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FILED I .

IN THE DISTRICT COURT OF OKLAHOMA COURT

STATE OF OKLAHOMA MA COUNTY
JU
SHADOW MOUNTAIN BEHAVIORAL I 1 201?
HEALTH SYSTEM, LLC, WAR
. 4o COURT 
Plalntiff, 

v. 
o. 
OKLAHOMA HEALTH 2017 3 9 0 2
CARE AUTHORITY, 

Defendant. 

 

MOTION FOR TEMPORARY INJUNCTION
AND REQUEST FOR EXPEDITED HEARING AND RULING

BEFORE JULY 31, 2017
WITH BRIEF IN SUPPORT

 

Pursuant to 12 Okla. Stat. 1382, Plaintiff, Shadow Mountain Behavioral Health System,
LLC (?Shadow Mountain?) respectfully requests that this Court issue a temporary injunction
enjoining, restraining and prohibiting Defendant, the Oklahoma Health Care Authority
from terminating its SoonerCare1 provider contracts with Shadow Mountain for

services furnished at its Sheridan campus until a trial on the merits in this matter.2

 

1 SoonerCare is Oklahoma?s Medicaid program.

2 Under Oklahoma law, is generally recognized that an injunction may be either
preventative (prohibitory) to restrain the commission or the continuance of an act; or mandatory,
to require the doing or undoing of an act.? Dusbabek v. Local Bldg. Loan Ass?n, 1936 OK
769, 63 P.2d 756, 759. Furthermore, it is well-established that the primary purpose of a
preliminary injunction is to preserve the status quo until the court has adjudicated the parties?
dispute. Weis v. Renbarger, 1983 OK CIV APP 50, 670 P.2d 609, 610?11 (internal citation
omitted); see also Dusbabek, 63 P.2d at 759 (?The modern cases, therefore, have established the
rule that the status quo which will be preserved by preliminary injunction is the last actual,
peaceable, noncontested status which preceded the pending controversy, and equity will not

 

 

VERIFICATION OF FACTUAL ASSERTIONS

The factual assertions in this document, and in the Veri?ed Petition, are veri?ed by Mike

Kistler, CEO of Shadow Mountain.
INTRODUCTION
Shadow Mountain ?3 Regulatory Background

Shadow Mountain owns and operates behavioral health facilities in Tulsa, Oklahoma,
including the facility located at 6262 South Sheridan Road, Tulsa Oklahoma (the ?Facility?).
The Facility provides acute care to children and is licensed as a hospital
by the Oklahoma State Department of Health The Facility also provides 
residential treatment services to children and is licensed as a residential treatment

center by the Oklahoma Department of Human Services 

 

permit a wrongdoer to shelter himself behind a suddenly or secretly changed status, though he
succeeded in making the change before the chancellor?s hand actually reached him. The doctrine
is not new, only its application in practice to meet the efforts of those who endeavor to be swifter
than justice and the law,?) (internal citation and quotation marks omitted).

Lastly, federal and state courts routinely issue preliminary injunctions that enjoin a government
agency from terminating a health care providers? status as a Medicaid and/or Medicare provider
or ability to receive Medicare and/or Medicaid payments. Oak Park Health Care Ctr, LLC v.
Johnson, 2009 WL 331563, at *3 (W.D. La. 2009) (issued temporary restraining order enjoining
US. Department of Health and Human Services and Centers for Medicare 
Medicaid Services from terminating plaintiff?skilled nursing facility?s Medicare and
Medicaid provider agreements until conclusion of the administrative review of the termination);
Ridgeview Manor, LP. v. Leavitt, 2007 WL 1110915, at *9 (D.S.C. 2007) (issued preliminary
injunction that enjoined USDHS and CMMS from terminating plaintiff?skilled nursing facility?s
Medicare and Medicaid provider agreements until a decision on the merits of the termination);
Medzplex, Inc. v. Shalala, 39 F.Supp.2d 88, 102 (D. Mass. 1999) (issued preliminary injunction
that enjoined USDHS from terminating plaintiff-skilled nursing facility?s status as a Medicare
and Medicaid provider and Medicaid and Medicare payments until government determined that
residents were in immediate jeopardy or court rendered decision on government?s authority to
terminate); Libbie Rehabiliation Ctr, Inc. v. Shalala, 26 F.Supp.2d 128, 129 (D.D.C. 1998)
(issued preliminary injunction that enjoined USDHS from terminating plaintiff-skilled nursing
facility?s Medicaid payments until further order from the court). Accordingly, a temporary
injunction is properly used to restrain OHCA from terminating its SoonerCare provider contracts
with Shadow Mountain.

The Facility is located on a 27-acre campus that includes classrooms, a gymnasium, a
playground, a football ?eld, a dining room, and several courtyards. The Facility provides
and behavioral health care services to children and adolescents in acute crisis and in
need of inpatient care because of the risk of harm to themselves or others. The Facility also
provides residential treatment services to children who no longer require acute hospitalization, but
continue to require 24-hour care for emotional, or mental disorders. Children and
adolescents with signi?cant and complex behavioral, emotional, and mental health issues, including
children covered by SoonerCare, are and have been for years regularly admitted to the Facility.
DHS places children who are in state custody at the Facility for acute and residential treatment. The
Oklahoma Office of Juvenile Affairs manages juveniles in custody and places youth
under the age of 18 in residential treatment. The Facility has a contract with OJA to provide
residential treatment for youth in legal custody. OHCA administers the SoonerCare
program, which is Oklahoma?s Medicaid program. Children in DHS custody and youth in OJ A
custody receive health care services that are covered by the SoonerCare program. Other children
in Oklahoma also receive health care services reimbursed by SoonerCare. OHCA has contracted
with Shadow Mountain to pay for services that the Facility provides to children in DHS custody,
youth in OJA custody, and other SoonerCare members admitted or receiving care and treatment
at the Facility. Currently, there are 13 children receiving acute inpatient care and 49 children
residing at and receiving residential treatment at the Facility.

For over 20 years, Shadow Mountain and OHCA have been parties to SoonerCare
provider agreements under which Shadow Mountain is reimbursed for and behavioral
health services rendered to SoonerCare members, including three (3) provider contracts for

services provided at the Facility (the ?Provider Contracts?).

The Provider Contracts include a termination provision that permits either party to (1)
terminate for cause with a 30-day written notice to the other party, or (2) terminate immediately
for cause upon written notice, or (3) terminate without cause with a 60?day written notice to the
other party. OAC If OHCA terminates a SoonerCare provider contract with cause
with 30-days written notice, OHCA must (1) provide the reasons for proposed termination in the
notice; (2) give the provider an opportunity for pre-termination review, during which the
provider may submit documents and written argument against termination, including a plan of
correction; (3) after review of the provider?s written response, provide a ?nal decision regarding
the contract termination; and (4) notify the provider of the right for a post?termination review
within 20 days of the ?nal decision.

If OHCA terminates a SoonerCare provider contract immediately for cause upon notice,
OHCA must (1) provide the reasons for the proposed termination, and (2) notify the provider of
the right for a post-termination review within 20 days of the date of the notice letter.

A post-termination review in the case of a termination for cause with 30 days? notice or
an immediate termination for cause upon notice gives the provider a right to appeal the decision
to terminate to a three?member panel designated by the CEO of OHCA. The panel members
must be OHCA employees who were not involved with the underlying investigation of the
provider?s case for purpose of the termination. The provider has the opportunity to present a
written statement and documentation detailing the facts which are refuted by the provider. The
panel review committee must issue a written decision within 60 days from receipt of the
provider?s written statement and documentation. If, however, OHCA terminates the SoonerCare
provider contract without cause, the provider is not entitled to either a pro-termination or post-

termination review.

Shadow Mountain is subject to regulation by OSDH, DHS, the Oklahoma Department of
Mental Health and Substance Abuse Services, and OHCA. Shadow Mountain is accredited by The
Joint Commission, a nationally-recognized accrediting body. The Joint Commission has been
approved by the federal government as having standards and a survey process that meets or
exceeds Medicare?s requirements. Health care organizations that achieve accreditation through a
Joint Commission ?deemed status? survey are determined to meet or exceed Medicare and
Medicaid requirements. From 2011-2015, Shadow Mountain was named a Top Performer on Key
Quality Measures? by The Joint Commission. The Joint Commission awards this recognition to
facilities that attain excellence based on measured performance. Shadow Mountain?s quality
record can be found at: 

OHCA ?s Termination of Shadow Mountain ?5 Provider Contracts

On April 11, 2017, the on-line media outlet, BuzzFeed.com (?BuzzFeed?), published a
sensationalized and highly misleading article about Shadow Mountain (the ?Buzzfeed Article?).
Both prior to and after publication, Shadow Mountain refuted and reSponded to the false assertions
set forth in the article. This article created additional inaccurate media coverage of the Facility and
its operations. In response to the media attention, The Joint Commission, OSDH, DHS and other
accrediting and regulatory agencies conducted inspections and surveys at the Facility. The results
of the surveys have resulted in further inaccurate media reports regarding the Facility?s operation,
licensure, Medicare participation and accreditation status. After the publication of the Buzzfeed
Article, The Joint Commission conducted a site survey on May 9-11, 2017. The Joint
Commission made an ?immediate threat to life? determination, cited the Facility for de?ciencies
related to the Medicare Conditions of Participation, and issued a preliminary denial of

accreditation on May 11, 2017. Shadow Mountain disputed. and disagreed with these

determinations. Notwithstanding, on May 31, 2017, The Joint Commission conducted a follow?
up survey and removed the ?immediate threat to life? citation. The Joint Commission returned to
the Facility on June 27, 2017 for a second survey and found no de?ciencies.

DHS conducted a staf?ng veri?cation survey on May 17, 2017 and found no
de?ciencies. Shadow Mountain voluntarily agreed to have DHS assign a monitor to the Facility
as of June 12, 2017, which includes monitoring at any time, day or night, weekdays and
weekends at the discretion of DHS. DHS has not shared any de?ciencies with Shadow Mountain
stemming from the monitor in place.

OSDH conducted an unannounced survey on May 1?4, 2017. OSDH cited Shadow
Mountain for non-compliance with certain Medicare Conditions of Participation (CoPs) and
imposed a projected 90-day decerti?cation date of August 24, 2017. While the Facility did not
agree with the citations, Shadow Mountain submitted a plan of correction, which was reviewed
by OSDH and revisions were requested. Shadow Mountain submitted a revised plan of
correction on June 21, 2017, which was accepted on June 26, 2017. The submission of a plan of
correction is standard procedure for all facilities following ?ndings of alleged non?compliance
with regulatory requirements, even when a provider may dispute or disagree with those ?ndings.
Procedures do not exist for a provider to formally contest such preliminary determinations at this
juncture and the plan of correction is the only available avenue to remedy the alleged citations.
OSDH is expected to return for a resurvey on or about August 4, 2017 to con?rm that Shadow
Mountain is in compliance with all CoPs. Shadow Mountain expects a success?il outcome and
that OSDH will clear the projected 90-day decerti?cation date.

OHCA did not conduct its own investigation with Shadow Mountain, yet it is the only

state agency that has terminated its contracts with the Facility. Moreover, by terminating the

Provider Contracts without cause, OHCA has deprived Shadow Mountain of an opportunity to
rebut the inaccurate and incomplete portrayals and false conclusions of the quality of care at the
Facility made against it in the BuzzFeed Article as well as to present evidence clarifying the
?ndings by The Joint Commission and OSDH.

Pretextal Nature of the Termination

The timing of Notice of Termination without cause evidences that it was given
pretextually and in bad faith.

First, the Notice of Termination was clearly given ?for cause? immediately on the heels
of the misleading and highly in?ammatory BuzzFeed Article as well as the similar media stories,
partial survey ?ndings and political inquiries that followed. However, by providing a Notice of
Termination without cause, OHCA has deprived Shadow Mountain of an opportunity to rebut the
unsubstantiated and demonstrably false allegations made against in in the BuzzFeed Article and
other, subsequent media articles or to present evidence clarifying the ?ndings by The Joint
Commission and OSDH.

Second, since the Notice of Termination, OCHA has abruptly changed its payment
practices with Shadow Mountain. Shadow Mountain has not been paid by OHCA for treatment
and services rendered to SoonerCare members admitted at the Facility since June 1, 2017. Since
OHCA is not paying Shadow Mountain during the notice termination period, it is a de facto
termination for cause. If it was a termination without cause, Shadow Mountain would continue
to be paid in the ordinary course.

Third, upon receiving the Notice of Termination, Shadow Mountain repeatedly requested
meetings with OHCA to discuss the Notice of Termination, to update OHCA regarding the

recent surveys and inspections at the Facility, to clarify inaccurate information in media reports,

to discuss the care, safety and welfare of the children pre- and post-termination, to inform OHCA
of actions taken to address concerns, and to discuss compliance with statutory, regulatory, and
accreditation requirements and standards. OHCA repeatedly refused to meet or discuss the
Notice of Termination until July 5, 2017, a mere three weeks away from the July 31 termination
date. During the meeting, OHCA essentially sat silent. The meeting was pretextual and
perfunctory in nature. On July 6, counsel for Shadow Mountain sent a letter to OHCA
summarizing the signi?cant information provided during the meeting demonstrating the high
quality of care provided at the Facility, refuting the biased and misleading media reporting and.
detailing the facts associated with the recent survey activity. In addition, the letter reiterated the
fair and considered proposals by Shadow Mountain presented to OHCA to avoid the impending
termination. OHCA did not respond to that letter.

OHCA has maintained that the Provider Contracts are being terminated without cause
and that Shadow Mountain is not entitled to a hearing or review of the Notice of Termination
decision. Consequently, Shadow Mountain has been left without an administrative remedy.

The Children are Currently Safe at Shadow Mountain

OHCA, DHS, and OJA have implicitly taken the position that the children are safe at the
Facility. First, OHCA gave Notice of Termination of the Provider Contracts without cause 
without citing any reason for the termination. Second, OHCA, DHS, and OJA have not taken
any action that would be consistent with a position that the children are in an unsafe setting.
OHCA, DHS, and OJ A have continued to permit children to be treated at the Facility. OHCA,
DHS, and OJA have not transferred or transported any children out of the Facility. OHCA,
DHS, and OJA have not taken any adverse administrative or judicial action against Shadow

Mountain. The DHS monitor has been in place for almost 30 days, and to the knowledge of

Shadow Mountain, the monitor has not reported any de?ciencies to DHS. DHS has continued to
arrange for children to be admitted to the Facility.
An Emergency Exists

Because of the termination, all of the Children must be transferred to another facility and
federal Medicaid law expressly places the burden of orchestrating this transfer on OHCA. 42
CPR. ?488.426(b) (?When the State or CMS terminates a facility?s provider agreement, the
State will arrange for the safe and orderly transfer of all Medicare and Medicaid residents to
another facility, in accordance with ?483.70(l) of this chapter?). However, to date, OHCA, the
DHS, and the OJA, have not provided Shadow Mountain with a transfer plan as required by law.

But where will the children go?

This needs to be resolved within the next 20 days. The Facility is the only behavioral
health provider within a lOO?mile radius that is capable of providing hospital inpatient and
residential and behavioral health services for certain children with very complex
and behavioral health conditions, including children with intellectual disabilities.
There are a limited number of facilities in Oklahoma that can provide the needed specialized
and behavioral health services, placements at a typical hospital or
residential treatment center will be inadequate, and family members of children who are
currently treated at the Facility will be forced to travel over 100 miles to visit their children and
participate in treatment. In many cases, the Facility provides care to children in DHS and OJA
custody that no other facility will accept. Consequently, Shadow Mountain anticipates that it
will continue to receive and treat SoonerCare members, and it will take a signi?cant amount of

time to transfer every SoonerCare member to another facility.

Shadow Mountain expects that it will likely take well past the July 31, 2017 termination
date to relocate the Facility?s 62 children, especially since, to date, OHCA has not begun to
meaningfully prepare for their transfer. If anything, (and its sister agencies?) disinterest
in relocating the Children demonstrates that its Notice of Termination served no purpose other
than assuaging public sentiment in the wake of the ?restorm ignited by the wildly inaccurate
BuzzFeed Article.

Finally, per the Notice of Termination, Shadow Mountain will no longer receive
SoonerCare reimbursements for services rendered to the children at the Facility after July 31,
2017. However, pursuant to its obligation under federal law (the Emergency Medical Treatment
and Labor Act (the the Facility will be required to provide a screening
examination, and in the case of children in acute crisis, stabilizing treatment services
to SoonerCare members.

Additionally, Shadow Mountain will continue to care for SoonerCare members currently
receiving acute inpatient and residential treatment at the Facility. Consequently, 
termination of the Provider Contracts has not and will not terminate Shadow Mountain?s state,
federal, and ethical obligations to continue caring for the children, especially since OHCA and its
sister agencies have made no plans, to Shadow Mountain?s knowledge, to relocate the children.
Instead, it will result in large part in Shadow Mountain providing costly services at
the Facility at no cost to OHCA or the State of Oklahoma beginning July 31, 2017.

ARGUMENTS AND AUTHORITIES

To obtain a preliminary injunction, Shadow Mountain need only show (1) it is likely to
prevail upon the merits of the action; (2) it will suffer irreparable harm unless the injunction is
issued; (3) the irreparable harm Shadow Mountain being suffered by Shadow Mountain

outweighs any harm the proposed injunction may cause and (4) the injunction, if issued,

10

will be in the public interest. Lippitt v. Farmers Ins. Exchange, 2010 OK CIV APP 48, 11 7, 233
P.3d 799, 80. Though ?all four criteria must be met before an injunction is issued, courts tend to
focus most heavily upon the irreparable harm requirement.? Tulsa Order of Police Lodge No. 93
v. Tulsa, 2001 OK CIV APP 153, 11 25, 39 P.3d 152, 158 (internal quotation marks omitted).
Here, because Shadow Mountain can easily demonstrate irreparable harm, and the other three
criteria, the Court should grant Shadow Mountain?s Motion and issue the requested injunction.

A. There is a substantial likelihood that Shadow Mountain will prevail on the merits.

It is well-established that warrant issuance of preliminary injunction, it is not
necessary that moving party?s right to ?nal decision be without doubt; rather, the burden is on
party seeking relief to make prima facie showing of reasonable probability of prevailing on the
merits. Raye Realty Developing, Inc. Watson, 1990 OK APP 21, 791 P.2d 821, 823
(quoting Williams Exp]. Co. v. US. Dept. ofEnergy, 561 F.Supp. 465 (N .D. Okla.1980)).

Boiled down to its essence, by initiating this lawsuit, and in light of complete
refusal to engage in meaningful and substantive talks with Shadow Mountain regarding the very
real and dire consequences of terminating the Provider Contracts, Shadow Mountain seeks relief
from the Court and assurances that termination complies with federal law.
Accordingly, Shadow Mountain has a ?reasonable probability of prevailing on the merits? of its
action which is to obtain an order that either forces OHCA: 1) to provide Shadow Mountain a
hearing where it can formally rebut the unsubstantiated allegations ?rst made in the BuzzFeed
Article because not doing so is a violation of Shadow Mountain?s federal due process rights; or
2) immediately provide Shadow Mountain with and implement a plan for the transfer of Children
from the Facility by July 31, 2017, in accordance with federal law such that Shadow Mountain is

not forced to provide costly services for which it will not be compensated.

11

First, under well-established federal law, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution requires that after its Medicaid provider contract is
terminated (regardless of whether with or without cause), a Medicaid provider be afforded a
hearing to challenge its contract?s termination. Cathedral Rock of North College Hill, Inc. v.
Shalala, 223 F.3d 354, 365 (6th Cir. 2000).

administration of SoonerCare is subject to federal Medicaid law:

Medicaid. is a jointly funded and operated federal-state health care program that

provides funding for medical care, prescription drugs, and long?term care for low?

income individuals. State participation in the program is voluntary, but states that
choose to participate must comply with the provisions of the Medicaid Act and its
implementing regulations, 42 C.F.R. 43300?456725, which set the program?s
parameters and establish its basic state maintains the

responsibility for administering its Medicaid program, subject to federal
oversight.

Equal Access for El Paso, Inc. v. Hawkins, 562 F.3d 724, 725?26 (5th Cir. 2009) (internal
brackets, and quotation marks omitted). Furthermore, the Oklahoma Supreme Court has
emphasized that Oklahoma administrative agencies, which includes OHCA, must comply with
all applicable federal due process requirements:

The due process clauses of the United States and Oklahoma Constitutions provide

that citizens cannot be deprived of their rights to life, liberty or property without

first receiving notice and a meaningful opportunity to appear and be

state law may afford greater rights than those guaranteed by

federal law, it may not curtail rights guaranteed by federal law or the United
States Constitution.

quj?z?n v. State ex rel. Oklahoma Dept. of Mines, 2011 OK 22, 11 16, 251 P.3d 741, 746?47
(internal citations and footnote omitted). Accordingly, Shadow Mountain will prove at the
hearing that it has a legal right to a post?termination hearing under federal Medicaid law, and, by
denying Shadow Mountain a hearing after it sent the Notice of Termination, OHCA has violated

Shadow?s Mountain?s federal due process rights.

12

Second, clear and unambiguous federal regulations obligate OHCA to organize the
immediate transfer of Children from any facility upon the termination of the facility?s
SoonerCare provider agreement:

Required transfer when a facility?s provider agreement is terminated. When

the State or CMS terminates a facility's provider agreement, the State will arrange

for the safe and orderly transfer of all Medicare and Medicaid residents to another

facility, in accordance with 483.700) of this chapter.

42 C.F.R. 488.426 (emphasis added). This must be done in a timely fashion because the
terminated provider is only entitled to payment for up to 30 days beyond the effective date of the
termination of the facility?s provider agreement:

Payment is available for up to 30 days after the effective date of termination

hospital services (including inpatient hospital


42 C.F.R. 489.55.

Accordingly, Shadow Mountain will prove at the hearing that OI-ICA and its sister
agencies have a legal obligation to transfer the Children immediately such that Shadow
Mountain is not forced to continue rendering care to them past July 31, 2017, the last date it is
entitled to receive SoonerCare reimbursements (per the Notice of Termination), or August 30,
2017, the last possible date it can receive SoonerCare reimbursements (per federal Medicaid
law). Shadow Mountain will further Show that, by failing to provide Shadow Mountain with a
transfer plan to be completed by July 31, 2017, or, at the latest, August 30, 2017, OHCA is
violating federal Medicaid law.

B. Shadow Mountain (and the Children) will suffer irreparable injury if the injunction
is denied.

A movant demonstrates irreparable harm if it does not have an adequate remedy at law.
Firs! Am. Bank Trust Co. v. Sawyer, 1993 OK CIV APP 115, 1111 19?20, 865 P.2d 347, 353.

(internal citation omitted). A movant does not have an adequate remedy at law ?when it is

13

incapable of being fully compensated by money damages, or where the measure of damages is so
Speculative that arriving at an amount of damages would be dif?cult or impossible.? House of
Sight Sound, Inc, v. Faulkner, 1995 OK CIV APP 112,11 10, 912 P.2d 357, 361.

Here, Shadow Mountain will suffer irreparable harm because federal Medicaid law
dictates it will not be compensated for any of the services it renders to SoonerCare members at
the Facility 30 days after the July 31, 2017 effective date of the termination of the Provider
Contracts (past August 30, 2017). 42 C.F.R. 489.55 (?Payment is available for up to 30 days
after the effective date of termination hospital services (including inpatient
hospital Thus, this not a matter of whether Shadow Mountain can
calculate its damages. Instead, even though Shadow Mountain can provide a total amount, with
substantiation, of its costs incurred providing services to SoonerCare members at the
Facility past August 30, 2017, federal Medicaid law (to which administration of
SoonerCare is subject) forbids payment of post?termination services beyond August 30, 2017.
Consequentially, Shadow Mountain has no realistic expectation that it will ever be reimbursed
for the costs it expends continuing to care for Children at the Facility past August 30, 2017. Yet,
given no efforts have been made to transfer Children from the Facility, it is a foregone
conclusion that Shadow Mountain will continue to care Children at the Facility past August 30,
2017, without any way of recouping its costs.

Additionally, the Children (and their families) will suffer irreparable harm if they are
unnecessarily transferred from the Facility especially since there are no other facilities within
approximately a 100-mile radius that have the capability or the capacity to care for the Children.
It is unanimous both in the legal and medical communities that developmentally ill or mentally

challenged Children, Children that have resided at the terminated facility for a signi?cant portion

14

 

of time, and Children that will be dif?cult to place at a new facility suffer irreparable harm when
transferred to a new facility when the transfer was not based on moving them from substandard
conditions to better conditions (commonly referred to as, ?transfer trauma?). Path?nder
Healthcare, Inc. v. Thompson, 177 F.Supp.2d 895, 897 (ED. Ark. 2001) (?nding that patients at
plaintiff-nursing home that were ?developmentally disabled or mentally challenged,? ?had been
institutionalized their entire lives,? ?were likely to face great, perhaps insurmountable, dif?culty
in obtaining new placements,? would suffer irreparable harm if forced to leave plaintiff-nursing
home where they were not in immediate jeopardy of harm).

Here, all of the Children are developmentally impaired or mentally, emotionally, or
behaviorally challenged, many of them are long-time residents (with the average length of stay
being approximately 6 months (acute) and approximately 45 days for RTC), none of them will
be easy to place as the Facility is the only one of its kind in within a lOO-mile radius and the only
facility of its kind that accepts most of the children in DHS and OJ A custody, and none of the
administrative agencies that recently investigated the Facility found that its Children were
in immediate jeopardy. Consequently, at the hearing, Shadow Mountain will be able to prove
that needlessly transferring the Children, likely to out-of-state facilities and away from their

families, will cause irreparable harm to the very Children the OHCA is tasked with protecting.3

 

3 It bears noting that courts also ?nd that a plaintiff-provider shows irreparable harm if
termination will result in its facility closing because it is no longer receiving the Medicare and/or
Medicaid reimbursements that make the facility ?nancially viable. Int ?1 Long Term Care, Inc. v.
Shalala, 947 F. Supp. 15, 18 (D.D.C. 1996) (?nding irreparable harm show because termination
would ?force[]? plaintiff-skilled nursing facility ?to close its doors?); Lake County Rehabilitation
Ctr, Inc. v. Shalala, 854 F. Supp. 1329, 1336 (N .D. Ind.1994) (same); Beverly Enter. v. Mathews,
432 F. Supp. 1073, 1079 (D.D.C.1976) (?The Court ?nds, however, that plaintiff would in fact
be irreparably harmed if the Secretary were allowed. to proceed with its suspension at this
juncture. Even aside from the fact that this Court has found plaintiffs constitutional right to due
process of law to be threatened by defendants' planned actions, it is clear that plaintiffs ability to
render effective medical services to those in need would be signi?cantly hampered by the

15

C. The injury to Shadow Mountain and the Children outweighs whatever harm the
injunction may cause OHCA.

A temporary injunction is proper if ?the threatened injury to the moving party must also
outweigh the injury the opposing party will suffer under the injunction.? Edwards v. Bd of
County Comm ?rs, 2015 OK 58, ii 30, 378 P.3d 54, 63 (internal citations omitted). Courts
routinely ?nd that the harm patients suffer from a needless and traumatic transfer from one
facility to another due to a terminated provider agreement outweighs any interest a government
agency may have in terminating the provider agreement without a ?nding that the patients were
in immediate jeopardy. As the federal district court for the District of Columbia explained when
granting a temporary restraining order enjoining the USDHS from terminating a nursing home?s
Medicaid and Medicare reimbursements:

The interest of the Government in administering the Medicare and Medicaid
programs is to ensure that the recipients of bene?ts are receiving adequate
treatment and care. It is in the best interest of no one to incur the risks inherent in
the relocation of the [nursing home] residents unless it is necessary. Therefore, it
is also in the best interest of the Government where an ?immediate jeopardy?
?nding has not been made, that the [nursing home] be brought into compliance
with the applicable regulations, thereby obviating the need to relocate the
residents.

Libbie Rehabilitation Ctr, Inc. v. Shalala, 26 F.Supp.2d 128, 132?33 (D.D.C. 1998). For similar
reasons the District of Massachusetts granted a similar preliminary injunction:

Because of the public nature of the dispute in this case, the public interest mirrors 
factors already considered. Maintaining the health and safety of the residents of
Randolph Crossings by preventing an unnecessary transfer is clearly in the public
interest. Ensuring an effective enforcement mechanism and promoting the health

 

suspension of regular payments to which plaintiff would otherwise be entitled,? (internal
footnote omitted).

Here, the Facility?s ?nancial lifeblood is its SoonerCare reimbursement reimbursements.
Consequently, if the SoonerCare contracts are terminated, Shadow Mountain will be forced to
close the Facility and OHCA, DHS, OJA, and others in need of such care will be forced to travel
long distances to ?nd a health care facility than can capably provide inpatient and residential
care to the Children or other children.

16

and safety of residents by requiring high standards at nursing facilities is also
clearly in the public interest. As one court observed, however, where there is no
immediate jeopardy to the residents, the interests of avoiding a harmful disruption
of their lives outweighs the regulatory interests involved. Under no circumstances
would this Court interfere with the Secretary's action if it found that the residents'
interests would be adversely affected by remaining at the Facility. But Where
there is no immediate threat to the residents, the public interest lies with keeping
them in the nursing home pending a ?nal determination on the merits.

Mediplex, Inc. v. Shalala, 39 F.Supp.2d 88, 101 (D. Mass. 1999) (internal citations omitted).

This case is no different. By terminating the Provider Contracts without cause, OHCA
has not and cannot represent that the Children are in immediate jeOpardy of any serious harm.
without cause termination of the Provider Contracts does not further its objective of
ensuring the safety and well-being of all patients, including the Children at the Facility and under
Shadow Mountain?s care. Therefore, the balance of harm tips decidedly in favor of Shadow
Mountain and the Children.

D. The injunction is in the public interest.

Courts have held that public interest strongly favors keeping open the sole 
facility in a community when there has been no ?nding that the children are in immediate
danger. For instance, the Eastern District of Tennessee granted a hospital?s motion to
enjoin termination of its Medicaid and Medicare provider agreements, and in doing so, held:

[T]he fourth factor, which concerns the impact of an injunction on the public

interest militates strongly in favor of the plaintiffs. Woodridge Hospital is the

only hospital in the eight easternmost counties of Tennessee which is

able to treat the most acutely ill patients. Having to move mentally ill people to

distant facilities would not only be disturbing to the patients but would take them

away from current therapists and family support. While the Court recognizes that

it is possible that the hospital may eventually have to shut down and move all

these patients, it is more likely that it will succeed on the merits of its appeal. If

the patients have been moved prematurely, they would be disrupted a second time
if the hospital were to reopen.

Frontier Health Inc. v. Shalala, 113 F. Supp. 2d 1192, 1193?94 (ED. Tenn. 2000).

17

That is precisely the case here. The Facility is the only behavioral health facility within
approximately a 100-mile radius that has the capability and capacity to provide inpatient and
residential and behavioral health services to children with complex and
behavioral health conditions (treatment at typical hospital or behavioral health
facility is inadequate for such complex cases). The Facility is the only hospital or
behavioral health facility that will accept most of the children in DHS and OJ A custody. Having
to transfer the children with complex and disabling and behavioral health conditions
would disrupt their treatment, potentially undermine any progress they have made while at the
Facility and under Shadow Mountain?s care, and move them far away from their families,
support systems, and trusted providers, especially if done so needlessly as none of the
administrative agencies that investigated the Facility in the wake of the BuzzFeed Article found
that the Children were in immediate jeopardy. Thus, the public interest strongly favors an
injunction.



For the reasons set forth above, Plaintiff, Shadow Mountain Behavioral Health System,
LLC respectfully requests that this Court: set an evidentiary hearing as soon as possible, and
(ii) at that hearing issue a preliminary injunction enjoining, restraining and prohibiting
Defendant, the Oklahoma Health Care Authority, from terminating the SoonerCare Provider

Contracts until a trial on the merits in this matter.

18

     

/1\11

.l INK

MARK D. SPENCE ,?1251?9'3 
MCAFEE TAFT A Profe ional Corporation
Tenth Floor, Two Leadership Square

211 North Robinson Avenue

Oklahoma City, Oklahoma 73102

(405) 235-9621 (telephone)

(405) 235-0439 (facsimile)
mark.spencer@mcafeetaft.com

ANNA E. IMOSE, OBA 32021

MCAFEE TAFT A Professional Corporation
2 West 2nd Street, Suite 1100

Tulsa, Oklahoma 74103

(918) 587-0000 (telephone)

(918) 574-303 1 Facsimile)
anna.imose@mcafeetaft.com

ATTORNEYS FOR PLAINTIFF

19

 

 

STATE OF OKLAHOMA

COUNTY OF TULSA

VERIFICATION


SS:



I, Michael K. Kistler, being ?rst duly sworn upon oath, state as followsShadow Mountain Behavioral Health System, LLC. I am over

18 years of age, and am competent to testify about the matters herein. If called upon, I would

testify to the following.

2. The factual allegations in this motion are true and correct to the best of my

knowledge and belief.

Further af?ant sayeth not.

A

Miehm. Kistler

Subscribed and sworn to before me this mday of July, 2017.

My commission expires:

.

'Kg-Mh

 

Notary Public

      

GLENDA ROBERTS
Notary Public
0 State of Oklahoma
ornmiuion alt 16000915
My Unmm?o? Expires Jan 25. 2:320

 
 
        
   

20

CERTIFICATE OF SERVICE
The undersigned hereby certi?es that on the 11th day of July, 2017, a copy of the
foregoing document was served together with the Veri?ed Petition by hand-delivery, electronic.
mail, and ?rst class mail, postage prepaid, as follows:

OKLAHOMA HEALTH CARE AUTHORITY
c/o Nicole Nantois, General Counsel
4345 N. Lincoln Blvd.

Oklahoma City, OK 73105

 

MARK D. SPENCER 

21