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Planned Parenthood of Kansas And Mid-Missouri v. Andersen

United States Court of Appeals, Tenth Circuit

February 21, 2018

PLANNED PARENTHOOD OF KANSAS AND MID-MISSOURI; PLANNED PARENTHOOD OF ST. LOUIS REGION; JANE DOE #1, on her behalf and on behalf of all others similarly situated; JANE DOE #2, on her behalf and on behalf of all others similarly situated; JANE DOE #3, on her behalf and on behalf of all others similarly situated, Plaintiffs - Appellees,
v.
JEFF ANDERSEN, Acting Secretary, Kansas Department of Health and Environment, in his official capacity, [*] Defendant-Appellant. CENTER FOR REPRODUCTIVE RIGHTS; IPAS; NATIONAL CENTER FOR LESBIAN RIGHTS; NATIONAL FAMILY PLANNING & REPRODUCTIVE HEALTH ASSOCIATION; NATIONAL HEALTH LAW PROGRAM; NATIONAL LATINA INSTITUTE FOR REPRODUCTIVE HEALTH; NATIONAL WOMEN'S LAW CENTER; SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE U.S. (SIECUS); AMERICAN PUBLIC HEALTH ASSOCIATION, Amici Curiae.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:16-CV-02284-JAR-GLR)

          Patrick Strawbridge, Consovoy McCarthy Park, PLLC, Boston, Massachusetts (Michael H. Park, Consovoy McCarthy Park, PLLC, New York, New York, Darian P. Dernovish, Kansas Department of Health and Environment, Topeka, Kansas, with him on the briefs), for Defendant-Appellant.

          Diana Salgado, Planned Parenthood Federation of America, Washington, D.C. (Erwin Chemerinsky, University of California, Irvine School of Law, Irvine, California, Arthur A. Benson and Jamie Kathryn Lansford, Kansas City, Missouri, and Douglas N. Ghertner, Slagle, Bernard and Gorman, P.C., Kansas City, Missouri, with her on the brief), for Plaintiffs-Appellees.

          Martha Jane Perkins, National Health Law Program, Carrboro, North Carolina, filed an amici curiae brief in support of Plaintiffs-Appellees.

          Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.

          PHILLIPS, Circuit Judge.

         Medicaid's free-choice-of-provider provision grants Medicaid patients the right to choose for their medical care any qualified and willing provider. 42 U.S.C. § 1396a(a)(23). On May 3, 2016, Kansas sent notices of decisions to terminate (effective May 10) its Medicaid contracts with two Planned Parenthood affiliates, Planned Parenthood of Kansas and Mid-Missouri ("PPGP"), and Planned Parenthood of the St. Louis Region ("PPSLR").[1] The notices cited concerns about the level of PPGP's cooperation in solid-waste inspections, both Providers' billing practices, and an anti-abortion group's allegations that Planned Parenthood of America ("PPFA") executives had been video-recorded negotiating the sale of fetal tissue and body parts. Together, the Providers and three individual Jane Does ("the Patients") immediately sued Susan Mosier, Secretary of the Kansas Department of Health and Environment ("KDHE"), under 42 U.S.C. § 1983, alleging violations of 42 U.S.C. § 1396a(a)(23) and the Equal Protection Clause of the Fourteenth Amendment. The Plaintiffs sought a preliminary injunction enjoining Kansas from terminating the Providers from the state's Medicaid program.

         States have broad authority to ensure that Medicaid healthcare providers are qualified to provide medical services-meaning that they are competent to provide medical services and do so ethically. But this power has limits. States may not terminate providers from their Medicaid program 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. We join four of five of our sister circuits that have addressed this same provision and affirm the district court's injunction prohibiting Kansas from terminating its Medicaid contract with PPGP. But we vacate the district court's injunction as it pertains to PPSLR and remand for further proceedings on that issue. Though the Plaintiffs have provided affidavits from three Jane Does concerning their past and expected medical care from PPGP, the Plaintiffs have not provided affidavits from any persons receiving or expecting to receive medical care at PPSLR. Hence the Plaintiffs have failed to establish any injury they will suffer from the termination of PPSLR, meaning they have failed to establish standing to challenge that termination. But on this record, we cannot determine whether PPSLR itself can establish standing, an issue the district court declined to decide but now must decide on remand.[2] Though Kansas has not raised this standing issue, we have an independent duty to assure ourselves of the district court's subject-matter jurisdiction. See City of Colo. Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1078-79 (10th Cir. 2009).

         BACKGROUND

         I. The Medicaid Act and Kansas Regulations

         The Medicaid Act's free-choice-of-provider provision states that "any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services." 42 U.S.C. § 1396a(a)(23). This provision "guarantees that Medicaid beneficiaries will be able to obtain medical care from the qualified and willing medical provider of their choice." Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 450 (5th Cir. 2017). Because the Medicaid Act is mostly administered by the states, the Act empowers states to determine whether entities are medical providers "qualified to perform the service or services required." States may exclude Medicaid providers-that is, withhold reimbursements for medical services provided to patients-"for any reason for which the [federal] Secretary [of Health and Human Services] could exclude the individual or entity from participation in a program under" specified statutes. 42 U.S.C. § 1396a(p)(1); 42 C.F.R. § 1002.3(a)-(b). As grounds for excluding the Providers from its Medicaid plan, Kansas has raised 42 U.S.C. § 1320a-7(b)(5)(B), (b)(12)(B).

         Kansas, like all states, issues regulations to administer its Medicaid program. These regulations govern when, why, and how Kansas may terminate contracts between its Medicaid program and healthcare providers. Kan. Admin. Regs. § 30-5-60(a). If Kansas decides that a provider is no longer competent to provide medical services, it must send written notification to the provider of its intent to terminate the provider and its reasons for doing so. Kan. Admin. Regs. § 30-5-60(c). This notification must also inform the provider that it has a right to appear before the KDHE between five and fifteen days from the date the notice is mailed or served on the provider. Id.

         If the state decides to terminate the provider, the provider may request a hearing from Kansas's Office of Administrative Hearings ("OAH") within thirty-three days after receiving notice of termination. Kan. Admin. Regs. §§ 30-7-67-68. According to Kansas, this decision to terminate "becomes final only after the time for a formal administrative hearing has passed." Appellant's Opening Br. at 6 (citing Kan. Admin. Regs. § 30-7-64-104). If the provider is dissatisfied with the results of this hearing, it may request a rehearing. Id. If, after that, it is still dissatisfied, the provider may appeal to state court. See Kan. Stat. Ann. § 77-601-31.

         II. Planned Parenthood's Alleged Wrongdoing

         Planned Parenthood affiliates, many of which are located in areas with shortages of primary-care providers, deliver essential services to Medicaid recipients. PPGP has two health centers in Kansas and three in Missouri, and PPSLR has one health center in Missouri that also serves Kansas Medicaid patients. The Providers' services include annual health exams; different types of contraception along with contraceptive counseling; breast- and cervical-cancer screening; cervical-cancer treatment; screening and treatment for sexually transmitted infections; human papillomavirus vaccinations; pregnancy testing and counseling; and other health services.[3] Though some Planned Parenthood clinics also perform abortions, Medicaid seldom pays for abortions. See, e.g., Harris v. McRae, 448 U.S. 297, 302-03 (1980) (explaining that the Hyde Amendment prohibits using federal Medicaid funds to reimburse the cost of abortions except in limited circumstances such as rape or incest). The Patients chose Planned Parenthood for reproductive-healthcare services for many reasons, including the quality and availability of the services and expertise in reproductive healthcare.

         In July 2015, the anti-abortion group Center for Medical Progress ("CMP") released on YouTube a series of edited videos purportedly depicting PPFA executives negotiating with undercover journalists for the sale of fetal tissue and body parts. Kansas alleges that the videos demonstrate that "Planned Parenthood manipulates abortions to harvest organs with the highest market demand" and that PPFA executives are willing to negotiate fetal-tissue prices to obtain profits. Appellant's Opening Br. at 7. According to Kansas, this evidence matters because "PPFA controls its 'affiliate' organizations, including [PPGP] and PPSLR." Id. Neither PPGP nor PPSLR is the subject of the videos and it is undisputed that neither participates in fetal-tissue donation or sale.

         To prove PPFA's control over and affiliation with the Providers, Kansas claims that (1) "PPFA and its affiliates make no apparent effort to keep their finances separate"; (2) PPFA compiles a yearly "'combined balance sheet, '" which "aggregate[s] 'revenue and expenses'" for the entire Planned Parenthood organization; (3) according to its 2014 tax return, PPFA transferred over $50 million to its affiliates; (4) PPFA drafts rules of procedure and operation for its affiliates and trains its affiliates' officers and employees in "management and medical practices"; and (5) PPFA's legal counsel represented PPGP and PPSLR in their meeting with the KDHE. Id. at 7-8 (quoting Appellant's App. at 479-82).

         Based on CMP's videos of the PPFA executives, Kansas began investigating the Providers. In August 2015, Kansas's Board of Healing Arts ("BOHA"), the agency primarily responsible for medical licensure and regulation, requested from PPGP copies of "treatment records related to abortion procedures or stillbirths . . . in which fetal organs or tissues were transferred for any purpose other than those" permitted by law. Appellant's App. at 208-11. On January 7, 2016, the BOHA determined that, "[a]fter careful review of the investigative materials, . . . no further action will be taken at this time." Id. at 215.

         On December 16, 2015, Kansas's Bureau of Waste Management ("BWM") also initiated a solid-waste investigation under Kan. Admin. Regs. § 28-29-16 of a PPGP-operated clinic in Overland Park, Kansas. "[O]ut of concern for clinic and patient privacy and safety, " PPGP employees stopped the inspectors from taking photographs but invited the inspectors to finish their inspection visually. Planned Parenthood of Kan. & Mid-Mo. v. Mosier, No. 16-2284-JAR-GLR, 2016 WL 3597457, at *5 (D. Kan. July 5, 2016). PPGP employees also refused to turn over waste-disposal-vendor lists-which would have become public information subject to the Kansas Open Records Act had PPGP turned over the lists to the investigators- because the PPGP employees were concerned about "the history of harassment toward companies that work with Planned Parenthood." Appellee's Response Br. at 6. Kansas claims that the inspectors were thus "[u]nable to complete their inspection, " so they left the clinic. Appellant's Opening Br. at 10-11. Kansas alleges that PPGP's conduct hindered the investigation, though BWM never cited PPGP for any violation related to the investigation.

         On January 5, 2016, after counsel for BWM guaranteed the privacy of PPGP's patients, PPGP permitted the inspectors to take photographs on their return visit. The BWM inspectors left a report with PPGP's clinic employees, stating that BWM had found no violations. Later, on January 15, 2016, after PPGP had taken the necessary steps to make its vendor information confidential, PPGP provided BWM the requested waste-vendor information as well. Though Kansas points out that this was "an entire month after the first inspection, " id. at 11, in reality, BWM had granted PPGP extra time so that PPGP could document its request to keep the information confidential.

         Though Kansas never investigated PPSLR, the Missouri Attorney General did. In September 2015, after looking into PPSLR's fetal-tissue practices, the Missouri Attorney General's office announced that it had found no evidence of wrongdoing.

         Relevant to this appeal, Kansas also notes that "[a]llegations . . . emerged that Planned Parenthood offices around the country have engaged in questionable billing practices, including in the nearby states of Oklahoma and Texas." Id. at 8-9. And it claims that "Planned Parenthood's practices have prompted numerous lawsuits under the False Claims Act ('FCA')." Id. at 9.

         III. Termination Proceedings & District Court Case

          On March 10, 2016, about two months after Kansas's inspection of one of PPGP's clinics and two months after Kansas Governor Sam Brownback announced that he had "signed legislation stopping most taxpayer funding from going to Planned Parenthood, " and that "[t]he time had[d] come to finish the job, " Kansas issued notices of intent to terminate PPGP and PPSLR as state Medicaid providers.[4]Governor Sam Brownback, 2016 State of the State (Jan. 12, 2016) (transcript available at https://governor.kansas.gov/2016-state-of-the-state-january-12-2016/). Those notices informed the Providers that, under Kan. Admin. Regs. § 30-5-60(a), Kansas "intend[ed] to terminate [their] participation in" Kansas's state Medicaid program. Appellant's App. at 78. Kansas cited the following paragraphs from § 30-5-60(a): "(2) noncompliance with applicable state laws, administrative regulations, or program issuances concerning medical providers; (3) noncompliance with the terms of a provider agreement; (9) unethical or unprofessional conduct; and (17) other good cause." Id.

         The notices also informed the Providers that they could each challenge their proposed terminations in administrative reviews, where they would "have the opportunity to present any relevant evidence" regarding their terminations. Id. PPGP's administrative review was scheduled for March 23, 2016, and PPSLR's was scheduled for March 22, 2016. The notices included attachments listing the state's reasons for terminating the Providers-including the CMP videos, PPGP's supposed lack of cooperation during the waste disposal inspections, and the FCA allegations in neighboring states.

         Together, the Providers participated in an administrative review on April 29, 2016. At this review, the Providers' counsel presented evidence and argued against termination. But on May 3, 2016, Kansas sent each Provider a "Notice of Decision to Terminate, " which provided that "[a]fter thorough review of all information presented, . . . your participation in [Kansas's state Medicaid program] will be terminated effective May 10, 2016." Id. at 51, 53. The notices also informed the Providers that, under Kan. Admin. Regs. § 30-7-64, they had the right to "request a fair hearing" with the OAH within thirty-three days of the termination notice. Id.

         Instead of requesting a hearing to review the terminations, the Providers, the Patients, and eleven individual PPGP and PPSLR employees (whose charges were later dropped after Kansas reconsidered and reversed its decision to terminate them from its state Medicaid program) sued Kansas under 42 U.S.C. § 1983, alleging violations of the Medicaid Act and the Equal Protection Clause of the Fourteenth Amendment. The Patients each had their own reasons for choosing PPGP for reproductive-health services. Jane Doe #1 chose PPGP as a provider because it was the only provider that would accept her as a patient (because she was not pregnant) and schedule an annual appointment for her within a reasonable time. Jane Doe #2 is a long-time PPGP patient who trusts the provider's expertise in reproductive health care and relies on the PPGP for regularly administered birth-control shots. Jane Doe #3, who was pregnant when the lawsuit was filed, chose PPGP because she appreciated the continuity of having one reproductive-health-care provider and wanted to obtain birth control after giving birth.

         The day after filing their lawsuit, the Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction. On June 7, 2016, after Kansas twice continued the hearing date and agreed to extend the effective termination date to July 7, the parties argued the case before the district court. Kansas now argues that extending the termination date from May 10 to July 7 meant that the Providers had until August 10 to seek a hearing before the OAH. Kansas also notes that PPGP's Medicaid contract with the state dictated that the contract would terminate thirty days after "notification from the State that the provider's state fair hearing rights have expired or the state fair hearing has been completed related to the Medicaid termination." Id. at 586. To Kansas, this means that "the [termination] notice would have had no effect on [PPGP] until September 10, 2016." Appellant's Opening Br. at 13. On July 5, the district court granted the Plaintiffs' request and issued a temporary restraining order and preliminary injunction. Mosier, 2016 WL 3597457, at *26.

         In granting the Plaintiffs' request for relief, the district court held that the case was ripe, that the Plaintiffs[5] had standing, and that abstention wasn't necessary under Younger v. Harris, 401 U.S. 37 (1971). Id. at *8. On the merits, the district court found that the Patients had a private right of action and were likely to succeed on their free-choice-of-provider claim under the Medicaid Act. Id. at *14-*22. Specifically, the court concluded that states could not interfere with patients' choice of providers for reasons other than the providers' professional competence or fitness to provide medical services. Id. at *18. It also found that the Plaintiffs had met the other requirements for injunctive relief: that the Plaintiffs would suffer irreparable harm absent the requested relief, that the balance of harms favored the Plaintiffs, and that the injunction served the public interest. Id. at *22-*25. The district court declined to rule on the Equal Protection claim. Id. at *14. Kansas appealed.

         ANALYSIS

         First, we address Kansas's arguments regarding standing, ripeness, and Younger abstention. Then, we move on to address the claim's merits. Specifically, we decide whether the Patients have a private right of action under the Medicaid Act, and whether they have met the requirements necessary to show that they are entitled to injunctive relief.

         I. Justiciability

         The United States Constitution empowers federal courts to address "Cases" and "Controversies." U.S. Const. art. III § 2, cl. 1. The cases-and-controversies requirement manifests in the dual justiciability doctrines of standing and ripeness. Kansas maintains that the district court erred in concluding that the Plaintiffs had standing and that the case was ripe.

         A. Standing

          We review de novo a district court's finding of standing. New Mexico v. Dep't of Interior, 854 F.3d 1207, 1215 (10th Cir. 2017). "The constitutional requirements for standing are (1) an injury in fact, (2) a causal connection between the injury and the challenged act, and (3) a likelihood that the injury will be redressed by a favorable decision." Id. at 1214-15 (quoting Roe No. 2 v. Ogden, 253 F.3d 1225, 1228-29 (10th Cir. 2001)). Kansas contends that the Plaintiffs failed to show that their injury was imminent and fairly traceable to Kansas's actions.

         1. Injury in Fact

         For standing, a plaintiff's injury must be "actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). "An allegation of future injury may suffice if the threatened injury is 'certainly impending, ' or there is a '"substantial risk" that the harm will occur.'" Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 414 n.5 (2013)). Kansas argues that the Plaintiffs failed to show injury in fact because (1) it had issued only a preliminary, not final, decision and (2) the Plaintiffs' injuries are too speculative.

         First, Kansas claims that only after the Plaintiffs had an administrative hearing (which took place on April 29), "may [it] then issue a written preliminary decision, setting forth the effective date of the termination and the basic underlying facts supporting the order." Appellant's Opening Br. at 6. And Kansas goes on to argue that the "preliminary decision . . . becomes final only after the time for a formal administrative hearing has passed." Id. (citing Kan. Admin. Regs. §§ 30-7-64-104). But Kansas's use of the term "preliminary" is without support in the statute. The regulations provide that "[i]f the decision is to terminate, a written order of termination shall be issued, setting forth the effective date of the termination and the basic underlying facts supporting the order." Kan. Admin. Regs. § 30-5-60(c). Thus, we reject Kansas's argument that its decision was preliminary rather than final.

         Second, Kansas claims that the Plaintiffs' injuries are speculative because the Providers "refused to complete the administrative process, " so no one can say whether they would have been terminated at all. Appellant's Opening Br. at 20. This argument hinges on Kansas's characterization of the termination letters and their effect. According to Kansas, the notices it sent to the Providers were "far from . . . final termination[s], " but rather were "effectively . . . complaint[s] that the Providers could formally contest . . . or admit." Id. at 21. The providers had until August 10 to administratively appeal Kansas's decision to terminate them from the Medicaid program-thirty-three days from the termination's extended effective date of July 7. And Kansas says that under its contracts with PPGP, it couldn't cut the Provider's funding until September 10-thirty days after the expiration of the Providers' right of appeal.[6] See Kan. Admin. Regs. § 30-7-68.

          This argument fails. As did the district court, we read the notices of termination literally. See Mosier, 2016 WL 3597457, at *9. The letters' plain language precludes us from treating them as mere warnings of possible future events. The March 10 letters that Kansas sent to the Providers were titled, "Notice of Intent to Terminate, " and the May 3 letters were titled, "Notice of Decision to Terminate." Appellant's App. at 51, 53, 78, 83 (emphasis added). Also, the second letters were final because they stated that "it is the decision of [Kansas] that your participation in [Kansas's Medicaid Program] will be terminated, " and that the Providers' terminations would be "effective May 10, 2016." Id. at 51, 53. This date was extended to July 7 only because Kansas requested more time to respond to the Plaintiffs' motion for preliminary injunction. Though the Providers' statutory right to appeal the termination may have delayed the date that Kansas cut off the Providers' funding, Kansas doesn't explain how that delay would change the legally effective date of the termination.[7]

         In fact, as the district court noted, Kansas's "position on the effective date of termination has been a moving target." Mosier, 2016 WL 3597457, at *8. After the Providers' April administrative hearing, Kansas specifically declined the Plaintiffs' request to delay any termination decisions for thirty days from the date of the final terminations. Instead, Kansas made the effective termination date May 10, just a week from the date of the final termination letters. Kansas also rejected the district court's proposal of a mutually-agreed injunction that would "freeze the status quo" until September. Id. The first time Kansas argued that the terminations wouldn't take effect until September 10 was on May 31, in its response to the Plaintiffs' motion for preliminary injunction. And Kansas provided no concrete assurances to support this claim, refusing to draft even a simple statement attesting to the fact that it wouldn't cut off funding until September 10.

         In light of such conduct, Kansas's claim that it wouldn't cut off funding to the Providers until September 10 is unpersuasive. We agree with the district court that Kansas cannot "have its cake and eat it too" by insisting that the terminations wouldn't be effective until September, yet refusing to agree to delay enforcement by guaranteeing that September effective date. Id. at *9. We also agree with the district court's position that "[t]he fact that [Kansas] is unwilling to put its counsel's representations into a stipulated order that would apply to both providers is entirely inconsistent with its position that this dispute is premature." Id.

         In any case, we conclude that the Plaintiffs faced a substantial risk of injury from the moment Kansas sent its final notices of termination. Although the termination decisions would not have gone into effect until July 7, 2016 (accounting for Kansas's litigation-related extensions), the state "ha[d] already acted to terminate [the Providers'] Medicaid provider agreements; only the effect of [those] termination[s] ha[d] yet to be implemented." Gee, 862 F.3d at 455. Because the Plaintiffs chose not to pursue an administrative appeal, only Kansas's "unilateral reversal" of its terminations could have saved the Plaintiffs from injury, even accounting for all of the delays built into the termination process. Mosier, 2016 WL 3597457, at *11. As Kansas itself states, we must determine standing "as of the time the action is brought." Appellant's Opening Br. at 22 (quoting Utah Ass'n of Ctys. v. Bush, 455 F.3d 1094, 1099 (10th Cir. 2006)). And the Patients, in particular, "need not wait to file suit until [the Providers are] forced to close [their] doors to them and all other Medicaid beneficiaries." Gee, 862 F.3d at 455. We do not think a two-month delay-from July 7 to September 10-renders the injuries too distant or speculative to confer standing on the Plaintiffs.

         2. Causal Connection

         Kansas alternatively argues that the Plaintiffs lack standing because their injuries resulted from their own failure to "use available procedures to remedy an alleged injury, " rather than Kansas's actions, and thus are not traceable to Kansas. Appellant's Opening Br. at 23.

         Kansas correctly states that a plaintiff cannot show that a defendant caused its injuries if the plaintiff's injuries resulted from its own acts or failures to act. See Clapper, 568 U.S. at 415 (concluding that plaintiffs challenging a surveillance statute couldn't show standing based on actions they took to protect themselves against hypothetical governmental surveillance). To support its argument that the Plaintiffs caused their own injuries, Kansas relies on National Family Planning & Reproductive Health, Inc. v. Gonzales, 468 F.3d 826, 828 (D.C. Cir. 2006). There, the D.C. Circuit held that a plaintiff-association lacked standing to challenge an antidiscrimination law for vagueness-the association argued that it couldn't comply with both the new law and existing regulations because they conflicted-in part because the association could have cured its uncertainty by asking the federal Department of Health and Human Services ("HHS") for clarification. Id. at 831. Kansas claims that, like the association in Gonzales, the Plaintiffs here could have avoided injury by pursuing and completing the administrative-appeal process.

         But the Plaintiffs' dilemma is dissimilar from that in Gonzales. In Gonzales, HHS could have prevented the plaintiff-association from suffering any injury by explaining how it would implement the new law harmoniously with the existing regulations. Id. Here, Kansas had set a termination date for the Providers' Medicaid contracts, even if they could have opted to pursue an administrative appeal. But nothing in the record suggests that the appeal itself would have tolled the terminations, and the regulations contradict that position.[8] See Kan. Admin. Regs. § 30-7-66(a)(1). This means that, absent injunctive relief, Kansas would have stopped funding the Providers within two months. The Plaintiffs could have avoided injury only by pursuing their administrative appeal and winning, and nothing required them to exercise that right to appeal. But even if the Plaintiffs had appealed the termination, Kansas had refused to stipulate that it would continue funding the Providers until September. And, unlike the Providers, the Patients had no administrative remedies available, and therefore no exhaustion requirements to satisfy. See Gee, 862 F.3d at 455. Therefore, Gonzales is inapposite.

         We agree with the district court's decision not to "impose an indirect exhaustion requirement by finding that Plaintiffs caused their own injury by failing to pursue administrative remedies." Mosier, 2016 WL 3597457, at *12. The Plaintiffs met their burden of showing that Kansas's actions created a substantial risk of injury, so they had standing to sue the state.

         B. Ripeness

         Kansas next argues that this case is not ripe for adjudication because the Plaintiffs didn't complete the administrative-appeal process. Ripeness is a prerequisite to justiciability with both constitutional and jurisdictional components. See United States v. Bennett, 823 F.3d 1316, 1325 (10th Cir. 2016). We review de novo the district court's ripeness finding. Roe No. 2, 253 F.3d at 1231. Ripeness doctrine ensures that courts don't interfere with agency action until it has progressed from abstract disagreement to a formal decision with concrete effects. Farrell-Cooper Min. Co. v. U.S. Dep't of Interior, 728 F.3d 1229, 1234 (10th Cir. 2013). To determine a claim's ripeness, we evaluate (1) its fitness for judicial resolution and (2) the hardship the parties would suffer if the court declined to hear the case. Id.

         1. Fitness for Judicial Resolution

         "[T]o determine the fitness of issues for review, we may consider 'whether judicial intervention would inappropriately interfere with further administrative action' and 'whether the courts would benefit from further factual development of the issues presented.'" Id. at 1234-35 (quoting Sierra Club v. Dep't of Energy, 287 F.3d 1256, 1262-63 (10th Cir. 2002)). Other relevant factors include: "(1) whether the issues involved are purely legal, (2) whether the agency's action is final, (3) whether the action has or will have an immediate impact on the petitioner, and (4) whether resolution of the issue will assist the agency in effective enforcement and administration." Id. at 1235 n.3 (quoting Los Alamos Study Grp. v. Dep't of Energy, 692 F.3d 1057, 1065 (10th Cir. 2012)). In sum, "[a]n agency's action will be ripe for review where 'the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him.'" Mosier, 2016 WL 3597457, at *9 (quoting Nat'l Park Hosp. Ass'n v. U.S. Dep't of Interior, 538 U.S. 803, 807-08 (2003)).

         Kansas's arguments on this point are related to its arguments on standing. The state claims that the administrative actions it took in this case were not final. Rather, it argues, the Plaintiffs could have requested a formal hearing and then a rehearing before the OAH. See Kan. Admin. Regs. §§ 30-7-68, 30-7-77. If they were dissatisfied with the outcome of those proceedings, they could then have challenged those decisions before a state appeals committee, and then, finally, in Kansas state court. See Kan. Admin. Regs. § 30-7-78; Kan. Stat. Ann. §§ 77-601, 77-607.

         The district court disagreed, concluding that the "termination notices represent concrete actions by the KDHE that threatened to harm Plaintiffs by excluding [PPGP] and PPSLR as Medicaid providers, notwithstanding the option of an administrative appeal." Mosier, 2016 WL 3597457, at *9. The district court pointed out that if the Providers didn't appeal, their final termination would stand (which, we note, would have deprived the Patients of their provider of choice). Id. at *10. Further, the district court noted that "where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat." Id. (quoting Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118, 128 & n.8 (2007)). Finally, the district court found that the case involved primarily legal questions that did not require agency expertise or significant factual development. Id. Therefore, it concluded that the Plaintiffs' claims were ripe for judicial review. Id. at 11.

         Again, we agree with the district court's thoughtful analysis, this time on this case's fitness for judicial resolution. "[B]oth parties have submitted evidence on these issues, and . . . neither party requested an evidentiary hearing on the motion for preliminary injunction." Id. at 10. This implies that no substantial factual disputes remained, and that the questions we must now answer are primarily legal questions. Kansas has presented its grounds for terminating the Providers, and it agrees that the propriety of the preliminary injunction rests on "whether the Providers' conduct and corporate affiliations justify the decision to terminate." Appellant's Opening Br. at 29. Though Kansas characterizes these issues[9] as factual rather than legal, the district court found it telling that after the parties had one evidentiary hearing, even if it was informal, neither party later requested an evidentiary hearing on the motion for preliminary injunction. Mosier, 2016 WL 3597457, at *10. Kansas presented three grounds for terminating the Providers and supported its reasons with evidence. Further agency action was therefore unnecessary for the district court to determine "whether, as a matter of law, any of those grounds permit [Kansas] to terminate [PPGP's and PPSLR's] Medicaid provider agreement without violating Medicaid's free-choice-of-provider requirement." Gee, 862 F.3d at 456.

         And, because the Providers had clearly stated that they did "not intend to pursue" further administrative appeal, Appellee's Response Br. at 58, the Patients' injuries are "sufficiently likely to happen to justify judicial intervention, " Gee, 862 F.3d at 456 (quoting Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010)). Again, significantly, the Patients did not participate in the April 29 informal hearing and they had no administrative remedies available to them, so only "through a § 1983 action" in federal court could they "vindicate their federal right" to select the qualified provider of their choice. Appellee's Response Br. at 20; see Gee, 862 F.3d at 455. Absent further administrative action by the Providers, the terminations were final for justiciability purposes because they would have become effective as of the dates stated in the termination letters. In other words, because the future held no uncertain events, the termination letters were not "of a merely tentative or interlocutory nature." Appellant's Opening Br. at 25-26 (quoting Friends of Marolt Park v. U.S. Dep't of Transp., 382 F.3d 1088, 1093-94 (10th Cir. 2004)); see also Gonzales, 64 F.3d at 1499.

         2. Hardship

         Kansas also contends that the Plaintiffs failed to show that they would face hardship absent an injunction because possible future injury does not amount to hardship and the Providers' terminations were not final. We reject this argument for the same reason already given. Because the Providers chose not to appeal their terminations, the terminations were final and would have become effective no later than September 10. If this had happened, the Patients would have likely "suffer[ed] hardship by being denied access to the provider of their choice under 42 U.S.C. § 1396a(a)(23) and to medical services at [the Providers'] facilities." Gee, 862 F.3d at 457. Therefore, the Plaintiffs' claims are ripe.

         II. Younger Abstention

         Kansas next claims that the district court erred by declining to abstain under Younger. We review de novo the district court's decision on whether to abstain under Younger. Amanatullah v. Colo. Bd. of Med. Exam'rs, 187 F.3d 1160, 1163 (10th Cir. 1999). We first note that "abstention 'is the exception, not the rule, ' and hence should be 'rarely . . . invoked.'" Brown ex rel. Brown v. Day, 555 F.3d 882, 888 (10th Cir. 2009) (omission in original) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)).

         Younger abstention stems from the federal government's deference to and respect for the state government and its function. Younger, 401 U.S. at 44. "[F]or Younger abstention to apply, there must be 'an ongoing state judicial . . . proceeding, the presence of an important state interest, and an adequate opportunity to raise federal claims in the state proceedings.'" Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 790 F.3d 1000, 1008 (10th Cir. 2015) (quoting Seneca-Cayuga Tribe of Okla. v. Oklahoma ex rel. Thompson, 874 F.2d 709, 711 (10th Cir. 1989)). We conclude that no ongoing state proceedings precluded the district court from exercising jurisdiction.

         Here, the issue is whether the Providers' right to appeal after their April 29 evidentiary hearing and after the resulting termination decisions would amount to an administrative proceeding entitled to Younger abstention. To decide this question, we ask "whether there is an ongoing proceeding, " and then we "decide whether that proceeding is the type of state proceeding that is due the deference accorded by Younger abstention." Brown, 555 F.3d at 888 (first emphasis added).

         A. Administrative Proceeding Not Ongoing

         Kansas argues that state administrative proceedings were "well underway" and remained ongoing because the Providers still had the right to seek a formal hearing until August 10. Appellant's Opening Br. at 31-32. The district court disagreed, concluding that state administrative proceedings had not yet begun.[10] Mosier, 2016 WL 3597457, at *12.

         Before the Plaintiffs filed their § 1983 lawsuit and motion for preliminary injunction, the following events had taken place: (1) two different Kansas agencies had investigated the Providers to determine whether they had improperly sold or disposed of fetal tissue, and both agencies cleared the Providers of wrongdoing; (2)Kansas had sent the Providers notices of intent to terminate; (3) Kansas and the Providers had participated in one evidentiary hearing; and (4) Kansas had sent the Providers notices of decision to terminate with a termination date of May 10. Kansas argues that these decisions weren't final. But again, had the Providers taken no further action-and nothing required the Providers to take further action-those terminations would have become effective. In other words, neither party would have had anything left to do to execute the terminations; the clock was running on certain termination.

         After the Providers received Kansas's notices of termination, they had an optional right to challenge these decisions at an administrative hearing. But "no administrative proceeding commences until or unless [the Providers] appeal[], . . . and [the Providers] ha[ve] foresworn that option." Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F.Supp.3d 604, 633 (M.D. La. 2015). Kansas tries to turn the Providers' right to initiate future state administrative proceedings into present, ongoing proceedings, claiming that "[b]ut for the district court's injunction, the state proceeding would have gone forward." Appellant's Opening Br. at 35. Kansas is mistaken: absent the district court's injunction, the termination would have gone into effect. That is so because the Providers had decided not to proceed with an administrative appeal. So nothing would have stood in the way of the termination being imposed on May 10 as promised absent a unilateral reversal. Because the Providers chose not to appeal this decision to the OAH, Kansas can point to no ongoing state proceedings.

         B. Not the Type of Proceeding Entitled to Younger Abstention

         For similar reasons, even if proceedings were ongoing, they aren't the type requiring Younger abstention. Relevant to this appeal, civil enforcement proceedings merit abstention under Younger. Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013). Civil enforcement proceedings are generally "'akin to a criminal prosecution' in 'important respects, '" and "are characteristically initiated to sanction the federal plaintiff, " meaning, in this case, the Providers. Id. at 592 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)). Abstention in such cases reflects "a proper respect for state functions" when the party seeking relief from the federal court "has an adequate remedy at law and will not suffer irreparably [sic] injury if denied equitable relief." Id. at 591 (quoting Younger, 401 U.S. at 43-44). We have also defined civil enforcement proceedings as coercive rather than remedial. Brown, 555 F.3d at 890. Though the Supreme Court has disclaimed this distinction "given the susceptibility of the designations to manipulation, " Sprint Commc'ns, 134 S.Ct. at 593 n.6, Brown still provides valuable guidance for our analysis.

         Under this framework, plaintiffs suing under § 1983 must "exhaust[] state administrative remedies only where the state administrative proceedings are coercive." Brown, 555 F.3d at 890. Civil enforcement proceedings are coercive when the state initiates the proceedings and the target of those proceedings challenges them as unlawful in federal court. Id. at 889; Sprint Commc'ns, 134 S.Ct. at 592. On the other hand, proceedings are remedial when the federal plaintiff initiates them seeking a remedy for a state-inflicted wrong. Brown, 555 F.3d at 890-91.

         We agree with the district court that the administrative proceedings in this case were not civil enforcement actions subject to Younger abstention. Mosier, 2016 WL 3597457, at *13. As the district court pointed out, the Providers chose to participate in an evidentiary hearing on April 29-this hearing was not mandatory. Id. The proceedings that Kansas "initiated to sanction [the Providers]" were completed with the final termination notices-those notices were Kansas's sanctions. Id. (quoting Sprint Commc'ns, 134 S.Ct. at 592). After receiving the notices of termination, the Providers took no further action. Nor were they required to do so, because any further appeals would be optional avenues to seek redress for their injuries. In other words, even if Kansas's "administrative termination of the Providers [was] coercive, intended to sanction the Providers for misconduct, " Appellant's Opening Br. at 36, that action was final when the Plaintiffs sued under § 1983. Therefore, any additional administrative proceedings could not be characterized as civil enforcement proceedings, meaning that contrary to Kansas's claims, the Providers faced no exhaustion requirement under these circumstances.[11]

         Finally, but importantly, we also note that though the Providers had the right of appeal, the Patients did not. See Mosier, 2016 WL 3597457, at *13; see Kliebert, 141 F.Supp.3d at 633. And the Patients are not subject to an exhaustion requirement under § 1983. See Gee, 862 F.3d at 455 ("[T]he Individual Plaintiffs have no administrative appeal rights, and they are not subject to (nor could they be) any administrative exhaustion requirement under 42 U.S.C. § 1983."); Planned Parenthood Se., Inc. v. Bentley, 141 F.Supp.3d 1207, 1215 (M.D. Ala. 2015) ("[T]he Eleventh Circuit, like every other circuit to consider the issue, has concluded that exhaustion is not required for claims under the Medicaid Act."). In sum, the district court did not err in declining to abstain under Younger because the administrative proceedings were not ongoing, and were not the type of proceedings meriting Younger abstention.

         III. Preliminary Injunction

         We review a district court's preliminary injunction for abuse of discretion. N.M. Dep't of Game & Fish v. U.S. Dep't of Interior, 854 F.3d 1236, 1245 (10th Cir. 2017). "An abuse of discretion occurs where a decision is premised on an erroneous conclusion of law or where there is no rational basis in the evidence for the ruling." Id. (quoting Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016)). We will overturn a preliminary injunction order only if it is arbitrary, capricious, whimsical, or manifestly unreasonable. See Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1231 (10th Cir. 2005). We review the district court's factual findings "under the deferential 'clear error' standard." Planned Parenthood Ass'n of Utah v. Herbert, 828 F.3d 1245, 1252 (10th Cir. 2016) (quoting Glossip v. Gross, 135 S.Ct. 2726, 2739 (2015)). We review de novo the district court's legal determinations. Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1299 (10th Cir. 2006).

         Preliminary injunctions are extraordinary remedies requiring that the movant's right to relief be clear and unequivocal. Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220, 1224 (10th Cir. 2008). To obtain a preliminary injunction, a plaintiff must show "[(1)] that he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

         Before we address the Patients' likelihood of success on the merits, we first decide the threshold issue of whether the Medicaid Act's free-choice-of-provider provision, § 1396a(a)(23), creates a private right of action for the Patients.[12] We then determine whether the Patients are likely to succeed on the merits of their claim.

         A. Private Right of Action Under § 1396a(a)(23)

         We are comfortable joining four out of the five circuits that have addressed this issue, and we too hold "that § 1396a(a)(23) affords the [Patients] a private right of action under §1983." Gee, 862 F.3d at 457[13]; see also Planned Parenthood of Ariz. Inc. v. Betlach, 727 F.3d 960, 966-68 (9th Cir. 2013), cert. denied, 134 S.Ct. 1283 (2014) (reaching the same conclusion); Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't of Health, 699 F.3d 962, 974-75 (7th Cir. 2012), cert. denied, 133 S.Ct. 2736, 133 S.Ct. 2738 (2013) (same); Harris v. Olszewski, 442 F.3d 456, 461- 62 (6th Cir. 2006) (same). But see Does v. Gillespie, 867 F.3d 1034, 1041-42 (8th Cir. 2017) (holding in a split decision that § 1396a(a)(23) does not grant Medicaid patients an enforceable right). "Medicaid is a cooperative federal-state program that provides federal funding for state medical services to the poor." Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 433 (2004). Medicaid "offers the States a bargain: Congress provides federal funds in exchange for the States' agreement to spend them in accordance with congressionally imposed conditions." Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1382 (2015). This means that the federal government will share a state's cost of providing medical care to residents who can't afford it, but only if the state complies with the Medicaid Act's requirements, including "federal criteria governing matters such as who receives care and what services are provided at what cost." Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 541-42 (2012); see also Atkins v. Rivera, 477 U.S. 154, 157 (1986) (explaining the federal-state partnership for implementing Medicaid).

         As discussed, the statute at issue in this case is the Medicaid Act's free-choice-of-provider provision, 42 U.S.C. § 1396a(a)(23). That provision states:

A state plan for medical assistance must . . . provide that (A) any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services . . . .

42 U.S.C. § 1396a(a)(23)(A). This section goes on to state that "an enrollment of an individual eligible for medical assistance in a primary care case-management system . . ., a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services under section 1396d(a)(4)(C) of this title."[14] Id. at § 1396a(a)(23)(B). Section 1396d(a)(4)(C) specifically grants Medicaid patients the right to choose their provider for family-planning services. See Betlach, 727 F.3d at 964. So, under the free-choice-of-provider provision, "any individual Medicaid recipient is free to choose any provider so long as two criteria are met: (1) the provider is 'qualified to perform the service or services required, ' and (2) the provider 'undertakes to provide [the recipient] such services.'" Id. at 967 (quoting 42 U.S.C. § 1396a(a)(23)(A)).

         1. Blessing/Gonzaga Requirements

         The question here is whether the free-choice-of-provider agreement creates a private right enforceable under 42 U.S.C. § 1983. To do so, (1) "Congress must have intended that the provision in question benefit the plaintiff, " (2) the plaintiff must have "demonstrate[d] that the right assertedly protected . . . is not so 'vague and amorphous' that its enforcement would strain judicial competence, " and (3) the statute that creates the right must be "couched in mandatory, rather than precatory, terms." Blessing v. Freestone, 520 U.S. 329, 340-41 (1997) (quoting Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 431 (1987)). If "the text and structure of a statute provide no indication that Congress intends to create new individual rights, " then the § 1983 plaintiff cannot proceed further. Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002). But if the plaintiff satisfies the three Blessing requirements, "the right is presumptively enforceable" under § 1983. Id. at 284. Still, defendants can rebut this presumption by showing that Congress either expressly foreclosed private enforcement, or impliedly did so "by creating a comprehensive enforcement scheme that is incompatible with" private enforcement. Id. at 284 & n.4 (quoting Blessing, 520 U.S. at 341).

         a. Congress Intended to Benefit Medicaid Patients

          As have the Fifth, Sixth, Seventh, and Ninth Circuits, we conclude that the free-choice-of-provider provision confers on Medicaid patients a private right of action. See Gee, 862 F.3d at 457; Comm'r of Ind., 699 F.3d at 974-75; Betlach, 727 F.3d at 966-68; Olszewski, 442 F.3d at 461-62. But see Gillespie, 867 F.3d at 1046. First, we have no trouble concluding that Congress unambiguously intended to confer an individual right on Medicaid-eligible patients. See Betlach, 727 F.3d at 966. "The statutory language unambiguously confers such a right, " because it mandates that "all state Medicaid plans provide that 'any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.'" Id. (omission in original) (emphasis omitted) (quoting 42 U.S.C. § 1396a(a)(23)). Further, "Section 1396a(a)(23)(B) . . . carves out and insulates family planning services from limits that may otherwise apply under approved state Medicaid plans, assuring covered patients an unfettered choice of provider for family planning services." Id. at 964 (citing §§ 1396a(a)(23)(B), 1396d(a)(4)(C)). Congress has therefore clearly intended to grant a specific class of beneficiaries-Medicaid-eligible patients-an enforceable right to obtain medical services from the qualified provider of their choice.

         Kansas also claims that Armstrong supports its claim that the free-choice-of-provider provision does not confer on the Patients an enforceable right because in it, Justice Scalia opined that Spending Clause legislation does not provide a private right of action. 135 S.Ct. at 1387. But in Armstrong, the Supreme Court analyzed an entirely different section of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), concluding that this specific section did not create a private right of action. Id. Section 1396a(a)(30)(A) provides that "[a] State plan for medical assistance must . . . provide such methods and procedures relating to the utilization of, and the payment for" Medicaid services to ensure that Medicaid pays for only necessary, efficient, economic, and high-quality care while still setting reimbursement rates high enough to encourage providers to continue serving Medicaid patients. In his opinion, the last portion of which Justice Breyer declined to join, thus making that portion a plurality, Justice Scalia stated that "Section 30(A) lacks the sort of rights-creating language needed to imply a private ...


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