No. 17-50282
13
agreements. This “free choice of provider” provision mandates that “any
individual eligible for medical assistance…may obtain such assistance from
any institution…or person, qualified to perform the service or services
required….” Gee involved a decision by the Louisiana Department of Health
and Hospitals (“LDHH”) to terminate the Medicaid provider agreements of two
PPGC-affiliated clinics operating in Louisiana. 862 F.3d at 450–52. Although
the OIG, as will be seen, attempts to distinguish Gee, we are constrained to
follow that decision as the law of this circuit.
In Gee, LDHH advanced three reasons for terminating the provider
agreements: (1) PPGC’s settlement of several qui tam False Claims Act
lawsuits, in which PPGC disclaimed all liability; (2) unspecified
misrepresentations by PPGC in its letters to LDHH; and (3) a pending
investigation of PPGC by LDHH and the Louisiana Office of Inspector General.
See id. at 453. As in this case, PPGC and several Medicaid beneficiaries
bypassed state administrative procedures and sued LDHH under
42 U.S.C. § 1983, arguing that PPGC’s clinics were, in fact, “qualified” and that
LDHH had failed to identify any valid ground under federal or state law for
terminating the two clinics. The Gee majority agreed.
The court held, joining the Sixth, Seventh, and Ninth Circuits, that
Section 1396a(a)(23) can provide Medicaid beneficiaries with a right of action
to challenge a state’s termination decision that is unrelated to a provider’s
qualifications. See id. at 462.
7
The court relied on the definition of “qualified”
7
See Planned Parenthood Ariz. Inc. v. Betlach, 727 F.3d 960 (9th Cir. 2013); Planned
Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012);
Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006). After Gee was issued, the Eighth Circuit
held that Section 1396a(a)(23) does not afford a private right of action. See Planned
Parenthood of Ark. & E. Okla. v. Gillespie, 867 F.3d 1034 (8th Cir. 2017). Then the Tenth
Circuit joined the circuit majority in affirming a private right of action. Planned Parenthood
of Kansas and Mid-Missouri v. Andersen, 882 F.3d 1205 (10th Cir. 2018).
Case: 17-50282 Document: 00514800434 Page: 13 Date Filed: 01/17/2019