Gorenc v. Klaassen

• Decision Date: 30 September 2019
• Docket Number: Case No. 18-2403-DDC-JPO
• Citation: 421 F.Supp.3d 1131
• Parties: Julie GORENC, Kara Winkler, and Midwife Partners in Women's Wellness, LLC, Plaintiffs, v. JoAnn KLAASSEN, RN, MN, JD, in her official capacity as the President of The Kansas State Board of Nursing, et al., Defendants.
• Court: U.S. District Court — District of Kansas

421 F.Supp.3d 1131

Julie GORENC, Kara Winkler, and Midwife Partners in Women's Wellness, LLC, Plaintiffs,
v.
JoAnn KLAASSEN, RN, MN, JD, in her official capacity as the President of The Kansas State Board of Nursing, et al., Defendants.

Case No. 18-2403-DDC-JPO

United States District Court, D. Kansas.

Signed September 30, 2019

421 F.Supp.3d 1138

Keith N. Williston, The Williston Law Firm, LLC, Blue Springs, MO, for Plaintiffs.

Blane R. Markley, Spencer Fane LLP, Overland Park, KS, Kathryn Goldsmith Lee, Evergy, Inc., Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

421 F.Supp.3d 1139

Before the court is defendant JoAnn Klaassen, RN, MN, JD's Motion to Dismiss (Doc. 11). Defendant Klaassen is sued in her official capacity as President of the Kansas State Board of Nursing. She moves for dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).¹ See Docs. 11, 12. For reasons explained below, the court grants defendant Klaassen's Motion to Dismiss.

I. Background

The court takes the following facts from plaintiffs' Complaint (Doc. 1) and views them in the light most favorable to plaintiffs. S.E.C. v. Shields , 744 F.3d 633, 640 (10th Cir. 2014) (explaining that the court must "accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff]" (citation and internal quotation marks omitted)).

Julie Gorenc and Kara Winkler are nurse-midwives holding active advance practice registered nurse ("APRN") licenses issued by the Kansas State Board of Nursing ("KSBN"). Doc. 1 at 3 (Compl. ¶¶ 7–8). Ms. Gorenc and Ms. Winkler practice through Midwife Partners in Women's Wellness, LLC, a Kansas limited liability company ("Midwife Partners in Women's Wellness," and together with Ms. Gorenc and Ms. Winkler, "plaintiffs"). Doc. 1 at 3 (Compl. ¶ 9). Plaintiffs sue defendant Klaassen in her official capacity as President of KSBN, referring to defendant throughout the Complaint as "KSBN" because "a suit against an official is treated as a suit against the entity." Id. at 3 (Compl. ¶ 10).²

KSBN and Adventist Health Mid-America, Inc. ("Adventist") required plaintiffs to have a collaborative practice agreement (a "CPA") with a private physician as a condition to attending births at Shawnee Mission Medical Center Health ("SMMCH"). Id. at 5 (Compl. ¶ 22). Sometime in 2016, plaintiffs entered into a CPA with Dr. Janetta Proverbs, also a defendant in this case, permitting plaintiffs delivery privileges at SMMCH. Id. (Compl. ¶¶ 21–25). Dr. Proverbs informed plaintiffs that she would terminate the CPA, effective February 2018. Id. (Compl. ¶¶ 23–25). Plaintiffs sought CPAs with other OB/GYNs³ employed at SMMCH without avail. Id. at 5 (Compl. ¶¶ 26–30). Without a CPA with a physician employed or holding privileges

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at SMMCH, plaintiffs could not attend the deliveries of their clients at SMMCH, causing clients to leave plaintiffs' practice. Id. at 16 (Compl. ¶¶ 33–34).

Under Kansas law, KSBN is charged with adopting standards, regulations, and professional requirements for APRNs. Kan. Stat. Ann. § 65-1130(c)(1), (c)(3) (the board of nursing "shall adopt rules and regulations applicable to [APRNs]" which "establish roles ... of [APRNs] which are consistent with nursing practice specialties recognized by the nursing profession" and which "define the role of [APRNs] and establish limitations and restrictions on such role"). Kan. Stat. Ann. § 65-1130(d) states APRNs "may prescribe drugs pursuant to a written protocol as authorized by a responsible physician " provided that "[i]n no case shall the scope of authority of the advanced practice registered nurse exceed the normal and customary practice of the responsible physician" (emphasis added). A "responsible physician" is "a person licensed to practice medicine and surgery in Kansas who has accepted responsibility for the protocol and the actions of the [APRN] when prescribing drugs." Kan. Stat. Ann. § 65-1130(d). Kan. Stat. Ann. § 65-1130(g) provides that APRNs "certified in the role of certified nurse-midwife and engaging in the independent practice of midwifery under the independent practice of midwifery act with respect to prescribing drugs shall be subject to the provisions of the independent practice of midwifery act and shall not be subject to the provisions of this section."

Under regulations adopted by KSBN, APRNs are authorized to "make independent decisions about advanced practice nursing needs of families, patients, and clients." Kan. Admin. Regs. § 60-11-101(a). APRNs may also make "medical decisions based on the authorization for collaborative practice with one or more physicians. " Id. (emphasis added). The regulation defines "Authorization for collaborative practice" to mean "that an APRN is authorized to develop and manage the medical plan of care for patients or clients based upon an agreement developed jointly and signed by the APRN and one or more physicians." Kan. Admin. Regs. § 60-11-101(b).⁴ Under the regulations, "physician" is defined as "a person licensed to practice medicine and surgery by the state board of healing arts." Kan. Admin. Regs. 60-11-101(c).

Plaintiffs assert that Kan. Admin. Regs. § 60-11-101 delegates to private physicians the "authority to define each, individual APRN's legal privileges," violating Article 2, § 1 of the Constitution of the State of Kansas. Doc. 1 at 7–10 (Compl. ¶¶ 37–43, 57–59). Plaintiffs contend that the Kansas Legislature delegated authority to KSBN to enact regulations establishing the roles of APRNs "consistent with nursing practice specialties recognized by the nursing profession." Id. And, they argue, by promulgating Kan. Admin. Regs. § 60-11-101, KSBN has further delegated that legislative power to private physicians, i.e. , by allowing APRNs and physicians to enter into collaborative practice agreements that expand an APRNs role to include making medical decisions. Id. Plaintiffs argue this violates the nondelegation doctrine in the Kansas Constitution. Id. And, plaintiffs allege Kan. Stat. Ann. § 65-1130 and Kan. Admin. Regs. § 60-11-101 do not set any standards governing a physician's decision to grant or deny a CPA or what can be included in it, other than it cannot " ‘exceed

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the normal and customary practice of the responsible physician.’ " Doc. 1 at 8 (Compl. ¶ 43) (quoting Kan. Stat. Ann. § 65-1130(d) ).

Plaintiffs also allege that the defendants have "deprived [p]laintiffs of their liberty and property interests in contracting and practicing their chosen profession without due process of law." Doc. 1 at 1 (Compl. ¶ 3); see also id. at 15–17, 21 (Compl. ¶¶ 17–18, 87, 92–94, 121–122) (alleging a property and liberty interest in "practicing in their chosen profession free from unreasonable restraint," "a liberty interest in entering into private contracts," impairment of plaintiffs' "freedom to contract," and damage to plaintiffs' reputation). Plaintiffs allege that the collaborative practice statute ( § 65-1130 ) and regulation ( § 60-11-101 ) do not have necessary language setting out specific standards for CPAs between physicians and APRNs, letting plaintiffs' competitors—the private physicians—determine what each APRN can and cannot do. Doc. 1. at 5, 8 (Compl. ¶¶ 43, 51–52). Instead, plaintiffs assert KSBN should pass rules of general applicability that will apply to all APRNs, without physician involvement. Id. (Compl. ¶¶ 44–45, 59). In connection with the alleged violation of the Kansas Constitution by giving legislative power to physicians, plaintiffs contend that delegating authority to private physicians violates plaintiffs' substantive and procedural due process rights, as they should be entitled to the same procedural protections before revocation of a CPA as they would be entitled to before revocation of their APRN licenses. See id. at 1, 8–11 (Compl. ¶¶ 1, 47–62). Plaintiffs also appear to assert that they should be entitled to such procedural protections any time a physician is asked to collaborate but declines to enter into a CPA with an APRN. See Doc. 1 at 10, 14–15 (Compl. ¶ 54–56, 82–86).

Plaintiffs next allege an equal protection violation. This theory asserts that KSBN should expand the definition of nursing to include acts like prescribing drugs, regardless whether a CPA is in place, as such acts are "consistent with nursing practice specialties recognized by the nursing profession." Id. at 11–14 (Compl. ¶¶ 63–80). By including prescriptive authority in the statutes and regulations under some circumstances (i.e. , "pursuant to a written protocol as authorized by a responsible physician" under Kan. Stat. Ann. § 65-1130(d) ), and by teaching diagnosis and prescription in Kansas universities' APRN programs, plaintiffs contend the Kansas Legislature "could not have rationally believed the public would be protected by legislation that arbitrarily limited the nursing profession to less than what APRNs are safe, competent and trustworthy to provide." Id. at 13 (Compl. ¶¶ 73–76). Plaintiffs assert that they should not be limited in their ability to perform such acts only to circumstances where...