Affiliated Professional Home Health Care Agency v. Shalala, No. 98-40032

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore REYNALDO G. GARZA, JONES and DeMOSS; PER CURIAM
Citation164 F.3d 282
Decision Date20 January 1999
Docket NumberNo. 98-40032
PartiesAFFILIATED PROFESSIONAL HOME HEALTH CARE AGENCY; Carrie M. Hamilton, Individually; Wessie Dobbins, Individually; Ethel Shelton, Individually, Plaintiffs-Appellees, v. Donna E. SHALALA, Secretary, Department of Health & Human Services, et al., Defendants, Donna E. Shalala, Secretary, Department of Health & Human Services, Defendant--Appellant.

Page 282

164 F.3d 282
59 Soc.Sec.Rep.Ser. 632
AFFILIATED PROFESSIONAL HOME HEALTH CARE AGENCY; Carrie M.
Hamilton, Individually; Wessie Dobbins,
Individually; Ethel Shelton,
Individually, Plaintiffs-Appellees,
v.
Donna E. SHALALA, Secretary, Department of Health & Human
Services, et al., Defendants,
Donna E. Shalala, Secretary, Department of Health & Human
Services, Defendant--Appellant.
No. 98-40032.
United States Court of Appeals,
Fifth Circuit.
Jan. 20, 1999.

Page 283

Patrick J. Gilpin, Patrick J. Gilpin & Associates, Houston, TX, for Plaintiffs-Appellees.

Gary Lynn Bledsoe, Robert Notzon, Austin, TX, for Affiliated Professional Home Health Care Agency.

John S. Koppel, Mark Bernard Stern, U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, DC, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

PER CURIAM:

I. FACTUAL AND PROCEDURAL BACKGROUND

In this appeal we must decide whether the district court properly granted a preliminary injunction in favor of Affiliated Professional Home Health Care Agency ("APRO").

APRO is a health care agency that specializes in providing home-based health care. It is an African-American owned enterprise, founded in 1993, that operates in Harris, Galveston, and Jefferson Counties, Texas. In 1997, APRO was participating as a health care provider in the federal Medicare program,

Page 284

as established by Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. Although that program is funded entirely by the federal government, and administered by the Secretary of Health and Human Services, various administrative functions are performed by state agencies that work for the Secretary under contract. Those tasks included unannounced, on-site surveys of Medicare providers to ensure their compliance with the statutory requirements for Medicare participation. After a state agency conducts such a survey, it submits its findings and recommendations to the Secretary. Then the Secretary initiates any necessary action including the termination of the Medicare provider agreement between the Secretary and the health care agency. In Texas, the Health Facility Licensure and Certification Agency, which is part of the Texas Department of Health ("TDH"), is the state agency that conducts Medicare surveys on behalf of the Secretary.

Once a health care agency is given notice that its provider agreement is being terminated, the provider may request an evidentiary hearing before an administrative law judge ("ALJ") on the Health and Human Services Department Appeals Board ("Appeals Board"). The ALJ's decision becomes the Secretary's final decision for purposes of judicial review unless that decision is subsequently reviewed by the Appellate Division of the Appeals Board. The provider may seek judicial review in federal district court only after it has exhausted all of these administrative remedies. See 42 U.S.C. § 405(g) & (h); 42 U.S.C. § 1395cc(h)(1).

In 1997, the TDH conducted three separate surveys of APRO, each revealing that APRO had fallen out of compliance with various conditions of participation. After each of the first two surveys APRO was afforded an opportunity to correct the deficiencies in order to avoid having its provider status terminated. After the third survey revealed that APRO was still not in compliance, the Secretary issued a notice of termination effective November 15, 1997. The Secretary also ordered the suspension of Medicare payments to APRO.

On October 30, 1997, APRO, two of its corporate officers, and one of its patients (plaintiffs-appellees, collectively referred to as "APRO"), filed suit in federal court against the Secretary, the Deputy Administrator of the Health Care Finance Administration ("HCFA"), TDH, its Commissioner, and four of its surveyors (collectively referred to as "defendants"), alleging that they conspired to violate APRO's right to due process and equal protection under the United States Constitution. Specifically, APRO charged the Secretary with improperly and arbitrarily enforcing various Medicare rules and regulations based solely on the fact that APRO is an African-American owned enterprise.

On October 30, 1997, APRO moved for a preliminary injunction seeking to prevent the defendants from terminating APRO's Medicare provider status. The Secretary and Deputy Administrator of the HCFA opposed the motion through written responses and moved to dismiss APRO's complaint for lack of jurisdiction. 1

On November 6, 1997, the district court held a...

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242 practice notes
  • Supreme Home Health Servs., Inc. v. Azar, CIVIL ACTION NO. 18-1370
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • April 8, 2019
    ...satisfied. . . . Second, the claimant must have exhausted his administrative review.Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir.1999) (citing Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893 (1976)).The government's protestations notwithstanding, the......
  • Douglas v. O'Neal, CIVIL ACTION NO. 1:17-CV-00808
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • August 23, 2018
    ...States brought under the civil rights statutes are barred by sovereign immunity." Affiliated Prof. Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (citing Unimex, Inc. v. United States Dept. of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir. 1979) (soverei......
  • Gaede v. U.S. Forest Serv., CASE NO. CV F 12-0468 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...U.S.C. §§ 1981, 1983, 1985, 1985 and 1988, "are barred by sovereign immunity." Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Unimex, Inc. v. United States Dept. of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir.1979). "Moreover, ......
  • Martinez v. United States, Case No. EDCV 09–0375–SVW (RC).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 30, 2010
    ...immunity. Davis v. United States Dep't of Justice, 204 F.3d 723, 726 (7th Cir.2000); Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999). Nor may this Court construe plaintiff's civil rights claim as a Bivens2 claim against the United States since “ Bivens......
  • Request a trial to view additional results
242 cases
  • Supreme Home Health Servs., Inc. v. Azar, CIVIL ACTION NO. 18-1370
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • April 8, 2019
    ...satisfied. . . . Second, the claimant must have exhausted his administrative review.Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 285 (5th Cir.1999) (citing Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893 (1976)).The government's protestations notwithstanding, the......
  • Douglas v. O'Neal, CIVIL ACTION NO. 1:17-CV-00808
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • August 23, 2018
    ...States brought under the civil rights statutes are barred by sovereign immunity." Affiliated Prof. Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999) (citing Unimex, Inc. v. United States Dept. of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir. 1979) (soverei......
  • Gaede v. U.S. Forest Serv., CASE NO. CV F 12-0468 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 9, 2013
    ...U.S.C. §§ 1981, 1983, 1985, 1985 and 1988, "are barred by sovereign immunity." Affiliated Professional Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir. 1999); Unimex, Inc. v. United States Dept. of Housing and Urban Development, 594 F.2d 1060, 1061 (5th Cir.1979). "Moreover, ......
  • Martinez v. United States, Case No. EDCV 09–0375–SVW (RC).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 30, 2010
    ...immunity. Davis v. United States Dep't of Justice, 204 F.3d 723, 726 (7th Cir.2000); Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999). Nor may this Court construe plaintiff's civil rights claim as a Bivens2 claim against the United States since “ Bivens......
  • Request a trial to view additional results

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