1 UNITED STATES DISTRICT COURT 2 MIDDLE DISTRICT OF LOUISIANA 3 4 PLANNED PARENTHOOD GULF COAST, INC.,ET AL : CIVIL ACTION VERSUS : NO. 15-565 KATHY KLIEBERT : HON. JOHN W. DEGRAVELLES 5 6 7 8 : SEPTEMBER 02, 2015 ============================================================== 9 MOTION HEARING 10 ============================================================== 11 A P P E A R A N C E S 12 13 14 15 FOR PLANNED PARENTHOOD GULF COAST INC.: MS. CARRIE Y. FLAXMAN PLANNED PARENTHOOD FEDERATION OF AMERICA 1110 VERMONT AVENUE, NW SUITE 300 WASHINGTON, DC 20005 16 17 18 19 FOR KATHY KLIEBERT: MR. STEPHEN R. RUSSO LOUISIANA DEPARTMENT OF HEALTH & HOSPITALS POST OFFICE BOX 3836 BATON ROUGE, LOUISIANA 70821-3836 20 21 22 23 24 25 REPORTED BY: GINA DELATTE-RICHARD,CCR _______________________________________________________________ UNITED STATES COURTHOUSE BATON ROUGE, LOUISIANA 70801 (225) 389-3564 2 1 PLANNED PARENTHOOD V. KLIEBERT #15-565 2 THE COURT: HELLO, EVERYONE. 09/02/15 YOU MAY BE SEATED. 3 WE ARE HERE THIS AFTERNOON IN PLANNED PARENTHOOD GULF COAST, 4 INCORPORATED AND OTHERS VERSUS KATHY KLIEBERT, NUMBER 5 15-CV-565. 6 WILL COUNSEL ENTER AN APPEARANCE FOR THE RECORD? 7 MR. RITTENBERG: GOOD AFTERNOON, JUDGE. I'M BILL 8 RITTENBERG AND I'M REPRESENTING PLAINTIFFS AND I'D LIKE TO 9 TAKE PLEASURE IN INTRODUCING TO THE COURT, CARRIE FLAXMAN AND 10 MELISSA COHEN, WHO ADMITTED PRO HAC VICE AND ARE ATTORNEYS 11 FROM PLANNED PARENTHOOD. 12 ARGUMENT. MS. FLAXMAN WILL MAKE THE ORAL 13 THE COURT: ALL RIGHT. 14 MR. RUSSO: JUDGE, STEPHEN RUSSO, EXECUTIVE COUNSEL THANK YOU. WELCOME. 15 FOR THE DEPARTMENT OF HEALTH AND HOSPITALS. 16 KIMBERLY HUMBLES, WHO'S THE GENERAL COUNSEL AND KIMBERLY 17 SULLIVAN, WHO IS THE DEPUTY GENERAL COUNSEL AND I'LL BE MAKING 18 THE ORAL ARGUMENT TODAY. WITH ME I HAVE 19 THE COURT: 20 JUST A PRELIMINARY MATTER OR TWO, WE'RE HERE OF ALL RIGHT. THANK YOU, MR. RUSSO. 21 COURSE ON A TEMPORARY RESTRAINING ORDER MOTION FILED BY THE 22 PLAINTIFFS IN THIS CASE. 23 YESTERDAY IN WHICH I INDICATED THAT BECAUSE THE UNITED STATES 24 HAD FILED ITS STATEMENT OF INTEREST LATE, I SAY LATE, TWO DAYS 25 AGO, THAT I WOULD GIVE THE DEPARTMENT OF HEALTH AND HOSPITALS, WE HAD A TELEPHONE STATUS CONFERENCE 3 1 ACTUALLY SECRETARY KLIEBERT, AND OPPORTUNITY TO RESPOND TO 2 THAT AND SHE WOULD HAVE UNTIL FRIDAY TO DO THAT. 3 BECAUSE OF THAT I SUGGESTED AND MR. RUSSO AGREED THAT THE 4 EFFECTIVE DATE OF THE TERMINATION WOULD BE SEPTEMBER THE 15TH, 5 END OF BUSINESS, IN ORDER TO GIVE THE COURT AN OPPORTUNITY TO 6 REVIEW THE ADDITIONAL BRIEFS AND THE ARGUMENT THAT WE WILL 7 HEAR TODAY. 8 9 AND THEN AND I RECEIVED YOUR LETTER, MR. RUSSO, AND I WILL MAKE THAT A PART OF THE RECORD. I'VE READ ALL OF THE 10 SUBMISSIONS THAT HAVE BEEN SUBMITTED TO DATE AND SO YOU 11 DON'T -- OBVIOUSLY, I WANT YOU TO ARGUE WHATEVER YOU WANT TO 12 ARGUE, BUT YOU CAN ASSUME THAT I HAVE READ EVERYTHING. 13 AND SO ARE THE PARTIES READY TO PROCEED? 14 MS. FLAXMAN: 15 THE COURT: YES, YOUR HONOR. MS. FLAXMAN, YOU WANT TO START? AND 16 BEFORE YOU BEGIN, I HAVE SORT OF A PRELIMINARY QUESTION WHICH 17 IS THIS: 18 FOUR CONTRACTS FOR TWO FACILITIES THAT ARE OPERATED BY YOUR 19 CLIENT, HAS DHH RAISED ANY SUGGESTION OR MADE ANY SUGGESTION 20 THAT THE REASON FOR TERMINATING THE CONTRACT HAS ANYTHING TO 21 DO WITH COMPETENCY OR THE ADEQUACY OF THE CARE THAT IS GIVEN 22 BY YOUR CLIENTS TO THE PATIENTS WHO GET THEIR CARE AT THOSE 23 FACILITIES? IN CONNECTION WITH THIS EFFORT TO TERMINATE THESE 24 MS. FLAXMAN: 25 THE COURT: NO, YOUR HONOR. OKAY. ALL RIGHT. ABSOLUTELY NOT. THEN GO AHEAD AND 4 1 PROCEED. 2 MS. FLAXMAN: YOUR HONOR, AS EVERY COURT TO LOOK AT 3 THIS ISSUE HAS RULED, IT VIOLATES FEDERAL LAW TO BAR PLANNED 4 PARENTHOOD FROM PROVIDING MEDICAID SERVICES TO ITS PATIENTS. 5 DESPITE PLANNED PARENTHOOD'S CRITICAL ROLE IN PROVIDING 6 SERVICES TO LOW INCOME RESIDENTS IN NEW ORLEANS AND BATON 7 ROUGE, DEFENDANT HERE IS SEEKING TO TERMINATE THEIR PROVIDER 8 AGREEMENTS WITHOUT A REASON. 9 RELIEF TO PREVENT THAT FROM HAPPENING. 10 PLAINTIFFS HERE NEED IMMEDIATE WE'RE HERE BECAUSE THE TERMINATION VIOLATES THE JANE 11 DOE PLAINTIFFS IN THIS CASE, THEIR RIGHT TO FREE CHOICE OF 12 PROVIDER UNDER SECTION AA23 OF THE MEDICAID ACT WHICH 13 GUARANTEES MEDICAID BENEFICIARIES THE RIGHT TO CHOOSE AMONG 14 WILLING PROVIDERS SO LONG AS THE PROVIDERS ARE, QUOTE, 15 "QUALIFIED TO PROVIDE THE SERVICES REQUIRED." 16 AS I JUST MENTIONED IN RESPONSE TO YOUR QUESTION, 17 THERE'S BEEN NO SUGGESTION HERE THAT PLANNED PARENTHOOD IS NOT 18 QUALIFIED TO RENDER SERVICES IN THE MEDICAID PROGRAM TO ITS 19 PATIENTS. 20 QUALITY CARE TO ITS PATIENTS, NO COMPLAINTS ABOUT THAT CARE 21 FROM THE STATE. 22 MOTIVATED REQUEST BY THE LEGISLATURE TO AUDIT PLANNED 23 PARENTHOOD OF THE GULF COAST AND THE LEGISLATOR -- LEGISLATIVE 24 AUDITOR RETURNED A REPORT SAYING THAT HE HAD REVIEWED PLANNED 25 PARENTHOOD'S BILLINGS AND THERE WAS NOTHING IRREGULAR ABOUT IT'S BEEN A GOOD PROVIDER FOR YEARS, PROVIDED GOOD AND, IN FACT, IN 2013 THERE WAS A POLITICALLY 5 1 THEM AND THAT AUDIT IS ATTACHED TO MS. LINTON'S DECLARATION 2 THAT'S BEFORE THE COURT. 3 AS COURTS TO HAVE CONSIDERED THIS ISSUE HAVE HELD, 4 THE SEVENTH CIRCUIT AND THE NINTH CIRCUIT, IN RULING FOR 5 PLANNED PARENTHOOD, IN SIMILAR CASES QUALIFIED MEANS THE 6 ORDINARY SENSE OF FIT OR COMPETENT TO PROVIDE THE SERVICES 7 WITHIN THE MEDICAID PROGRAM AND TO PROPERLY BILL FOR THEM. 8 AND AS YOUR HONOR KNOWS, GIVEN THE POSITION OF CMS 9 AND THE DEPARTMENT OF HEALTH AND HUMAN SERVICES IN THE BRIEF 10 FILED MONDAY, CMS HAS REPEATEDLY AGREED THAT A STATE CAN NOT 11 EXCLUDE AN OTHERWISE QUALIFIED PROVIDER FROM PROVIDING 12 SERVICES IN THE MEDICAID PROGRAM. 13 IN ADDITION TO DISAPPROVING THE STATE PLANNED THAT 14 INDIANA SUBMITTED A FEW YEARS BACK TO EXCLUDE ABORTION 15 PROVIDERS FROM MEDICAID, IT ALSO HAS REGULARLY ISSUED GUIDANCE 16 AND FILED SIMILAR STATEMENTS OF INTEREST AS IT HAS FILED HERE 17 EXPRESSING THAT AS BEING ITS VIEW OF FEDERAL LAW. 18 THE COURT: IN THE STATEMENT OF INTEREST THE COUNSEL 19 FOR THE UNITED STATES TAKES THE POSITION THAT THE LONGSTANDING 20 UNDERSTANDING OF THE WORD "QUALIFIED" ESSENTIALLY MEANS 21 COMPETENT TO PROVIDE THE SERVICES. 22 THE PLAINTIFFS IN THIS CASE AS WELL? 23 MS. FLAXMAN: 24 THE COURT: 25 TODAY? IS THAT THE POSITION OF YES, IT IS. OKAY. DO WE HAVE THE UNITED STATES HERE I KNOW THEY FILED THE STATEMENT OF INTEREST, BUT IS 6 1 THE ATTORNEY FOR THE UNITED STATES HERE AND GOING TO 2 PARTICIPATE OR DO YOU KNOW? 3 MS. FLAXMAN: 4 THE COURT: 5 WAS JUST ASKING. 6 I DON'T BELIEVE SO. OKAY. OKAY. MS. FLAXMAN: NOBODY MADE AN APPEARANCE SO I GO AHEAD. SURE. AND TO RESPOND TO A POINT THAT 7 DEFENDANT HAS RAISED IN HER BRIEF, NOT ONLY IS IT CLEAR THAT 8 THE ACTION VIOLATES FEDERAL LAW, BUT IT IS CLEAR THAT THE 9 PATIENT PLAINTIFFS HERE IN THIS CASE HAVE A RIGHT OF ACTION TO 10 CHALLENGE THAT VIOLATION OF FEDERAL LAW UNDER SECTION 1983. 11 AS THIS COURT HAS ALREADY HELD IN THE TOWNSEND CASE 12 AND AS THE SIXTH, SEVENTH, AND NINTH CIRCUITS HAVE ALREADY 13 HELD, THE -- THE SECTION OF THE MEDICAID ACT AA23 CLEARLY 14 FULFILLS THE STANDARD SET FORTH BY THE SUPREME COURT IN 15 BLESSING AND THEN IN THE GONZAGA CASE CASES. 16 CREATING LANGUAGE THAT UNAMBIGUOUSLY CONFERS A RIGHT ON 17 MEDICAID PATIENTS. 18 AMORPHOUS, THAT IS STRAINED JUDICIAL COMPETENCE TO ENFORCE AND 19 THE REQUIREMENT IS COUCHED IN MANDATORY TERMS. 20 THE STANDARDS ARE NOT SO VAGUE AND THE COURT: DHH TAKES THE POSITION THAT ARMSTRONG 21 HAS CHANGED ALL OF THAT. 22 ARGUMENT. 23 IT HAS RIGHTS MS. FLAXMAN: NOW, WHY DON'T YOU ADDRESS THAT SURE. NOTHING IN ARMSTRONG CHANGES ARMSTRONG WAS ABOUT A COMPLETELY DIFFERENT 24 THAT, YOUR HONOR. 25 SECTION OF THE MEDICAID ACT. MOST IMPORTANTLY, HOWEVER, 7 1 ARMSTRONG -- THERE WAS NO SECTION 1983 CLAIM IN ARMSTRONG, 2 PERHAPS BECAUSE OF PROVIDERS THERE REALIZED THAT WE DIDN'T 3 HAVE THE ARGUMENTS WE HAD HERE, THAT THE SECTION OF THE 4 MEDICAID ACT AT ISSUE -- 5 6 7 THE COURT: WELL, THE PLAINTIFFS IN ARMSTRONG WERE TWO PROVIDERS; RIGHT? MS. FLAXMAN: CORRECT. AND IT WAS A DIFFERENT 8 SECTION OF THE MEDICAID STATUTE WITHOUT THE SAME KIND OF 9 RIGHTS CREATING LANGUAGE. THE ISSUE IN ARMSTRONG WAS WHETHER 10 THEY HAD IMPLIED RIGHTS OF ACTION UNDER THE SUPREMACY CLAUSE 11 OR UNDER EQUITY PRINCIPLES TO ARGUE THAT THE RATES AT ISSUE 12 THERE WERE ILLEGAL UNDER FEDERAL -- FEDERAL LAW AND THE 13 SUPREME COURT SAID THAT THEY COULD NOT BRING THEIR CASE. 14 AGAIN, THERE WAS NOTHING ABOUT SECTION 1983 IN THAT CASE AND 15 NOTHING THAT SUGGESTS AT ALL THAT THE COURT -- 16 17 THE COURT: WELL, WITH JUSTICE SCALIA IT DOES DISCUSS 1983, DOES IT NOT? 18 MS. FLAXMAN: 19 IS NOT THE OPINION OF THE COURT. 20 21 THE COURT: JUSTICE SCALIA DOES, BUT HIS DECISION IT IS THAT PART OF THE -- THAT WAS SECTION FOUR OF THE OPINION THAT JUSTICE BRIAR DID NOT JOIN IN? 22 MS. FLAXMAN: 23 THE COURT: 24 MS. FLAXMAN: 25 BUT, THAT'S CORRECT, YOUR HONOR. OKAY. FINALLY, AND THIS IS ADDRESSED IN FURTHER DETAIL IN OUR BRIEF, BUT THE OTHER INJUNCTIVE FACTOR 8 1 CLEARLY WEIGH IN FAVOR OF RELIEF HERE IN THIS CASE CLAIMING 2 THAT THERE WAS IRREPARABLE HARM BOTH TO THE PATIENTS AND TO 3 PLANNED PARENTHOOD WHO PROVIDES CRITICALLY NEEDED FAMILY 4 PLANNING AND OTHER PREVENTIVE SERVICERS SUCH AS CANCER 5 SCREENINGS TO MORE THAN 5,000 PATIENTS ANNUALLY IN BATON ROUGE 6 AND NEW ORLEANS AND THERE ARE HUGE NEEDS IN THE STATE FOR 7 SERVICES, YOUR HONOR. 8 IN FAVOR OF PLAINTIFFS. 9 IF THE PATIENTS COULD FIND OTHER PROVIDERS TO PROVIDE THE CARE THE BALANCE OF HARMS CLEARLY ALSO WEIGH THE DEFENDANT -- IF THE PLAINTIFF -- 10 THE DEFENDANT WILL BE PAYING FOR THOSE SERVICES UNDER ITS 11 OBLIGATIONS ANYWAY UNDER MEDICAID. 12 THE COURT: WELL, HOW DO YOU RESPOND TO THE 13 DEFENDANT'S ARGUMENT THAT THERE ARE 2,010 OTHER PROVIDERS WHO 14 PROVIDE THE SAME SERVICES THAT YOUR CLIENTS PROVIDE AND 15 THEREFORE, WHAT'S THE BIG DEAL? 16 MS. FLAXMAN: WELL THE -- THE LIST THE DEFENDANT 17 PROVIDED APPEARS TO BE A LIST OF ALL ENROLLED MEDICAID 18 PROVIDERS IN BOTH REGIONS. 19 THEIR FACE PROVIDERS THAT WOULD NOT PROVIDE THE CARE THAT 20 PLANNED PARENTHOOD PROVIDES, INCLUDING DENTISTS, RADIOLOGISTS, 21 NURSING HOMES, PLACES THAT ARE NOT GOING TO DO BREAST CANCER 22 SCREENINGS OR GIVE OUT BIRTH CONTROL. 23 THERE ARE NUMEROUS EXAMPLES OF ON AND THE DEFENDANT HAS NOT AT ALL RESPONDED TO THE 24 DECLARATION TESTIMONY THAT WE HAVE PUT IN BY MS. LINTON THAT 25 MAKES CLEAR THAT EVEN IF THERE ARE OTHER PROVIDERS WHO PROVIDE 9 1 THE SAME SERVICES THE WAITS ARE LONGER, IT'S DIFFICULT FOR OUR 2 PATIENTS TO GET CARE THERE AND THERE'S NO WAY THAT -- THAT 3 OTHER ALTERNATIVE PROVIDERS HAVE THE CAPACITY TO ABSORB OUR 4 PATIENTS. 5 AT ALL TAKEN ISSUE WITH THOSE STATEMENTS NOR OF THE STATEMENTS 6 OF THE JANE DOE PLAINTIFFS WHO SAY THEY PREFER PLANNED 7 PARENTHOOD AND IN SOME CASES SAID THEY DON'T KNOW WHERE ELSE 8 THEY WILL GO IF PLANNED PARENTHOOD CAN'T PROVIDE CARE IN THE 9 PROGRAM. AND DEFENDANT HAS SUPPLIED THIS LIST, BUT HAS NOT 10 I'LL ALSO ADD THAT AT LEAST FOR PURPOSES OF THE 11 MEDICAID ACT CLAIM, IT DOESN'T MATTER AT ALL IF THERE ARE 12 OTHER PROVIDERS, AND WE THINK THERE AREN'T, BUT THE ANY 13 WILLING PROVIDER PROVISION GUARANTEES PATIENTS THE RIGHT TO 14 CHOOSE ANY PROVIDER. 15 WILLING AND ABLE THAT WOULD NOT SATISFY -- 16 17 18 THE COURT: SO EVEN IF THERE WERE OTHER PROVIDERS IT DOESN'T REALLY ADDRESS THE MANDATE OF THE SECTION WE'RE TALKING ABOUT IS WHAT YOU'RE SAYING? MS. FLAXMAN: THE MANDATE OF THE SECTION REQUIRES 19 ANY WILLING PROVIDER. 20 AND WE SUBMIT THERE AREN'T, WHO ARE ABLE TO ABSORB THIS 21 CAPACITY OF PATIENTS -- AND SO EVEN IF THERE WERE PROVIDERS, 22 THE COURT: 23 MS. FLAXMAN: 24 25 AND HOW MANY PATIENTS ARE THERE? IT IS -- IN 2014 -- FISCAL YEAR 2014, IT WAS OVER 5200 PATIENTS SERVED THAT YEAR. THE COURT: ALL RIGHT. 10 1 2 MS. FLAXMAN: AND IF YOUR HONOR DOESN'T HAVE ANY FURTHER QUESTIONS? 3 THE COURT: I MAY, ACTUALLY. I THINK ONE OF THE 4 ARGUMENTS DHH -- I KEEP SAYING DHH, SECRETARY KLIEBERT. 5 OF THE ARGUMENTS SECRETARY KLIEBERT MAKES IS THAT YOU HAVE A 6 REMEDY, THAT IS TO SAY YOUR CLIENTS HAVE A REMEDY, THROUGH THE 7 ADMINISTRATION -- ADMINISTRATIVE PROCEDURES OF DOING AN 8 ADMINISTRATIVE APPEAL. 9 THAT IS, CAN YOU TAKE AN APPEAL UNTIL THE TERMINATION IS 10 EFFECTIVE? 11 ONE I GUESS THE FIRST QUESTION I HAVE ON WOULD IT BE PREMATURE? MS. FLAXMAN: THAT IS NOT SOMETHING WE'VE DISCUSSED 12 WITH THE STATE WHETHER THE AGREEMENT SO FAR TO EXTEND TO THE 13 15TH HAS ALSO TOLLED THE 30 DAYS THAT -- THAT PLANNED 14 PARENTHOOD WAS GIVEN TO APPEAL. 15 THAT, YOUR HONOR. 16 THE JANE DOE PATIENTS, HAVE NO ADMINISTRATIVE RIGHT IN -- IN 17 THE STATE ADMINISTRATIVE SYSTEM OR OTHERWISE. 18 THAT IS CURRENTLY BEFORE THE COURT TODAY ON THIS MOTION IS 19 THAT OF THE PATIENTS UNDER THE FEDERAL MEDICAID ACT. 20 SO I DON'T KNOW THE ANSWER TO I WILL SAY THAT THE PATIENTS WHO ARE HERE, THE COURT: OKAY. AND THE CLAIM HOW MANY -- THE FACILITIES THAT 21 PLANNED PARENTHOOD HAS THAT -- WHERE THESE JANE DOES AND 22 OTHERS, 5200 OR SO, GO FOR THEIR CARE, HOW MANY FACILITIES ARE 23 THERE? 24 ME THEIR LOCATIONS. 25 AND I DON'T WANT ADDRESSES OR ANYTHING, BUT JUST GIVE MS. FLAXMAN: SURE. THERE'S TWO HEALTH CENTERS IN 11 1 LOUISIANA; ONE IS IN BATON ROUGE OR ONE IS IN NEW ORLEANS. 2 CAN GIVE THE ADDRESSES -- 3 THE COURT: 4 MS. FLAXMAN: I OKAY. -- AS WELL IF YOU'D LIKE THEM. THE 5 BATON ROUGE HEALTH CENTER IS AT 3955 GOVERNMENT STREET AND IN 6 NEW ORLEANS IT'S 4018 MAGAZINE STREET. 7 8 9 10 THE COURT: ALL RIGHT. THANK YOU. I DON'T HAVE ANY OTHER QUESTIONS. MS. FLAXMAN: THE COURT: THANK YOU. AND LET ME START WITH THE SAME QUESTION 11 THAT I STARTED WITH MS. FLAXMAN. 12 IT, ABOUT THE COMPETENCY OF THESE TWO FACILITIES TO PROVIDE 13 MEDICAID SERVICES AND ADEQUATE CARE FOR THE PATIENTS THAT THEY 14 SERVE, WOULD YOU AGREE WITH THAT? 15 16 MR. RUSSO: THERE IS NO QUESTION, I TAKE AT THIS TIME I WOULD AGREE WITH THAT, YES, YOUR HONOR. 17 THE COURT: OKAY. 18 MR. RUSSO: YOUR HONOR -- 19 THE COURT: WAIT, IN FACT, LET ME STOP YOU AGAIN. GO FORWARD THEN. I 20 WANTED TO -- BECAUSE THIS SEEMS TO BE ESSENTIAL TO THE ISSUES 21 IN THIS CASE. 22 SOLE REASON FOR THE DECISION TO TERMINATE THESE CONTRACTS IS 23 THE, QUOTE, "UTILIZATION OF THE STATUTORY PROVISIONS OF LARS 24 437.11(D)1." 25 MS. KLIEBERT IN HER AFFIDAVIT SAYS, "THAT THE WHAT DOES THAT MEAN? MR. RUSSO: BASICALLY WHAT THAT MEANS, YOUR HONOR, 12 1 IS THERE'S A STATE STATUTE THAT ALLOWS DHH WHEN DEALING WITH 2 MEDICAID PROVIDER CONTRACTS THAT CLEARLY STATES THAT ALL 3 CONTRACTS SHALL BE TERMINABLE AT WILL WITH 30 DAYS WRITTEN 4 NOTICE. 5 FOR 19 YEARS AND SO THAT IS THE STANCE OF THE SECRETARY. 6 7 THE COURT: IT IS THE SOLE REASON THESE CONTRACTS WERE TERMINATED? 8 9 THAT HAS BEEN IN OUR CONTRACT SINCE I'VE BEEN AT DHH MR. RUSSO: EXACTLY, JUDGE. THERE IS A MECHANISM. THERE IS A CURRENT MOTIVE, I THINK, THAT -- THAT IS OUT THERE, 10 THAT WE ALL KNOW IS OUT THERE. 11 THAT HAVE BEEN -- THAT HAVE BEEN PORTRAYED -- WE'VE GOT SOME VIDEO TAPES 12 THE COURT: WELL, IS THAT THE REASON? 13 MR. RUSSO: THAT IS, YOUR HONOR -- THAT IS THE 14 MOTIVE LEADING UP TO IT, BUT IT IS NOT THE REASON THIS TIME. 15 THE REASON THIS TIME IS THE STATUTE THAT SAYS WE HAVE 30 16 DAYS -- 17 THE COURT: ALL RIGHT. SO THE REASON IS UNRELATED 18 TO THE ABILITY OF THESE TWO FACILITIES TO PROVIDE ADEQUATE 19 CARE TO THEIR PATIENTS; IS THAT TRUE? 20 MR. RUSSO: THAT I WOULD AGREE WITH, YES, SIR. 21 THE COURT: SO MS. KLIEBERT'S POSITION IS THAT THESE 22 ARE TERMINATED WITHOUT RELATIONSHIP OF ANY KIND TO THE 23 ADEQUACY OF CARE; CORRECT? 24 25 MR. RUSSO: EXACTLY. CORRECT, AT THIS TIME, YOUR HONOR, 13 1 THE COURT: SO YOU HAVE 5200 WOMEN WHO ARE GETTING 2 THEIR CARE AT THESE FACILITIES AND YOU WOULD AGREE THAT IF 3 THESE CONTRACTS ARE TERMINATED THAT CARE IS GOING TO BE 4 DISRUPTED; CORRECT? 5 MR. RUSSO: I WOULD NOT AGREE WITH THAT, YOUR HONOR. 6 THE COURT: THEY'RE GOING TO HAVE TO GET OTHER 7 DOCTORS, THEY'RE GOING TO HAVE TO SEEK OUT OTHER PLACES TO GET 8 THEIR HEALTH CARE; CORRECT? 9 MR. RUSSO: THEY WILL HAVE TO DO THAT, CORRECT. 10 THE COURT: AND YOU WOULD AGREE THAT THAT IS A 11 DISRUPTION OF SOME KIND? 12 MR. RUSSO: YES. 13 THE COURT: ARE YOU SAYING IT'S AN INSIGNIFICANT 14 THING TO HAVE A RELATIONSHIP WITH A HEALTHCARE -- 15 MR. RUSSO: I'M NOT SAYING -- 16 THE COURT: LET ME FINISH -- A HEALTHCARE PROVIDER 17 AND FOR NO REASON RELATED TO THE HEALTHCARE THEY'RE GETTING 18 THAT CONTRACT OR THAT RELATIONSHIP IS TERMINATED AND THEY HAVE 19 TO GO SOMEPLACE ELSE TIMES 5200? 20 21 CORRECT. 24 25 FIRST, I'M NOT SURE OF THE 5200 THE COURT: WELL, LET'S ASSUME THAT THAT NUMBER IS NUMBER -- 22 23 MR. RUSSO: YOU'RE NOT CHALLENGING THAT NUMBER? MR. RUSSO: IT. I'M JUST -- I'M JUST NOT SURE. I'M NOT CHALLENGING 14 1 THE COURT: OKAY. SO ASSUME IT'S 5200. YOU'VE GOT 2 5200 WOMEN WHOSE CARE IS INTERRUPTED WITH THE HEALTHCARE 3 PROVIDERS TO WHOM THEY CHOOSE TO GO AND YOU'RE TELLING ME 4 SECRETARY KLIEBERT'S REASON FOR DOING THAT IS THERE IS NO 5 REASON; WE CAN'T DO IT? 6 MR. RUSSO: THE REASON IS THE CONTRACT IS TERMINABLE 7 AT WILL AND IT'S -- AND IT'S A CONTRACT PROVISION THAT NO ONE 8 HAS CHALLENGED AND SHE HAS CHOSEN TO TERMINATE THAT CONTRACT. 9 THE COURT: OKAY. 10 MR. RUSSO: THE SEMINAL ISSUE OR THE FOUNDATION, GO FORWARD. 11 JUDGE, OF US EVEN BEING HERE IS THE ARMSTRONG CASE IN 12 SECRETARY KLIEBERT'S VIEW. 13 THE COURT: ARMSTRONG DIDN'T INVOLVE 1983, DID IT? 14 MR. RUSSO: IT DID NOT DIRECTLY INVOLVE 1983. 15 HOWEVER, JUDGE, IT INVOLVED CLEARLY A WALK-THROUGH TO 16 DETERMINE WHETHER OR NOT THERE WAS, NUMBER ONE, A RIGHT TO 17 BRING A CASE ASKING FOR RATES UNDER A30(A,) AND BY THE WAY, 18 THE CASES THAT THE PLAINTIFFS HAVE MENTIONED, THOSE ARE CASES 19 THAT I HANDLED, SO I'M FAMILIAR WITH THE A33 HISTORY FROM 20 BEGINNING ALL THE WAY UP TO WHERE IT IS NOW. 21 BASICALLY, JUDGE SCALIA WALKED THROUGH -- JUSTICE 22 SCALIA WALKED THROUGH CLEARLY SUPREMACY CLAUSE FIRST, HE 23 WALKED THROUGH THEN EQUITY, HE THEN FINALLY ENDED UP AND SAID, 24 HEY, LET'S GO AHEAD AND LOOK AT THE MEDICAID ACT ITSELF. 25 HE WAS LOOKING AT A30. NOW, A23 FALLS UP SEVEN PREVIOUS TO THAT 15 1 AND IT FALLS UNDER THE DEAL OF TRADITIONAL SPENDING CLAUSE. 2 IT'S SAYS, "STATE PLAN SHALL PROVIDE," AND IT STARTS GOING 3 FREEDOM OF CHOICE, QUALIFIED PROVIDER. 4 IT'S A CONTRACT BETWEEN DHH AND CMS IN ORDER TO GET FEDERAL 5 DOLLARS. 6 SITUATION YOUR MODERN JURISPRUDENCE OF BENEFICIARIES HAVING A 7 RIGHT OF ACTION, PROVIDERS HAVING A RIGHT OF ACTION, DOESN'T 8 APPLY. IT'S IN THE SAME SPOT. AND JUSTICE SCALIA MADE IT CLEAR THAT IN THAT 9 THE COURT: IT DIDN'T OVERRULE GONZAGA, RIGHT? 10 MR. RUSSO: NO, IT DID NOT. 11 THE COURT: IT DIDN'T OVERRULE WILDER? 12 MR. RUSSO: IT DID NOT TO MY KNOWLEDGE, NO, JUDGE. 13 THE COURT: OKAY. 14 MR. RUSSO: IT DID NOT. AND SO WE GET TO THAT 15 POINT, SO OF COURSE THE COURT, HE ADDRESSED THE RIGHTS OF THE 16 RECIPIENTS. 17 SECRETARY OF CMS. 18 SHE COULD POTENTIALLY TRY TO BRING INJUNCTIVE RELIEF. 19 THEIR RIGHT OF ACTION. 20 PROCESS IS PROTECTED. 21 HONOR. 22 THE RECIPIENTS' RIGHTS ARE TO PROCEED THROUGH THE THE SECRETARY OF CMS CAN WITHHOLD FUNDS. THAT IS THAT'S HOW THEY PRECEDE THEIR DUE THE PROCESS RIGHT NOW IS WORKING, YOUR WE'VE HAD TWO CONVERSATIONS WITH CMS ALREADY. THE COURT: BUT I HEARD MS. FLAXMAN SAY THAT WITH 23 RESPECT TO THE PATIENTS, JANE DOE, ONE, TWO AND THREE, THEY 24 DON'T HAVE ANY ADMINISTRATIVE REMEDY. 25 MR. RUSSO: NO, THEY DO NOT, YOUR HONOR. 16 1 THE COURT: 2 TODAY. 3 THEIR REMEDY? WELL, THAT'S WHAT WE'RE HERE ABOUT SO IF THEY DON'T HAVE AN ADMINISTRATIVE REMEDY WHAT IS 4 MR. RUSSO: THEIR REMEDY IS THROUGH AS, ARMSTRONG 5 CLEARLY MADE, THEIR REMEDY IS THROUGH THE SECRETARY OF HEALTH 6 AND HUMAN SERVICES AS A CONTRACT BETWEEN TWO GOVERNMENTAL 7 AGENCIES TO BRING US, IF THEY FIND AFTER WE DISCUSS THIS THAT 8 WE ARE NOT IN COMPLIANCE, THAT THEY START TO WITHHOLD FUNDS 9 UNTIL WE COME INTO COMPLIANCE. 10 BELIEVE, YOUR HONOR. 11 THE COURT: 12 MR. RUSSO: BUT THE FACT THAT THAT IS A REMEDY, THAT I THINK JUSTICE SCALIA CLEARLY CLOSED THAT OUT AND SAID IT IS THE SOLE REMEDY IN ARMSTRONG. 15 16 GOING TO -- DOESN'T MEAN IT'S THE ONLY REMEDY; CORRECT? 13 14 ARMSTRONG WAS CLEAR ON THAT, I THE COURT: IN ARMSTRONG FOR THAT PARTICULAR MR. RUSSO: FOR THAT PARTICULAR SECTION, BUT I SECTION. 17 18 BELIEVE, YOUR HONOR, IF YOU USE THE EXACT SAME RATIONALE OF 19 THE A30(A) LITIGATION YOU BRING IN -- IT'S THE EXACT SAME 20 RIGHTS CREATING TYPE OF LANGUAGE. 21 THE STATE PLAN SHOULD PROVIDE. 22 MEANINGS OF WHAT DOES QUALIFIED MEAN, YOUR HONOR. A23 AND A30 BOTH SAY WHAT WE BOTH HAVE SOME VAGUE 23 THE COURT: WELL, WHY IS THAT VAGUE? 24 MR. RUSSO: YOUR HONOR, LET ME TELL YOU WHY IT'S 25 VAGUE. WE'VE HAD -- THE VERY FIRST CONVERSATION WE HAD WITH 17 1 CMS, AND YOU'RE GOING TO SEE THIS FLESHED OUT IN OUR RESPONSE 2 TO THEIR STATEMENT OF INTEREST. 3 TO CMS -- THE CONVERSATION, I WAS LEADING THE CONVERSATION, 4 AND I ASKED CMS, SO QUALIFIED -- MOST OF THE DOCTORS THAT 5 WE'VE KICKED OUT DURING MY 19 YEARS, THE LSBME HAS NEVER 6 PULLED THE LICENSE OR MAYBE ONLY PULLED THE LICENSE OF A FEW 7 OF THEM. 8 ME THAT'S QUALIFIED? 9 SURELY GO AND STILL PROVIDE MEDICINE. 10 13 14 15 WE DON'T HAVE THAT JURISDICTION. SO ARE YOU TELLING THEY HAVE THEIR LICENSE. THEY CAN WELL, NO, WE UNDERSTAND THAT THAT'S -- YOU KNOW, THAT'S NOT REALLY LIKE DISPOSITIVE -- 11 12 THE VERY FIRST COMMENT WE HAD THE COURT: OKAY. THAT'S IN A CONVERSATION YOU HAD MR. RUSSO: WITH THE HEAD OF CMS AND THE GENERAL WITH WHO? COUNSEL'S OFFICE OF CMS. THE COURT: ALL RIGHT. WELL, THIS IS WHAT THEY'VE 16 WRITTEN IN THEIR FILING IN THIS CASE: 17 "THERE IS A LONGSTANDING INTERPRETATION OF THE STATUTORY 18 LANGUAGE, QUOTE, "QUALIFIED TO PROVIDE THE SERVICE, WHICH 19 MEANS COMPETENT TO PROVIDE THE SERVICE AND BILL FOR IT." 20 ASSUME FOR THE MOMENT THAT THAT IS IN FACT THE -- WELL, FIRST 21 OF ALL, DO YOU DISAGREE THAT THAT IS THE LONGSTANDING 22 INTERPRETATION GIVEN BY CMS? 23 MR. RUSSO: YES, I DO. 24 THE COURT: OKAY. 25 REASONABLE INTERPRETATION? AND THAT IS THAT, DO YOU AGREE THAT THIS IS A NOW, 18 1 MR. RUSSO: NO, YOUR HONOR, I DON'T AGREE. I THINK 2 IT IS A VERY VAGUE STANDARD AS WHAT'S FLESHED OUT IN MY 3 CONVERSATIONS WITH CMS AS TO REALLY WHAT IS QUALIFIED. 4 THEY -- THEIR -- THEIR FINAL CONVERSATION WITH US WAS WELL, 5 YOU NEED TO GIVE US SOME REASONS. 6 HAVE -- AND I POINTED OUT THAT WE HAVE IN OUR -- IN OUR 7 STATUTES PROBABLY, IN ADDITION TO THE AT-WILL, WE PROBABLY 8 HAVE 23 OR SO REASONS BY WHICH WE CAN KICK SOMEBODY OUT OF THE 9 PROGRAM. 10 WE UNDERSTAND THAT YOU ALL WAY BROADER -THE COURT: LET ME ASK YOU THIS THOUGH, THIS IS 11 ANOTHER POSITION THAT THE UNITED STATES SAYS, THAT REGARDLESS 12 OF THE SPECIFIC DEFINITION OF QUALIFIED, "QUALIFIED HAS TO BE 13 RELATED TO THE ABILITY OF THE PROVIDER TO PROVIDE SERVICES, 14 NOT JUST BECAUSE WE SAY IT IS." 15 MR. RUSSO: DO YOU AGREE WITH THAT? I AGREE THAT IS WHAT THEY HAVE SAID. 16 NOW, I AGREE WE HAVE SOME CONTRACT LAW PROVISIONS THAT ALLOW 17 US TO TERMINATE WITH 30 DAYS NOTICE. 18 19 20 THE COURT: WITHOUT RELATION TO THE QUALITY OF THE CARE THAT THE PEOPLE GIVE? MR. RUSSO: OH, DEFINITELY, YOUR HONOR. I THINK DHH 21 IS WITHIN THEIR RIGHTS UNDER LOUISIANA CONTRACT LAW AND A 22 STATUTE THAT IS OUT THERE, A STATE STATUTE THAT HAS NEVER BEEN 23 CHALLENGED, THAT IS CONSTITUTIONAL, THAT IS ON THE BOOKS, THAT 24 IS PART OF OUR CONTRACT WITH PLANNED PARENTHOOD, THAT WE WERE 25 CERTAINLY WITHIN OUR RIGHTS WITHOUT QUESTION. 19 1 THE COURT: OKAY. 2 MR. RUSSO: SO, JUDGE, THAT'S MY -- YOU KNOW, THAT'S 3 MY POINT WITH THE ARMSTRONG CASE IS -- IS QUALIFIED. 4 BEEN ALMOST, AND I KNOW YOU POINTED OUT THE STATEMENT OF 5 INTEREST, BUT WE HAVE SOME CONTENDING VIEWS DIRECTLY FROM THE 6 GENERAL COUNSEL OF CMS AS TO WHAT DOES QUALIFIED MEAN. 7 THINK WHEN YOU WALK THROUGH THAT WHAT WE HAVE IS, AND AS 8 JUSTICE SCALIA POINTED OUT, WE HAVE A PROCESS THAT WE ARE IN 9 THE MIDST OF. 10 THERE'S SO I AS FAR AS I KNOW, WE WILL HAVE FOLLOW-UP 11 CONVERSATIONS WITH CMS TO DETERMINE WHAT THEY BELIEVE 12 COMPLIANCE IS GOING TO BE, AND ONCE WE GET THERE, YOU KNOW, 13 WE'RE GOING TO -- WE'RE GOING TO FLESH IT OUT WITH THEM AND 14 HANDLE IT WITH THEM. 15 FUNDS TO TRY TO BRING US IN COMPLIANCE, I'M NOT REALLY SURE 16 WHAT THEIR PLANS ARE. 17 FUNDS TO TRY TO BRING US INTO WHAT THEY CONSIDER TO BE 18 COMPLIANCE. 19 I DON'T KNOW WHETHER THEY WILL WITHHOLD THEY HAVE MENTIONED WITHHOLDING OF THE RELIANCE, YOUR HONOR, I KNOW THEY MADE A BIG 20 DEAL ABOUT PLAINTIFFS OUT OF THE SEVENTH AND THE NINTH 21 CIRCUIT. 22 PRE ARMSTRONG. 23 LAID OUT IN ARMSTRONG, THE SECRETARY BELIEVES, THAT SHOULD 24 CONTROL. 25 SAW IS, YOU SAW A TERMINATION OF A CLASS OF PROVIDERS. IN MY MIND THE SEVENTH AND NINTH CIRCUIT CLEARLY ARE SO I BELIEVE THAT ARMSTRONG AND THE RATIONALE IN THE SEVENTH AND THE NINTH CIRCUIT WHAT YOU ALSO THEY 20 1 HAD A STATUTE PASSED AND THEY HAD A STATE PLAN THAT HAD TO BE 2 PUT BEFORE CMS. 3 CHANGED HERE. 4 WE DO NOT HAVE A STATE PLAN THAT NEEDS TO BE THE COURT: YEAH, BUT HERE THE STATUTE THAT WE'RE 5 TALKING ABOUT SAYS THAT A PERSON WHO IS MEDICAID ELIGIBLE HAS 6 THE RIGHT TO GO TO ANY PROVIDER, AND IF YOU TAKE AWAY THE 7 PROVIDER THAT SHE WANTS TO GO TO AND THAT PROVIDER IS 8 COMPETENT AND ADEQUATE TO GIVE SERVICE AND THAT CONTRACT IS 9 BEING TERMINATED BECAUSE OF, I CAN DO IT, DON'T YOU THINK THAT 10 IS SOMETHING FUNDAMENTALLY WRONG ABOUT THAT? 11 MR. RUSSO: WELL, JUDGE, FIRST OF ALL, I TAKE AN 12 ISSUE OR THE SECRETARY TAKES AN ISSUE AS TO THAT BEING THE 13 LONGSTANDING DEAL. 14 PRETTY CLEARLY, AND WE HAVE ALWAYS GONE BY THE ASSUMPTION THAT 15 AS LONG AS THERE IS A VARIETY OF PROVIDERS OF WHICH YOU CAN 16 CHOOSE FROM, THAT THE O'BANNON CASE MADE IT PRETTY CLEAR YOU 17 DO NOT HAVE A PARTICULAR RIGHT TO, I WANT TO GO TO THAT 18 PROVIDER. 19 QUALIFIED, PART OF BEING QUALIFIED IS HAVING THIS PE 50. 20 O'BANNON SEEMS TO POINT OUT THAT. 21 I BELIEVE THE O'BANNON CASE POINTS OUT YOU HAVE A CHOICE TO PICK PROVIDERS WHO ARE BUT AND AS A MATTER OF FACT, WHEN YOU LOOK AT THE 22 HISTORICAL DEAL OF FREEDOM OF CHOICE, FREEDOM OF CHOICE WAS 23 PUT IN THERE, I CONTEND, YOUR HONOR, AND THE SECRETARY 24 CONTENDS, TO PREVENT STATES FROM LOCKING RECIPIENTS IN, WHICH 25 IS A PRACTICE YOU CAN DO WITH A WAIVER FROM CMS. A WAIVER -- 21 1 WHAT THEY CALL A WAIVER OF FREEDOM OF CHOICE. 2 THEM IN AND SAY YOU MUST GO SEE PROVIDER A AND YOU HAVE TO 3 HAVE THAT WAIVER. 4 HONOR, THAT YOU DON'T HAVE A PARTICULAR RIGHT TO PICK A 5 PARTICULAR PROVIDER. 6 HAD THE CONTRACT THAT PLANNED PARENTHOOD SIGNED THAT SAID WE 7 COULD TERMINATE WITH 30 DAYS NOTICE AT WILL. 8 LONGER IN THE SECRETARY'S MIND GOING TO BE A QUALIFIED 9 PROVIDER. 10 11 12 13 YOU CAN LOCK BUT O'BANNON I THINK MADE CLEAR, YOUR AND IF YOU GO TOWARDS THAT, ANYWAY WE SO THEY'RE NO AND IF YOU LET THERE BE SOME SORT -THE COURT: THEY -- THEY'RE NOT QUALIFIED BECAUSE YOU'RE TERMINATING THEIR CONTRACT? MR. RUSSO: EXACTLY. AND I ADMIT THAT THAT'S CIRCULAR, YOUR HONOR, BUT -- 14 THE COURT: IT IS CIRCULAR. 15 MR. RUSSO: -- BUT WHEN YOU TAKE IT OUT OF THE REALM 16 OF MEDICAID YOU'VE GOT OTHER STATUTES. 17 CIRCUIT CASE OF VAGA-ROMOS, YOU'VE GOT 1396A(P,) YOU'VE GOT 42 18 CFR 1002.100 WHICH CLEARLY LAYS OUT THAT IF A STATE HAS 19 STATUTORY POWER AND AUTHORITY TO TAKE ACTION THEY CAN TAKE 20 ACTION UNDER THAT. 21 THAT PROVISION. 22 YOU'VE GOT THE FIRST NO ONE HAS -- NO PROVIDER HAS CHALLENGED THE COURT: WELL, THIS HAS NEVER BEEN -- THIS HAS 23 NEVER -- THIS PARTICULAR PROVISION HAS NEVER BEEN USED IN THIS 24 WAY, HAS IT? 25 MR. RUSSO: IT HAS NOT, YOUR HONOR. IT HAS BEEN -- 22 1 2 3 4 THE COURT: WELL, THEN HOW COULD IT BE CHALLENGED BEFORE IF IT'S NEVER BEEN USED IN THIS WAY? MR. RUSSO: BECAUSE IT'S ON THE BOOKS, JUDGE. THEY KNEW WHEN THEY SIGNED THIS CONTRACT -- 5 THE COURT: 6 ABSTRACT, MR. RUSSO. 7 AND IF IT'S NEVER -- IF IT'S NEVER BEEN USED IN THE WAY THAT 8 YOUR CLIENT IS USING IT IN THIS CASE HOW DO YOU EXPECT IT TO 9 BE CHALLENGED? 10 PEOPLE DON'T CHALLENGE STATUES IN THE THERE'S GOT TO BE A REASON TO DO IT. GOOD POINT? MR. RUSSO: IT'S A FAIR POINT, JUDGE. I BELIEVE WE 11 HAVE NOT UTILIZED THE STATUTE BECAUSE A SITUATION THAT WE'RE 12 FACED WITH WE'VE NEVER FACED WITH BEFORE. 13 A VERY UNIQUE -- UNIQUE SITUATION. SO I THINK THIS IS 14 THE COURT: I AGREE WITH THAT. 15 MR. RUSSO: JUDGE, YOU KNOW, MY POINT WITH THE 16 RECIPIENTS IS, LIKE I SAID, THEY HAVE A CHOICE OF A VARIETY OF 17 PROVIDERS AND IF YOU TRIED -- I KNOW ONE OF YOUR QUESTIONS 18 WAS, ARE THEY THIRD PARTY BENEFICIARIES? 19 STIPULATION POUR AUTURI. 20 AND YOU ALLOW THE PROVIDERS OR THE RECIPIENTS AND SAY THEY 21 HAVE A PARTICULAR RIGHT TO CHOOSE A SPECIFIC PROVIDER, WELL, 22 THEN YOU COULD LET THOSE RECIPIENTS THEN -- THEY COULD SOMEHOW 23 ENTRAP AND LOCK IN PLANNED PARENTHOOD FROM EVER LEAVING THE 24 MEDICAID PROGRAM. 25 YOU BROUGHT UP THE IF YOU GO DOWN THAT ROUTE, JUDGE, I THINK ARMSTRONG MADE IT CLEAR -- THE COURT: THEY COULD -- IF PLANNED PARENTHOOD 23 1 CAN -- LIKE ANY OTHER PROVIDER IS NOT PROVIDING ADEQUATE 2 SERVICE AND THERE IS A LEGITIMATE REASON TO TERMINATE THEIR 3 CONTRACT, THEN THE MEDICAID RECIPIENT CAN'T SAY, OH, I WANT 4 THAT PROVIDER EVEN THOUGH FOR LEGITIMATE REASONS THAT PROVIDER 5 HAS BEEN -- HAS BEEN REMOVED FROM -- FROM THE PROGRAM. 6 HERE THESE PEOPLE WANT TO USE THIS PROVIDER AND THERE HAS BEEN 7 NO REASON GIVEN TO TERMINATE THE CONTRACT. 8 THERE IS A FUNDAMENTAL DIFFERENCE? 9 MR. RUSSO: BUT DON'T YOU SEE I SEE THERE'S DEFINITELY A FUNDAMENTAL 10 DIFFERENCE, JUDGE. 11 OR DO I THINK THAT -- THAT THE PLAINTIFFS -- EITHER THE 12 PROVIDERS OR THE RECIPIENTS HAVE A RIGHT TO BRING THIS ACTION 13 AND GIVE JURISDICTION TO THIS COURT? 14 ARMSTRONG CLEARLY. NOW, DO I THINK WE VIOLATED ANY STATUTES NO, I DON'T, UNDER 15 THE COURT: OKAY. 16 MR. RUSSO: THAT IS IT, JUDGE. 17 18 YOU CAN PROCEED. I'M UP HERE NOW TO ANSWER ANY OTHER QUESTIONS YOU HAVE. THE COURT: I DO HAVE SOME QUESTIONS. IN THE 19 AFFIDAVIT WHICH IS ATTACHED -- OR THE DECLARATION WHICH IS 20 ATTACHED TO YOUR OPPOSITION, AND I DON'T HAVE THE LADY'S NAME, 21 SHE SAYS, "THERE ARE 1,146 ACTIVELY ENROLLED MEDICAID 22 PROVIDERS IN REGION ONE COVERING THE GREATER NEW ORLEANS AREA 23 AND 864 ACTIVELY ENROLLED MEDICAID PROVIDERS IN REGION TWO 24 COVERING THE GREATER BATON ROUGE AREA THAT CAN PROVIDE FAMILY 25 PLANNING AND RELATED SERVICES." IS THAT TRUE? 24 1 MR. RUSSO: I WANT TO POINT SOMETHING OUT -- 2 THE COURT: WOULD YOU JUST ANSWER MY QUESTION. 3 THAT'S NOT TRUE, IS IT, SIR? 4 MR. RUSSO: THAT -- THEY PULLED A CODE RUN, SO THOSE 5 PROVIDERS CAN PROVIDE FAMILY PLANNING SERVICES BECAUSE THEY 6 HAVE BILLED FOR THEM BEFORE. 7 8 THE COURT: HOWEVER, -- WE HAVE DENTISTS ON THERE, SIR. THERE ARE DENTISTS LISTED ON -- AMONG THOSE. 9 MR. RUSSO: YES, THAT IS TRUE. 10 THE COURT: YOU'RE TELLING ME THAT THEY -- LET ME 11 FINISH MY QUESTION, MR. RUSSO. 12 CAN PROVIDE FAMILY PLANNING AND RELATED SERVICES? 13 BECAUSE A DENTIST -- YOU'RE TELLING ME THAT THEY MR. RUSSO: THEY HAVE, THAT'S WHAT I'M TELLING YOU, THE COURT: AND THE OPHTHALMOLOGISTS HAVE THAT ARE 17 MR. RUSSO: YES, THEY HAVE. 18 THE COURT: AND THE DERMATOLOGISTS? 19 MR. RUSSO: TO MY KNOWLEDGE THEY HAVE. 20 THE COURT: AND AUDIOLOGISTS? 21 MR. RUSSO: TO MY KNOWLEDGE THEY HAVE BILLED CODES 14 JUDGE. 15 16 22 LISTED? FOR FAMILY -- 23 THE COURT: COSMETIC SURGEONS? 24 MR. RUSSO: YES, SIR. 25 THE COURT: EAR, NOSE AND THROAT? 25 1 2 3 MR. RUSSO: THAT'S MY UNDERSTANDING FROM THE CLIENT, YES, SIR. NOW, IF I COULD EXPLAIN BECAUSE I DO -- I, STEVE 4 RUSSO, DO NOT WANT TO MISLEAD THE COURT, JUDGE. 5 WHAT THEY DID WAS PULL A CODE RUN AND THEY MATCHED THE CODES 6 THAT ARE TYPICALLY BILLED -- OR MY UNDERSTANDING OF WHAT THEY 7 DID, WAS TYPICALLY -- CODES THAT WERE TYPICALLY FAMILY 8 PLANNING CODES, THEY RAN THOSE CODES AND THEN THAT'S HOW THEY 9 DETERMINED THAT NUMBER. 10 THE COURT: THAT WAS -- SO -- IT STRIKES ME AS EXTREMELY ODD THAT YOU 11 HAVE A DERMATOLOGIST, AN AUDIO -- AN AUDIOLOGIST, A DENTIST 12 WHO ARE BILLING FOR FAMILY PLANNING SERVICES, BUT THAT'S WHAT 13 YOU'RE REPRESENTING TO THE COURT? 14 15 MR. RUSSO: THAT IS WHAT MY CLIENT HAS TOLD ME, JUDGE, YES. 16 THE COURT: 17 YOU WANT ANY REBUTTAL, MS. FLAXMAN? 18 MS. FLAXMAN: OKAY. 19 HOUSEKEEPING MATTER. 20 THE COURT: 21 MS. FLAXMAN: I HAVE NO FURTHER QUESTIONS. NOTHING SUBSTANTIVE. ALL RIGHT. I HAD A WHAT IS IT? YOUR HONOR, JUST ON THE BRIEFING 22 SCHEDULE GOING FORWARD, I DON'T KNOW WHAT MR. RUSSO'S BRIEF IS 23 GOING TO SAY, BUT HE HAS MENTIONED SEVERAL TIMES ADDITIONAL 24 DECLARATIONS AND SO I JUST WANTED -- 25 THE COURT: YOU WILL BE GIVEN -- LET'S SEE, THE 15TH 26 1 OF SEPTEMBER IS WHAT? THAT'S A WEEK FROM -- 2 MS. FLAXMAN: 3 THE COURT: 4 I BELIEVE IT'S TUESDAY. OKAY. REPLY TO ANY BRIEF THAT IS FILED BY MS. KLIEBERT. 5 MS. FLAXMAN: 6 THE COURT: 7 ANYTHING ELSE? 8 ALL RIGHT. 9 SO YOU HAVE UNTIL WEDNESDAY TO THANK YOU, YOUR HONOR. ALL RIGHT. WE STAND ADJOURNED. (WHEREUPON COURT WAS ADJOURNED.) 10 11 12 C E R T I F I C A T E I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT 13 FROM THE RECORD OF THE PROCEEDINGS IN THE ABOVE-ENTITLED 14 NUMBERED MATTER. 15 S:/GINA DELATTE-RICHARD 16 GINA DELATTE-RICHARD, CCR 17 OFFICIAL COURT REPORTER 18 19 20 21 22 23 24 25