Kansas Hosp. Ass'n v. Whiteman, Civ. A. No. 93-4217-DES.

• Decision Date: 03 November 1993
• Docket Number: Civ. A. No. 93-4217-DES.
• Citation: 835 F. Supp. 1556
• Parties: KANSAS HOSPITAL ASSOCIATION, Bethany Medical Center, Asbury-Salina Regional Medical Center, and Stormont-Vail Regional Medical Center, and Inez Williams, Vanessa Brewer, and Gary Byers, individually and on behalf of all similarly situated persons, Plaintiffs, v. Donna L. WHITEMAN, in her official capacity as Secretary of the Kansas Department of Social and Rehabilitation Services, Donna Shalala, in her official capacity as Secretary of The United States Department of Health and Human Services, and Bruce C. Vladeck, in his official capacity as Administrator of the Health Care Financing Administration, Defendants.
• Court: U.S. District Court — District of Kansas

835 F. Supp. 1556

KANSAS HOSPITAL ASSOCIATION, Bethany Medical Center, Asbury-Salina Regional Medical Center, and Stormont-Vail Regional Medical Center and Inez Williams, Vanessa Brewer, and Gary Byers, individually and on behalf of all similarly situated persons, Plaintiffs, v. Donna L. WHITEMAN, in her official capacity as Secretary of the Kansas Department of Social and Rehabilitation Services, Donna Shalala, in her official capacity as Secretary of The United States Department of Health and Human Services, and Bruce C. Vladeck, in his official capacity as Administrator of the Health Care Financing Administration, Defendants.

Civ. A. No. 93-4217-DES.

United States District Court, D. Kansas.

November 3, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Charles R. Hay, Wayne T. Stratton, Goodell, Stratton, Edmonds & Palmer, Topeka, KS, for Kansas Hosp. Ass'n, Bethany Medical Center, Asbury-Salina Regional Medical Center, Inc. and Stormont-Vail Regional Medical Center.

Carol L. Boorady, Jane K. Swanson, Kansas Legal Services, Inc., Kansas City, KS, for Inez Williams, Vanessa L. Brewer and Gary Byers.

Reid Stacey, Social & Rehabilitation Services, Topeka, KS, Vickie J. Larson, S. William Livingston, Jr., Covington & Burling, Washington, DC, Bruce A. Roby, Kansas Dept. of SRS, Topeka, KS, for Social and Rehabilitative Services.

Jackie A. Rapstine, Office of U.S. Atty., Topeka, KS, for Health and Human Services of U.S.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on the motion of the plaintiffs for a preliminary injunction (Doc. 2). On October 4, 1993, this court issued a temporary restraining order in favor of the plaintiffs to preserve the status quo until such time as the court had the opportunity to consider the plaintiff's motion for preliminary injunction and defendant Whiteman's written response. A hearing was held on the motion on October 25, 1993, at which time the parties presented oral argument and agreed to submit additional evidence for the court's consideration, in the form of deposition transcripts, exhibits, and affidavits, by October 26, 1993. The court has reviewed and considered the motion, the plaintiffs' memoranda in support, the response filed on behalf of defendant Donna Whiteman, the evidence submitted by the parties on October 26, 1993, and the arguments presented at the hearings. The court is now prepared to rule on the motion for a preliminary injunction.

The Parties

This case is brought by two groups of plaintiffs. The first group ("hospital plaintiffs") includes the Kansas Hospital Association, a non-profit corporation representing the views of 126 of the 131 community hospitals in Kansas; Bethany Medical Center, located in Kansas City, Kansas; Asbury-Salina Regional Medical Center, located in Salina, Kansas; and Stormont-Vail Regional Medical Center, located in Topeka, Kansas. The three plaintiff hospitals are all licensed general hospitals. As participating providers in the Kansas Medicaid Plan,¹ each of the three hospitals regularly admits Medicaid beneficiaries as patients.

The second group of plaintiffs ("individual plaintiffs") includes Inez Williams and Vanessa Brewer, both residents of Kansas who are eligible for and receive Medicaid benefits, and Gary Byers, a Kansas resident who is eligible for and receives benefits under the Kansas MediKan program.² All have chronic health problems that are reasonably likely to require hospital treatment within the next year. None of the three individuals have any other medical insurance coverage. The individual plaintiffs seek to represent a class, not as yet certified, comprising all present and future recipients of medical assistance benefits provided by the state Department of Social and Rehabilitation Services who are, or will be, affected by the challenged action.

Defendant Donna Whiteman is the chief executive officer of the state Department of Social and Rehabilitation Services, the agency that administers the Kansas Medicaid Plan. When this case was initially filed, she was the only defendant named in the complaint. However, on October 14, 1993, the individual plaintiffs filed an amended complaint adding as defendants Donna E. Shalala, Secretary of Health and Human Services, and Bruce C. Vladeck, Administrator of the Health Care Financing Administration (hereinafter "federal defendants"). The plaintiffs' amended complaint requests preliminary injunctive relief, however, only against defendant Whiteman. While the federal defendants were represented at the hearing on the preliminary injunction, they did not participate in arguments and have not filed any pleadings to date in this litigation.³

Nature of the Claim

Plaintiffs collectively seek to bar implementation of an impending amendment to K.A.R. 30-5-71(a)(1), a regulation promulgated by defendant Donna Whiteman in her official capacity as Secretary of the Kansas Department of Social and Rehabilitation Services.⁴ Defendant Whiteman is delegated the responsibility under Kansas statutes for administering medical assistance programs in Kansas, including Medicaid. See K.S.A.1992 Supp. 39-708c(s). States electing to participate in the Federal Medicaid program are permitted, but not required, by federal statutes to charge certain Medicaid recipients copayments for specific services. See 42 U.S.C. § 1396o(a)(3), (b)(3), see also Sweeney v. Bane, 996 F.2d 1384, 1385 (2d Cir.1993). The proposed state regulatory amendment, previously scheduled to take effect October 1, 1993,⁵ would increase the copayment charged to medical assistance beneficiaries for inpatient hospital services from the present level of $25 for each hospital admission to $325 per admission.

Jurisdiction and Venue

The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1346(a)(2), inasmuch as the plaintiffs contend that the defendants' actions do not comply with federal law.⁶ Venue is proper under 28 U.S.C. § 1391(b)(2) and (e)(3).

Legal Basis for the Relief Claimed

The plaintiffs seek injunctive and declaratory relief barring defendant Donna Whiteman from implementing the proposed regulation, claiming that the amendment would violate certain rights afforded to some or all of them by federal statutes and regulations. The individual plaintiffs seek equitable remedies for the alleged violations pursuant to 42 U.S.C. § 1383⁷ and 42 U.S.C. § 12101 et seq. (the Americans With Disabilities Act), including a preliminary injunction to bar the proposed amendment from taking effect during the pendency of this litigation. The hospital plaintiffs seek the same declaratory and injunctive relief, apparently relying on 42 U.S.C. § 1983, or in the alternative an implied cause of action pursuant to Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).⁸

Preliminary Injunction Standards

Whether or not to grant preliminary injunctive relief is within the sound discretion of the district court. Tri-State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 354 (10th Cir. 1986); Jimenez v. Barber, 252 F.2d 550, 554 (9th Cir.1958); see also Sweeney v. Bane, 996 F.2d at 1388. To obtain a preliminary injunction in federal court, the movant has the burden of establishing that:

"(1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood that the moving party will eventually prevail on the merits."

Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.1992) (quoting Tri-State Generation, 805 F.2d at 355). If the moving party satisfies the first three elements, the standard for meeting the fourth requirement, likelihood of success on the merits, generally becomes more lenient. In such a case, the movant need only show that the issues are so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation.⁹ See id. at 1199 (citing Tri-State Generation, 805 F.2d at 358); see also Otero Sav. & Loan Ass'n v. Federal Reserve Bank, 665 F.2d 275, 278 (10th Cir.1981).

1. Irreparable Injury. The court considers it significant that a hospital may not deny services to an eligible Medicaid beneficiary because of inability to pay the required copayment. See 42 U.S.C. § 1396o(e); 42 C.F.R. § 447.15. However, inability to pay does not extinguish the individual's liability to the hospital for the copay amount. Id. The court must therefore conclude that none of the individual plaintiffs will be denied access to inpatient hospital care because of inability to pay the proposed increase in the copay requirement. Further, the copayment requirement does not apply at all to emergency hospital care, whether provided on an inpatient or outpatient basis. See 42 U.S.C. § 1396o(a)(2)(D), (b)(2)(D); 42 C.F.R. § 447.53(b)(4). Nor does it apply to children under age 18, pregnant women for pregnancy-related services, institutionalized persons subject to spend-down requirements, or certain HMO enrollees. See 42 U.S.C. § 1396o(a)(2), (b)(2); 42 C.F.R. § 447.53(b).¹⁰ Hence, the court concludes that the individual plaintiffs will not be deprived of access to necessary hospital care if the increased copayment requirement takes effect.

The individual plaintiffs contend, however, that they will be deterred from seeking necessary hospital care by the imposition of a copayment at a level that they cannot afford to pay given their limited financial resources. The court agrees that there may be isolated instances during the course of this litigation in which Medicaid recipients would delay or reject necessary non-emergency inpatient hospital treatment out of concern that they will be unable to afford to pay $325 toward its cost. It is possible that such a decision could...