Case 2:16-cv-02284-JAR-GLR Document 1 Filed 05/04/16 Page 1 of 31

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

PLANNED PARENTHOOD OF KANSAS

AND MID-MISSOURI; PLANNED

PARENTHOOD OF ST. LOUIS REGION;

ORRIN MOORE, M.D.; KRISTIN METCALF-

WILSON, WHNP-BC; MARIA WARD,

WHNP-BC; VIOLA JOHNSON, WHNP-BC;

CHERYL LYON, WHNP-BC; MARY-JO

DRAKE, NP; JUSTINE FLORY, CNM;

KATHLEEN KAFKA, FNP-BC; SARAH

KEARNS, WHNP-BC; VICTORIA

ZADOYAN, CNM; SHARON KEOGH, NP;

JANE DOE #1; JANE DOE #2; and JANE DOE

#3, on their behalf and on behalf of all others

similarly situated,

No. 2:16-cv-2284

Plaintiffs,

v.

SUSAN MOSIER, M.D., Secretary, Kansas Department of Health and Environment, in her official capacity,

Defendant.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF—CLASS ACTION

Plaintiffs, by and through their attorneys, and on behalf of all members of the class, bring

this Complaint against the above-named Defendant and her employees, agents, delegates, and

successors in office, in their official capacity, and in support thereof state the following:

INTRODUCTORY STATEMENT

1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights

secured by the federal Medicaid statutes, as well as the U.S. Constitution.

2. Plaintiffs Planned Parenthood of Kansas and Mid-Missouri (“PPKM”) and

Planned Parenthood of the St. Louis Region and Southwest Missouri (“PPSLR”) provide

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critically needed family planning and preventive health services to hundreds of women and men in underserved areas of Kansas through the Kansas Medicaid program. Kansas Medicaid does not pay for abortions except in extremely narrow circumstances.
3. As is required by federal law, Medicaid enrollees, such as Plaintiffs Jane Doe #1 through #3 (“Jane Doe Plaintiffs”), may seek family planning services from a participating provider of their choice and have those services covered by Medicaid.
4. This action challenges the unlawful, unwarranted and politically motivated decision by the Kansas Department of Health and Environment (“KDHE”), at the direction of Governor Sam Brownback (collectively “the State”), to terminate PPKM and PPSLR from the Kansas Medicaid program, including KanCare, the program from which nearly all Medicaid beneficiaries receive services. This action also challenges the State’s unprecedented action to terminate not only the Planned Parenthood entities, but also eleven individual health care professionals who have Kansas Medicaid provider agreements and numbers—five of whom are current employees of PPKM (together with PPKM and PPSLR, “Current Provider Plaintiffs”), as well as five who are former employees of PPKM and one who is a former employee of PPSLR (“Former Provider Plaintiffs”).
5. The State’s final termination decisions were issued on May 3, 2016 and, absent an injunction, will become effective May 10, 2016. See Final Termination Letters from Jason Osterhaus, Manager, Program Integrity Unit, KDHE Div. of Health Care Finance (“Osterhaus”) to Current and Former Provider Plaintiffs (May 3, 2016), attached hereto as Exhibit A. The State purports to base its termination decisions (which are identical) on the following grounds: 1) allegations made by anti-abortion activists in discredited YouTube videos against other Planned Parenthood affiliates in other states and against Planned Parenthood Federation of America
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(“PPFA”) regarding the supposed sale of fetal tissue; 2) allegations that the Planned Parenthood health center in Overland Park failed to cooperate with a solid waste inspection conducted by KDHE that could have led to the discovery of solid waste violations, and 3) other states’ reliance on allegations of potentially fraudulent Medicaid claims by Planned Parenthood affiliates in those states as grounds for terminating those affiliates from their respective Medicaid programs. See Notices of Intent to Terminate from Osterhaus to Current and Former Provider Plaintiffs (Mar. 10, 2016), attached hereto as Exhibit B.
6. The State’s allegations provide no possible legitimate basis to terminate any of the Current or Former Provider Plaintiffs. Not only are the allegations unfounded, but none relate in any way to PPSLR or the eleven individual health care professionals, and certainly not to their ability to provide quality Medicaid services. And the only allegation related to PPKM—about KDHE’s inspection of the Planned Parenthood health center in Overland Park—is false and also provides no basis for termination from the Medicaid program.
7. Unless the State’s termination decisions are prevented from taking effect, Current Provider Plaintiffs will be terminated from Kansas’ Medicaid program, disqualifying them from providing basic and preventive health care services to approximately 450-500 Kansas women and men who depend on them for that care. Defendant’s actions will cause significant and irreparable harm to Medicaid patients, including the Jane Doe Plaintiffs, who will lose their provider of choice, will find their family planning services interrupted, and in many cases will be left with reduced access to care.
8. Defendant’s actions violate 42 U.S.C. § 1396a(a)(23), which is known as the Medicaid “free choice of provider requirement,” because, by barring the Current Provider Plaintiffs from the Medicaid program, Defendant prevents their patients, including the Jane Doe
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Plaintiffs, who receive family planning health services from Current Provider Plaintiffs, from receiving services from their qualified, willing provider of choice.
9. Defendant’s actions further impermissibly treat the Plaintiffs differently than other Medicaid providers and penalize them without adequate justification for the exercise of constitutional rights, in violation of the First and Fourteenth Amendments.
10. Plaintiffs seek declaratory and injunctive relief to protect the Jane Doe Plaintiffs’ and other class members’ access to—and the Current Provider Plaintiffs’ ability to provide— these critical medical services. Plaintiffs also seek further declaratory and injunctive relief to prevent the eleven individual health care professional Plaintiffs from becoming a “terminated” provider for cause from Kansas Medicaid, which can have serious, negative professional consequences, including potential adverse action taken against their professional licenses and employment.
JURISDICTION AND VENUE 11. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 12. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. 13. Venue in this judicial district is proper under 28 U.S.C. § 1391.
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THE PARTIES A. Plaintiffs PPKM
14. For 40 years, PPKM (and its predecessor organization), has been a trusted Medicaid provider for thousands of Kansans.
15. Since 2013, when the Kansas Medicaid program moved from a fee-for-service program model to a managed care program model under KanCare, PPKM has been a KanCare provider for Kansas Medicaid enrollees, of whom nearly all are enrolled in one of three managed care organizations that coordinate care for the State of Kansas.
16. PPKM and affiliated providers provide family planning and other preventive health services to Kansas Medicaid/KanCare beneficiaries at health centers in Wichita and Overland Park, and at three health centers in Missouri—in Gladstone, Independence, and Kansas City.1
17. PPKM offers Medicaid patients a range of family planning and other health services at these centers, including well-woman exams, contraception (including long-acting reversible contraception, or “LARC”) and contraceptive counseling, hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for sexually transmitted infections (“STIs”), including human papilloma virus (“HPV”) vaccines, and pregnancy testing and counseling. Although PPKM and affiliated providers offer abortion services at a limited number of health centers, Kansas Medicaid does not cover abortions except
1 Kansas allows Medicaid beneficiaries to obtain care in border cities—cities within 50 miles of the Kansas border. See Kan. Med. Assistance Program, Provider Manual: General Benefits § 2300, at 2-42 (updated Aug. 2008), https://www.kmap-stateks.us/Documents/Content/Provider%20Manuals/Gen%20benefits_090109_973.pdf.
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in rare circumstances where allowed by federal law. PPKM and affiliated providers do not participate in fetal tissue donation.
18. In 2015, PPKM provided family planning care at approximately 650 visits to nearly 450 patients enrolled in Kansas Medicaid/KanCare. In 2014, family planning care was provided at approximately 750 visits to nearly 500 patients enrolled in Kansas Medicaid/KanCare.
19. PPKM brings this action on behalf of itself, its affiliated providers, and its patients. PPSLR
20. PPSLR is a Missouri not-for-profit corporation, headquartered in St. Louis, Missouri. PPSLR operates several health centers in Missouri, including a health center in Joplin, which is located approximately 7 miles from the Kansas border and provides family planning health services to a small number of Kansas Medicaid patients.
21. PPSLR’s Joplin health center offers Kansas Medicaid patients a range of family planning and other health services, including well-woman exams, contraception (including LARC) and contraceptive counseling, hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for STIs, including HPV vaccines, and pregnancy testing and counseling. The Joplin health center does not provide abortions, and PPSLR does not participate in fetal tissue donation.
22. PPSLR brings this action on behalf of itself and its patients. Current and Former Employee Plaintiffs
23. Plaintiffs Orrin Moore, M.D.; Kristin Metcalf-Wilson, WHNP-BC; Maria Ward, WHNP-BC; Viola Johnson, WHNP-BC; and Cheryl Lyon, WHNP-BC, are current employees of
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PPKM, and are enrolled Kansas Medicaid and KanCare providers. These providers have Kansas Medicaid provider agreements and numbers, which are associated with PPKM, that they wish to keep. These Plaintiffs bring this action on behalf of themselves and their patients.
24. Plaintiffs Mary-Jo Drake, NP; Justine Flory, CNM; Kathleen Kafka, FNP-BC; Sarah Kearns, WHNP-BC; Victoria Zadoyan, CNM; are former employees of PPKM and have not worked there for approximately one year, at least. Despite the fact that they no longer work for PPKM these providers have Kansas Medicaid provider agreements and numbers, which are associated with PPKM, that remain “active” with the Kansas Medicaid program. Although these providers have no interest in maintaining a Kansas Medicaid provider number that is associated with their former employer, they object to being terminated for cause. These Plaintiffs bring this action on behalf of themselves.
25. Plaintiff Sharon Keogh, NP, is a former employee of PPSLR. Despite the fact that Ms. Keogh no longer works for PPSLR she has a Kansas Medicaid provider number, which is associated with PPSLR, that remains “active” with the Kansas Medicaid program. Although she has no interest in maintaining a Kansas Medicaid provider number that is associated with her former employer, she objects to being terminated for cause. She brings this action on her own behalf.
26. Each of the current and former employee Plaintiffs have professional health care licenses that they wish to preserve in good standing so that they may practice their chosen profession, and so that they may maintain and/or acquire future employment related to their profession.
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Jane Doe Plaintiffs 27. Plaintiff Jane Doe #1, a Kansas resident and Medicaid patient, obtains
reproductive health care from PPKM and affiliated providers and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Kansas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services from PPKM and affiliated providers.
28. Plaintiff Jane Doe #2, a Kansas resident and Medicaid patient, obtains her reproductive health care from PPKM and affiliated providers and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Kansas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services from PPKM and affiliated providers.
29. Plaintiff Jane Doe #3, a Kansas resident and Medicaid patient, obtains her reproductive health care from PPKM and affiliated providers and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Kansas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services from PPKM and affiliated providers.
30. Plaintiffs Jane Doe #1 through #3 appear pseudonymously because of the private and personal nature of the medical care that they receive from PPKM and affiliated providers, and their desire not to have that information become public in order for them to assert their legal rights. B. Defendant
31. Susan Mosier, M.D., is Secretary of the Kansas Department of Health and Environment, and in that role, governs KDHE, which is the state agency that administers
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Kansas’s Medicaid program, including KanCare, and has issued termination notices to the Current and Former Provider Plaintiffs. Defendant Mosier has sent copies of the final termination notices to the three managed care organizations (“MCOs”) that coordinate care for KanCare recipients, which, if allowed to take effect, will result in the termination of the Current and Former Provider Plaintiffs as KanCare providers. Defendant Mosier is sued in her official capacity, as are her employees, agents, and successors in office.
THE MEDICAID PROGRAM A. The Medicaid Statute
32. The Medicaid program, established under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq., pays for medical care for eligible needy people. A state may elect whether or not to participate; if it chooses to do so, it must comply with the requirements imposed by the Medicaid statute and by the Secretary of the U.S. Department of Health and Human Services (“HHS”) in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1)–(83).
33. To receive federal funding, a participating state must develop a “plan for medical assistance” and submit it to the Secretary of HHS for approval. 42 U.S.C. § 1396a(a). As part of its plan, a state may contract with health plans, or managed care organizations (“MCOs”), to coordinate health care for its Medicaid beneficiaries, subject to requirements set by federal law.
34. Among other requirements, the State plan must provide that: “[A]ny 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).
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35. Congress has singled out family planning services for special additional protections to ensure freedom of choice, specifically providing that, with respect to these services and with certain limited exceptions not applicable here, “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 . . . .” 42 U.S.C. § 1396a(a)(23)(B).
36. Implementing regulations similarly require the State plan to provide that “[a] beneficiary enrolled in a primary care case-management system, a Medicaid MCO, or other similar entity will not be restricted in freedom of choice of providers of family planning services.” 42 C.F.R. § 431.51(b)(2).
37. The federal government reimburses the state of Kansas 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
38. For decades, the Centers for Medicare & Medicaid Services (“CMS”), the agency within HHS that administers Medicaid (and its predecessor organization), has repeatedly interpreted the “qualified” language in Section 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaidcovered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider chooses to offer.
39. CMS has long explained that “[t]he purpose of the free choice provision is to allow [Medicaid] recipients the same opportunities to choose among available providers of
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covered health care and services as are normally offered to the general population.” Ctrs. for Medicare & Medicaid Servs., CMS Manuals Publication #45, State Medicaid Manual § 2100.
40. Consistent with this understanding, CMS has a long history of rejecting state plans that seek to limit the type of provider that can provide particular services. See, e.g., 53 Fed. Reg. 8699-03 (Mar. 16, 1988) (noting rejection of a state plan that would limit providers to “private nonprofit” organizations); 67 Fed. Reg. 79121 (Dec. 27, 2002) (noting disapproval of a state plan amendment that would have limited “beneficiary choice . . . by imposing standards that are not reasonably related to the qualifications of providers”).
41. Moreover, even though CMS is permitted to waive § 1396a(a)(23) in demonstration projects approved under Social Security Act § 1115, 42 U.S.C. § 1315, CMS repeatedly rejects state requests to do so for family planning services, including in recent years. See Letter from Marilyn Tavenner, Adm’r, CMS, to Beverly Mackereth, Sec’y, Pa. Dep’t of Pub. Welfare (Aug. 28, 2014), http://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/downloads/pa/pa-healthy-ca.pdf (denying request from Pennsylvania: “No waiver of freedom of choice is authorized for family planning providers.”); Letter from Manning Pellanda, Dir., CMS Div. of State Demonstrations and Waivers, to Julie Lovelady, Interim Medicaid Dir., Iowa Dep’t of Human Servs. (Feb. 2, 2015), http://www.medicaid.gov/MedicaidCHIP-Program-Information/By-Topics/Waivers/1115/downloads/ia/wellness-plan/ia-wellnessplan-current-appvl-02022015.pdf (denying request from Iowa: “No waiver of freedom of choice is authorized for family planning providers.”).
42. Indeed, in August 2012, when Kansas applied to CMS for a § 1115 demonstration waiver to implement KanCare and move its Medicaid program to a managed-care-model, it requested a waiver from the freedom of choice requirement. State of Kan., “KanCare”: Section
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1115 Demonstration—Application 17 (Aug. 6, 2012), http://www.kancare.ks.gov/download/KanCare_Section_1115_Demonstration_August_6_2012.p df. CMS approved the application and the requested waiver—except as to family planning providers, thus allowing Kansas Medicaid beneficiaries to continue to receive their planning services from their provider of choice. CMS, Waiver Authority (Jan. 1, 2013), http://www.kancare.ks.gov/download/KanCare_Waivers_and_Expenditure_Authorities.pdf (“No waiver of freedom of choice is authorized for family planning providers.”).
43. Again, when CMS approved amendments to KanCare in January 2014, it kept that waiver “in force” and made clear that it was “unchanged.” Letter from Cindy Mann, Director, CMS, to Susan Mosier, M.D., then-Medicaid Director, KDHE 2 (Jan. 29, 2014), https://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/downloads/ks/ks-kancare-ca.pdf.
44. Following the release of the anti-abortion activists’ YouTube videos, a number of states attempted to terminate Planned Parenthood affiliates from their Medicaid programs, and CMS has, again, explained the free choice of provider protections. In August 2015, CMS filed a Statement of Interest in a case challenging one such termination attempt, in Louisiana. Statement of Interest of the United States, Planned Parenthood Gulf Coast, Inc. v. Kliebert, No. 3:15-cv00565 (M.D. La. Filed Aug. 31, 2015), ECF 24. In February, CMS filed an amicus brief in the appeal of the preliminary injunction granted in that case. Br. For the United States as Amicus Curiae, Planned Parenthood Gulf Coast, Inc. v. Gee, No. 15-30987 (5th Cir. Filed Feb. 17, 2016). In both instances, CMS made clear that the free choice of provider requirement prevents states from excluding providers for reasons unrelated to fitness to provide medical services or to properly bill for those services, and that the requirement would be a nullity if states “could use
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individualized proceedings to exclude providers for no reason or for an invalid reason, or without any supporting evidence.” In addition, CMS explained that affiliation with a sanctioned entity is not, by itself, sufficient basis to exclude a provider.
45. Just last month, on April 19, 2016, CMS sent a letter to all State Medicaid Directors to provide guidance to state Medicaid agencies on protecting the right of Medicaid beneficiaries to receive covered services from any qualified provider willing to furnish such services when the state exercises its authority to take action against providers that affects beneficiary access to those providers, including but not limited to the denial or termination of provider enrollment, or the exclusion of providers from program participation. Letter from Vikki Wachino, Director, CMS, to State Medicaid Directors 1 (Apr. 19, 2016), https://www.medicaid.gov/federal-policy-guidance/downloads/SMD16005.pdf. As the guidance makes clear, the free choice of provider requirement limits a state’s authority to take action against a Medicaid provider unless the action is “related to the fitness of the provider to perform covered medical services—i.e., its capability to perform the required services in a professionally competent, safe, legal and ethical matter—or the ability of the provider to appropriately bill for those services.” Id. at 2.
46. The letter further explains that proper reasons for such actions “may not include a desire to target a provider or set of providers for reasons unrelated to their fitness to perform covered services or the adequacy of their billing practices. The failure of a state to apply otherwise reasonable standards in an evenhanded manner may suggest such targeting.” Id. In addition, a
state’s action against a provider affecting beneficiary access to the provider must be supported by evidence of fraud or criminal action, material non-compliance with relevant requirements, or material issues concerning the fitness of the provider to perform covered services or appropriately bill for them. Taking such action against a provider without
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such evidence would not be in compliance with the free choice of provider requirement. Id. GOVERNOR BROWNBACK’S EFFORTS TO EXCLUDE PROVIDER PLAINTIFFS 47. After the release of the discredited YouTube videos last summer, which falsely purported to show some Planned Parenthood affiliates engaging in unlawful conduct related to fetal tissue donation, Kansas Governor Sam Brownback requested that the Kansas Board of Healing Arts (“BOHA”), the licensing and regulatory Board for health care providers in Kansas, inspect Planned Parenthood health centers and investigate whether any sells fetal tissue. The request also called on KDHE to assist in the investigation. Press Release, Office of Kan. Governor Sam Brownback, Governor Sam Brownback Calls for Inspections of Planned Parenthood and Abortion Facilities in Kansas (July 21, 2015), http://governor.ks.gov/mediaroom/media-releases/2015/07/21/governor-sam-brownback-calls-for-inspections-of-plannedparenthood-and-abortion-facilities-in-kansas. 48. On August 4, 2015, BOHA opened an investigation into whether Planned Parenthood health centers comply with all Kansas laws regarding fetal tissue and requested documentation supporting compliance with these laws. Comprehensive Health of PPKM fully complied with this investigation. 49. On December 16, 2015, KDHE’s Bureau of Waste Management (for the first time ever) began inspecting the Overland Park health center. That inspection was completed on January 5, 2016. Although KDHE now claims that the Overland Park health center failed to cooperate with the inspection, at the completion of the inspection on January 5, BWM inspectors provided the health center with a report which stated that no violations were found.
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50. On January 7, 2015, BOHA completed its investigation, and determined after a “careful review” no further action would be taken, clearing PPKM of any allegation of wrongdoing.
51. Undeterred, and without prior warning, on January 12, 2016, Governor Brownback announced in his State of the State Address that the “time has come to finish the job” of “stopping most taxpayer funding from going to Planned Parenthood.”2 Gov. Sam Brownback, 2016 State of the State (Jan. 12, 2016), http://www.governor.ks.gov/mediaroom/speeches/2016/01/13/2016-state-of-the-state---january-12-2016. After touting his record on “pro-life legislation” and as a “champion[] for life,” and accusing Planned Parenthood of “trafficking [in] baby body parts,” Governor Brownback directed Defendant Mosier to “ensure that not a single dollar of taxpayer money goes to Planned Parenthood through our Medicaid program.”
52. The same day, Governor Brownback issued a letter directing Defendant Mosier “to take all necessary steps to terminate [PPKM] and all associated providers from Kansas Medicaid, including KanCare.” Letter from Sam Brownback, Governor, State of Kan., to Susan Mosier, M.D., Secretary, KDHE (Jan. 12, 2016), http://www.governor.ks.gov/docs/defaultsource/documents/termination-of-planned-parenthood.pdf?sfvrsn=2. Governor Brownback based his direction on PPKM’s “affiliation with the national Planned Parenthood Federation of America (“PPFA”) and other information provided by [KDHE].” Id. A statement by Defendant Mosier was also issued as part of a press release from the Governor’s Office, stating: “Based on
2 Since 2011, Governor Brownback has each year approved a provision of Kansas law barring PPKM from contracting with KDHE to receive federal Title X funds to provide family planning services to low-income and uninsured women and families. See Sen. Sub. H.B. 2014, § 107(l) (2011–2012 Leg. Sess.) (Kan. 2011). PPKM had received those funds from KDHE for over 25 years.
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the Governor’s direction to terminate Planned Parenthood of Kansas and Mid-Missouri as a KanCare provider, KDHE will issue an intent to terminate letter.” Press Release, Office of Kan. Governor Sam Brownback, Governor Sam Brownback Orders Termination of Planned Parenthood from Kansas Medicaid and KanCare Programs (Jan. 13, 2016), http://www.governor.ks.gov/media-room/media-releases/2016/01/13/governor-sam-brownbackorders-termination-of-planned-parenthood-from-kansas-medicaid-and-kancare-programs
53. On March 9, 2016, the Associated Press ran a story, which reported that PPKM remained a Kansas Medicaid provider. According to the AP, Governor Brownback’s spokesperson said she was looking into the situation. John Hanna, Planned Parenthood Still Gets Medicaid Funds Despite Threats, The Topeka Capital-Journal Online (Mar. 9, 2016), http://cjonline.com/news/2016-03-09/planned-parenthood-still-gets-medicaid-funds-kansasdespite-threats.
54. The next day, on March 10, 2016, KDHE issued separate Notices of Intent to Terminate each of the Current and Former Provider Plaintiffs from the Kansas Medicaid program. All of the Notices stated: “At the direction of Governor Sam Brownback . . . the KDHE Division of Health Care Finance (DHCF) intends to terminate your participation in the Kansas Medical Assistance Program (KMAP) . . . .” The Notices stated that termination was pursuant to Kan. Admin. Regs. § 30-5-60(a): “noncompliance with applicable state laws, administrative regulations, or program issuances concerning medical providers;” “noncompliance with the terms of a provider agreement;” “unethical or unprofessional conduct;” and “other good cause.” Kan. Admin. Regs. § 30-5-60(a)(2), (3), (9), (17).
55. The Notices of Intent to Terminate allege that these “findings” were supported by: 1) “[e]xtensive video evidence from across the country indicat[ing] practices by PPFA affiliates
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that warrant termination of PPFA’s Kansas affiliates”; 2) a “lack of cooperation” by the Comprehensive Health with a KDHE solid waste inspection, which “cause[d] the State concern that further investigation could have led to discoveries of solid waste violations, in addition to discoveries like those identified in the videos of other national PPFA affiliates”; and 3) that “Kansas’ neighboring states have identified potentially fraudulent Medicaid claims from the PPFA affiliates in those states and nationally as grounds for terminating the Medicaid participation of their respective states’ PPFA affiliates.”
56. The Notices of Intent to Terminate explained that the provider was entitled to an administrative review before representatives of KDHE to explain why the provider should remain a Kansas Medicaid provider. On April 29, 2016, counsel for the Current and Former Provider Plaintiffs participated in the informal administrative review process and met with selected personnel from KDHE. Counsel explained and presented evidence demonstrating that each of the allegations discussed in the Notices of Intent to Terminate are false and wholly irrelevant to the providers’ qualifications as a Medicaid provider.
57. On May 3, 2016, the Current and Former Provider Plaintiffs received final notices of termination (“Final Notices”). The Final Notices state that the terminations will be effective May 10, 2016. The Final Notices provide no additional explanation of the grounds for the terminations.
UNLAWFUL BASES FOR TERMINATION 58. None of the grounds asserted by Defendant is a valid basis to terminate the Current or Former Provider Plaintiffs from the Kansas Medicaid program.
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59. On information and belief, Defendant’s bases for terminating the Current and Former Provider Plaintiffs from Medicaid are highly irregular and have not been applied to any other Medicaid provider. “Video Evidence Regarding PPFA Clinics”
60. The “[e]xtensive video evidence” referenced in the Notice of Intent to Terminate presumably refers to highly deceptive and discredited YouTube videos, which have been released in the past year by anti-abortion extremists, that falsely claim that some Planned Parenthood affiliates in other states profited from fetal tissue donation.
61. None of the Current or Former Provider Plaintiffs were the subject of or depticted in any of these videos. Moreover, neither PPKM nor PPSLR share any ownership interest or control over the delivery of health services, personnel, or finances of any Planned Parenthood affiliate that was falsely represented in the videos.
62. Since the release of these deceptive videos, government officials in twelve states that conducted investigations into claims that Planned Parenthood affiliates in those states profited from fetal tissue donation have identified no wrongful conduct. Danielle Kurtzleben, Planned Parenthood Investigations Find No Fetal Tissue Sales, NPR (Jan. 28, 2016), http://www.npr.org/2016/01/28/464594826/in-wake-of-videos-planned-parenthoodinvestigations-find-no-fetal-tissue-sales. As alleged in paragraphs 48–50, Kansas is among the states to investigate and find no evidence of wrongdoing. In addition, the Missouri Attorney General, after conducting a thorough investigation into PPSLR’s handling of fetal tissue, cleared PPSLR of any wrongdoing. Another eight states declined to even investigate— finding nothing
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to substantiate claims of wrongdoing. Kurtzleben, Planned Parenthood Investigations Find No Fetal Tissue Sales.3
63. Although the Notice of Intent to Terminate references action taken by the Inspector General of the Texas Health and Human Services Commission (“HHSC”) against Planned Parenthood affiliates in Texas based on these videos, a Texas grand jury investigated these claims and cleared a Planned Parenthood affiliate there of any wrongdoing. It instead indicted the leader of the antiabortion group that created the deceptive videos and an accomplice on felony charges, see Molly Hennessy-Fiske, Texas Grand Jury Indicts Antiabortion Activists Who Made Undercover Videos of Planned Parenthood, L.A. Times (Jan. 25, 2016), http://www.latimes.com/nation/la-na-grand-jury-planned-parenthood-20160125-story.html.
64. Several Planned Parenthood affiliates whose staff were deceptively recorded and falsely represented in the videos (none of which include current or former staff of PPKM or PPSLR) have filed a federal lawsuit against the antiabortion group behind the videos and its coconspirators for engaging in a complex criminal enterprise to defraud PPFA and its affiliates and interfere with their delivery of critical health care services. Among the co-conspirators is Troy Newman, founder of the dangerous and extremist anti-abortion group Operation Rescue, which is headquartered in Wichita. The lawsuit explains how the antiabortion group, its leaders, and multiple co-conspirators engaged in illegal conduct that includes violating the Racketeer Influence and Corrupt Organization Act (“RICO”), wire fraud, mail fraud, invasion of privacy, illegal secret recording, and trespassing.
3 One federal judge in California reviewed the videos and found no evidence of criminal wrongdoing. See Nat’l Abortion Fed’n v. Ctr. for Med. Progress, No. 15-cv-03522-WHO, 2016 WL 454082, at *1 (N.D. Cal. Feb. 5, 2016) (“I have reviewed the recordings relied on by defendants and find no evidence of criminal activity.”).
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65. Neither PPKM nor PPSLR are subsidiaries of PPFA. Rather, PPFA is a membership organization that promulgates medical and other standards to which members (known as “affiliates”), such as PPKM and PPSLR, must adhere to operate under the name “Planned Parenthood” and otherwise use the Planned Parenthood service mark. There are fiftynine Planned Parenthood affiliates across the country. PPFA does not provide medical services or operate health centers. “Failure to Cooperate with Solid Waste Disposal Inspection”
66. KDHE’s allegation that the Overland Park health center failed to cooperate with a solid waste disposal inspection on December 16, 2015 is false, and does not relate whatsoever to any of the Current or Former Provider Plaintiffs other than PPKM.
67. The Overland Park health center is licensed as an ambulatory surgical center and thus is customarily subject to unannounced inspections by inspectors from the Public Health Division of KDHE. KDHE’s most recent inspection of the health center, prior to December 16, 2015, was on May 7, 2015, was unannounced, and no violations were identified.
68. On December 16, 2015, two inspectors, Rebecca Wenner and Dan Tuggle, from KDHE’s Bureau of Waste Management (“BWM”) appeared unannounced at the Overland Park health center at a time when patients were in the health center, requesting access to inspect the facility. Prior to December 16, 2015, the health center had never been inspected by BWM.
69. Inspector Wenner presented an unsigned administrative search warrant, as support for BWM’s authority to conduct inspections.
70. In an effort to cooperate with inspectors, administrative staff at the Overland Park health center nonetheless allowed inspectors Wenner and Tuggle to enter and inspect the health center. However, inspectors Wenner and Tuggle began taking photographs—something that
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KDHE inspectors had never done—not only of solid waste-related items, but also of items having nothing to do with solid waste. Inspectors Wenner and Tuggle also requested the names of solid waste and other vendors, but could not confirm that this information would be kept confidential by BWM.
71. Out of concern for the privacy and safety of patients and staff in the health center, inspectors Wenner and Tuggle were advised that they could not take photographs. In addition, on the advice of legal counsel, inspectors Wenner and Tuggle were advised that they would need to return with a valid administrative warrant in order to complete their inspection.
72. Inspectors Wenner and Tuggle returned later that day with a new, signed administrative warrant. Attached to the warrant was an affidavit from inspector Wenner, which wrongly claimed that she was denied entry to conduct the inspection in violation of Kan. Stat. Ann. § 65-3409(a)(6).
73. Shortly after, PPKM’s legal counsel met with inspectors Wenner and Tuggle and reiterated that they could not take photographs due to privacy and safety concerns for patients and staff, but invited the inspectors to otherwise complete their inspection. Instead, inspectors Wenner and Tuggle chose to leave the premises of the Overland Park health center.
74. On December 17, 2015, legal counsel followed up with KDHE counsel Jennifer Hackman and provided her a detailed letter, setting forth a factual account of the events that had occurred on December 16, 2015. The letter explained that there were serious concerns for patient privacy and safety. The letter also explained the health center’s concern about releasing its vendor information with no confidentiality protections in place, citing that vendors have routinely been harassed and the subject of death threats. This letter made it clear that Inspectors
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Wenner and Tuggle and any other KDHE staff were welcome to inspect the Overland Park health center.
75. On January 5, 2016, inspectors Wenner and her supervisor, Ken Powell, appeared unannounced at the Overland Park health center to complete their inspection. Inspector Wenner presented a signed administrative search warrant. Inspector Wenner explained that she intended only to inspect and photograph waste receptacles and other containers where waste is maintained and disposed, and would not enter any room while patients were in the room.
76. After Inspectors Wenner and Powell completed their inspection, Inspector Wenner completed her report, which stated that no violations were identified. The report also stated that vendor information would be provided to BWM by January 11, 2016, and documented the health center’s request that any photographs taken be treated as confidential.
77. On January 15, 2016, following an agreed-upon extension of time, PPKM’s counsel provided a letter to KDHE counsel with the requested vendor information. The January 15 letter reiterated the health center’s request that this highly sensitive information, along with the photographs that were taken during the January 5 inspection, be kept confidential by KDHE, and provided ample legal support for its request.
78. No further communication from KDHE was provided to the health center or its legal counsel regarding the BWM inspection prior to receiving KDHE’s March 10, 2016, Notices of Intent to Terminate.
79. None of the events relating to BWM’s inspection of the Overland Park facility in any way concerns PPSLR or the individual Current and Former Provider Plaintiffs.
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80. PPSLR does not share any ownership interest of PPKM, nor does PPSLR share any control over the delivery of health services at PPKM health centers, or personnel or finances of PPKM. “Claim Submission Concerns”
81. KDHE’s third ground to support its termination is based on a claim that other states, namely Oklahoma and Texas, have identified potentially fraudulent Medicaid claims from Planned Parenthood affiliates in those states as grounds for terminating those affiliates from Medicaid.
82. The Notices of Intent to Terminate reference a November 18, 2015 letter from Oklahoma Governor Mary Fallin to the Oklahoma Health Care Authority, urging it toconsider terminating the Planned Parenthood affiliates in Oklahoma from the Medicaid program. Governor Fallin cited to a pending case in Oklahoma where it is alleged that a Planned Parenthood affiliate in Tulsa submitted false claims, but as Governor Fallin’s letter recognized, that case has not reached a final result, and there has been no admission or finding of wrongdoing.
83. Moreover, neither PPKM nor PPSLR share any ownership interest in the Planned Parenthood affiliate in Tulsa, or control over the delivery of health services, personnel or finances of that affiliate.
84. KDHE’s reliance on a Texas case regarding a Planned Parenthood affiliate in that state is similarly misguided. On October 19, 2015, the Office of Inspector General of the Texas HHSC issued notices of intent to terminate Planned Parenthood affiliates in Texas from their Medicaid program based, in part, on information pertaining to a case involving Medicaid fraud allegations that was settled by a Planned Parenthood affiliate in Texas. However, on November
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23, 2015, a lawsuit was filed on behalf of Planned Parenthood affiliates in Texas, as well as their patients, challenging HHSC’s termination notices. As their lawsuit explains, the settled case was a meritless lawsuit that both Texas and the federal government declined to join, settled with no admission of wrongdoing for practical reasons including concern about patient confidentiality being compromised if the case proceeded. And, as part of the settlement, Texas expressly “agree[d] to release and refrain from instituting, directing or maintaining any action seeking permissive exclusion from the Texas Medicaid Program against [the affiliate] for the Covered Conduct.”
85. Neither PPKM nor PPSLR share any ownership interest in any of the Planned Parenthood affiliates in Texas, or control over the delivery of health services, personnel or finances of any Planned Parenthood affiliates in Texas.
86. None of the individual Current and Former Provider Plaintiffs have anything to do with the actions or non-actions of the Planned Parenthood affiliate in Tulsa or the Planned Parenthood affiliates in Texas.
THE IMPACT OF DEFENDANTS’ ACTIONS ON PROVIDER PLAINTIFFS AND THEIR PATIENTS
87. Only the most needy individuals in Kansas are eligible to receive Medicaid coverage. In order to qualify for Kansas Medicaid/KanCare, among other requirements, an adult must be low-income and pregnant, disabled or a parent. KDHE, Medicaid and KanCare Eligibility Guidelines (2015), http://www.kdheks.gov/hcf/Medicaid/eligibility_guidelines.html. For example, the monthly income for a family of four cannot exceed $768. KDHE, Medical Coverage for Parents or Caregivers of Children 2 (May 1, 2015), http://www.kdheks.gov/hcf/Medicaid/download/Medical_Coverage_for_Parents_Caregivers.pdf.
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88. The need for publicly supported family planning services is great in Kansas. In 2010, 45% of pregnancies in Kansas were unintended. Guttmacher Inst., State Facts About Unintended Pregnancy: Kansas (2014), https://www.guttmacher.org/statecenter/unintendedpregnancy/KS.html (hereafter “State Facts: Kansas”). And since 2010, the need for publicly funded contraceptive services has increased. Of the estimated 324,550 Kansas women who need family planning services, approximately 55% require publicly funded contraceptive services and supplies. Publicly supported family planning centers in Kansas met only 21% of the need, a 7% decrease since 2010. Jennifer L. Frost et al., Guttmacher Inst., Contraceptive Needs and Services, 2013 Update, at 18, 20, 28 (July 2015), https://www.guttmacher.org/sites/default/files/pdfs/pubs/win/contraceptive-needs-2013.pdf.
89. Since the 2011 legislation preventing PPKM from receiving Title X funds, patients “are finding it harder to access birth control, cancer screenings and other reproductive health care services.” Associated Press, Kansas Loses Thousands in Federal Funding After Voting to Defund Planned Parenthood, KSHB.com (Aug. 22, 2015), http://www.kshb.com/news/state/kansas/kansas-loses-thousands-in-federal-funding-after-votingto-defund-planned-parenthood. Indeed, some counties (including a county where PPKM previously operated a health center) still have no Title X family planning providers. Id.
90. Recent public health data also show that Sedgwick County, where PPKM’s Wichita health center is located, has the highest sexually transmitted infection rate in the state of Kansas. Madeline Anderson, Sedgwick Co. Health Officials Call High STI Rate ‘Alarming’, KAKE.com (Mar. 27, 2015), http://www.kake.com/home/headlines/STDs-hurt-SedgwickCounty-health-score-297770421.html. Reported cases of syphilis have also more than quadrupled in the Kansas City area from 2010 to 2014. Lisa Gutierrez, Syphilis Cases Rise
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Sharply in KC Area Amid Nationwide Increase in STDs, The Kansas City Star (Nov. 30, 215), http://www.kansascity.com/living/health-fitness/article47176765.html#storylink=cpy.
91. The Current Provider Plaintiffs help meet the need for publicly supported family planning services. PPKM’s Wichita health center, for example, provides care in an HHSdesigned Primary Care Health Professional Shortage Area—a geographic area in which primary care professionals are practically inaccessible. PPSLR’s Joplin, Missouri health center is just across the border from Cherokee County, Kansas, which is also in a Primary Care Health Professional Shortage Area and is designated as a Medically Underserved Population Area.
92. Even if other Medicaid providers were available, patients insured through Medicaid choose to receive their reproductive health care from Planned Parenthood based on a number of factors that are generally not available at other providers. With their evidence-based practices and up-to-date technology, Planned Parenthood health centers are known as providers of high-quality medical care. Many patients also turn to these providers for their reproductive health care because they are concerned about their privacy and fear being judged by other providers.
93. In addition, many low-income patients have unique scheduling constraints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family planning services, PPKM and PPSLR offer extended hours and walk-in appointments, and offer same day birth control shots, birth control implants, and intrauterine devices, so that patients only need to make one trip to a health center to obtain their contraceptive method of choice. PPKM and PPSLR also have either Spanish speaking staff or translator services available to nonEnglish speaking patients at all times.
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94. Defendant’s actions will deprive the Current Provider Plaintiffs’ Medicaid patients, including the Jane Doe Plaintiffs, of access to the high-quality, specialized care provided by these providers.
95. The Jane Doe Plaintiffs rely on the Current Provider Plaintiffs as the provider they can turn to for critical medical care and for prompt, efficient, and compassionate services. If the Current Provider Plaintiffs are eliminated from Medicaid, Jane Doe Plaintiffs and other class members will be prevented from receiving services from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
96. Without revenue from Kansas Medicaid, PPKM may be unable to continue to provide family planning services in the same manner at its health centers, and may be forced to lay off staff members (including its current employees that are also Plaintiffs), reduce hours, or close a health center. If a health center closes, this will affect not only the Medicaid patients at that health center, but all of the patients who seek reproductive health care at that health center.
97. Defendant’s action to terminate the individual Current and Former Provider Plaintiffs will harshly penalize current and former employees of PPKM and PPSLR by terminating them for cause. A termination for cause from a government health care program will put their ability to practice their profession, and retain or acquire future employment, severely at risk.
98. Plaintiffs have no adequate remedy at law. CLASS ALLEGATIONS
99. This lawsuit is properly maintained as a class action under Federal Rules of Civil Procedure 23(b)(1)(B) and (b)(2).
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100. The class consists of all Kansas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services from the Current Provider Plaintiffs.
101. Although the precise size of the class is unknowable, as alleged in Paragraphs 7 and 18 above, PPKM and PPSLR provide health care services to approximately 450-500 Kansas Medicaid patients annually (a very small number of which are PPSLR’s patients). Therefore, the approximate size of the class is 450-500 individuals.
102. Plaintiffs Jane Doe #1 through #3 are adequate class representatives because they, like other members of the class, are Kansas residents and Medicaid patients who obtain their reproductive health care from a Current Provider Plaintiff and desire to continue to do so. Unless Defendant is enjoined, class representatives and class members will suffer the same injury and resulting harm: they will be unable to obtain health care services at the provider of their choice. As a result, many of the Current Provider Plaintiffs’ Medicaid patients, including Plaintiffs Jane Doe #1 through # 3 and other class members, who already have few or no alternative options, will find it difficult or impossible to access the reproductive and other health care services they need.
103. Defendant’s actions—terminating the Current Provider Plaintiffs from the Kansas Medicaid program—applies generally to the class, such that both declaratory and injunctive relief is appropriate for all members of the class.
104. Class members raise the same questions of law, including whether Defendant’s termination of the Current Provider Plaintiffs from Kansas Medicaid violates the Medicaid free choice of provider requirement, 42 U.S.C. § 1396a(a)(23), such that, as a practical matter, adjudication of their claims would be dispositive of the interests of the other class members.
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CLAIMS FOR RELIEF CLAIM I—MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 105. Plaintiffs hereby incorporate Paragraphs 1 through 104 above. 106. Defendant’s actions violate Section 1396a(a)(23) of Title 42 of the United States Code by denying the Current Provider Patients’ patients, including the Plaintiffs Jane Doe #1 through # 2, the right to choose any willing, qualified health care provider in the Medicaid program.
CLAIM II—FOURTEENTH AMENDMENT EQUAL PROTECTION 107. Plaintiffs hereby incorporate Paragraphs 1 through 104 above. 108. Defendant’s actions violate the Plaintiffs’ rights by singling them out for unfavorable treatment without adequate justification.
RELIEF REQUESTED WHEREFORE, Plaintiffs request that this Court:
109. Order that this action be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1)(B) and/or 23(b)(2);
110. Issue a declaratory judgment that Defendant’s actions violate the Medicaid Act; 111. Issue a declaratory judgment that Defendant’s actions violate the Fourteenth Amendment; 112. Issue temporary, preliminary, and permanent injunctive relief, without bond, enjoining Defendant and her agents, employees, appointees, delegates, or successors from terminating, or threatening to terminate the Current and Former Provider Plaintiffs from Kansas Medicaid, or from directing the three managed care organizations that coordinate care for KanCare to terminate the Current and Former Provider Plaintiffs as KanCare providers;
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113. Grant Plaintiffs’ attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988; and,
114. Grant such further relief as this Court deems just and proper.

Dated: May 4, 2016

s/ Arthur A. Benson II Arthur A. Benson II D.Kan. #70134 Jamie Kathryn Lansford D.Kan. #70220 Benson & Associates 4006 Central Avenue (Courier Zip: 64111) P.O. Box 119007 Kansas City, Missouri 64171-9007 (816) 531-6565 (816) 531-6688 (telefacsimile) abenson@bensonlaw.com jlansford@bensonlaw.com
Diana O. Salgado* Melissa A. Cohen* Planned Parenthood Federation of America Public Policy Litigation & Law 123 William St., 9th Floor New York, NY 10038 (212) 261-7800 (212) 247-6811 (telefacsimilie) diana.salgado@ppfa.org melissa.cohen@ppfa.org
Attorneys for Planned Parenthood of Kansas & Mid-Missouri, Planned Parenthood of the St. Louis Region and Southwest Missouri, and Jane Does #1, #2, and #3
Douglas N. Ghertner D.Kan. #70380 Slagle, Bernard and Gorman, P.C. 600 Plaza West Building 4600 Madison Avenue Kansas City, MO 64112-3031 (816) 410-4664 (816) 561-4498 (telefacsimile) dghertner@sbg-law.com

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Attorney for Planned Parenthood of Kansas & Mid-Missouri Robert V. Eye, KS Sup. Ct. No. 10689 Robert V. Eye Law Office, LLC 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 (785) 234-4040 (785) 749-1202 (telefacsimilie) bob@kauffmaneye.com Attorney for Individual Provider Plaintiffs **Motions for pro hac vice pending
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EXHIBIT A

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EXHIBIT B

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

PLANNED PARENTHOD OF KANSAS AND MID-MISSOURI, et al.,

Plaintiffs, v.

Case No. 16-2284-JAR-GLR

SUSAN MOSIER, M.D., Secretary, Kansas Department Of Health And Environment, In Her Official Capacity,

Defendant.

MEMORANDUM AND ORDER In May 2016, after an informal administrative hearing, Defendant Susan Mosier, in her official capacity as Secretary of the Kansas Department of Health and Environment (“KDHE”), at the direction of Governor Sam Brownback, terminated as Medicaid providers Plaintiffs Planned Parenthood of Kansas and Mid-Missouri (“PPKM”), Planned Parenthood of the St. Louis Region and Southwest Missouri (“PPSLR”), and eleven current and former individual provider Plaintiffs who are, or were in the past, employees of PPKM and PPSLR. The KDHE provided three grounds for the termination decisions: (1) video evidence about practices by other Planned Parenthood Federation of America (“PPFA”) affiliates that include unlawful agreements to procure fetal tissue after abortions; (2) PPKM’s failure to cooperate with KDHE solid waste disposal inspections; and (3) claims submission concerns about other PPFA affiliates identified by neighboring states. Plaintiffs PPKM, PPSLR, the individual providers, and three Jane Doe patient Plaintiffs filed this action challenging the KDHE’s decision under the Medicaid Act and the Equal Protection Clause of the United States Constitution, and sought preliminary injunctive relief from the termination decisions. On June 13, 2016, the KDHE reconsidered and reversed

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its decision to terminate the eleven individual health care provider plaintiffs from the Medicaid program. On June 29, 2016, the individual providers voluntarily dismissed their claims in this matter.1
Before the Court are Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 12); Motion to Certify Class (Doc. 14), and Motion to Strike Exhibits (Doc. 51). These motions are fully briefed, and the Court heard argument on the preliminary injunction motion on June 7, 2016. The Court considers the motion for preliminary injunction as it pertains to PPKM and PPSLR only.
On June 24, 2016, Defendant filed a Motion to Dismiss (Doc. 59), re-arguing some of the justiciability arguments raised in response to the motion for preliminary injunction, adding others, and challenging both of Plaintiffs’ claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. This motion is not fully briefed, but the Court at this time considers Defendant’s justiciability challenges, to the extent necessary to rule on the motion for preliminary injunction.
Having fully considered the parties’ arguments and evidence on these issues, the Court is prepared to rule. As described more fully below, Plaintiffs’ motion for preliminary injunction is granted and the class certification motion is denied without prejudice. The motion to strike is denied. Defendant’s motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction is denied in part; the motion otherwise will remain pending and the Court will rule on the remaining issues raised therein after it is fully briefed. I. Background
Plaintiffs have submitted the sworn declarations of Laura McQuade, President and CEO of PPKM, and Mary Kogut, President and CEO of PPSLR in support of their motions for
1Doc. 61.
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preliminary injunction.2 Each declarant is responsible for the management of their respective organization and is therefore familiar with operations and finances, including the services they provide and the communities they serve. The Court finds that the information provided in these declarations is within the scope of each declarant’s personal knowledge, given their roles in these organizations.
For forty years, PPKM (and its predecessor organizations) has been a Medicaid provider for thousands of Kansans. PPKM provides Medicaid services to Kansas residents at two health centers in Kansas and three health centers in nearby cities in Missouri. In 2014, PPKM and affiliated providers provided family planning services at approximately 750 visits to nearly 500 Medicaid patients. In 2015, PPKM and affiliated providers provided services at over 650 visits to nearly 450 Medicaid patients. PPKM offers a range of family planning and other health services, including annual exams, contraception (including long-acting reversible contraception or “LARC”) and contraceptive counseling, hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for sexually transmitted infections (“STIs”), including human papilloma virus (“HPV”) vaccines, pregnancy testing and counseling, and other limited general health services, such as hemoglobin testing for anemia. The Wichita, Kansas City, and Independence health centers are in areas that have primary care provider shortages.
PPSLR operates several health centers in Missouri, including a health center in Joplin, Missouri, which is located approximately seven miles from the Kansas border and provides family planning health services to a small number of Kansas Medicaid patients each year, including well-woman exams, contraception (including LARC) and contraceptive counseling,
2Doc. 13-2, Ex. 1, McQuade Decl.; Doc. 13-3, Ex. 2, Kogut Decl.; see also Doc. 49-2, Ex. 1, McQuade Supp. Decl.; Doc. 49-3, Ex. 2, Kogut Supp. Decl.
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hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for STIs, including HPV vaccines, and pregnancy testing and counseling. PPSLR’s Joplin, Missouri health center is located in a Primary Care Health Professional Shortage Area (“HPSA”), and Cherokee County, Kansas, the county directly across the border from Joplin, Missouri is also in a Primary Care HPSA and is designated as a Medically Underserved Population Area.
In 2013, the Kansas Medicaid program implemented KanCare and moved from a fee-for-service program model to a managed care program model. PPKM enrolled as a KanCare provider at that time with three managed care organizations (“MCOs”) that the State of Kansas contracted with to coordinate care for nearly all of its Medicaid beneficiaries. Defendant has submitted a 2016 contractual amendment to its contracts with the MCOs, which provides that a contract termination with a Medicaid provider “shall be effective 30 calendar 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.”3 But PPKM has attested that its contracts with the various MCOs do not contain this provision, and instead allow for a quicker contract termination.4 PPSLR does not have contracts with the MCOs that coordinate care for most Medicaid patients in Kansas.
In order to qualify for Kansas Medicaid/KanCare, among other requirements, an adult must be low-income and either pregnant, disabled or a parent. For example, the monthly income for a family of four cannot exceed $768. Medicaid does not pay for abortions for Kansas women
3Doc. 37-11, Ex. 1-J at 10. 4Doc. 49-2, Ex. A ¶ 17, Ex. A-1.
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except under very narrow circumstances allowed for under federal law: if their lives are in danger or if they are a victim of rape or incest.5
According to evidence presented by both sides of this dispute, PPKM and PPSLR are both independently incorporated affiliates of Planned Parenthood Federation of America.6 For
example, Defendant presents PPFA’s Consolidated Financial Statements and Supplementary
Information from June 30, 2015 and 2014, as evidence that Planned Parenthood affiliates are
“financially integrated” with PPFA. That document provides details about the organizational
structure of PPFA:
PPFA, which is the nation’s oldest and largest voluntary family planning organization, maintains primary domestic offices in New York City and Washington, DC . . . . The Organization is also affiliated with 61 independent medical and related entities, and 104 ancillary entities (including 55 Political Action Committees and 55-501(c)(4) organizations), all of which are separately incorporated in their respective states and which collectively constitute PPFA’s membership. Accordingly, the accompanying consolidated financial statements do not include the financial position or the changes in net assets and cash flows of these independent affiliated organizations.7
With respect to financial support from PPFA, the document explains:
The National Program Support Plan (NPS) is a membership program between PPFA and Planned Parenthood Affiliates. NPS requires affiliates to pay quarterly membership dues to PPFA for the support and national visibility PPFA provides as well as the right to use the PPFA brand. The revenue is recognized as an increase to unrestricted net assets as the membership fees become due.8
5This funding restriction is commonly referred to as the “Hyde Amendment.” See, e.g., Harris v. McRae, 448 U.S. 297 (1980); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 963 (9th Cir. 2013) (“actually, a rider that Congress attaches to each year’s appropriations legislation”), cert. denied, 134 S. Ct. 1283 (2014).
6Doc. 13-2, Ex. 1, McQuade Decl. ¶ 26; Doc. 13-3, Ex. 2, Kogut Decl. ¶ 9; Doc. 37-8, Def. Ex. 1-G, Planned Parenthood 2014–2015 Annual Report (“PPFA supports 59 independently incorporated affiliates that operate 661 health centers across the U.S.”).
7Doc. 37-9, Def. Ex. 1-H at 9. 8Id. at 13.
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Another fund, the Fund for the Future (“the Fund”), is a PPFA fund designed to help “long-term development of the Organization’s affiliates. The Fund receives board-designated resources as well as affiliate and general-public contributions. The Fund’s investment returns are used for development grants to affiliates.”9 As stated repeatedly throughout the record, PPKM and PPSLR are not subsidiaries of PPFA; they are separate corporations. PPKM and PPSLR are members of PPFA, which promulgates medical and other standards to which affiliates must adhere in order to operate under the name “Planned Parenthood” and otherwise use the Planned Parenthood mark.10 PPFA does not provide medical services or operate health centers. PPFA exerted no control or ownership interest in PPKM or PPSLR in providing them with grants or other funding.
Plaintiff Jane Doe #1 is a PPKM patient who lives in Overland Park, Kansas and has received her annual well-woman gynecological exam at the Overland Park health center. She qualifies for Medicaid until the spring of 2017. Jane Doe #1 characterizes her care as excellent based on the friendliness of the staff, and the fact that she does not feel judged because she is a single mother. She states that the providers she saw at PPKM spent as much time as necessary explaining to her the care she was getting and talked with her about her concerns. PPKM was the only provider that would schedule an appointment for her annual exam, getting her in for an appointment very quickly. She wants to continue to receive her reproductive health care from PPKM and is not sure where she would get her care if it is not an option.
Plaintiff Jane Doe #2 is a long-time Planned Parenthood patient who has most recently received care at PPKM’s Overland Park health center. She has received a range of health care services including annual examinations, birth control (Depo-Provera shots), screening for STIs,
9Id. at 23. 10Doc. 13-2, Ex. 1, McQuade Decl. ¶ 27; Doc. 13-2, Ex. 2, Kogut Decl. ¶ 10.
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treatment for pre-cancerous cells, sexual health education, and breast cancer screenings. Jane Doe #2 is currently disabled and relies on Medicaid for her health insurance. She prefers going to Planned Parenthood because she believes they have an expertise in reproductive health care that is unmatched by other providers, and she feels comfortable asking Planned Parenthood about anything related to her reproductive health care. She wishes to continue to obtain her reproductive health care from Planned Parenthood and does not wish to find another provider.
Plaintiff Jane Doe #3 is a PPKM patient who lives in Wichita, Kansas. She is a KanCare recipient and has no other health insurance. At the PPKM health center in Wichita, she receives her annual examinations, follow up care after some abnormal pap smears, birth control, and STI screening and treatment. At a Planned Parenthood clinic in another state, she also received an abortion. Most recently, the PPKM health center in Wichita provided her with a pregnancy confirmation test. She is currently 33 weeks pregnant. After she has the baby, Jane Doe #3 plans to return to the Wichita health center for birth control. Given her status as an established patient at PPKM, it is important to her to be able to return there for her reproductive health care. She believes that Planned Parenthood “saved my life in many ways by providing me the health care that I needed at critical points in my life.”11
In July 2015, a group called the Center for Medical Progress (“CMP”) released a series of YouTube videos purporting to depict representatives from PPFA and from Planned Parenthood affiliates in other states discussing the illegal sale of fetal tissue and altering abortion procedures to preserve fetal tissue. The videos themselves are not part of this record. Instead, Defendant submits unauthenticated transcripts from two videos dated July 25, 2014,12 and February 6,
11Doc. 7-2, Ex. A, Decl. of Jane Doe #3 ¶ 6. 12Doc. 37-2, Ex. 1-A.
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2015.13 The 2014 transcript identifies the speakers as “Two actors posing as Fetal Tissue Procurement Company,” and Deborah Nucatola, MD, Senior Director of Medical Services, PPFA. The 2015 transcript identifies the speakers as Mary Gatter, MD, President, Medical Directors’ Council, PPFA and Medical Director, Planned Parenthood Pasadena & San Gabriel Valley, Laurel Felczer, WHCNP, Senior Director of Medical Services, Planned Parenthood Pasadena & Sun Gabriel Valley, and “Two actors posing as Fetal Tissue Procurement Company.” The parties vehemently dispute whether the transcripts are complete and reliable.14 But it is undisputed that neither video transcript mentions PPKM, PPSLR, or any of their current or former employees. It is also undisputed that PPKM and PPSLR do not participate in fetal tissue donation or sale.
Kansas investigated PPKM about whether it failed to comply with Kansas law regarding fetal organs and tissue. “After careful review of the investigative materials,” the Disciplinary Panel of the Kansas Board of Healing Arts (“KBHA”) concluded on January 7, 2016, that no further action should be taken against PPKM.15 Also, the Missouri Attorney General investigated PPSLR and determined that there was no evidence of wrongdoing.
A few weeks before the KBHA concluded its investigation, KDHE’s Bureau of Waste Management (“BWM”) inspectors appeared unannounced at the PPKM Overland Park health
13Doc. 37-3, Ex. 1-B. 14Plaintiffs move to strike the transcripts of these videos, attached to Defendant’s response as Exhibits 1-A and 1-B. The motion is denied. The Rules of Evidence do not apply at the preliminary injunction stage of this proceeding. See, e.g., Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, the Court finds that the authenticity and reliability of this evidence is not at issue at this time, given the Court’s finding infra that because there is no dispute that the videos do not depict PPKM or PPSLR or their employees, and because Plaintiffs are likely to succeed in showing that these affiliates are separate and distinct from PPFA and its other affiliates, attributing the conduct portrayed in these videos to these Plaintiffs was not a proper basis to exclude them as Medicaid providers under the Medicaid Act. 15Doc. 13-2, Ex. 1-A at 27.
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care center on December 16, 2015, for a solid waste inspection pursuant to K.A.R. § 28-29-16.
That regulation provides that a duly authorized representative of Secretary Mosier
at any reasonable hour of the day, having identified themselves and giving notice of their purpose, may:
(1) Enter a factory, plant, construction site, solid waste disposal area, solid waste processing facility, or any environment where solid wastes are generated, stored, handled, processed, or disposed, and inspect the premises and gather information of existing conditions and procedures; (2) Obtain samples of solid waste from any person or from the property of any person, including samples from any vehicle in which solid wastes are being transported; (3) Drill test wells on the affected property of any person holding a permit or liable for a permit under K.S.A. 65-3407 or amendments of that statute and obtain samples from the wells; (4) Conduct tests, analyses, and evaluations of solid waste to determine whether the requirements of these regulations are otherwise applicable to, or violated by, the situation observed during the inspection; (5) Obtain samples of any containers or labels; and (6) Inspect and copy any records, reports, information, or test results relating to wastes generated, stored, transported, processed, or disposed.
BWM had never previously inspected the PPKM Overland Park health care facility. The
BWM inspectors were escorted to two exam rooms, but when they reached the laboratory about
one hour into the inspection, PPKM staff informed them that they had spoken to PPKM’s
attorney and that although the inspectors could continue, they could not take further photographs
out of concern for clinic and patient privacy and safety. At this point during the inspection,
patients were present at the facility. The BWM inspectors also asked PPKM staff for a list of its
vendors, including linen service and regular trash hauler vendors. PPKM was concerned about
whether this information would become unprotected public information, exposing the vendors to
anti-abortion harassment that has occurred in other states were such information was made
public. PPKM staff asked the inspectors about whether the requested vendor information would
remain confidential and the inspectors responded that it would be available through the Kansas
Open Records Act and PPKM would have to go through the official process of claiming the
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information as confidential. PPKM would not provide the inspectors the names of the facility’s solid waste vendors, and asked the inspectors to return with a signed warrant. They returned later that day with a signed warrant. PPKM’s legal counsel told the inspectors that they could inspect, but could not take photographs due to concern for patient and staff safety. Again, counsel declined to provide the list of solid waste vendors, and the BWM inspectors left.
On January 5, 2016, BWM inspectors returned again with a warrant, and stated that they would only photograph relevant areas and take measures to protect patient privacy. PPKM eventually provided vendor information to the BWM on January 15, 2016, after agreeing to allow PPKM additional time to provide the vendor information and to document PPKM’s request to keep any photographs confidential. After the inspection, the facility was provided with a report that stated no violations had been identified.16
One week later, Governor Sam Brownback announced during his State of the State address on January 12, 2016:
In 2011, I signed legislation stopping most taxpayer funding from going to Planned Parenthood. The time has come to finish the job.
Planned Parenthood’s trafficking of baby body parts is antithetical to our belief in human dignity.
Today, I am directing Secretary Susan Mosier to ensure that not a single dollar of taxpayer money goes to Planned Parenthood through our Medicaid program. I welcome legislation that would enshrine this directive in state law.17 Almost two months later, on March 10, 2016, the KDHE sent the Plaintiff providers a Notice of Intent to Terminate Provider, “[a]t the direction of Governor Sam Brownback as set forth in his letter to Secretary Susan Mosier, M.D.,” attached to each notice. The notices state that KDHE intends to terminate the provider’s participation in the Kansas Medical Assistance
16Doc. 13-4, Ex. 3 ¶ 20; Ex. 3-E. 17Governor Sam Brownback, 2016 State of the State (Jan. 12, 2016) (transcript available at http://governor.ks.gov/media-room/speeches/2016/01/13/2016-state-of-the-state---january-12-2016).
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Program (“KMAP”) under K.A.R. 30-5-60(a), subsections (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. In an attachment to the letters of intent to terminate, KDHE provided three grounds for termination: (1) video evidence about practices by Planned Parenthood Federation of America affiliates that include unlawful agreements to procure fetal tissue after abortions; (2) failure to cooperate with solid waste disposal inspections; and (3) claims submission concerns identified by neighboring states about other PPFA affiliates.
The notice of intent to terminate letters provided for an administrative review on March 23, 2016. But an informal administrative review with legal counsel for PPKM and PPSLR was held on April 29, 2016. PPKM and PPSLR counsel presented evidence to rebut the allegations in the notice of termination letters and requested that if the KDHE decided to follow through with the termination, that it be made effective thirty days from the issuance of the decision.
On May 3, 2016, the provider Plaintiffs received final notices of termination, with an effective date of May 10, 2016. The notices state that “[a]fter thorough review of all information presented, it is the decision of DHCF that your participation in KMAP will be terminated effective May 10, 2016.”18 The final notices provided no further information about the grounds for termination. The final notices advised the providers of their right to request a hearing under K.A.R. § 30-7-64, et seq. within 33 days of the notice.
The day after receiving the final termination notices, Plaintiffs filed this lawsuit and sought a temporary restraining order (“TRO”) before the May 10 termination date, and a preliminary injunction pending a final decision on the merits. The Complaint alleges the
18See, e.g., Doc. 1, Ex. A at 2 (notice to PPKM).
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following claims for relief under 42 U.S.C. § 1983: (1) violation of the Medicaid Act, 42 U.S.C. § 1396(a)(23) “free-choice-of-provider” provision; and (2) an Equal Protection violation under the Fourteenth Amendment.
The Court set a TRO hearing for May 6. But soon after setting the hearing, the parties jointly agreed to proceed on the request for preliminary injunction only and requested a continuance of the hearing until May 17. On May 10, the parties again jointly requested a continuance of the hearing until May 25. On May 17, outside counsel for the KDHE withdrew from the case and the Court conducted a status conference by telephone. Upon assurance from the KDHE that its termination decision would not become effective until July 7, 2016, the Court again reset the briefing deadlines on the motion for preliminary injunction and continued the hearing until June 7. On June 13, 2016, the KDHE reversed its termination decisions as to the individual provider Plaintiffs; these Plaintiffs have voluntarily dismissed their claims. The Court therefore considers the motion for preliminary injunction motion as it applies to the PPKM and PPSLR termination decisions only.19 II. Administrative Review and Justiciability
Under the KDHE regulations promulgated in furtherance of the Kansas Administrative Procedure Act (“KAPA”), the providers have the right to request a fair hearing administered by a hearing officer from the KDHE’s administrative hearings section to review an unfavorable decision.20 The hearing may be by telephone unless a party shows good cause why a fair and
19On July 5, 2016, Defendant submitted a letter to the Court notifying it that it received a notice of name change from PPKM and Comprehensive Health of PPKM to Planned Parenthood Great Plains, effective July 1, 2016. Doc. 62. The letter states that this may render PPKM’s claims moot, and argues that the fraudulent billing practices basis for the termination decision “is now directly at issue.” The letter further states that the “merger may have significant regulatory implications, such as requiring PPGP to obtain a new Medicaid provider identification number and provider agreement.” Id. at 1.
20K.A.R. § 30-7-67.
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impartial hearing could not be conducted by telephone.21 Either party can then request a rehearing before a state appeals committee.22 Once the administrative process concludes, a party may further appeal through the state courts under the Kansas Judicial Review Act.23 Defendant argues that because Plaintiffs have the right to request this fair hearing within 33 days of the effective date of the KDHE’s termination decisions, or by August 10, 2016,24 the administrative process has not yet been exhausted, and therefore Plaintiffs lack standing and the case is not ripe for review. Alternatively, Defendant argues that this Court should abstain in deference to the KDHE’s administrative proceeding. Plaintiffs attest through declarations that they do not intend to file an administrative appeal. They further argue that the Court must rule before the effective date of the decisions in order to provide them with meaningful relief, and that abstention is not warranted.
Article III of the Constitution gives federal courts the power to exercise jurisdiction only over “Cases” and “Controversies.” As the Supreme Court has explained, “[i]n limiting the judicial power to ‘Cases’ and ‘Controversies,’ Article III of the Constitution restricts it to the traditional role of Anglo-American courts, which is to redress or prevent actual or imminently threatened injury to persons caused by private or official violation of law.”25 A court lacking jurisdiction must dismiss the case, regardless of the stage of the proceeding, when it becomes apparent that jurisdiction is lacking.26 The party who seeks to invoke federal jurisdiction bears
21K.A.R. § 30-7-72. 22K.A.R. §§ 30-7-77, -78. 23K.S.A. §§ 77-604 through -631. 24K.A.R. § 30-7-68(a). 25Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009). 26Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995).
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the burden of establishing that such jurisdiction is proper.27 “Thus, plaintiff bears the burden of showing why the case should not be dismissed.”28 Mere conclusory allegations of jurisdiction are not enough.29
As described more fully below, the Court rejects Defendant’s ripeness, standing, and abstention challenges to this Court’s jurisdiction.30 In so doing, the Court is mindful that Defendant’s position on the effective date of termination has been a moving target so far in this short-lived litigation. First, the KDHE declined Plaintiffs’ request after an April administrative hearing to delay any termination decision for thirty days from the date that the final termination letters were issued, and instead set an original termination date of May 10 (one week from the date of the final termination letters). This prompted Plaintiffs to immediately file suit and request a temporary restraining order, which the Court set for hearing on May 6 in order to render a decision before the May 10 effective date. The parties then jointly requested two continuances of the hearing until May 17 and then May 25, which were both tied to the KDHE’s agreement to extend the effective date of the termination decisions. Then, during a May 17 status conference, outside defense counsel advised that they would be withdrawing, and agency counsel Mr. Dernovish advised that he would be entering an appearance. Mr. Dernovish sought a thirty-day extension of all deadlines, including the effective date of the termination, which he pledged to extend to July 7. At this status conference, the Court proposed that the parties enter
27Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). 28Harms v. IRS, 146 F. Supp. 2d 1128, 1130 (D. Kan. 2001). 29United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999). 30Defendant has suggested a potential mootness challenge in a footnote to its response brief, at oral argument, and in a July 5, 2016 letter to the Court, based on the merger between PPKM and Planned Parenthood of Central Oklahoma. The Court does not consider this issue to be in a posture for disposition at this time. As Defendant admits in its July 5 letter, it is unclear whether the merger means merely a name change to PPKM, or whether it would require an entirely new Medicaid provider contract. Until this development is resolved, the Court will not find that this case is moot based on this development. Instead, the Court evaluates the record as it exists today by evaluating whether the KDHE’s termination decision as to the named Plaintiffs must be enjoined.
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into an agreed injunction until September that would freeze the status quo, conduct expedited discovery over the summer, and set this case for a trial on the merits in late-September. Plaintiffs were amenable to this schedule but the KDHE was not, stating that while it did not oppose a fall trial date, it objected to any injunction being entered in the interim. This Court therefore set deadlines tied to a July 7 termination date; the preliminary injunction hearing was continued to June 7 to allow the Court time to render a decision before the terminations were set to go into effect.
When it filed its response to the motion for preliminary injunction on May 31, Defendant argued for the first time that the preliminary injunction motion is premature because the provider terminations could not possibly take effect until September 10, 2016, at the earliest.31 Defendant takes the position that this case is not ripe, that the Court should abstain under Younger, that Plaintiffs lack standing, and that there is no irreparable harm based on the repeated contention that no provider termination will actually occur until the provider Plaintiffs’ administrative appeal time runs on August 10, 2016, and then thirty more days pass—a period provided under the State’s contracts with the various MCOs that administer the Kansas Medicaid program. Defendant attached no statement from the agency attesting to the fact that it would stay its decision until that time period passed.
The Court expressed frustration at the June 7 hearing about the procedural posture of this case. Newly-retained defense counsel, who entered their appearances after the response brief
31See, e.g., Doc. 37 at 15 (“The termination of Medicaid funding thus will not occur before September 10, 2016, perhaps months later if Plaintiffs simply file an appeal.”), 20 (“Planned Parenthood will not lose a dime of Medicaid funding until after their appeals are exhausted.”), 37 (“Planned Parenthood and the Individual Provider Plaintiffs will not lose any Kansas Medicaid funding while state administrative appeals are pending. The Individual Plaintiffs will have their services at Planned Parenthood reimbursed under the same standards, through the same mechanism (the MCOs), as before KDHE initiated this administrative process, while any appeals are pending. No harm of any kind will befall any Plaintiffs until at least September 10, 2016 . . . .”), 38 (“Any modification of funding is at least three and one-half months away, perhaps more.”).
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was filed and four days before the hearing, took the odd position that entering into a stipulated injunction would somehow require a concession on the merits of the case. The Court understood at the conclusion of oral argument that these issues were ripe for adjudication, and made clear that it intended to rule on Plaintiffs’ request for relief before the July 7 effective date. The Court was therefore surprised to learn of Defendant’s lengthy motion to dismiss filed on Friday, June 24, 2016, reasserting several justiciability arguments, adding others, and seeking to dismiss the substantive claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Once again, many of the KDHE’s arguments are tied to its contention that no enforcement action can take place before September 10, 2016.32
Defendant’s motion to dismiss does nothing to allay the Court’s concern that Defendant wishes to have its cake and eat it too. The Court cannot fathom why Defendant objects to some form of agreed injunctive relief during the period between the KDHE’s July 7 termination date, and the date upon which Defendant claims reimbursements would be declined under the MCO contracts unless it intends to enforce the terminations. Defendant repeatedly asserts in its briefs that no action may be taken before this September date, but never addresses Plaintiffs’ argument that there is nothing in the law or record that would guarantee a stay of the termination decisions while the appeal time runs, and pending any appeal that may be taken. Plaintiffs further point out that the contractual extension does not apply to PPSLR, and that their contracts with the MCOs do not reflect that January amendment in the contracts between the State and the MCOs. In the Court’s view, absent some sort of stipulation or other assurance, Plaintiffs reasonably do not take counsel’s briefing statements at their word that the termination decisions will not become effective until September. This refusal to commit to the KDHE’s intended course of
32Doc. 60 at 1, 2, 22, 23.
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action has created a procedural headache for the parties and for the Court, especially given the newly-filed motion to dismiss that deserves responsive briefing before decision. As Defendant is no doubt fully aware, it is impossible at this juncture for the Court to allow full briefing, and decide the motion to dismiss in its entirety before July 7. The fact that Defendant 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.
A. Ripeness Defendant urges this Court to deny the motion for preliminary injunction without prejudice based on “prudential considerations” associated with the timing of the motion. Although buried in the response brief and not articulated as such at oral argument, Defendant clarifies in the motion to dismiss that this is a ripeness challenge based on the fact that the effective date of the Medicaid terminations is potentially two months away. Ripeness is a jurisdictional prerequisite to suit that has both constitutional and prudential components.33 “Ripeness doctrine prevents courts from ‘entangling themselves in abstract disagreements’ and interfering in agency policy until ‘an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’”34 When considering whether a claim is ripe for adjudication, the Court must consider a two-part test evaluating the “fitness of the issue for judicial resolution and . . . the hardship to the parties of withholding judicial consideration.”35 1. Fitness for Judicial Resolution
33See, e.g., United States v. Bennett, –F.3d–, 2016 WL 3034664, at *7 (10th Cir. May 26, 2016). 34Farrell-Cooper Min. Co. v. U.S. Dep’t of Interior, 728 F.3d 1229, 1234 (10th Cir. 2013) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967)). 35U.S. West Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999) (citing New Mexicans for Bill Richardson v. Gonzales, 64 F.3d a1495, 1499 (10th Cir. 1995)).
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To determine the fitness for judicial resolution prong, the Court asks “whether judicial intervention would inappropriately interfere with further administrative action and whether the courts would benefit from further factual development of the issues presented.”36 Plaintiffs took advantage of their optional right to an administrative hearing, where Plaintiffs’ counsel was informally allowed to present evidence to rebut the allegations in the notices of intent to terminate. After hearing this evidence, Defendant proceeded to issue final termination decisions. An 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.”37 Here, the “final” termination notices represent concrete actions by the KDHE that threatened to harm Plaintiffs by excluding PPKM and PPSLR as Medicaid providers, notwithstanding the option of an administrative appeal.38 Unlike the cases cited by Defendant, this case does not call upon the Court to consider contingent future events.39
Defendant argues that judicial intervention would interfere with an ongoing administrative proceeding, and that the KDHE’s decision “is without imminent practical effect” because it cannot take effect until the time to administratively appeal passes, plus an additional thirty days provided under the State’s contracts with the MCOs. Although the termination letters advise the providers of their right to a fair hearing, they do not state that the decisions will be
36Farrell-Cooper, 728 F.3d at 1235 (quoting Sierra Club v. Dep’t of Energy, 287 F.3d 1256, 1262–63 (10th Cir. 2002)).
37Nat’l Park Hospitality Ass’n v. U.S. Dep’t of Interior, 538 U.S. 803, 807–08 (2003). 38See Abbott Labs. v. Gardner, 387 U.S. 136, 151 (1967) (finding challenged regulation final where it is “definitive,” not merely the “ruling of a subordinate official,” nor “tentative.”). 39See, e.g., Park Lake Res. LLC v. U.S. Dep’t of Agric., 197 F.3d 448, 451–52 (10th Cir. 1999) (finding claim not ripe because applicable regulations required agency to revise determination during implementation, so claim rested upon contingent events); Friends of Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1094 (10th Cir. 2004) (finding decision not concrete where outcome was dependent upon voter approval of part of the project, a purely hypothetical outcome).
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stayed pending review, nor that these are tentative or advisory decisions. If Plaintiffs do not appeal, they can be assured that on August 10, 2016, the KDHE’s decision will stand. And even if they do request a fair hearing, under K.A.R. § 30-4-66, assistance is not terminated unless it concerns “the termination of a provider from program participation.” While it is true that the MCO contract submitted by Defendant states that a provider termination is effective thirty calendar 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 Medicaid termination,”40 this provision changes nothing about the termination decision itself. Further, it is not clear that the contractual provision relied upon by Defendant applies to PPSLR, nor that it applies to the contracts between the MCOs and PPKM.41 There are no contracts in the record between those parties except for the contract between PPKM and one KanCare MCO, Amerigroup Kansas, Inc.42 That contract provides for immediate termination. There is no foundational evidence in the record providing this Court with a basis to conclude that the amendment submitted by Defendant caused the MCO’s to supersede their agreements with PPKM. And PPSLR does not contract with the KanCare MCOs,43 so the KDHE decision will certainly be effective for PPSLR on August 10, 2016.
When considering threatened action by the government for purposes of standing and ripeness, the Supreme Court has explained 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—for example, the constitutionality of a law threatened to be
40Doc. 37-11, Ex. 1-J at 10–11. 41Doc. 37-11, Ex. 1-J. 42Doc. 49-2, Ex. A-1. 43PPSLR maintains that it does not bill the MCOs or Kansas directly because it is billed as an “out of network” provider, which still requires a Medicaid provider agreement.
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enforced.”44 The Court finds that the KDHE’s final termination decisions are sufficiently concrete and imminent to make the claims in this case ripe.
Defendant argues that the Court should allow the KDHE to exercise its agency expertise because the issues in this case are fact driven and deserve a more fully developed administrative record. To be sure, the parties dispute the degree to which PPFA and the Planned Parenthood affiliates in this case are connected. And there is some dispute about the details involving the solid waste inspection. But both parties have submitted evidence on these issues and, tellingly, neither party requested an evidentiary hearing on the motion for preliminary injunction. They treated the hearing as oral argument, resting on the evidence submitted with the briefs. Defendant provides the Court with no explanation about how these non-legal issues demand “agency expertise” in order to resolve the claims in this case. Certainly it does not take agency expertise to determine the relationship between affiliated organizations. Instead, the Court finds that this case predominately involves purely legal questions: the meaning of 42 U.S.C. § 1396a(a)(23), and the applicability of the Equal Protection clause to the facts of this case.45 While additional factual development is expected, given its procedural posture, “in the vast majority of cases in which ripeness is not found, ‘additional factual development’ is absolutely ‘necessary,’ a feature wholly absent from a proceeding focused on the outer parameters of a statute’s meaning.”46
2. Hardship
44Medimmune, Inc. v. Genetech, Inc., 549 U.S. 118, 128 & n.8 (2007); see also Consumer Data Ind. Ass’n v. King, 678 F.3d 898, 907 (10th Cir. 2012) (ripeness is seldom an obstacle to a pre-enforcement challenge in this posture, where the plaintiff faces a “credible threat” of enforcement”).
45Accord Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 627 (M.D. La. 2015). 46Id. at 629.
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The Court also finds Plaintiffs have demonstrated hardship if this Court declines to review the decision—the KDHE’s termination decisions result in a legal and practical harm by terminating the providers’ status as Medicaid providers.47 Plaintiffs need not await the effective date of the decisions in order to suffer a legal hardship—there is no chance that the decisions will change before the effective date absent Plaintiffs’ deciding to file an optional appeal. And, as described, it is not clear under the regulations that the termination decision would be stayed even if the providers requested a fair hearing.
As discussed above, while September 10, 2016 may be the effective date for the MCOs to terminate the provider agreements based on the KDHE’s summary decision, the KDHE’s decision itself becomes final on August 10, 2016. The Court finds that the claims in this case are fit for judicial resolution, and that Plaintiffs will suffer a hardship if this Court declines to review their § 1983 challenges to the KDHE’s termination decisions.
B. Standing In its recently filed motion to dismiss, Defendant argues for the first time that Plaintiffs lack standing under Article III of the Constitution to assert their claims in this case because the alleged injury is neither imminent nor fairly traceable to Defendant’s actions. One of several doctrines reflecting Article III’s case-or-controversy limitation on the judicial power is the doctrine of standing. That doctrine requires federal courts, before considering the merits of an action, to “‘satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [the plaintiff’s] invocation of federal-court jurisdiction.’”48
47See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733–34 (1998) . 48Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (quoting Warth v. Seldin, 422 U.S. 490, 498–99 (1975)).
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Standing is evaluated based on the facts as they exist at the time the complaint is filed.49 At the
pleading stage, the Court “‘presume[s] that general allegations embrace those specific facts that are necessary to support the claim,’”50 and “general factual allegations of injury resulting from the defendant’s conduct may suffice.’”51 Nonetheless, the Court is “not bound by conclusory allegations, unwarranted inferences, or legal conclusions.”52
The Supreme Court has found the “irreducible constitutional minimum of standing” to
contain three elements:
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result of the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”53
“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.”54
For the same reasons explained under the Court’s ripeness analysis,55 the Court finds that
Plaintiffs have suffered an injury in fact. Defendant argues that the injury is not imminent
because the effective date of the termination decisions is four months after the Complaint was
49Tandy v. City of Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004). 50Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)). 51Id. 52Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994). 53Lujan, 504 U.S. at 560–61 (quotation marks and citations omitted). 54Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 n.5 (2013)). 55The issues of imminence and ripeness really “boil down to the same question” in this case. Susan B. Anthony List, 134 S. Ct. at 2341; see also Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 630 (M.D. La. 2015).
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filed. But that is not the correct benchmark. First, the original effective date of the termination decisions (known to Plaintiffs when they filed the Complaint) was May 10, 2016, a mere six days after the Complaint was filed. The only reason the effective date was extended in the first place was by agreement of the parties, to allow Defendant time to respond to the motion for preliminary injunction and for the dispute to be fairly heard on a less expedited timeline. The Court and the Plaintiffs were prepared to proceed with a hearing on this matter back on May 6. Moreover, the availability of administrative review does not impede Plaintiffs’ injury for standing purposes, particularly given Plaintiffs’ assertion that they will not pursue an administrative appeal. Given this, they have demonstrated that there is a “substantial risk” that the harm alleged in this case will occur. The KDHE’s final decision will stand absent a unilateral reversal by the agency of that decision, or an appeal by Plaintiffs, which they have foresworn. And under the contract provision submitted by Defendant, the KanCare MCOs are required to terminate PPKM and PPSLR from the Medicaid program once this happens, even if the effective date of the action is delayed for thirty days. Plaintiffs have met their burden to show that the injury is certainly impending and that there is a substantial risk that the harm will occur.
The Court also finds that the alleged injury is fairly traceable to Defendant’s action. Plaintiffs need not show that Defendant’s conduct was the “proximate cause” of its injury in fact, but, “[i]f ‘speculative inferences are necessary to connect [a plaintiff’s] injury to the challenged action,’ this burden has not been met. Moreover, where ‘the independent action of some third party not before the court’—rather than that of the defendant—was the direct cause of the plaintiff's harm, causation may be lacking.”56 Defendant argues that the termination action
56Habecker v. Town of Estes Park, Colo., 518 F.3d 1217, 1225 (10th Cir. 2008) (quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45 (1976)).
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cannot be fairly traceable to Defendant’s action because it will be the result of Plaintiffs’ decision not to pursue an administrative appeal. There is no allegation, nor evidence that the alleged injury in fact—PPKM and PPSLR’s termination as Kansas Medicaid providers and the denial of their Medicaid patients’ right to choose them as a family planning provider—is due to the independent actions of a third party not involved in this lawsuit. And as already discussed, any administrative appeal in this case is optional; administrative exhaustion is not required for Plaintiffs to pursue their § 1983 claims.57 Likewise, the Court will not impose an indirect exhaustion requirement by finding that Plaintiffs caused their own injury by failing to pursue administrative remedies.
C. Younger Abstention The Court next considers Defendant’s argument that it should abstain under the Younger abstention doctrine. Under Younger, a federal court considers whether: “(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the state court provides an adequate forum to hear the claims raised in the federal complaint, and (3) the state proceedings involve important state interests, matters which traditionally look to state law for their resolution or implicate separately articulated state policies.” Once these three conditions are met, Younger abstention is non-discretionary and, absent extraordinary circumstances, a district court is required to abstain.58 The issue in this case is whether the administrative appeal process available to Plaintiffs constitutes an ongoing administrative proceeding, which involves two inquiries: (1) whether there is an ongoing proceeding; and (2) “whether the proceeding is the type of state proceeding
57Houghton ex rel. Houghton v. Reinerston, 382 F.3d 1162, 1167 n.3 (10th Cir. 2004) (citing Porter v. Nussle, 534, U.S. 516, 523 (2002); Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 521–22 (1990)).
58Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1215 (10th Cir. 2003) (quoting Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir.1999)) (citations omitted).
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that is due the deference accorded by Younger abstention.”59 Plaintiffs argue that neither component of the initial prong of Younger is met here.
The Court agrees with Plaintiffs that the administrative proceeding here is not ongoing. If PPKM and PPSLR decide to appeal the KDHE’s termination decisions, the fair hearing would be conducted under the KAPA.60 If the administrative decision was unfavorable to the provider Plaintiffs, they would be able to further appeal that decision in the state courts. There can be no dispute that the trial and appellate stages of state court litigation are considered a unitary process for purposes of Younger.61 The Supreme Court has twice left open the question of whether “an administrative adjudication and the subsequent state court’s review of it count as a ‘unitary process’ for Younger purposes.”62 Several other circuits have held that the administrative proceeding is part of that unitary process and therefore a litigant must exhaust judicial review of administrative decisions before filing suit in federal court.63 However, Defendant has pointed the Court to no authority that this unitary process is considered ongoing before it even begins. The cases considering this issue examine whether a pending or completed administrative proceeding is ongoing where the plaintiff files a federal claim instead of completing the administrative process and pursuing judicial review of the administrative decision.64 Here, the
59Brown ex rel. Brown v. Day, 555 F.3d 882, 888 (10th Cir. 2009). 60K.S.A. § 77-501 to -566. 61Huffman v. Pursue, Ltd., 420 U.S. 592, 608 (1975). 62Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 592 (2013); New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989) (“NOPSI”)). 63See, e.g., Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 166 (4th Cir. 2008); Maymo-Melendez v. Alvarez-Ramierez, 364 F.3d 27, 35 (1st Cir. 2004); Majors v. Engelbrecht, 149 F.3d 709, 713 (7th Cir. 1998); see also Brown, 555 F.3d at 901 (Tymkovich, J., dissenting). 64See Ohio Civil Rights Comm’n v. Dayton Christian Schs., 477 U.S. 619, 627 (1986) (considering federal case filed while administrative proceedings were pending that had been initiated by school board); Alleghany Corp. v. McCartney, 896 F.2d 1138, 1144 (8th Cir. 1990) (federal complaint filed instead of seeking state court judicial review); O’Neill v. City of Philadelphia, 32 F.3d 785, 790 (3d Cir. 1994) (failure to seek state court judicial review of administrative proceeding). But see Moore v. City of Asheville, 396 F.3d 385, 389 (4th Cir. 2005) (finding
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only administrative decisions are summary decisions by the KDHE terminating benefits. No administrative appeal has been filed and the Plaintiffs have made clear that they do not intend to file an administrative appeal.
Even if the administrative proceeding is ongoing, the Court finds that the administrative decision here is not the type that requires Younger abstention. In 2013, the Supreme Court made clear that abstention is warranted in only three types of proceedings: (1) state criminal prosecutions; (2) certain civil enforcement proceedings; and (3) “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.”65 The administrative appeal in this case clearly does not meet the first or third category; the parties dispute whether the administrative appeal procedure available to the provider Plaintiffs constitutes a “civil enforcement proceeding.” In Sprint Communications, Inc. v. Jacobs, the Court explained that civil enforcement proceedings are generally “akin to a criminal prosecution in important respects,” and “are characteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act.”66 The Court cannot find that the KDHE’s termination decision constitutes a “civil enforcement proceeding” under this guidance. First, the KDHE’s termination decision is not akin to a criminal prosecution. A state agency is permitted under the law to initiate an enforcement action under K.S.A. § 77-624, but this was a summary termination decision by the KDHE. While there was presumably an investigation before the termination decision was made, there was no proceeding that began with a complaint or formal charge against the providers. The providers chose to avail themselves of an informal administrative review; it was not required. Therefore, the
Younger applied where plaintiff did not seek administrative remedies and where the federal suit was duplicative and would disrupt state substantive policies).
65Sprint, 134 S. Ct. at 588 (quoting NOPSI, 491 F.3d at 368). 66Id. at 592 (internal quotation omitted).
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administrative review was initiated by Plaintiffs; it was not a coercive proceeding “initiated by the State in its sovereign capacity.”67 Under Sprint, the Court does not find that the KDHE’s termination decision was a civil enforcement proceeding.
Tenth Circuit authority also supports the conclusion that the KDHE’s termination decision is not the type of proceeding entitled to deference for purposes of Younger. In Brown ex rel. Brown v. Day, which was decided before the Sprint case, the Tenth Circuit considered whether the district court was correct to abstain in favor of an administrative proceeding for which state court judicial review was still available.68 The court decided that this inquiry turned on whether the administrative proceeding is remedial or coercive.69 Only coercive administrative proceedings require deference.70 To determine whether an administrative proceeding is coercive or remedial, the court should consider: (1) “whether the federal plaintiff initiated the state proceeding of her own volition to right a wrong inflicted by the state (a remedial proceeding) or whether the state initiated the proceeding against her, making her participation mandatory”;71 (2) whether “the federal plaintiff contends that the state proceeding is unlawful (coercive)” or whether “the federal plaintiff seeks a remedy for some other stateinflicted wrong (remedial)”;72 and (3) “if the federal plaintiff sought to thwart a state administrative proceeding initiated to punish the federal plaintiff for a bad act.”73
First, the “state proceeding” was initiated by the provider Plaintiffs—they opted to avail themselves of an informal administrative hearing before a final termination decision was issued
67Id. (quoting Trainor v. Hernandez, 431 U.S. 434, 444 (1986)). 68555 F.3d 882, 888 (10th Cir. 2009). 69Id. at 889. 70Id. at 888–89. 71Id. at 889. 72Id. 73Id. at 891.
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by the KDHE. If any further administrative appeal is taken before August 10, 2016, it must be
initiated by the provider Plaintiffs as well. Neither the informal administrative hearing nor any
administrative appeal is mandatory under Kansas law and Plaintiffs declare that they will not
pursue their optional administrative remedy. Importantly, any potential appeal would only be
available to PPKM and PPSLR; the patient Plaintiffs would have no recourse for pursuing their claims in this case.74 Second, the provider Plaintiffs do not contend that the administrative
proceeding itself was unlawful; they seek a remedy for violations of the federal Medicaid Act
and the United State Constitution. Finally, there is no bad act identified in this case that
triggered coercive proceedings. While the grounds cited for the termination decision allege violations of Kansas law, they were not alleged in the context of a coercive proceeding.75 Even
if the administrative proceeding in this case is considered ongoing, the Court finds that it is
remedial and not coercive, and thus under Tenth Circuit precedent would not constitute a civil
enforcement proceeding. The Court therefore finds that there is no ongoing state administrative proceeding that
requires this Court to abstain under Younger. In reaching this conclusion, the Court is mindful
74See id. at 893 (“Brown initiated a challenge to Kansas state action by requesting a hearing before HPF. Kansas did not mandate that she participate in any such proceedings. Rather, HPF summarily terminated her benefits . . . .”); see also Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 633 (M.D. La. 2015) (“no administrative proceeding commences until or unless PPGC appeals, and PPGC has foresworn that option. Meanwhile, the Individual Plaintiffs cannot possibly initiate such a proceeding as a matter of state law as Defendant’s two lawyers have admitted.); Shifrin v. Colorado, No. 09-cv-3040-REB-MEH, 2010 WL 3843083, at *7 (D. Colo. Aug. 11, 2010) (applying Brown and finding that the plaintiff initiated the state court proceeding by requesting a hearing after being denied a mortgage license). This is a particularly important point given that the Court has deferred ruling on whether the providers have standing to raise the Medicaid Act claim in this case on behalf of the patients.
75The Court does not agree with Defendant that Judge Marten’s decision in Wright v. McClaskey commands a different result. There, the plaintiff did not deny that he was the subject of an ongoing state administrative proceeding. No. 15-1098-JTM, 2015 WL 5199217, at *5 (D. Kan. Sept. 4, 2015). The Brown factors also applied differently—the administrative proceeding was mandatory, it was not initiated by the plaintiff, and the plaintiff committed an alleged bad act by statutory noncompliance and by failing to pay fines that had been issued to him. Id. at *7.
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that the Court’s “duty to exercise [its] jurisdiction is so imperative” in the § 1983 context because “Congress specifically created a federal cause of action enforceable in federal courts.”76 IV. Preliminary Injunction Factors
A preliminary injunction “is an extraordinary remedy,” so “the right to relief must be clear and unequivocal.”77 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”78 A relaxed standard applies if the movant can show that the harm and public interest factors “tip strongly in its favor.”79 If the movant can make this showing, it can meet the likelihood of success on the merits prong “by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.”80 However, there is a qualification to the relaxed standard: ‘where a preliminary injunction seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” the traditional standard applies.81 The Court therefore applies the traditional standard in deciding Plaintiff’s motion.
A. Likelihood of Success on the Merits Plaintiffs argue that they are likely to succeed on both of their claims—that the State violated the Medicaid Act free-choice-of-provider provision, and the Equal Protection Clause of
76Brown, 555 F.3d at 894. Because this Court finds that there is no an ongoing proceeding entitled to abstention under Younger, the Court does not address the second and third prongs of the abstention doctrine.
77Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). 78Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 79Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006) (quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)). 80Id.(footnote omitted). 81See, e.g., Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir. 2006) (quoting Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)).
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the Fourteenth Amendment when it terminated the Plaintiff providers from the Medicaid
program. Because the Court finds that Plaintiffs are likely to succeed on their Medicaid Act
claim, it does not consider the likelihood of success on the merits of the Equal Protection claim
at this time.
Plaintiffs argue that the KDHE’s decision to terminate the provider Plaintiffs from
Medicaid violates 42 U.S.C. § 1396a(a)(23), often referred to as the “free-choice-of-provider”
requirement. “Medicaid is a cooperative federal-state program that provides federal funding for state medical services to the poor.”82 State participation in the program is voluntary, “but once a
State elects to join the program, it must administer a state plan that meets federal requirements.”83 Section 1396a provides for several requirements for State plans for medical
assistance. Under § 1396a(a)(23), a State plan must
provide that (A) any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services, and (B) an enrollment of an individual eligible for medical assistance in a primary care casemanagement system (described in section 1396n(b)(1) of this title), 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, except as provided in subsection (g) of this section, in section 1396n of this title, and in section 1396u-2(a) of this title, except that this paragraph shall not apply in the case of Puerto Rico, the Virgin Islands, and Guam, and except that nothing in this paragraph shall be construed as requiring a State to provide medical assistance for such services furnished by a person or entity convicted of a felony under Federal or State law for an offense which the State agency determines is inconsistent with the best interests of beneficiaries under the State plan or by a provider or supplier to which a moratorium under subsection (kk)(4) is applied during the period of such moratorium.
1. Whether § 1396a(a)(23) creates an enforceable right that may be vindicated under 42 U.S.C. § 1983
82Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 433 (1986). 83Id.
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Defendant first challenges whether the free-choice-of-provider provision creates an enforceable right that may be vindicated under § 1983. All of the circuit courts to consider this issue have concluded after a thorough analysis that Medicaid patients may bring an enforcement action under § 1983 to vindicate their rights under this provision.84 To determine whether a federal statute provides a private right of action under § 1983, three factors guide the Court’s analysis:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms.85 The Supreme Court has cautioned that “where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.”86 This Court follows the Sixth, Ninth, and Seventh Circuits in holding that the patient Plaintiffs have a private right of action to enforce the Medicaid free-choice-of-provider provision under this three factor test. The statute creates unambiguous rights-creating language sufficient to show that Congress intended to benefit Medicaid beneficiaries.87 The statute provides courts with sufficiently concrete and objective standards for enforcement by requiring states to
84Harris v. Olszewski, 442 F.3d 456, 461–65 (6th Cir. 2006); Planned Parenthood of Ind., Inc.v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 972–77 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 (2013); Planned Parenthood v. Betlach, 727 F.3d 960, 965–68 (9th Cir. 2013), cert. denied, 134 S. Ct. 1283 (2014). But cf. Silver v. Baggiano, 804 F.2d 1211, 1217–18 (11th Cir. 1986) (remanding case to district court to consider whether § 1396a(a)(23) is enforceable by the health care provider, given that it had not been decided below, and given that a patient who was “an actual recipient” had moved to intervene in the case), abrogated on other grounds by Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 (2002).
85Blessing v. Freestone, 520 U.S. 329, 340–41 (1997) (citations omitted). 86Gonzaga Univ. v. Doe, 536 U.S. 273, 286 (2002). 87Betlach, 727 F.3d at 966–67; Comm’r of Ind., 699 F.3d at 974; Harris, 442 F.3d at 461–62.
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determine whether a “provider is qualified to perform the services required,” and whether the provider “undertakes to provide such services.”88 And the statute is couched in mandatory terms because it says that states “must provide” in their Medicaid plans that beneficiaries can choose from a provider qualified to perform the medical services required.89 The Medicaid Act does not otherwise foreclose a private cause of action through § 1983.90 “Neither is the Act’s requirement that States ‘grant[ ] an opportunity for a fair hearing before the State agency to any individual whose claim for medical assistance under the [State] plan is denied,’ 42 U.S.C. § 1396a(a)(3), inconsistent with a private action under § 1983.”91
Defendant argues that a more recent Supreme Court decision dictates a different result. In Armstrong v. Exceptional Child Center, Inc.92 the Supreme Court considered whether a different subsection of § 1396a(a) confers a private right of action to Medicaid providers. Subsection (30)(A) requires State plans to:
provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. The lower court found that the plaintiff providers had an implied right of action under the Supremacy Clause to seek injunctive relief against enforcement of state legislation that failed to set rates in a manner consistent with § 30(A).93 The Supreme Court disagreed, holding that there
88Betlach, 727 F.3d at 967; Comm’r of Ind., 699 F.3d at 974; Harris, 442 F.3d at 462. 89Betlach, 727 F.3d at 967; Comm’r of Ind., 699 F.3d at 974; Harris, 442 F.3d at 462 90Harris, 442 F.3d at 462. 91Id. at 463 (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 520–22 (1990)). 92135 S. Ct. 1378 (2015) (plurality opinion). 93Id. at 1382.
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was no implied right of action under either the Supremacy Clause, or in equity.94 Justice Scalia further wrote that Congress did not provide a private right of action under the Medicaid Act itself.95 In explaining that the Medicaid Act conferred no cause of action, Justice Scalia reasoned that (1) § 30(A) lacked “rights-creating language needed to imply a private right of action,” and (2) that intended beneficiaries of a contract are generally unable to sue where the contract is between two governments, as with the Medicaid Act, at least in the absence of an “unambiguously conferred” private right of action.”96 But this portion of Justice Scalia’s opinion was not joined by a majority of justices and is therefore not binding.97 Moreover, the Court agrees with Plaintiffs that Armstrong’s holding is narrow and applies only to subsection 30(A), which does not contain the type of rights-creating language contained in subsection 23. As the Court noted in Armstrong, § 30(A) “is phrased as s directive to the federal agency charged with approving state Medicaid plans,” whereas § 23 allows “any individual” to choose among qualified providers who undertake to provide medical services.98 Further, § 30(A) is a rate setting statute that that contains a broad standard that would be difficult to judicially administer.99 Plaintiffs are likely to succeed in arguing that the Jane Doe Plaintiffs have a private right of action under § 1983 to enforce their rights under § 1396a(a)(23).
Defendant argues for the first time in the motion to dismiss that if there is a private right of action, it runs only to Medicaid patients and therefore PPKM and PPSLR lack standing to
94Id. at 1383–87 & 1388 (Breyer, J., concurring). 95Id. at 1383–87. 96Id. at 1387–88. 97Id. at 1388 (Breyer, J., concurring); see Altria Grp., Inc. v. Good, 555 U.S. 70, 555 (2008) (“Because the ‘plurality opinion . . . did not represent the views of a majority of the Court, we are not bound by its reasoning.’” (quoting CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 81 (1987))). 98Accord Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 640–41 (M.D. La. 2015). 99Accord Planned Parenthood S.E., Inc. v. Bentley, 141 F. Supp. 3d 1207, 1217–18 (M.D. Ala. 2015).
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assert a claim under § 1396a(a)(23). Because the Court finds that the Jane Doe Plaintiffs have a private right of action, the Court need not resolve at this time whether PPKM and PPSLR have standing in their own right, or on behalf of the patients, in order to grant injunctive relief. The Court will instead consider this issue in the context of the motion to dismiss, after allowing full briefing.
2. Whether there is a violation of § 1396a(a)(23) The free-choice-of-provider requirement is subject to two limitations: “(1) the provider is ‘qualified to perform the service or services required,’ and (2) the provider ‘undertakes to provide [the recipient] such services.’”100 All courts to consider the question have determined that the term “qualified” is unambiguous and may be defined according to its ordinary meaning,101 which is “having an officially recognized qualification to practice as a member of a particular profession; fit, competent.”102 In the context of the statute, a provider must be “qualified to perform the service or services required,” so the provider therefore must “be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.”103 The Seventh and Ninth Circuits have both held that under this standard, States are not permitted “to establish provider-eligibility criteria based on any legitimate state interest.”104
100Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 967 (9th Cir. 2013), cert. denied, 134 S. Ct. 1283 (2014) (quoting § 1396a(a)(23)).
101Id. at 969 (quoting Oxford English Dictionary (3d ed. 2007)); see also, e.g., Comm’r of Ind., 699 F.3d at 978 (citing Black’s Law Dictionary 1360 (9th ed. 2009)) .
102See id.at 969; Planned Parenthood of Ind., Inc.v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 978 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 (2013); Kliebert, 141 F. Supp. 3d at 643; Planned Parenthood Ark. & E. Okla. v. Selig, No. 4:15-cv-00566-KGB, Doc. 45 at 26–27(E.D. Ark. Oct. 5, 2015), attached as Doc. 13, Ex. 4.
103Comm’r of Ind., 699 F.3d at 978. 104Id.; Betlach, 727 F.3d at 970 (“Giving the word ‘qualified’ such an expansive meaning would deprive the provision within which it appears of any legal force.”).
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Defendant does not contest this meaning of “qualified” in its brief, nor does it argue that the Provider Plaintiffs are not qualified under § 1396a(a)(23).105 Instead, Defendant argues that Plaintiffs brought their claim under the wrong statute because they challenge the decision to terminate the provider agreements, not the lack of patient choice. The Court disagrees and follows the guidance provided by another district court that considered an identical argument. In Planned Parenthood S.E., Inc. v. Bentley, 106 the United States District Court for the Middle District of Alabama explained that the scope of the patients’ claim was that their provider of choice was wrongfully excluded from the pool of providers from which they have a right to choose:
If a State could defeat a Medicaid recipient’s right to select a particular qualified healthcare provider merely by terminating its agreement with that provider on an unlawful basis, the right would be totally eviscerated. If the Governor and the Acting Commissioner were correct that allegedly unlawful terminations of provider agreements could not be challenged by recipients pursuant to the free-choice-of-provider provision, that provision’s “individual entitlement,” the “personal right” it gives recipients, would be an empty one.107 The Court finds that Plaintiffs properly brought their claim under the free-choice-of-provider requirement because they allege that the Jane Doe Plaintiffs were denied their right to receive covered Medicaid services from any qualified provider of their choice willing to provide the services. They contend that their provider was wrongfully removed from the pool of providers. The Court therefore proceeds to consider Defendant’s position that it properly terminated PPKM and PPSLR under the exclusion provision of the Medicaid Act, § 1396a(p)(1). That provision states:
105Because the Court finds that the free-choice-of-provider statute is unambiguous, the Court does not defer to the CMS Administrator’s interpretation of that statute. See Chevron, USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984); Comm’r of Ind., 699 F.3d at 980; Betlach, 727 F.3d at 975.
106141 F. Supp. 3d 1207, 1217–18 (M.D. Ala. 2015). 107Id. at 1218 (citations and footnote omitted).
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In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in a program under subchapter XVIII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.108 This provision permits termination in two ways: (1) for any reason that the Secretary could exclude under the cross-referenced Medicaid Act provisions, and (2) pursuant to the “any other authority,” savings clause. Under the savings clause, Defendant argues that it may terminate a provider agreement if it determines that the providers violated Kansas law or some other federal law. 1. Alleged Medicaid Act Violations Defendant first argues that it was justified in terminating the providers’ Medicaid provider agreements under 42 U.S.C. § 1320a-7(b), which provides for permissive termination under circumstances involving certain types of fraud and malfeasance. Plaintiffs are likely to succeed in showing that this statute does not justify the termination decisions. a. § 1320a-7(b)(5) Under § 1320a-7(b)(5)(B), the Secretary of Health and Human Services may terminate “any individual or entity” “for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.” Defendant contends that all three grounds it provided for the provider Plaintiffs’ terminations constitute violations of this statute. Plaintiffs are likely to demonstrate that this statute is inapplicable for several reasons. First, under § 1396a-p(1), the “entity” that a “State may exclude” must be the same entity that committed the infraction defined in § 1320a-7(b).109 Although the statute allows for exclusion of an entity based on affiliation with “a sanctioned individual,” that only applies when the affiliated
10842 U.S.C. § 1396a(p)(1). 109Bentley, 141 F. Supp. 2d at 1223–24 & n.9.
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“person” is sanctioned under the Medicaid Act and has an ownership or control interest in the entity, or is an officer, director, agent, or managing employee.110 Defendant points the Court to no authority that Congress intended to otherwise allow for exclusion based solely on affiliation outside of the strict confines of the statutory provision. There is no dispute that neither PPKM, PPSLR, nor their current or former employees were portrayed on the CMP videos. There is no dispute that the provider Plaintiffs have no direct or indirect ownership or control interest of five percent or more in PPFA or the affiliate identified in the videos. There is no dispute that PPKM and PPSLR do not participate in fetal tissue donation or sale. There is no dispute that PPKM and PPSLR are not the subjects of any Medicaid billing fraud claim relied upon by the KDHE in their notices of intent to terminate.
Defendant points the Court to evidence that Governor Mary Fallin of Oklahoma has called for termination of her State’s Medicaid provider contracts with the two Planned Parenthood affiliates located there. She cites two October 2015 Integrity Reviews, finding a 20.3% and 14.1% billing error rate.111 The Governor’s comments come from a letter she sent to the Director of the Oklahoma Health Care Authority Board, encouraging him to consider terminating these two affiliates’ Medicaid provider contracts. Outside of these integrity reviews, which are not part of this record, Governor Fallin points to False Claims Act cases in other states. There is no evidence about the action taken, if any, by the Oklahoma Health Care Authority Board based on this letter. Defendant argues that this evidence directly relates to PPKM given its intended merger with Planned Parenthood of Central Oklahoma, one of the affiliates referenced in Governor Fallin’s letter. But on this record, the Court finds that Plaintiffs would succeed in arguing that the Oklahoma affiliate was not sanctioned under either the
11042 U.S.C. § 1320a-7(b)(8). 111Doc. 37-5, Ex. 1-D.
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Medicaid Act, or Oklahoma law, and that it does not have an ownership or controlling interest in PPKM.
Plaintiffs are likely to succeed in arguing that § 1320a-7(b) does not apply by virtue of affiliation, and therefore could not be applied to the provider Plaintiffs in this case as to two of the grounds for termination: the videos and the alleged Medicaid fraud. It also renders the grounds for termination against PPSLR entirely baseless since the KDHE inspection involved only one PPKM clinic.
The Court further finds that Plaintiffs are likely to succeed in showing that PPKM’s purported failure to cooperate with the BWM’s solid waste inspection in December 2015 does not bear on PPKM’s “professional competence, professional performance, or financial integrity.”112 First, it is undisputed that no solid waste violations were found, so the only basis for termination associated with the inspection was the alleged failure to cooperate. Defendant cannot explain how the failure to cooperate in the inspection, standing alone, bears on PPKM’s competence, performance, or financial integrity. Second, although the evidence makes clear that PPKM prohibited the inspectors from taking photographs of the facility on the first visit, and that it negotiated with the KDHE to maintain the confidentiality of its solid waste vendors before identifying them, there is no evidence that PPKM otherwise prevented the inspectors from performing their inspections. Although the BWM officials have submitted declarations stating that photographs of certain solid waste disposal containers were warranted, there is nothing in the regulatory authority that required PPKM to allow photographs to be taken. K.A.R. § 28-29-
112Although Defendant does not make this argument in responding to the preliminary injunction motion, the Court further finds that the inspection basis for termination does not touch upon PPKM’s qualifications under § 1396a(a)(23) given the undisputed fact that the inspection did not reveal any infractions that touch upon PPKM’s capability of performing the needed medical services in a professionally competent, safe, legal, and ethical manner. In addition to finding no evidence of solid waste disposal infractions, the KBHA previously investigated PPKM in relation to the CMP videos and found no further action should be taken. This finding was reached in between the first and second attempts to conduct a solid waste inspection.
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16 provides these inspectors with authority to “gather information of existing conditions and procedures,” but it does not require photographs be taken. There is no dispute in the record that PPKM would have allowed the inspection to continue but for the inspectors’ insistence on taking photographs. It was the BWM inspectors who opted to leave instead of continuing without photographs. More importantly, there was never any determination made by BWM or the KDHE that PPKM hindered the solid waste inspection—no enforcement action was ever brought against the facility. Given this record, Plaintiffs are likely to succeed in showing that they were not properly excluded from the Medicaid program under § 1320a-7(b)(5).
b. § 1320a-7(b)(12) Next, Defendant claims that the termination decisions were justified under § 1320a7(b)(12)(B), which allows the Secretary to terminate a provider “that fails to grant immediate access, upon reasonable request (as defined by the Secretary in regulations) . . . (B) To the Secretary or the State agency, to perform the reviews and surveys required under State plans under paragraphs (26), (31), and (33) of section 1396a(a) of this title and under section 1396b(g) of this title.” Section 1396a(a)(33), requires a State health or other appropriate medical agency to establish a plan for “the review by appropriate professional health personnel of the appropriateness and quality of care and services furnished to recipients of medical assistance under the plan in order to provide guidance with respect thereto in the administration of the plan to the State agency.” The Court finds that Plaintiffs are likely to succeed in demonstrating that the solid waste inspection here does not constitute a review bearing on “the appropriateness and quality of care and services furnished to recipients of medical assistance under the plan.” As already discussed, the failure to cooperate in the inspection, standing alone, does not implicate PPKM’s competence, performance, or financial integrity. Moreover, Plaintiffs have shown a
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likelihood of success in their contention that they did grant immediate access to the inspectors. And even after the inspectors insisted on taking photographs and obtaining confidential material, PPKM allowed the inspection to continue; the inspectors opted to come back in January instead.
c. § 1320a-7(a)(1), (3), or (b)(1)(A)(ii) Finally, Defendant appears to argue that its decision was justified under § 1320a-7(a)(1), (3), or (b)(1)(A)(ii) based on evidence that other PPFA affiliates submitted false Medicaid claims.113 Plaintiffs are likely to succeed in arguing that these provisions are entirely inapplicable because they all either require or permit exclusions based on criminal convictions. Moreover, as described above, they are tied to the conduct of other entities, not the Plaintiff providers that have been excluded by the KDHE. Defendant’s contention that there is an impending merger between PPKM and Planned Parenthood of Central Oklahoma does not change this analysis. At the time of the termination decisions, this planned merger was not known to the State, so it could not have formed the basis for its termination decision. p 2. Savings Clause Defendant makes the same argument advanced and rejected by the many courts that have been called upon to review whether termination decisions under the Medicaid Act violate the free-choice-of-provider provision: that under the savings clause, the states have plenary power to exclude providers as they deem fit under § 1396a(p)(1) without running afoul of the free-choiceof-provider provision.114 To be sure, the Seventh Circuit in Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana State Department of Health, acknowledged that the states retain regulatory authority over provider qualifications in terms of “licensing standards and other
113See Doc. 37 at 34–35. 114Betlach, 727 F.3d at 971–72; Comm’r of Ind., 699 F.3d at 979; Bentley, 2015 WL 6517875, at *9–10; Selig, Doc. 13-5 at 25.
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related practice qualifications,” but the claim in this case, like in the Seventh Circuit’s case “raises a question about the limits of that authority.”115 The Seventh Circuit also explained that the savings clause “signals only that what follows is a non-exhaustive list of specific grounds upon which states may bar providers from participating in Medicaid. It does not imply that the states have an unlimited authority to exclude providers for any reason whatsoever.”116 As the court explained, if states were able to exclude a provider based on any rule that they declared related to qualifications, it “would make the free-choice-of-provider requirement a nullity.”117 The nonexhaustive list of grounds for excluding a provider crossreferenced in the statute refer to “various forms of malfeasance such as fraud, drug crimes, and failure to disclose necessary information to regulators.”118 Therefore, the statute’s “savings clause empowers states to exclude individual providers on such grounds directly, without waiting for the Secretary to act, while also reaffirming state authority to exclude individual providers pursuant to analogous state law provisions relating to fraud or misconduct.”119
Defendant argues that PPKM violated state law by refusing to cooperate with a solid waste inspection in December 2015, which makes it unlawful for a person to interfere with a solid waste inspection. But as already discussed, the Court finds the Plaintiffs are likely to succeed in showing that they did not run afoul of state regulations by refusing to allow the BWM inspectors to take photographs in the facility while patients were present. And there is no evidence that PPKM was cited for impeding an inspection. The KDHE argues that it was justified in inferring that there was a solid waste violation by PPKM’s refusal to allow inspectors
115Comm’r of Ind., 699 F.3d at 979. 116Id. 117Id. 118Id.; Betlach, 727 F.3d at 972. 119Betlach, 727 F.3d at 972.
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to “do their job,” when viewed in conjunction with the YouTube videos. But the KBHA conducted a “thorough investigation” into PPKM after the CMP videos were released, and issued its finding that no further action be taken after PPKM allegedly interfered with the first solid waste inspection. And it is undisputed that PPKM does not participate in fetal tissue donation or sale. After the KBHA finding was issued, and after the parties negotiated BWM’s permission to take certain photographs and receive confidential solid waste vendor information, the BWM was able to finish its unannounced inspection and found no infractions.
Finally, Defendant argues that it was justified in terminating the providers’ Medicaid contracts based on the video evidence that Planned Parenthood affiliates “have sold body parts and manipulated abortions. These violations likely run afoul of State and Federal law, contravene the terms of the provider agreement, and fall well below the professional standard of care.”120 Assuming, without deciding that PPFA or other Planned Parenthood affiliates violated state and federal laws concerning fetal tissue donation, the providers in this case are likely to succeed in showing that such conduct cannot be attributed to them under the law. Based on the record provided to the Court, which is largely comprised of publicly available documents and the attestation of PPKM and PPSLR executives, PPKM and PPSLR are separate and distinct entities from those described in the video transcripts. Plaintiffs are likely to succeed in arguing that they cannot be terminated under Kansas law on the basis of this affiliation.121
First, Defendant cites several state law cases that explain when piercing the corporate veil is warranted.122 The Court cannot discern the relevance of these cases where it is undisputed that the Plaintiff affiliates are neither subsidiaries of PPFA, nor officers or shareholders in PPFA.
120Doc. 37 at 28. 121See K.A.R. § 30-5-60(14), (15). 122Milgo Elec. Corp. v. United Bus. Commc’ns, Inc., 623 F.2d 645, 659 (10th Cir. 1980); NLRB v. Greater Kan. City Roofing, 2 F.3d 1047, 1052 (10th Cir. 1993).
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“None of these decisions stands for the proposition that one corporation can be held responsible for the policies of an umbrella organization regarding a practice that other affiliated corporations engage in.”123
Next, Defendant asserts that there is financial overlap between the affiliates, which she characterizes as “spokes of a common hub.” Defendant relies on PPFA’s financial statements, to show that the affiliates are required to pay dues that are redistributed in part back to the affiliates, and that the Annual Report is a joint balance statement. The Court does not read the financial statements as sweepingly as the Defendant. The joint financial statement referenced by Defendant states that, “the accompanying consolidated financial statements do not include the financial position or the changes in net assets and cash flows of these independent affiliated organizations.”124 There is no evidence that dues paid to PPFA and returned in part to the affiliates translates into quid pro quo action on the part of the affiliates. Plaintiffs have submitted evidence that PPFA exerted no control or ownership interest in PPKM or PPSLR in providing this funding.
Defendant next argues that PPFA and its fifty-nine affiliates have a “unity of interest” that is evidenced by certain language used by PPFA and it officers when describing the organization and its affiliates. But again, Plaintiffs are likely to succeed in showing that these stray references to the organizational structure does not overcome the declarations and other legal statements showing that PPKM and PPSLR are independent entities that are merely members of PPFA. The record shows that PPFA does not provide medical services or operate health centers. As described in Bentley, there is no evidence
123Planned Parenthood S.E., Inc. v. Bentley, 141 F. Supp. 2d 1207, 1224 n.10 (M.D. Ala. 2015) (citations omitted).
124Doc. 37-9, Def. Ex. 1-H at 9.
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that PPFA had adopted and enforced a policy requiring that all affiliates engage in fetal-tissue donation, alter abortion procedures to better preserve intact specimens, and accept compensation in excess of costs. . . . [A]t most [they] suggest that PPFA has supported the decisions of some affiliates to engage in these practices. . . . What PPFA permits other affiliates to do therefore has no bearing on PPSE, which to reiterate, has elected not to engage in fetal-tissue donation.125
Defendant cites the transcript from one of the CMP videos, suggesting that PPFA coordinates fetal tissue donation policy with its affiliates. Assuming the authenticity of this video, which has not yet been provided to the Court, any question that the KDHE had about such coordination is negated by the fact that the KBHA conducted a thorough investigation of the allegations in those videos and found no evidence to support such activity by PPKM. Likewise, the Missouri Attorney General investigated and cleared PPSLR of wrongdoing.
Finally, Defendant points to filings in another case involving affiliate Planned Parenthood of the Great Northwest, Inc. (“PPGNW”), as evidence that PPFA and its affiliates present themselves as “a single organization.”126 But again, neither PPKM nor PPSLR were parties in that case and made no representations that relate to their status. Second, the Court does not agree with Defendant’s reading of the Appellee’s brief in that case. That case was brought as a qui tam action alleging certain overbilling practices by PPGNW. PPGNW argued that there was adequate prior public information about the billing practices in question that had been litigated in a prior qui tam suit with an affiliate in California, and so the relator in that case was not a whistleblower, but “an opportunistic plaintiff.”127
125Id. at 1224. 126Doc. 37-15, Ex. 1-N, Bloedow v. Planned Parenthood of the Great Nw., Inc., No. 14-35017, Appellee Br. at 5 (9th Cir. July 2, 2014). 127Id.
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In sum, the Court determines that Plaintiffs are likely to succeed on the merits of their claim that PPKM and PPSLR may not be terminated as Kansas Medicaid providers based on the activities of other Planned Parenthood affiliates.
B. Irreparable Harm To constitute irreparable harm, the injury “must be both certain and great.”128 It “is often suffered when ‘the injury can[not] be adequately atoned for in money,’ or when ‘the district court cannot remedy [the injury] following a final determination on the merits.’”129 The Court has withheld ruling on whether the provider Plaintiffs have representational standing to raise the Medicaid Act claim. Likewise, because the Court finds that the Jane Doe Plaintiffs have demonstrated irreparable harm without injunctive relief, the Court need not proceed to consider whether Plaintiffs have shown irreparable harm to PPKM and PPSLR. The Jane Doe Plaintiffs’ declarations establish that they choose to be treated at PPKM due to scheduling conveniences, and that they have had positive experiences with PPKM staff as compared to other providers for gynecological services. All three Plaintiffs rely on Medicaid for their health insurance and all three wish to continue to be treated at Planned Parenthood clinics. Jane Doe #3 was 33 weeks pregnant at the time she executed her declaration, and given her status as an established patient at PPKM, it is important to her to be able to return there for her reproductive health care after the baby is born. Defense counsel suggested at oral argument that the Jane Doe declarations filed in this case were not specific enough because they lacked information such as how far away alternative providers are located. The Court does not require such detailed information from these Plaintiffs
128Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001) (quoting Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985)).
129Id. (quoting Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (1980)).
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in order to credit their declarations of injury. As already discussed, the Court gives weight to their uncontroverted declarations that they depend on Planned Parenthood clinics for their reproductive health care, and that these Planned Parenthood clinics are their providers of choice for a host of reasons. They are happy with the quality of care they receive, they do not feel judged by the provider’s staff, and they have indicated scheduling and convenience benefits to being treated by these providers. Defense counsel also suggested that the fact that these patients could still be treated at PPKM, albeit without Medicaid reimbursement, negates any finding that they could not be treated by the provider of their choice. It is uncontroverted that to be eligible for Medicaid assistance, a family of four must have a net income of $768 per month or less. The Court easily finds that these patients will be unable to afford to pay out of pocket to see the health care provider of their choice without Medicaid assistance.
In 2014, PPKM and affiliated providers provided family planning services at approximately 750 visits to nearly 500 Medicaid patients. In 2015, PPKM and affiliated providers provided services at over 650 visits to nearly 450 Medicaid patients. PPSLR operates a health center in Joplin, Missouri, which is located approximately seven miles from the Kansas border and provides family planning health services to a small number of Kansas Medicaid patients each year. These clinics offer important health services, including: annual exams, contraception and contraceptive counseling, hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for STIs, including HPV vaccines, pregnancy testing and counseling, and other limited general health services. Many of these clinics are located in places with health care provider shortages. Plaintiffs have demonstrated that both the named Jane Doe Plaintiffs, and hundreds of other Kansas Medicaid patients that currently depend on PPKM and PPSLR for their family planning and reproductive
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health services would be unable to be treated by these providers if they are terminated from the KanCare/Medicaid program. A disruption or denial of these patients’ health care cannot be undone after a trial on the merits. The Court finds that Plaintiffs has shown irreparable harm to Medicaid patients who have chosen PPKM and PPSLR as their family planning and reproductive health care providers.
Defendant submits evidence that Kansas Medicaid recipients can choose from other qualified family planning providers in Kansas. But as several courts have found, this argument “misses the mark” because “[t]hat a range of qualified providers remains available is beside the point. Section 1396a(a)(23) give Medicaid patients the right to receive medical assistance from the provider of their choice without state interference save on matters of provider qualifications.”130 Moreover, the evidence submitted by Defendant in support of its claim that Medicaid patients will have access to other health care providers is exaggerated. Defendant submits a report based on procedure codes that are “commonly used by certain obstetric and gynecological medical providers,” resulting in a list of 9199 Kansas Medicaid providers.131 A cursory review of this list shows that the same providers are listed multiple times, and many of the listed providers appear to have practices wholly unrelated to family planning and reproductive health services, such as sleep centers, podiatrists, and dermatologists. The Court cannot conclude from this evidence that the Kansas Medicaid patients who choose PPKM and
130Planned Parenthood of Ind., Inc.v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 981 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 (2013); Planned Parenthood S.E., Inc. v. Bentley, 141 F. Supp. 2d 1207, 1225– 26 (M.D. Ala. 2015); Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 650 (M.D. La. 2015); Planned Parenthood Ark. & E. Okla. v. Selig, No. 4:15-cv-00566-KGB, Doc. 45 at 22 (E.D. Ark. Oct. 5, 2015), attached as Doc. 13, Ex. 4.
131Doc. 37-21, Ex. 5 ¶¶ 3–4.
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PPSLR for their family planning could be assured of “ready and convenient” alternative reproductive health services in the absence of an injunction.132
Finally, Defendant urges that the availability of administrative review negates the imminence of patient harm because it could be months before the provider terminations become effective, and because the harm is within Plaintiffs’ control. First, as already discussed at length, there is no requirement that the providers pursue a fair hearing in order to obtain relief in this Court, and the providers have stated on the record that they do not intend to pursue that channel of relief. It is certain therefore that the KDHE’s termination decisions will become final on August 10, 2016, at the latest. There is no evidence or legal authority in this record that the termination decisions would not be enforced on the July 7 effective date stated in the termination letter, or pending an administrative appeal if one was filed, other than defense counsel’s assertions in the briefs. Second, as the Court has already discussed, PPSLR has no contracts with KanCare MCOs, so the contractual extension would not apply to it. Third, there are dueling contractual provisions in the record that make it unclear how quickly the MCOs would terminate their contracts with PPKM. Fourth, Plaintiffs have submitted authority that the termination decisions themselves may create a domino effect because termination from the Kansas program puts PPKM and PPSLR at risk of termination in neighboring states—PPKM is also a Missouri and soon-to-be Oklahoma provider and PPSLR is also Missouri and Illinois Medicaid provider. Regulations in Oklahoma and Missouri allow for those Medicaid programs to terminate a provider based on termination decisions in other states; they are not tied to the “effective date” of the other state’s Medicaid provider terminations. 133 Therefore, not only is there strong evidence
132See Kliebert, 141 F. Supp. 3d at 650. 133Mo. Code Regs. tit. 13, § 70-3.030(3)(A)(12), (13), (14), (18), (19); Okla. Admin. Code § 317:30-319.1(2).
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that Kansas Medicaid patients will be irreparably harmed by the termination decisions, but there is also a risk that Medicaid patients in neighboring states will lose PPKM and PPSLR as their chosen providers as early as July 7. For all of these reasons, the Court finds that Plaintiffs have alleged a sufficiently imminent irreparable harm that justifies issuing injunctive relief.
C. Balance of Harms and Public Interest Defendant contends that it will suffer irreparable harm if an injunction ensues, because it would allow taxpayer money to flow to the provider Plaintiffs despite evidence that they have violated Federal and State law, the terms of their provider agreements, and applicable professional standards. Defendant further argues that an injunction would disrupt ongoing administrative proceedings. Plaintiffs urge that the irreparable harm it has cited cannot be undone, particularly the domino effect that a for cause termination could have by allowing other states to terminate based on the Kansas decision. Plaintiffs further argue that it is in the public interest to preserve patients’ freedom to choose their provider without government interference and that an injunction would simply freeze the status quo of reimbursing these providers until a decision can be reached on the merits. The Court is not persuaded that the risk of taxpayer harm if the Court issues the injunction outweighs the established irreparable injury to Kansas Medicaid patients if an injunction does not issue. As the Court has explained, neither the fetal tissue donation allegation nor the Medicaid fraud allegation have any relation to the Planned Parenthood affiliates who were terminated by the KDHE, so no taxpayer money is at risk of flowing to providers that have violated State or Federal law on those grounds. And Plaintiffs have made a strong showing that the solid waste disposal ground for termination is unrelated to the provider’s qualifications as defined in § 1396a(a)(23). Given these showings, the risk of taxpayer harm is quite low as
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compared to the certain injury to Medicaid patients if the injunction does not issue—they will be unable to seek treatment from their providers of choice. This is a right explicitly provided in the Medicaid Act, and the Court finds that protecting this right until the case can be decided on the merits is in the public interest.
The Court further finds that the injunction will not interfere with an ongoing administrative proceeding. As the Court has explained throughout this opinion, there is no “ongoing” administrative proceeding to interfere with and Plaintiffs have made clear that they will not be exercising their optional right to a fair hearing. Moreover, Defendant cannot explain how this implicates the balance of harms. If, for example, Plaintiffs opted to avail themselves of the administrative process and the KDHE reversed its decision, Defendant could always ask this Court for relief from the preliminary injunction.134 Similarly, if the intended merger between PPKM and Planned Parenthood of Central Oklahoma ultimately requires not just a name change to the PPKM entity for which the KDHE’s termination decision would extend, but instead an entirely new Medicaid provider identification number and provider agreement for which the termination decision potentially would not apply, the parties can apply to this Court for relief from the preliminary injunction.
Moreover, the Supreme Court has explained that requiring administrative exhaustion of state remedies for a § 1983 claim is inconsistent with Congressional intent that the statute “interpose the federal courts between the States and the people, as guardians of the people’s federal rights—to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’”135 The Court thus finds it to be in the
134See Comm’r of the Ind., 699 F.3d at 981 (rejecting state’s claim that preliminary injunction will undermine the public’s interest in the administrative process).
135Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 503–07 (1982) (quoting Mitchum v. Foster, 407 U.S. 225, 242 (1972)).
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public interest’s to allow Plaintiffs to pursue their federal claims in federal court notwithstanding the availability of state administrative remedies.
The Court further finds that it is in the public’s interest to ensure that the goals of Medicaid are served—“to afford medical assistance to persons whose income and resources are insufficient to meet the financial demands of necessary care and services.”136 Medicaid patients have the explicit right to seek family planning services from the qualified provider of their choice.137 It is uncontroverted that PPKM and PPSLR serve hundreds of underprivileged women in the State of Kansas. It is in the public interest to allow these individuals to be treated by the qualified provider of their choice, and to have that provider reimbursed under Medicaid pending a trial on the merits in this case.
In sum, Plaintiffs have satisfied the elements required to obtain a preliminary injunction on the Jane Doe Plaintiffs’ Medicaid Act claim. The KDHE’s termination decisions shall therefore be held in abeyance until the case can be decided on the merits.
D. Security Plaintiffs asks that the preliminary injunction be issued without a bond requirement. Fed. R. Civ. P. 65(c) provides that “[t]he Court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” The Court may exercise its discretion, and determine a bond is unnecessary “if there
136Hougton ex rel. Houghton v. Reinerston, 382 F.3d 1162, 1164 (10th Cir. 2004) (quoting N.M. Dep’t of Human Servs. v. Dep’t of Health & Human Servs. Health Care Fin. Admin., 4 F.3d 882, 883 (10th Cir. 1993)).
13742 U.S.C. § 1396a(a)(23); see also, e.g., Planned Parenthood S.E., Inc. v. Bentley, 141 F. Supp. 2d 1207, 1217 (M.D. Ala. 2015) (“Congress saw fit to identify family planning as the area of medical care with respect to which a recipient’s free choice of provider was most critical. It is not hard to imagine why—just as business owners do, healthcare providers and Medicaid recipients have widely varying “honest conviction[s]” about the appropriateness of different family-planning methods.” (quoting Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014)).
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is an absence of proof showing a likelihood of harm.”138 The Court finds no evidence of financial harm to the State if the Court does not require a bond; the State would simply continue reimbursing the Plaintiff providers as it has before and since the termination decision, until a decision on the merits can be reached. No bond is required. V. Motion for Class Certification
Also pending is Plaintiffs’ Motion for Class Certification. In their motion, Plaintiffs seek to certify a class of all Kansas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services from PPKM and PPSLR and their current affiliated providers.139 The motion is brought pursuant to Fed. R. Civ. P. 23(b)(2), which applies where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
The injunctive relief requested in this case does not require individualized remedies. Moreover, case law supports this Court’s authority to issue classwide injunctive relief based on its general equity powers before deciding a class certification motion.140 Additionally, the socalled “necessity doctrine” has been invoked by most circuits in Rule 23(b)(2) cases, requiring a need for class relief.141 Class relief is denied under this doctrine where the putative class members will benefit from any injunction issued on behalf of the individual plaintiffs. Both
138Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987). 139Doc. 14 at 1. 140See, e.g., Rodriguez v. Providence Comm’y Corr., Inc., –F. Supp. 3d–, 2015 WL 9239821, at *6 (M.D. Tenn. Dec. 17, 2015); Lee v. Orr, No. 13-cv-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013). See generally Newberg on Class Actions § 4:30 (5th ed. 2015) (“Rule 23(b)(2) authorizes certification of a class solely for the purpose of final injunctive or declaratory relief. Hence, a case seeking only a provisional remedy like a preliminary injunction cannot be certified under Rule 23(b)(2) on that basis alone.”). 141See Charles Wright, Arthur Miller, & Mary Kay Kane, Federal Practice & Procedure § 1785.2 (3d ed.); Newburg § 4:35 (“As of 2012, courts in six circuits have applied some version of necessity analysis,” including the Tenth Circuit).
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parties in this case point the Court to Kansas Health Care Association, Inc. v. Kansas Department of Social & Rehabilitative Services,142 where the Tenth Circuit recognized the necessity doctrine and upheld the district court’s decision that class certification was not necessary in order to award classwide preliminary injunctive relief.143 Other cases in this circuit suggest that foregoing class certification under these circumstances is appropriate: (1) where the nature of the rights asserted require that the injunction run to the benefit of all persons similarly situated;144 and (2) where there is little risk of the named plaintiffs’ claims becoming moot during a live controversy.145
Under the circumstances of this case, class certification is unnecessary in order to award relief to all Kansas Medicaid patients who obtain or seek to obtain covered health services from PPKM and PPSLR. The Court has granted the motion for preliminary injunction, enjoining the KDHE from enforcing its termination decisions until this case can be decided on the merits. This directive will allow all Kansas Medicaid patients who seek to obtain covered services from these providers, to have those services covered. And there is no suggestion by either party that the Jane Doe Plaintiffs’ claims will become moot during the pendency of the lawsuit. Under these circumstances, Plaintiffs’ motion for class certification is denied without prejudice.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 12) is granted. Defendant, her
14231 F.3d 1536 (10th Cir. 1994). 143Id. at 1548; see also Planned Parenthood S.E., Inc. v. Bentley, 141 F. Supp. 2d 1207, 1226–27 (M.D. Ala. 2015) (granting preliminary injunction that reinstates provider agreement without ruling on motion for class certification); Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604, 652 (M.D. La. 2015) (same). 144E.g, Aacen v. San Juan Cnty. Sheriff’s Dep’t, 944 F.2d 691, 700 & n.12 (10th Cir. 1991); Everhart v. Bowen, 853 F.2d 1532, 1538 n.6 (10th Cir. 1988), rev’d on other grounds sub nom. Sullivan v. Everhart, 494 U.S. 83 (1990). 145Jackson v. Ash, No. 12-CV-2504-EFM, 2014 WL 1230225, at *6–7 (D. Kan. Mar. 25, 2014) (erring on side of class action where claims involved “ever-changing jail or prison population”); Clay v. Pelle, No. 10-cv-1840WYD-BNB, 2011 WL 843920, at 7 (D. Colo. Mar. 8, 2011) (same).
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employees, agents, and successors in office are hereby restrained from terminating the Medicaid

provider agreements of PPKM and PPSLR;

IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Doc. 59) is denied

in part and taken under advisement in part;

IT IS FURTHER ORDERED that Plaintiffs’ Motion to Certify Class (Doc. 14) is

denied without prejudice; and

IT IS FURTHER ORDERED that Plaintiffs’ Motion to Strike Exhibits (Doc. 51) is

denied.

IT IS SO ORDERED.

Dated: July 5, 2016

S/ Julie A. Robinson JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

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 Case 2:16-cv-02284-JAR-KGG Document 84 Filed 01/23/19 Page 1 of 90

Appellate Case: 16-3249 Document: 01019948086 Date Filed: 02/21/2018 Page: 1

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT _________________________________
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,

February 21, 2018
Elisabeth A. Shumaker Clerk of Court

Plaintiffs - Appellees,

v.
JEFF ANDERSEN, Acting Secretary, Kansas Department of Health and Environment, in his official capacity,

No. 16-3249 (D.C. No. 2:16-CV-02284-JAR-GLR)
(D. Kan.)

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. _________________________________

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JUDGMENT _________________________________ Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________ This case originated in the District of Kansas and was argued by counsel. The judgment of that court is affirmed in part and vacated in part. The case is remanded to the United States District Court for the District of Kansas for further proceedings in accordance with the opinion of this court.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
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Appellate Case: 16-3249

Document: 01019948066
PUBLISH

Date Filed: 02/21/2018 Page: 1
FILED United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

February 21, 2018

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

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.

No. 16-3249

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

* In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Jeff Andersen is substituted for Susan Mosier as the Defendant–Appellant in this action.

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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
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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
1 Planned Parenthood of Central Oklahoma merged into Planned Parenthood of Kansas and Mid-Missouri (“PPKM”), effective July 1, 2016. As a result, PPKM changed its name to Planned Parenthood Great Plains. In this opinion, we refer to that entity by its new name, PPGP. When we refer to both of these providers collectively, we refer to them as “the Providers.”
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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.
2 Though PPSLR’s standing might not turn on whether it has a private right of action under the free-choice-of-provider provision, its likelihood of success on the merits may. See Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S Ct. 1377, 1386–88 & n.4 (2014); Safe Streets All. v. Hickenlooper, 859 F.3d 865, 887 (10th Cir. 2017) (discussing footnote 4 of Lexmark and whether “statutory standing” after Lexmark must be understood as a failure to state a claim).
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§ 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.
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If the state decides to terminate the provider, the provider may request a hearing from Kansas’s Office of Administrative Hearings (“OAH”) within thirtythree 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)
3 Though we only decide that the district court did not abuse its discretion in enjoining the termination of PPGP, we state the facts pertaining to both Providers to place our analysis in context.
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(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”;
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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
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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
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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
4 Kansas also terminated eleven individual PPGP and PPSLR employees as Medicaid providers, but rescinded those terminations on June 13, 2016.
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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
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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 Plaintiffs5 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
5 The district court concluded that the Patients had standing to pursue their claim, so it declined to resolve whether the Providers also independently had standing. Mosier, 2016 WL 3597457, at *17.
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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
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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
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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.
6 PPSLR has no such contracts with Kansas, so this thirty-day delay doesn’t protect PPSLR’s patients. Mosier, 2016 WL 3597457, at *24. And the district court found that this additional thirty-day extension for PPGP was questionable. Id. PPGP has contracts with three Managed Care Organizations (“MCO”) in Kansas. Id. at *2. Kansas submitted a sample MCO contract that included the thirty-day extension, but
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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
the contract in place between Kansas and PPGP when the Plaintiffs sued did not contain the extension, and instead provided for immediate termination.
7 After the parties had their evidentiary hearing on April 29, Kansas notified the Providers that they would be terminated effective May 10. It told the Providers that if they disagreed with this decision, they had the right to—but did not have to— request a fair hearing before the OAH within thirty-three days of the date on the notice. That date would have been June 6. So, if the Providers hadn’t filed their lawsuit in federal court before May 10, they would have been terminated on May 10, subject to possibly obtaining a reversal of the termination in later proceedings. Nothing in the termination notice states that the termination would toll if the Providers requested a fair hearing before the OAH. Instead, Kansas states without support that the Providers’ funding would not have terminated on the effective
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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
termination date (May 10). But the Providers’ termination from Kansas’s Medicaid Program would have triggered the loss of Medicaid funding within a few weeks. See Mosier, 2016 WL 3597457, at *8. In fact, Kansas’s regulations state that even if the Providers had requested a hearing before the OAH, their Medicaid funding would be terminated pending the appeal’s resolution because the request would concern “the termination of a provider from program participation.” Kan. Admin. Regs. § 30-7-66(a)(1).
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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
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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
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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.
8 The termination letters provided an effective date of May 10 (later extended to July 7), and advised the Providers that to contest the termination, they could request a fair hearing before the OAH within thirty-three days of the notice. Thus, the letters say that absent appeal, the terminations would be effective even before the Providers’ time in which to appeal had expired. So, under the state administrativeappeals system, the Providers couldn’t avoid being terminated for at least some period of time, even if they succeeded in their appeal and the state ultimately reversed the terminations.
And again, though Kansas insisted the termination wouldn’t take effect until September 10, meaning the Providers wouldn’t lose funding until that date, it refused to extend the effective termination date itself to September. In doing so, the state created confusion around what effect the termination, slated to occur on July 7, would have had on the Providers and the Patients.
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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. FarrellCooper 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
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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
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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 issues9 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
9 The issues it names are “whether the Providers are ‘qualified’ under 42 U.S.C. § 1396a(a)(23), whether the State properly terminated the Providers under Section 1396a(p)(1), and whether the nature of the relationship between the Providers and the National Office is legally significant.” Appellant’s Opening Br. at 29.
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[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
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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.
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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)
10 Kansas also argues that the district court conflictingly characterized the state administrative proceedings as both final and as having not yet begun. But these two characterizations do not conflict. The termination letters were final for justiciability purposes, and the Providers therefore had the option of appealing these final terminations via state administrative proceedings, though they chose not to. In fact, the Providers had the choice to pursue an administrative appeal only because the terminations were final. These circumstances are comparable to the rule that, absent certain, statutory exceptions, federal courts of appeals may hear appeals from only district courts’ final decisions. See 28 U.S.C. §§ 1291, 1292.
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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.
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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.
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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
11 Kansas claims that “[t]he district court concluded that there was no exhaustion requirement in this case because Section 1983 has no exhaustion requirement.” Appellant’s Opening Br. at 33 n.8. This is incorrect. The district court concluded that there was no exhaustion requirement in this case because it was not a civil enforcement proceeding under Sprint Communications and Brown. Mosier, 2016 WL 3597457, at *12–*13.
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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).
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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)
12 Because the district court limited its conclusion on this matter to the Patients and declined to address whether the Providers also had a private right of action, Mosier, 2016 WL 3597457, at *17, we too limit our analysis to the Patients. Kansas argues that doing so improperly allows “the Providers to piggyback on the alleged standing of the [Patients],” to bypass justiciability requirements, and to dodge the question of whether the Providers have a valid § 1983 claim. Appellant’s Opening Br. at 44. But we don’t need to consider PPGP’s claims at all—the Patients’ share the same complaint. See Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966 n.4 (9th Cir. 2013) (suggesting that even if “the Medicaid free-choice-of-provider provision does not create a private right ‘enforceable by health care providers’ on their own behalf, . . . ‘Medicaid recipients . . . have enforceable rights under [that provision].’” (second and third alterations in original) (quoting Silver v. Baggiano, 804 F.2d 1211, 1216–18 (11th Cir. 1986), abrogated on other grounds by Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613 (2002))).
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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 45713; 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
13 Originally, the Gee panel ruled unanimously in favor of the Planned Parenthood plaintiffs. Planned Parenthood of Gulf Coast, Inc. v. Gee, 837 F.3d 477 (5th Cir. 2016), withdrawn and superseded by Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017). But after the panel filed its opinion, Judge Owen switched her vote, causing the panel to withdraw its unanimous opinion and replace it with a majority opinion in favor of the plaintiffs and a dissenting opinion from Judge Owen. Gee, 862 F.3d at 449. Later, the Fifth Circuit split 7 to 7 on a vote to rehear the case en banc. Planned Parenthood of Gulf Coast, Inc. v. Gee, 876 F.3d 699 (5th Cir. 2017) (per curiam).
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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
14 In addition, this section contains several carefully defined exceptions, including some contained in other sections of the Medicaid Act. Specifically, § 1396a(a)(23)(B) includes exceptions for providers convicted of a felony “for an offense which the State agency determines is inconsistent with the best interests of beneficiaries under the State plan,” and for providers under a new-provider temporary moratorium. This section also states that it does not apply in Puerto Rico, the Virgin Islands, and Guam. Id.
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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).
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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-ofprovider 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),
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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 right of action.” Id. But the plaintiffs there did not sue under § 1983 to enforce a right established by the Medicaid Act. Id. (“The last possible source of a cause of action for respondents is the Medicaid Act itself. They do not claim that, and rightly so.”).
Unlike § 1396a(a)(23), which provides that “any individual eligible for medical assistance . . . may obtain such assistance from any [provider] . . . qualified to perform the service or services required,” the Medicaid Act section at issue in Armstrong directed states to adopt rate-setting plans in accordance with certain general standards. The free-choice-of-provider provision, “[i]n contrast [to Armstrong’s Medicaid Act section,] § 1396a(a)(23) . . . is phrased in individual terms that are specific and judicially administrable, as recognized by the Sixth, Seventh, and Ninth Circuits.” Gee, 862 F.3d at 462. Justice Scalia also noted in Armstrong that the plaintiffs were providers, as opposed to the providers’ patients, who are the Medicaid Act’s intended beneficiaries. 135 S. Ct. at 1387. As such, he doubted “that
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providers are intended beneficiaries (as opposed to mere incidental beneficiaries) of the Medicaid agreement.” Id. Indeed, the majority speculated that the providerplaintiffs in Armstrong likely chose not to sue under § 1983 because they had no unambiguously conferred right under Gonzaga. Id. at 1386 n.*. So Armstrong does nothing to undermine the Patients’ claim that Congress intended to confer on them an enforceable right of action with the free-choice-of-provider provision.
b. Right Not Vague or Amorphous Second, the free-choice-of-provider agreement is not so “‘vague and amorphous’ that its enforcement would strain judicial competence.” Blessing, 520 U.S. at 340–41 (1997) (quoting Wright, 479 U.S. at 431). Kansas contends that the term “qualified” makes the free-choice-of-provider provision judicially unadministrable because it is neither defined in the Medicaid Act, nor self-defining. Appellant’s Opening Br. at 41. This position is at odds with four of the five circuits that have decided the issue. See Gee, 862 F.3d at 457–58; Betlach, 727 F.3d at 967– 68; Comm’r of Ind., 699 F.3d at 974; Olszewski, 442 F.3d at 462; see also Gillespie, 867 F.3d at 1050 (Melloy, J., dissenting) (agreeing that the right conferred by the freedom-of-choice provision is not so vague and amorphous that it would strain judicial competence). We agree with the reasoning expressed by these four circuits. Under the Medicaid Act, plaintiffs need show only that their provider of choice was (1) qualified to perform the medical services, and (2) undertaking to do so. See 42 U.S.C. § 1396a(a)(23). These requirements are “‘concrete and objective standards for enforcement,’ which are ‘well within judicial competence to apply.’”
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Gee, 862 F.3d at 459 (quoting Betlach, 727 F.3d at 967). As the Ninth Circuit held and the Fifth Circuit has reiterated, “courts addressing this provision confront ‘a simple factual question no different from those courts decide every day,’” which requires no “balancing of competing concerns or subjective policy judgments.” Id. (quoting Betlach, 727 F.3d at 967).
“[W]hile there may be legitimate debates about the medical care covered by or exempted from the [free-choice-of-provider] provision,” the definition of the word “qualified” cannot be legitimately debated. Olszewski, 442 F.3d at 462. Though determining whether a provider is qualified “may require more factual development or expert input, [it] still falls well within the range of judicial competence.” Betlach, 727 F.3d at 967. Whether a provider was qualified to perform medical services and undertaking to do so “is ‘likely to be readily apparent.’” Id. (quoting Olszewski, 442 F.3d at 462).
Kansas again relies heavily on Armstrong to support its claim that § 1396a(a)(23) is judicially unadministrable. It claims that “determining whether a provider is ‘qualified’ is a [sic] dependent upon judgment, industry experience, and technical expertise,” and that such a determination implicates “expert judgments and questions of state law.” Appellant’s Opening Br. at 41. But in making this claim, Kansas compares the free-choice-of-provider provision’s willing-and-qualified requirements to the requirements contained in § 1396a(a)(30)(A) of the Medicaid Act, which was at issue in Armstrong. That section requires state plans to “provide for payments that are ‘consistent with efficiency, economy, and quality of care,’ all
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the while ‘safeguard[ing] against unnecessary utilization of . . . care and services.’” Armstrong, 135 S. Ct. at 1385 (alterations in original) (quoting 42 U.S.C. § 1396a(a)(30)(A)).
Compared to that “judgment-laden standard,” id., the decision of whether a provider is qualified is much simpler. Indeed, “the statutory term here, ‘qualified,’ is tethered to an objective benchmark: ‘qualified to perform the service or services required.’” Betlach, 727 F.3d at 967–68 (quoting 42 U.S.C. § 1396a(a)(23)(A)). Courts can determine whether providers are qualified by “drawing on evidence such as descriptions of the service required; state licensing requirements; the provider’s credentials, licenses, and experience; and expert testimony regarding the appropriate credentials for providing the service.” Id. at 968. This analysis is “no different from the sorts of qualification or expertise assessments that courts routinely make.” Id.
c. Right Stated in Mandatory Terms On the third element, we conclude that the statute is “couched in mandatory, rather than precatory, terms.” Blessing, 520 U.S. at 341. Kansas doesn’t contest this prong of the Blessing/Gonzaga analysis, nor could it. The statute provides that “[a] State plan for medical assistance must” allow Medicaid-eligible individuals to obtain medical services from the qualified provider of their choice. 42 U.S.C. § 1396a(a)(23)(A) (emphasis added). The statute confers a private right on Medicaideligible individuals; it is not merely “a directive to the federal agency.” Armstrong, 135 S. Ct. at 1387; see Gee, 862 F.3d at 461; Betlach, 727 F.3d at 967; Comm’r of Ind., 699 F.3d at 974; Olszewski, 442 F.3d at 462. But see Gillespie, 867 F.3d at
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1041. Rather, it affirmatively requires state plans to allow Medicaid-eligible people
to obtain medical services from their willing and qualified provider of choice.
2. Congressional Intent to Foreclose Private Enforcement
Still, even if a plaintiff meets these three threshold requirements, the plaintiff
has established “only a rebuttable presumption that the right is enforceable under
§ 1983.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 (2005) (quoting
Blessing, 520 U.S. at 341). “The defendant may defeat this presumption by
demonstrating that Congress did not intend that remedy for a newly created right.”
Id. The statute creating the right may contain evidence of such congressional intent;
otherwise, we may infer it if the statute contains a “comprehensive enforcement
scheme that is incompatible with individual enforcement under § 1983.” Id. (quoting Blessing, 520 U.S. at 341).15
15 We don’t read City of Rancho Palos Verdes as requiring us to presume that Congress foreclosed a private right of action under the Medicaid Act simply because it was enacted under the Spending Clause. The Court discussed the Gonzaga/Blessing framework for determining whether a statute creates a privately enforceable right under § 1983, and nowhere suggested that it intended to change or abandon this framework. City of Rancho Palos Verdes, 544 U.S. at 119–20. Assuming that the plaintiff had met the Gonzaga-Blessing requirements and established a rebuttable presumption of individual enforcement under § 1983, the Court limited its analysis to the question of “whether Congress meant the judicial remedy expressly authorized by [the statute at issue] to coexist with an alternative remedy available in a § 1983 action.” Id. at 120–21. But, even if City of Rancho Palos Verdes “upended the Blessing ‘presumption,’” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 801 (3d Cir. 2007), and somehow required a presumption against private enforcement of Medicaid Act provisions, it wouldn’t change our conclusion. Congress’s individually-oriented, mandatory, and rights-creating language in the free-choice-ofprovider provision is strong enough to overcome a presumption against individual
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Here, again, Kansas relies on Armstrong to support its claim. There, the providers sued Idaho, claiming that it had violated § 1396a(a)(30)(A) by reimbursing them at rates lower than the Medicaid Act permitted. Armstrong, 135 S. Ct. at 1382. The providers asserted “an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation.” Id. at 1383 (quoting Exceptional Child Ctr., Inc. v. Armstrong, 567 F. App’x 496, 497 (9th Cir. 2014) (unpublished), rev’d, Armstrong, 135 S. Ct. 1378). Justice Scalia stated that “Spending Clause legislation like Medicaid” doesn’t confer a private right of action because the “sole remedy Congress provided for a State’s failure to comply with Medicaid’s requirements . . . is the withholding of Medicaid funds by the [federal] Secretary of Health and Human Services.” Id. at 1385, 1387.
But Armstrong isn’t a § 1983 case. Plus, an earlier Supreme Court case, Wilder v. Virginia Hospital Ass’n, 496 U.S. 498, 522 (1990), had previously rejected Kansas’s argument. Wilder held that “[the Medicaid Act’s] administrative scheme cannot be considered sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of § 1983. . . . ‘[G]eneralized powers’ . . . to audit and cut off federal funds [are] insufficient to foreclose reliance on § 1983 to vindicate federal rights.”16 496 U.S. at 522 (quoting Wright, 479 U.S. at 428). And
enforcement actions, especially considering the weight of precedent favoring such individual enforcement.
16 The Eighth Circuit contends that Armstrong effectively overruled Wilder. See Gillespie, 867 F.3d at 1044–1046. Even if the Supreme Court had done so—and we do not think it did—it would not impact our analysis. We rely on Wilder not for
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because Justice Kennedy didn’t join Justice Scalia’s Spending Clause reasoning, it is
not binding on us; Wilder still is. Moreover, Armstrong’s analysis of a state’s
violation of the Medicaid Act is inapplicable to the Patients’ claim that Kansas is
attempting to deprive them of their right to receive medical services from their
chosen, qualified providers, because the federal Secretary’s withholding Medicaid
funds would not redress their injuries at all. Unlike the plaintiffs in Armstrong, who
were providers, the Patients here are individual beneficiaries of the Medicaid Act;
and unlike in Armstrong, they are not merely contesting reimbursement rates, they
are asserting that the state has violated their substantive right to receive medical care
from their chosen medical providers. Also importantly, the providers in Armstrong
asserted a right of action under a Medicaid Act rate-setting provision and the
its holding that the Medicaid Act confers on providers a right enforceable under § 1983 but for its conclusion that the Medicaid Act’s administrative scheme isn’t sufficiently comprehensive that it demonstrates Congress’s intent to preclude enforcement under § 1983. Wilder, 496 U.S. at 522. Armstrong neither discussed nor “plainly repudiate[d]” this portion of Wilder. Armstrong, 135 S. Ct. at 1386 n.*. Also, Wilder concerned an amendment to the Medicaid Act that has since been repealed. See Balanced Budget Act of 1997, Pub. L. No. 105-33, § 4711, 111 Stat. 251, 507–08. And Wilder decided whether that amendment conferred privateenforcement rights on Medicaid providers, 496 U.S. at 510, as opposed to our question here, which is whether a different section of the Medicaid Act confers private-enforcement rights on Medicaid patients. And importantly, Armstrong took issue only with Wilder’s implication that any time a statute imposes a binding obligation, it creates a private right of enforcement under § 1983. Armstrong, 135 S. Ct. at 1386 n.* (noting that Gonzaga rejected Wilder’s implication “that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983” (quoting Gonzaga, 536 U.S. at 283)). Armstrong did no more than reaffirm Gonzaga’s requirement that rights must be unambiguously conferred. Id.; Gonzaga, 536 U.S. at 283.
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Supremacy Clause, unlike the Patients here, who assert their right under § 1983 and the Medicaid Act’s free-choice-of-provider provision.
Even if § 1396a(a)(30)(A) could fairly be read to display congressional intent to foreclose the availability of equitable relief, id. at 1386, § 1396a(a)(23)—the freechoice-of-provider provision—can’t be read that way.
B. Preliminary Injunction Factors 1. Likelihood of Success on the Merits
Having concluded that the free-choice-of-provider provision confers on the Patients a private right of action, we now turn to the first and most important preliminary-injunction factor: whether the Patients are likely to succeed on the merits.
Again, § 1396(a)(23) requires a state plan to provide that “any individual eligible for medical assistance (including drugs) 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[.]” In evaluating what it means for a provider to be “qualified to provide services,” we agree with the district court and “the Seventh and Ninth Circuits, [that] ‘[t]o be ‘qualified’ in the relevant sense is to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” Gee, 862 F.3d at 462 (quoting Comm’r of Ind., 699 F.3d at 978); see also Betlach, 727 F.3d at 969 (concluding that qualified means “having an officially recognized qualification to practice as a member of a particular profession; fit, competent” (quoting Oxford
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English Dictionary (3d ed. 2007)). In the district court, Kansas did not contest this meaning of the term “qualified.” Mosier, 2016 WL 3597457, at *17.
All agree that states have considerable discretion in establishing provider qualifications. See 42 C.F.R. § 431.51(c)(2) (stating that a recipient’s right to the services of any provider qualified and willing to perform the services does not prohibit states from “[s]etting reasonable standards relating to the qualifications of providers”). But that authority entitles Kansas to set qualifications only for professional competency and patient care. See Betlach, 727 F.3d at 970 (declaring that states are not free to define “qualified” however they wish for their own purposes). We agree with the district court that the Plaintiffs may assert that they were denied their right to receive Medicaid services from the willing and qualified provider of their choice because their provider was wrongfully removed from the pool of providers.17 Mosier, 2016 WL 3597457, at *18.
The Plaintiffs must be allowed to challenge PPGP’s termination. After all, if a state wrongly terminates a provider—whether on grounds raised by Kansas under § 1320a-f(b)(5)(B) or f(b)(12)(B) or otherwise—it will have wrongly removed a qualified provider from the available pool. If a state could terminate providers without any challenge by affected patients, the patients’ § 1396a(a)(23) right would
17 As we understand it, the dissent agrees with us that a provider can be terminated but remain qualified. Dissent at 2 (“But other federal Medicaid provisions allow states to exclude providers even when they are considered ‘qualified’ under § 1396a(a)(23).”), 11 (declaring that “Medicaid allows states to exclude providers from Medicaid, sometimes even when the providers are qualified. E.g., 42 U.S.C. § 1396a(a)(39), (p)(1).”).
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lose force and be easily eviscerated. We agree with the district court that when Kansas shrinks the pool of qualified providers by terminating them under § 1396a(p)(1), patients must have a § 1396a(a)(23) right to challenge the state’s termination decision as improper or wrongful. Mosier, 2016 WL 3597457, at *17.
Kansas takes a different view. It argues that termination decisions under § 1396a(p)(1) (which references § 1320a-7(b)) are separate from the right of patients to any qualified and willing provider under § 1396a(a)(23). In effect, Kansas argues that patients have no right to services from qualified providers whom it has terminated.
We agree that states have broad powers to terminate Medicaid providers. After all, § 1396a(p)(1) “empowers states to exclude individual providers on such grounds directly, without waiting for the [federal] Secretary to act, while also reaffirming state authority to exclude individual providers pursuant to analogous state law provisions relating to fraud or misconduct.” Betlach, 727 F.3d at 972. These grounds include a wide swath of misconduct set out in federal law—including fraud, drug crimes, obstructing investigations, license revocations, federal or state sanctions, and certain felony convictions. They also include violations of “state laws concerning health and safety, and federal regulations expressly permit States to establish ‘reasonable standards relating to the qualifications of providers.’” Appellant’s Brief at 48 (quoting 42 C.F.R. § 431.51(c)(2)). But these provisions do not make the state’s termination decision unchallengeable. Patients must have a right to challenge termination decisions to protect themselves against wrongful deprivation of access to
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qualified and willing providers, that is, to protect their guaranteed right expressly given by § 1396a(a)(23). In short, § 1396a(a)(23) confers the right and cabins the state’s authority under § 1396a(p)(1), such that patients can challenge the termination decisions.
In support of its view that termination decisions under § 1396a(p)(1) are final and beyond patients’ ability to challenge under § 1396a(a)(23), Kansas relies in part on O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980). Kansas argues that “the free-choice-of-provider provision entitles beneficiaries only to ‘the right to choose among a range of qualified providers, without government interference.’” Appellant’s Opening Br. at 46 (quoting O’Bannon, 447 U.S. at 785). But O’Bannon addressed a different situation—one where no one contested that the nursing home was unqualified to perform the services. We agree that § 1396a(a)(23) “clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified.” 447 U.S. at 785. But unlike in O’Bannon, the Providers in the case before us remained qualified to perform the medical services.
In addition, we note that the nursing home residents in O’Bannon asserted procedural due-process rights, not substantive rights, as the patients do here. See Gee,
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862 F.3d at 460. But see Gillespie, 867 F.3d at 1048 (Shepherd, J., concurring).18 And
in O’Bannon, the patients didn’t contest that the nursing home’s decertification had
resulted from the home’s failure to provide adequate medical, physical, nursing, and
pharmaceutical services, as well as its failure to maintain adequate records and an
adequate system of governance. 447 U.S. at 776 n.3. Rather, the elderly Medicaid
patients stressed the harm they would suffer if their nursing home closed and they
were forced to move. Id. at 777. So the Supreme Court’s holding concerned whether
Medicaid recipients were entitled to a hearing to continue receiving care from an
unqualified, decertified provider. Id. at 786 (“[W]hile a patient has a right to
continued benefits to pay for care in the qualified institution of his choice, he has no
enforceable expectation of continued benefits to pay for care in an institution that has
been determined to be unqualified.”). Here, the Patients are not challenging the right
to continue receiving care from an unqualified provider. Instead, they contend Kansas
wrongfully terminated the Providers, thereby infringing their choice-of-provider
18 Judge Shepherd’s concurrence in Gillespie states that the previous four circuits are wrong that O’Bannon concerns only procedural rights, stating that this view “ignores the very language of O’Bannon. The Supreme Court clearly stated that it was defining the contours of the ‘substantive right . . . conferred by the statutes and regulations.’” 867 F.3d at 1048 (alteration in original) (quoting O’Bannon, 447 U.S. at 786). But the language omitted from this quote matters. The whole sentence reads, “In holding that these provisions create a substantive right to remain in the home of one’s choice absent specific cause for transfer, the Court of Appeals failed to give proper weight to the contours of the right conferred by the statutes and regulations.” O’Bannon, 447 U.S. at 786. We read this sentence to mean that § 1396a(a)(23) confers a substantive “right to continued benefits to pay for care in the qualified institution of his choice” but not a right to remain in a home that the state has already determined to be unqualified. Id. So the residents were asking the state to grant them procedural due process for a substantive right that they did not have.
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rights. For this reason, we disagree with Kansas that O’Bannon controls this case in Kansas’s favor.
a. Waste Inspections The state first claims that PPGP’s Overland Park clinic violated Kansas law by hindering the state’s investigation of its waste-disposal practices. See Kan. Admin. Regs. § 28-29-16(a)(1) (authorizing Kansas BWM employees to enter and inspect premises dealing with solid waste and to gather information about conditions and procedures); Kan. Stat. Ann. §§ 65-3409(a)(6), 65-3401 (declaring it unlawful to refuse to permit or hinder waste-disposal investigations, including examination and copying records). Specifically, Kansas argues that the clinic violated the Medicaid Act by failing “to grant immediate access” to the Kansas BWM employees who investigated the clinic’s waste-disposal practices. 42 U.S.C. § 1320a-7(b)(12)(B). “Failure to grant immediate access means the failure to grant access at the time of a reasonable request or to provide a compelling reason why access may not be granted.” 42 C.F.R. § 1001.1301(a)(2). But § 1320a-7(b)(12)(B) allows states to terminate providers who refuse to grant immediate access to state employees conducting reviews under, in relevant part, § 1396a(a)(33). And § 1396a(a)(33)(A) requires states to establish plans to have “appropriate professional health personnel” review “the appropriateness and quality of care and services furnished to” Medicaid recipients. We agree with the district court that the Plaintiffs are likely to succeed in proving “that they did grant immediate access to the inspectors,” as well as “that the
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solid waste inspection here d[id] not constitute a review bearing on” the quality of care the Providers furnished to Medicaid recipients. Mosier, 2016 WL 3597457, at *20. The Providers presented sufficient evidence that PPGP employees at the Overland Park clinic accommodated BWM investigators’ unannounced arrival at the clinic by inviting them to conduct their inspection, but asking them not to take photographs while patients were present. The inspectors chose to leave instead. And while initially withholding the list of the clinic’s waste-services vendors, PPGP provided that information after assuring its confidentiality would be protected.
Even if this conduct could be labeled a “[f]ailure to grant immediate access” to Kansas officials, which is doubtful, clinic employees “provide[d] a compelling reason” for their refusal to allow photographs or to turn over its vendor list: they were concerned for patient safety and privacy. 42 C.F.R. § 1001.1301(a)(2). Notably, Kansas never cited PPGP for allegedly impeding the inspection. Mosier, 2016 WL 3597457, at *21. And despite Kansas’s claim that PPGP’s “providing some access to its facility nearly a month after the inspection was initiated, along with its opportunity to fix any problems, hardly satisfied the ‘immediate access’ requirement of federal law,” Appellant’s Opening Br. at 50, the record shows that when the state’s investigators first visited the clinic, PPGP employees granted them complete access to the clinic and invited them to complete a visual inspection. And Kansas points to no law that would require a medical provider to permit photographs to be taken of its operations while patients are present and being served.
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As its second basis for termination, Kansas relies on § 1320a-7(b)(5)(B). That provision allows the Secretary to terminate any individual or entity “for reasons bearing on the individual’s or entity’s professional competence, professional performance, or financial integrity.” We agree with the district court “that PPKM’s [now PPGP’s] purported failure to cooperate with the BWM’s solid waste inspection in December 2015 does not bear on PPKM’s [PPGP’s] ‘professional competence, professional performance, or financial integrity.’” Mosier, 2016 WL 3597457, at *19. As the district court found, “it is undisputed that no solid waste violations were found, so the only basis for termination associated with the inspection was the alleged failure to cooperate.” Id. We agree that Kansas has not explained how this purported failure to cooperate would bear on PPGP’s professional competence, professional performance, or financial integrity. Id. In its brief, Kansas references § 1320a-7(b)(5)(B) just twice, first simply citing its standard, and second, saying that the Providers showed a lack of “professional competence” in “refusing to allow public health inspectors to do their job[.]” Appellant’s Brief at 48, 54. And Kansas’s reply brief does even less, failing even to cite § 1320a-7(b)(5)(B).
The Dissent The dissent does not contend that Kansas is entitled to prevail on § 1320a-7(b)(12)(B) or (b)(5)(B). As grounds authorizing termination, the dissent instead relies on a neighboring section unmentioned by Kansas in its brief—42 U.S.C. § 1320a-7(b)(12)(C). Dissent at 19. In fashioning a new argument, the dissent steps beyond our usual practice. See Modoc Lassen Indian Hous. Auth. v. United
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States Dep't of Hous. & Urban Dev, No. 14-1313, 2017 WL 7369692, at *10 n.9

(10th Cir. Dec. 22, 2017) (declining to consider an argument unraised by the parties).

In response to the dissent, we discuss why the dissent’s cited statutory provision fails

to provide Kansas a basis for termination. We will not decide an argument that

Kansas failed to raise in the district court or on appeal.

That said, in responding to the dissent’s argument, we turn to

§ 1320a-7(b)(12)(C) which reads as follows:

(12) Failure to grant immediate access. Any individual or entity that fails to grant immediate access, upon reasonable request (as defined by the [HHS] Secretary in regulations) to any of the following:

*

*

*

(C) To the Inspector General of the Department of Health and Human Services, for the purpose of reviewing records, documents, and other data necessary to the performance of the statutory functions of the Inspector General.

The dissent argues that Kan. Reg. § 28-29-16(a)(1) is analogous to this federal

statute subsection, authorizing Kansas to terminate the Providers’ contracts based on

its regulation. The dissent relies on this portion of the state regulation:

The [Kansas Secretary of Health and Environment] or any duly authorized representative of the secretary, at any reasonable hour of the day, having identified themselves and giving notice of their purpose, may . . . [e]nter . . . any environment where solid wastes are generated, stored, handled, processed, or disposed, and inspect the premises and gather information of existing conditions and procedures . . . .

Dissent at 18–19.

The dissent ignores an applicable federal regulation bearing on inspections,

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documents and other materials or data . . . necessary to the [performance of the Inspector General’s] statutory functions[.]” 42 C.F.R. § 1001.1301(a)(1)(iii). But in defining “failure to grant immediate access,” the federal regulation requires that a provider have 24 hours to provide compelling evidence why the records cannot be produced, except on OIG’s reasonable belief of imminent alteration or destruction of the records (and Kansas has not alleged that it had such a belief). 42 C.F.R. § 1001.1301(a)(3)(i). And as a “reasonable request” the regulation requires a written request for documents signed by a designated representative of OIG “where there is information to suggest that the [individual or entity] has violated statutory or regulatory requirements under Titles V, XI, XVIII, XIX or XX of the Act.” 42 C.F.R. § 1301(a)(3)(ii). Further, the regulation requires that the agency request include these definitions and advise the individual or entity of the length of exclusion for failure to comply with the request. 42 C.F.R. § 1001.1301(a)(3), (b). In short, the federal regulation provides considerably more protections to a provider. In this circumstance, the state regulation is not analogous to federal law.
So we reject the view that Kansas was entitled to terminate PPGP on the dissent’s independently raised ground. In doing so, we also rely on the district court’s reasoning when it rejected Kansas’s reliance on § 1320a-7(b)(12)(B)—namely, that PPGP was willing to let the inspection continue absent photographs (having confidentiality concerns), that the Kansas regulation did not provide for photography, and that PPGP willingly released the vendor lists after negotiating a confidentiality agreement with the inspecting agency. See Mosier, 2016 WL 3597457, at *19.
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b. CMP Videos of Fetal Tissue Negotiation Kansas next argues that it was entitled to terminate PPGP’s and PPSLR’s provider agreements because “PPFA’s affiliates” violated federal and state law prohibiting the for-profit sale of human body parts and fetal tissue. Id. at 51 (citing 42 U.S.C. §§ 274e, 289g-2; Kan. Stat. Ann. § 65-6704). Importantly, Kansas doesn’t claim that PPGP or PPSLR engaged in such illegal conduct; rather, it claims that “[e]ven if these activities were conducted by PPFA, . . . the Medicaid Act permits the State to terminate its provider agreement based on those activities or the entity’s unlawful or unethical activities in other States.” Id. at 51–52 (citing 42 U.S.C. §§ 1320a-7(a)(3), (a)(1), (b)(1)(A)(ii)). According to Kansas, “providers must be terminated from participation in ‘any Federal health care program’—no matter where that program is administered—if they commit certain felony offenses in connection with a health care program administered by ‘any Federal, State, or local government agency.’” Id. (quoting 42 U.S.C. § 1320a-7(a)(3)). But, first, all of the termination provisions Kansas relies on require a criminal conviction or related sanction; and no PPFA affiliate, including PPGP and PPSLR, has been convicted or sanctioned for any wrongdoing. And the district court rightly explained that even if PPFA had negotiated the illegal sale of fetal body parts (and this allegation has never been proved), “under [§ 1396a(p)(1)], the ‘entity’ that a ‘State may exclude’ must be the same entity that committed the infraction defined in § 1320a-7(b).” Mosier, 2016 WL 3597457, at *18. Indeed, the sole provision allowing termination on the basis of affiliation applies exclusively to entities
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controlled by a sanctioned individual and mandates that the sanctioned individual must have ownership interest or control over the affiliated entity. 42 U.S.C. § 1320a-7(b)(8). Thus, if the statute allows a state to exclude a provider based on its affiliation with a different provider, the affiliation must involve ownership or control. See Bentley, 141 F. Supp. 3d at 1223–24 & n.9.
Kansas never addresses the district court’s conclusion, instead arguing that PPGP and PPSLR never established that they were separate and independent from PPFA. We agree with the district court that the Providers are not sufficiently affiliated with PPFA so that Kansas can attribute this alleged conduct to them under the law. See Mosier, 2016 WL 3597457, at *21. Kansas states that PPFA’s affiliates aggregate their finances, share executives, and share legal counsel. Kansas also states that PPFA establishes and imposes medical and ethical policies on its affiliates.
But these factors do nothing to show that PPFA exercises control over its affiliates’ daily operations. In fact, because many PPFA affiliates don’t offer abortions—and Kansas provides nothing to show that PPFA could or would require them to do so—we cannot attribute PPFA’s alleged abortion-related conduct to PPFA affiliates absent evidence that specifically implicates the affiliates.19 See Gee, 862
19 Nor do we find it significant that PPFA does not offer abortions. Kansas relies on this irrelevant allegation to suggest that any sales of fetal tissue “could have been coordinated only through the abortion-providing ‘affiliates’ that [PPFA’s national medical director] supervises.” Appellant’s Opening Br. at 53. The state seems to imply that this must mean that PPSLR and PPGP are doing the PFFA director’s dirty work. This conclusion is both speculative and conclusory. Kansas presented no evidence showing that PPGP and PPSLR sold fetal tissue for profit, and
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F.3d at 450. Kansas discusses when courts treat two corporate entities as one, but it presents no authority to support its argument that “one corporation can be held responsible for the policies of an umbrella organization regarding a practice that other affiliated corporations engage in.” Bentley, 141 F. Supp. 3d at 1224 n.10.
In sum, the Plaintiffs are likely to succeed in proving that Kansas cannot terminate PPGP from the state’s Medicaid program for PPFA’s alleged unlawful conduct.
c. Medicaid Fraud by PPFA Affiliates Last, Kansas claims it was justified in terminating PPGP and PPSLR in light of allegations that other PPFA affiliates had committed Medicaid fraud. Kansas claims that the numerous allegations of Medicaid fraud by Planned Parenthood affiliates around the country provide relevant evidence of PPGP’s and PPSLR’s “questionable billing practices.” Appellant’s Opening Br. at 8–9. This argument fails for the same reason the previous argument fails. Kansas never alleged that PPGP or PPSLR engaged in fraud, but it claims that because PPGP merged with Planned Parenthood of Central Oklahoma (“PPCO”), “the new combined entity has necessarily inherited PPCO’s record of fraud.” Id. at 54. But this “merger” doesn’t have the effect that Kansas desires it to. First, the only thing this “merger” changed was PPGP’s name: the former PPKM now operates under the name “Planned Parenthood Great Plains.” Appellant’s
neither of the two Kansas agencies that investigated PPGP and PPSLR found any wrongdoing.
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App. at 828. The merger resulted in “no change of ownership or management structure” for PPGP. Id. Second, though Oklahoma Governor Mary Fallin cited two “integrity reviews” finding error rates in billing of 20.3% and 14.1% in calling for PPCO’s termination from Oklahoma’s Medicaid plan, id. at 417–19, Kansas presented no evidence that Oklahoma had sanctioned or terminated PPCO, and PPCO is still an Oklahoma Medicaid provider. Third, Kansas cites nothing to support its claim that one corporate entity can inherit another’s “record of fraud,” even when the two entities merge into a single entity (which does not appear to have happened here).
After considering all of Kansas’s bases for terminating PPGP from its state Medicaid plan as unqualified, we conclude that, as in Gee, Commissioner of Indiana, and Betlach, Kansas “is seeking to do exactly what [other circuits] warned against: ‘simply labeling any exclusionary rule as a “qualification”’ to evade the mandate of the free-choice-of-provider requirement.” Gee, 862 F.3d at 469 (quoting Comm’r of Ind., 699 F.3d at 978). “[T]he free-choice-of-provider provision unambiguously requires that states participating in the Medicaid program allow covered patients to choose among the family planning medical practitioners they could use were they paying out of their own pockets.” Betlach, 727 F.3d at 971. Because Kansas has not otherwise sanctioned or charged PPGP for any wrongdoing, allowing the state to terminate PPGP from its Medicaid program would cause exactly this result.
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We therefore conclude that the district court did not abuse its discretion in finding that Plaintiffs are likely to succeed on the merits of their claim, and we move on to the remaining preliminary-injunction factors.
2. Irreparable Harm We next consider whether the Patients have shown that they would suffer irreparable harm absent injunctive relief.20 Irreparable harm is “certain, great, actual ‘and not theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). The district court found that the Patients had met their burden because they would lose medical treatment from the qualified providers of their choice if Kansas’s terminations of the Providers were allowed to stand. Mosier, 2016 WL 3597457, at *23. “A disruption or denial of these patients’ health care cannot be undone after a trial on the merits.” Id. Kansas argues that the Patients’ injuries are speculative for the same reason it contested the Plaintiffs’ standing and the case’s ripeness: that the administrative appeal is still pending, meaning the state can’t terminate the providers until that process is complete or the time period for appeal has expired.21 See Greater
20 Again, we follow the district court’s lead in limiting our review on this issue to whether the Patients, as opposed to the Providers, met their burden of showing irreparable harm. Mosier, 2016 WL 3597457, at *23.
21 Kansas also disputes the district court’s reliance on the possibility that if PPGP and PPSLR are terminated in Kansas, other states will terminate their Medicaid contracts as well. See Mosier, 2016 WL 3597457, at 24. We need not
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Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1260 (10th Cir. 2003). It also reiterates its argument that “[PPGP’s] [state Medicaid] contracts are not subject to immediate termination.” Appellant’s Opening Br. at 56.
We reject that argument here for the same reason we did above. Only the Providers have a right—not an obligation—to appeal Kansas’s decision; the Patients do not. And the Providers have declared that they will not pursue administrative appeal. Mosier, 2016 WL 3597457, at *24. Absent injunctive relief, the state would have stopped reimbursing the PPGP for the Patients’ care sometime between July 7, 2016 (Kansas’s self-proclaimed termination date) and September 10, 2016 (the date that accounts for the allegedly required exhaustion period and the alleged contractual delays that apply only to PPGP). Even if the effective date had been two months away, it would not change our conclusion that the Patients were “likely to suffer irreparable harm before a decision on the merits can be rendered.” Greater Yellowstone Coal., 321 F.3d at 1260.
Last, Kansas argues that the Patients would not be injured because the Providers “were conspicuously non-committal about whether termination would even force them to stop seeing the [Patients],” and that the Patients “alleged only that they will not have access to their preferred provider and (at worst) are unsure where else they might receive care.” Appellant’s Opening Br. at 58–59 & n.13. First, because the Patients all qualify for Medicaid, we cannot disagree with the district court,
address this concern because we conclude that the Patients have established the risk of irreparable harm based on other grounds.
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which “easily [found] that these patients will be unable to afford to pay out of pocket to see the health care provider of their choice without Medicaid assistance.” Mosier, 2016 WL 3597457, at *23. Second, “[t]his argument misses the mark. That a range of qualified providers remains available is beside the point.” Comm’r of Ind., 699 F.3d at 981. Section 1396a(a)(23) gives the Patients the exact right they seek to enforce: to obtain medical care from their preferred qualified provider, not to obtain familyplanning services from any qualified provider. The Patients have given uncontroverted evidence explaining why they prefer PPGP, including quality of care, lack of bias, and scheduling convenience. Mosier, 2016 WL 3597457, at *23. At least four of the Providers’ clinics are located in areas with shortages of primary-care providers. And the district court also rightly rejected Kansas’s claims that Patients had plenty of other family-planning-services providers to choose from, finding that the state’s evidence on this point was exaggerated. See id.
The district court did not abuse its discretion in concluding that the Patients would suffer irreparable harm absent entry of a preliminary injunction enjoining Kansas from terminating PPGP as a provider.
3. Balance of Harms & Public Interest We address the last two preliminary-injunction factors together. The final steps in assessing a preliminary injunction’s propriety require us to ask whether the balance of equities tips in the Plaintiffs’ favor, and whether an injunction is in the public interest. Winter, 555 U.S. at 20. Based on its findings that the three allegations against the Providers were either unfounded or unrelated to the Providers’
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qualifications, the district court found that “the risk of taxpayer harm is quite low as compared to the certain injury to Medicaid patients if the injunction does not issue.” Mosier, 2016 WL 3597457, at *24. Similarly, because the district court found that there was no ongoing administrative proceeding, it concluded that issuing a preliminary injunction and allowing the Plaintiffs to vindicate their Medicaid-Act rights by pursuing their § 1983 claim in federal court would serve the public interest, despite the availability of state administrative remedies. Id. at *25.
On appeal, neither Kansas nor the Plaintiffs addressed this step in the analysis. Either way, we agree with the district court’s thorough, reasoned analysis concerning PPGP. The court did not err in concluding that the Plaintiffs have met their burden on this point as well.
Thus, the district court did not abuse its discretion in finding that Plaintiffs have satisfied all of the elements required for entry of a preliminary injunction on the Patients’ free-choice-of-provider claim concerning PPGP.
CONCLUSION For the reasons stated above, as relates to PPGP, we AFFIRM the district court’s order granting the Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, thus restraining Kansas from terminating PPGP’s Medicaidprovider agreement. And as relates to PPSLR, we VACATE the district court’s order, because we conclude that the Patients have not met standing requirements—they have not alleged that they receive medical care at PPSLR. We remand for the district
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court to determine whether PPSLR itself has sufficiently alleged standing to proceed and whether it is entitled to a preliminary injunction.
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Planned Parenthood of Kansas, et al. v. Andersen, No. 16-3249 BACHARACH, J., concurring in part and dissenting in part.
A preliminary injunction would be appropriate only if the Jane Doe plaintiffs had standing and were likely to succeed on the merits. I agree with the majority that the Jane Doe plaintiffs lacked standing as to Planned Parenthood of the Saint Louis Region and Southwest Missouri (referred to below as “PPSLR”) because they had not alleged any desire to obtain medical care from this affiliate. But I also believe the Jane Doe plaintiffs lacked an enforceable right to challenge Kansas’s action as to Planned Parenthood of Kansas and Mid-Missouri (referred to below as “PPKM”). Thus, I would reverse the grant of a preliminary injunction to the Jane Doe plaintiffs as to both affiliates.
For PPKM, the Jane Doe plaintiffs could prevail on the merits only by showing that they had an enforceable right to challenge what Kansas did. The burden on the Jane Doe plaintiffs was stiff, for the Supreme Court has held that a right is individually enforceable only if it was unambiguously conferred. If an individually enforceable right existed here, its scope would have been ambiguous because of the combination of two provisions in Medicaid: § 1396a(a)(23) and § 1396a(p)(1).
Under 42 U.S.C. § 1396a(a)(23), the free-choice-of-provider clause, state Medicaid programs must provide that Medicaid patients can obtain medical care from any willing, qualified provider. Kansas’s program

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satisfied this requirement by providing that Medicaid patients could obtain medical care from qualified providers. But other federal Medicaid provisions allow states to exclude providers even when they are considered “qualified” under the free-choice-of-provider clause. These provisions include 42 U.S.C. § 1396a(p)(1), which allows states to exclude medical providers for violating state laws that serve a Medicaid-related goal.
Based on § 1396a(p)(1), Kansas terminated PPKM, contending that it had violated such state laws; the Jane Doe plaintiffs disagreed and sought to litigate whether the Kansas laws had been properly applied. The Jane Doe plaintiffs thus brought a § 1983 lawsuit for violation of their rights under the free-choice-of-provider clause.
The resulting issue is whether this clause unambiguously provided the Jane Doe plaintiffs with an enforceable right to have states properly apply their state laws (authorized by § 1396a(p)(1)) to Medicaid providers. In this context, the applicability of the free-choice-of-provider clause was ambiguous, which is not enough for an individually enforceable right. Thus, the Jane Doe plaintiffs were unlikely to succeed on the merits and the district court should have denied the motion for a preliminary injunction with regard to PPKM. I. The district court granted a preliminary injunction.
Acting through the Kansas Department of Health and Environment, the State of Kansas terminated participation in Medicaid by two Planned
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Parenthood affiliates—PPKM and PPLSR.1 In terminating the two affiliates, Kansas relied on its findings involving violations of state law.2
Following the terminations, PPKM, PPSLR, and three “Jane Doe”
patients of PPKM brought a 42 U.S.C. § 1983 claim in federal district
court, alleging that Kansas’s decision violated the Medicaid Act’s freechoice-of-provider clause.3
The plaintiffs moved for a preliminary injunction. Following a
hearing, the district court granted the motion by the Jane Doe plaintiffs,
preliminarily barring termination of PPKM and PPSLR. Planned
Parenthood of Kan. & Mid-Mo. v. Mosier, No. 16-2284-JAR-GLR, 2016 WL 3597457, at *25 (D. Kan. July 5, 2016).4
1 These affiliates are medical providers offering family planning health services to Kansas Medicaid patients. After this suit began, PPKM merged with another Planned Parenthood affiliate (Planned Parenthood of Central Oklahoma) and changed the name to “Planned Parenthood Great Plains.” 2 I focus on PPKM’s alleged refusal to allow the inspectors to photograph waste-disposal areas. But Kansas also alleged that PPKM and PPSLR had withheld vendor lists, allowed the illegal sale of fetal organs, and engaged in fraudulent billing practices. Consideration of these allegations is unnecessary for us to reverse. 3 The plaintiffs also based their motion for a preliminary injunction on a claim involving denial of equal protection. But the district court did not rely on this claim. Nor does the majority. 4 Reasoning that the Jane Doe plaintiffs had a cause of action, the district court declined to decide whether PPKM and PPSLR could bring the suit on their own. 2016 WL 3597457, at *17. The majority takes the same approach, as do I.
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In granting the preliminary injunction, the district court concluded that the case was justiciable and that abstention was unnecessary. The court then considered the factors for a preliminary injunction, including whether the plaintiffs were likely to succeed on the merits. See Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016).5 In applying this factor, the court first addressed whether the plaintiffs had a cause of action under § 1983 to enforce the free-choice-ofprovider clause. The court held that the Jane Doe plaintiffs had a cause of action and that it was broad enough to encompass the claims brought by the Jane Doe plaintiffs.

5

The other factors are

 whether the plaintiffs would suffer irreparable harm without a preliminary injunction,

 whether the threatened harm outweighs the harm to the adversary from a preliminary injunction, and

 whether the preliminary injunction would harm the public interest.

Diné Citizens Against Ruining Our Env’t, 839 F.3d at 1281.

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II. For PPKM, any individual right would not have been broad enough for the Jane Doe plaintiffs to challenge Kansas’s termination under § 1396a(p)(1). For PPKM, the critical question is the scope of the Jane Doe
plaintiffs’ alleged right under the free-choice-of-provider clause. In district court, Kansas argued that
 it had excluded PPKM based on § 1396a(p)(1) and  the Jane Doe plaintiffs lacked an unambiguous right allowing
them to challenge Kansas’s application of § 1396a(p)(1). The district court rejected these arguments, holding that the Jane Doe plaintiffs could challenge Kansas’s determination that PPKM had violated state law. The court reasoned that if the result were otherwise, a state could simply evade judicial review by improperly terminating a provider under state law:
If a State could defeat a Medicaid recipient’s right to select a particular qualified healthcare provider merely by terminating its agreement with that provider on an unlawful basis, the right would be totally eviscerated. Planned Parenthood of Kan. & Mid-Mo. v. Mosier, No. 16-2284-JAR-GLR, 2016 WL 3597457, at *17 (D. Kan. July 5, 2016) (quoting Planned Parenthood Se., Inc. v. Bentley, 141 F. Supp. 3d 1207, 1218 (M.D. Ala. 2015)). This reasoning led the court to consider whether PPKM had violated Kansas law. The court answered “no” and concluded, as a result, that Kansas had likely violated the free-choice-of-provider clause. Because the
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other preliminary-injunction factors supported the Jane Doe plaintiffs, the district court granted the motion for a preliminary injunction.
Kansas appeals, presenting four pertinent arguments as to PPKM6: 1. This case is not justiciable. 2. The district court should have abstained. 3. The plaintiffs lack an individually enforceable right under the
free-choice-of-provider clause. 4. Even if an individually enforceable right existed, it would not
allow the plaintiffs to challenge Kansas’s actions, which were based on Kansas law as authorized by 42 U.S.C. § 1396a(p)(1). I agree with the majority that the case is justiciable and that the district court had no need to abstain. I will also assume, for the sake of argument, that the Jane Doe plaintiffs have an individual right under the free-choiceof-provider clause. The resulting question entails the extent of that right. Under the free-choice-of-provider clause, the state’s Medicaid program must provide that Medicaid patients can obtain medical care from qualified providers. 42 U.S.C. § 1396a(a)(23). Kansas’s Medicaid program complied with this requirement, for the program’s only exclusions were based on provisions authorized by Medicaid itself.7
6 Kansas also defends its findings that PPKM had violated state law and argues that the Jane Doe plaintiffs had not faced irreparable harm. 7 In some of the cases invoked by PPKM, the state Medicaid programs contained exclusions unauthorized by Medicaid or any other federal law. See, e.g., Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 962-63
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Kansas terminated PPKM for purportedly violating Kansas laws
authorized by a separate Medicaid provision: 42 U.S.C. § 1396a(p)(1). In
light of this termination, the Jane Doe plaintiffs seek to litigate whether
PPKM actually violated Kansas law. But the Jane Doe plaintiffs can
litigate this issue only if their underlying right unambiguously extends to
Kansas’s application of its own state law. See Harris v. James, 127 F.3d
993, 1011-12 (11th Cir. 1997).8
(9th Cir. 2013) (state law that excluded all abortion providers from Medicaid was not authorized by § 1396a(p)(1) or other federal law); Planned Parenthood of Ind. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962, 979-80 (7th Cir. 2012) (same).
8 In Harris v. James, Medicaid recipients sued under § 1983, alleging that the state’s Medicaid program failed to provide transportation to and from providers. 127 F.3d 993, 995 (11th Cir. 1997). The Medicaid recipients relied in part on the free-choice-of-provider clause. Id. at 1011. The Eleventh Circuit assumed, for the sake of argument, that the freechoice-of-provider clause provided an individually enforceable right. Id. at 1011 & n.27. But the court concluded that this potential right would not have unambiguously included transportation to and from providers:
In other words, we do not think that transportation to and from providers is reasonably understood to be part of the content of a right to . . . choice among providers. Instead, if the regulation [invoked by the Medicaid recipients] is a valid interpretation of [Medicaid provisions including the free-choice-of-provider clause], it would be because transportation may be a reasonable means of ensuring the prompt provision of . . . choice among providers. Such links to Congressional intent may be sufficient to support the validity of a regulation; however, we think they are too tenuous to support a conclusion that Congress has unambiguously conferred upon Medicaid recipients a federal right to transportation enforceable under § 1983.
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As a result, we must ask: Has Congress unambiguously conferred the Jane Doe plaintiffs with a right to have states properly apply their laws (authorized by § 1396a(p)(1)) to Medicaid providers? Or, as the text of the free-choice-of-provider clause suggests, has Congress conferred the Jane Doe plaintiffs with only a right to be covered under a program (like Kansas’s program) that does not contain unauthorized exclusionary provisions? In my view, the answer is—at best—ambiguous. Thus, if an individually enforceable right existed here, it would not encompass a challenge to Kansas’s termination of PPKM.
A. Standard of Review We review the district court’s grant of a preliminary injunction for an abuse of discretion. Verlo v. Martinez, 820 F.3d 1113, 1124 (10th Cir. 2016). The court abuses its discretion when committing an error of law or making factual findings that are clearly erroneous. Id. In my view, the district court committed a legal error by ruling that the Jane Doe plaintiffs could litigate Kansas’s application of its laws authorized by § 1396a(p)(1). B. Section 1983 This suit is brought under § 1983, not the Medicaid Act. Thus, we must start with the scope of § 1983. This statute creates a private right of action for U.S. citizens denied rights created by federal laws. 42 U.S.C.
Id. at 1011-12 (emphasis in original).
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§ 1983. But § 1983 does not authorize relief for every violation of federal law. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119 (2005).
To determine whether § 1983 provides a mechanism for relief, the Jane Doe plaintiffs must demonstrate that Congress intended to create an enforceable right. Id. at 120. The Supreme Court said in Gonzaga University v. Doe that a right is individually enforceable only if Congress had unambiguously created that right. 536 U.S. 273, 283-84 (2002). “After Gonzaga, an enforceable private right exists only if the statute contains nothing ‘short of an unambiguously conferred right’ and not merely a vague benefit or interest.” Mandy R. ex rel. Mr. & Mrs. R. v. Owens, 464 F.3d 1139, 1147 (10th Cir. 2006) (quoting Gonzaga, 536 U.S. at 283). It is not enough simply to show that a plaintiff “falls within the general zone of interest that the statute is intended to protect.” Gonzaga, 536 U.S. at 283.
C. Medicaid We must apply this § 1983 requirement against the backdrop of Medicaid. Medicaid is a cooperative federal-state program in which states obtain federal funds to provide medical care to needy individuals. Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502 (1990). State participation is voluntary; but once states opt into the program, they must adhere to statutory requirements and regulations promulgated by the Secretary of Health and Human Services (“HHS”). Id. Congress has directed the HHS
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Secretary to withhold federal funds from states violating these requirements. 42 U.S.C. § 1396c.
To participate in Medicaid, states must obtain approval of their plans from the HHS Secretary. Wilder, 496 U.S. at 502. These plans must describe the nature and scope of the state’s proposed health-care program. Id. The statutory requirements for the plans are set forth in 42 U.S.C. § 1396a(a). One such requirement appears in the free-choice-of-provider clause underlying this suit.
Under this clause, a state plan must provide for eligible individuals to obtain medical care from any willing provider “qualified to perform the service.” 42 U.S.C. § 1396a(a)(23)(A). Based on this provision, the Jane Doe plaintiffs claim that Kansas improperly terminated PPKM even though it was “qualified” to provide medical care.
But a federal court would ordinarily lack jurisdiction to consider a Medicaid recipient’s claim involving the state’s violation of its own Medicaid program. Concourse Rehab. & Nursing Ctr. Inc. v. DeBueno, 179 F.3d 38, 43-44 (2d Cir. 1999). To create federal jurisdiction, the Medicaid recipient must allege a conflict between the state Medicaid program and a federal law. Id. Thus, we must consider whether the Jane Doe plaintiffs have alleged a conflict between the Kansas Medicaid program and a federal law. See id.
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The Jane Doe plaintiffs point to the free-choice-of-provider clause. Thus, we must first consider whether this clause provides Medicaid patients with a federal right enforceable under § 1983. Four circuits have said “yes”;9 one has said “no.”10 Today, the majority joins the four circuits that have answered “yes.” Majority Op. at 32. We can assume, for the sake of argument, that the majority is right.
With this assumption, we must consider whether the Jane Doe plaintiffs have alleged a conflict between Kansas’s Medicaid program and the free-choice-of-provider clause. To answer that question, we must determine the scope of this clause. At first glance, the free-choice-ofprovider clause might appear to force a state to allow any qualified provider into the state’s Medicaid program. But “Medicaid’s freedom of choice provision is not absolute.” Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 177 (2d Cir. 1991). Rather, Medicaid allows states to exclude providers from Medicaid, sometimes even when the providers are qualified. E.g., 42 U.S.C. § 1396a(a)(39), (p)(1).
9 Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 460-61 (5th Cir. 2017); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 966-67 (9th Cir. 2013); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 974-75 (7th Cir. 2012); Harris v. Olszewski, 442 F.3d 456, 461-62 (6th Cir. 2006). 10 Does v. Gillespie, 867 F.3d 1034, 1042-43 (8th Cir. 2017).
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For example, states can exclude providers from Medicaid for violating certain types of state laws. A state’s authority to take such action stems partly from 42 U.S.C. § 1396a(p)(1), which is entitled “Exclusion power of State.” Section 1396a(p)(1) identifies grounds for a state to exclude a provider:
In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in a program under subchapter XVIII of this chapter under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title. 42 U.S.C. § 1396a(p)(1). The HHS implements § 1396a(p)(1) through a regulation, which states that the listed exclusion provisions are “[i]n addition to any other authority [a state] may have.” 42 C.F.R. § 1002.3(a). This language is to be read broadly: “Nothing contained in this part should be construed to limit a State’s own authority to exclude an individual or entity from Medicaid for any reason or period authorized by State law.” Id. § 1002.3(b). Kansas maintains that the legality of its actions is determined by § 1396a(p)(1), not the free-choice-of-provider clause, and argues that the Jane Doe plaintiffs therefore lacked an applicable right to challenge Kansas’s application of its laws.
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D. Section 1983 does not provide a mechanism for the Jane Doe plaintiffs to challenge Kansas’s application of its laws authorized by § 1396a(p)(1).
To determine whether the free-choice-of-provider clause supports relief under § 1983, we must resolve two questions:
1. Do the pertinent Kansas laws fall within the scope of § 1396a(p)(1)? I would answer “yes.”
2. Does the free-choice-of-provider clause entitle the Jane Doe plaintiffs to challenge Kansas’s application of these laws? If such an entitlement exists, it is at least ambiguous, which is fatal to the Jane Doe plaintiffs’ claim.
1. Kansas’s laws fall within § 1396a(p)(1). Kansas terminated PPKM under Kansas Administrative Regulation § 30-5-60(a). This provision authorizes Kansas to terminate a provider that has violated applicable state regulations. Kan. Admin. Regs. § 30-560(a)(2). Invoking this authority, Kansas found that PPKM had violated a Kansas solid-waste regulation—§ 28-29-16(a)(1)—by obstructing a solidwaste inspection of PPKM’s facility. The resulting issue is whether Congress has authorized Kansas under § 1396a(p)(1) to exclude providers from Medicaid for violating Kansas’s solid-waste regulation. We begin with the statutory text. Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985). The critical part of the statute is the word “any” in the phrase “any other authority.” 42 U.S.C. § 1396a(p)(1). When construing the word “any,” we consider its “‘ordinary meaning.’” Moskal v. United States, 498 U.S. 103, 108 (1990) (quoting Richards v. United
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States, 369 U.S. 1, 9 (1962)). The word “any” ordinarily means “[o]ne, some, every, or all without specification.” The American Heritage College Dictionary 61 (3d ed. 1997). Thus, at first glance, § 1396a(p)(1) would appear to provide states with unchecked authority to exclude providers from Medicaid for any reason permitted by state law.
But we have always construed statutory language in context. United States v. Collins, 859 F.3d 1207, 1213 (10th Cir. 2017); see Christopher v. SmithKline Beecham Corp, 567 U.S. 142, 162 (2012) (“[T]he modifier ‘any’ can mean ‘different things depending upon the setting . . . .’” (quoting Nixon v. Mo. Mun. League, 541 U.S. 125, 132 (2004))). The context here comprises Congress’s list of permissible reasons for a state to terminate providers. See 42 U.S.C. § 1396a(p)(1). If Congress had intended to allow unlimited authority, the listed provisions in § 1396a(p)(1) would have been superfluous. See McDonnell v. United States, 136 S. Ct. 2355, 2369 (2016) (recognizing a presumption that statutory language is not superfluous). Thus, the phrase “any other authority” in § 1396a(p)(1) must bear some limitation.
What is that limitation? To answer, we consider the canon of noscitur a sociis. Under this canon, an ambiguous term may be “given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). Thus, we consider the
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limitation of “any other authority” based on the surrounding words in the statute. United States v. Phillips, 543 F.3d 1197, 1206 (10th Cir. 2008).
In this case, the neighboring words in § 1396a(p)(1) are three specific statutory provisions that a state may invoke to justify a provider’s termination: 42 U.S.C. §§ 1320a-7, 1320a-7a, and 1395cc(b)(2). See 42 U.S.C. § 1396a(p)(1) (“[A] State may exclude . . . for any reason for which the Secretary could exclude . . . under [§§] 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.”). Having identified these three provisions, we should consider whether they help define the phrase “any other authority” in § 1396a(p)(1). See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 ( 2 0 0 8 ) . 11
The three cited statutes include grounds to exclude or terminate providers. See 42 U.S.C. §§ 1320a-7, 1320a-7a, 1395cc(b)(2). The Fifth, Seventh, and Ninth Circuits have observed that the grounds for termination involved “various forms of malfeasance,” such as “fraud, drug crimes, and failure to disclose necessary information to regulators.” Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d
11 Of the situations listed in those three statutes, we are concerned only with exclusionary powers that are optional for the HHS Secretary. See 42 U.S.C. § 1396a(p)(1) (stating “reason[s] for which the Secretary could exclude” a provider from participation). The three statutes also include exclusionary provisions that are mandatory. A separate section requires that states exclude providers under these mandatory provisions. See 42 U.S.C. § 1396a(a)(39).
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962, 979 (7th Cir. 2012); Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 469 (5th Cir. 2017); Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 972 (9th Cir. 2013). I agree with these courts. Thus, I too conclude that the phrase “any other authority” likely refers to state laws that prohibit acts of “malfeasance.”
But what do we mean by “malfeasance”? The Fifth and Ninth Circuits answer that the state laws must address conduct “analogous” to what is covered in the three cited statutes. Planned Parenthood of Gulf Coast, 862 F.3d at 465; Planned Parenthood Ariz., 727 F.3d at 972. The majority takes a similar approach. Majority Op. at 45-46.
In my view, this approach rests on an unduly restrictive definition of “malfeasance.” Certainly Congress intended to impose some limits on the states’ adoption of Medicaid-related laws. But Congress intended to give states broad authority in light of the HHS regulations and the legislative history.
The regulations interpret the phrase “any other authority” in § 1396a(p)(1) to mean “any other authority [that a State] may have.” 42 C.F.R. § 1002.3(a) (emphasis added). And the regulations allow a state to exclude a provider “for any reason or period authorized by state law.” Id. § 1002.3(b) (emphasis added). In fact, when promulgating § 1002.3, the HHS Secretary expressly rejected a suggestion to add the words “for cause” into § 1002.3(b). See Amendments to OIG Exclusion and CMP
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Authorities Resulting from Public Law 100-93, 57 Fed. Reg. 3298, 3322-23 (Jan. 29, 1992). The HHS Secretary explained that Congress had spoken broadly, so it was “up to the various courts and legislative bodies” to consider whether § 1396a(p)(1) had a limitation. Id. at 3323.
A Senate Report also indicates that Congress intended for § 1396a(p)(1) to provide the states with broad authority: “This provision is not intended to preclude a State from establishing, under State law, any other bases for excluding individuals or entities from its Medicaid program.” S. Rep. No. 100-109, at 20 (1987) (emphasis added), as reprinted in 1987 U.S.C.C.A.N. 682, 700; see also First Med. Health Plan, Inc. v. Vega-Ramos, 479 F.3d 46, 53 (1st Cir. 2007) (“The legislative history clarifies that this ‘any other authority’ language was intended to permit a state to exclude an entity from its Medicaid program for any reason established by state law.” (emphasis in original)).
In light of the HHS regulations and the legislative history, the need to provide some limitation does not require us to narrowly read the phrase “any other authority.” Doing so “would defeat Congress’ intent to define [this phrase] in a broad manner.” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 163 (2012). Thus, the term “malfeasance” should be read broadly.
Under a broad reading of “malfeasance,” a state would not be able to pass any law and claim that violating the law constitutes an act of
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malfeasance. Rather, the state law must “serve[] some Medicaid-related goals.” Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644, 663 (2003) (plurality op.). For this reason, § 1396a(p)(1) authorizes states to enact laws against wrongful conduct affecting Medicaid-related goals. And states may then enact a law, as Kansas did, which excludes a provider for violating these laws.
Under this definition, a state would enjoy broad authority, but this authority would not go unchecked. For example, a state could not circumvent Medicaid’s purpose by enacting laws to undermine or bypass the Medicaid provisions. Here the Jane Doe plaintiffs have not alleged that Kansas’s laws were designed to undermine or bypass Medicaid.
But let’s assume for the sake of argument that the majority’s narrow definition of “malfeasance” is right. Under this approach, § 1396a(p)(1) allows states to exclude providers for violating state laws that prohibit conduct “analogous” to conduct excludable under the three statutes listed in § 1396a(p)(1). Majority Op. at 45-46. Even under the majority’s approach, Kansas’s termination of PPKM would constitute action authorized by § 1396a(p)(1).
Kansas’s termination of PPKM was based on Kansas Administrative Regulation § 28-29-16(a)(1). That provision states:
The [Kansas Secretary of Health and Environment] or any duly authorized representative of the secretary, at any reasonable hour of the day, having identified themselves and giving notice
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of their purpose, may . . . [e]nter . . . any environment where solid wastes are generated, stored, handled, processed, or disposed, and inspect the premises and gather information of existing conditions and procedures . . . .
Kan. Admin. Regs. § 28-29-16(a)(1). This provision is analogous to the
federal statute, 42 U.S.C. § 1320a-7(b)(12)(C),12 which is identified in
§ 1396a(p)(1) as a basis to terminate a provider. See 42 U.S.C.
§ 1396a(p)(1). The federal statute, 42 U.S.C. § 1320a-7(b)(12)(C), allows
for the termination of
[a]ny individual or entity that fails to grant immediate access, upon reasonable request (as defined by the [HHS] Secretary in regulations) to any of the following: . . . .
12 Kansas has argued that it could exclude PPKM under Kansas Administrative Regulation § 28-29-16(a)(1) because it had been enacted under § 1396a(p)(1). Appellant’s Opening Br. at 48 (quoting Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 972 (9th Cir. 2013)). In making this argument, Kansas did not specifically point to 42 U.S.C. § 1320a-7(b)(12)(C). Instead, Kansas relied on 42 U.S.C. § 1320a7(b)(12)(B). But to address Kansas’s interpretation of § 1396a(p)(1), we must address the Medicaid statute as a whole. See Samantar v. Yousuf, 560 U.S. 305, 319 (2010) (“In sum, ‘[w]e do not . . . construe statutory phrases in isolation; we read statutes as a whole.’” (quoting United States v. Morton, 467 U.S. 822, 828 (1984)) (alteration and omission in original)); Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 290 (2010) (“Courts have a ‘duty to construe statues, not isolated provisions.’” (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 568 (1995))). In construing the statute as a whole, we are not restricted to the sections cited by the parties. See United States v. Vallery, 437 F.3d 626, 632-33 (7th Cir. 2006) (considering parts of a statute not relied upon by either side because of the court’s obligation to take into account the meaning of the statute as a whole); see also WWC Holding Co. v. Sopkin, 488 F.3d 1262, 1276 n.10 (10th Cir. 2007) (stating that the court can interpret a statute differently than both parties because we engage in de novo review when interpreting statutes).
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To the Inspector General of [HHS], for the purpose of reviewing records, documents, and other data necessary to the performance of the statutory functions of the Inspector General. 42 U.S.C. § 1320a-7(b)(12)(C). The question here is whether § 1320a7(b)(12)(C) and Kansas Administrative Regulation § 28-29-16(a)(1) are analogous. The two can be analogous if they bear similarities even though some differences exist. See American Heritage College Dictionary 48 (3d ed. 1997) (defining an “analogy” as “[s]imilarity in some respects between things that are otherwise dissimilar”). In addressing whether the provisions are analogous, we are trying to determine whether the state law prohibits the same type of “malfeasance” covered in the statutes listed in § 1396a(p)(1). See Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 972 (9th Cir. 2013). Thus, we must focus on the conduct covered by Kansas Administrative Regulation § 28-29-16(a)(1) and determine whether this conduct bears similarities to the conduct addressed in § 1320a7(b)(12)(C). The conduct being prohibited is similar in the two provisions. For example, both provisions require certain entities to provide access to government officials so that they can inspect the premises. A provider violates both provisions by refusing to allow access to government inspectors, rendering the prohibited conduct analogous. In light of these similarities, 42 U.S.C. § 1396a(p)(1) authorized Kansas to terminate
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providers from Medicaid based on a violation of the state law requiring access for a governmental inspection.
2. The Jane Doe Plaintiffs’ Cause of Action The resulting issue is whether the free-choice-of-provider clause allowed the Jane Doe plaintiffs to challenge Kansas’s application of § 1396a(p)(1). The answer is (at best) ambiguous, which is fatal to the Jane Doe plaintiffs’ claim. The district court allowed the Jane Doe plaintiffs to invoke § 1983 to challenge Kansas’s action as a violation of the free-choice-of-provider clause. The problem is that Kansas’s action was of a type authorized by a separate Medicaid provision: § 1396a(p)(1). The district court acknowledged this authorization, but feared that the inability to use § 1983 in these circumstances could allow states to evade judicial review of Medicaid-related decisions, rendering the free-choice-of-provider clause a hollow right. See Planned Parenthood of Kan. & Mid-Mo. v. Mosier, No. 16-2284-JAR-GLR, 2016 WL 3597457, at *17 (D. Kan. July 5, 2016). This fear does not permit us to broaden § 1983 to allow a private right of action to challenge administrative action taken under § 1396a(p)(1), for it is not our function as judges to create a cause of action to enforce a statute that does not confer an unambiguous federal right. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002).
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Until today, no majority opinion of another circuit court has addressed this issue in a holding: The issue did not arise in Planned Parenthood of Indiana or in Planned Parenthood Arizona, as the states’ actions there were not of a type authorized by a Medicaid provision. Rather, the states in Planned Parenthood of Indiana and Planned Parenthood Arizona had tried to preemptively exclude—as a class—any provider that performed abortion services. Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960, 962 (9th Cir. 2013); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dept. of Health, 699 F.3d 962, 967 (7th Cir. 2012). Section 1396a(p)(1) was relevant only because the states had argued that § 1396a(p)(1) provided unchecked authority to terminate providers. That argument has been soundly rejected. See Planned Parenthood Ariz., 727 F.3d at 971-72; Planned Parenthood of Ind., 699 F.3d at 979-80.
Unlike in those cases, Kansas argues that its actions under Kansas Administrative Regulation § 28-29-16(a)(1) were justified under the provisions listed in § 1396a(p)(1). That difference matters, as the Ninth Circuit explained in Planned Parenthood Arizona:
[Section 1396a(p)(1)] do[es] not apply here. [Arizona’s abortion law] does not set out grounds for excluding individual providers from Arizona’s Medicaid program demonstrated to have engaged in some type of criminal, fraudulent, abusive, or otherwise improper behavior. Rather, it preemptively bars a class of providers on the ground that their scope of practice includes certain perfectly legal medical procedures.
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Planned Parenthood Ariz., 727 F.3d at 973 (emphases in original).13 Kansas is doing here what the state had declined to do in Planned Parenthood Arizona.
The Fifth Circuit in Planned Parenthood of Gulf Coast did address the issue. But the court there did so only in dicta, as the state had not argued that its actions were analogous to any of the provisions listed in § 1396a(p)(1). See Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445, 466 (5th Cir. 2017) (“[The State agency does not] even assert that its grounds for termination are consistent or analogous with 42 U.S.C. § 1396a(p)(1)’s enumerated grounds for exclusion.”). But see id. at 478-79 (Owen, J., dissenting) (concluding that the state had justified its actions under § 1396a(p)(1), which should have prevented the majority from reaching the merits). In dicta, the court discussed the bounds of the right under the free-choice-of-provider clause:
[T]he free-choice-of-provider [clause] gives individuals the right to demand care from a qualified provider when access to that provider is foreclosed by reasons unrelated to that provider’s qualifications. Otherwise, any right to which the [plaintiffs] are entitled to under [the free-choice-of-provider clause] would be hollow.
13 Similarly, in Harris v. Olszewski, the Sixth Circuit did not consider our issue involving the interplay between the free-choice-of-provider clause and § 1396a(p)(1). See generally Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006).
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Id. at 462 (majority op.) (emphasis in original) (citing Planned Parenthood Se., Inc. v. Bentley, 141 F. Supp. 3d 1207, 1218 (M.D. Ala. 2015)).
The Fifth Circuit feared that limiting the plaintiffs’ cause of action would render the free-choice-of-provider clause “hollow,” relying on Planned Parenthood Southeast, Inc. v. Bentley, a district court case. 141 F. Supp. 3d at 1217-18. In Planned Parenthood Southeast, the district court squarely considered the present issue. Id. The court acknowledged that there “plainly are some reasons that a State may terminate a provider . . . other than the provider being unqualified.” Id. at 1218. But the district court concluded—without any pertinent citation—that the free-choice-ofprovider clause must allow plaintiffs to challenge those reasons or result in “evisceration” of the clause. Id. This reasoning is unconvincing for two reasons.
First, even with the absence of a private right of action to litigate the application of state laws authorized by § 1396a(p)(1), plaintiffs could still challenge a state Medicaid program that expressly limited the choice of qualified providers without any separate statutory authority. E.g., Planned Parenthood Ariz., 727 F.3d at 964 (state program excluded all abortion providers from Medicaid); Planned Parenthood of Ind., 699 F.3d at 967 (same); Harris, 442 F.3d at 460 (state program limited the sale of incontinence products to a single provider). Thus, even if the Jane Doe
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plaintiffs were forbidden from bringing the present suit, their right under the free-choice-of-provider clause would not be a hollow one.
Second, even if the inability to invoke § 1983 would render the freechoice-of-provider clause “a hollow right,” this problem would be for Congress to fix. See Touche Ross & Co. v. Redington, 442 U.S. 560, 579 (1979) (“[Plaintiffs] contend that the result we reach sanctions injustice. But even if that were the case, the argument is made in the wrong forum, for we are not at liberty to legislate.”). Our job is only to determine whether Congress has “manifest[ed] an ‘unambiguous[]’ intent to confer individual rights.” Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002) (first alteration in original) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). “[W]hat matters is the law the Legislature did enact,” not what we think the law should have said. Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 403 (2010) (emphasis in original).
The resulting issue is whether the free-choice-of-provider clause unambiguously provided the Jane Doe plaintiffs with a right to have states properly apply their laws (authorized by § 1396a(p)(1)) to Medicaid providers. Or, instead, has Congress simply conferred the Jane Doe plaintiffs with a right to be covered under a program (like Kansas’s) that does not contain unauthorized exclusionary provisions? Though Congress has arguably created an individual right under the free-choice-of-provider
25

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clause, the scope of that right remains ambiguous when the state terminates a provider under § 1396a(p)(1).
* * * In district court, the plaintiffs did not demonstrate the presence of a federal right that is actionable under § 1983. The text of the free-choiceof-provider clause directs states to create Medicaid programs that do not limit access to qualified providers without separate statutory authorization. To claim an enforceable right to obtain medical care from any provider, it is not enough to show that Congress generally intended for the free-choice-of-provider clause to protect the Jane Doe plaintiffs’ choice of providers. See Gonzaga, 536 U.S. at 283; see also Planned Parenthood of Gulf Coast, 862 F.3d at 474 (Owen, J., dissenting) (“[The free-choice-ofprovider clause] does not give a patient the right to contest a State’s determination that a provider . . . has not otherwise met state or federal statutory requirements.”). Instead, the Jane Doe plaintiffs could succeed on the merits only if Congress had unambiguously extended the right under the free-choice-of-provider clause to allow challenges to a state’s application of its laws adopted under § 1396a(p)(1). See Gonzaga, 536 U.S. at 283. In my view, the applicability of this right is, at best, ambiguous. The ambiguity prevents an applicable right, which in turn prevents the Jane Doe plaintiffs from establishing likelihood of success in their challenge to PPKM’s termination. And the inability to establish likelihood
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of success prevents a preliminary injunction. Diné Citizens Against Ruining our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016). III. Conclusion
In my view, the free-choice-of-provider clause does not unambiguously provide the Jane Doe plaintiffs with a right to challenge Kansas’s application of § 1396a(p)(1). Therefore, the Jane Doe plaintiffs lacked an enforceable right to challenge Kansas’s action. The lack of an enforceable right should have precluded the award of a preliminary injunction to the Jane Doe plaintiffs.
For these reasons, I would reverse the grant of a preliminary injunction to the Jane Doe plaintiffs as to both PPSLR and PPKM. The majority reverses the grant of a preliminary injunction as to PPSLR but affirms the grant of a preliminary injunction as to PPKM. Therefore, I join the majority as to PPSLR and respectfully dissent as to PPKM.
27

 
 U.S. District Court DISTRICT OF KANSAS (Kansas City) CIVIL DOCKET FOR CASE #: 2:16-cv-02284-JAR-KGG

Planned Parenthood of Kansas and Mid-Missouri et al v. Mosier Assigned to: District Judge Julie A. Robinson Referred to: Magistrate Judge Kenneth G. Gale Case in other court: 10CCA, 16-03249 Cause: 42:1983 Civil Rights Act

Date Filed: 05/04/2016 Date Terminated: 04/16/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Planned Parenthood of Kansas and Mid-Missouri

represented by Arthur A. Benson , II Arthur Benson & Associates 4006 Central Kansas City, MO 64111 816-531-6565 Email: abenson@bensonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Diana O. Salgado Planned Parenthood Federation of America - DC 1110 Vermont Avenue, NW, Suite 300 Washington, DC 20005 202-973-4800 Fax: 202-296-3480 Email: diana.salgado@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Douglas N. Ghertner Slagle, Bernard & Gorman, P.C. 4600 Madison Avenue, Suite #600 Kansas City, MO 64112-3031 816-410-4600 Fax: 816-561-4498 Email: dghertner@sbg-law.com TERMINATED: 08/14/2017 LEAD ATTORNEY

Plaintiff
Planned Parenthood of St. Louis Region

Jamie Kathryn Lansford Law Office of Arthur Benson, II 4006 Central Kansas City, MO 64111 816-531-6565 Email: jlansford@bensonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen Planned Parenthood Federation of America - NY 123 William St 9th Floor New York, NY 10038 212-261-4649 Fax: 212-247-6811 Email: melissa.cohen@ppfa.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address)

Plaintiff Orrin Moore TERMINATED: 06/29/2016
Plaintiff

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye Robert V. Eye Law Office, LLC 4840 Bob Billings Parkway, Suite 1010 Lawrence, KS 66049 785-234-4040 Fax: 785-749-1202 Email: bob@kauffmaneye.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristin Metcalf-Wilson TERMINATED: 06/29/2016
Plaintiff Maria Ward TERMINATED: 06/29/2016

represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address)

Plaintiff
Viola Johnson TERMINATED: 06/29/2016

TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Cheryl Lyon TERMINATED: 06/29/2016
Plaintiff Mary-Jo Drake TERMINATED: 06/29/2016

Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Justine Flory TERMINATED: 06/29/2016

Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address)

Plaintiff
Kathleen Kafka TERMINATED: 06/29/2016

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Sarah Kearns TERMINATED: 06/29/2016
Plaintiff Victoria Zadoyan TERMINATED: 06/29/2016

represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Sharon Keogh TERMINATED: 06/29/2016

Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY

Plaintiff Jane Doe #1 on her behalf and on behalf of all others similarly situated
Plaintiff Jane Doe #2 on her behalf and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Robert Vinson Eye (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY

Plaintiff
Jane Doe #3 on behalf of herself and on behalf of all others similarly situated

PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Arthur A. Benson , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Diana O. Salgado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Douglas N. Ghertner (See above for address) TERMINATED: 08/14/2017 LEAD ATTORNEY
Jamie Kathryn Lansford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Melissa Cohen (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Susan Mosier Secretary, Kansas Department of Health and Environment in her official capacity

represented by Brian M. Vazquez Kansas Department of Health & Environment - Suite 560 1000 SW Jackson, Suite 560 Topeka, KS 66612-1371 785-296-0696 Fax: 785-559-4272 Email: brian.vazquez@ks.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darian Paul Dernovish Shawnee County District Court 200 SE 7th Street, Suite 410 Topeka, KS 66603 785-296-0685 Fax: 785-296-7119 Email: darian.dernovish@ks.gov TERMINATED: 09/04/2018 LEAD ATTORNEY
Michael H. Park Consovoy McCarthy Park PLLC 3 Columbus Circle, 15th Floor New York, NY 10019 212-247-8006 Fax: 877-386-3993 Email: park@consovoymccarthy.com TERMINATED: 02/27/2019 LEAD ATTORNEY PRO HAC VICE
Patrick Strawbridge Consovoy McCarthy Park PLLC Boston Ten Post Office Square 8th Floor South PMB #706 Boston, MA 02109 617-227-0548 Email: patrick@consovoymccarthy.com

TERMINATED: 02/27/2019 LEAD ATTORNEY PRO HAC VICE
Sarah E. Warner Kansas Court of Appeals Kansas Judicial Center 301 SW 10th Avenue Topeka, KS 66612-1507 785-296-0571 Email: warners@kscourts.org TERMINATED: 06/02/2016 LEAD ATTORNEY
Shon D. Qualseth Office of Attorney General - Kansas 120 SW 10th Avenue Topeka, KS 66612-1597 785-368-8424 Fax: 785-291-3767 Email: shon.qualseth@ag.ks.gov TERMINATED: 06/02/2016 LEAD ATTORNEY
Stephen R. McAllister Office of United States Attorney KCKS 500 State Avenue, Suite 360 Kansas City, KS 66101 913-554-8088 Email: Stephen.McAllister@usdoj.gov TERMINATED: 06/02/2016 LEAD ATTORNEY
Toby Crouse Crouse, LLC 11184 Antioch, Suite 253 Overland Park, KS 66210 913-957-6832 Email: tcrouse@crousellc.com TERMINATED: 01/08/2019 LEAD ATTORNEY

Date Filed 05/04/2016
05/04/2016 05/04/2016 05/04/2016 05/04/2016 05/04/2016

# Docket Text
1 COMPLAINT with trial location of Kansas City (Filing fee $400, Internet Payment Receipt Number AKSDC-3767209.), filed by Sarah Kearns, Cheryl Lyon, Planned Parenthood of St. Louis Region, Planned Parenthood of Kansas and Mid-Missouri, Jane Doe #3, Sharon Keogh, Viola Johnson, Orrin Moore, Justine Flory, Victoria Zadoyan, Jane Doe #1, Jane Doe #2, Mary-Jo Drake, Kristin Metcalf-Wilson, Kathleen Kafka, Maria Ward. (Attachments: # 1 Exhibit A, Final Termination Letters, # 2 Exhibit B, Notices of Intent to Terminate)(Benson, Arthur) (Attachment A replaced on 5/5/2016 with redacted version per request of attorney.) (mm) Modified on 5/5/2016. (mm) (Entered: 05/04/2016)
2 CIVIL COVER SHEET by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 Attachment to Civil Cover Sheet)(Benson, Arthur) (Entered: 05/04/2016)
3 ENTRY OF APPEARANCE by Jamie Kathryn Lansford on behalf of All Plaintiffs. (Lansford, Jamie) (Entered: 05/04/2016)
4 DESIGNATION OF PLACE OF TRIAL filed by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan - trial to be held in Kansas City. (Benson, Arthur) (Entered: 05/04/2016)
5 CORPORATE DISCLOSURE STATEMENT by Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan identifying none as corporate parent. (Benson, Arthur) (Entered: 05/04/2016)
NOTICE OF JUDGE ASSIGNMENT: Case assigned to District Judge Julie A. Robinson and Magistrate Judge Gerald L. Rushfelt for all proceedings. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ydm) (Entered: 05/04/2016)

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6 MOTION for Protective Order by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Referred to Magistrate Judge Gerald L. Rushfelt.) (Benson, Arthur) (Entered: 05/04/2016)
7 MEMORANDUM IN SUPPORT of 6 MOTION for Protective Order by plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, MaryJo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 Index of Exhibits to Memorandum in Support of Protective Order, # 2 Exhibit A, Jane Doe Declarations, # 3 Exhibit B, Protective Orders)(Benson, Arthur) (Entered: 05/04/2016)
8 MOTION for attorney Diana Salgado to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC3767537.) by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Referred to Magistrate Judge Gerald L. Rushfelt.) (Benson, Arthur) (Entered: 05/04/2016)
9 AFFIDAVIT of Diana Salgado re: 8 MOTION for attorney Diana Salgado to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC-3767537.) by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 ECF Registration Form)(Benson, Arthur) (Entered: 05/04/2016)
10 MOTION for attorney Melissa Cohen to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC3767545.) by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria

05/04/2016 05/05/2016 05/05/2016
05/05/2016

Zadoyan. (Referred to Magistrate Judge Gerald L. Rushfelt.) (Benson, Arthur) (Entered: 05/04/2016)
11 AFFIDAVIT of Melissa Cohen re: 10 MOTION for attorney Melissa Cohen to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC-3767545.) by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 ECF Registration Form)(Benson, Arthur) (Entered: 05/04/2016)
12 MOTION for Temporary Restraining Order, and for Preliminary Injunction by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Lansford, Jamie) (Entered: 05/05/2016)
13 MEMORANDUM IN SUPPORT of 12 MOTION for Temporary Restraining Order by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 Appendix Index of Exhibits - TRO Memorandum, # 2 Exhibit 1, McQuade Declaration, # 3 Exhibit 2, Kogut Declaration, # 4 Exhibit 3, Smith Declaration, # 5 Exhibit 4, Ark. Amended and Sub. PI Order, # 6 Exhibit 5, U.S. Amicus Brief, # 7 Exhibit 6, CMS Guidance, # 8 Exhibit 7, 10th Circuit Order Granting Injunction)(Lansford, Jamie) (Attachment 4 replaced on 5/5/2016.) (mm) (Attachment 4 replaced on 5/5/2016 with redacted version per request of attorney.) (mm) Modified on 5/5/2016. (mm) (Entered: 05/05/2016)
14 MOTION to Certify Class by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Lansford, Jamie) (Entered: 05/05/2016)

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05/05/2016 05/05/2016 05/05/2016

15 MEMORANDUM IN SUPPORT of 14 MOTION to Certify Class by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Lansford, Jamie) (Entered: 05/05/2016)
16 CERTIFICATE OF SERVICE of Complaint and Exhibits, Motion for Protective Order and Memorandum in Support and Exhibits by Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Lansford, Jamie) (Entered: 05/05/2016)
17 CERTIFICATE OF SERVICE of Complaint and Exhibits; Motion for Protective Order and Memorandum and Exhibits A and B; Motion for TRO and PI and Memorandum and Exhibits in Support; Motion for Class Certification and Memorandum in Support, Proposed Order, and Copy of Certificate of Service on additional counsel by Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Lansford, Jamie) (Entered: 05/05/2016)
18 ENTRY OF APPEARANCE by Douglas N. Ghertner on behalf of Planned Parenthood of Kansas and Mid-Missouri. (Ghertner, Douglas) (Entered: 05/05/2016)
19 ENTRY OF APPEARANCE by Robert Vinson Eye on behalf of Orrin Moore, M.D., Kristin Metcalf Wilson, Maria Ward, Viola Johnson, Cheryl Lyon, Mary-Jo Drake, Justine Flory, Kathleen Kafka, Sarah Kearns, Victoria Zadoyan, and Sharon Keogh. (Eye, Robert) (Additional party names added on 6/7/2016 (mg). (Entered: 05/05/2016)
20 ORDER granting 8 Motion to Appear Pro Hac Vice of Diana O. Salgado for Jane Doe #1,Diana O. Salgado for Jane Doe #2,Diana O. Salgado for Jane Doe #3,Diana O. Salgado for Mary-Jo Drake,Diana O. Salgado for Justine Flory,Diana O. Salgado for Viola Johnson,Diana O. Salgado for Kathleen Kafka,Diana O. Salgado for Sarah Kearns,Diana O. Salgado for Sharon

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Keogh,Diana O. Salgado for Cheryl Lyon,Diana O. Salgado for Kristin Metcalf-Wilson,Diana O. Salgado for Orrin Moore,Diana O. Salgado for Planned Parenthood of Kansas and Mid-Missouri,Diana O. Salgado for Planned Parenthood of St. Louis Region,Diana O. Salgado for Maria Ward,Diana O. Salgado for Victoria Zadoyan pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gerald L. Rushfelt on 5/5/16. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (hw) (Entered: 05/05/2016)
21 ORDER granting 10 Motion to Appear Pro Hac Vice of Melissa Cohen for Jane Doe #1,Melissa Cohen for Jane Doe #2,Melissa Cohen for Jane Doe #3,Melissa Cohen for Mary-Jo Drake,Melissa Cohen for Justine Flory,Melissa Cohen for Viola Johnson,Melissa Cohen for Kathleen Kafka,Melissa Cohen for Sarah Kearns,Melissa Cohen for Sharon Keogh,Melissa Cohen for Cheryl Lyon,Melissa Cohen for Kristin Metcalf-Wilson,Melissa Cohen for Orrin Moore,Melissa Cohen for Planned Parenthood of Kansas and MidMissouri,Melissa Cohen for Planned Parenthood of St. Louis Region,Melissa Cohen for Maria Ward,Melissa Cohen for Victoria Zadoyan pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gerald L. Rushfelt on 5/5/16. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (hw) (Entered: 05/05/2016)
22 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) TRO Hearing set for 5/6/2016 at 09:15 AM in KC Courtroom 427 (JAR) before District Judge Julie A. Robinson. (bw) (Entered: 05/05/2016)
23 NOTICE OF CANCELLED HEARING: TRO hearing set for 5/6/2016 at 9:15 AM cancelled at the request of the parties. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bw) (Entered: 05/05/2016)
24 SCHEDULING ORDER re: 12 MOTION for Temporary Restraining Order. Defendants' Memorandum in Opposition is due

05/09/2016 05/09/2016 05/10/2016 05/10/2016
05/17/2016
05/17/2016
05/17/2016 05/17/2016

5/13/2016; plaintiffs' Reply Memorandum is due 5/16/2016. Preliminary Injunction Hearing set for 5/17/2016 at 02:00 PM in KC Courtroom 427 (JAR) before District Judge Julie A. Robinson. Signed by District Judge Julie A. Robinson on 5/6/2016. (bw) (Entered: 05/06/2016)
25 ENTRY OF APPEARANCE by Sarah E. Warner on behalf of Susan Mosier. (Warner, Sarah) (Entered: 05/09/2016)
26 ENTRY OF APPEARANCE by Shon D. Qualseth on behalf of Susan Mosier. (Qualseth, Shon) (Entered: 05/09/2016)
27 ENTRY OF APPEARANCE by Stephen R. McAllister on behalf of Susan Mosier. (McAllister, Stephen) (Entered: 05/10/2016)
28 AMENDED SCHEDULING ORDER re: Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 12 ): At the joint request of the parties, the Response is due on May 17, 2016 at 12:00 noon; the Reply is due on May 24, 2016 at 12:00 noon; and the preliminary injunction hearing is reset for May 25, 2016, at 1:00 PM in KC Courtroom 427. Signed by District Judge Julie A. Robinson on 5/10/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(as) (Entered: 05/10/2016)
29 NOTICE OF TELEPHONE STATUS CONFERENCE: Telephone Status Conference set for 5/17/2016 at 02:00 PM in before District Judge Julie A. Robinson. All parties who wish to participate in this telephone status conference are instructed to dial into the conference line. The CONFERENCE LINE is 1-888-363-4749 and the ACCESS CODE is 4697748#.(bw) (Entered: 05/17/2016)
30 MINUTE ENTRY for proceedings held before District Judge Julie A. Robinson: STATUS CONFERENCE held on 5/17/2016. Defendant's Response Brief is due 5/31/2016; Plaintiffs' Reply Brief is due 6/6/2016 at noon; Preliminary Injunction Hearing set for 6/7/2016 at 01:00 PM in KC Courtroom 427 (JAR) before District Judge Julie A. Robinson. (Court Reporter Kelli Stewart.) (bw) (Entered: 05/17/2016)
31 ENTRY OF APPEARANCE by Darian Paul Dernovish on behalf of All Defendants. (Dernovish, Darian) (Entered: 05/17/2016)
32 NOTICE OF WITHDRAWAL OF APPEARANCE by attorney Shon D. Qualseth as to All Defendants. (Qualseth, Shon) ** This Notice of Withdrawal is not in compliance with Local Rule 83.5.5(b) and therefore this attorney will not be withdrawn.

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05/31/2016 06/01/2016

Counsel may file a Certificate of Service of this Notice upon his actual clients (not attorneys of record) in order to be withdrawn.** (Entered: 05/17/2016)
33 NOTICE OF WITHDRAWAL OF APPEARANCE by attorney Sarah E. Warner as to All Defendants. (Warner, Sarah) ** This Notice of Withdrawal is not in compliance with Local Rule 83.5.5(b) and therefore this attorney will not be withdrawn. Counsel may file a Certificate of Service of this Notice upon his actual clients (not attorneys of record) in order to be withdrawn.** (Entered: 05/17/2016)
34 NOTICE OF WITHDRAWAL OF APPEARANCE by attorney Stephen R. McAllister as to All Defendants. (McAllister, Stephen) ** This Notice of Withdrawal is not in compliance with Local Rule 83.5.5(b) and therefore this attorney will not be withdrawn. Counsel may file a Certificate of Service of this Notice upon his actual clients (not attorneys of record) in order to be withdrawn.** (Entered: 05/17/2016)
35 PROTECTIVE ORDER granting 6 Motion for Protective Order. Signed by Magistrate Judge Gerald L. Rushfelt on 5/18/2016. (mg) (Entered: 05/19/2016)
36 SEALED DOCUMENT - Jane Doe Plaintiffs' Identities re: 35 Protective Order. (Ghertner, Douglas) (Entered: 05/23/2016)
37 RESPONSE by Defendant Susan Mosier re: 12 MOTION for Temporary Restraining Order and Preliminary Injunction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1-A, # 3 Exhibit 1-B, # 4 Exhibit 1-C, # 5 Exhibit 1-D, # 6 Exhibit 1-E, # 7 Exhibit 1-F, # 8 Exhibit 1-G, # 9 Exhibit 1-H, # 10 Exhibit 1-I, # 11 Exhibit 1-J, # 12 Exhibit 1-K, # 13 Exhibit 1-L, # 14 Exhibit 1-M, # 15 Exhibit 1-N, # 16 Exhibit 1-O, # 17 Exhibit 1-P, # 18 Exhibit 2, # 19 Exhibit 3, # 20 Exhibit 4, # 21 Exhibit 5, # 22 Exhibit Index)(Dernovish, Darian) (Entered: 05/31/2016)
38 Unopposed MOTION for Extension of Time to File Response as to 14 MOTION to Certify Class by Defendant Susan Mosier. (Dernovish, Darian) (Motion Referral Removed on 6/1/2016. (mg)) (Entered: 05/31/2016)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 38 Unopposed MOTION for Extension of Time to File Response as to 14 MOTION to Certify Class. The motion will be resolved by the District Judge.(ko) (Entered: 06/01/2016)

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06/03/2016 06/03/2016

39 ORDER granting 38 Unopposed Motion for Extension of Time to File Response re: 14 MOTION to Certify Class. The response deadline is extended to 6/3/2016. Signed by District Judge Julie A. Robinson on 6/1/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (as) (Entered: 06/01/2016)
40 CERTIFICATE OF SERVICE of Notice of Withdrawal of Appearance by Susan Mosier re: 33 Notice of Withdrawal of Appearance. (Warner, Sarah) (Entered: 06/02/2016)
41 CERTIFICATE OF SERVICE of Notice of Withdrawal of Appearance by Susan Mosier re: 32 Notice of Withdrawal of Appearance. (Qualseth, Shon) (Entered: 06/02/2016)
42 CERTIFICATE OF SERVICE of Notice of Withdrawal of Appearance by Susan Mosier re: 34 Notice of Withdrawal of Appearance. (McAllister, Stephen) (Entered: 06/02/2016)
43 CERTIFICATE OF SERVICE of Opposition to Motion for Temporary Restraining Order and Preliminary Injunction by Susan Mosier re: 37 Response to Motion. (Dernovish, Darian) (Entered: 06/03/2016)
44 MOTION for attorney Michael H. Park to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC3838146.) by Defendant Susan Mosier. (Referred to Magistrate Judge Gerald L. Rushfelt.) (Dernovish, Darian) (Entered: 06/03/2016)
45 AFFIDAVIT of Michael H. Park re: 44 MOTION for attorney Michael H. Park to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC-3838146.) by Susan Mosier. (Attachments: # 1 ECF Registration Form)(Dernovish, Darian) (Additional attachment added on 6/6/2016: # 2 Ink Signed Declaration) (mg) (Entered: 06/03/2016)
46 MOTION for attorney Patrick Strawbridge to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC3838190.) by Defendant Susan Mosier. (Referred to Magistrate Judge Gerald L. Rushfelt.) (Dernovish, Darian) (Entered: 06/03/2016)
47 AFFIDAVIT of Patrick Strawbridge re: 46 MOTION for attorney Patrick Strawbridge to appear pro hac vice (Pro hac vice fee $50, Internet Payment Receipt Number AKSDC-3838190.) by Susan Mosier. (Attachments: # 1 ECF Registration Form)(Dernovish,

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Darian) (Additional attachment added on 6/6/2016: # 2 Ink Signed Declaration) (mg) (Entered: 06/03/2016)
48 RESPONSE by Defendant Susan Mosier re: 14 MOTION to Certify Class. (Dernovish, Darian) (Entered: 06/03/2016)
49 REPLY to Response to Motion by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan re: 12 MOTION for Temporary Restraining Order, and for Preliminary Injunction. (Attachments: # 1 Appendix, # 2 Exhibit A, # 3 Exhibit B)(Ghertner, Douglas) (Entered: 06/06/2016)
50 CERTIFICATE OF SERVICE of Plaintiffs' Reply in Support of Motion for Preliminary Injunction by Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Ghertner, Douglas) (Entered: 06/06/2016)
51 MOTION to Strike Exhibits to Defendants' 37 Memorandum in Opposition to Plaintiffs' 12 Motion for a Temporary Restraining Order and a Preliminary Injunction by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Ghertner, Douglas) (Motion Referral Removed on 6/8/2016. (mg)) (Entered: 06/07/2016)
52 MEMORANDUM IN SUPPORT of 51 MOTION to Strike Exhibits to Defendants' 37 Memorandum in Opposition to Plaintiffs' 12 Motion for a Temporary Restraining Order and a Preliminary Injunction by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin MetcalfWilson, Orrin Moore, Planned Parenthood of Kansas and MidMissouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 Exhibit A)(Ghertner, Douglas) (Entered: 06/07/2016)

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53 ORDER granting 44 Motion to Appear Pro Hac Vice of Michael H. Park for Susan Mosier pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by District Judge Julie A. Robinson on 6/7/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bw) (Entered: 06/07/2016)
54 ORDER granting 46 Motion to Appear Pro Hac Vice of Patrick Strawbridge for Susan Mosier pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by District Judge Julie A. Robinson on 6/7/2016. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (bw) (Entered: 06/07/2016)
55 MINUTE ENTRY for proceedings held before District Judge Julie A. Robinson: taking under advisement 12 Motion for TRO. MOTION HEARING held on 6/7/2016 re: 12 MOTION for Temporary Restraining Order, and for Preliminary Injunction filed by Justine Flory, Mary-Jo Drake, Kathleen Kafka, Viola Johnson, Victoria Zadoyan, Cheryl Lyon, Planned Parenthood of Kansas and Mid-Missouri, Jane Doe #1, Orrin Moore, Jane Doe #3, Planned Parenthood of St. Louis Region, Kristin Metcalf-Wilson, Jane Doe #2, Sharon Keogh, Sarah Kearns, Maria Ward. (Court Reporter Kelli Stewart.) (bw) (Entered: 06/09/2016)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 51 MOTION to Strike Exhibits to Defendants' 37 Memorandum in Opposition to Plaintiffs' 12 Motion for a Temporary Restraining Order and a Preliminary Injunction. The motion will be resolved by the District Judge.(ko) (Entered: 06/08/2016)
56 MEMORANDUM IN OPPOSITION by Defendant Susan Mosier re: 51 MOTION to Strike Exhibits to Defendants' 37 Memorandum in Opposition to Plaintiffs' 12 Motion for a Temporary Restraining Order and a Preliminary Injunction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Dernovish, Darian) (Entered: 06/10/2016)

06/13/2016

57 NOTICE of Letter Regarding Individual Providers by Susan Mosier. (Attachments: # 1 Exhibit)(Dernovish, Darian) (Entered: 06/13/2016)

06/14/2016

58 REPLY to Response to Motion by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan re: 14 MOTION to Certify Class. (Ghertner, Douglas) (Entered: 06/14/2016)

06/24/2016

59 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and For Lack of Subject-Matter Jurisdiction by Defendant Susan Mosier. (Dernovish, Darian) (Entered: 06/24/2016)

06/24/2016

60 MEMORANDUM IN SUPPORT of 59 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and For Lack of SubjectMatter Jurisdiction by Defendant Susan Mosier. (Dernovish, Darian) (Entered: 06/24/2016)

06/29/2016

61 NOTICE OF VOLUNTARY DISMISSAL by Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Maria Ward, Victoria Zadoyan. (Eye, Robert) (Entered: 06/29/2016)

07/05/2016

62 NOTICE of Letter Regarding Merger by Susan Mosier. (Attachments: # 1 Exhibit 1)(Dernovish, Darian) (Entered: 07/05/2016)

07/05/2016 63

MEMORANDUM AND ORDER. Plaintiffs' 12 Motion for Temporary Restraining Order and Preliminary Injunction is granted. Defendant, her employees, agents, and successors in office are hereby restrained from terminating the Medicaid provider agreements of PPKM and PPSLR. Defendant's 59 Motion to Dismiss is denied in part and taken under advisement in part. Plaintiffs' 14 Motion to Certify Class is denied without prejudice; and Plaintiffs' 51 Motion to Strike Exhibits is denied. Signed by District Judge Julie A. Robinson on 7/52016. (mg) (Entered: 07/05/2016)

07/13/2016

64 NOTICE of Change of Name by Planned Parenthood of Kansas and Mid-Missouri. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Ghertner, Douglas) (Entered: 07/13/2016)

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65 MEMORANDUM IN OPPOSITION by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan re 59 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and For Lack of Subject-Matter Jurisdiction (Ghertner, Douglas) (Entered: 07/15/2016)
66 REPLY to Response to Motion by Defendant Susan Mosier re: 59 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and For Lack of Subject-Matter Jurisdiction (Dernovish, Darian) (Entered: 07/29/2016)
67 NOTICE OF APPEAL as to 63 Memorandum & Order, by Defendant Susan Mosier. Filing fee $ 505, Internet Payment Receipt Number AKSDC-3911007. (Dernovish, Darian) (Entered: 08/03/2016)
68 NOTICE OF CHANGE OF ADDRESS by Diana O Salgado (Ghertner, Douglas) Modified on 8/4/2016 (ydm). (Entered: 08/03/2016)
69 PRELIMINARY RECORD ON APPEAL transmitted to 10CCA re 67 Notice of Appeal. (Attachment: # 1 Preliminary Record)(kao) (Entered: 08/03/2016)
70 APPEAL DOCKETED in 10CCA on 8/3/16 and assigned Appeal No. 16-3249 re 67 Notice of Appeal. (kao) (Entered: 08/03/2016)
71 TRANSCRIPT ORDER FORM: Requesting Transcript of TRO Motion Hearing - June 7, 2016 filed by Susan Mosier re 67 Notice of Appeal - Final Judgment. (Dernovish, Darian) (Entered: 08/18/2016)
72 TRANSCRIPT ORDER FORM by Court Reporter Kelli Stewart ordering transcripts of TRO Motion Hearing, 06/07/2016 re 67 Notice of Appeal - Final Judgment filed by Susan Mosier () Transcript due by 9/15/2016. (ks) (Entered: 08/26/2016)
73 TRANSCRIPT ORDER FORM: Requesting Transcript of Telephone Status Conference 05/17/2016 filed by Planned Parenthood of Kansas and Mid-Missouri re 67 Notice of Appeal Final Judgment. (Ghertner, Douglas) (Entered: 08/29/2016)

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74 TRANSCRIPT ORDER FORM by Court Reporter Kelli Stewart ordering transcripts of Telephone Status Conference, 05/17/2016 re 67 Notice of Appeal - Final Judgment filed by Susan Mosier () Transcript due by 9/15/2016. (ks) (Entered: 08/31/2016)
75 TRANSCRIPT of Telephone Status Conference (21 pgs) held 05/17/2016 before Judge Julie A. Robinson, Court Reporter Kelli Stewart, 913-735-2334, kelli_stewart@ksd.uscourts.gov. Transcript purchased by: Mr. Douglas N. Ghertner.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ksd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Release of Transcript Restriction set for 12/14/2016. (ks) (Main Document 75 replaced on 9/23/2016 to correct date on the header of the transcript) (bw). (Entered: 09/15/2016)
76 TRANSCRIPT of Motion for Temporary Restraining Order and Preliminary Injunction Hearing (Doc. #12) (112 pgs) held 06/07/2016 before Judge Julie A. Robinson, Court Reporter Kelli Stewart, 913-735-2334, kelli_stewart@ksd.uscourts.gov. Transcript purchased by: Mr. Michael H. Park.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.ksd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for

09/16/2016 08/11/2017 03/27/2018 08/31/2018
09/04/2018 12/10/2018 01/08/2019 01/23/2019
02/06/2019

Release of Transcript Restriction. After that date it may be obtained through PACER. Release of Transcript Restriction set for 12/14/2016. (ks) (Entered: 09/15/2016)
77 LETTER TO 10CCA stating record is complete re 67 Notice of Appeal. (Appeal No. 16-3249) (kao) (Entered: 09/16/2016)
78 NOTICE of Withdrawal of Counsel by Planned Parenthood of Kansas and Mid-Missouri (Ghertner, Douglas) (Entered: 08/11/2017)
79 LETTER FROM 10CCA advising petition for writ of certiorari filed re 67 Notice of Appeal - Final Judgment; assigned Supreme Court No. 17-1340. ( Appeal No. 16-3249) (kao) (Entered: 03/27/2018)
80 MINUTE ORDER REASSIGNING CASE: Case reassigned to Magistrate Judge Kenneth G. Gale for all further proceedings. Magistrate Judge Gerald L. Rushfelt no longer assigned to case. Signed by deputy clerk on 8/31/18. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(hw) (Entered: 08/31/2018)
81 WITHDRAWAL OF COUNSEL by Darian P. Dernovish and ENTRY OF APPEARANCE OF SUBSTITUTED COUNSEL by Toby Crouse on behalf of Susan Mosier. (Crouse, Toby) (Entered: 09/04/2018)
82 LETTER FROM 10CCA advising petition for writ of certiorari denied re 67 Notice of Appeal - Final Judgment; assigned Supreme Court No. 17-1340 (Appeal No. 16-3249). (tvn) (Entered: 12/10/2018)
83 WITHDRAWAL OF COUNSEL by Toby Crouse and ENTRY OF APPEARANCE OF SUBSTITUTED COUNSEL by Brian M. Vazquez on behalf of All Defendants (Vazquez, Brian) (Entered: 01/08/2019)
84 APPEAL MANDATE from 10CCA: REMANDING to the District Court. The judgment is affirmed in part and vacated in part. The case is remanded to the United States District Court for the District of Kansas for further proceedings in accordance with the opinion of this court (Appeal No. 16-3249). (Attachments: # 1 Transmittal Letter)(tvn) (Entered: 01/23/2019)
85 NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING Telephone Status Conference set for 2/27/2019 at 02:00

PM (CST) before Magistrate Judge Kenneth G. Gale. Counsel who plan to participate should call 888-363-4749 and enter access code 5407703. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 02/06/2019)

02/25/2019

MINUTE ENTRY Reset Hearings: Status Conference RESET for 4/2/2019 at 10:00 AM by telephone before Magistrate Judge Kenneth G. Gale. Counsel who plan to participate should call 888363-4749 and enter access code 5407703 for the conference. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 02/25/2019)

02/27/2019

86 NOTICE OF WITHDRAWAL OF APPEARANCE by attorney Michael Park as to All Defendants (Vazquez, Brian) (Entered: 02/27/2019)

02/27/2019

87 NOTICE OF WITHDRAWAL OF APPEARANCE by attorney Patrick Strawbridge as to All Defendants (Vazquez, Brian) (Entered: 02/27/2019)

04/02/2019

MINUTE ENTRY for proceedings held before Magistrate Judge Kenneth G. Gale: STATUS CONFERENCE held on 4/2/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (aw) (Entered: 04/03/2019)

04/03/2019

88 ORDER. A Stipulation of Dismissal shall be filed on or before April 12, 2019. Within 60 days of filing a Stipulation of Dismissal, Plaintiff may file a motion for attorney fees. Signed by Magistrate Judge Kenneth G. Gale on 4/3/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(aw) (Entered: 04/03/2019)

04/12/2019

89 STIPULATION OF DISMISSAL by Susan Mosier. (Attachments: # 1 Exhibit)(Vazquez, Brian) (Entered: 04/12/2019)

04/15/2019

90 ORDER re 89 Stipulation of Dismissal filed by Susan Mosier. The Joint Stipulation to Dismiss is approved. Plaintiffs' counsel may file a motion forattorney fees on or before June 11, 2019 if the matter has not been resolved between the parties. Signed by Chief District Judge Julie A. Robinson on 4/15/19. (hw) (Entered: 04/15/2019)

04/16/2019

***Civil Case Terminated pursuant to 90 Order.(hw) (Entered: 04/16/2019)

06/04/2019 91

Consent MOTION for extension of time by Plaintiffs Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl

06/05/2019 06/06/2019 08/12/2019 08/13/2019

Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan (Lansford, Jamie) (Entered: 06/04/2019)
MOTION REFERRAL to Magistrate Judge REMOVED as
to: 91 Consent MOTION for extension of time . The motion will be resolved by the District Judge.(df) (Entered: 06/05/2019)
92 ORDER granting as unopposed 91 Motion for Extension of Time to File. Plaintiffs' deadline to file a motion for attorneys' fees is extended to August 12, 2019. Signed by Chief District Judge Julie A. Robinson on 6/6/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ams) (Entered: 06/06/2019)
93 STIPULATION as to Attorneys' Fees, Expenses, and Costs by Jane Doe #1, Jane Doe #2, Jane Doe #3, Mary-Jo Drake, Justine Flory, Viola Johnson, Kathleen Kafka, Sarah Kearns, Sharon Keogh, Cheryl Lyon, Kristin Metcalf-Wilson, Orrin Moore, Planned Parenthood of Kansas and Mid-Missouri, Planned Parenthood of St. Louis Region, Maria Ward, Victoria Zadoyan. (Attachments: # 1 Exhibit A Fees and Costs of Counsel)(Lansford, Jamie) (Entered: 08/12/2019)
94 ORDER re 93 Stipulation, filed by Justine Flory, Mary-Jo Drake, Kathleen Kafka, Viola Johnson, Victoria Zadoyan, Cheryl Lyon, Planned Parenthood of Kansas and Mid-Missouri, Jane Doe #1, Orrin Moore, Jane Doe #3, Planned Parenthood of St. Louis Region, Kristin Metcalf-Wilson, Jane Doe #2, Sharon Keogh, Sarah Kearns, Maria Ward. The Court approves the stipulation as to attorneys' fees, expenses, and costs set forth in Doc. 93. Signed by Chief District Judge Julie A. Robinson on 8/13/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(ams) (Entered: 08/13/2019)

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