Planned Parenthood Gulf Coast, Inc. v. Kliebert, CIVIL ACTION No. 3:15-cv-00565-JWD-SCR

• Decision Date: 29 October 2015
• Docket Number: CIVIL ACTION No. 3:15-cv-00565-JWD-SCR
• Parties: Planned Parenthood Gulf Coast, Inc.; Jane Doe #1; Jane Doe #2; and Jane Doe #3, Plaintiffs, v. Kathy Kliebert, Secretary, Louisiana Department of Health and Hospitals, Defendant.
• Court: U.S. District Court — Middle District of Louisiana

141 F.Supp.3d 604

Planned Parenthood Gulf Coast, Inc.; Jane Doe #1; Jane Doe #2; and Jane Doe #3, Plaintiffs,

v.Kathy Kliebert, Secretary, Louisiana Department of Health and Hospitals, Defendant.

CIVIL ACTION No. 3:15-cv-00565-JWD-SCR

United States District Court, M.D. Louisiana.

Signed October 29, 2015

William E. Rittenberg, Rittenberg & Samuel, LLC, New Orleans, LA, Carrie Y. Flaxman, Planned Parenthood Federation of America, Washington, DC, Melissa Cohen, Planned Parenthood Federation of America, New York, NY, for Plaintiffs.

Stephen Robert Russo, Kimberly L. Humbles, Kimberly Lacour Sullivan, Ryan Jude Romero, Louisiana Department of Health and Hospitals, Brook L. Villa, Faircloth, Melton & Keiser, LLC, Baton Rouge, LA, Jimmy Roy Faircloth, Jr., Faircloth, Melton & Keiser, Alexandria, LA, for Defendant.

AMENDED RULING ON DEFENDANT'S MOTION TO DISMISS AND RULING ON PLAINTIFFS' REQUEST FOR A PRELIMINARY INJUNCTION

JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

I. INTRODUCTION

Before the Court is the Renewed Motion for Temporary Restraining Order and Preliminary Injunction filed by Planned Parenthood Gulf Coast, Inc. ("PPGC" or "Planned Parenthood"), appearing on behalf of both itself and three patients—Jane Does #1, 2, and 3 ("Individual Plaintiffs")¹ (collectively, "Plaintiffs")—and based on Section 1396a(a)(23)(A) of the United States Code's Forty-Second Title ("Medicaid Act")² and the First and Fourteenth Amendments of the United States Constitution. (Doc. 46 at 17-26; Doc. 53 ¶¶ 62-67 at 19-20; Doc. 45 at 1-2.) The arguments made in support of this motion appear in the Memorandum of Law in Support of Plaintiffs' Renewed Motion for Temporary Restraining Order and Preliminary Injunction ("Plaintiffs' Renewed Memorandum"), (Doc. 46), and Memorandum Regarding Availability of State Remedy ("Plaintiffs' Remedy Memorandum"), (Doc. 52). Plaintiffs' request is opposed by Louisiana's Department of Health and Hospitals ("DHH"), whose head, Secretary Kathy H. Kliebert, is being sued in her official capacity and is therefore this matter's named defendant ("Kliebert" or "Defendant").³ Defendant's arguments are put forth in the Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim ("Motion to Dismiss"), (Doc. 53), supported by the attached Memorandum in Support of Motion to Dismiss Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim ("Defendant's Memorandum"), (Doc. 53-1). Although no evidentiary hearing was held, the matter was thoroughly briefed and argued. The Court has carefully considered the pleadings and briefings to date, which are discussed in more detail below.⁴ The Court also thoroughly considered the oral arguments and representations of counsel at hearings held on September 2, 2015 ("First Hearing"), and on October 16, 2015 ("Second Hearing").

On Sunday, October 18, this Court issued an order denying Defendant's motion to dismiss and granting Plaintiffs' request for a temporary restraining order, (Doc. 55). It set a status conference for the following day. At that status conference, all parties agreed that no further discovery and no further argument was necessary for this Court to make its determination on whether to issue a preliminary injunction, (Doc. 58). Both parties expressed "no objection to converting the temporary restraining order to a preliminary injunction." (Id .) This agreement was reaffirmed in a telephone status conference on October 28, 2015. (Doc. 62.) By the Parties' express consent, the evidentiary record has therefore been finalized, and any factual allegations left uncontroverted must be accepted as true.

On October 28, 2015, by way of Notice of Supplemental Authority, Plaintiffs brought to the Court's attention a case decided the same day which addresses the identical issue confronting this Court, in which the court granted a preliminary injunction enjoining the Governor of Alabama and others from suspending Medicaid payments to Planned Parenthood Southeast, Inc. and from failing to reinstate the State's provider agreement with that entity. (Doc. 61 (attaching Doc. 63, Planned Parenthood Se., Inc. v. Bentley , No. 2:15-cv-620-MHT-TFM (M.D. Ala. October 28, 2015) (Opinion) ("Bentley ")).)⁵

For the reasons first set out in the Order on Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction, (Doc. 55), and more fully set forth below, the Court determines that Plaintiffs have met their burden for a preliminary injunction to maintain the status quo . The Court therefore enjoins from suspending Medicaid payments to PPGC for services rendered to Medicaid beneficiaries, including but not limited to the Individual Plaintiffs pursuant to Federal Rule of Civil Procedure 65(b)(2)

.⁶ The preliminary injunction will remain in effect until it is revised, if at all, by this Court's own further order or by a decision of the United States Court of Appeals for the Fifth Circuit ("Fifth Circuit"). For the reasons set forth hereinafter, the Court declines to require security under Rule 65(c) from PPGC or the Individual Plaintiffs.

II. FACTUAL AND STATUTORY BACKGROUND

A. PARTIES

Defendant is sued in her official capacity, as she is the head of DHH, (Doc. 1 ¶ 19 at 4; Doc 43 ¶ 20 at 6; Doc. 53-1 at 1). DHH administers this state's Medicaid Program, a dual state-federal assistance program for families and individuals with low income and limited resources encoded in 42 U.S.C. 1396 et seq .⁷

(See also, e.g. , Doc. 1 ¶ 20 at 5; Doc. 13-1 ¶¶ 1-4 at 1-2; Doc. 43 ¶ 20 at 6; Doc. 53-1 at 1-4.) DHH does so by monitoring the allocation of federal-state funds in Louisiana and submitting a state plan for medical assistance for review and approval to the Centers for Medicare and Medicaid Services ("CMS"), operating under a delegation of authority from the Secretary for the Department of Health and Human Services ("DHHS"). LA. R.S.§§ 46:437:2(B), 46:437.13;⁸ 42 U.S.C. § 1396a(a) ; 42 C.F.R. 431.10. In accordance with the Louisiana Medical Assistance Programs Integrity Law ("MAPIL"), Medicaid providers must sign a contract with DHH and satisfy several requirements. LA. R.S. §§ 46:437:11, 46:437.13. (See also Doc. 13-1 ¶¶ 1-4 at 1-2.) DHH's powers are circumscribed by statute while many of its relevant regulations appear in Title 50 of the Louisiana Administrative Code.⁹ (Doc. 53-1 at 2-4; see also Doc. 13-1 ¶ 3 at 1.) In this case, DHH initially invoked Section 46:437.11(D)(1), (Doc. 13 at 1-2, 13, 18; Doc. 53-1 at 1; Hr'g Tr. 11:25-12:8, Sept. 2, 2015), and presently relies upon Sections 46.437(D)(2) and 46:437.14(A) and Title 50, (Doc. 39-1 at 1-2, 5-6, 8-9, 11-12; Doc. 53-1 at 3-4, 24).

PPGC is a charitable organization, so classified under section 501(c)(3) of the Internal Revenue Code

, 26 U.S.C. § 501(c)(1), U.S. DEP'T OF THE TREASURY, INTERNAL REVENUE SERV., FORM 990 at 1 (2012). (Doc. 43 ¶ 10 at 4; see also Doc. 4-2 ¶ 5 at 2.) Headquartered in Houston, Texas, it maintains its legal domicile in the Lone Star State, FORM 990 at 1, but is licensed to do business in Louisiana, (Doc. 43 ¶ 10 at 4; see also, e.g. , Doc. 1 ¶ 9 at 3; Doc. 4-2 ¶ 5 at 2.) PPGC operates family planning centers and clinics in the Houston area of Texas and in Louisiana. (Doc. 43 ¶¶ 10-11 at 4; see also Doc. 1 ¶ 10 at 3-4.) Its first center founded in 1984, PPGC's two Louisiana clinics—the Baton Rouge Health Center ("BRHC") and the New Orleans Health Center ("NOHC")—participate in Louisiana's Medicaid Program, "providing medical services to low-income enrollees in both underserved communities." (Doc. 1 ¶ 10 at 3-4; Doc. 43 ¶ 11 at 4; see also Hr'g Tr. 10:25-11:6, Sept. 2, 2015.)

In fiscal year 2014, the two facilities in Louisiana served over 5,200 Medicaid patients and were visited by over 10,000 women. (See, e.g. , Doc. 43 ¶ 13 at 4; Doc. 1 ¶ 40 at 11; Hr'g Tr. 8:23-24, Sept. 2, 2015.) "Nearly 75%" of the visits to BRHC were by patients enrolled in Medicaid; "[n]early 40%" of appointments at NOHC were with similarly classified individuals. (Doc. 3 ¶¶ 9-10 at 3-4; Doc. 43 ¶ 11 at 4.) "[C]urrently, over 60% of PPGC's Louisiana visits are for patients enrolled in the Medicaid program." (Doc. ¶ 13 at 4.) The services offered by these two centers include "physical exams, contraception and contraceptive counseling, screening for breast cancer

, screening and treatment for cervical cancer, testing and treating for certain sexually transmitted diseases..., pregnancy testing and counseling, and certain procedures[,] including colposcopy." (Doc. 1 ¶ 10 at 3-4; Doc. 4-2 ¶ 8 at 3; Doc. 43 ¶ 11 at 4; Hr'g Tr. 7:24-8:7, 8:16-9:9, Sept. 2, 2015.)

Neither BRHC nor NOHC performs abortions. (Doc. 1 ¶ 11 at 4; Doc. 43 ¶ 12 at 4; Doc. 46-1 ¶ 5 at 2; Hr'g Tr. 21:22-25:3, Oct. 16, 2015.) Neither currently has or has ever had a fetal tissue donation program. (Doc. 46 at 11; Doc. 46-1 ¶ 21 at 6.)

The Individual Plaintiffs rely upon Medicaid and receive their medical care from one of PPGC's two facilities. (Doc. 4-3, 4-4, 4-5.) They wish to continue to obtain their reproductive care from PPGC and do not know where they could elsewhere get the same kind of care. (Doc. 4-3 ¶¶ 6-7 at 2; Doc. 4-4 ¶ 8 at 2; Doc. 4-5 ¶ 6 at 2; Hr'g Tr. 8:23-9:9, Sept. 2, 2015.) Jane Doe #2 became a patient at NOHC after her former doctor refused to accept Medicaid, (Doc. 4-4 ¶ 3 at 1), and Jane Doe #2 has found it "very difficult to find doctors in Baton Rouge who will accept Medicaid," (Doc. 4-5 ¶ 3 at 1). In this proceeding, they are intended to represent the interests of many of PPGC's other Medicaid patients throughout the state of Louisiana. (See, e.g. , Doc. 46 at 29-30; Doc. 49-1 at 10.)

B. PRECIPITATING EVENTS

On February 19, 2014, pursuant to the concurrent resolutions of Louisiana's House of Representatives and Senate, the Louisiana Legislative Auditor ("Auditor") reviewed "a sample of Medicaid payments DHH during calendar year 2012 to determine if they were...