Bader v. Wernert

• Decision Date: 14 April 2016
• Docket Number: CAUSE NO.: 1:15-CV-375-TLS
• Parties: Dr. Patricia Bader, M.D., Northeast Indiana Genetic Counseling Center, P.C., A.K. through her guardian and representative Perla Graber, C.K. through his guardian and representative Perla Graber, P.D. through his guardian and representative Cynthia Church, and A.W., Plaintiffs, v. John J. Wernert, M.D., in his official capacity as Secretary of the Indiana Family and Social Services Administration, and Joe Moser, in his official capacity as Director of Medicaid for the Indiana Family and Social Services Administration, Defendants.
• Court: U.S. District Court — Northern District of Indiana

178 F.Supp.3d 703

Dr. Patricia Bader, M.D., Northeast Indiana Genetic Counseling Center, P.C., A.K. through her guardian and representative Perla Graber, C.K. through his guardian and representative Perla Graber, P.D. through his guardian and representative Cynthia Church, and A.W., Plaintiffs,

v.John J. Wernert, M.D., in his official capacity as Secretary of the Indiana Family and Social Services Administration, and Joe Moser, in his official capacity as Director of Medicaid for the Indiana Family and Social Services Administration, Defendants.

CAUSE NO.: 1:15-CV-375-TLS

United States District Court, N.D. Indiana, Fort Wayne Division.

Signed April 14, 2016

Joshua G Urquhart, Gordon & Rees LLP, Denver, CO, Knicole C. Emanuel, Gordon & Rees LLP, Raleigh, NC, for Plaintiffs.

Brian L. Park, Jefferson S. Garn, Indianapolis, IN, for Defendants.

OPINION AND ORDER

THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT

This case involves several plaintiffs seeking to enjoin the actions of Dr. John J. Wernert and Joe Moser, who are the officials in the Indiana Family and Social Services Administration (FSSA) charged with overseeing Indiana's Medicaid program (the “Defendants”). The plaintiffs include healthcare providers Dr. Patricia Bader and the Northeast Indiana Genetic Counseling Center, P.C. (the “Providers”), and several patients: P.D., through his guardian and representative, Cynthia Church; A.W.; and A.K. and C.K., each through their guardian and representative, Perla Graber (the “Patients”).¹ On December 10, 2015, the Plaintiffs filed a motion requesting that this Court enjoin FSSA from (1) “terminating the Providers from the Indiana Medicaid program and” (2) “continuing to block all payments owed to the Providers for claims submitted over a two-year period through the placement of the Providers in the so-called 'Medicaid Prepayment Review Program.”'² (Pls.' Mot. TRO & Prelim. Inj. 18, ECF No. 2.) On December 16, 2015, the Court held an on-the-record, ex parte telephone conference with Plaintiffs' counsel regarding the Temporary Restraining Order (TRO). However, upon being notified that FSSA's counsel entered their appearances after the telephone conference started, the Court continued the telephone conference. On December 17, 2015, the Court resumed the on-the-record telephone conference with all parties participating, and as such, the request for a TRO was rendered moot.

This matter is now before the Court on the Plaintiffs' Motion for Preliminary Injunction [ECF No. 2]. The Plaintiffs bring all their claims under 42 U.S.C. § 1983. The Patients allege that FSSA's decision to terminate Dr. Bader as a Medicaid provider, as well as FSSA's use of prepayment review against the Providers, violates their statutory right to freely choose their Medicaid provider. 42 U.S.C. § 1396a(a)(23). The Providers allege that FSSA has violated their right to due process under the Fourteenth Amendment. The parties have fully briefed the issues and the Court presided over a five-day evidentiary hearing that started on January 19, 2016, and ended on January 25, 2016. For the reasons set forth below, the Plaintiffs' Motion is granted in part, and denied in part. FSSA's without cause termination of Dr. Bader is preliminarily enjoined, but the Plaintiffs' other claims are denied.

BACKGROUND

Dr. Bader is a physician who has an Indiana medical license. She is certified in pediatrics by the American Board of Pediatrics, and certified in clinical genetics and clinical cytogenetics by the American Board of Medical Genetics. In 1981, Dr. Bader founded Northeast Indiana Genetic Counseling Center (NIGCC). Since that time, Dr. Bader has been the president of NIGCC, as well as its primary physician. Through NIGCC, Dr. Bader provides patients with “genetic services including evaluation, genetic diagnostic services, counseling, management[,] and surveillance recommendations.” (Dr. Bader Aff. 1, ECF No. 2-2.) NIGCC's office is located in Fort Wayne, Indiana, and its patients reside across the northern Indiana region, including the Fort Wayne metropolitan area. About 50 percent of NIGCC's patients reside in areas designated by the federal Health Resources and Services Administration as underserved and physician shortage areas.

Dr. Bader testified that NIGCC serves patients who have “muscular dystrophy

, cystic fibrosis, Huntington's disease, Marfan Syndrome, hemochromatosis, chromosome abnormalities, autism, mental retardation, fetal alcohol syndrome, and many patients with birth defects that lead to disability.” (Dr. Bader Aff. 3.) Throughout most of NIGCC's existence and Dr. Bader's career, she has been the only Medicaid-eligible provider of genetic services in northeastern and north central Indiana. However, from August 2013 through November 2015, NIGCC also employed Dr. Karl de Dios, who is a biochemical geneticist certified by the American Board of Medical Genetics and Genomics. Dr. de Dios treated Medicaid patients while employed by NIGCC.³ NIGCC also currently employs a nurse practitioner. Apart from NIGCC, in late 2015, northeastern Indiana gained another physician-geneticist. This geneticist is located in Topeka, Indiana, and is certified by the American Board of Medical Genetics and Genomics. Geneticists are also located in South Bend and Indianapolis. Dr. Bader testified that “[NIGCC's] patient population relies heavily on the Indiana state Medicaid program.” (Dr. Bader Aff. 3.)

From 1981 through August 2013, Dr. Bader was the only full-time physician working at NIGCC. In June 2003, Joe Bader was hired as the office manager for NIGCC.⁴ At that time, NIGCC's staff included Dr. Bader, Mr. Bader, “one full-time clerical person,” and “a part-time person that came in one day a week...maybe a half a day.” (Prelim. Inj. Hr'g Tr. vol. 3, 549:21–24.) Mr. Bader testified that, in 2003, NIGCC had overall revenue that was “not very steady,” and ranged from $15,000 to $20,000 per month. (Hr'g Tr. vol. 3, 549:18–20.) Further, NIGCC treated “less than 1500” Medicaid patients, which represented “the majority” of the office's patients. (Hr'g Tr. vol. 3, 532:12–15, 551:1–2.) Two weeks after Mr. Bader joined NIGCC, he hired Lori Gomez to serve as the office's second billing provider. Gomez's primary job responsibility is to process medical claims after the medical providers treat patients and complete the billing sheets, which includes submitting claims to Medicaid for payment.⁵

Mr. Bader testified that, starting in 2003, NIGCC's practice grew exponentially. By 2013, revenues ranged from $80,000 to $100,000 per month, with “[o]ver 70 percent” of NIGCC's overall revenue coming from Medicaid payments. (Hr'g Tr. vol. 3, 550: 20–22.) Dr. Bader testified that when NIGCC had five practitioners on staff, it was treating about 10,000 patients per year and about 70 percent of the patients were on Medicaid. One of these practitioners included Dr. de Dios once he joined NIGCC in August 2013 as the second geneticist. NIGCC also had about nine non-practitioners on staff, meaning that it had a total of fourteen full-and part-time employees.

At NIGCC, Dr. Bader treats patients who request one-time appointments, as well as other patients who see her on a regular basis for continuing care. The Patients in this lawsuit fall into the latter category. P.D., who is twenty-eight years old, is diagnosed with “autism

spectrum disorder, moderate mental disability, and anxiety.” (Church Aff. 2, ECF No. 2-4.) Cynthia Church, who is P.D.'s biological mother and legal guardian, testified that he will need assistance all his life because he has a first-grade reading level and has low functioning skills. P.D. first received treatment from Dr. Bader when he was eight years old. Subsequently, P.D. stopped seeing Dr. Bader for an unspecified period of time, but he resumed seeing Dr. Bader around the time he turned eighteen. P.D. sees Dr. Bader and NIGCC about four times per year for routine check-ups, during which Dr. Bader usually prescribes medication to treat his autism

spectrum disorder, moderate mental disability, and anxiety.

A.W. is eighteen years old and has seen Dr. Bader since he was eight years old. A.W. has appointments with Dr. Bader “once a month on average” for routine check-ups and he receives prescription medication. (A.W. Aff. 2, ECF No. 2-5.) A.W. has been diagnosed with “conduct disorder, mild retardation, attention deficit disorder

, impulse control disorder, depression, withdrawal, lead poisoning, and sensory receptive disorder.” (A.W. Aff. 2.) He also has seizures and hearing loss.

Dr. Bader and NIGCC also treat Perla Graber's adoptive children, A.K. and C.K, who are seventeen years old and thirteen years old, respectively. Perla Graber, as the legal guardian of A.K. and C.K., testified on their behalf.⁶ According to Ms. Graber, A.K. first saw Dr. Bader around fourteen years ago for her conditions, which include “fetal alcohol syndrome, anxiety, depression... [and] fetal cocaine diagnosis.” (Hr'g Tr. vol. 2, 214:7–10.) A.K. sees Dr. Bader for routine check-ups, monthly prescriptions, and emergency care during acute episodes. This results in A.K. meeting with Dr. Bader three times per year, but the additional appointments with Dr. Bader for emergency care could increase the frequency of appointments to once a month. C.K. has fetal alcohol syndrome, Asperger's syndrome

, and anxiety. Similar to A.K., Dr. Bader sees C.K. for routine check-ups, monthly prescriptions, and emergency care during acute episodes, and C.K. may meet with Dr. Bader as often as once a month. However, unlike A.K., C.K. “first began receiving care from Dr. Bader a few years ago. He subsequently switched to another provider” but “moved back to using Dr. Bader” “in the past year” because “we were happier with [her] care.” (Graber Aff. 2, ECF No. 2-3.)

The Patients have uniformly stated, either personally or through a guardian: (1) that their conditions “could have a genetic component to them” (Graber Aff. 3; Churc...