[1994/oagheade.htm]

OAG 94-47

June 27, 1994

Suetta Dickinson

General Counsel

Department of Insurance

P.O. Box 517

Frankfort, Kentucky 40601

Dear Ms. Dickinson:

Your predecessor, Patrick Watts, requested our opinion on the validity of KRS 205.575(14)(d). In our opinion the statute is valid.

KRS 205.575(14) states:

Hospitals participating in the provisions of this section shall:

* * *

(d) Accept as payment in full benefits of student health insurance described in KRS 304.18-115 where such payment is at least equal to the hospital's medicaid rate[.]

The statute referenced in the paragraph above, KRS 304.18-115, requires every student at a public or independent institution of higher education located in this state to participate in a student health insurance program. The statute sets out minimum benefits for this insurance and directs the Department of Insurance to implement its provisions.

On July 31, 1992, the Franklin Circuit Court declared KRS 304.18-115 unconstitutional as special legislation. Pincombe v. Commonwealth of Kentucky, Department of Insurance, Franklin Circuit Court No. 91-CI-1097. The decision was not appealed. The court's judgment was based on the lack of "any rationale for imposing requirements upon college students which are not imposed upon the general population of the State of Kentucky or upon all those persons enrolled in educational institutions at the post-secondary, secondary, and elementary levels."

Our reading of the court's judgment indicates that the court was concerned only with the mandatory aspect of the statute. The court held that no one could be required to procure the insurance coverage; the court did not state, or even imply, that any constitutional problem exists with the voluntary procurement of such insurance by students who desire it. Therefore we see no reason why KRS 205.575(14)(d) should not be effective as to students who voluntarily procure the coverage described in KRS 304.18-115.

When asked whether a statute is constitutional, this office will indulge every presumption in support of the statute's validity. We will find a statute unconstitutional only if the case against a statute's validity is compelling. That is not the situation here.

We note in closing that the Franklin Circuit Court entered a permanent injunction against the Department of Insurance forbidding it to enforce KRS 304.18-115. You might wish to move the court for a clarification of its order regarding students who voluntarily participate in health coverage plans.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General