882 F.3d 1205 | 10th Cir. | 2018
Lead Opinion
Medicaid's free-choice-of-provider provision grants Medicaid patients the right to choose for their medical care any qualified and willing provider. 42 U.S.C. § 1396a(a)(23). On May 3, 2016, Kansas sent notices of decisions to terminate (effective May 10) its Medicaid contracts with two Planned Parenthood affiliates, Planned Parenthood of Kansas and Mid-Missouri ("PPGP"), and Planned Parenthood of the St. Louis Region ("PPSLR").
States have broad authority to ensure that Medicaid healthcare providers are qualified to provide medical services-meaning that they are competent to provide medical services and do so ethically. But this power has limits. States may not terminate providers from their Medicaid program for any reason they see fit, especially when that reason is unrelated to the provider's competence and the quality of the healthcare it provides. We join four of five of our sister circuits that have addressed this same provision and affirm the district court's injunction prohibiting Kansas from terminating its Medicaid contract with PPGP. But we vacate the district court's injunction as it pertains to PPSLR
*1211and remand for further proceedings on that issue. Though the Plaintiffs have provided affidavits from three Jane Does concerning their past and expected medical care from PPGP, the Plaintiffs have not provided affidavits from any persons receiving or expecting to receive medical care at PPSLR. Hence the Plaintiffs have failed to establish any injury they will suffer from the termination of PPSLR, meaning they have failed to establish standing to challenge that termination. But on this record, we cannot determine whether PPSLR itself can establish standing, an issue the district court declined to decide but now must decide on remand.
BACKGROUND
I. The Medicaid Act and Kansas Regulations
The Medicaid Act's free-choice-of-provider provision states that "any individual eligible for medical assistance ... may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services." 42 U.S.C. § 1396a(a)(23). This provision "guarantees that Medicaid beneficiaries will be able to obtain medical care from the qualified and willing medical provider of their choice." Planned Parenthood of Gulf Coast, Inc. v. Gee ,
Kansas, like all states, issues regulations to administer its Medicaid program. These regulations govern when, why, and how Kansas may terminate contracts between its Medicaid program and healthcare providers.
If the state decides to terminate the provider, the provider may request a hearing from Kansas's Office of Administrative Hearings ("OAH") within thirty-three days after receiving notice of termination.
II. Planned Parenthood's Alleged Wrongdoing
Planned Parenthood affiliates, many of which are located in areas with shortages of primary-care providers, deliver essential services to Medicaid recipients. PPGP has two health centers in Kansas and three in Missouri, and PPSLR has one health center in Missouri that also serves Kansas Medicaid patients. The Providers' services include annual health exams; different types of contraception along with contraceptive counseling; breast- and cervical-cancer screening ; cervical-cancer treatment; screening and treatment for sexually transmitted infections; human papillomavirus vaccinations ; pregnancy testing and counseling; and other health services.
In July 2015, the anti-abortion group Center for Medical Progress ("CMP") released on YouTube a series of edited videos purportedly depicting PPFA executives negotiating with undercover journalists for the sale of fetal tissue and body parts. Kansas alleges that the videos demonstrate that "Planned Parenthood manipulates abortions to harvest organs with the highest market demand" and that PPFA executives are willing to negotiate fetal-tissue prices to obtain profits. Appellant's Opening Br. at 7. According to Kansas, this evidence matters because "PPFA controls its 'affiliate' organizations, including [PPGP] and PPSLR."
To prove PPFA's control over and affiliation with the Providers, Kansas claims that (1) "PPFA and its affiliates make no apparent effort to keep their finances separate"; (2) PPFA compiles a yearly " 'combined balance sheet,' " which "aggregate[s] 'revenue and expenses' " for the entire Planned Parenthood organization; (3) according to its 2014 tax return, PPFA transferred over $50 million to its affiliates; (4) PPFA drafts rules of procedure and operation for its affiliates and trains its affiliates' officers and employees in "management and medical practices"; and (5) PPFA's legal counsel represented PPGP and PPSLR in their meeting with the KDHE. Id. at 7-8 (quoting Appellant's App. at 479-82).
Based on CMP's videos of the PPFA executives, Kansas began investigating the Providers. In August 2015, Kansas's Board of Healing Arts ("BOHA"), the agency primarily responsible for medical licensure and regulation, requested from PPGP copies of "treatment records related to abortion procedures or stillbirths ... in which *1213fetal organs or tissues were transferred for any purpose other than those" permitted by law. Appellant's App. at 208-11. On January 7, 2016, the BOHA determined that, "[a]fter careful review of the investigative materials, ... no further action will be taken at this time." Id. at 215.
On December 16, 2015, Kansas's Bureau of Waste Management ("BWM") also initiated a solid-waste investigation under
On January 5, 2016, after counsel for BWM guaranteed the privacy of PPGP's patients, PPGP permitted the inspectors to take photographs on their return visit. The BWM inspectors left a report with PPGP's clinic employees, stating that BWM had found no violations. Later, on January 15, 2016, after PPGP had taken the necessary steps to make its vendor information confidential, PPGP provided BWM the requested waste-vendor information as well. Though Kansas points out that this was "an entire month after the first inspection," id. at 11, in reality, BWM had granted PPGP extra time so that PPGP could document its request to keep the information confidential.
Though Kansas never investigated PPSLR, the Missouri Attorney General did. In September 2015, after looking into PPSLR's fetal-tissue practices, the Missouri Attorney General's office announced that it had found no evidence of wrongdoing.
Relevant to this appeal, Kansas also notes that "[a]llegations ... emerged that Planned Parenthood offices around the country have engaged in questionable billing practices, including in the nearby states of Oklahoma and Texas." Id. at 8-9. And it claims that "Planned Parenthood's practices have prompted numerous lawsuits under the False Claims Act ('FCA')." Id. at 9.
III. Termination Proceedings & District Court Case
On March 10, 2016, about two months after Kansas's inspection of one of PPGP's clinics and two months after Kansas Governor Sam Brownback announced that he had "signed legislation stopping most taxpayer funding from going to Planned Parenthood," and that "[t]he time had[d] come to finish the job," Kansas issued notices of intent to terminate PPGP and PPSLR as state Medicaid providers.
The notices also informed the Providers that they could each challenge their proposed terminations in administrative reviews, where they would "have the opportunity to present any relevant evidence" regarding their terminations.
Together, the Providers participated in an administrative review on April 29, 2016. At this review, the Providers' counsel presented evidence and argued against termination. But on May 3, 2016, Kansas sent each Provider a "Notice of Decision to Terminate," which provided that "[a]fter thorough review of all information presented, ... your participation in [Kansas's state Medicaid program] will be terminated effective May 10, 2016. "
Instead of requesting a hearing to review the terminations, the Providers, the Patients, and eleven individual PPGP and PPSLR employees (whose charges were later dropped after Kansas reconsidered and reversed its decision to terminate them from its state Medicaid program) sued Kansas under
The day after filing their lawsuit, the Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction. On June 7, 2016, after Kansas twice continued the hearing date and agreed to extend the effective termination date to July 7, the parties argued the case before the district court. Kansas now argues that extending the termination date from May 10 to July 7 meant that the Providers had until August 10 to seek a hearing before the OAH. Kansas also notes that PPGP's Medicaid contract with the state dictated that the contract would terminate thirty days after "notification from the State that the provider's state fair hearing rights have expired or the state fair hearing has been completed related to the Medicaid termination."
*1215In granting the Plaintiffs' request for relief, the district court held that the case was ripe, that the Plaintiffs
ANALYSIS
First, we address Kansas's arguments regarding standing, ripeness, and Younger abstention. Then, we move on to address the claim's merits. Specifically, we decide whether the Patients have a private right of action under the Medicaid Act, and whether they have met the requirements necessary to show that they are entitled to injunctive relief.
I. Justiciability
The United States Constitution empowers federal courts to address "Cases" and "Controversies." U.S. Const. art. III § 2, cl. 1. The cases-and-controversies requirement manifests in the dual justiciability doctrines of standing and ripeness. Kansas maintains that the district court erred in concluding that the Plaintiffs had standing and that the case was ripe.
A. Standing
We review de novo a district court's finding of standing. New Mexico v. Dep't of Interior ,
1. Injury in Fact
For standing, a plaintiff's injury must be "actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife ,
First, Kansas claims that only after the Plaintiffs had an administrative hearing *1216(which took place on April 29), "may [it] then issue a written preliminary decision, setting forth the effective date of the termination and the basic underlying facts supporting the order." Appellant's Opening Br. at 6. And Kansas goes on to argue that the "preliminary decision ... becomes final only after the time for a formal administrative hearing has passed."Id. (citing
Second, Kansas claims that the Plaintiffs' injuries are speculative because the Providers "refused to complete the administrative process," so no one can say whether they would have been terminated at all. Appellant's Opening Br. at 20. This argument hinges on Kansas's characterization of the termination letters and their effect. According to Kansas, the notices it sent to the Providers were "far from ... final termination[s]," but rather were "effectively ... complaint[s] that the Providers could formally contest ... or admit."
This argument fails. As did the district court, we read the notices of termination literally. See Mosier ,
In fact, as the district court noted, Kansas's "position on the effective date of termination *1217has been a moving target." Mosier ,
In light of such conduct, Kansas's claim that it wouldn't cut off funding to the Providers until September 10 is unpersuasive. We agree with the district court that Kansas cannot "have its cake and eat it too" by insisting that the terminations wouldn't be effective until September, yet refusing to agree to delay enforcement by guaranteeing that September effective date. Id. at *9. We also agree with the district court's position that "[t]he fact that [Kansas] is unwilling to put its counsel's representations into a stipulated order that would apply to both providers is entirely inconsistent with its position that this dispute is premature." Id.
In any case, we conclude that the Plaintiffs faced a substantial risk of injury from the moment Kansas sent its final notices of termination. Although the termination decisions would not have gone into effect until July 7, 2016 (accounting for Kansas's litigation-related extensions), the state "ha[d] already acted to terminate [the Providers'] Medicaid provider agreements; only the effect of [those] termination[s] ha[d] yet to be implemented." Gee ,
2. Causal Connection
Kansas alternatively argues that the Plaintiffs lack standing because their injuries *1218resulted from their own failure to "use available procedures to remedy an alleged injury," rather than Kansas's actions, and thus are not traceable to Kansas. Appellant's Opening Br. at 23.
Kansas correctly states that a plaintiff cannot show that a defendant caused its injuries if the plaintiff's injuries resulted from its own acts or failures to act. See Clapper ,
But the Plaintiffs' dilemma is dissimilar from that in Gonzales . In Gonzales , HHS could have prevented the plaintiff-association from suffering any injury by explaining how it would implement the new law harmoniously with the existing regulations.
We agree with the district court's decision not to "impose an indirect exhaustion requirement by finding that Plaintiffs caused their own injury by failing to pursue administrative remedies." Mosier ,
*1219B. Ripeness
Kansas next argues that this case is not ripe for adjudication because the Plaintiffs didn't complete the administrative-appeal process. Ripeness is a prerequisite to justiciability with both constitutional and jurisdictional components. See United States v. Bennett ,
1. Fitness for Judicial Resolution
"[T]o determine the fitness of issues for review, we may consider 'whether judicial intervention would inappropriately interfere with further administrative action' and 'whether the courts would benefit from further factual development of the issues presented.' "
Kansas's arguments on this point are related to its arguments on standing. The state claims that the administrative actions it took in this case were not final. Rather, it argues, the Plaintiffs could have requested a formal hearing and then a rehearing before the OAH. See
The district court disagreed, concluding that the "termination notices represent concrete actions by the KDHE that threatened to harm Plaintiffs by excluding [PPGP] and PPSLR as Medicaid providers, notwithstanding the option of an administrative appeal." Mosier ,
*1220Again, we agree with the district court's thoughtful analysis, this time on this case's fitness for judicial resolution. "[B]oth parties have submitted evidence on these issues, and ... neither party requested an evidentiary hearing on the motion for preliminary injunction." Id. at 10. This implies that no substantial factual disputes remained, and that the questions we must now answer are primarily legal questions. Kansas has presented its grounds for terminating the Providers, and it agrees that the propriety of the preliminary injunction rests on "whether the Providers' conduct and corporate affiliations justify the decision to terminate." Appellant's Opening Br. at 29. Though Kansas characterizes these issues
And, because the Providers had clearly stated that they did "not intend to pursue" further administrative appeal, Appellee's Response Br. at 58, the Patients' injuries are "sufficiently likely to happen to justify judicial intervention," Gee ,
2. Hardship
Kansas also contends that the Plaintiffs failed to show that they would face hardship absent an injunction because possible future injury does not amount to hardship and the Providers' terminations were not final. We reject this argument for the same reason already given. Because the Providers chose not to appeal their terminations, the terminations were final and would have become effective no later than September 10. If this had happened, the Patients would have likely "suffer[ed] hardship by being denied access to the provider of their choice under 42 U.S.C. § 1396a(a)(23) and to medical services at [the Providers'] facilities." Gee ,
*1221II. Younger Abstention
Kansas next claims that the district court erred by declining to abstain under Younger . We review de novo the district court's decision on whether to abstain under Younger . Amanatullah v. Colo. Bd. of Med. Exam'rs ,
Younger abstention stems from the federal government's deference to and respect for the state government and its function. Younger ,
Here, the issue is whether the Providers' right to appeal after their April 29 evidentiary hearing and after the resulting termination decisions would amount to an administrative proceeding entitled to Younger abstention. To decide this question, we ask "whether there is an ongoing proceeding," and then we "decide whether that proceeding is the type of state proceeding that is due the deference accorded by Younger abstention." Brown ,
A. Administrative Proceeding Not Ongoing
Kansas argues that state administrative proceedings were "well underway" and remained ongoing because the Providers still had the right to seek a formal hearing until August 10. Appellant's Opening Br. at 31-32. The district court disagreed, concluding that state administrative proceedings had not yet begun.
Before the Plaintiffs filed their § 1983 lawsuit and motion for preliminary injunction, the following events had taken place: (1) two different Kansas agencies had investigated the Providers to determine whether they had improperly sold or disposed of fetal tissue, and both agencies cleared the Providers of wrongdoing; (2) Kansas had sent the Providers notices of intent to terminate; (3) Kansas and the Providers had participated in one evidentiary hearing; and (4) Kansas had sent the Providers notices of decision to terminate with a termination date of May 10. Kansas argues that these decisions weren't final. But again, had the Providers taken no further action-and nothing required the Providers to take further action-those terminations would have become effective. In other words, neither party would have had anything left to do to execute the *1222terminations; the clock was running on certain termination.
After the Providers received Kansas's notices of termination, they had an optional right to challenge these decisions at an administrative hearing. But "no administrative proceeding commences until or unless [the Providers] appeal[ ], ... and [the Providers] ha[ve] foresworn that option." Planned Parenthood Gulf Coast, Inc. v. Kliebert ,
B. Not the Type of Proceeding Entitled to Younger Abstention
For similar reasons, even if proceedings were ongoing, they aren't the type requiring Younger abstention. Relevant to this appeal, civil enforcement proceedings merit abstention under Younger . Sprint Commc'ns, Inc. v. Jacobs ,
Under this framework, plaintiffs suing under § 1983 must "exhaust[ ] state administrative remedies only where the state administrative proceedings are coercive." Brown ,
We agree with the district court that the administrative proceedings in this case were not civil enforcement actions subject to Younger abstention. Mosier ,
Finally, but importantly, we also note that though the Providers had the right of appeal, the Patients did not. See Mosier,
III. Preliminary Injunction
We review a district court's preliminary injunction for abuse of discretion. N.M. Dep't of Game & Fish v. U.S. Dep't of Interior ,
Preliminary injunctions are extraordinary remedies requiring that the movant's right to relief be clear and unequivocal. Wilderness Workshop v. U.S. Bureau of Land Mgmt. ,
Before we address the Patients' likelihood of success on the merits, we first decide the threshold issue of whether the Medicaid Act's free-choice-of-provider provision, § 1396a(a)(23), creates a private right of action for the Patients.
A. Private Right of Action Under § 1396a(a)(23)
We are comfortable joining four out of the five circuits that have addressed this issue, and we too hold "that § 1396a(a)(23) affords the [Patients] a private right of action under § 1983." Gee ,
As discussed, the statute at issue in this case is the Medicaid Act's free-choice-of-provider provision, 42 U.S.C. § 1396a(a)(23). That provision states:
A state plan for medical assistance must ... provide that (A) any individual eligible for medical assistance ... may obtain *1225such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services....
42 U.S.C. § 1396a(a)(23)(A). This section goes on to state that "an enrollment of an individual eligible for medical assistance in a primary care case-management system ..., a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services under section 1396d(a)(4)(C) of this title."
1. Blessing /Gonzaga Requirements
The question here is whether the free-choice-of-provider agreement creates a private right enforceable under
a. Congress Intended to Benefit Medicaid Patients
As have the Fifth, Sixth, Seventh, and Ninth Circuits, we conclude that the free-choice-of-provider provision confers on Medicaid patients a private right of action. See Gee ,
Kansas also claims that Armstrong supports its claim that the free-choice-of-provider provision does not confer on the Patients an enforceable right because in it, Justice Scalia opined that Spending Clause legislation does not provide a private right of action. 135 S.Ct. at 1387. But in Armstrong , the Supreme Court analyzed an entirely different section of the Medicaid Act, 42 U.S.C. § 1396a(a)(30)(A), concluding that this specific section did not create a private right of action. Id. Section 1396a(a)(30)(A) provides that "[a] State plan for medical assistance must ... provide such methods and procedures relating to the utilization of, and the payment for" Medicaid services to ensure that Medicaid pays for only necessary, efficient, economic, and high-quality care while still setting reimbursement rates high enough to encourage providers to continue serving Medicaid patients. In his opinion, the last portion of which Justice Breyer declined to join, thus making that portion a plurality, Justice Scalia stated that "Section 30(A) lacks the sort of rights-creating language needed to imply a private right of action." Id. But the plaintiffs there did not sue under § 1983 to enforce a right established by the Medicaid Act. Id. ("The last possible source of a cause of action for respondents is the Medicaid Act itself. They do not claim that, and rightly so.").
Unlike § 1396a(a)(23), which provides that "any individual eligible for medical assistance ... may obtain such assistance from any [provider] ... qualified to perform the service or services required," the Medicaid Act section at issue in Armstrong directed states to adopt rate-setting plans in accordance with certain general standards. The free-choice-of-provider provision, "[i]n contrast [to Armstrong 's Medicaid Act section,] § 1396a(a)(23)... is phrased in individual terms that are specific and judicially administrable, as recognized by the Sixth, Seventh, and Ninth Circuits." Gee ,
b. Right Not Vague or Amorphous
Second, the free-choice-of-provider agreement is not so " 'vague and amorphous' that its enforcement would strain judicial competence." Blessing ,
Under the Medicaid Act, plaintiffs need show only that their provider of choice was (1) qualified to perform the medical services, and (2) undertaking to do so. See 42 U.S.C. § 1396a(a)(23). These requirements are " 'concrete and objective standards for enforcement,' which are 'well within judicial competence to apply.' " Gee ,
"[W]hile there may be legitimate debates about the medical care covered by or exempted from the [free-choice-of-provider] provision," the definition of the word "qualified" cannot be legitimately debated. Olszewski ,
Kansas again relies heavily on Armstrong to support its claim that § 1396a(a)(23) is judicially unadministrable. It claims that "determining whether a provider is 'qualified' is a [sic] dependent upon judgment, industry experience, and technical expertise," and that such a determination implicates "expert judgments and questions of state law." Appellant's Opening Br. at 41. But in making this claim, Kansas compares the free-choice-of-provider provision's willing-and-qualified requirements to the requirements contained in § 1396a(a)(30)(A) of the Medicaid Act, which was at issue in Armstrong . That section requires state plans to "provide for payments that are 'consistent with efficiency, economy, and quality of care,' all the while 'safeguard[ing] against unnecessary utilization of ... care and services.' " Armstrong ,
Compared to that "judgment-laden standard,"
c. Right Stated in Mandatory Terms
On the third element, we conclude that the statute is "couched in mandatory, rather *1228than precatory, terms." Blessing ,
2. Congressional Intent to Foreclose Private Enforcement
Still, even if a plaintiff meets these three threshold requirements, the plaintiff has established "only a rebuttable presumption that the right is enforceable under § 1983." City of Rancho Palos Verdes v. Abrams ,
Here, again, Kansas relies on Armstrong to support its claim. There, the providers sued Idaho, claiming that it had violated § 1396a(a)(30)(A) by reimbursing them at rates lower than the Medicaid Act permitted. Armstrong , 135 S.Ct. at 1382. The providers asserted "an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation." Id. at 1383 (quoting Exceptional Child Ctr., Inc. v. Armstrong ,
*1229But Armstrong isn't a § 1983 case. Plus, an earlier Supreme Court case, Wilder v. Virginia Hospital Ass'n ,
Even if § 1396a(a)(30)(A) could fairly be read to display congressional intent to foreclose the availability of equitable relief, id. at 1386, § 1396a(a)(23) -the free-choice-of-provider provision-can't be read that way.
B. Preliminary Injunction Factors
1. Likelihood of Success on the Merits
Having concluded that the free-choice-of-provider provision confers on the Patients a private right of action, we now turn to the first and most important preliminary-injunction factor: whether the Patients are likely to succeed on the merits.
Again, § 1396(a)(23) requires a state plan to provide that "any individual eligible *1230for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required ... who undertakes to provide him such services[.]" In evaluating what it means for a provider to be "qualified to provide services," we agree with the district court and "the Seventh and Ninth Circuits, [that] '[t]o be 'qualified' in the relevant sense is to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner." Gee ,
All agree that states have considerable discretion in establishing provider qualifications. See
The Plaintiffs must be allowed to challenge PPGP's termination. After all, if a state wrongly terminates a provider-whether on grounds raised by Kansas under § 1320a-f(b)(5)(B) or f(b)(12)(B) or otherwise-it will have wrongly removed a qualified provider from the available pool. If a state could terminate providers without any challenge by affected patients, the patients' § 1396a(a)(23) right would lose force and be easily eviscerated. We agree with the district court that when Kansas shrinks the pool of qualified providers by terminating them under § 1396a(p)(1), patients must have a § 1396a(a)(23) right to challenge the state's termination decision as improper or wrongful. Mosier ,
Kansas takes a different view. It argues that termination decisions under § 1396a(p)(1) (which references § 1320a-7(b) ) are separate from the right of patients to any qualified and willing provider under § 1396a(a)(23). In effect, Kansas argues that patients have no right to services from qualified providers whom it has terminated.
We agree that states have broad powers to terminate Medicaid providers. After all, § 1396a(p)(1)"empowers states to exclude individual providers on such grounds directly, without waiting for the [federal] Secretary to act, while also reaffirming state authority to exclude individual providers pursuant to analogous state law provisions relating to fraud or misconduct." Betlach ,
In support of its view that termination decisions under § 1396a(p)(1) are final and beyond patients' ability to challenge under § 1396a(a)(23), Kansas relies in part on O'Bannon v. Town Court Nursing Center ,
In addition, we note that the nursing home residents in O'Bannon asserted procedural due-process rights, not substantive rights, as the patients do here. See Gee ,
a. Waste Inspections
The state first claims that PPGP's Overland Park clinic violated Kansas law by hindering the state's investigation of its waste-disposal practices. See
Specifically, Kansas argues that the clinic violated the Medicaid Act by failing "to grant immediate access" to the Kansas BWM employees who investigated the clinic's waste-disposal practices. 42 U.S.C. § 1320a-7(b)(12)(B). "Failure to grant immediate access means the failure to grant access at the time of a reasonable request or to provide a compelling reason why access may not be granted."
We agree with the district court that the Plaintiffs are likely to succeed in proving "that they did grant immediate access to the inspectors," as well as "that the solid waste inspection here d[id] not constitute a review bearing on" the quality of care the Providers furnished to Medicaid recipients. Mosier ,
Even if this conduct could be labeled a "[f]ailure to grant immediate access" to Kansas officials, which is doubtful, clinic employees "provide[d] a compelling reason" for their refusal to allow photographs or to turn over its vendor list: they were concerned for patient safety and privacy.
As its second basis for termination, Kansas relies on § 1320a-7(b)(5)(B). That provision allows the Secretary to terminate any individual or entity "for reasons bearing on the individual's or entity's professional competence, professional performance, or financial integrity." We agree with the district court "that PPKM's [now PPGP's] purported failure to cooperate with the BWM's solid waste inspection in December 2015 does not bear on PPKM's [PPGP's] 'professional competence, professional performance, or financial integrity.' " Mosier ,
The Dissent
The dissent does not contend that Kansas is entitled to prevail on § 1320a-7(b)(12)(B) or (b)(5)(B). As grounds authorizing termination, the dissent instead relies on a neighboring section unmentioned by Kansas in its brief- 42 U.S.C. § 1320a-7(b)(12)(C). Dissent at 1245. In fashioning a new argument, the dissent steps beyond our usual practice. See Modoc Lassen Indian Hous. Auth. v. UnitedStates Dep't of Hous. & Urban Dev , No. 14-1313,
That said, in responding to the dissent's argument, we turn to § 1320a-7(b)(12)(C) which reads as follows:
(12) Failure to grant immediate access. Any individual or entity that fails to grant immediate access, upon reasonable request (as defined by the [HHS] Secretary in regulations) to any of the following:
* * *
(C) To the Inspector General of the Department of Health and Human Services, for the purpose of reviewing records, documents, and other data necessary to the performance of the statutory functions of the Inspector General.
The dissent argues that Kan. Reg. § 28-29-16(a)(1) is analogous to this federal statute subsection, authorizing Kansas to terminate the Providers' contracts based on its regulation. The dissent relies on this portion of the state regulation:
The [Kansas Secretary of Health and Environment] or any duly authorized representative of the secretary, at any reasonable hour of the day, having identified themselves and giving notice of their purpose, may ... [e]nter ... any environment where solid wastes are generated, stored, handled, processed, or disposed, and inspect the premises and gather information of existing conditions and procedures....
Dissent at 1245-46.
The dissent ignores an applicable federal regulation bearing on inspections, which allows OIG immediate access on reasonable *1234request to review "records, documents and other materials or data ... necessary to the [performance of the Inspector General's] statutory functions[.]"
So we reject the view that Kansas was entitled to terminate PPGP on the dissent's independently raised ground. In doing so, we also rely on the district court's reasoning when it rejected Kansas's reliance on § 1320a-7(b)(12)(B) -namely, that PPGP was willing to let the inspection continue absent photographs (having confidentiality concerns), that the Kansas regulation did not provide for photography, and that PPGP willingly released the vendor lists after negotiating a confidentiality agreement with the inspecting agency. See Mosier ,
b. CMP Videos of Fetal Tissue Negotiation
Kansas next argues that it was entitled to terminate PPGP's and PPSLR's provider agreements because "PPFA's affiliates" violated federal and state law prohibiting the for-profit sale of human body parts and fetal tissue.
But, first, all of the termination provisions Kansas relies on require a criminal conviction or related sanction; and no PPFA affiliate, including PPGP and PPSLR, has been convicted or sanctioned for any wrongdoing. And the district court rightly explained that even if PPFA had negotiated the illegal sale of fetal body parts (and this allegation has never been proved), "under [ § 1396a(p)(1) ], the 'entity' that a 'State may exclude' must be the same entity that committed the infraction defined in § 1320a-7(b)." Mosier ,
Kansas never addresses the district court's conclusion, instead arguing that PPGP and PPSLR never established that they were separate and independent from PPFA. We agree with the district court that the Providers are not sufficiently affiliated with PPFA so that Kansas can attribute this alleged conduct to them under the law. See Mosier ,
But these factors do nothing to show that PPFA exercises control over its affiliates' daily operations. In fact, because many PPFA affiliates don't offer abortions-and Kansas provides nothing to show that PPFA could or would require them to do so-we cannot attribute PPFA's alleged abortion-related conduct to PPFA affiliates absent evidence that specifically implicates the affiliates.
In sum, the Plaintiffs are likely to succeed in proving that Kansas cannot terminate PPGP from the state's Medicaid program for PPFA's alleged unlawful conduct.
c. Medicaid Fraud by PPFA Affiliates
Last, Kansas claims it was justified in terminating PPGP and PPSLR in light of allegations that other PPFA affiliates had committed Medicaid fraud. Kansas claims that the numerous allegations of Medicaid fraud by Planned Parenthood affiliates around the country provide relevant evidence of PPGP's and PPSLR's "questionable billing practices." Appellant's Opening Br. at 8-9. This argument fails for the same reason the previous argument fails. Kansas never alleged that PPGP or PPSLR engaged in fraud, but it claims that because PPGP merged with Planned Parenthood of Central Oklahoma ("PPCO"), "the new combined entity has necessarily inherited PPCO's record of fraud." Id. at 54. But this "merger" doesn't have the effect that Kansas desires it to.
First, the only thing this "merger" changed was PPGP's name: the former PPKM now operates under the name "Planned Parenthood Great Plains." Appellant's App. at 828. The merger resulted in "no change of ownership or management structure" for PPGP. Id. Second, though Oklahoma Governor Mary Fallin cited two "integrity reviews" finding error rates in billing of 20.3% and 14.1% in calling for PPCO's termination from Oklahoma's Medicaid plan, id. at 417-19, Kansas presented no evidence that Oklahoma had sanctioned or terminated PPCO, and *1236PPCO is still an Oklahoma Medicaid provider. Third, Kansas cites nothing to support its claim that one corporate entity can inherit another's "record of fraud," even when the two entities merge into a single entity (which does not appear to have happened here).
After considering all of Kansas's bases for terminating PPGP from its state Medicaid plan as unqualified, we conclude that, as in Gee , Commissioner of Indiana , and Betlach , Kansas "is seeking to do exactly what [other circuits] warned against: 'simply labeling any exclusionary rule as a "qualification" ' to evade the mandate of the free-choice-of-provider requirement." Gee ,
2. Irreparable Harm
We next consider whether the Patients have shown that they would suffer irreparable harm absent injunctive relief.
Kansas argues that the Patients' injuries are speculative for the same reason it contested the Plaintiffs' standing and the case's ripeness: that the administrative appeal is still pending, meaning the state can't terminate the providers until that process is complete or the time period for appeal has expired.
We reject that argument here for the same reason we did above. Only the Providers have a right-not an obligation-to appeal Kansas's decision; the Patients do not. And the Providers have declared that they will not pursue administrative appeal. Mosier ,
Last, Kansas argues that the Patients would not be injured because the Providers "were conspicuously non-committal about whether termination would even force them to stop seeing the [Patients]," and that the Patients "alleged only that they will not have access to their preferred provider and (at worst) are unsure where else they might receive care." Appellant's Opening Br. at 58-59 & n.13. First, because the Patients all qualify for Medicaid, we cannot disagree with the district court, which "easily [found] that these patients will be unable to afford to pay out of pocket to see the health care provider of their choice without Medicaid assistance." Mosier ,
The district court did not abuse its discretion in concluding that the Patients would suffer irreparable harm absent entry of a preliminary injunction enjoining Kansas from terminating PPGP as a provider.
3. Balance of Harms & Public Interest
We address the last two preliminary-injunction factors together. The final steps in assessing a preliminary injunction's propriety require us to ask whether the balance of equities tips in the Plaintiffs' favor, and whether an injunction is in the public interest. Winter ,
On appeal, neither Kansas nor the Plaintiffs addressed this step in the analysis. Either way, we agree with the district court's thorough, reasoned analysis concerning PPGP. The court did not err in concluding that the Plaintiffs have met their burden on this point as well.
Thus, the district court did not abuse its discretion in finding that Plaintiffs have satisfied all of the elements required for entry of a preliminary injunction on the Patients' free-choice-of-provider claim concerning PPGP.
*1238CONCLUSION
For the reasons stated above, as relates to PPGP, we AFFIRM the district court's order granting the Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction, thus restraining Kansas from terminating PPGP's Medicaid-provider agreement. And as relates to PPSLR, we VACATE the district court's order, because we conclude that the Patients have not met standing requirements-they have not alleged that they receive medical care at PPSLR. We remand for the district court to determine whether PPSLR itself has sufficiently alleged standing to proceed and whether it is entitled to a preliminary injunction.
Planned Parenthood of Central Oklahoma merged into Planned Parenthood of Kansas and Mid-Missouri ("PPKM"), effective July 1, 2016. As a result, PPKM changed its name to Planned Parenthood Great Plains. In this opinion, we refer to that entity by its new name, PPGP. When we refer to both of these providers collectively, we refer to them as "the Providers."
Though PPSLR's standing might not turn on whether it has a private right of action under the free-choice-of-provider provision, its likelihood of success on the merits may. See Lexmark Intern., Inc. v. Static Control Components, Inc. , --- U.S. ----,
Though we only decide that the district court did not abuse its discretion in enjoining the termination of PPGP, we state the facts pertaining to both Providers to place our analysis in context.
Kansas also terminated eleven individual PPGP and PPSLR employees as Medicaid providers, but rescinded those terminations on June 13, 2016.
The district court concluded that the Patients had standing to pursue their claim, so it declined to resolve whether the Providers also independently had standing. Mosier ,
PPSLR has no such contracts with Kansas, so this thirty-day delay doesn't protect PPSLR's patients. Mosier ,
After the parties had their evidentiary hearing on April 29, Kansas notified the Providers that they would be terminated effective May 10. It told the Providers that if they disagreed with this decision, they had the right to-but did not have to-request a fair hearing before the OAH within thirty-three days of the date on the notice. That date would have been June 6. So, if the Providers hadn't filed their lawsuit in federal court before May 10, they would have been terminated on May 10, subject to possibly obtaining a reversal of the termination in later proceedings. Nothing in the termination notice states that the termination would toll if the Providers requested a fair hearing before the OAH. Instead, Kansas states without support that the Providers' funding would not have terminated on the effective termination date (May 10). But the Providers' termination from Kansas's Medicaid Program would have triggered the loss of Medicaid funding within a few weeks. See Mosier ,
The termination letters provided an effective date of May 10 (later extended to July 7), and advised the Providers that to contest the termination, they could request a fair hearing before the OAH within thirty-three days of the notice. Thus, the letters say that absent appeal, the terminations would be effective even before the Providers' time in which to appeal had expired. So, under the state administrative-appeals system, the Providers couldn't avoid being terminated for at least some period of time, even if they succeeded in their appeal and the state ultimately reversed the terminations.
And again, though Kansas insisted the termination wouldn't take effect until September 10, meaning the Providers wouldn't lose funding until that date, it refused to extend the effective termination date itself to September. In doing so, the state created confusion around what effect the termination, slated to occur on July 7, would have had on the Providers and the Patients.
The issues it names are "whether the Providers are 'qualified' under 42 U.S.C. § 1396a(a)(23), whether the State properly terminated the Providers under Section 1396a(p)(1), and whether the nature of the relationship between the Providers and the National Office is legally significant." Appellant's Opening Br. at 29.
Kansas also argues that the district court conflictingly characterized the state administrative proceedings as both final and as having not yet begun. But these two characterizations do not conflict. The termination letters were final for justiciability purposes, and the Providers therefore had the option of appealing these final terminations via state administrative proceedings, though they chose not to. In fact, the Providers had the choice to pursue an administrative appeal only because the terminations were final. These circumstances are comparable to the rule that, absent certain, statutory exceptions, federal courts of appeals may hear appeals from only district courts' final decisions. See
Kansas claims that "[t]he district court concluded that there was no exhaustion requirement in this case because Section 1983 has no exhaustion requirement." Appellant's Opening Br. at 33 n.8. This is incorrect. The district court concluded that there was no exhaustion requirement in this case because it was not a civil enforcement proceeding under Sprint Communications and Brown . Mosier ,
Because the district court limited its conclusion on this matter to the Patients and declined to address whether the Providers also had a private right of action, Mosier,
Originally, the Gee panel ruled unanimously in favor of the Planned Parenthood plaintiffs. Planned Parenthood of Gulf Coast, Inc. v. Gee ,
In addition, this section contains several carefully defined exceptions, including some contained in other sections of the Medicaid Act. Specifically, § 1396a(a)(23)(B) includes exceptions for providers convicted of a felony "for an offense which the State agency determines is inconsistent with the best interests of beneficiaries under the State plan," and for providers under a new-provider temporary moratorium. This section also states that it does not apply in Puerto Rico, the Virgin Islands, and Guam.
We don't read City of Rancho Palos Verdes as requiring us to presume that Congress foreclosed a private right of action under the Medicaid Act simply because it was enacted under the Spending Clause. The Court discussed the Gonzaga /Blessing framework for determining whether a statute creates a privately enforceable right under § 1983, and nowhere suggested that it intended to change or abandon this framework. City of Rancho Palos Verdes ,
The Eighth Circuit contends that Armstrong effectively overruled Wilder . See Gillespie ,
As we understand it, the dissent agrees with us that a provider can be terminated but remain qualified. Dissent at 1238 ("But other federal Medicaid provisions allow states to exclude providers even when they are considered 'qualified' under § 1396a(a)(23)."), 1242 (declaring that "Medicaid allows states to exclude providers from Medicaid, sometimes even when the providers are qualified. E.g. , 42 U.S.C. § 1396a(a)(39), (p)(1).").
Judge Shepherd's concurrence in Gillespie states that the previous four circuits are wrong that O'Bannon concerns only procedural rights, stating that this view "ignores the very language of O'Bannon . The Supreme Court clearly stated that it was defining the contours of the 'substantive right ... conferred by the statutes and regulations.' "
Nor do we find it significant that PPFA does not offer abortions. Kansas relies on this irrelevant allegation to suggest that any sales of fetal tissue "could have been coordinated only through the abortion-providing 'affiliates' that [PPFA's national medical director] supervises." Appellant's Opening Br. at 53. The state seems to imply that this must mean that PPSLR and PPGP are doing the PFFA director's dirty work. This conclusion is both speculative and conclusory. Kansas presented no evidence showing that PPGP and PPSLR sold fetal tissue for profit, and neither of the two Kansas agencies that investigated PPGP and PPSLR found any wrongdoing.
Again, we follow the district court's lead in limiting our review on this issue to whether the Patients, as opposed to the Providers, met their burden of showing irreparable harm. Mosier ,
Kansas also disputes the district court's reliance on the possibility that if PPGP and PPSLR are terminated in Kansas, other states will terminate their Medicaid contracts as well. See Mosier ,
Concurrence in Part
A preliminary injunction would be appropriate only if the Jane Doe plaintiffs had standing and were likely to succeed on the merits. I agree with the majority that the Jane Doe plaintiffs lacked standing as to Planned Parenthood of the Saint Louis Region and Southwest Missouri (referred to below as "PPSLR") because they had not alleged any desire to obtain medical care from this affiliate. But I also believe the Jane Doe plaintiffs lacked an enforceable right to challenge Kansas's action as to Planned Parenthood of Kansas and Mid-Missouri (referred to below as "PPKM"). Thus, I would reverse the grant of a preliminary injunction to the Jane Doe plaintiffs as to both affiliates.
For PPKM, the Jane Doe plaintiffs could prevail on the merits only by showing that they had an enforceable right to challenge what Kansas did. The burden on the Jane Doe plaintiffs was stiff, for the Supreme Court has held that a right is individually enforceable only if it was unambiguously conferred. If an individually enforceable right existed here, its scope would have been ambiguous because of the combination of two provisions in Medicaid: § 1396a(a)(23) and § 1396a(p)(1).
Under 42 U.S.C. § 1396a(a)(23), the free-choice-of-provider clause, state Medicaid programs must provide that Medicaid patients can obtain medical care from any willing, qualified provider. Kansas's program satisfied this requirement by providing that Medicaid patients could obtain medical care from qualified providers. But other federal Medicaid provisions allow states to exclude providers even when they are considered "qualified" under the free-choice-of-provider clause. These provisions include 42 U.S.C. § 1396a(p)(1), which allows states to exclude medical providers for violating state laws that serve a Medicaid-related goal.
Based on § 1396a(p)(1), Kansas terminated PPKM, contending that it had violated such state laws; the Jane Doe plaintiffs disagreed and sought to litigate whether the Kansas laws had been properly applied. The Jane Doe plaintiffs thus brought a § 1983 lawsuit for violation of their rights under the free-choice-of-provider clause.
The resulting issue is whether this clause unambiguously provided the Jane Doe plaintiffs with an enforceable right to have states properly apply their state laws (authorized by § 1396a(p)(1) ) to Medicaid providers. In this context, the applicability of the free-choice-of-provider clause was ambiguous, which is not enough for an individually enforceable right. Thus, the Jane Doe plaintiffs were unlikely to succeed on the merits and the district court should have denied the motion for a preliminary injunction with regard to PPKM.
I. The district court granted a preliminary injunction.
Acting through the Kansas Department of Health and Environment, the State of Kansas terminated participation in Medicaid *1239by two Planned Parenthood affiliates-PPKM and PPLSR.
Following the terminations, PPKM, PPSLR, and three "Jane Doe" patients of PPKM brought a
The plaintiffs moved for a preliminary injunction. Following a hearing, the district court granted the motion by the Jane Doe plaintiffs, preliminarily barring termination of PPKM and PPSLR. Planned Parenthood of Kan. & Mid-Mo. v. Mosier , No. 16-2284-JAR-GLR,
In granting the preliminary injunction, the district court concluded that the case was justiciable and that abstention was unnecessary. The court then considered the factors for a preliminary injunction, including whether the plaintiffs were likely to succeed on the merits. See Diné Citizens Against Ruining Our Env't v. Jewell ,
II. For PPKM, any individual right would not have been broad enough for the Jane Doe plaintiffs to challenge Kansas's termination under § 1396a(p)(1).
For PPKM, the critical question is the scope of the Jane Doe plaintiffs' alleged right under the free-choice-of-provider clause. In district court, Kansas argued that
• it had excluded PPKM based on § 1396a(p)(1) and
• the Jane Doe plaintiffs lacked an unambiguous right allowing them to challenge Kansas's application of § 1396a(p)(1).
The district court rejected these arguments, holding that the Jane Doe plaintiffs could challenge Kansas's determination that PPKM had violated state law. The *1240court reasoned that if the result were otherwise, a state could simply evade judicial review by improperly terminating a provider under state law:
If a State could defeat a Medicaid recipient's right to select a particular qualified healthcare provider merely by terminating its agreement with that provider on an unlawful basis, the right would be totally eviscerated.
Planned Parenthood of Kan. & Mid-Mo. v. Mosier , No. 16-2284-JAR-GLR,
This reasoning led the court to consider whether PPKM had violated Kansas law. The court answered "no" and concluded, as a result, that Kansas had likely violated the free-choice-of-provider clause. Because the other preliminary-injunction factors supported the Jane Doe plaintiffs, the district court granted the motion for a preliminary injunction.
Kansas appeals, presenting four pertinent arguments as to PPKM
1. This case is not justiciable.
2. The district court should have abstained.
3. The plaintiffs lack an individually enforceable right under the free-choice-of-provider clause.
4. Even if an individually enforceable right existed, it would not allow the plaintiffs to challenge Kansas's actions, which were based on Kansas law as authorized by 42 U.S.C. § 1396a(p)(1).
I agree with the majority that the case is justiciable and that the district court had no need to abstain. I will also assume, for the sake of argument, that the Jane Doe plaintiffs have an individual right under the free-choice-of-provider clause. The resulting question entails the extent of that right.
Under the free-choice-of-provider clause, the state's Medicaid program must provide that Medicaid patients can obtain medical care from qualified providers. 42 U.S.C. § 1396a(a)(23). Kansas's Medicaid program complied with this requirement, for the program's only exclusions were based on provisions authorized by Medicaid itself.
Kansas terminated PPKM for purportedly violating Kansas laws authorized by a separate Medicaid provision: 42 U.S.C. § 1396a(p)(1). In light of this termination, the Jane Doe plaintiffs seek to litigate whether PPKM actually violated Kansas law. But the Jane Doe plaintiffs can litigate this issue only if their underlying right unambiguously extends to Kansas's application of its own state law. See Harris v. James ,
*1241As a result, we must ask: Has Congress unambiguously conferred the Jane Doe plaintiffs with a right to have states properly apply their laws (authorized by § 1396a(p)(1) ) to Medicaid providers? Or, as the text of the free-choice-of-provider clause suggests, has Congress conferred the Jane Doe plaintiffs with only a right to be covered under a program (like Kansas's program) that does not contain unauthorized exclusionary provisions? In my view, the answer is-at best-ambiguous. Thus, if an individually enforceable right existed here, it would not encompass a challenge to Kansas's termination of PPKM.
A. Standard of Review
We review the district court's grant of a preliminary injunction for an abuse of discretion. Verlo v. Martinez ,
B. Section 1983
This suit is brought under § 1983, not the Medicaid Act. Thus, we must start with the scope of § 1983. This statute creates a private right of action for U.S. citizens denied rights created by federal laws.
To determine whether § 1983 provides a mechanism for relief, the Jane Doe plaintiffs must demonstrate that Congress intended to create an enforceable right.
C. Medicaid
We must apply this § 1983 requirement against the backdrop of Medicaid.
Medicaid is a cooperative federal-state program in which states obtain federal funds to provide medical care to needy individuals. Wilder v. Va. Hosp. Ass'n ,
To participate in Medicaid, states must obtain approval of their plans from the HHS Secretary. Wilder ,
Under this clause, a state plan must provide for eligible individuals to obtain medical care from any willing provider "qualified to perform the service." 42 U.S.C. § 1396a(a)(23)(A). Based on this provision, the Jane Doe plaintiffs claim that Kansas improperly terminated PPKM even though it was "qualified" to provide medical care.
But a federal court would ordinarily lack jurisdiction to consider a Medicaid recipient's claim involving the state's violation of its own Medicaid program. Concourse Rehab. & Nursing Ctr. Inc. v. DeBuono ,
The Jane Doe plaintiffs point to the free-choice-of-provider clause. Thus, we must first consider whether this clause provides Medicaid patients with a federal right enforceable under § 1983. Four circuits have said "yes";
With this assumption, we must consider whether the Jane Doe plaintiffs have alleged a conflict between Kansas's Medicaid program and the free-choice-of-provider clause. To answer that question, we must determine the scope of this clause. At first glance, the free-choice-of-provider clause might appear to force a state to allow any qualified provider into the state's Medicaid program. But "Medicaid's freedom of choice provision is not absolute." Kelly Kare, Ltd. v. O'Rourke ,
For example, states can exclude providers from Medicaid for violating certain types of state laws. A state's authority to take such action stems partly from 42 U.S.C. § 1396a(p)(1), which is entitled "Exclusion power of State." Section 1396a(p)(1) identifies grounds for a state to exclude a provider:
In addition to any other authority, a State may exclude any individual or entity for purposes of participating under the State plan under this subchapter for any reason for which the Secretary could exclude the individual or entity from participation in a program under subchapter XVIII of this chapter under *1243section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.
42 U.S.C. § 1396a(p)(1).
The HHS implements § 1396a(p)(1) through a regulation, which states that the listed exclusion provisions are "[i]n addition to any other authority [a state] may have."
Kansas maintains that the legality of its actions is determined by § 1396a(p)(1), not the free-choice-of-provider clause, and argues that the Jane Doe plaintiffs therefore lacked an applicable right to challenge Kansas's application of its laws.
D. Section 1983 does not provide a mechanism for the Jane Doe plaintiffs to challenge Kansas's application of its laws authorized by § 1396a(p)(1).
To determine whether the free-choice-of-provider clause supports relief under § 1983, we must resolve two questions:
1. Do the pertinent Kansas laws fall within the scope of § 1396a(p)(1) ? I would answer "yes."
2. Does the free-choice-of-provider clause entitle the Jane Doe plaintiffs to challenge Kansas's application of these laws? If such an entitlement exists, it is at least ambiguous, which is fatal to the Jane Doe plaintiffs' claim.
1. Kansas's laws fall within § 1396a(p)(1).
Kansas terminated PPKM under Kansas Administrative Regulation § 30-5-60(a). This provision authorizes Kansas to terminate a provider that has violated applicable state regulations.
We begin with the statutory text. Landreth Timber Co. v. Landreth ,
But we have always construed statutory language in context. United States v. Collins ,
What is that limitation? To answer, we consider the canon of noscitur a sociis . Under this canon, an ambiguous term may be "given more precise content by the neighboring words with which it is associated." United States v. Williams ,
In this case, the neighboring words in § 1396a(p)(1) are three specific statutory provisions that a state may invoke to justify a provider's termination: 42 U.S.C. §§ 1320a-7, 1320a-7a, and 1395cc(b)(2). See 42 U.S.C. § 1396a(p)(1) ("[A] State may exclude ... for any reason for which the Secretary could exclude ... under [§§] 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title."). Having identified these three provisions, we should consider whether they help define the phrase "any other authority" in § 1396a(p)(1). See Ali v. Fed. Bureau of Prisons ,
The three cited statutes include grounds to exclude or terminate providers. See 42 U.S.C. §§ 1320a-7, 1320a-7a, 1395cc(b)(2). The Fifth, Seventh, and Ninth Circuits have observed that the grounds for termination involved "various forms of malfeasance," such as "fraud, drug crimes, and failure to disclose necessary information to regulators." Planned Parenthood of Ind., Inc. v. Comm'r of Ind. State Dep't of Health ,
But what do we mean by "malfeasance"? The Fifth and Ninth Circuits answer that the state laws must address conduct "analogous" to what is covered in the three cited statutes. Planned Parenthood of Gulf Coast ,
In my view, this approach rests on an unduly restrictive definition of "malfeasance." Certainly Congress intended to impose some limits on the states' adoption of Medicaid-related laws. But Congress intended to give states broad authority in light of the HHS regulations and the legislative history.
The regulations interpret the phrase "any other authority" in § 1396a(p)(1) to mean "any other authority [that a State ] may have ."
A Senate Report also indicates that Congress intended for § 1396a(p)(1) to provide the states with broad authority: "This provision is not intended to preclude a State from establishing, under State law, any other bases for excluding individuals or entities from its Medicaid program." S. Rep. No. 100-109, at 20 (1987) (emphasis added), as reprinted in 1987 U.S.C.C.A.N. 682, 700; see also First Med. Health Plan, Inc. v. Vega-Ramos ,
In light of the HHS regulations and the legislative history, the need to provide some limitation does not require us to narrowly read the phrase "any other authority." Doing so "would defeat Congress' intent to define [this phrase] in a broad manner." Christopher v. SmithKline Beecham Corp. ,
Under a broad reading of "malfeasance," a state would not be able to pass any law and claim that violating the law constitutes an act of malfeasance. Rather, the state law must "serve[ ] some Medicaid-related goals." Pharm. Research & Mfrs. of Am. v. Walsh ,
Under this definition, a state would enjoy broad authority, but this authority would not go unchecked. For example, a state could not circumvent Medicaid's purpose by enacting laws to undermine or bypass the Medicaid provisions. Here the Jane Doe plaintiffs have not alleged that Kansas's laws were designed to undermine or bypass Medicaid.
But let's assume for the sake of argument that the majority's narrow definition of "malfeasance" is right. Under this approach, § 1396a(p)(1) allows states to exclude providers for violating state laws that prohibit conduct "analogous" to conduct excludable under the three statutes listed in § 1396a(p)(1). Majority Op. at 1230-31. Even under the majority's approach, Kansas's termination of PPKM would constitute action authorized by § 1396a(p)(1).
Kansas's termination of PPKM was based on Kansas Administrative Regulation § 28-29-16(a)(1). That provision states:
The [Kansas Secretary of Health and Environment] or any duly authorized representative of the secretary, at any reasonable hour of the day, having identified themselves and giving notice of their purpose, may ... [e]nter ... any environment where solid wastes are generated, stored, handled, processed, or disposed, and inspect the premises and gather information of existing conditions and procedures....
[a]ny individual or entity that fails to grant immediate access, upon reasonable request (as defined by the [HHS] Secretary in regulations) to any of the following: .... To the Inspector General of [HHS], for the purpose of reviewing records, documents, and other data necessary to the performance of the statutory functions of the Inspector General.
42 U.S.C. § 1320a-7(b)(12)(C). The question here is whether § 1320a-7(b)(12)(C) and Kansas Administrative Regulation § 28-29-16(a)(1) are analogous. The two can be analogous if they bear similarities even though some differences exist. See American Heritage College Dictionary 48 (3d ed. 1997) (defining an "analogy" as "[s]imilarity in some respects between things that are otherwise dissimilar"). In addressing whether the provisions are analogous, we are trying to determine whether the state law prohibits the same type of "malfeasance" covered in the statutes listed in § 1396a(p)(1). See Planned Parenthood Ariz. Inc. v. Betlach ,
The conduct being prohibited is similar in the two provisions. For example, both provisions require certain entities to provide access to government officials so that they can inspect the premises. A provider violates both provisions by refusing to allow access to government inspectors, rendering the prohibited conduct analogous. In light of these similarities, 42 U.S.C. § 1396a(p)(1) authorized Kansas to terminate providers from Medicaid based on a violation of the state law requiring access for a governmental inspection.
2. The Jane Doe Plaintiffs' Cause of Action
The resulting issue is whether the free-choice-of-provider clause allowed the Jane Doe plaintiffs to challenge Kansas's application of § 1396a(p)(1). The answer is (at best) ambiguous, which is fatal to the Jane Doe plaintiffs' claim.
The district court allowed the Jane Doe plaintiffs to invoke § 1983 to challenge Kansas's action as a violation of the free-choice-of-provider clause. The problem is that Kansas's action was of a type authorized by a separate Medicaid provision:
*1247§ 1396a(p)(1). The district court acknowledged this authorization, but feared that the inability to use § 1983 in these circumstances could allow states to evade judicial review of Medicaid-related decisions, rendering the free-choice-of-provider clause a hollow right. See Planned Parenthood of Kan. & Mid-Mo. v. Mosier , No. 16-2284-JAR-GLR,
This fear does not permit us to broaden § 1983 to allow a private right of action to challenge administrative action taken under § 1396a(p)(1), for it is not our function as judges to create a cause of action to enforce a statute that does not confer an unambiguous federal right. Gonzaga Univ. v. Doe ,
Until today, no majority opinion of another circuit court has addressed this issue in a holding: The issue did not arise in Planned Parenthood of Indiana or in Planned Parenthood Arizona , as the states' actions there were not of a type authorized by a Medicaid provision. Rather, the states in Planned Parenthood of Indiana and Planned Parenthood Arizona had tried to preemptively exclude-as a class-any provider that performed abortion services. Planned Parenthood Ariz. Inc. v. Betlach ,
Unlike in those cases, Kansas argues that its actions under Kansas Administrative Regulation § 28-29-16(a)(1) were justified under the provisions listed in § 1396a(p)(1). That difference matters, as the Ninth Circuit explained in Planned Parenthood Arizona :
[ Section 1396a(p)(1) ] do[es] not apply here. [Arizona's abortion law] does not set out grounds for excluding individual providers from Arizona's Medicaid program demonstrated to have engaged in some type of criminal, fraudulent, abusive, or otherwise improper behavior. Rather, it preemptively bars a class of providers on the ground that their scope of practice includes certain perfectly legal medical procedures.
Planned Parenthood Ariz. ,
The Fifth Circuit in Planned Parenthood of Gulf Coast did address the issue. But the court there did so only in dicta, as the state had not argued that its actions were analogous to any of the provisions listed in § 1396a(p)(1). See Planned Parenthood of Gulf Coast, Inc. v. Gee ,
[T]he free-choice-of-provider [clause] gives individuals the right to demand care from a qualified provider when access to that provider is foreclosed by *1248reasons unrelated to that provider's qualifications. Otherwise, any right to which the [plaintiffs] are entitled to under [the free-choice-of-provider clause] would be hollow.
The Fifth Circuit feared that limiting the plaintiffs' cause of action would render the free-choice-of-provider clause "hollow," relying on Planned Parenthood Southeast, Inc. v. Bentley , a district court case. 141 F.Supp.3d at 1217-18. In Planned Parenthood Southeast , the district court squarely considered the present issue. Id. The court acknowledged that there "plainly are some reasons that a State may terminate a provider ... other than the provider being unqualified." Id. at 1218. But the district court concluded-without any pertinent citation-that the free-choice-of-provider clause must allow plaintiffs to challenge those reasons or result in "evisceration" of the clause. Id. This reasoning is unconvincing for two reasons.
First, even with the absence of a private right of action to litigate the application of state laws authorized by § 1396a(p)(1), plaintiffs could still challenge a state Medicaid program that expressly limited the choice of qualified providers without any separate statutory authority. E.g. , Planned Parenthood Ariz. ,
Second, even if the inability to invoke § 1983 would render the free-choice-of-provider clause "a hollow right," this problem would be for Congress to fix. See Touche Ross & Co. v. Redington ,
The resulting issue is whether the free-choice-of-provider clause unambiguously provided the Jane Doe plaintiffs with a right to have states properly apply their laws (authorized by § 1396a(p)(1) ) to Medicaid providers. Or, instead, has Congress simply conferred the Jane Doe plaintiffs with a right to be covered under a program (like Kansas's) that does not contain unauthorized exclusionary provisions? Though Congress has arguably created an individual right under the free-choice-of-provider clause, the scope of that right remains ambiguous when the state terminates a provider under § 1396a(p)(1).
* * *
In district court, the plaintiffs did not demonstrate the presence of a federal right that is actionable under § 1983. The text of the free-choice-of-provider clause directs states to create Medicaid programs that do not limit access to qualified providers without separate statutory authorization.
*1249To claim an enforceable right to obtain medical care from any provider, it is not enough to show that Congress generally intended for the free-choice-of-provider clause to protect the Jane Doe plaintiffs' choice of providers. See Gonzaga ,
The ambiguity prevents an applicable right, which in turn prevents the Jane Doe plaintiffs from establishing likelihood of success in their challenge to PPKM's termination. And the inability to establish likelihood of success prevents a preliminary injunction. Diné Citizens Against Ruining our Env't v. Jewell ,
III. Conclusion
In my view, the free-choice-of-provider clause does not unambiguously provide the Jane Doe plaintiffs with a right to challenge Kansas's application of § 1396a(p)(1). Therefore, the Jane Doe plaintiffs lacked an enforceable right to challenge Kansas's action. The lack of an enforceable right should have precluded the award of a preliminary injunction to the Jane Doe plaintiffs.
For these reasons, I would reverse the grant of a preliminary injunction to the Jane Doe plaintiffs as to both PPSLR and PPKM. The majority reverses the grant of a preliminary injunction as to PPSLR but affirms the grant of a preliminary injunction as to PPKM. Therefore, I join the majority as to PPSLR and respectfully dissent as to PPKM.
These affiliates are medical providers offering family planning health services to Kansas Medicaid patients. After this suit began, PPKM merged with another Planned Parenthood affiliate (Planned Parenthood of Central Oklahoma) and changed the name to "Planned Parenthood Great Plains."
I focus on PPKM's alleged refusal to allow the inspectors to photograph waste-disposal areas. But Kansas also alleged that PPKM and PPSLR had withheld vendor lists, allowed the illegal sale of fetal organs, and engaged in fraudulent billing practices. Consideration of these allegations is unnecessary for us to reverse.
The plaintiffs also based their motion for a preliminary injunction on a claim involving denial of equal protection. But the district court did not rely on this claim. Nor does the majority.
Reasoning that the Jane Doe plaintiffs had a cause of action, the district court declined to decide whether PPKM and PPSLR could bring the suit on their own.
The other factors are
• whether the plaintiffs would suffer irreparable harm without a preliminary injunction,
• whether the threatened harm outweighs the harm to the adversary from a preliminary injunction, and
• whether the preliminary injunction would harm the public interest.
Diné Citizens Against Ruining Our Env't ,
Kansas also defends its findings that PPKM had violated state law and argues that the Jane Doe plaintiffs had not faced irreparable harm.
In some of the cases invoked by PPKM, the state Medicaid programs contained exclusions unauthorized by Medicaid or any other federal law. See, e.g. , Planned Parenthood Ariz. Inc. v. Betlach ,
In Harris v. James , Medicaid recipients sued under § 1983, alleging that the state's Medicaid program failed to provide transportation to and from providers.
In other words, we do not think that transportation to and from providers is reasonably understood to be part of the content of a right to ... choice among providers. Instead, if the regulation [invoked by the Medicaid recipients] is a valid interpretation of [Medicaid provisions including the free-choice-of-provider clause], it would be because transportation may be a reasonable means of ensuring the prompt provision of ... choice among providers. Such links to Congressional intent may be sufficient to support the validity of a regulation; however, we think they are too tenuous to support a conclusion that Congress has unambiguously conferred upon Medicaid recipients a federal right to transportation enforceable under § 1983.
Planned Parenthood of Gulf Coast, Inc. v. Gee ,
Does v. Gillespie ,
Of the situations listed in those three statutes, we are concerned only with exclusionary powers that are optional for the HHS Secretary. See 42 U.S.C. § 1396a(p)(1) (stating "reason[s] for which the Secretary could exclude" a provider from participation). The three statutes also include exclusionary provisions that are mandatory. A separate section requires that states exclude providers under these mandatory provisions. See 42 U.S.C. § 1396a(a)(39).
Kansas has argued that it could exclude PPKM under Kansas Administrative Regulation § 28-29-16(a)(1) because it had been enacted under § 1396a(p)(1). Appellant's Opening Br. at 48 (quoting Planned Parenthood Ariz. Inc. v. Betlach ,
Similarly, in Harris v. Olszewski , the Sixth Circuit did not consider our issue involving the interplay between the free-choice-of-provider clause and § 1396a(p)(1). See generally Harris v. Olszewski ,