplary are the following reported cases:

Driscoll v. Stucker, et al., 893 So.2d 32, 22 IER Cases 390, 2004-0589 (La. 1/19/05) (La., 2005). Successful appeal in Supreme Court of Louisiana of judgment against academic dean and Louisiana State University Health Sciences Center (LSUHSC) awarding $540,000 in lost earnings and $75,000 in general damages for violation of Article 1, §2 of the Louisiana Constitution by dean and LSUHSC after they systematically denied graduate of residency program due process of law by retracting recommendation of board eligibility and refusing to provide him notice and an opportunity to be heard.

Driscoll v. Stucker, et al., 865 So.2d 328, 38,133 (La.App. 2 Cir. 2/4/04). Successful appeal of judgment against academic dean and Louisiana State University Health Sciences Center (LSUHSC) awarding $540,000 in lost earnings and $75,000 in general damages for violation of Article 1, §2 of the Louisiana Constitution by dean and LSUHSC after they systematically denied graduate of residency program due process of law by retracting recommendation of board eligibility and refusing to provide him notice and an opportunity to be heard.

DeWall Enterprises, Inc. v. Thompson, 206 F.Supp.2d 992 (D.C. Neb. 2002). Successful first impression action challenging Secretary of U.S. Department of Health and Human Services for his failure and refusal to implement coding determinations for an orthotic device made by three (3) Administrative Law Judges (ALJs) over the course of eleven (11) years. Court entered preliminary injunction and writ of mandamus against the Secretary. It is the first reported case where a court has directed that the doctrine of collateral estoppel is applicable to the Secretary for his failure and refusal to adhere to decisions of his ALJs with respect to coding under Medicare.

United Seniors Ass'n., et al. v. Shalala, 182 F.3d 965 (D.C. Cir. 1999). Successful challenge by nearly 1 million Medicare beneficiaries to the constitutionality of Section 4507 of the Balanced Budget Act of 1997 which prohibited Medicare beneficiaries from using their own money to pay for "otherwise covered" health care services. The action was supported by fifteen amici curiae, including the American Civil Liberties Union, Atlantic Legal Foundation, Citizens Against Government Waste, National Taxpayers Union, Cato Institute, Libertarian Party and Texas Public Policy Foundation. This case was widely publicized. Press conferences were carried by all major news outlets. It received lengthy comment in the The Wall Street Journal, The Washington Post, The Washington Times, and all the Knight-Ridder and Gannett newspapers, and three briefings were covered in their entirety by C-SPAN. The Court found that it did not have to reach the constitutionality of Section 4507 because the Secretary, in defending the action, so limited the application of Section 4507 and so liberalized the use of Advance Beneficiary Notices and, at the same time, limited her authority to sanction physicians, that health care services could be freely offered privately without reference to the challenged statute. It is an important decision on the issue of beneficiaries' access to health care.

Yeoman v. Commonwealth of Kentucky, Health Policy Board, et al., Ky., 983 S.W.2d 459 (1998). Constitutional challenge to Kentucky's Health Care Reform Act of 1994 (H.B. 250) on multiple grounds, including that the Act was enacted at the behest of a private foundation and, when enacted, was implemented using the money and personnel provided by that same foundation in violation of Kentucky's constitutional ban on "special legislation." Challenged also was the constitutionality of the Act's provider tax. A sharply divided Supreme Court of Kentucky - 3 justices voting to uphold the Act; 3 justices voting to strike down the Act; and 1 justice voting to concur with the 3 justices who determined to uphold the Act, but for different reasons - let the Act stand. The plurality upholding the validity of the Act acknowledged in their opinion that "there is no question" that the foundation played a "key role in the passage of HB 250" and "there is no question" that the foundation "sought to further its own goals by HB 250."

Dawson, et al. v. Birenbaum, Ky., 968 S.W.2d 663 (1998). Successful first impression appeal of denial of post-judgment attorneys' fees in a successful civil rights (42 U.S.C. §1983, §1988) action against the Kentucky Medical Licensure Board before the Supreme Court of Kentucky. Supreme Court held attorneys fees were recoverable even though judgment was based upon statutory grounds, not federal constitutional grounds, so long as allegations of constitutional violations were not insubstantial.

Adventist Health Systems, Inc., et al. v. Trude, et al., Ky., 880 S.W.2d 539 (1994). Successful original action for writ of prohibition and writ of mandamus in the Supreme Court of Kentucky against a circuit court judge to prohibit disclosure of hospital peer review documents protected by the Kentucky Peer Review Act, K.R.S. 311.377.

Commonwealth of Kentucky v. Smith, et al., Ky., 875 S.W.2d 873 (1994). Constitutional challenge in the Supreme Court of Kentucky to the two percent (2%) provider tax instituted for purposes of Medicaid Funding and a challenge to the creation of the Kentucky Health Care Data Commission. Successful before trial court. Reversed in the Supreme Court of Kentucky (5 to 2) with two vigorous dissenters. Kentucky Health Care Data Commission was voided by the trial court, and the Commonwealth of Kentucky never appealed that part of the decision.

A.A.P.S., et al., v. Clinton, et al., 813 F.Supp. 82 (D.D.C. 1993) rev'd and remanded, 997 F.2d 898 (D.C.Cir. 1993); and A.A.P.S., et al. v. Clinton, et al., 837 F. Supp. 454 (D.D.C. 1993). Successful challenge in the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit under the Federal Advisory Committee Act (FACA) to whether the President's Task Force on National Health Care Reform is a FACA Committee, raising the first-impression issue of whether the First Lady, Hillary Rodham Clinton, was a "full-time officer or employee of the Federal Government," and whether the Interdepartmental Working Group of the Task Force was a Federal Advisory Committee. District Court granted preliminary injunction, and later entered sanctions against Hillary Rodham Clinton, et al. for discovery abuse. Court of Appeals remanded for discovery as to makeup of Interdepartmental Working Group. Amicus curiae included Pacific Legal Foundation, National Taxpayers Union, the Bipartisan Leadership of the U.S. House of Representatives, and the Reporters Committee for the Free Press, all in support of the plaintiffs. All records of the Task Force were released by the White House on September 7, 1994. The case received attention from every news outlet in the nation. All major newspapers, New York Times, Washington Post, Boston Globe, Los Angeles Times, Chicago Tribune, Wall Street Journal, Washington Times, and others regularly reported progress of case. News conferences were covered by all television networks, and preliminary injunction was subject of Nightline.

Stewart v. Sullivan, 816 F.Supp. 281 (D.N.J. 1992). Successful case in the United States District Court for the District of New Jersey challenging whether the U.S. Department of Health & Human Services and the Health Care Financing Administration can prevent Medicare beneficiaries and their physicians from privately contracting for health care services and not file any claims for payment with Medicare. The case received wide attention in the media, particularly the The Wall Street Journal, as a landmark in the area of patient rights.

Coy v. Florida Birth-Related Neurological Injury Compensation Association, 595 So.2d 943 (Fl. 1992). First-impression civil rights case in the Supreme Court of Florida challenging whether the State of Florida may constitutionally tax only physicians in an attempt to fund a statewide program for coverage of birth-related neurological injury treatment for the citizenry in general. Although unsuccessful, the Supreme Court of Florida was sharply divided (4 to 3) with three vigorous dissenters.

Caine v. Hardy, et al., 943 F.2d 1406 (5th Cir. 1991) (en banc), cert. den. 112 S.Ct. 1474 (1992). First impression challenge in the United States Court of Appeals for the Fifth Circuit to whether the State of Mississippi, by enacting a statute allowing an aggrieved physician to proceed to a state chancery court after his or her hospital medical staff privileges have been revoked, may, constitutionally, deny a physician the right to file a civil rights action (42 U.S.C. §1983) in a federal forum against the public hospital administrators within the recognized statute of limitations.

Georgia Ophthalmic Network v. Sullivan (N.D. Ga. 1991) (unpublished). Successful challenge to the attempt on the part of the Georgia Medicare Carrier to recoup Medicare payments made to all Georgia ophthalmologists after Medicare had incorrectly set the rates for such services. One million dollars ($1,000,000.00) recovered from Medicare for all Georgia ophthalmologists.

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990). Whether the state, upon application of the guardians, may constitutionally withdraw nourishment from a patient in a "persistent vegetative state." Amici curiae in the Supreme Court of the United States for a number of physician organizations and for Surgeon General C. Everett Koop.

A.A.P.S., et al. v. Bowen, et al., 909 F.2d 161 (6th Cir. 1990). Successful challenge in the United States Court of Appeals for the Sixth Circuit to the requirements of the U.S. Department of Health and Human Services and its Medicare intermediaries that all clinical diagnostic laboratory services performed for Medicare beneficiaries be billed only on an assigned basis. Secretary of U.S. Department of Health and Human Services was enjoined from threatening physicians who billed Medicare for laboratory services on a non-assignment basis as such threats were contrary to the Medicare Act.

Adkins, etc. v. Sarah Bush Lincoln Health Center, 129 Ill.2d 497, 136 Ill. Dec. 47, 544 N.E.2d 733 (Ill. 1989). First impression case before the Supreme Court of Illinois involving whether the Illinois antitrust laws apply to medial staff credentialling decisions; whether the Illinois Peer Review Act creates a cause of action for wilful violation of hospital bylaws; and, whether hospital bylaws were breached thereby necessitating injunctive relief under the exception to the rule of non-review in Illinois.

Whitney, et al. v. Heckler, 603 F.Supp. 821 (N.D. Ga. 1985), 780 F.2d 963 (11th Cir.), cert. den. sub nom. Whitney v. Bowen, 479 U.S. 813 (1986). Constitutional challenge in the United States Court of Appeals for the Eleventh Circuit to the physician fee freeze in the Medicare Amendments to the Deficit Reduction Act of 1984. The case successfully established standing for aggrieved physicians to challenge Medicare requirements without being required to prove direct damage. The case is one of the most frequently-cited precedents for standing in Medicare law.

Patrick v. Burgett, 486 U.S. 94 (1988). Whether peer review in a hospital is exempt from the Sherman Antitrust Act under the "State action" doctrine established in Parker v. Brown. Amicus curiae in the Supreme Court of United States.

Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2 (1984). Whether an exclusive contract for anesthesiology in a hospital is a per se violation of the Sherman Antitrust Act. Amicus curiae in the Supreme Court of the United States.

Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119 (1982). Whether claims peer review in the chiropractic field is the "business of insurance" for purposes of the McCarran-Ferguson Exemption to the Sherman Antitrust Act. Amicus curiae in the Supreme Court of United States.

People of the State of New York v. Roth, et al., 419 N.Y.S.2d 851 (Nassau County Court 1979). Successful defense of criminal antitrust case which involved the first impression legal question of whether the New York State antitrust laws (Donnelley Act) applied to the medical profession.

Frederick v. University of Kentucky Medical Center, 596 S.W.2d 30 (Ky. App. 1979). First-impression challenge in the Kentucky Court of Appeals to state hospital invoking the doctrine of sovereign immunity after the enactment of the Kentucky Medical Malpractice Act and the University of Kentucky Medical Center Malpractice Act. Although unsuccessful, the Frederick case was later overruled by the Supreme Court of Kentucky in a later case in which the Frederick argument was adopted.

Renforth v. Fayette Memorial Hospital, Inc., 383 N.E.2d 368 (Ind. App. 1978). Constitutional challenge in the Indiana Court of Appeals and Supreme Court of Indiana to hospital requirement that medical staff members purchase minimum amounts of medical liability insurance as a condition of medical staff membership.

McGuffey, et al. v. Hall, et al., Ky., 557 S.W.2d 401 (1977). Successful constitutional challenge in the Supreme Court of Kentucky to Kentucky Medical Malpractice Act of 1976. The Supreme Court of Kentucky struck down the statute in a unanimous decision. In a following case, $3.8 million recovered from State excess liability fund by Kentucky physicians.

See also:

Downhour v. Somani, 85 F.3d 261 (6^th Cir. 1996) and American Society of Dermatology v. Shalala, 962 F.Supp. 141 (D.D.C. 1996)

Non-health Related Cases:

Lohrenz v. Donnelly, et al., 350 F.3d 1272 (D.C.Cir. 2003) and Lohrenz v. Donnelly, et al., 223 F.Supp.2d 25 (D.D.C. 2002). Successful defense of libel action brought against group of retired military officers and their association by one of the first two women to enter Navy combat aviation after Clinton administration lifted the ban on women in combat, where officers and their association criticized the Navy for advancing pilot into F-14 service after she had not shown the same aptitude for such flying as required of male candidates. In a 56-page opinion, the District Court granted officers and association summary judgment, finding the pilot to be a limited-purpose public figure and statements made were without malice. In a unanimous decision, the United States Court of Appeals for the District of Columbia Circuit affirmed the District Court's granting of summary judgment. The case received wide media coverage across the nation, and it was given a full segment on Dateline NBC.

City of Harrodsburg v. Royalty, et al., Ky., 73 S.W.3d 618 (2002). Successful civil rights action (42 U.S.C. §1983) against the officials of the City of Harrodsburg enjoining efforts by city commission to remove mayor from office. Walters v. Moore, et al., ___ S.W.3d ___ (Ky.App. 2003). Successful appeal of awarded attorneys fees under 42 U.S.C. §1988 after action enjoining city commission from removing mayor of the city of Harrodsburg.

Libertarian Party of Kentucky v. Ehrler, 776 F.Supp. 1200 (E.D.Ky. 1991). Successful constitutional challenge in the United States District Court for the Eastern District of Kentucky to Kentucky elections laws which inhibited ballot access for independent candidates for Governor and other Constitutional offices.

Taub v. Commonwealth of Kentucky, 842 F.2d 912 (6th Cir. ), cert. den. 488 U.S. 870 (1988). Constitutional challenge in the United States Court of Appeals for the Sixth Circuit to Kentucky bonding statute designed to encourage Toyota Motor Corporation to establish its auto-manufacturing facilities in Kentucky. A frequently-cited case on the issue of taxpayer standing to challenge state legislative enactments. (Three Supreme Court Justices - Justices White, Brennan and Marshall - voted to grant certiorari).

Stuart v. Capital Enterprise Ins. Col., 743 S.W.2d 846 (Ky. App. 1987). Successful first impression challenge in the Kentucky Court of Appeals to coverage under the Kentucky No-Fault Insurance Law.

Barton v. Bergland, 444 F.Supp. 447 (E.D.Ky.), aff'd, 579 F.2d 1009 (6th Cir. 1978). Constitutional challenge in the United States Court of Appeals for the Sixth Circuit to the Tobacco Inspection Act of 1935 and its enforcement prohibiting the grading of burley tobacco not tied in "hands." The case caused the Secretary of Agriculture to change the policy of the department to allow grading of tobacco in bales. Tobacco is now only graded in bales.

Senate Finance Committee (1998). Provided testimony seeking repeal of §4507, the statute that prohibited Medicare beneficiaries from using their own money to pay for health care services.

Conducted a comprehensive title and historical examination of Abraham Lincoln's Boyhood Home in LaRue County, Kentucky for the National Park Service and the Georgia Trust for Historic Preservation. The report was used to support a Bill authorizing the National Park Service to acquire the site as an addition to the Abraham Lincoln Birthplace National Historic Site (1997)

Subcommittee on Environment, Energy and Natural Resources, Committee on Government Operations, U.S. House of Representatives, on a Gettysburg National Military Park land exchange issue (1994). Testified as an expert on the Battle of Gettysburg.

Judiciary Committee of the United States House of Representatives on the Health Care Quality Improvement Act of 1986 (1986)

Judiciary Committee, United States House of Representatives, The Act to Repeal the McCarran-Ferguson Exemption from the Federal Sherman Antitrust Act (1985)

Ways & Means Committee of the United States House of Representatives, Federal Alternative Medical Malpractice Insurance Act (1984)

Judiciary Committee, United States Senate (1975)

Health Subcommittee, United States Senate (1975)

Conducted an investigation for, and testified before, House of Representatives, Education Committee, Subcommittee on House Resolution No. 37, Commonwealth of Pennsylvania, on the Medicaid program and school-based clinics (Summer and Fall, 1995). Testimony lasted for nine (9) hours and was video-recorded. It can be provided upon request.

Counseled the Republican members of the Missouri Legislature on the Medicaid program and Governor Mel Carnahan's attempt to implement school-based clinics under a private foundation's grant program (Spring, 1996).

Hearings, State Medical Licensure Boards in Kentucky, Ohio, Georgia, Florida, New York, Tennessee, Texas, Mississippi, Indiana, Illinois, and California

Hearings, Judicial Counsel and Claims Committees of State Medical Associations

Hearings, Utilization and Quality Control Peer Review Organizations (PROs) and Certificate of Need and Licensure Boards in such states as Kentucky, Indiana, Illinois, Tennessee, Florida, New York, Texas, and Georgia

Appeals, Office of the Inspector General, Medicare, and Secretary of Health & Human Services, Baltimore, Maryland

Counseling of physicians, hospitals, nursing homes, and other health care providers in complying with Federal and State laws and regulations, and the establishment Preferred Provider Organizations, Independent Provider Associations and Health Maintenance Organizations

Drafted medical staff bylaws, rules and regulations for hospitals in fifteen (15) different states

Served as counsel for Columbia Hospitals, Adventist Hospitals and other hospital systems, including Catholic hospitals

Member, Kentucky Abraham Lincoln Bicentennial Commission, appointed in 2004.

Chairman, Kentucky Heartland Civil War Trails Commission (appointed by Congressman Ron Lewis (R-KY))

Member, Lower Mississippi Valley Civil War Task Force 1995 to 1997 (appointed by Louisiana Lt. Gov. Melinda Schwegmann)

Chairman, Perryville Battlefield Commission, 1993 to 1997 (appointed by Kentucky Governor Brereton C. Jones)

Trial Commissioner, Fayette Circuit Court, Kentucky, 1985-1988, and 1993-1995

Member, Kentucky Military History Museum Commission, 1991 to 1995 (appointed by Kentucky Governor Wallace G. Wilkinson)

Chairman, Gettysburg National Military Park Advisory Commission, 1991 to 1995 (appointed by the United States Secretary of Interior Manuel Lujan)

Commissioner, Kentucky Registry of Election Finance (3 terms) 1981 to 1991; Interim Chairman, 1987 (appointed by Kentucky Govs. John Y. Brown, Jr. and Martha Layne Collins)

Colloquium on "Freedom, Federalism, and the Virginia and Kentucky Resolutions of 1798" sponsored by the Liberty Fund at Charlottesville, Virginia (1999)

Lecturer, Heritage Foundation, Washington, D.C., June, 1998, June, 1999 and June, 2000

"Health Care Reform," Lecture, National Association of Health Underwriters: Washington, DC, March, 1997; Charlottesville, Virginia, April, 1997; Salt Lake City, Utah, May, 1997; Portland, Oregon, September, 1997; Detroit, Michigan, September, 1997; San Diego, California, January, 1998; Nashville, Tennessee, May, 1998; Omaha, Nebraska, April, 1999

"Rule of Law," The Wall Street Journal (October 1, 1997); Editorial writer, The Washington Times, Knight-Ridder newspapers and Gannett newspapers

Colloquium on "The Doctrine of States' Rights and the American Constitution," sponsored by the Liberty Fund at Brookneal, Virginia (1995)

Contributing Editor and Writer, Health Care Guide, "Medicare Secondary Payer Act Issues", "Health Care Reform", Mamorsky, J.D., ed. (Warren Gorham Lamont, 1994)

"The Law of Peer Review," Lecture, National Health Lawyers Association, Toronto, Canada, Spring, 1989

"PROs and the Law," Seminar Lectures, Dallas, Texas, January 1988; Chicago, Illinois, May, 1988; San Francisco, California, October, 1988

"Medical Staff Bylaws", Seminar Lectures, Scottsdale, Arizona, September, 1990; Los Angeles, California, August, 1988

"The Physician and Medicare", Seminar Lectures, Atlanta, Georgia, October, 1988; Columbus, Ohio, May, 1989; Orlando, Florida, September, 1989; Decatur, Georgia, December, 1988, 1989; Toledo, Ohio, April, 1990; Lexington, Kentucky, September 1991; Bergen County, New Jersey, January, 1992; Dayton, Ohio, February, 1994

"Hospital Liability for Premature Discharge," 3 Prospective Payment Review (January, 1985)

Writer, Preventive Law Reporter (1984)

Editorial Board and Writer, 1987-present, Medical Office Management Magazine

Retreat from Gettysburg: Lee, Logistics, and the Pennsylvania Campaign. Chapel Hill: University of North Carolina Press, 2005

The Civil War in Kentucky: Battle for the Bluegrass State. Mason City: Savas Publishing Co., 2000