Planned Parenthood of Kansas and Mid-Missouri v. Peter Lyskowski
Filing
49
ORDER granting Plaintiff's motion for preliminary injunction. Doc. 5 . Within 10 days the parties are required to file a proposed scheduling order which ensures the final resolution of the case on the merits by May 1, 2016. Signed by Judge Nanette Laughrey on 12/28/2015. (Hatting, Elizabeth)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
PLANNED PARENTHOOD OF KANSAS
AND MID-MISSOURI, INC.,
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) Civil No. 2:15-cv-04273-NKL
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Plaintiff,
v.
PETER LYSKOWSKI,
Defendant.
ORDER
Pending before the Court is Plaintiff Planned Parenthood of Kansas and MidMissouri, Inc.’s (“PPKM”) motion for preliminary injunction, Doc. 5. For the following
reasons, the motion is granted.
I.
Summary of the Case
The issue before the Court is whether the Missouri Department of Health and
Senior Services (“DHSS”) violated the Due Process Clause or the Equal Protection
Clause of the Fourteenth Amendment of the U.S. Constitution when it sought to revoke
PPKM’s ambulatory surgical center (“ASC”) license. 1
The Equal Protection Clause prohibits the government from irrationally
discriminating between similarly situated entities.
Having reviewed the evidentiary
record, the Court finds that it is likely that DHSS treated PPKM more harshly than other
similarly situated institutions and thereby violated the Equal Protection Clause.
1
PPKM has not argued that Missouri laws governing PPKM’s license are facially
invalid.
1
The evidence shows that revocation of an ASC license is an extremely rare event.
DHSS does not dispute that prior to attempting to revoke PPKM’s license, it has only
revoked one ASC license. That revocation occurred after a DHSS inspection of the
Surgical Center of Creve Coeur revealed a host of immediate public health and safety
threats at the facility. Included among the facility’s deficiencies were its failure to
maintain complete patient medical records, failure to follow procedures relating to proper
drug maintenance and disposal, and allowing nursing staff to provide conscious sedation
to patients without training. The facility was also without a doctor with local hospital
privileges for a period of time. Despite the egregious safety violations accompanying the
facility’s lack of a qualified physician, DHSS worked with the facility to try to cure the
deficiencies for at least three months before revoking its ASC license.
In stark contrast, once DHSS became aware in September 2015 that PPKM would
be without a doctor with hospital privileges beginning December 1, 2015, it immediately
sent PPKM a letter informing the center that its ASC license would be revoked on
December 1. DHSS has recognized multiple times that PPKM’s deficiency created no
immediate health or safety concerns. Both PPKM and DHSS have acknowledged that
without a doctor with hospital privileges, PPKM will perform no abortions. Despite the
fact that PPKM’s deficiency created no health or safety exigency, DHSS solicited no plan
of correction from PPKM in accordance with statutory procedures and refused to allow
PPKM to have any actual period of deficiency prior to revoking the facility’s license.
The evidence submitted to the Court indicates that DHSS’s unprecedented hasty actions
were likely the result of political pressure being exerted by Missouri legislators and the
2
Department’s perception that if it did not act in accordance with the legislature’s desires,
its budget would be cut.
DHSS’s disparate treatment of PPKM cannot be justified by political pressure or
public opposition to PPKM. “[I]f the constitutional conception of ‘equal protection of the
laws’ means anything, it must at the very least mean that a bare [legislative] desire to
harm a politically unpopular group cannot constitute a legitimate governmental interest.”
U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Therefore, PPKM is
entitled to a preliminary injunction pending resolution of the case on its merits.
II.
Background
Missouri law requires that all abortion facilities be licensed as ASCs. Mo. Rev.
Stat. § 197.200. The ASC licenses are issued and managed by DHSS. In order to be an
ASC which performs abortions, the licensing regulations require that “[p]hysicians
performing abortions . . . have staff privileges at a hospital within fifteen (15) minutes’
travel time from the facility or the facility shall show proof there is a working
arrangement between the facility and the hospital within fifteen (15) minutes’ travel time
from the facility granting the admittance of patients for emergency treatment whenever
necessary.” 19 C.S.R. § 30-30.060(1)(C)4.
In mid-July 2015, the Missouri Senate convened the Senate Interim Committee on
Sanctity of Life, chaired by Senator Kurt Schaefer, to investigate Planned Parenthood’s
presence in Missouri. The Committee conducted an investigation into PPKM’s licensing
and the hospital privileges of the doctor performing abortions at PPKM’s facility in
Columbia, Missouri.
3
The doctor performing abortions at PPKM held privileges at the University of
Missouri Heath Care under the hospital’s “refer and follow” category of privileges. On
August 17, 2015, Senator Schaefer sent a letter to then University Chancellor R. Bowen
Loftin warning Chancellor Loftin that,
For decades the citizens of the state of Missouri have gone to great
lengths to ensure that their taxpayer dollars never enable abortion
services in this state. The University of Missouri system is a
publically funded entity which last year alone received
approximately one half of one billion taxpayer dollars from the State
of Missouri. Whether DHSS is relying on the agreement granted by
the University, as a publically funded entity, to Dr. McNicholas in
order to enable the abortion license issuance is a matter of
substantial public interest and concern. Additionaly [sic], such
circumstance may also run afoul of Section 188.205, RSMo, which
prohibits the use of public funds for the assistance or promotion of
abortion procedures.
[Doc. 6-2, p. 2]. Senator Schaefer also serves on the Senate Appropriations Committee.
On September 24, 2015, the University announced that effective December 1, 2015, it
would eliminate the “refer and follow” category of privileges held by PPKM’s physician.
The next day, on September 25, 2015, PPKM President and Chief Executive
Officer Laura McQuade received a letter from DHSS Administrator John Langston
informing her that the University’s elimination of the “refer and follow” privileges meant
that PPKM’s Columbia facility would not be in compliance with state licensure mandates
as of December 1, 2015. Mr. Langston warned Ms. McQuade that the facility’s ASC
license2 would be revoked on December 1 if the facility did not satisfy the hospital
2
Throughout the parties’ briefing this license is referred to as both an “ASC license” and
an “abortion facilities license.” An abortion facilities license is simply the type of ASC
license issued by DHSS to abortion facilities licensed as ASCs. All ASC licenses are
4
privileges requirement by December 1. [Doc. 6-1, p. 13]. On November 25, 2015, Ms.
McQuade received a second letter from Mr. Langston stating that DHSS had not been
notified of PPKM’s ability to satisfy the physician privileges requirement and that the
Department was revoking the center’s license effective as of the center’s close of
business on November 30, 2015.
On November 30, PPKM filed a motion for Temporary Restraining Order
(“TRO”) and Preliminary Injunction to enjoin DHSS Director Peter Lyskowski from
revoking PPKM’s license. Following a telephone conference with the parties, the Court
granted PPKM a TRO until the close of business on December 2, 2015 and allowed the
parties to conduct limited discovery on December 1. On December 2 a second phone
conference was held and the parties presented additional oral arguments on the propriety
of the requested TRO. The Court extended the TRO based on the parties’ arguments and
the limited evidence presented to the Court. The TRO currently in force will expire on
December 28, 2015, at 5:00 p.m.
The parties were permitted to conduct additional discovery between December 2
and December 11. Oral arguments regarding PPKM’s motion for preliminary injunction
were presented at a phone conference on December 18.
III.
Discussion
A. Preliminary Injunction Standard
issued and managed by DHSS under the procedure set out at Mo. Rev. Stat. § 197.293.
When there is any statutory distinction between an abortion ASC and other ASCs, even if
the distinction is not relevant, the Court will refer to a general ASC and an abortion
facility ASC, for clarity.
5
The Eighth Circuit has identified four independent factors which must be
considered in evaluating the propriety of a preliminary injunction: “(1) the threat of
irreparable harm to the movant; (2) the state of balance between this harm and the injury
that granting the injunction will inflict on other parties litigant; (3) the probability that
movant will succeed on the merits; and (4) the public interest.” Dataphase Systems, Inc.
v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). A preliminary injunction is not
appropriate in every case in which a plaintiff demonstrates that it is likely to succeed on a
constitutional claim. See Reproductive Health Services of Planned Parenthood of St.
Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1143-44 (8th Cir. 2005) (“When a state
statute is challenged on its face as unconstitutionally vague, and no First Amendment
interests are imperiled, th[e] assertion [that when a case involves an alleged deprivation
of constitutional rights, no further showing of irreparable injury is necessary], is far too
broad.”).
B. Threat of Irreparable Injury
DHSS contends that PPKM has failed to demonstrate a threat of irreparable harm.
DHSS frames the harm to be suffered in terms of the potential future relicensing costs if
PPKM is able to find another physician with admitting privileges at a local hospital.
DHSS then dismisses this harm because there is no guarantee that PPKM will be able to
hire a new physician with hospital privileges. See Iowa Utilities Bd. v. F.C.C., 109 F.3d
418, 425 (8th Cir. 1996) (“In order to demonstrate irreparable harm, a party must show
that the harm is certain and great and of such imminence that there is a clear and present
need for equitable relief.”). But the value of property does not evaporate merely because
6
it cannot be used presently. If a doctor were sick and unable to use a license in the
foreseeable future, the revocation of his or her license would still cause certain harm even
if there were no certainty about his recovery. This is because a license is a valuable
property right, as evidenced by the substantial investment often associated with getting a
license. The loss of that property interest is the irreparable harm that PPKM is certain to
suffer if the license is taken away.
Austell v. Sprenger, 690 F.3d 929, 935 (8th Cir.
2012). By way of example, once the license is revoked, PPKM’s property interest in the
license is eliminated and the process PPKM is entitled to under the Due Process Clause is
significantly diminished if not eliminated. The threat of deprivation of this property and
process in violation of the Fourteenth Amendment constitutes an immediate irreparable
injury appropriate for redress by a preliminary injunction.
DHSS also argues that there is no irreparable harm because if PPKM’s license is
revoked, DHSS will reinstate the license if PPKM obtains a physician with the required
privileges. However, this representation, made during oral argument, was immediately
qualified by DHSS, whose counsel said that the Department might discover some other
deficiency in PPKM’s qualifications which might prevent it from reinstating the license.
Therefore, DHSS acknowledges that PPKM’s license will not be automatically reinstated
as soon as the center has a physician with the required privileges. Furthermore, based on
the disparate treatment of PPKM by DHSS and the political intimidation directed at the
University of Missouri Health System and DHSS, the Court does not find credible the
suggestion that PPKM will have its license reinstated without incurring substantial costs
and delay, and questions whether DHSS would ever allow the license to be reinstated
7
without PPKM effectively proving again all the requirements for getting a license ab
initio.
Finally, even if DHSS did reinstitute the license without forcing PPKM to
effectively reapply for a new license, there would undoubtedly be at least some
administrative delay associated with the reinstitution of the license. Such delay would
constitute a significant irreparable injury, as PPKM cannot perform abortions without a
license.3 If, however, PPKM is permitted to retain the license pending the search for a
new doctor with hospital privileges, the facility will be able to immediately return to
providing abortions without further delay.
The Court also concludes that PPKM’s right to appeal DHSS’s decision to the
Administrative Hearing Commission (“AHC”) does not mitigate these injuries. The
AHC in its discretion “may stay or suspend any action of an administrative agency
pending the commission’s findings and determination in the case.” Mo. Rev. Stat. §
621.035. However, the Commission is under no obligation to do so. More importantly,
PPKM is not required to exhaust its administrative remedies prior to filing this action in
federal court. See Patsy v. Board of Regents of State of Fla., 457 U.S. 496 (1982); c.f.
Shelton v. Farr, 996 S.W.2d 541, 542-43 (Mo. App. W.D. 1999) (addressing the
adequacy of AHC review as a remedy where exhaustion of administrative remedies was
required for the plaintiff to be entitled to judicial review). Imposing a requirement that
3
PPKM also could not recover monetary damages for any harm it suffered because
DHSS is protected by Eleventh Amendment sovereign immunity. DHSS has not waived
that immunity, nor have the individual state actors waived qualified immunity or
indicated that qualified immunity is inapplicable.
8
PPKM seek relief with the AHC prior to qualifying for a preliminary injunction in federal
court would violate this longstanding precedent. Such a change would not just impact
PPKM; it would affect all owners of business licenses, conceal and carry permits,
professional licenses, etc. There is also no abstention doctrine that is applicable here.
Therefore, PPKM’s right to administrative review by a state agency does not justify a
finding that PPKM will suffer no irreparable harm if preliminary relief is denied.
C. Likelihood of Success on the Merits
PPKM has alleged that DHSS’s revocation of its ASC license violates the Equal
Protection Clause of the Fourteenth Amendment because other ASCs similarly situated to
PPKM have been afforded the opportunity to implement a corrective plan of action for
deficiencies prior to having their ASC licenses revoked.4
1. Standard of Review
PPKM contends that DHSS’s actions are subject to heightened review because
DHSS is infringing upon PPKM’s First Amendment association rights. As discussed
below, the Court concludes that DHSS’s actions cannot withstand even rational basis
review. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“Our cases have
recognized successful equal protection claims brought by a ‘class of one,’ where the
plaintiff alleges she has been intentionally treated differently from others similarly
situated and there is no rational basis for the difference in treatment.”). Therefore,
whether PPKM is entitled to heightened scrutiny is not addressed at this time.
4
PPKM also contends that DHSS has violated its procedural due process rights. As the
Court concludes that a preliminary injunction is appropriate based on the equal protection
claim, the procedural due process claim is not addressed at this time.
9
“To establish liability for a class-of-one violation, Plaintiff must allege that: (1) it
was part of a class of individuals or groups that were similarly situated; (2) it was
intentionally treated differently from its peers in a context where there were clear and
defined standards governing the state’s actions; (3) it suffered harm as a result of the
state’s actions; and (4) the difference in treatment was not rationally related to a
legitimate state interest. Village of Willowbrook, 528 U.S. at 564 (2000); Engquist v.
Oregon Dept. of Agr., 553 U.S. 591, 603, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008).
Essentially, a class-of-one complaint alleges that the plaintiff was treated arbitrarily
worse than others who were identically situated. Lauth v. McCollum, 424 F.3d 631, 633
(7th Cir.2005).” Intralot, Inc. v. McCaffrey, 2012 WL 4361451, at *3 (N.D. Ill. Sept. 21,
2012). “A class-of-one plaintiff must . . . ‘provide a specific and detailed account of the
nature of the preferred treatment of the favored class,’ especially when the state actors
exercise broad discretion to balance a number of legitimate considerations.” Nolan v.
Thompson, 521 F.3d 983, 990 (8th Cir. 2008) (quoting Jennings v. City of Stillwater, 383
F.3d 1199, 1214-15 (10th Cir. 2004)).
2. Whether PPKM is “Similarly Situated” to Other ASCs
In order to bring an equal protection claim as a class of one, PPKM must be able
to demonstrate that it is similarly situated to other ASCs.
See Flowers v. City of
Minneapolis, 558 F.3d 794, 798 (8th Cir. 2009) (“To establish a violation of the Equal
Protection Clause . . . [plaintiff] must show that he was treated differently than other
persons who were ‘in all respects similarly situated.’”). DHSS contends that PPKM is
neither factually nor legally situated the same as other ASCs.
10
a. Legal Similarity
Title 19, Chapter 30 of the Missouri Code of State Regulations governs ASCs.
Chapter 30 recognizes three different categories of ASCs, governed by different
subsections: (1) general ASCs regulated under 19 C.S.R. § 30-30.010 through § 3030.040; (2) abortion facilities regulated under 19 C.S.R. § 30-30.050 through § 3030.070; and (3) birthing centers regulated under 19 C.S.R. § 30-30.080 through § 3030.110.5 These subsections contain a few minor differences in requirements for the
various types of ASCs.6 The only distinction at all relevant to this lawsuit concerns the
admitting privileges requirements. Subsection 19 C.S.R. § 30-30.060(1)(C)4 requires
that,
Physicians performing abortions at the facility shall have staff
privileges at a hospital within fifteen (15) minutes’ travel time from
the facility or the facility shall show proof there is a working
arrangement between the facility and a hospital within fifteen (15)
minutes’ travel time from the facility granting the admittance of
patients for emergency treatment whenever necessary.
5
The parties provide no information or arguments concerning the regulations governing
birthing centers. Therefore, discussion of any unique regulations governing this category
of ASC is absent from the Court’s discussion.
6
During oral arguments, DHSS pointed out that 19 C.S.R. § 30-30.010(2)(H) requires a
facility which ceases to operate as an ASC for a period in excess of fourteen days to
surrender its ASC license to the Department. However, as DHSS recognized in its
briefing, this section of Chapter 30 does not apply to PPKM because it is one of the
subsections governing general ASCs, not abortion center ASCs. Abortion centers
licensed as ASCs are governed by a corresponding regulation at § 30-30.050, which does
not contain § 30-30.010’s requirement that the facility surrender its license if it ceases to
operate as an ASC. Therefore PPKM is seeking no treatment in contravention of the
regulations. Moreover, as this regulatory distinction has no bearing on the due process or
equal protection violations alleged by PPKM it does not prevent PPKM from being
similarly situated to other ASCs for the purposes of this lawsuit.
11
Id. (emphasis added). General ASCs are governed by 19 C.S.R. § 30-30.020(1)(B)4,
which states:
Surgical procedures shall be performed only by physicians . . . who
are at the time privileged to perform surgical procedures in at least
one (1) licensed hospital in the community in which the [ASC] is
located, thus providing assurance to the public that patients treated in
the center shall receive continuity of care should the services of a
hospital be required. As an alternative, the facility may submit a
copy of a current working agreement with at least one (1) licensed
hospital in the community in which the [ASC] is located,
guaranteeing the transfer and admittance of patients for emergency
treatment whenever necessary.
Id. (emphasis added). Therefore, the only regulatory distinction7 identified by the parties
between the hospital privileges required for a general ASC and an abortion facility ASC
is that a physician at a general ASC must have privileges at a licensed hospital “in the
community,” and a physician performing abortions must have staff privileges at a
hospital “within fifteen (15) minutes’ travel time from the facility.” As discussed below,
that distinction has no bearing on the statutory process for revoking an ASC license or
DHSS’s historical practices when revoking an ASC license.
All three types of ASCs are governed by the same licensing statutes. [See Doc.
33-4, p. 3 (Dep. of Langston under F.R.C.P. 30(b)(6), at 10:16-19)]. Two statutes are
particularly relevant to the issue before the Court:
(1) Mo. Rev. Stat. § 197.220. Denial, suspension or revocation of license:
7
Mo. Rev. Stat. § 188.080 also imposes criminal penalties on physicians who violate 19
C.S.R. § 30-30.060(1)(C)4; similar penalties are not imposed on physicians who violate
19 C.S.R. § 30-30.020(1)(B)4.
12
[DHSS] may deny, suspend or revoke a license in any case in which
the department finds that there has been a substantial failure to
comply with the requirements of sections 197.200 to 197.240 . . .
(2) Mo. Rev. Stat. § 197.293. Enforcement of hospital and ambulatory surgical
center licensure regulations, standards for enforcement--deficiencies in
meeting standards, restricted access:
1. . . . [DHSS] shall use the following standards for enforcing
hospital and [ASC] licensure regulations . . .
(1) Upon notification of a deficiency in meeting regulatory
standards, the hospital or [ASC] shall develop and implement a plan
of correction approved by the department which includes, but is not
limited to, the specific type of corrective action to be taken and an
estimated time to complete such action;
(2) If the plan as implemented does not correct the deficiency, the
department may either:
(a) Direct the hospital or [ASC] to develop and implement a plan of
correction pursuant to subdivision (1) of this subsection; or
(b) Require the hospital or [ASC] to implement a plan of correction
developed by the department;
(3) If there is a continuing deficiency [after section 2 is
implemented] . . . the department may restrict new inpatient
admissions or outpatient entrants to the service or services affected
by such deficiency;
(4) If there is a continuing deficiency [after section 3 is
implemented] . . . the department may suspend operations in all or
part of the service or services affected by such deficiency;
(5) If there is continuing deficiency [after section 4 is implemented] .
. . the department may deny, suspend or revoke the hospital’s or
[ASC’s] license pursuant to section 197.070 or section 197.220
2. Notwithstanding the provisions of subsection 1 or this section to
the contrary, if a deficiency in meeting licensure standards presents
an immediate and serious threat to the patients’ health and safety, the
department may, based on the scope and severity of the deficiency,
13
restrict access to the service or services affected by the deficiency
until the hospital or [ASC] has developed and implemented an
approved plan of correction. . . .
Thus, general ASCs and abortion facility ASCs are subject to the same statute for
purposes of enforcement and management of their licenses and the difference between
“fifteen minutes” and “within the community” is at best a de minimus distinction that has
no bearing on whether PPKM was treated rationally by DHSS. See Robbins v. Becker,
794 F.3d 988, 996 (“‘To be similarly situated for purposes of a class-of-one equalprotection claim, the persons alleged to have been treated more favorably must be
identical or directly comparable to the plaintiff in all material respects.’” (emphasis
added)).
b. Factual Similarity
As discussed above, DHSS is seeking to revoke PPKM’s ASC license because it
lacks a physician with qualifying hospital admitting privileges. DHSS Administrator
John Langston stated in an affidavit that “Based on the knowledge of DHSS staff
currently employed within the Bureau of Ambulatory Care, DHSS has not allowed a
general ambulatory surgical center with a single physician who lost the hospital
privileges required by law, and lacked a working agreement guaranteeing emergency
transfers, to keep its license.” [Doc. 36-2, p. 2]. However, the record indicates that the
Surgical Center of Creve Coeur lost its only physician in 2011 and its license was not
summarily revoked. [Doc. 40-1, p. 2 (email from Langston to Maine (Feb. 14, 2011),
Bates 005530)]. The record also indicates that a somewhat similar situation arose in
2013 involving PPKM and the facility’s ASC license was not immediately revoked.
14
In fact, the record indicates that DHSS has in only two instances sought to revoke
ASC licenses: in this case, and in the case of the Surgical Center of Creve Coeur. As
discussed below at Part II(C)(3)(b), the situation at SCCC presented significant threats to
patient health and safety. The Seventh Circuit has recognized on multiple occasions that
a plaintiff may demonstrate that it has suffered intentional, irrational, and arbitrary
discrimination “either by showing that he was treated differently from identically situated
persons for no rational reason, or that he was treated worse than less deserving
individuals for no rational reason.” Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir. 2004);
see also Esmail v. Macrane, 53 F.3d 176, 179 (7th Cir. 1995) (“. . . equal protection does
not just mean treating identically situated persons identically. If a bad person is treated
better than a good person, this is just as much an example of unequal treatment.”).
PPKM’s allegations fall into this second category, contending that the discrimination
against the center is evident because unlike the situation at SCCC where patient health
and safety were at risk, there are no similar risks present here. Though the Eighth Circuit
has not addressed this issue, the logic of the Seventh Circuit is persuasive. Common
sense dictates that a plaintiff who is treated worse than an actor exhibiting significantly
worse behavior should be able to maintain a cause of action under the Equal Protection
Clause.
3. How PPKM was Treated Differently
a. General Process for Compliance Deficiencies
If an ASC is found not to be in substantial compliance with licensing requirements
as required by Mo. Rev. Stat. § 197.220, DHSS generally follows the procedure set out at
15
Mo. Rev. Stat. § 197.293. [Doc. 15-1, p. 3 (Letter from Emily Dodge, Assistant Attorney
Gen., to Plaintiff’s Counsel (Dec. 1, 2015)); Doc. 33-4, p. 4 (Dep. of Langston under
F.R.C.P. 30(b)(6), at 11:20-25)].8 This statute contemplates that when DHSS identifies
deficiencies in an ASC the ASC will be given an opportunity to submit a plan of
correction and time to implement this plan. See Mo. Rev. Stat. § 197.293. In some
instances, there may be multiple plans of correction developed and implemented by the
ASC. [Doc. 33-1, p. 9 (Dep. of Koebel under F.R.C.P. 30(b)(6), at 39:11-13)]. If the
initial plan of correction is not successful in correcting the deficiency, the statute sets out
steps DHSS may take, increasing in severity as corrective action fails to solve the
deficiency. The statute also provides, however, that where a deficiency “presents an
immediate and serious threat to the patients’ health and safety,” DHSS is permitted to
bypass this incremental process and “restrict access to the service or services affected by
the deficiency until the hospital or ambulatory surgical center has developed and
implemented an approved plan of correction.” Mo. Rev. Stat. § 197.293(2). Other than
the PPKM revocation that is the subject of this litigation, there is no instance in DHSS
records involving an ASC license revocation without a plan of correction being put in
place first. [Doc. 33-4, p. 20 (Dep. of Langston under F.R.C.P. 30(b)(6), at 41:18-23)].
When evaluating a proposed plan of correction, DHSS has discretion as to how
much time to give a license-holder to correct a deficiency, within an outer timeframe of
when the license expires. [Doc. 33-4, p. 8 (Dep. of Langston under F.R.C.P. 30(b)(6), at
22:17-20)]. However, the Department may permit the plans of correction to extend over
8
The text of this statute is set out above at Part II(C)(2)(a).
16
some indefinite period of time during which time DHSS could suspend the ASC’s
license.
[Doc. 33-1, p. 9 (Dep. of Koebel under F.R.C.P. 30(b)(6), at 39:11-20)].
Generally, all decisions about plans of correction and ASC license actions are made by
DHSS at the “bureau-level,” by the DHSS employees who conduct ASC surveys. [Doc.
33-4, p. 13 (Dep. of Langston under F.R.C.P. 30(b)(6), at 29:16-30:12)]. The DHSS
Director and Office of the Governor are not generally consulted regarding licensing
decisions. [Doc. 33-1, p. 17-18 (Dep. of Koebel under F.R.C.P. 30(b)(6), at 59:1060:25)].
b. Surgical Center of Creve Coeur License Revocation Process
The record reflects only one other case in which DHSS attempted to revoke an
ASC’s license. Prior to the revocation of SCCC’s license, SCCC had an opportunity to
submit plans of correction. [Doc. 33-4, p. 11 (Dep. of Langston under F.R.C.P. 30(b)(6),
at 25:1-3)]. Following the submission of the plans of correction, DHSS sent surveyors
back to SCCC to determine the extent to which the facility had righted the issues
identified in the deficiency statement.
Id. at 25:4-12.
DHSS concluded that the
conditions were such that it was “unlikely, if not impossible, that the facility could come
into reasonable compliance in any length of time.” Id. Prior to revoking the license,
DHSS made a substantial effort with SCCC to remedy the deficiencies, involving
numerous back and forth communications with SCCC.
Id. at 28:1-22.
After
approximately three months of back and forth communications, DHSS made the decision
to revoke the center’s ASC license. Id.
17
The statement of deficiencies issued to SCCC by DHSS in November 2010 was 47
pages long. [Doc. 33-2, p. 28-74]. The deficiencies identified by DHSS included the
failure to:
Assure the provision of adequate equipment in good repair within the
facility to provide efficient services and protection to the patient and staff in
violation of 19 C.S.R. 30-30.020(1)(A)14 and (B)1.
Maintain complete personnel records on each employee in violation of 19
C.S.R. 30-30.020(1)(A)15 and (B)3 and section 660.317, RSMo Supp.
2011.
Have a Medical Executive Committee and Credentials and Peer Review
Committee in violation of 19 C.S.R. 30-30.020(1)(B)1, 6, 12 and 13.
Maintain complete medical records, including copies of patient’s consent
for procedures in violation of 19 C.S.R. 30-30.020(1)(B)1 and 7 and (F)3.
Update or follow an ongoing current quality of care and improvement
program to ensure safety and improved patient health outcomes in violation
of 19 C.S.R. 30-30.020(1)(B)1 and 12.
Ensure that nursing personnel were familiar with the location, operation
and use of electrocardiogram (EKG or ECG) equipment, pulse oximeter,
blood pressure equipment and emergency and resuscitative equipment in
violation of 19 C.S.R. 30-30.020(1)(C)7.
Have a policy on mandatory nursing overtime in violation of 19 C.S.R. 3030.020(1)(C)9.
Develop policies and procedures in consultation with at least one
anesthesiologist and approval by the governing body on the administration
of anesthetics and drugs which produce conscious and deep sedation in
violation of 19 C.S.R. 30-30.020(1)(E)3.
Follow procedures relating to procuring, storage, security, records, labeling,
preparation, orders, administration, adverse reactions and disposal or other
disposition of drugs and specific procedures for controlled drug security
and recordkeeping and for allowing nurse staff to provide conscious
18
sedation to patients without conscious sedation training in violation of 19
C.S.R. 30-30.020(1)(B)1 and (H)2.
Follow acceptable infection control standards of practice by failing to
ensure staff followed policy and acceptable standards for hand hygiene and
glove use and failed to ensure staff maintained the sterility of supplies used
while starting an intravenous catheter in violation of 19 C.S.R. 3030.020(1)(B)1 and (K)4.
Provide infection control/prevention training to one of the staff members in
the operating room in violation of 19 C.S.R. 30-30.020(1)(B)1 and (K)5.
[Doc. 15-1, p. 4-5 (Letter from Emily Dodge, Assistant Attorney Gen., to Plaintiff’s
Counsel (Dec. 1, 2015))].
In February 2011 DHSS also noted that SCCC’s sole
physician had been diagnosed with an illness, which meant that there was no physician at
the center. [Doc. 40-1, p. 2 (email from Langston to Maine (Feb. 14, 2011), Bates
005530)]. DHSS noted that the center’s deficiencies “put[] all patients at risk of harm.”
[Doc. 40-1, p. 2 (email from Jackson to Langston (Feb. 9, 2011), Bates 005530)].
c. Treatment of PPKM
As discussed above, the September 25 letter was the first time DHSS informed
PPKM that it planned to revoke its ASC license on December 1. DHSS considers this to
be the formal notice of deficiency to PPKM. [Doc. 33-3, p. 11 (Individual Dep. John
Langston, at 33:5-8)]. This is the same letter in which DHSS informed PPKM that it had
made its decision about how to address the deficiency, and planned to revoke the center’s
license as soon as the deficiency arose. While there is a form that is generally, though
not always, used to inform ASCs of deficiencies, the form was not used in this case. Id.
at 35:9-37:9. The general form invites the recipient to submit a plan of correction and
discusses how to submit the plan of correction. After sending the September 25 letter,
19
DHSS had no further formal communication with PPKM until DHSS sent a second letter
on November 25, informing PPKM that it had not received notice that PPKM had found a
doctor with admitting privileges, and would therefore proceed with revoking the ASC
license at the center’s close of business on November 30. No draft or plan of correction
was ever solicited from PPKM. Id. at 36:15-21. Prior to this point, DHSS had never
revoked an ASC license without first providing the licensee an opportunity to cure
deficiencies through the plan of correction process.9 [Doc. 33-4, p. 20 (Dep. of Langston
under F.R.C.P. 30(b)(6), at 41:18-23)].
The timing of the notices informing PPKM that its license would be revoked
suggests disparate treatment. Generally, the statutory process set out at Mo. Rev. Stat. §
197.293 is set in motion by DHSS’s notice of deficiency. [Doc. 33-4, p. 5 (Dep. of
9
During oral arguments, DHSS suggested that PPKM’s independent failure to submit a
plan of correction after being notified of the deficiency meant that there was sufficient
justification for DHSS to revoke the license under section 197.293. However, there was
nothing in DHSS’s communications that suggested it was invoking a statutory plan of
correction process. Furthermore, PPKM did discuss with DHSS its ongoing attempts to
find a new physician with hospital privileges. DHSS contends that the fact that this plan
did not have a concrete timeframe for implementation meant that it was insufficient.
However, the record indicates that DHSS understood that it could take up to six months
for a physician to regain hospital privileges. [Doc. 33-1, p. 3 (Dep. of Koebel under
F.R.C.P. 30(b)(6), at 10:1-18)]. This suggests that to the extent that PPKM had an
obligation to submit an unsolicited comprehensive plan of correction including a
projected timeframe, it did so. Moreover, there is nothing in DHSS’s regulations or the
statutes surrounding enforcement to suggest that an institution’s attempts to cure a
deficiency are insufficient simply because there is no concrete date presented by which
the problem will be solved. In fact, the statute contemplates that some plans of correction
will be unsuccessful and necessitate further departmental action. Everything in the
record suggests that in SCCC’s case the Department was highly doubtful that the center’s
deficiencies could ever be corrected. Despite this skepticism, DHSS worked with SCCC
to attempt to cure the egregious safety deficiencies and gave the center an extended
period of time to implement changes. Nothing similar was done for PPKM where the
center’s single deficiency posed no safety risks.
20
Langston under F.R.C.P. 30(b)(6), at 12:9-11)]. DHSS has not made a decision to revoke
an ASC’s license due to deficiencies until the ASC has submitted a plan of correction and
had time to implement that correction. DHSS admits that when it inspects ASC facilities,
it identifies deficiencies at most facilities which are subsequently resolved by plans of
correction. [Doc. 15-1, p. 6]. Despite most facilities containing deficiencies, license
revocation is extremely rare. Even in the egregious SCCC case the center was given
approximately three months to resolve the deficiencies before DHSS decided to revoke
the license.
In stark contrast with DHSS’s general procedure of identifying deficiencies,
notifying the ASC of the deficiency, undergoing a course of communication with the
ASC, and then deciding whether license revocation is appropriate, DHSS in this case
decided prior to engaging in any communication with PPKM that the license would be
revoked if the deficiency was not corrected by the exact day the deficiency arose. Two
elements of this exchange are particularly notable. First, PPKM had no deficiency at the
time DHSS sent its September 25 and November 25 notices.
This prospective
identification of impending deficiencies is unique to PPKM in the record. Second, DHSS
made the decision to revoke PPKM’s license without soliciting a plan of correction and
without permitting PPKM to retain its license during any period of deficiency. Such
hasty action is not contemplated by the enforcement statute unless the deficiency
“presents an immediate and serious threat to the patients’ health and safety.”10
10
While Mo. Rev. Stat. § 197.220 provides that DHSS may suspend or revoke a license
in any case in which it finds that there has been a “substantial failure” to comply with the
21
DHSS admits that PPKM’s physician losing her hospital privileges presents no
immediate threat to patient health or welfare. [Doc. 33-4, p. 7 (Dep. of Langston under
F.R.C.P. 30(b)(6), at 18:11-17)]. PPKM has not been performing abortions since its
physician’s hospital privileges expired.
[Doc. 33-4, p. 6 (Dep. of Langston under
F.R.C.P. 30(b)(6), at 17:5-11)]. Any doctor performing such a procedure without the
requisite hospital privileges would be subject to criminal prosecution under Mo. Rev.
Stat. § 188.080.11
Furthermore, the record reflects that the Department’s consideration of other
ASCs’ deficiencies involving much more serious threats to patient health and safety has
been undertaken in a much more incremental fashion. SCCC had far more deficiencies
than does PPKM, and the deficiencies presented far more obvious risks to the welfare of
the patients at the center. The record reflects that SCCC failed to ensure that the drugs
used at the center were maintained securely, allowed nurses to provide patients conscious
sedation without training, failed to follow acceptable infection control standards, and
failed to ensure that its nursing staff was aware of the location of emergency resuscitative
equipment. These shortcomings constitute egregious threats to patient welfare. Despite
licensing requirements and does not give any restrictions on DHSS’s course of conduct,
Mo. Rev. Stat. § 197.293 prescribes an enforcement process. Under the general rule of
construction that specific statutes should control over general ones, the Court looks to §
197.293 for the process governing DHSS’s actions.
11
While the Eighth Circuit has acknowledged that Mo. Rev. Stat. § 188.080 furthers
important state health objectives, these objectives all revolve around the state’s interest in
ensuring that the patient will be able to receive prompt and consistent care in the event
that there is a complication with the abortion. Women’s Health Center of West County,
Inc. v. Webster, 871 F.2d 1377, 1381 (8th Cir. 1989). None of these health objectives are
relevant in this context where no abortions are being performed and the state has no
evidence that any abortion will be performed while the deficiency is addressed.
22
the risks posed by the practices, DHSS made a substantial effort with SCCC to remedy
the deficiencies and did not decide to revoke the center’s ASC license until
approximately three months after the deficiencies were identified. [Doc. 33-4, p. 14
(Dep. of Langston under F.R.C.P. 30(b)(6), at 28:1-22)].
There is no question that SCCC’s safety deficiencies made the center less
deserving of DHSS leeway in developing and implementing a plan of correction than
does PPKM’s single deficiency, which DHSS admits presents no immediate threat to
patient welfare.12
Yet, the record reveals that SCCC was given significantly more
opportunities to communicate with DHSS and attempt to correct the deficiencies than
was PPKM.
This type of irrational disparate treatment is prohibited by the Equal
Protection Clause. See Bell v. Duperrault, 367 F.3d 703, 707 (7th Cir. 2004).
The record also reflects that PPKM was treated disparately as a result of animus
toward PPKM. Unlike is customary at DHSS, the September 25 notice of deficiencies
letter was drafted at levels high above Mr. Langston, who has responsibility over ASCs at
12
According to DHSS corporate representative Bill Koebel, an ASC’s violation of the
hospital privileges requirement ranks as “the highest” level of severity of ASC
deficiencies. [Doc. 36-1, p. 3 (Dep. of Koebel under F.R.C.P. 30(b)(6), at 13:1-4)].
Based on the remainder of the record, the Court concludes that this statement is
inconsistent with DHSS practice and procedure. Most notably, Mr. Koebel’s statement
appears to contradict the enforcement statute itself, which suggests that the most
significant deficiencies are those presenting “an immediate and serious threat to the
patients’ health and safety.” Mo. Rev. Stat. § 197.293(1). Due to the risks posed by such
deficiencies the statute allows DHSS to take action to restrict access to services prior to
the development and implementation of a plan of correction, rather than following the
normal course of implementing the plan of correction while the ASC continues to
function at full capacity. While the Court recognizes that in some instances a physician’s
lack of hospital privileges might pose such a threat, Mr. Langston testified that no such
threat existed in this case because no abortions are being performed at PPKM. Therefore,
PPKM’s deficiency cannot rank at “the highest” level of severity.
23
DHSS and whose staff would normally be in charge of generating notices of deficiencies
and overseeing plans of correction submitted by ASCs.
[Doc. 33-3, p. 13 (Individual
Dep. John Langston, at 37:1-9)]. Mr. Langston suggested that DHSS feared retaliation
from Senator Schaefer if it did not act in accordance with the senator’s goals, as Senator
Schaefer both chaired the Senate Interim Committee on Sanctity of Life and sat on the
Senate Appropriations Committee. [Doc. 33-3, p. 9-10 (Individual Dep. John Langston,
at 29:10-30:19)].
Prior to sending the September 25 letter, DHSS received many
communications from Missouri legislators, right to life advocacy groups, and the press
regarding PPKM’s licensing and the procedures governing the license. [See Doc. 33-2, p.
4-27, 75-83]. While these communications underscore the extent to which PPKM is a
disfavored institution in Missouri, they provide no rational justification for the disparate
treatment afforded the institution in addressing its licensing deficiency.
DHSS contends that PPKM cannot demonstrate an equal protection violation
because it is not similarly situated to other ASCs. The Court addressed this argument
above and concluded that it is incorrect. The Department’s only other argument is that its
revocation was based on objectively verifiable criteria which indicated that PPKM no
longer complies with the regulatory requirements to function as an ASC which makes the
decision sufficient to withstand rational basis review.
However, the circumstances
surrounding the revocation suggest that the way the revocation was undertaken was “the
product solely of animus.” Gallagher v. City of Clayton, 699 F.3d 1013, 1021 (8th Cir.
2012). While DHSS’s decision to revoke the license can be justified based on PPKM’s
inability to satisfy the requirements of 19 C.S.R. § 30-30.060(1)(C)4 and Mo. Rev. Stat. §
24
188.080, these violations are, as discussed above, less significant than SCCC’s violations,
which ran afoul of 19 C.S.R. § 30-30.020(1)(A)14-15, (B)1, 3, 6-7, 12-13, (C)7, 9, (E)3,
(F)3, (H)2, (K)4-5, and Mo. Rev. Stat. § 660.317.
That is not to say that DHSS has no rational basis for enforcing 19 C.S.R. § 3030.060(1)(C)4 and Mo. Rev. Stat. § 188.080. Clearly the Department has a strong
interest in enforcing the statutes and regulations promulgated to govern licensing of
ASCs. However, there must be a rational basis for the course of enforcement being
undertaken by the Department. DHSS may not target individual disfavored institutions
by insisting upon rigid regulatory compliance rejected by the statutory enforcement
framework and the Department when dealing with more egregious deficiencies. Here
DHSS has presented no rational basis to justify its treatment of PPKM.
D. Bond
As in the prior two TRO hearings, the Court will not require PPKM to remit a
bond to the Court for the issuance of the injunction. DHSS has no risk of incurring any
costs or damages in this case as a result of the injunction. Under the circumstances,
requiring PPKM to pay a bond serves no purpose contemplated by law.
IV.
Conclusion
For the reasons set forth above, Plaintiff’s motion for preliminary injunction, Doc.
5, is granted. Defendant is enjoined from revoking Plaintiff’s ASC license pending final
resolution of this case.
Within 10 days, the parties will file a proposed scheduling order which ensures the
final resolution of the case on the merits by May 1, 2016.
25
/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: December 28, 2015
Jefferson City, Missouri
26
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