Health Law Daily Wrap Up, TOP STORY: Court says Missouri treating Planned Parenthood unfairly, license to remain in place, (Dec 29, 2015)

By Kayla R. Bryant, J.D.

The Missouri Department of Health and Senior Services (DHSS) is enjoined from revoking Planned Parenthood of Kansas and Mid-Missouri, Inc.’s (PPKM) ambulatory surgical center (ASC) license. The U.S. District Court for the Western District of Missouri granted PPKM’s motion for a preliminary injunction, finding that DHSS is treating PPKM differently than other similar institutions in violation of the Equal Protection Clause of the U.S. Constitution. Historically, DHSS has allowed other surgical centers time to correct deficiencies before revoking their licenses (Planned Parenthood of Kansas and Mid-Missouri, Inc. v. Lyskowski, December 28, 2015, Laughrey, N.).

ASC licensing requirement. Abortion facilities in Missouri are required to have an ASC license. In addition, ASCs performing abortions must employ physicians with staff privileges at a hospital within 15 minutes of the facility, or have a working arrangement with a hospital allowing patient admission for emergency treatment when necessary. A state Senate committee investigation into PPKM’s licensing revealed that the facility’s doctor held “refer and follow” privileges at the local hospital, a publicly funded entity. Following Senate concerns that public funding was being used for the “assistance or promotion of abortion procedures,” the hospital announced on September 24, 2015, that it planned to eliminate the “refer and follow” category effective December 1, 2015.

DHSS immediately informed PPKM that it would revoke the facility’s ASC license on December 1 if it did not satisfy the hospital privileges requirement. On November 25, 2015, PPKM received a letter of DHSS’ decision to revoke the license effective at close of business November 30, 2015. On that date, PPKM filed a motion seeking a temporary restraining order and preliminary injunction to prevent the license revocation.

Injunction standard. When seeking a preliminary injunction, a court must consider irreparable harm, balance between the harm and injury to other parties if the injunction is granted, the probability of success on the merits, and the public interest. The court found that irreparable harm to PPKM was present, as DHSS has acknowledged that it may not immediately reinstate the ASC license immediately if PPKM finds a physician with hospital privileges.

The court also considered the merits of PPKM’s allegations that DHSS is treating it differently from similarly situated ASCs. Despite DHSS contentions that PKMM is not similarly situated, the court found no major distinctions between the three categories of ASCs in Missouri regulations. The court then reviewed DHSS’ general procedure when an ASC is noncompliant with licensing requirements, which involves allowing the ASC to submit a plan of correction and an opportunity to implement the plan. DHSS has considerable discretion in deciding how much time to allow an ASC to implement the plan and correct the deficiency. There are no instances besides PPKM where DHSS has sought to revoke a license without allowing a plan of correction. The court found DHSS’ decision to revoke PPKM’s license prior to engaging with the facility, identifying and notifying the facility of the deficiencies, and allowing a correction plan to be implemented was in stark contrast to its normal procedures. The court enjoined DHSS from revoking the license pending the final resolution of the case.

Utah case. In other abortion services legislation news, Utah’s Planned Parenthood chapter has appealed funding cuts. On December 22, 2015, a district court vacated a temporary restraining order preventing the state of Utah from terminating contracts with Planned Parenthood Association of Utah (see Court lets Utah abort Planned Parenthood contracts, December 23, 2015). The court held that the state Department of Health was permitted to terminate these at-will contracts, which allow federal funding to pass through the state to Planned Parenthood. Planned Parenthood of Utah has appealed this ruling to the 10th Circuit Court of Appeals.

The case is Civil No. 2:15-cv-04273-NKL.

Attorneys: Arthur A. Benson (Arthur Benson & Associates) for Planned Parenthood of Kansas and Mid-Missouri, Inc., d/b/a Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri. Curtis Schube, Missouri Attorney General's Office, for Peter Lyskowski, Acting Director, Missouri Department of Health and Senior Services.

Companies: Planned Parenthood of Kansas and Mid-Missouri, Inc., d/b/a Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri; Missouri Department of Health and Senior Services; Planned Parenthood Association of Utah

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