### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 30987

PLANNED PARENTHOOD OF GULF COAST, INCORPORATED; JANE DOE #1; JANE DOE #2; JANE DOE #3,

Plaintiffs

- Appellees

v. REBEKAH GEE, Secretary, Louisiana Department of Health and Hospitals,

Defendant

- Appellant

Appeal from the United States District Court for the Middle District of Louisiana

Before WIENER, PRADO, and OWEN, Circuit Judges

. WIENER, Circuit Judge : After this panel filed a unanimous opinion affirming the district court and a judge on this court then held the mandate, a panel member changed her position from agreeing to affirm the district court to advocating reversal. We therefore withdraw our original, unanimous opinion and replace it with two opinions: t his one from the panel majority and another from our now

dissenting panel member. NARROW FRAMEWORK First, the one and only act of the d istrict court that is at issue in this appeal is its temporary injunction, granted at the outset of this litigation to United States Court of Appeals Fifth Circuit 

### FILED June 29, 2017 Lyle W. Cayce Clerk Case: 15-30987 Document: 00514055295 Page: 1 Date Filed: 06/29/2017No. 15

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2 preserve the status quo among all the parties pending resolution of the substantive issues of this case. The parties to whom we refer are the defendant, the State of Louisiana, and the plaintiffs, Planned Parenthood of Gulf Coast, Incorporated (“PPGC”) and three of its patients, each of whom is so financially disadvantaged as to qualify for Medicaid. The dist rict court granted its injunction in recognition of the fact that, if the State’s revocation of PPGC ’ s Medi caid qualification was to become effective immediately, only to be reversed after months o r years of litigation, the clinics’ p oorest patients would nevertheless have suffer ed permanent harm. Second, the State is not attempting to compl etely shut down the two PPGC clinics in question; it seeks only to deny Medicaid coverage for the clinics’ treatment of their most needy patients, i.e., t hose who qual ify for
Medicaid. It is only that threatened act of the State that the district court has temporarily enjoined pending the orderly disposition of the Medi caid issue in this litigation. The merits of this case are not now before us; this litigation has
not even reached the summary judgment stage, much less the merits, but only the initial, Rule 12(b) stage. Third, neither of PPGC’s two Louisiana clinics threatened here with
Medica id decertification by the State perform s abortions or has ever participated in a program invol ving donation of fetal tissue. We emphasize this facet of the litigation’s framework for the benefit of those of our colleagues and our readership whose overarching anathema to Planned Parenthood is grounded in their opposition to abortions or donations of fetal tissue, or both. It is within this narrow framework that we now address the sole issue of this appeal, the district court’s pre

- merits, status quo, injunction. Case: 15-30987 Document: 00514055295 Page: 2 Date Filed: 06/29/2017No. 15

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3 BACKGROUND Medicaid’ s free

- choice

- of

- provider p rovision, 42 U.S.C. § 1 396a(a)(23), guarantees that Medicaid beneficiaries will be able to obtain medical care from
the qualified and willing medical provider of their choice. In response to secretly recorded videos released by the anti

- abortion Center for Medical Progress dep icting conversations with employees of an unrelated Planned Parenthood in a different state , Defendant

- Appellant Louisiana Department of Health and Hospitals (“LDHH”) terminated only the Medicaid provider agreement of Plaintiff

- Appellee PPGC , leaving it li censed to provide its services to any and all non

- Medicaid patients

. PPGC and the individual Plaintiffs

- Appellees Jane Doe #1, Jane Doe #2, and Jane Doe #3 (the “Individual Plaintiffs”)

— women who are Medicaid beneficiaries and receive
medical care provided at one of PPGC’s Louisiana facilities

— ( collectively “the Plaintiffs” ) filed this suit against LDHH under 42 U.S.C. § 1983 , alleging violations of 42 U.S.C. § 1396a(a)(23) and the First and Fourteenth Amendments of the U.S. Constitution. Each Individual Pl aintiff seek s to continue receiv ing care from PPGC’s facilities, and each specifically contend s that LDHH’s termination action will deprive her of access to the qualified and willing provider of her choice, in violation of Medicaid’s free

- choice

- of

- provide r provision. The district court entered a preliminary injunction against LDHH’s termination of PPGC’s Medicaid provider agreements pending the eventual outcome of this litigation on the merits . LDHH appeals. FACTS A. Plaintiffs

-Appellees
1. PPGC is a non
- profit corporation domiciled in Texas and licensed to do business in Louisiana. It operates two clinics in Louisiana: the Baton Rouge Case: 15-30987 Document: 00514055295 Page: 3 Date Filed: 06/29/2017No. 15

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4 Health Center and the New Orleans Health Center. Both centers participate in Louisiana’s Medicaid program. PPGC’s two clinics provide care to ove r 5200 Medicaid beneficiaries , who comprise more than half of the patients they serve
in Louisiana. Both clinics offer physical exams, contraception and contraceptive counseling, screening for breast cancer, screening and treatme nt for cervical cancer, testing and treating specified sexually transmitted diseases, pregnancy testing and counseling, and other listed procedures, including colposcopy. Again, n e ither clinic performs abortions n or has either ever participated in a fetal tissue donation program.
2. Doe #1 relies on PPGC’s health center in Baton Rouge for her annual examinations. According to Doe #1, PPGC also helped her obtain treatment for cancer in December 2013. Her cancer is now in remission, but it has rendered
her un able to take birth control pills. She does not wish to have any more children and continues to rely on PPGC to advise her on future contraception options. Doe #1 wishes to continue receiving health care at PPGC because she does not know of any other provid ers that will take her insurance . She prefers
to receive care at PPGC because she is comfortable with the staff, trusts the providers, and is easily able to make appointments.
3. Doe #2 is enrolled in Louisiana’s Take Charge Plus program 1 and has received care at PPGC’s health center in New Orleans since 2012. Until health issues left her unable to work full time, at which point she lost her private
health insurance, Doe #2 had used a private obstetrician

- gynecologist. That physician stopped treating Doe # 2 once she lost her private insurance. Doe #2 now visits PPGC every year for her annual gynecological examination. She

1 The Take Charge Plus program provides family planning services to eligible women and men with incomes at or below 138 percent of the federal poverty level. Case: 15-30987 Document: 00514055295 Page: 4 Date Filed: 06/29/2017No. 15

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5 prefers to continue receiving it from PPGC and does not know where else she
could obtain this care under Medicaid.
4. Doe #3 is a patien t of PPGC’ s health center in Baton Rouge. There, she receives pap smears, testing for sexually transmitted diseases, and cancer screenings. Doe #3 prefers recei ving care at PPGC and finds it is easy to make appointments there. She states that it “is very d ifficult to find doctors in Baton Rouge who will accept Medicaid.” Doe #3 needed to visit another Baton Rouge clinic for a necessary gynecolo gical procedure, but was given an appointment for a day seven months later

. B. History
In July 2015, the anti

- abo rtion Center for Medical Progress , released a series of undercover videos and allegations purporting to show that Planned Parenthood and its affiliates were contracting to sell aborted human fetal tissue and body parts. At a later hearing, t he district cou rt found that “none of the conduct in question [depicted in the videos] occurred at PPGC’s two Louisiana facilities.” Nevertheless, t hen

- Louisiana Governor Bobby Jindal directed LDHH and the State Inspector General to investigate PPGC. On July 15, 2015 , th en
- secretary of LDHH, Kathy Kl i e bert, wrote to PPGC requesting responses to a range of questions about its activities. PPGC promptly responded on July 24, 2015, relevantly stating that (1) it “does not offer abortion services,” and (2) it does not sell or donate any unborn baby organs or body parts. PPGC acknowledged that Planned Parenthood Center for Choice, Inc. (“PPCFC”), a separate corporation, 2 provides abortions in Texas, but that PPCFC does not operate a fetal tissue donation program.

2 As PPGC’s letter indicates, PPCFC was operated as a division of PPGC until 2005, at which point i t was separately incorporated in Texas. PPCFC also has a Certificate of Authority to Transact Business in Louisiana. Case: 15-30987 Document: 00514055295 Page: 5 Date Filed: 06/29/2017No. 15

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6 Secretary Kl i e bert wrote to PPGC on August 4, 2015, claiming that several of PPGC’s responses “directly contradict” the recently released videos. According to her, one video taken in Houston, Texas , depicted Melissa Farrell, Director of Research at PPGC, “discuss[ing] existing contracts for fetal tissue donation for the pur pose of research.” Secretary Kl i e bert emphasized that LDHH “is extremely concerned that [PPGC or PPCFC], or both have not o nly participated in the sale or donation of fetal tissue, but also deliberately misinformed [LDHH] about this practice in its July 24 response letter.” In that same letter, Secretary Kl i e bert requested more information about the practices of PPGC and PPCFC

. PPGC responded on August 14, 2015, repeating that neither PPGC nor PPCFC sells or donates fetal tissue. P PGC explained that the secretly recorded conversation “does not discuss existing contracts for fetal tissue donation,” but rather, “concerns a list o f tissue specimens a major Texas research institution had expressed interest in obtaining, in discussions about a possible future fetal tissue donation program.” In the midst of these communications, LDHH notified PPGC on August 3, 2015, that it would term inate PPGC’s Medicaid provider agree ments. Secretary Kl i e bert stat ed no basis for the termination. She noted only that under La. R.S. § 46:437.11 the provider agreements are voluntary contracts subject to termination “by either party 30 days after receipt of written notice

. ” That same day, then

- Governor Jindal published the following press release: “Governor Jindal and DHH decided to give the required 30

- day notice to terminate the Planned Parenthood Medicaid provider contract because
Planned Parenthood doe s not represent the values of the State of Louisiana in regards to respe cting human life.” Secretary Kl i e bert’s letter notified PPGC of its right to a hearing and stated that PPGC may request an administrative Case: 15-30987 Document: 00514055295 Page: 6 Date Filed: 06/29/2017No. 15

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7 appeal within 30 days. At a subsequent hearing before the district court, LDHH’s counsel clarified that this termination action by the state did not relate to PPGC’s ability to continue providing adequate care to its non
Medicaid patients. 3 C. The Instant Proceedings On August 25, 2015, the Plaintiffs filed suit under 42 U.S.C. § 1983, contending that LDHH’s termination of PPGC’s Medicaid provider agreements violated Medicaid’s free

- choice

- of

- provider requirement, 42 U.S.C. § 1396a(a)(23), and the U.S. Constitution. On that date, the Plainti ffs also moved for entry of a temporary restraining order and preliminary injunction , which the district court eventually granted. T he validity of t hat preliminary injunction is the one and only issue of this appeal

. LDHH voluntari ly rescinded the August 4 , 2015 “at will” termination letters on September 14, 2015. On that same day, LDHH advised the district court by letter that it believed that the Plaintiffs ’ claims and pending motions
were now moot. But the very next day, September 15, 2015, LDHH notified PPGC that it was “terminating/revoking” PPGC’s Medicaid provider agreements for “cause” under La. R.S. §§ 46:437.11 (D)(2) and 437.14 , and Title 50 of the Louisiana Administrative Code

. LDH H also informed PPGC that it

3 The district court asked LDHH’s counsel several questions pertaining to this issue:

THE COURT: All right. So the reason [for LDHH’s termi nation action] is unrelated to the ability of these two facilities to provide adequate care to their patients; is that true?

MR. RUSSO: That I would agree with, yes, sir.

THE COURT: So Ms. Kliebert’s position is that these are terminated without a relationship of any kind to the adequacy of care; correct?

MR. RUSSO: Correct, at this time, your honor, exactly. Case: 15-30987 Document: 00514055295 Page: 7 Date Filed: 06/29/2017No. 15

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8 could request an informal hearing or s uspensive admin istrative appeal within 30 days ( PPGC has not requested either a hearing or an administrative appeal )

. LDHH further notified PPGC that the effected terminations would be suspended during this 30

- day period.
LDHH has advanc ed three grounds f or termination. First, LDHH identified PPGC’s settlement of a qui tam False Claims Act (“FCA”) claim in Reynolds v. Planned Parenthood Gulf Coast, Inc. , 4

— in which PPGC disclaimed
all liability

— and its failure to notify LDHH of that settlement and any corresponding violations . LDHH categorized these act s as “fraud.” LDHH identified a second qui tam FCA claim against PPGC in Carroll v. Planned Parenthood Gulf Coast

. 5 At the time of the proceedings before the district court in the instant case, t he court in Carroll had denied PPGC’s motion to dismiss. LDHH identified the Carroll suit as another example of PPGC’s failure to comply with applicable laws and to notify LDHH of such violations. PPGC subsequently settled that suit , again disclaiming all liability. Second, LDHH stated that PPGC’s responses in its July and August letters contained misrepresentations. LDHH did not identify any particular misrepresentations either in its August 3 termination letter or before the district court. At most, LDHH urged that PPGC’s responses differed from the content of the videos released by the Center for Medical Progress. Finally, LDHH claimed that PPGC was subject to termination because it was being investigated by LDHH and the Louisiana Office of Inspector Gene ral. On October 7, 2015, the Plaintiffs filed a motion to amend their complaint, seeking to continue asserting their claims under Medicaid’s free

-

4 No. 9:09

- cv
- 124

- RC (E.D. Tex.).
5 No. 4:12

- cv
- 03505 (S.D. Tex.). Case: 15-30987 Document: 00514055295 Page: 8 Date Filed: 06/29/2017No. 15

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9 choice

- of

- provider provision and to add claims under the First and Fourteenth Amendments of the U.S. Constitut ion. Two days later, t he Plaintiffs also renewed their request for a temporary restraining order and preliminary injunction. LDHH moved to dismiss the Plaintiffs’ amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). After a heari ng on the parties’ motions, the district court granted in part the Plaintiffs’ motion for temporary restraining order and preliminary injunction and denied LDHH’s motion to dismiss. The district court held a subsequent telephone conference with the parties , at which point both sides consented to converting the temporary restraining order to a preliminary injunction to allow for an immediate appeal. The parties agreed that no evidentiary matters required further discovery.
The district court issu ed an amende d ruling and order in October 2015, granting the Plaintiffs’ renewed motion for temporary restraining order and for preliminary injunction and denying LDHH’s motion to dismiss. T he district
court thus preliminarily enjoined LDHH from terminating PPGC’s Med icaid provider agreements during the pendency of this litigation . In a lengthy and
detailed opinion, the district court rejected LDHH’s standing, ripeness, and abstention challenges to the Plaintiffs’ claims. The court also found sufficient grounds to issu e a preliminary injunction on the basis of the Individual Plaintiffs’ claim under Medicaid’s fre e
- choice

- of

- provider provision. T he district court specifically held that 42 U.S.C. § 1396a(a)(23) affords the Individual Plaintiffs a private right of action enforceable under 42 U.S.C. §
1983. The court expressly dec l ined to determine whether PPGC possesses such a right. The court then held that the Individual Plaintiffs’ claim s are substantially likely to succeed and that the remaining factors

— irreparable Case: 15-30987 Document: 00514055295 Page: 9 Date Filed: 06/29/2017No. 15

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10 in jury to the P laintiffs, balancing of the injury to the P laintiffs versus the harm to the defendant, and the public interest

— weigh in favor of issuing a preliminary injunction. LDHH appealed, contending that the district court erred in concluding
that the I ndividual Plaintiffs have standing and that their claims are ripe for review. It further asserts that the district court erred in entering a preliminary injunction. JUSTICIABILITY Article III of the U.S. Constitutio n extends the federal judicial p ower to “Cases” and “Controversies.” 6 The justiciability requirements of s tanding and ripeness animate Article III’s cases

- and

- controversies requirement in this appeal . LDHH maintain s that the Plaintiffs lack standing to bring their claim s and that their claim s are not ripe for review. T he district court issued the preliminary injunction as to the Individual Plaintiffs’ claim s alone, so we confine our analysis to the justiciability of those p laintiffs ’ claim s

. 7 A. Standing
LDHH first aver s that the Individual Pl aintiffs lack standing to assert
their claims. We review challenges to standing de novo

. 8 To establish stan ding, a plaintiff must prove that (1) he has sustained an “injury in fact” that is both (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical,” (2) there is “a causal connection between the injury and the conduct complained of,” and (3) a favorable deci sion is likely to redress the

6 U.S. C ONST

. art. III, § 2, cl. 1.
7 Therefore, we decline to address LDHH’s arguments related to the justiciability of PPGC’s claims.
8 League of United Latin Am. Citizens, Dist. 19 v. City of Boerne , 659 F.3d 421, 428 (5th Cir. 2011). Case: 15-30987 Document: 00514055295 Page: 10 Date Filed: 06/29/2017No. 15

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11 injury. 9 “An allegation of future injury may suffice if the threatene d injury is certainly impending or there is a substantial risk that the harm will occur.” 10
LD HH posits that the Individual Plaintiffs have failed to demonstr ate an injury because PPGC’s Medicaid provider agreements have not yet been terminated and the Individual Plaintiffs have not yet been denied access to PPGC’ s services. LDHH further maintain s that any injury will result not from its actions, but from PPGC’ s failure to avail itself of its administrative appeal rights.
T he Individual Plaintiffs counter that they have standing because LDHH has acted to terminate PPGC’s Medicaid provider agreements, which
will (1) deny them access to the hea lthcare services the y seek and (2) deny them a legal right, viz. , access to the qualified and willing provider of their
choice under 42 U.S.C. § 1396a(a)(23). Stated differently , the Indiv idual Plaintiffs will sustain a concrete and particular injury (denial of services from PPGC and a legal right to the qual ified provider of their choice) caused by LDHH ( termination of PPGC’s Medicaid provider agreements) that will be redressed by a favorable decision (an injunction barring LDHH from terminating PPGC’s Medicaid provider agreements).
At t he heart of LDHH’s challenge to the Individual Plaintiffs’ standing
is its insistence that , because PPGC’s Medicaid provider agreements have not yet been terminated, the Individual Plaintiffs have not sustained injury. This

argum ent ignores the well

- established principle that a threatened injury may

9 Lujan v. Def s

. of Wildlife , 504 U.S. 555, 560

– 61 (1992) (internal quotation marks and citations omitted).
10 Susan B. Anthony List v. Driehaus , 134 S. Ct. 2334, 2341 (2014) (internal quotation marks omitted) (quoting Clapper v. Amnesty Int’l USA , 133 S. Ct. 1138, 1147, 1150, n.5 (2013)). Case: 15-30987 Document: 00514055295 Page: 11 Date Filed: 06/29/2017No. 15

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12 be sufficient to establish standing. 11 As LDHH itself say s, “[t]hreatened injury must be certainly impending to constitute injury in fact.” 12 L DHH has notified PPGC that it has terminate d PPGC’s Medicaid provider agreements , but has suspended the effect of those terminations pending PPGC’s decision whether to pursue an administrative appeal. PPGC has stated that it will not avail itself of administrative appeal. In other words, LDHH has a lready acted to terminate PPGC’s Medicaid provider agreements; only the effect of that termination has yet to be implemented

. And, i mportantly, the 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. 13 The Individual Plaintiffs thus need not wait to file suit until PPGC is forced to close
its doors to them and all other Medicaid beneficiaries. LDHH also argues that the Individual Plaintiffs have not and will not sustain any legal injury

— presumably even when the termination of PPGC’s provider agreements takes effect

— because the Individual Plaintiffs have a right to choose only a “qualified” provi der , and PPGC is no longer a qualified provider. This contention turns on the sole substantive question before us on appeal, and w e decline to allow LDHH to bootstrap this issue into our standing inquiry. W e also note that a violation of a statutor y right, even standing alone, may be sufficient to satisfy the injury requirement: “Congress may create a statutory right of entitlement the alleged deprivation of which can confer

11 See Comsat Corp. v. FCC , 250 F.3d 931, 936 (5th Cir. 2001) (“A threatened injury satisfies the injury in fact requirement so long as that threat is real rather than speculative.”); Loa

- Herrera v. Trominski , 231 F.3d 984, 988 (5th Cir. 2000) (“Mere threatened i njury is sufficient, and the threat in this case is real.”).
12 Clapper , 133 S. Ct. at 1147

– 48 (2013) (internal quotation marks omitted) (quoting Whitmore v. Ark. , 495 U.S. 149, 158 (1990)).
13 LDHH concedes separately that “exhaustion is often not a barrier to a cl aim based on 42 U.S.C. § 1983.” Case: 15-30987 Document: 00514055295 Page: 12 Date Filed: 06/29/2017No. 15

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13 standing to sue even where the plaintiff would have suffered no judicially cognizab le injury in the absence of statute.” 14 LDHH finally contends that even if an injury exists, it is not fairly
traceable to LDHH . Instead, asserts LDHH , PPGC’s decision not to avail itself

o f an administrative appeal will alone be the cause of the Individual Plaintiffs’ injury . T he Supreme Court has warned against “wrongly equat[ing] injury ‘fairly traceable’ to the defendant with injury as to which the defendant’s actions are the very last step in the chain of causation.” 15 Although injury resulting from “the independent action of some third party not before the court” will not suffice, “that does not exclude injury produced by determinative or coercive effect upon the action of someone else.” 16 LDHH is essentially asking

us to conduct a proximate cause analysi s to determine the immediate cause of the Individual Plaintiffs’ injuries, but this is not what the Supreme Court requires. 17 W e therefore affirm the district court’s determination that the Individual Plaintiffs have standing to pursue their claims.
B. Ripe ness LDHH next asserts that the Individual Plaintiffs’ clai ms are not ripe. I t

argues that those claims are not fit for review because no injury has occurred
and that the administrative process and the factua l development it entails are still pending. LDHH goes so far as to claim that , for an issue to be ripe for review, this court requires a full administrative record

.

14 Warth v. Seldin , 422 U.S. 490, 514 (1975); see also Spokeo v. Robins , 136 S. Ct. 1540, 1549 (2016) (“Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfi es the injury

- in

- fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.”).
15 Bennett v. Spear , 520 U.S. 154, 168

– 69 (1997).
16 Id. at 169 (internal citations omitted) (emp hasis in original)

. 17 See City of Boerne , 659 F.3d at 431 (“The causation element does not require a party to establish proximate causation, but only requires that the injury be ‘fairly traceable’ to the defendant.” (citing Bennett , 520 U.S. at 168

– 69) )

. Case: 15-30987 Document: 00514055295 Page: 13 Date Filed: 06/29/2017No. 15

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14 We review de novo the issue of ripeness

. 18 In evaluating whether a case is ripe for adjudication, we balance “(1) the fitness of the issues for judicial decision, and (2) the hardship to the parties of withholding court consideration.” 19 “A case is generally ripe if any remaining questions are purely legal ones.” 20 We conclude that the Individual Plaintiffs’ claims are ripe for review
becaus e th e issues before us present purely legal ques tions. LDHH has already terminated PPGC’s Medicaid provider agreements , and it has proffered three specific grounds for doing so. The opera tive question on appeal is whether , as a matter of law, any of those grounds permit LDHH to terminate PPGC’s
Medicaid provider agreement without violating Medicaid’s free

- choice

- of

provider requirement. Further, although PPGC had the option to engage in the administrative appeal process, it has elected not to do so. And, as noted by the district court, LDHH had already terminated PPGC’s provider agreements with “its ‘effect’ alone delayed.” LDHH’s own briefing implies the same: “The initial decision maker, the State of Louisiana, through LDHH, has not taken
fin al action on the issue of whether PPGC’s provider contracts were properly terminated .” 21 The Individual Plaintiffs’ injuries are “sufficiently likely to happen to justify judicial intervention.” 22 The Individual Plaintiffs, as already discussed,
are also lik ely to suffer hardship by being denied access to the provider of their

18 Venator Gr p

. Specialty, Inc. v. Matthew/Muniot Family, LLC , 322 F.3d 835, 838 (5th Cir. 2003).
19 Texas v. United States , 497 F.3d 491, 498 (5th Cir. 2007 ) (citing Abbott Labs. v. Gardner , 387 U.S. 136, 149 (1967)).
20 New Orleans Pub. Serv., Inc. v. Counci l of the City of New Orleans , 833 F.2d 583, 587 (5th Cir. 1987).
21 (emphasis added).
22 Pearson v. Holder , 624 F.3d 682, 684 (5th Cir. 2010) (quoting Chevron U.S.A., Inc. v. Traillo u r Oil Co. , 987 F.2d 1138, 1153 (5th Cir. 1993)). Case: 15-30987 Document: 00514055295 Page: 14 Date Filed: 06/29/2017No. 15

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15 choice under 42 U.S.C. § 1396a(a)(23) and to medical services at PPGC’s facilities. The Individual Plaintiffs’ claims are ripe. PRELIMINARY INJUNCTION Concluding that the Individual Pl aintiffs have standing to bring their
claim s and that such claim s are ripe for review, we turn to LDHH’s challenge to the district court’s entry of a preliminary injunction. A plaintiff seeking a preliminary injunction must clearly show (1) a substantial l ikelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) granting t he preliminary injunction will no t disserve the public interest. 23
We “review the district court’s determination on each of these elements for clear error, its conclusions of law de novo, and the ultimate decision whether to grant relief for abuse of discretion.” 24 The district court entered a preliminary injunction on the basis of the Individual Plaintiffs’ claim s that LDHH’s termination of PPGC ’s Medicaid provider agreements violates their free

- choice

- of

- provider rights under 42 U.S.C. § 1396a(a)(23). LDHH raises multiple challenges to the grant of the preliminary injunction . Firs t, it insist s that the district court erred in holding that the Individua l Plaintiffs claim s are substantially likely to succeed because (1) 42 U.S.C. § 1396a(a)(23) does not afford the Individual Plaintiffs a private right of action, and, in the alternati ve, (2) its termination action does not violate the Individual Plaintiffs’ free

- choice

- of

- provider rights. Second, LDHH

23 Google, Inc. v. Hood , 822 F.3d 212, 220 (5th Cir. 2016) (quoting Lake Charles Diesel, Inc. v. Gen

. Motors Corp. , 328 F.3d 192, 195

– 96 (5th Cir. 2003)).
24 Id. (citing Bluefield Water Ass’n v. City of Starkville , 577 F.3d 250, 253 (5th Cir. 2009)). Case: 15-30987 Document: 00514055295 Page: 15 Date Filed: 06/29/2017No. 15

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16 contends that the district court committed clear error in holding that the remaining factors

— irreparable injury to the plaintiffs , balan cing of the injury to the plaintiffs versus the harm to the defendant, and the public interest

— weigh in favor of issuing the preliminary injunction. A. Substantial Likelihood of Success
We first address whether 42 U.S.C. § 1396a(a)(23) affords the Individual Plaintiff s a private right of action and, if so, whether the Individual Plaintiffs are substantially likely to succeed in their claim that LDHH’s termination of PPGC’s provider agreements runs afoul of that right.
1. Private Right of Action
J oi ning every other circuit that has addressed this issue , we conclude that § 1396a(a)(23) affords the Individual Plaintiffs a private right of action
under § 1983. Medicaid is a cooperative program between the fed eral government and the states under which th e federal government gives financial assistance to states to provide medical services to Medicaid

- eligible individuals. The federal government and participating states share the costs of Medicaid. 25 “In return, participating States are to comply with requir ements imposed by the Act and by the Secretary of Health and Human Services.” 26 This means that states “must comply with federal criteria governing matters such as who receives care and what services are provided at what cost.” 27 In other words , “Medicaid of fers the States a bargain: Congress provided federal

25 Atkins v. Rivera , 477 U.S. 15 4, 156

– 57 (1986) (“The Federal Government shares the costs of Medicaid with States that elect to participate in the program.”).
26 Id. at 157 (citing 42 U.S.C. § 1396a; Schweiker v. Gray Panthers , 453 U.S. 34, 36

– 37 (1981)).
27 Nat’l Fed’n of Indep. Bus. v. Sebelius , 132 S. Ct. 2566, 2581 (2012). Case: 15-30987 Document: 00514055295 Page: 16 Date Filed: 06/29/2017No. 15

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17 funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions.” 28 This appeal concerns the contours of the federal Medicaid statute’s free

choice

- of

- p rovi der requirement, 42 U.S.C. § 1396a(a)(23). That provision
mandates that “any individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or p erson, qualified to perform the service or servic es required . . . who undertakes to provide him such services.” 29 Discussing this provision in O’Bannon v. Town Court Nursing Center , the Supreme Court explained that it “gives recipients the right to choose among a range of qualified providers, without government interference.” 30 Most recently, the Ninth Circuit explained that “[t]he provision specifies that 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.’” 31 Because the Individual Plaintiffs assert their claim s under 42 U.S.C. § 1983, we analyze whether § 1396a(a)(23) creates a right of a ction under that
statute. Title 42 U.S.C. § 1983 “provides redress only for a plaintiff who asserts a ‘violation of a federal right , not merely a violation of federal law

. ’ ” 32 To determine whether a federal statute provides a right of action enforceabl e und er § 1983, we must determine “(1) whether Congress intended for the

28 Arms trong v. Exceptional Child Ct r

. , Inc. , 135 S. Ct. 1378, 1382 (2015) ( Scalia , J.) (plurality opinion).
29 42 U.S.C. § 1396a(a)(23)(A).
30 447 U.S. 773, 785 (1980) (emphasis in original).
31 Planned Parenthood of A riz. Inc. v. Betlach , 727 F.3d 960, 967 (9th Cir. 2013) ( second alteration in original) (quoting 42 U.S.C. § 1396a(a)(23)(A)).
32 S.D. ex rel. Dickson v. Hood , 391 F.3d 581, 602 (5th Cir. 2004) (quoting Blessing v. Freestone , 520 U.S. 329, 340 (1997) (empha sis in original) ). Case: 15-30987 Document: 00514055295 Page: 17 Date Filed: 06/29/2017No. 15

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18 provision to benefit the plaintiff; (2) whether the plaintiff can show that the right in question is not so ‘vague and amorphous’ that its enforcement would ‘strain judicial competence’; a nd (3) whether the statute unambiguously imposes a binding obligation on the states.” 33 Every circuit court to have addressed this issue, as well a s multiple district courts, has concluded that § 1396a(a)(23) creates a private right enforceable under § 1983

. 34 The Ninth Circuit in Planned Parenthood Arizona
Inc. v. Betlach addressed this question most recently . As to the first element,
that court held : T he statutory language unambiguously confers [an individual] right upon Medicaid

- eligible patients, mandating 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.’ 35 As to the second element, the court held that “[t]he free

- choice

- of

- provider requirement does ‘supply concrete and obje ctive standards for enforcement, ’” 36 which are “ well within judicial competence to apply.” 37 It recognized that u nder the statute , Medicaid re cipients have the right to choose any provider so long as “(1) the provider is ‘qualified to perform service or services required,’ and (2) the provider ‘undertakes to provide [the recipient] such services.’” 38 According

33 Id.
34 See Planned Par enthood of Ariz. , 727 F.3d 960; Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health , 699 F.3d 962 (7th Cir. 2012); Harris v. Olszewski , 442 F. 3d 456 (6th Cir. 2006 ); Planned Parenthood of Kan. & Mid

- Mo. v. Mosier , No. 16

- 2284

- JAR

GLR, 2016 WL 3597457 (D. Kan. July 5, 2016); Planned Parenthood Se., Inc. v. Bentley , 141 F. Supp. 3d 1207 (M.D. Ala. 2015); Planned Parenthood Ark. & E. Okla. v. Selig , No. 4:15

- cv
566, slip op. (E.D. Ark. Oct. 2, 2015 ); Women’s Hosp. Found. v. Townsend , No. 07

- 711, 2008 WL 2743284 (M.D. La. July 10, 2008).
35 727 F.3d at 966 (quoting 42 U.S.C. § 1396a(a)(23)(A)).
36 Id. at 967 (quoting Watson v. Weeks , 436 F.3d 1152, 1161 (9th Cir. 2006)).
37 Id.
38 Id. (alteration in ori ginal) (quoting 42 U.S.C. § 1396a(a)(23)(A)). Case: 15-30987 Document: 00514055295 Page: 18 Date Filed: 06/29/2017No. 15

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19 to the Ninth Circuit, courts address ing this provision confront “a simple factual question no different from those courts decide every day,” and free from “any balancing of competing concerns or subjective policy judgments.” 39 In so holding, the Ninth Circuit rejected Arizona ’s contention tha t “qualified,” as used in 42 U.S.C. § 1396a(a)(23)(A), is too vague to enforce. Because the term “is tethered to an objective benchmark”

— “qualified to perform the service or services required ”

— “[a] court can readily determine whether a particular health ca re provider is qualified to perform a particular medical service, drawing on evidence such as descriptions of the service required; state licensing requirements; the provider’s credentials , licenses, and experience; and the expert testimony regarding the a ppropriate credentials for providing the service.” 40 The Seventh Circuit reached the same conclusion in Planned Parenthood of Indiana, Inc. v. Commissioner of the Indiana State Department of Health

. 41 As to the third element

— which the Ninth Circuit did not d iscuss at length
because Arizona had not challenged that point

— the Sev enth Circuit held that the free

- choice

- of

- provider requirement is couched in mandatory terms: “[T]he free

- choice

- of

- provider statute explicitly refers to a specific class of people

— Medic aid

- eligible patients

— and confers o n them an individual entitlement

— the right to receive reimbursable medical services from any qualified provider.” 42 Likewise, the Sixth Circuit in Harris v. Olszewski 43 held that the free

- choice

- of

- provider requirement provides a private right of action enforceable under § 1983.

39 Id.
40 Id. at 967

– 68.
41 699 F.3d 962 (2012).
42 Id. at 974.
43 442 F.3d 456 (2006). Case: 15-30987 Document: 00514055295 Page: 19 Date Filed: 06/29/2017No. 15

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20 We agree with the Sixth, Se venth, and Ninth Circuits and hold that 42 U.S.C. § 1396a(a)(23) creates a private right of action that the se Individual Plaintiffs can enforce through 42 U.S.C. § 198 3. LDHH’s remaining arguments fail to convince us otherwise.
LDHH and our dissent er rely on the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center 44 for the proposition that the Individual Plaintiffs have no right to challenge LDHH’s provider

- qualifications
det ermination. That case is inapposite . T here , the patient

- plaintiffs’ injuries were alleged to stem from a de privation of due process rights, specifically, the right to a hearing to contest the state’s decertification of a health care prov ider , not just its Medicaid qualification

. 45 Specifically, the nursing home in question was found to not comply with s tatutes governing: (1) body and management, (2) medical direction, (3) physical services, (4) nursing services, (5) pharmaceutical services, (6) medical records, and (7) physical environment. 46 In contrast, the Individual Plaintiffs here assert the violation of a substantive
ri ght. 47 T he Supreme Court’s holding in O’Bannon that “while 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,” 48 is thus not applicable here

.

44 447 U.S. 773 (1980).
45 Id. at 776 n.3.
46 Id.
47 See Planned Parenthood of Ind. , 699 F.3d at 977 (distinguishing O’Bannon on the same basis). LDHH also relies on Kelly Kare, Ltd. v. O’Rourke , 930 F.2d 170 (2d Cir. 1991), but that case is distinguishable for the same reason as O’Bannon

. See Planned Parenthood of Ind. , 699 F.3d at 977 (distinguishing Kelly Kare on the same bas is).
48 447 U.S. at 786. Case: 15-30987 Document: 00514055295 Page: 20 Date Filed: 06/29/2017No. 15

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21 T he statute speaks only in terms of recipients’ rights rather than providers’ rights, so the right guaranteed by § 1396a(a)(23) is vested in
Medicaid rec ipients rather than providers. Providers like PPGC cannot bring a challenge pursuant to § 1396a(a)(23). 49 R eading O’Bannon to foreclose every recipient’s right to challenge a disqualification decision would render the right guaranteed by § 1396a(a)(23) nugatory

. Notably , the Court decid ed O’Bannon in the context of a state’s enforcement action

. In that case, Pennsylvania had decertified Town Court Nursing Center (“Town Court”) because “it no longer met the statutory and regulatory standards for skilled nursing facilities.” 50 Three days later,
Penn sylvania terminated the Medicaid provider agreement with Town Court. 51 The Supreme Court held:
When enforcement of [minimum standards of care] requires decertification of a facility , there may be an immediate, adverse impact on some residents. But surely that impact, which is an indirect and incidental result of the Government’s enforcement action, does not amount to a deprivation of any interest in life, liberty, or property. 52 In other words, the plaintiffs had no right to reside in an unqualified facility
when the disqualification decision was connected to the state’s enforcement of

49 See § 1396a(a)(23) (requiring state 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 . . . wh o undertakes to provide him such services”); cf. Wilder v. Va. Hosp. Ass’n , 496 U.S. 498 (1990) (finding that provision requiring states to reimburse providers at reasonable and adequate rates gave providers an enforceable right under the Medicaid law)

. Pr oviders might have an administrative remedy in s tate court

— as PPGC did in this case

— but “[t]he availability of state administrative procedures ordinarily does not foreclose resort to § 1983.” Id. at 523

. 50 O’Bannon , 447 U.S. at 775

– 76.
51 Id. at 776.
52 Id. at 787 (emphasis added); see also id. at 790 (concluding that “the enforcement by [Pennsylvania] of [its] valid regulations did not directly affect the patients’ legal rights or deprive them of any constitutionally protected interest in life, liberty, or property”). Case: 15-30987 Document: 00514055295 Page: 21 Date Filed: 06/29/2017No. 15

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22 its health and safety regulations

. 53 This makes sense: I f it were otherwise, patients could freely intervene in state enforcement actions against faciliti es that violate health and safety standards. This case is different. Louisiana has never complained that PPGC is not competent to render the relevant medical services, and it has taken no independent action to limit or terminate PPGC’s entitlement to rende r medical services to the general population, for example, by r evoking its license. Instead,
Louisiana terminated only PPGC’s Medicaid provider agreement. The Individual P laintiffs in this case are not challenging “the merits of the decertification decisio n,” as did the plaintiffs in O’Bannon , because here there

was no decertification decision. When , as here, a state terminates only a Medicaid provider agreement , independent of any action to enforce statutory and regulatory standards, O’Bannon is inapposite. The Individual Plaintiffs in
t his case are trying to sustain their “right to choose among a range of qualified providers, without government interference”

— a right explicitly recognized in O’Bannon

. 54 LDHH’s reliance on the recent Supreme Co urt opinion, Armstrong v. Exceptional Child Center, Inc. , 55 is equally misplaced . There , the relevant issue was whether 42 U.S.C. § 1396a(a)(30)(A)

— not § 1396a(a)(23)

— creates a private right of action. 56 Writing for a plurality, Justice Scalia noted that th is

53 See Kelly Kare , 930 F.2d at 178 (“In O’Bannon , the Supreme Court held that Medicaid

- eligible nursing home patients did not have a vested right to choose a nursing home that was being decertified as a health

- care provider .” (emphasis added) )

. 54 447 U.S. at 785 (emphasis in original).
55 135 S. Ct. 1378 (2015).
56 That provision of the Medicaid statute requires state plans to “ provide such methods and procedures relating to the utilization of, and the payment for, care and services available

u nder 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 ca re and services are Case: 15-30987 Document: 00514055295 Page: 22 Date Filed: 06/29/2017No. 15

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23 provision “lacks the sort of rights

- creating language needed to imply a private right of action,” because it “is phrased as a directive to the federal agency . . . , not as a conferral of the right to sue upon the beneficiaries of the State’s
decision t o participate in Medicaid. ” 57 Justice Scalia also observed that § 1396a(a)(30 ) (A) was “judicially unadministrable”: “It is difficult to imagine a requirement broader and less specific than § 30(A)’s mandate that state plans provide for payments that are ‘co nsistent with efficiency, economy, and quality of care,’ all the while ‘safeguard[ing] against unnecessary utilization of . . . care and services.’” 58 In contrast , § 1396a(a)(23)

— the provision at issue here

— is ph rased in individual terms that are specific and judicially administrable , as recognized by the Sixth, Seventh, and Ninth Circuits.
LDHH finally insists that § 1396a(a)(23) provides Medicaid recipients with only the right to choose a qualified provider, not the right to choose a provider th at LDHH has deemed unqualified. Understandably, LDHH does not
t ake the next inferential step , but it follow s that the free

- choic e
- of

- provider requirement gives individuals the right to demand care from a qualified provider when access to that provider is f oreclosed by reasons unrelated to that provider’s qualifications. Otherwise, any right to which the Individual Plaintiffs are entitled to under § 1396a(a)(23) would be hollow

. 59 Importantly,
t he Individual Plaintiffs insist that LDHH has deprived them of their choice to receive care from PPGC

— a provider that LDHH has conceded is competent to

available under the plan at least to the extent that such care and services are available to the general populatio n in the geographic area[.]” 42 U.S.C. § 1396a(a)(30)(A).
57 Armstrong , 135 S. Ct. at 1387.
58 Id. at 1385 (alteration and o mission in original).
59 See Planned Parenthood Se. , 141 F. Supp. 3d at 1218 (“If [it] were correct that allegedly unlawful terminations of provider agreements could not be challenged by recipients pursuant to the free

- choice

- of

- provider provision, that pro vision ’ s ‘ individual entitlement,’ the ‘personal right’ it gives recipients, would be an empty one.” (quoting Planned Parenthood of Ind. , 699 F.3d at 974)). Case: 15-30987 Document: 00514055295 Page: 23 Date Filed: 06/29/2017No. 15

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24 render the relevant medical services

— for reasons unrelated to its competence

. The operative issue, therefore, is resolved by determinin g whether LDHH terminated PPGC’s Medicaid provider agreements based on its qualifications
or based on some unrelated reason. 2. Likelihood of Success Having concluded that § 1396a(a)(23) affords the Individual Plaintif fs a right of action, we next ask whet her they are likely to substantially succeed on their claim that LDHH’s termination of PPGC’s Medicaid provider agreements violates their rights under § 1396a(a)(23)

.

a

. Statutory Background The free

- choice

- of

- provider requirement mandates that a state’s Medicaid plan must allow beneficiaries to obtain medical care from any entity or person who is “qualified to perform the service or services required” and “who undertakes to provide him such services.” 60 Medicaid regulations allow states to set “reasonable standards relating to the qualifications of providers.” 61 The Medicaid statute does not define the term “qualified,” but LDHH concedes that, as held by the Seventh and Ninth Circuits, “[t]o be ‘qualified’ in the relevant sense is to be capable of performin g the needed medical services in a professionally competent, safe, legal, and ethical manner.” 62 Separately, Medicaid’s exclusion provision, 42 U.S.C. § 1396a(p)(1), provides , “[i]n addition to any other authority,” mandatory and permissive

60 42 U.S.C. § 1396a(a)(23)(A).
61 42 C.F.R. § 431.51(c)(2).
62 Planned Parenthood of Ind. , 699 F.3d at 978; see also Planned Parenthood of Ariz. , 727 F.3d at 969 (“We agree with the Seventh Circuit that ‘[r]ead in context, the term ‘qualified’ as used in § 1396a(a)(23) unambiguously relates to a provider’s . . . capab[ility] of performing the needed medical services in a professionally competent, safe, legal, and ethical

manner. ’ ” (alterations and omissions in original) (quoting Planned Parenthood of Ind. , 699 F.3d at 978)). Case: 15-30987 Document: 00514055295 Page: 24 Date Filed: 06/29/2017No. 15

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25 grounds

— includin g fraud, drug crimes, and failure to disclose necessary information to regulators

— under which a state may terminate a provider’s Medicaid agreements. That provision’s implementing regulation states that “[n]othing 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.” 63 Against this backdrop, the Seventh Circuit , in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Depar tment of Health , upheld a district court’s entry of a preliminary injunction that prevent ed Indiana from enforcing a law that “excludes a class of providers from Medicaid for reasons unrelated to provider qualifications” because Planned Parenthood was like ly to succeed on its claim that the law vi olated 42 U.S.C. § 1396a(a)(23)

. 64 The law at issue prohibited state agencies from providing state or federal funds to “any entity that performs abortions or maintains or operates a facility where abortions are perf ormed.” 65 The Seventh Circuit recognized that “[a]lthough Indiana has broad authority to exclude unqualified providers from its Medicaid program, the State does not have plenary authority to exclude a class of providers for any reason

— more importantly, for a reason unrelated to provider qualifications.” 66 Because the law “exclude[d] Planned Parenthood from Medicaid for a reason unrelated to its fitness to provide medical services, [it] violat[ed] its patients’ statutory right to obtain medical care from the q ualified provider of their choice.” 67

63 42 C.F.R. § 1002.2.
64 Planned Parenthood of Ind. , 699 F.3d at 980.
65 Id. at 967 (quoting Ind. Code § 5

- 22

- 17

- 5.5(b)).
66 Id. at 968.
67 Id. Case: 15-30987 Document: 00514055295 Page: 25 Date Filed: 06/29/2017No. 15

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26 The Ninth Circuit addressed a similar law in Planned Parenthood
Arizona Inc. v. Betlach

. 68 That court held t hat the “law violates [the free

- choice

of

- provider] requirement by precluding Medicaid patients from using medic al providers concededly qualified to perform family planning services to patients in Arizona generally, solely on the basis that those providers separately perform privately funded, legal abortions.” 69 In doing so, the Ninth Circuit rejected Arizona’s conte ntion that it “can determine for any reason that a provider is not qualified for Medicaid purposes, even if the provider is otherwise legally qualified, through training and licensure, to provide the requisite medical services within the state.” 70 That court gave four reasons , each of which we view as applicable here

. First, “[n]owhere in the Medicaid Act has Congress given a special definition to ‘qualified,’ much less indicated that each state is free to define this term for purposes of its own Medicai d program however it sees fit.” 71 Second, that reading would “detach[] the word ‘qualified’ from the phrase in which it is embedded; ‘qualified to perform the service or services rendered’ (and from the overall context of the Medicaid statute, which governs medical services).” 72 Third, tha t reading would render the free

- choice

- of

- provider requirement “self

eviscerating” because “[i]f states are free to set any qualifications they want

— no matter how unrelated to the provider’s fitness to treat Medicaid patient s

— then the free

- choice

- of

- provider requirement could be easily undermined by

68 The law at issue provided: “[Arizona] or any political subdivision of [Arizona] may not enter into a contract with or make a grant to any person that performs nonfederally qualified ab ortions or maintains or operates a facility where nonfederally qualified abortions are performed for the provision of family planning services.” 2012 Ariz. Leg. Serv. Ch. 288 (H.B. 2800) (West) (codified at Ariz. Rev. Stat. § 35

- 196.05(B)).
69 Planned Paren thood Ariz. , 727 F.3d at 963.
70 Id. at 970 (emphasis in original)

. 71 Id.
72 Id. (emphasis in original). Case: 15-30987 Document: 00514055295 Page: 26 Date Filed: 06/29/2017No. 15

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27 simply labeling any exclusionary rule as a ‘qualification.’” 73 “Giving the word ‘qualified’ such an expansive meaning would deprive the provision within which it appears of any leg al force,” and “would permit states freely to erect barriers to Medicaid patients’ access to family planning medical providers others in the state are free to use.” 74 This “would eliminate ‘the broad access to medical care that § 1396a(a)(23) is meant to pr eserve.’” 75 Finally, “permit[ting] states self

- referentially to impose for Medicaid purposes whatever standards for provider participation it wishes” would contravene the “ mandatory requirements [in the free

- choice

- of

- provider provision] that apply to all s tate Medicaid plans.” 76 The Seventh and Ninth Circuits have also addressed the impact of Medicaid’s exclusion provision, 42 U.S.C. § 1396a(p). LDHH seems to rely on 42 U.S.C. § 1396a(p)(1) for only its introductory phrase: “In addition to any
other authorit y.” Like Arizona and Indiana, LDHH contends that this phrase allows a state to exclude a provider for “any” reason supplied by state law. The Seventh and Ninth Circuits flatly rejected that same contention

. 77 In doing so , the Seventh Circuit explained that this argument “reads the phrase for more than it’s worth.” 78 The phrase

— “[i]n addition to any other authority”

— “signals only that what follows is a non

- exclusive list of specific

73 Id. (quoting Planned Parenthood of Ind. , 699 F.3d at 978).
74 Id.
75 Id. (quoting Planned Parenthood of Ind. , 699 F.3d at 978).
76 Id. at 971 (emphasis in original)

. 77 The First Circuit in First Medical Health Plan, Inc. v. Vega

- Ramos , 479 F.3d 46 (1st Cir. 2007), however, read 42 U.S.C. § 1396a(p)(1)’s “[i]n addition to any other authority” language much more broadly. That court held that the “‘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.” Id. at 53. That case is distinguishable because it did not involve § 1396a(a)(23)’s free

- choice

- of

- provi der requirement, most notably because § 1396a(a)(23) does not apply in Puerto Rico, the forum from which the dispute arose in Vega

- Ramos

. 78 Planned Parenthood of Ind. , 699 F.3d at 979. Case: 15-30987 Document: 00514055295 Page: 27 Date Filed: 06/29/2017No. 15

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28 grounds upon which states may bar providers from participating in Medicaid.” 79 “It does not imply that the states have an unlimited authority to exclude providers for any reason whatsoever.” 80 The Ninth Circuit adopted the Seventh Circuit’s reasoning and fur ther explained why this assertion “undermines, rather than aids, [the state’s] argument”: The language refers to “any other authority” . . . , followed by a provision providing states with authority to exclude providers on specified grounds. This sequence indicates that the Medicaid Act itself must provide that “other” authority, ju st as it supplies the “authority” covered by the rest of the subsection. Were it otherwise

— were states free to exclude providers as they see fit

— then the bulk of § 1396a(p)(1) itself would be unnecessary, as the “authority” it supplies would be superfluous

. 81 According to the Ninth Circ uit, this “ 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.” 82 As to § 1396a(p)’s implementing regulation, 42 C.F.R. § 1002.2, which provides that “[n]othing 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,” the Ninth Circuit noted that “[t]hat provision is only a limitation on interpre tation of the reference d ‘part’ of the regulations . . . which does not encompass the free

- choice

- of

- provider requirement.” 83

79 Id.
80 Id.
81 Planned Parenthood of Ariz. , 727 F.3d at 972.
82 Id.
83 Id. at 972 n.8; accord Planned Parenthood of Se. , 141 F. Supp. 3d at 1221. Case: 15-30987 Document: 00514055295 Page: 28 Date Filed: 06/29/2017No. 15

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29 While a s a general rule a state may terminate a provider’s Medicaid agreements for reasons bearing o n that provider’s general quali fication to provide medical services, we are not aware of any case that holds a state may do so while continuing to license a provider ’ s authorization to offer those same services to non

- Medicaid patients . “Q ualified” means “to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” 84 S tates may also exclude providers on the grounds provided by 42 U.S.C. § 1396a(p)(1) and on analogous state law grounds
rel ating to a provider ’s qualification . Altho ugh states retain broad authority to define provider qualifications and to exclude providers on that basis, t heir authority is circumscribed by the meaning of “qualified ” in this context. b

. Analysis
LDHH insists that its termination of PPGC’ s Medicaid qualifications do not violate the Individual Plaintiffs’ free

- choice

- of

- provider rights because LDHH has determined that PPGC is not “qualified” to ren der medical services to Medicaid patients . As noted , LDHH offer s three grounds for its terminations: (1) two qui tam FCA claims, one that PPGC settled , disclaiming all liability , and another that was pending at the time of LDHH’s termination action, but that has recently settled with PPGC disclaiming all liability ; (2 ) unspecified misrepresentations in PPGC’ s letters responding to LDHH’s inquiry into whether PPGC or PPCFC operate a fetal tissue donation program; and (3 ) LDHH’s and the Louisiana Office of Inspector General’s pending investigation s into PPGC. But, n one of these three grounds is directed at PPGC ’s qualification to render medical services to Medicaid patients.

84 Planned Parenthood of Ind. , 699 F.3d at 978. Case: 15-30987 Document: 00514055295 Page: 29 Date Filed: 06/29/2017No. 15

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30 We agree with the district court that the Individual Plaintiffs are
substantia lly likely to succeed in proving that LDHH’s termination of PPGC’s
Medicaid provider agreements violates their free

- choice

- of

- provider rights. This is because LDHH’s grounds for termination (1) do not relate to PPGC’s “qualifications,” (2) are not authorized by § 1396a(p), and (3), with one exception, are not even authorized by state law.
W e observe initially that LDHH does not even attempt to articulate how its grounds for termination relate to PPGC’s qualifications. Th at failure is exacerbated by the fact that LDHH has separately conceded that PPGC is competent to provide the relevant medical services. LDHH adopts the Seventh and Ninth Circuits definition of “qualified” and contends th at its grounds for
termination fall within the statute ’s broad meaning of “qualified. ” But LDHH makes no attempt to reconcile its grounds for termination with its borrowed defin ition of “qualified.” Its brief ing is devoid of argument on this point, a nd LDHH’s grounds for termination do not speak for themselves. LDHH cannot show that PPGC’s settlement of qui tam FCA claims, in which it disclaimed all liability , constitutes actual fraud or renders PPGC unqualified in some other

way

. Neither does LDHH explain how unspecified misrepresentations related to a program , the existence of which PPGC unequivocally denies , render PPGC unqualified. Likewise, that PPGC is the s ubject of an inve stigation does not alone render PPGC unqualified. Importantly, LDHH raises no separate concerns regarding PPGC’s provision of medical services in Louisiana. Indeed, it bears repeating that LDHH has conceded that PPGC is competent to provide
the relevant me dical services to any and all non

- Medicaid patients

. Instead of attempting to show that PPGC is not “qualified” under § 1396a(a)(23), LDHH seems to rely on its bald assertion that it may terminate a provider for any reason supplied by state law. In other words, LDHH argues Case: 15-30987 Document: 00514055295 Page: 30 Date Filed: 06/29/2017No. 15

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31 that PPGC is unqualified simply because state law says so. The fallacy of this
circular tact ic is underscored by LDHH’s failure to articulate or apply any limiting principle to its authority to exclude a n y Medicaid provider. We reject that argument because, as explained by the Ninth Circuit, a state cannot “determine for any reason that a provider is not qualified for Medicaid purposes, even if the provider is otherwise legally qualified, through training and licensure, to provide the requisite medical services within the state.” 85 Neither does LDHH even assert that its grounds for termination are consistent or analogous with 42 U.S.C. § 1396a(p)(1)’s enumerated grounds for exclusion. LDHH might have attempt ed to make some argument as to this point, but it has not invoked any of the grounds for termination provided by § 1396a(p)(1). This is likely because , as the United States’ s amicus curiae brief explains, LDHH’s grounds for termination a re not authorized b y any of the grounds enumerated in § 1396a(p)(1). And, to the extent LDHH relies on that provision’s “[i]n addition to any other authority” language, we join the Seventh and Ninth Circuits in rejecting such a n over broad interpretation. Finally, two of LDHH ’s grounds for termination

— fraud and misrepresentations by PPGC

— are not even supported by the state laws it
invokes. LDHH labels its first ground for termination as “fraud,” citing two FCA suits filed against PPGC by qui tam plaintiffs. As to the first sui t, LDHH asserts that it may exclude PPGC for (1) settling a qui tam FCA suit, and (2) failing to notify LDHH of the settlement. We have noted that, i n Reynolds v. Planned Parenthood of Gulf Coast, Inc. , PPGC settled a qui tam FCA suit while denying all lia bility . Louisiana Administrative Code Title 50 § 4147(A)(12)
states that a Medicaid provider may be terminated for “entering into a

85 Planned Parenthood of Ariz. , 727 F.3d at 970 (emphasis in original). Case: 15-30987 Document: 00514055295 Page: 31 Date Filed: 06/29/2017No. 15

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32 settlement agreement under . . . the Federal False Claims Act,” and further places an “affirmative duty” on a provider to inform LDHH in writing of any violations. But, that same statute states that “[i]f a False Claims Act action or other similar civil action is brought by a Qui

- Tam plaintiff, no violation of this provision has occurred until the defendant has been found lia ble in the action.” 86 Because PPGC settled the Reynolds qui tam FCA claim without admitting liability, that settlement cannot pro vide the basis for applying the subject statute. LDHH next cites another qui tam FCA case against PPGC, Carroll
v. Planned Paren thood Gulf Coast . At the time of the district court’s opinion and the parties’ briefing, that case wa s still pending and the trial court had denied PPGC’s motion to dismiss. LDHH argued that this lawsuit creates a violation of Title 50 of the Louisiana Adm inistrative Code because providers

“ are required to ensure that all their agents and affiliates are in compliance with all federal and state laws as well as rules, policies and procedures of the Medicaid program. PPGC and its parent organization PPFA has failed to do so and has failed to notify DHH of violations and misconduct by affiliates and providers

- in

- fact.” In so arguing, LDHH failed to demonstrate how the district court’s denial of a
motion to dismiss in a pending lawsuit indicates that PPGC had v iolated any laws or Medicaid program requirement s . More significantly , on May 25, 2016, PPGC filed a Rule 28(j) lett er with this court, informing us tha t PPGC had settled that suit as of February 29, 2016 , without admitting liability

. Accordingly, the Carroll case provides no basis f or termination. LDHH’s asserted termination on the basis of “misrepresentations” suffers from similar flaw s. Louisiana Revised Statute § 46:437.14(A)(1) stat es

86 L A

. A DMIN C ODE tit. 50 § 4147(A)(12)(c). Case: 15-30987 Document: 00514055295 Page: 32 Date Filed: 06/29/2017No. 15

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33 that a provider’s enrollment may be revoke d for a “[m]isrepresen tation.” 87 That statute separately defines “misrepresentation ” to mean “the knowing failure to truthfully or fully disclose any and all information required, or the concealment of any and all information required on a claim or a provider agreement or the

ma king of a false or misleading statement to the department relative to the medical assistance programs .” 88 LDHH posits that PPGC made misrepresentations in responding to questions about whether it operates a fetal tissue do nation program, as evidenced by one of the discussed videos, which serves as LDHH’s sole basis for application of La. R.S. § 46:437.14(A)(1) and PPGC’s term ination. Neither in the letters nor at any time during this litigation has LDHH identified a single misrepresentation . Moreover, the un disputed evidence establishes that PPGC does not perform any abortions or operate a ny fetal tissue donation

program s

. 89 The district court found that the undisputed evidence revealed no indication that PPGC had made any misrepresentations, and LDHH does not

even challenge that factual finding on appeal. LDHH’s only response is that its

87 This provision is par t of Louisiana’s Medical Assistance Programs Integrity Law, La. R.S. § 437.1 et seq. , which was “enacted to combat and prevent fraud and abuse committed by some health care providers participating in the medical assistance programs and by other persons and to negate the adverse effects such activities have on fiscal and programmatic integrity.” La. R.S. § 437.2(A). More specifically, the Louisiana legislature sought to provide a remedy against “health care providers and other persons who engage in fraud, mi srepresentation, abuse, or other ill practices . . . to obtain payments to which these health care providers or persons are not entitled.” La. R.S. § 437.2(B) (emphasis added).
88 La. R.S. § 46:437.3(15) (emphasis added) ; see also Caldwell v. Janssen Pharm. , Inc. , 144 So. 3d 898, 911 (La. 2014) (“[W]e determine that a ‘misrepresentation’ under La. Rev. Stat. 46:437.3(15) is (1) the knowing failure to truthfully or full disclose any information required on a claim or provider agreement; (2) the concealment of any and all information required on a claim or provider agreement; or (3) the making of a false or misleading statement to the department relative to the medical assistance programs.”).
89 PPGC’s August 14, 2015 letter states: “To be very clear, there is n o contradiction here. As already stated, neither PPCFC nor PPGC currently has a fetal tissue donation program in Texas, and neither sells nor donates any fetal tissue.” Case: 15-30987 Document: 00514055295 Page: 33 Date Filed: 06/29/2017No. 15

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34 lack of specificity regarding the misrepresentations “should be addressed at an administrative hearing.” LDHH’s strategy to terminate PPGC’s provider agreements for mi srepresentations before it can even identify a single misr epresentation does not pass muster. Additionally , the statute cited by LDHH requires the misrepresentation to be made “relative to the medical assistance programs.” 90 Because the undisputed evidence establishes that PPGC does not provide abortions or operate a fetal tissue donation program in Louisiana (or elsewhere), any statements contained in PPGC’s response to the state’s inquiry are likely not

“ relative to ” Louisiana’s Medicaid program. This conc lusion is bolstered by LDHH’s August 4, 2015 letter that cites two statements made in relation to PPCFC, a separate Texas corporation, not to PPGC, as contradicting statements made in one of the videos. 91 LDHH provides no explanation of how the unspecified misrepresentations are “relative to” Louisiana’s Medicaid

program. 92 For this reason alone , the statute is inapplicable. As to LDHH’s final ground for termination

— pending investigations

— Louisiana Revised Statute § 46:437.11(D)(2) stat es that the “secretary may terminate a provider agreement immediately and without written notice if a health care provider is the subject of a sanction or of a criminal, civil, or departmental proceeding.” That provision appears to be facially applicable to PPGC as it is the sub ject of ongoing investigations. Regardless, we cannot reconcile the free

- choice

- of

- provider requirement’s mandate with a state law
that would enable LDHH to terminate a Medicaid provider agreement by

90 La. R.S. § 46:437.3(15)

. 91 In the August 4, 2015, letter, LDHH recites two responses PPGC made in relation to only PPCFC’s operations. It then states that those responses were contradicted by one of the Center for Medical Progress’s videos made on April 9, 2015.
92 Had LDHH come forward with evidence of PPGC’s misrepresentations, it is poss ible LDHH would have had a valid reason for terminating PPGC as a Medicaid provider. Case: 15-30987 Document: 00514055295 Page: 34 Date Filed: 06/29/2017No. 15

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35 simply instigating an investigation , much less on the ba sis of just any pending investigation. If states we re able to exclude Medicaid providers on the basis of

any investigation, § 1396a(a)(23)’s guar antee would be meaningless. And here, the investigations pertain to conduct that, as described, does not indepe ndently provide grounds for termination.

c . Limit s of Our Opinion In concluding that the Individual Plaintiffs are likely to succeed in proving that LDHH’s termination of PPGC’s provider agreements violates their § 1 396a(a)(23) rights, we reiterate for em phasis the unique circumstances of the instant case. LDHH initially purported to terminate PPGC’s agreements “at will,” i.e. , for no reason at all. That termination would plainly have run afoul of § 1396a(a)(23)’s guarantee. Despite LDHH’s categorization o f its termination as “at will,” then

- Governor Jindal released a contemporaneous statement indicating that the state was terminating PPGC’s agreements “because Planned Parenthood does not represent the values of the State of Louisiana in regards to respecting human life.” Again, that termination would violate the Individual Plaintiffs’ § 1396a(a)(23) rights because, as the Seventh and Ninth Circuits have held, a state may not exclude a provider simply based on the scope of the services it provides. Only a fter the Plaintiffs filed suit to challenge that termination did LDHH rescind its “at will” termination s and represent to the district court that it believed the Plaintiffs’ claims were moot. But, as noted above, LDHH ’s gamesmanship was not over : The very next day, it issued new termination letters to PPGC, which provided new grounds for termination. LDHH has effectively run circles around PPGC and the district court. This course of conduct further convinces us that LDHH’s termination of PPGC’s Medica id provider agreements has nothing to do with PPGC’s qualifications

. Case: 15-30987 Document: 00514055295 Page: 35 Date Filed: 06/29/2017No. 15

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36 To be sure, the general grounds for termination invoked by LDHH

— fraud, misrepresentation s, and investigations

— might well relate to a provider’s qualifications. States undoubtedly must be able to terminate provider agreements in cases of criminal activity, fraud and abuse, and other instances of malfeasance. Medicaid’s 42 U.S.C. § 1396a(p)(1)’s e xclusionary provision makes that clear. And, there is no dispute that Louisiana retains
authorit y to establish licensing standards and other qualifications for providers. 93 Title 42 U.S.C. § 1320a

- 7(b)(4) expressly contemplates that a state licensing authority may revoke a provider’s license “for reasons bearing on the individual’s or entity’s profess ional competence, professional performance, or financial integrity,” and that the Secretary may exclude such a provider from any federal health care program under that provision. Hence , 42 U.S.C. § 1396a(p)(1), which cross references § 1320a

- 7(b)(4), neces sarily authorizes states to terminate a Medicaid provi der’s agreements when that state revokes that provider’s license “for reasons bearing on the [provider’s] professional competence, professional performance, or financ ial integrity.” I t bears repeating , however, that LDHH has taken no ac tion to revoke PPGC’s license
and has not called into question any qualification that enables PPGC to offer
medical care generally. At the most, LDHH has simply pasted the labels of “fr aud” and “misrepresentations” on PPGC’s conduct , and then insisted that alone these
content

- less labels somehow insulate its termination actions from any § 1396a(a)(23) challenges

. LDHH is seeking to do exactly what the Seventh and Ninth Circui ts warned against: “simply labeling any excl usionary rule as a

93 See Planned Parenthood of Ind. , 699 F.3d at 980 (“No one disputes that the states retain considerable authority to establish licensing standards and other related pract ice qualifications for providers

— this residual power is inherent in the cooperative

- federalism model of the Medicaid program and expressly recognized in the Medicaid regulations.”). Case: 15-30987 Document: 00514055295 Page: 36 Date Filed: 06/29/2017No. 15

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37 ‘qualification’” to evade the mandate of the free

- choice

- of

- provider requirement. 94 PPGC’s settlement of qui tam FCA claims without admitting liability do es not cons titute fraud under any definition of that term. And LDHH’s accusation tha t PPGC made misrepresentations related to inquiries into whether it operates a fetal tissue donation program is devoid of any factual support or linkage

. Neither can LDHH’s labeling of its grounds for termination as fra ud and misrepresentations insulate its actions from a § 1396a(a)(23) challenge. If it were otherwise, states could terminate Medicaid providers with impunity and avoid § 1396a(a)(23)’s mandate altogether.
We repeat yet again for emphasis that LDHH has never once complained that P PGC is not competent to render the relevant medical services , and it has taken no independent action to limit or terminate PPGC’s entitlement to render medical services to the general population, for example, by revoking its
license. As a result, LDHH’s te rmination of PPGC’s Medicaid provider agreements would produce precisely the anomalous result that the free

- ch oice

of

- provi der provision is meant to avoid, viz. , LDHH would deny PPGC’s services only to Medicaid recipients while leaving al l other individual s free to obtain the very same services from PPGC. But, “the 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 o wn pockets.” 95 In sum, we conclude that the Individual Plaintiffs are substantially likely to succeed in showing that LDHH’s termination of PPGC’s provider agreements violates their rights under § 1396a(a)(23). This is because LDHH

94 Id. at 978; Planned Parenthood of Ariz. , 727 F.3d at 970.
95 Planned Pare nthood of Ariz. , 727 F.3d at 971. Case: 15-30987 Document: 00514055295 Page: 37 Date Filed: 06/29/2017No. 15

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38 seeks to terminate PPGC’s Medicaid provider agreements for reasons unrelated to its qualifications

. B

. Remaining Factors Finally, we turn to the other issues weighed by the district court : irreparable injury; harm to the enjoined party; public interest. As to whether the Individual Plaintiffs will suffer irreparable injury in the absence of a preliminary injunction, LDHH first contends that because § 1396a(a)(23) guarantees the Individual Plaintiffs the right to choose only a qualified provider, they will suff er no harm because PPGC is not qualified. We have al ready rejected that obviously flawed circular argument. LDHH next asserts that irreparable injury may not be presumed from a statutory violation , and the Individual Plaintiffs ’ legal injury is not sufficiently concrete, great, and imminent to constitute irreparable harm. LDHH further contends that any inconvenience the Individual Plaintiffs sustain by being forced to seek medical care elsewhere is not significant enough to support a finding of irre parable harm. The district court determined that the Individual Plaintiffs would suffer irreparable injury because they will not be able to obtain medical care from the Medicaid provider of their choice. The court relied on “uncontroverted” declarations, i n which the Individual Plaintiffs state that they wish to continue
receiv ing care at PPGC and that they do not know where else they could get the same kind and quality of care. The court further emphasized that even if the Individual Plaintiffs could find medical care elsewhere, this is beside the point: The Individual Plaintiffs would still be denied the provider of their
choice , a right guaranteed under 42 U.S.C § 1396a(a)(23). The Seventh Circuit squarely addressed this issue, rejecting an identical

argu ment from the state: Case: 15-30987 Document: 00514055295 Page: 38 Date Filed: 06/29/2017No. 15

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39 Indiana maintains that any harm to [the] patients is superficial because they have many other qualified Medicaid providers to choose from in every part of the state. This argument misses the mark. That a range of qualified providers re mains available is beside the point. Section 1396a(a)(23) gives Medicaid patients the right to receive medical assistance from the provider of their choice without state interference, save on matters of qualifications. 96
The Ninth Circuit has also stated t hat “[t]here is no exception to the free

choice

- of

- provider requirement for ‘incidental’ burdens on patient choice.” 97 Separately, that c ircuit has “several times held that beneficiaries of public assistance may demonstrate a risk of irreparable injury by showing that enforcement of a proposed rule may deny them needed medical care.” 98
W e are satisfied that the district court did not clearly err in holding that the Individual Plaintiffs will suffer irreparable harm , absent entry of a preliminary injunction , while this case plays out

. Because the Individual Plaintiffs would otherwise be denied both access to a much ne eded medical provider and the legal right to the qualified provider of their choice, we agree that they would almost certainly suffer irreparable harm in the absence of a preliminary injunction.
LDHH next urge s that its substantial interest in adm inistering its Medicaid program

— overseeing the expenditures of the state ’s Medicaid funds and ensuring that Medicaid providers are complying with applicab le laws and regulations

— outweighs a ny injury to the Individual Plaintiffs, which it construes as “the mere inconvenience . . . of having longer wait times or longer lead times for appointments for family planning services.” The district court

96 Planned Parenthood of Ind. , 699 F.3d at 981.
97 Planned Parenthood of Ariz. , 727 F.3d at 975.
98 M.R. v. Dreyfus , 697 F.3d 706, 732 (9th Cir. 2011) (internal quotation marks omitted). Case: 15-30987 Document: 00514055295 Page: 39 Date Filed: 06/29/2017No. 15

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40 rejected this rationale, holding that LDHH will not be deprived of its ability to administer Louisiana’s Medicaid program. Rather, the injunction re lates only to LDHH’s attempt to terminate a single provider. The district court also held that any interest of the state is outweighed by the harm the In dividual Plaintiffs will suffer. The district court did not commit clear error in concluding that the harm to the Individual Plaintiffs wil l outweigh any harm inflicted on LDHH. As to its interest in administerin g the state’s Medicaid program, LDHH can never have a legitima te interest in administering that program in a manner that violates federal law. As to LDHH’s fiscal interests, the Ninth Circuit addressed a balancing of similar interests in Independent Livin g Center of Southern California, Inc.
v. Maxwell

- Jolly

. 99 It explained that because a “budget crisis does not excuse ongoing violations of federal law, particularly when there are no adequate remedies available other than an injunction,” “[s]tate budgetary considerations do not therefore, in social welfare cases, constitute a critical public interest that would be injured by the grant of preliminary relief.” 100 “I n contrast, there is a robust public interest in safeguarding access to health care for those elig ible for Medicaid, whom Congress has recognized as ‘the most needy in the country.’” 101 The Fourth Circuit has reached a similar conclusion: “Although we understand that the North Carolina legislature must make difficult decisions in an imperfect fiscal clim ate, the public interest in this case lies with

99 572 F.3d 644 (9th Cir. 2009), vacated and remanded on other grounds , 132 S. Ct. 1204 (2012).
100 Id. at 659.
101 Id. (quoting Schweiker v. Hogan , 457 U.S. 569, 590 (1982) (quoting H.R. Rep. No. 89

- 213, at 66 (1965))). Case: 15-30987 Document: 00514055295 Page: 40 Date Filed: 06/29/2017No. 15

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41 safeguarding public health rather than with assuaging North Carolina’s budgetary woes.” 102 For these reasons, we hold that the district court did not commit clear error in ruling that the harm to the Individual Plaintiffs outweighs any harm that the state might experience

. Finally, LDHH challenges the district court’s determination that an injunction serves the public interest. It contends that the general public has an interest in the proper expenditure of the state’s Medicaid funds, including the oversight of providers who are receiving those funds. The district court determined that the injunction serves the public interest by ensuring that Medicaid recipients have continuing access to medical care at PPGC.
Be cause LDHH’s termination of PPGC’s Medicaid provider agreements likely violates federal law, there is no legitimate public inter est in allowing
LDHH to complete its planned terminations of those agreements under these immediate facts. Instead, the public i nterest weighs in favor of preliminarily enforcing the Individual Plaintiffs’ rights and thereby allowing some of the state’s neediest citizens to continue receiving medical care from a medically qualified provider. We emphasize that “there is a legitimate public interest in safeguarding access to health care for those eligible for Medicaid.” 103 The district court did not err in ruling that preliminarily enjoining LDHH’s
terminations will serve the public interest. C. The Dissent We clos e where we began

. Despite the obvious scholarship of its able author, the dissent cannot avoid the determinative distinction between this
case and O’Bannon

. T here , because the state decertified the medical provider

102 Pashby v. Delia , 709 F.3d 307, 331 (4th Cir. 2013).
103 Maxwell

- Jolly , 572 F.3d at 659. Case: 15-30987 Document: 00514055295 Page: 41 Date Filed: 06/29/2017No. 15

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42 totally for failure to meet statutory and regulatory requirements for certification as a skilled nursing facility , the Supreme Court held that none of its former clientele

– implicitly , whether covered by Medicaid or commercial insurance

– had standing to advance constitutional claims because they were only a ffected i ncidentally. Here, Louisiana did not decertify PPGC or reference failure to meet any statutory or regulatory requirements

. I t only prevent ed it from providing Medicaid funded treatment to the impoverished women of the State: The f inancially independent women of the State (or at least those covered by commercial health plans or their own bank accounts) can continue to be fully served by PPGC. Although, t he opinion in O’Bannon does not expressly state whether the state’s decertificat ion of the facility caused it to go out of business entirely, we are satisfied that decertification had a crippling effect on the institution even if it did not cause it to shut down totally. N ot so in this case. In sum, the institution in O’Bannon was dec ertified for reasons having to do with the quality of care provided to patients

. Here, t he state has not impugned the quality of PPGC’s care , and it will continue in business: O nly its Medicaid patients will be prevented from receiving treatment there. Alt hough this fact alone does not automatically confer a private right of action,

t he dissent cannot avoid this distinction, which makes O’Bannon fully inapplicable. CONCLUSION
We hold that the Individual Pla intiffs met their burden of proving their entitlement to a preliminary injunction. We also hold that t he district court did not abuse its discretion in preliminarily enjoining LDHH’s termination of PPGC’s Medicaid provider agreements. In so doing, w e have addressed only the facts and issues necessary to address the district court’s preliminary injunction . O u r determinations do not bind any future summary judgment or Case: 15-30987 Document: 00514055295 Page: 42 Date Filed: 06/29/2017No. 15

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43 merits panel s

. 104 The district court’s pre liminary injunction is AFFIRMED and
this case is REMAND ED for further proceedings consi stent herewith

.

104 See Pla nned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott , 734 F.3d 406, 419 (5th Cir. 2013). Case: 15-30987 Document: 00514055295 Page: 43 Date Filed: 06/29/2017No. 15

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44 PRISCILLA R. OWEN, Circuit Judge, dissenting: I respectfully dissent because the majority opinion conflicts with the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center , which held that a Medicaid beneficiary does not have a right based on 42 U.S.C. § 1396a(a)(23) to challenge the merits of a State’s assertion that a provider of Medicaid services is no longer qualified to provide Medicaid services or to challenge the Sta te’s termination of a provider’s Medicaid agreements on the basis of the provider’s noncompliance with state and federal regulatory requirements. 1 In O’Bannon , the Court held that § 1396a(a)(23) did not give Medicaid patients a right to litigate whether a provider was “qualified” within the meaning of that statute. 2 The majority opinion in the present case holds just the opposite, and none of the bases on which it attempts to distinguish O’Bannon withstands scrutiny. In the case before our court, the Secr etary of the Louisiana Department of Health and Hospitals (LDHH) gave notice that it intended to terminate the Medicaid provider agreements of Planned Parenthood Gulf Coast, Inc. (PPGC), asserting as its reasons for termination, in part, PPGC’s settlement of a federal False Claims Act suit; provider audits regarding false claims; another pending federal False Claims Act suit in which the federal district court had stated that the Complaint’s allegations in that case “allow[] the court to draw the
reasonable inference that Planned Parenthood knowingly filed false claims”; misrepresentations; and a pending investigation into PPGC’s conduct. PPGC did not avail itself of state administrative or judicial proceedings to contest any of these grounds, though avenue s for such a contest existed. Instead, PPGC and three of its patients sued in federal district court to set aside the proposed

1 447 U.S. 773, 77 5

- 77 , 785 (1980).
2 Id. at 786. Case: 15-30987 Document: 00514055295 Page: 44 Date Filed: 06/29/2017No. 15

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45 terminations. PPGC’s claims, asserting Equal Protection and other constitutional violations, were not the basis for the prelimi nary injunction the district court granted staying the terminations and are not the subject of this interlocutory appeal. The only question before this panel is whether PPGC’s patients have a right to challenge LDHH’s determination that PPGC is not a “qua lified” provider. The majority opinion concludes that the so

- called “free

choice

- of

- provider” provision in § 1396a(a)(23) confers such a right upon Medicaid beneficiaries, contrary to the holding in O’Bannon

. If and when PPGC successfully challenges LDHH ’s determination that PPGC is no longer a qualified provider, then PPGC’s patients may sue to vindicate rights granted by § 1396a(a)(23). But PPGC has not yet made such a showing.
I Three of PPGC’s patients, Doe #1, Doe #2, and Doe #3 (the “Individual
Pl aintiffs”), who are recipients of Medicaid benefits, contend that LDHH lacked any legitimate basis for terminating PPGC’s Medicaid provider agreements and that PPGC is a “qualified” provider of Medicaid services within the meaning of 42 U.S.C. § 1396a(a)(2 3). The Individual Plaintiffs have brought an action under 42 U.S.C. § 1983. The federal district court considered only the Individual Plaintiffs’ claims in granting the preliminary injunction that is at issue in the interlocutory appeal before our court . The Individual Plaintiffs do not have a § 1983 cause of action unless there has been a violation of a federal constitutional or statutory right. I agree that § 1396a(a)(23), which is set forth in the margin, 3 provides a right upon which a Medicaid pati ent may base a suit under § 1983 when she

3 42 U.S.C. § 1396a(a)(23) provides: Case: 15-30987 Document: 00514055295 Page: 45 Date Filed: 06/29/2017No. 15

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46 has been denied access to a provider that a State has determined meets all state and federal Medicaid requirements and qualifications. However, § 1396a(a)(23) does not give a patient the right to contest a State’s determination that a provider is not “qualified” to provide Medicaid services or a determination that the provider has not otherwise met state or federal statutory requirements. The Supreme Court’s decision in O’Bannon makes this clear. The question in O’Bannon was whether residents of a nursing home had a “constitutional right to participate in .

. . revocation proceedings,” in which a federal entity and a state entity sought to revoke the nursing home’s authority to provide care to Medicaid recipients. 4 The Court held that the recipients did

(a) Contents A State plan for medical as sistance must

— . . . (23) 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 (inclu ding 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 case

manage ment 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 noth ing 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 [

. ]

4 447 U.S. at 775

- 76. Case: 15-30987 Document: 00514055295 Page: 46 Date Filed: 06/29/2017No. 15

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4 7 not have such a right. 5 The Court’s due process analysis required it to decide
what substantive rights 42 U.S.C. § 1396a(a)(23) bestows upon Medicaid beneficiaries. The Court concluded that this provision “ gives [Medicaid] recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with the choice to remain in a home that
continues t o be qualified. ” 6 However, the Court then said, “[b] ut it 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. ” 7 The nursing home residents had contended that they “ were entitled to an evidentiary hearing on the merits of the decertification decision before the Medicaid payments were discontinued. ” 8 In denying this relief, the C ourt explained

“ decertification does not reduce or terminate a patient ’ s financial assistance, but merely requires him to use it f or care at a different facility.” 9 Because the patients had no substantive right to demand care from a provider that had been decertified, they had no due process rights to participate in a hearing regarding certification or decertification of the provider. 10 The decision in O’Bannon controls here. Medicaid patients do not have rights under 42 U.S.C. § 1396a(a)(23) that permit them to sue, under § 1983,
to contest the merits of LDHH’s allegations supporting the proposed termination of PPGC’s Medicaid provider agreements.

5 Id. at 775.
6 Id. at 785.
7 Id.
8 Id. at 777.
9 Id. at 785

- 86.
10 Id. at 775, 785. Case: 15-30987 Document: 00514055295 Page: 47 Date Filed: 06/29/2017No. 15

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48 II The majority opinion attempts to distinguish O’Banno n on various grounds. But none of those grounds are valid.
A The majority opinion states that O’Bannon “is inapposite” because “[t]here, the patient

- plaintiffs’ injuries were alleged to stem from a deprivation of due process rights” and that “[i]n contra st, the Individual Plaintiffs here assert the violation of a substantive right.” 11 These statements reflect a failure to appreciate that there is no right to due process unless there is a substantive right that may be vindicated if adequate process is acco rded. The Supreme Court concluded in O’Bannon that when a State declares that a particular provider is not qualified to provide Medicaid services, a Medicaid recipient has no “life, liberty, or property” interest arising from 42 U.S.C. § 1396a(a)(23) that is affected. 12 Th e Due Process Clause does not confer a “right to a hearing” in
the ab stract; rather, it does so only as a prerequisite to a deprivation of “life, liberty, or property.” 13 B efore a plaintiff can prevail on a due process claim,

s he must sho w that a liberty or property interest exists and that the State has interfered with that interest. 14 Though the Medicaid recipients in O’Bannon claimed that they were

“ entitle d to an evidentiary hearing on the merits of the decertification

11 Ante at 20.
12 O’Bannon , 447 U.S. at 787.
13 U.S. C ONST . a mend. XIV, § 1.

14 Ky. Dep ’ t of Corr. v. Thompson , 490 U.S. 454, 460 (1989) (“We examine procedural due process questions in two steps: the first asks w hether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” (citations omitted) (citing Hewitt v. Helms , 459 U.S. 46 0, 472 (1983) and Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 571 (1972))). Case: 15-30987 Document: 00514055295 Page: 48 Date Filed: 06/29/2017No. 15

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49 decision,” 15 the y were first required to show that the S tate had depriv ed them of a “liberty or property interest” 16 by terminating reimbursement agreements with their preferred Medicaid provider. 17 The recipients identified 42 U.S.C. § 1396a(a)(23) as a source of a substantive liberty or property interest. 18 The Supreme Court therefore examined whether § 1396a(a)(23) gives recipients a right to demand care from a particular provider when that provider had been decertified as a Medicaid provider. The Court concluded that recipients do not have such a right. 19 The Court characterized the recipients ’ argument as claiming that § 1396a(a)(23) “give[s] them a property right to remain in the home of their choice. ” 20 In rejecting that claim, the Court explained that although Medicaid recipients have a “right to continued benefits to pay for care in the qualified institution of [their] choice , ” they have “no enforceable

expe cta tion of continued benefits to pay for care in an institution that has been
d etermined to be unqualifi ed.” 21 In the present case, the majority opinion is plainly mistaken in characterizing the O’Bannon decision as dealing only with “due process,” but not substantive, rights under 42 U.S.C. § 1396a(a)(23). 22

15 O’Bannon , 447 U.S. at 777.
16 See Thompson , 490 U.S. at 460.
17 O’Bannon , 447 U.S. at 784.
18 Id. (“The patients have identified two possible sources of such a right.”); id. at 784

- 85 (discussing 42 U.S.C. § 1396a(a)(23) as one of the identified sources).
19 Id. at 785.
20 Id. at 784.
21 Id. at 786.
22 But see Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health , 699 F.3d 962, 977 (7th Cir. 2012) (distinguishing O’Bannon on the basis that “the free

- choice

- of

provider statute was raised in the context of a due

- process claim” and that “[t]his is not a due

- process case”). Case: 15-30987 Document: 00514055295 Page: 49 Date Filed: 06/29/2017No. 15

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50 B
1 The majority opinion says “[t]his case is different” from O’Bannon because “Louisiana has never complained that PPGC is not competent to render the relevant medical services, and it has taken no independent action to limit or terminate PPGC’s entitlement t o render medical services to the general population, for example, by revoking its license.” 23 The majority opinion concludes that “this distinction

. . . makes O’Bannon fully inapplicable.” 24 As discussed below, 25 O’Bannon ’s analysis of Medicaid beneficiari es’ rights under 42 U.S.C. § 1396a(a)(23) did not turn on whether the State revoked the nursing home’s authorization to continue functioning as a nursing home. But before O’Bannon is examined on that score, it is important to understand that the majority opinion’s interpretation of § 1396a(a)(23) finds no support in its text and conflicts with the Government’s understanding of when, based on § 1396a(a)(23), Medicaid patients can and cannot sue to challenge termination of a Medicaid provider’s agreement.
Th e majority opinion concludes that whenever a State terminates a provider ’s Medicaid agreement , regardless of the grounds for termination, a patient may sue to contest the termination, unless the State also precludes the provider from providing services or care to all patients, not just Medicaid recipients. 26 This construction of § 1396a(a)(23) is plainly mistaken. Under

23 Ante at 22.
24 Ante at 42.
25 See infra Part II(C)(1)

. 26 Ante at 36 (“ To be sure, the general grounds for termination invoked by LDHH

— fraud, misrepresentations, and investigations

— might well relate to a provider’s qualifications. States undoubtedly must be able to term inate provider agreements in cases of criminal activity, fraud and abuse, and other instances of malfeasance. Medicaid’s 42 U.S.C. § 1396a(p)(1)’s exclusionary provision makes that clear.

. . . It bears repeating, however, that LDHH has taken no action t o revoke PPGC’s license and has not called into Case: 15-30987 Document: 00514055295 Page: 50 Date Filed: 06/29/2017No. 15

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51 federal statutory and regulatory provisions, a State may terminate a provider’s Medicaid agreement on many grounds, and it is not a prereq uisite for such terminations that the State preclude a provider from providing services to any and all patients. Subsection 1396a(p)(1) provides that “[i] n addition to any other authority, a State may exclude any individual or entity for purposes of parti cipating under the State plan

. . . 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. ” 27 A St ate may terminate a provider’s agreement for many reasons even though the State does not seek to prohibit a provider from providing health care to the “general population” or to “revoke[e] its license.” 28 The United States Government does not agree with the majority opinion’s assertion that O’Bannon is limited to situations in which a State seeks to prevent a provider from treating or providing services to all patients, not just Medicaid patients. The Government has filed an amicus brief in this

question any qualification that enables PPGC to offer medical care generally. ”); see also ante at 37 (“ We repeat yet again for emphasis that LDHH has never once complained that PPGC is not competent to render the relevant medical services, and it has taken no independent action to limit or terminate PPGC’s entitlement to render medical services to the general population, for example, by revoking its license. ”); ante at 37 (“ LDHH would deny PPGC’s services only to Medicaid recipients while leaving all other individuals free to obtain the very same services from PPGC. ”).
27 See 42 U.S.C. § 1396a(p)(1) (“ 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. ” ); § 1320a

- 7(b)(6) (permitting exclusion for excessive charges or unnecessary services); § 1320a

- 7(b)(7) (permitting exclusion for “ an act which is described in section 1320a

- 7a, 1320a

- 7b, or 1320a

- 8 of this title ”); id. § 1320a

- 7a(a)(1)(A) (presenting a claim “ for a medical or other item or service that the person knows or should know was not provided as claimed ”).
28 Ante at 22. Case: 15-30987 Document: 00514055295 Page: 51 Date Filed: 06/29/2017No. 15

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52 case that s ets forth a number of grounds on which a State may terminate a provider’s agreement. 29 Termination can occur because of, among other acts or omissions, 30 a provider’s excessive charges; 31 fraud, kickbacks, or other prohibited activities; 32 failure to provide information; 33 failure to grant immediate access under specified circumstances; 34 default on loan or scholarship obligations; 35 or false statements or material misrepresentations of fact in certain circumstances. 36 The Government acknowledges that a patient h as no right under § 1396a(a)(23) on which to base a § 1983 suit challenging a provider’s termination on any of these grounds. But the majority opinion appears to limit O’Bannon ’s application more narrowly than the Government advocates. The majority opinio n says that it “makes sense” that patients cannot “freely intervene in state enforcement actions against facilities that violate health and safety standards.” 37 Why, then, does it “make[] sense” to allow patients to “intervene” “freely” when a State assert s, as LDHH asserted, that its basis for termination is that a Medicaid provider has engaged in submitting false claims for services that were never provided and for medically unnecessary services or items, in violation of federal regulations? 38

29 See 42 U.S.C. §§ 1396a(p)(1)

- (3), 1320a

- 7, 1395cc(b)(2).
30 Id. § 1320a

- 7(b).
31 § 1320a

- 7(b)(6).
32 § 1320a

- 7(b)(7).
33 § 1320a

- 7(b)(9)

- (11).
34 § 1320a

- 7(b)(12).
35 § 1320a

- 7(b)(14).
36 § 1320a

- 7(b)(16).
37 Ante at 21

- 22.
38 See 42 U.S.C. §§ 1396a(p), 1320a

- 7(b)(6). Case: 15-30987 Document: 00514055295 Page: 52 Date Filed: 06/29/2017No. 15

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53 2 In the present case, the majority opinion says that PPGC’s Medicaid patients who have sued LDHH are not “challenging ‘the merits of’” its decision to terminate PPGC’s Medicaid provider agreements. 39 Yet, some of the grounds LDHH gave for termination at least faci ally pertain to PPGC’s qualifications to continue as a Medicaid provider, and the Individual Plaintiffs do in fact contend that, when examined on their merits, none of those grounds is an adequate basis for termination. The majority opinion agrees, conclu ding that since the Individual Plaintiffs will likely prevail on their contention that PPGC is a qualified provider, the Individual Plaintiffs have the right to sue to obtain Medicaid services from that qualified provider. This reasoning is circular, and it permits Medicaid recipients to do precisely what O’Bannon said they have no statutory right to do. The Supreme Court held in O’Bannon that Medicaid patients cannot challenge the merits of whether a provider is a qualified Medicaid provider. The majorit y opinion relatedly says, “[w] hen, as here, a state terminates only a Medicaid provider agreement, independent of any action to enforce statutory and regulatory standards, O’Bannon is inapposite. ” 40 But LDHH’s notice of intent to terminate PPGC’s provider agreements did assert acts or omissions that would come within prohibitions in the federal statutory and regulatory scheme. The majority opinion recognizes that “States may .

. . exclude providers on the grounds provided by 42 U.S.C. § 1396a(p)(1) and on analogous state law grounds relating to a provider’s qualification , ” 41 though apparently the opinion

39 Ante at 22.
40 Ante at 22.
41 Ante at 29. Case: 15-30987 Document: 00514055295 Page: 53 Date Filed: 06/29/2017No. 15

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54 adds the additional qualification that a State may not terminate a provider’s Medicaid agreement unless the State also preclud es the provider from providing services to patients, generally, 42 as already discussed above. 43 Putting that gloss on § 1396a(p)(1) aside for the moment, t he opinion also says, “[t]o be sure, the general grounds for termination invoked by LDHH

— fraud,
misre presentations, and investigations

— might well relate to a provider’s qualifications. States undoubtedly must be able to terminate provider agreements in cases of criminal activity, fraud and abuse, and other instances of malfeasance.” 44 The opinion notes t hat “Medicaid’s 42 U.S.C. § 1396a(p)(1)’s exclusionary provision makes that clear.” 45 T he opinion then proceeds to determine, on the merits , that none of the grounds given by LDHH for terminating PPGC’s provider agreement are “authorized by § 1396a(p).” 46 The majority opinion errs not only in permitting Medicaid recipients to litigate whether a provider is qualified, but also in incorrectly analyzing the grounds LDHH identified for its proposed termination of PPGC’s provider agreements.

42 See ante at 29:
While as a general rule a state may terminate a provider’s Medicaid agreements for reasons bearing on that provider’s general qualification to provide medical services, we are not aware of any case that holds a state may do so while continuing to license a provider’s authorization to offer those same services to n on
- Medicaid patients. “Qualified” means “to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” States may also exclude providers on the grounds provided by 42 U.S.C. § 1396a(p)(1) and on a nalogous state law grounds relating to a provider’s qualification. Although states retain broad authority to define provider qualifications and to exclude providers on that basis, their authority is circumscribed by the meaning of “qualified” in this cont ext. (footnote omitted) (quoting Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health , 699 F.3d 962, 978 (7th Cir. 2012) ).

43 See supra Part II(B)(1).
44 Ante at 36.
45 Ante at 36.
46 Ante at 30. Case: 15-30987 Document: 00514055295 Page: 54 Date Filed: 06/29/2017No. 15

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55 The letter informi ng PPGC of L DHH’s intent to terminate its Me dicaid provider agreement s included several independent grounds for termination. One was that PPGC had filed false Medicaid or Medicare claims. LDHH’s stated bases for believing that PPGC had done so were provi der audits , settlement of a federal False Claims Act suit, and an opinion and order in a f

ederal False Claims Act case pending at the time , in which the court said that
it could draw a reasonable inference from the Complaint in that case that PPGC had know ingly filed false claims. LDHH’s letter s to PPGC stated: Also under consideration in our department al proceedings are provider audits and federal false claims cases against Planned Parenthood of America (PPFA) affiliates. Included among these are pending federal false claims cases against PPGC, one in which the presiding judge found that the information already provided “allows the court to draw the reasonable inference that Planned Parenthood knowingly filed false claims.” Memorandum Opinion and Order a t 17, Carroll v. Planned Parenthood Gulf Coast , 4:12

- cv
- 03505 (S.D. TX, Houston Div.) (May 14, 2014). Providers and providers

- in

- fact are required to ensure that all their agents and affiliates are in compliance with all federal and state laws as well

as rules, policies and procedures of the Medicaid program. The panel’s majority opinion gives short sh rift to this ground for
termination. The opinion states that “[a]t the most, LDHH has simply pasted the labels of ‘fraud’ and ‘misrepresentations’ on PPGC’s conduct.” 47 However, LDHH contemplated that there would be administ rative proceedings following
the letter s that expressed its intent to terminate PPGC’s provider agreements.
The notice letter s each advised in their opening paragraph that termination would take effect only after “final determination, judgment, completion, withdrawal from, or termination of all administrative and/or legal proceedings in this matter. Such proceedings include, but are not limited to, i nformal

47 Ante at 36. Case: 15-30987 Document: 00514055295 Page: 55 Date Filed: 06/29/2017No. 15

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56 hearings, administrative appeals, appeals for judicial review, appellate judgments, and/or denials of writ applications.” But, as the majority opinion repeatedly recognizes, 48 there was never even an informal hearing at which evidence would be pres ented because PPGC declined to participate in any administrative proceedings at all. In any event, at least some of LDHH’s grounds for termination were
within the scope of the federal statutes and regulations that permit a State to terminate a provider’ s Medicaid agreement for fraud or improprieties in billing practices. Details of alleged fraud and improper billing practices were
contained in the settlement agreement described in LDHH’s notices of termination, which was PPGC’s settlement of a f ederal Fa lse Claims Act suit initiated by Karen Reynolds, a former PPGC former employee

. 49 The allegations in that suit were serious and included assertions that over a five

and

- a
- half

- year period, PPGC had submitted false claims for medically unnecessary or unneed ed items and services , and items and services that were never provided by PPGC. PPGC paid $4,300,000 to settle that suit. The
settlement agreement reflects that both the United States and the State of
Texas asserted claims against PPGC for fraud in addit ion to those alleged by the Qui

- Tam plaintiff. 50 Though the settlement agreement reflects that PPGC

48 See , e.g., ante at 8 (“ PPGC has not requested either a hearing or an administrative appeal .”).
49 ROA 498, 727.
50 The settlement agreement recites:

D. The United States contends that PPGC submitted false claims and made false statements to the United States in connection with claims that PPGC submitted to the United States under the Social Security Block Grant, Tide XX of the Social Security Act, 42 U.S.C. §§ 1397 et seq. (SSBG), the Medicaid Program, Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq. (Medicaid Program), and the Women's Health Program ( WHP), a Medicaid research and demonstration waiver created under Section 1115(a) of the Social Case: 15-30987 Document: 00514055295 Page: 56 Date Filed: 06/29/2017No. 15

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57 did not admit liability, the agreement memorializes that (1) PPGC agreed to wire transfer to the United States $4,300,000, (2) the United States agreed to

p ay $1,247,000 of the $4,300,000 to the Qui

- Tam plaintiff, (3) the United States paid $500,831 to the State of Texas “which is the Medicaid portion of the Settlement Amount, less Texas’ portion of the [Qui

- Tam plaintiff’s] Share,” (4)
the balance was retain ed by the United States Government, and (5) PPGC agreed to pay the Qui

- Tam plaintiff’s attorney’s fees and attorney’s costs in a separate written settlement agreement with the Qui

- Tam plaintiff. The settlement expressly reserved the rights of the United S tates and the State of Texas to maintain administrative actions to exclude PPGC from federal health care programs, including Medicare. The fact that PP G G settled these claims with a disclaimer that it was not admitting liability does not make the factual a llegations contained in the settlement agreement disappear. If true, any one of the allegations set forth

Security Act, 42 U.S.C. § 1315(a), and implemented by Texas under former Tex. Hum. Res. Code § 32.0248.
E. Texas contends that P PGC submitted false claims an d made false statements to Texas in connection with claims that PPGC submitted to Texas under the Medicaid Program and WHP in violation of the TMFPA, Tex. Hum. Res. Code. Ann. § 36.001 et seq.
F. The Government contends that it has certain civil and administrative claims, as specified in Sections III.B, III.C, and III.E below, against PPGC for engaging in the following conduct: submission of claims for payment to the United States and the State of Texas during the time period be tween July 30, 2003, through February 28, 2009, through the Medicaid Program, SSBG, and WHP when such items and services were (i) medically unnecessary or not medically indicated; (ii) not actually provided by PPGC; or (iii) improperly documented in patien t charts as being provided even though they had not been performed. Covered Conduct is further limited to claims based on the following Current Procedural Terminology ( “ CPT ” ) and local codes

. . . [detailed listing of codes and terminology omitted in this opinion in the interest of brevity]. Case: 15-30987 Document: 00514055295 Page: 57 Date Filed: 06/29/2017No. 15

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58 in the settlement agreement would have been grounds for LDHH’s termination of PPGC’s Medicaid provider agreements. The district court proceeded to ru le, on the merits, that LDHH had previously analyzed the claims in the Reynold’s suit and did not think they had
much credence. 51 Even if, ultimately, that is shown to be true, the point is that the district court examined grounds that at least facially we re adequate for termination under § 1396a(p)(1), but concluded that, on the merits , those grounds were not likely to prevail. Both the district court, and the panel’s majority opinion, permit the Individual Plaintiffs to challenge LDHH’s determination that PPGC is not a “qualified” provider under the Medicaid statutes and regulations. In so doing, both courts have failed to adhere to O’Bannon , which held that when a State concludes that a provider is not qualified, even if that determination is

erroneous, a Medicaid recipient does not have a right by virtue of 42 U.S.C. § 1396a(a)(23) that can be vindicated by a § 1983 suit. C The majority opinion concludes that there is a “determinative distinction
between this case and O’Bannon ” and that “this distinction

. . . makes O’Bannon fully inapplicable.” 52 The distinction, the majority opinion asserts, is that in O ’ Bannon , “the Supreme Court held that none of [the nursing home’s] former clientele

— implicitly, whether covered by Medicaid or commercial insurance

— had standing to advance constitutional claims because they were only affected incidentally,” and in O’Bannon , “the state decertified the medical provider totally for failure to meet statutory and regulatory requirements for

51 The district court wrote that “Plaintiffs have credibly shown that DHH was aware of the Reynolds Settlement long before October 14, 2015, with Defendant’s own emails suggesting that it did not find it sufficient to pr ovide “credible evidence” of Medicaid fraud.”
52 Ante at 41

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59 certification as a skilled nursing facility.” 53 Two premises in this assertion are
incorrect.
1 The opinion in O’Bannon does not say that the nursing home facility was “totally” prohibited from providing care to any nursing home resident. The facility was decertified as a Medicaid provid er, not prohibited from operating as a nursing home. 54 Specifically, as to the factual underpinnings of O’Bannon , there is no indication in the Supreme Court’s opinion that “decertification” of the nursing home under the Medicaid statutes required it to c ease providing nursing home care to patients who were not Medicaid beneficiaries. The Supreme Court’s opinion reflects that the nursing home had first been certified in 1967 by the Department of Health, Education, and Welfare (HEW) as a “skilled nursing
f

acility,” which made it eligible to enter into one

- year Medicare and Medicaid provider agreements with HEW and the Pennsylvania Department of Public Welfare (DPW). 55 The home “was decertified in 1974 as a result of substantial noncompliance with both state and federal requirements,” 56 but in 1976, it was recertified by HEW. 57 In 1977, HEW once again decertified the nursing home under the Medicaid statutes, and HEW and DPW once again decided not to renew the nursing home’s one

- year Medicaid provider agreement s due to failure to meet statutory and regulatory standards for skilled nursing homes. 58 There is no indication in O’Bannon , the Court of Appeals’ decision that it

53 Ante at 41

- 42 (emphasis added).
54 See O’Bannon v. Town Court Nursing C tr. , 447 U.S. 773, 775

- 76 & nn.2

- 3 (1980).
55 Id. at 775 & n.1.
56 Id. at 775 n.1.
57 Id. at 775.
58 Id. at 775

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60 reversed, 59 or the briefing in the Supreme Court, 60 that the nursing home was prohibited from providing services to residents who were not Medicaid or Medicare beneficiaries as the majority opinion in the present case posits, and therefore that the home was required to cease operations “totally,” 61 during the interim between 1974 and 1976, or when t he home was again decertified in
1977. The O’Bannon opinion reflects that in response to the 1977 decertification, six Medicaid recipients sued to challenge that determination and the termination of the nursing home’s Medicaid provider agreements. 62 Thei r “complaint alleged that termination of the [Medicaid] payments would require [the nursing home] to close,” 63 not that the nursing home had lost its license or had been closed by the State. The home was in jeopardy of closing due to economic factors, sinc e so many of its residents (approximately 180 of 198) were Medicaid recipients, 64 not because the home had been “decertified

. . . totally” 65 by State or federal agencies, as the majority opinion in the present

59 Town Court Nursing Ctr

. , Inc. v. Beal , 586 F.2d 280 (3d Cir. 1978), rev’d sub nom. O’Bannon v. Town Court Nursing C tr. , 447 U.S. 773 (1980).
60 Brief for Petitioner, O’Bannon v. Town Court Nursing C tr. , 447 U.S. 773 (1980) (No. 78

- 1318), 1979 WL 213543; Brief fo r Respondents, O’Bannon v. Town Court Nursing C tr. , 447 U.S. 773 (1980) (No. 78

- 1318), 1979 WL 199370; Brief for the Secretary of Health, Education, and Welfare, O’Bannon v. Town Court Nursing C tr. , 447 U.S. 773 (1980) (No. 78

- 1318), 1979 WL 199369.
61 See ante at 41

- 42.
62 O’Bannon , 447 U.S. at 777.
63 Id. (emphasis added).
64 See id. at 775

- 77, 777 n.5 (recounting that Town Court operated a 198

- bed facility and six Medicaid recipients residing in the facility “filed their action on behalf of a class of all Me dicaid recipients in the home, [though] the District Court never certified the class ,” while framing the question for decision as “ whether approximately 180 elderly residents of a nursing home operated by Town Court Nursing Center, Inc., have a constitutio nal right to a hearing before a state or federal agency may revoke the home's authority to provide them with nursing care at government expense ”)

. 65 Ante at 41

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61 case asserts repeatedly. 66 Whether the nursing home facility in O’Bannon was required to cease operations had no bearing on the Supreme Court’s holding that 42 U.S.C. § 1396a(a)(23) is not a font of substantive rights flowing to Medicaid patients that permits them to sue to set aside the termination of a provider’s Medicaid or Medicare agreements on the basis that the provider failed to comply with certain statutory or regulatory requirements. The majority opinion in the present case admits that it is on shaky ground in asserting that “decertification” in O’Bannon meant complete closure of the home by order of the State. The panel’s opinion hedges, saying, “[a] lthough, the opinion in O’Bannon does not expressly state whether the state’s decertification of the facility caused it to go out of business ent irely, we are satisfied that decertification had a crippling effect on the institution even if it did not cause it to shut down totally. ” 67 To what statutory language in 42 U.S.C. § 1396a(a)(23) is “a crippling effect on the institution” pertinent? What
l anguage in § 1396a(a)(23) differentiates between instances in which termination of a provider’s Medicaid agreement results in a “total[]” 68 closure

66 See, e.g., ante at 20 (“[ O’Bannon ] is inapposite. There, the patient

- plaintiffs’ injuries were alleged to stem from a deprivation of due process rights, specifically, the right to a hearing to contest the state’s decertification of a health care provider, not just its Medicaid qualification. ”); ante at 2 2 (“ This case is different [from O’Bannon ] . Louisiana has never complained that PPGC is not competent to render the relevant medical services, and it has taken no independent action to limit or terminate PPGC’s entitlement to render medical services to the general population, for example, by revoking its license. ”); ante at 36 (“ It bears repeating, however, that LDHH has taken no action to revoke PPGC’s license and has not called into question any qualification that enables PPGC to offer medical care genera lly. ”); ante at 42 (“[T] he institution in O’Bannon was decertified for reasons having to do with the quality of care provided to patients. Here, the state has not impugned the quality of PPGC’s care, and it will continue in business: Only its Medicaid pat ients will be prevented from receiving treatment there. The dissent cannot avoid this distinction, which makes O’Bannon fully inapplicable. ”).
67 Ante at 42.
68 Ante at 42. Case: 15-30987 Document: 00514055295 Page: 61 Date Filed: 06/29/2017No. 15

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62 of a facility (or a “crippling effect”) 69 and termination of a Medicaid agreement having little impact on the facility’s operations? Nothing in the Supreme Court’s decision in O’Bannon even alludes to such a distinction. The Court’s reasoning and its holding in O’Bannon would have been the same had the termination of the Medicaid provider agreements in that case affected only a few residents. The residents who sued in O’Bannon , all Medicaid beneficiaries, would have had the same arguments that they made in the Supreme C ourt. They would have been required to move as a result of the decertification, even if scores of other residents (who did not receive Medicaid benefits) remained in the nursing home.
2 Nor was O’Bannon decided on standing principles applicable to nursing home residents generally. The question before the Court was whether 42 U.S.C. § 1396a(a)(23) gave Medicaid beneficiaries “a right to continued residence in the home of one’s choice.” 70 The issue actually decided was not whether a resident of a nursing ho me whose care is paid for by private funds has standing to contest a State’s closure of the home. As just noted, the State did not require the home to be closed, and the legal question before the Court was whether Medicaid beneficiaries could contest the termination of the nursing home’s Medicaid provider agreements by state and federal agencies. The focus of the Supreme Court’s decision in O’Bannon was the extent of rights granted by the Medicaid and Medicare statutory provisions. 71 The Supreme Court’s c onstruction of 42 U.S.C. § 1396a(a)(23) applies in the present case.

69 Ante at 42.
70 O’Bannon v. Town Court Nursing C tr. , 447 U.S. 773, 785 (1980).
71 See id. (“ Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the home of one's choice. Title 42 U.S.C. § 1396a(a)(23) (1976 ed., Supp.II ) gives recipients the right to choose among a range of qualified providers, without government interference. ”); id. at 785

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63 D The panel’s majority opinion says that it will not follow O’Bannon because “[r]eading O’Bannon to foreclose every recipient’s right to challenge a disqualification decision would ren der the right guaranteed by § 1396a(a)(23) nugatory.” 72 First and foremost, this court is not free to disregard the Supreme Court’s holding in O’Bannon , which was that § 1396a(a)(23) does not give a Medicaid recipient the right to challenge a determination that a provider is unqualified. 73 Second, O’Bannon ’s holding does not render rights under § 1396a(a)(23) “nugatory.” The Supreme Court held that § 1396a(a)(23) “confers an absolute right to be free from government interference with the choice” to receive services from a qualified provider. 74 Under § 1396a(a)(23)(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 se rvices required, .

. . who undertakes to provide him such services,” and under § 1396a(a)(23)(B), the systems and entities specified “shall not restrict the choice of the qualified person from whom the individual may receive services,” with certain limitat ions. That Medicaid recipients do not have a right to challenge a State’s decision that a particular provider is unqualified does not mean that the State’s decision is unreviewable. In the present case, for example, the provider, PPGC, had the right to ch allenge the termination of its provider agreements in state administrative proceedings. 75 It did not do so. However, in the federal district court proceedings, PPGC has asserted constitutional violations and may also have a § 1983 claim based on rights un der provisions of the Medicaid

72 Ante at 21.
73 O’Bannon , 447 U.S. at 785

. 74 Id.
75 See L A

. S TAT

. A NN

. § 46:437.4; L A

. A DMIN

. C ODE tit. 50 , §§ 4161, 4211, 4213. Case: 15-30987 Document: 00514055295 Page: 63 Date Filed: 06/29/2017No. 15

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64 statutes and regulations (other than § 1396a(a)(23) and regulations promulgated under it) to challenge the State’s termination of its provider agreement. Even if PPGC is limited to state administrative proceedings and
state

- court review, which is doubtful, that is not a basis for construing § 1396a(a)(23) to allow PPGC’s patients to challenge the State’s termination of PPGC’s provider contracts when the Supreme Court has held that § 1396a(a)(23) does not permit them to do so. The argument that § 1396a(a)(23) should be construed to give patients a right to contest a State’s termination of a provider’s Medicaid agreement for cause is also undermined by the fact that § 1396a(a)(23) assumes a willing provider who “undertakes to provide

. . . such services” to the Medicaid recipient. In instances in which a provider does not challenge the termination of its Medicaid agreement, it cannot be said to be undertaking to provide Medicaid services to its patients. The Medicaid statutor y scheme contemplates that only the provider can contest a determination that it is not qualified. There is no need to give Medicaid patients that right. If the provider is successful in its challenge (as PPGC may ultimately be in the present case
when i ts claims are addressed) and a State were to then seek to prevent patients from seeking treatment or services from that qualified provider, patients could sue based on § 1396a(a)(23). I submit that the majority opinion has created a right to remedy what it perceives to be a violation of law by the State of Louisiana. But ends do not justify means, and any violation of law by the State can be remedied.
I I I The majority opinion relies upon decisions from the Seventh and Ninth Circuits that permitted patients to challenge state laws that excluded Planned Parenthood from providing health

- care services to recipients of state

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65 administered funds unless Planned Parenthood ceased performing privately funded, legal abortions. 76 The purpose of the state laws a t issue in those two cases was to prevent indirect subsidization of abortion. 77 In neither case did the State assert that the provider had settled False Claims Act suits, made misrepresentations, or was under investigation. In any event, the reasoning of those decisions is contrary to O’Bannon and is undermined by the recognition in those opinions that there are many circumstances in which a State may terminate a provider’s Medicaid provider agreement and yet the provider’s patients would be unable to sue to challenge those terminations. 78 The majority opinion in the case before us today cites the Sixth Circuit’s
decision in Harris v. Olszewski

. 79 But that decision does not support the majority opinion’s conclusion that in some circumstances, a patient may challenge a determination that a provider is not “qualified” to provide services.
In Harris , as a cost

- savings measure, the State contracted with a sole provider of incontinence products after a competitive

- bidding process. 80 A Medicaid benefits recipien t filed suit seeking to certify a class and to enjoin enforcement of the single

- source
- provider contract. 81 There was no contention that other providers were unqualified; the Medicaid recipients sought to obtain supplies from other qualified providers. 82 T he Sixth Circuit concluded that the patients had a right arising from § 1396a(a)(23) to bring a § 1983 claim. 83 That

76 Ante at 18

- 20 (citing Planned Parenthood Ariz., Inc. v. Betlach , 727 F.3d 960 (9th Cir. 2013) and Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health , 699 F.3d 962 (7th Cir. 2012)).
77 See , e

. g ., Planned Parenthood of Ind. , 699 F.3d at 967 (“The point is to eliminate the indirect subsidization of abortion.”).
78 See Betlach , 727 F.3d at 973; Planned Parenthood of Ind. , 699 F.3d at 979.
79 Ante at 18 , 19 (citing Harris v. Olszewski , 442 F.3d 456 (6th Cir. 2006)).
80 Harris , 442 F.3d at 460, 463.
81 Id. at 460

. 82 Id.
83 Id. at 459. Case: 15-30987 Document: 00514055295 Page: 65 Date Filed: 06/29/2017No. 15

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66 conclusion is entirely consistent with O’Bannon , which held that under § 1396a(a)(23), “a patient has a right to continued benefits to pay for care in the qualified institution of his choice.” 84 Nevertheless, the Sixth Circuit denied the requested relief, ultimately holding that the “single

- source contract for incontinence products complied with statutory and regulatory requirements for an ex emption to the freedom

- of

- choice provision.” 85
I V The majority opinion observes that because § 1396a(a)(23) “speaks only in terms of recipients’ rights rather than providers’ rights,” “the right guaranteed by § 1396a(a)(23) is vested in Medicaid recipients rather than providers.” 86 I agree with that observation and the majority opinion’s conclusion that providers “cannot bring a challenge pursuant to § 1396a(a)(23).” 87 However, as discussed above, a provider has other avenues to seek redress when a State te rminates its status as a qualified provider for purposes of Medicaid.
* * * The State of Louisiana may have improperly terminated PPGC’s Medicaid provider agreements, and if so, PPGC may pursue remedies. However, the Supreme Court has held that when a State determines that a particular provider is not qualified to provide Medicai d services, a patient has

84 O’Bannon v. Town Court Nursing Ctr. , 447 U.S. 773, 786 (1980).
85 Harris , 442 F.3d at 467, 468

- 69 (concluding that the State had not violated the freedom

- of

- choice provision contained in 42 U.S.C. § 1396a(a)(23) because of the statutory exception found in 42 U.S.C. § 1396n(a)(1)(B)).
86 Ante at 20.
87 Ante at 20

- 21. But see Planned Parenthood Ariz., Inc. v. Betlach , 727 F.3d 960, 965

- 67 (9th Cir. 2013) (concluding that Planned Parenthood had stated a cause of acti on under § 1983 based on rights conferred by § 1396a(a)(23)); Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health , 699 F.3d 962 , 972

- 77 (7th Cir. 2012) (drawing no distinction between Planned Parenthood and its patients in concluding t hat there is an individual right to sue arising from § 1396a(a)(23)). Case: 15-30987 Document: 00514055295 Page: 66 Date Filed: 06/29/2017No. 15

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67 no life, liberty, or property interest under 42 U.S.C. § 1396a(a)(23) that is implicated or affected. 88 Because the majority opinion has created patients’ rights that are not found in § 1396a(a)(23)’s text and because the majority opinion fails to follow the Supreme Court’s decision in O’Bannon , I must dissent.

88 O’Bannon , 447 U.S. at 785

- 87. Case: 15-30987 Document: 00514055295 Page: 67 Date Filed: 06/29/2017