Planned Parenthod Kansas v. Mosier
| Decision Date | 05 July 2016 |
| Docket Number | Case No. 16-2284-JAR-GLR |
| Parties | PLANNED PARENTHOD OF KANSAS AND MID-MISSOURI, et al., Plaintiffs, v. SUSAN MOSIER, M.D., Secretary, Kansas Department Of Health And Environment, In Her Official Capacity, Defendant. |
| Court | U.S. District Court — District of Kansas |
In May 2016, after an informal administrative hearing, Defendant Susan Mosier, in her official capacity as Secretary of the Kansas Department of Health and Environment ("KDHE"), at the direction of Governor Sam Brownback, terminated as Medicaid providers Plaintiffs Planned Parenthood of Kansas and Mid-Missouri ("PPKM"), Planned Parenthood of the St. Louis Region and Southwest Missouri ("PPSLR"), and eleven current and former individual provider Plaintiffs who are, or were in the past, employees of PPKM and PPSLR. The KDHE provided three grounds for the termination decisions: (1) video evidence about practices by other Planned Parenthood Federation of America ("PPFA") affiliates that include unlawful agreements to procure fetal tissue after abortions; (2) PPKM's failure to cooperate with KDHE solid waste disposal inspections; and (3) claims submission concerns about other PPFA affiliates identified by neighboring states. Plaintiffs PPKM, PPSLR, the individual providers, and three Jane Doe patient Plaintiffs filed this action challenging the KDHE's decision under the Medicaid Act and the Equal Protection Clause of the United States Constitution, and sought preliminary injunctive relief from the termination decisions. On June 13, 2016, the KDHE reconsidered and reversed its decision to terminate the eleven individual health care provider plaintiffs from the Medicaid program. On June 29, 2016, the individual providers voluntarily dismissed their claims in this matter.1
Before the Court are Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 12); Motion to Certify Class (Doc. 14), and Motion to Strike Exhibits (Doc. 51). These motions are fully briefed, and the Court heard argument on the preliminary injunction motion on June 7, 2016. The Court considers the motion for preliminary injunction as it pertains to PPKM and PPSLR only.
On June 24, 2016, Defendant filed a Motion to Dismiss (Doc. 59), re-arguing some of the justiciability arguments raised in response to the motion for preliminary injunction, adding others, and challenging both of Plaintiffs' claims under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. This motion is not fully briefed, but the Court at this time considers Defendant's justiciability challenges, to the extent necessary to rule on the motion for preliminary injunction.
Having fully considered the parties' arguments and evidence on these issues, the Court is prepared to rule. As described more fully below, Plaintiffs' motion for preliminary injunction is granted and the class certification motion is denied without prejudice. The motion to strike is denied. Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction is denied in part; the motion otherwise will remain pending and the Court will rule on the remaining issues raised therein after it is fully briefed.
Plaintiffs have submitted the sworn declarations of Laura McQuade, President and CEO of PPKM, and Mary Kogut, President and CEO of PPSLR in support of their motions forpreliminary injunction.2 Each declarant is responsible for the management of their respective organization and is therefore familiar with operations and finances, including the services they provide and the communities they serve. The Court finds that the information provided in these declarations is within the scope of each declarant's personal knowledge, given their roles in these organizations.
For forty years, PPKM (and its predecessor organizations) has been a Medicaid provider for thousands of Kansans. PPKM provides Medicaid services to Kansas residents at two health centers in Kansas and three health centers in nearby cities in Missouri. In 2014, PPKM and affiliated providers provided family planning services at approximately 750 visits to nearly 500 Medicaid patients. In 2015, PPKM and affiliated providers provided services at over 650 visits to nearly 450 Medicaid patients. PPKM offers a range of family planning and other health services, including annual exams, contraception (including long-acting reversible contraception or "LARC") and contraceptive counseling, hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for sexually transmitted infections ("STIs"), including human papilloma virus ("HPV") vaccines, pregnancy testing and counseling, and other limited general health services, such as hemoglobin testing for anemia. The Wichita, Kansas City, and Independence health centers are in areas that have primary care provider shortages.
PPSLR operates several health centers in Missouri, including a health center in Joplin, Missouri, which is located approximately seven miles from the Kansas border and provides family planning health services to a small number of Kansas Medicaid patients each year, including well-woman exams, contraception (including LARC) and contraceptive counseling,hormonal counseling, screening for breast cancer, screening and treatment for cervical cancer, screening and treatment for STIs, including HPV vaccines, and pregnancy testing and counseling. PPSLR's Joplin, Missouri health center is located in a Primary Care Health Professional Shortage Area ("HPSA"), and Cherokee County, Kansas, the county directly across the border from Joplin, Missouri is also in a Primary Care HPSA and is designated as a Medically Underserved Population Area.
In 2013, the Kansas Medicaid program implemented KanCare and moved from a fee-for-service program model to a managed care program model. PPKM enrolled as a KanCare provider at that time with three managed care organizations ("MCOs") that the State of Kansas contracted with to coordinate care for nearly all of its Medicaid beneficiaries. Defendant has submitted a 2016 contractual amendment to its contracts with the MCOs, which provides that a contract termination with a Medicaid provider "shall be effective 30 calendar 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."3 But PPKM has attested that its contracts with the various MCOs do not contain this provision, and instead allow for a quicker contract termination.4 PPSLR does not have contracts with the MCOs that coordinate care for most Medicaid patients in Kansas.
In order to qualify for Kansas Medicaid/KanCare, among other requirements, an adult must be low-income and either pregnant, disabled or a parent. For example, the monthly income for a family of four cannot exceed $768. Medicaid does not pay for abortions for Kansas womenexcept under very narrow circumstances allowed for under federal law: if their lives are in danger or if they are a victim of rape or incest.5
According to evidence presented by both sides of this dispute, PPKM and PPSLR are both independently incorporated affiliates of Planned Parenthood Federation of America.6 For example, Defendant presents PPFA's Consolidated Financial Statements and Supplementary Information from June 30, 2015 and 2014, as evidence that Planned Parenthood affiliates are "financially integrated" with PPFA. That document provides details about the organizational structure of PPFA:
PPFA, which is the nation's oldest and largest voluntary family planning organization, maintains primary domestic offices in New York City and Washington, DC . . . . The Organization is also affiliated with 61 independent medical and related entities, and 104 ancillary entities (including 55 Political Action Committees and 55-501(c)(4) organizations), all of which are separately incorporated in their respective states and which collectively constitute PPFA's membership. Accordingly, the accompanying consolidated financial statements do not include the financial position or the changes in net assets and cash flows of these independent affiliated organizations.7
With respect to financial support from PPFA, the document explains:
The National Program Support Plan (NPS) is a membership program between PPFA and Planned Parenthood Affiliates. NPS requires affiliates to pay quarterly membership dues to PPFA for the support and national visibility PPFA provides as well as the right to use the PPFA brand. The revenue is recognized as an increase to unrestricted net assets as the membership fees become due.8
Another fund, the Fund for the Future ("the Fund"), is a PPFA fund designed to help 9 As stated repeatedly throughout the record, PPKM and PPSLR are not subsidiaries of PPFA; they are separate corporations. PPKM and PPSLR are members of PPFA, which promulgates medical and other standards to which affiliates must adhere in order to operate under the name "Planned Parenthood" and otherwise use the Planned Parenthood mark.10 PPFA does not provide medical services or operate health centers. PPFA exerted no control or ownership interest in PPKM or PPSLR in providing them with grants or other funding.
Plaintiff Jane Doe #1 is a PPKM patient who lives in Overland Park, Kansas and has received her annual well-woman gynecological exam at the Overland Park health center. She qualifies for Medicaid until the spring of 2017. Jane Doe #1 characterizes her care as excellent based on the friendliness of the staff, and the fact that she does not feel judged because she is a single mother. She states that the providers she saw at PPKM spent as much time...
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