Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

PLANNED PARENTHOOD OF GREATER

TEXAS FAMILY PLANNING AND

PREVENTATIVE HEALTH SERVICES, INC.;

PLANNED PARENTHOOD SAN ANTONIO;

PLANNED PARENTHOOD CAMERON

COUNTY; PLANNED PARENTHOOD

SOUTH TEXAS SURGICAL CENTER;

PLANNED PARENTHOOD GULF COAST,

INC.; and JANE DOE #1; JANE DOE #2;

JANE DOE #3; JANE DOE #4; JANE DOE #5;

JANE DOE #6; JANE DOE #7; JANE DOE #8;

JANE DOE #9; and JANE DOE #10, on their

behalf and on behalf of all others similarly

situated,

No.

Plaintiffs,

1:15-CV-01058

v.

CHRIS TRAYLOR, Executive Commissioner, Texas Health and Human Services Commission, and STUART W. BOWEN, JR., Inspector General, Texas Health and Human Services Commission, Office of Inspector General,

Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF—CLASS ACTION Plaintiffs, by and through their attorneys, and on behalf of all members of the class, bring
this Complaint against the above-named Defendants and their employees, agents, delegates, and successors in office, in their official capacity, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the federal Medicaid statutes as well as the U.S. Constitution.

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 2 of 20
2. Plaintiffs Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. (“PPGT”); Planned Parenthood San Antonio (“PPSA”), Planned Parenthood Cameron County (“PPCC”), Planned Parenthood South Texas Surgical Center (“PPSTSC”) (together with PPSA and PPCC, “PPST”); and Planned Parenthood Gulf Coast, Inc. (“PPGC”) (collectively, “Provider Plaintiffs”) provide critically needed family planning and preventive health services to thousands of women and men in underserved areas of Texas through the Medicaid program. For several decades, the Provider Plaintiffs have been trusted Medicaid providers for tens of thousands of Texans.
3. As is required by federal law, Medicaid enrollees may seek services from a participating provider of their choice and have those services covered by Medicaid. Plaintiffs Jane Doe #1 through #10 (“Patient Plaintiffs”) are such women—patients of Provider Plaintiffs who are enrolled in Medicaid and who prefer Provider Plaintiffs to other Medicaid providers. Texas Medicaid does not pay for abortions except in extremely narrow circumstances.
4. On October 21, 2015, without giving any warning or expressing any previous concerns about Provider Plaintiffs’ qualifications to participate in the Medicaid program, the Office of Inspector General of the Texas Health and Human Services Commission (“HHSC”) notified the Provider Plaintiffs by Notices of Termination (“Notices”) that HHSC was terminating Provider Plaintiffs’ Medicaid provider agreements, effective fifteen days after forthcoming Final Notices of Termination. The Notices state that these terminations are based on information that one of the Planned Parenthood organizations (PPGC): 1) “follow[ed] a policy of agreeing to procure fetal tissue even if it means altering the timing or method of an abortion”; 2) failed to comply with universal precautions for the safe handling of bodily tissue and fluid by “allow[ing] individuals posing as commercial buyers of fetal body parts to handle bloody fetal
2

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 3 of 20
tissue while wearing only gloves”; 3) failed to train staff on such precautions; and 4) had billed Medicaid for services that were unnecessary or had not occurred.
5. Each of these allegations is false. In addition, each is wholly irrelevant to Plaintiffs PPGT and PPST and to their qualifications as Medicaid providers.
6. Plaintiffs seek declaratory and injunctive relief to protect Patient Plaintiffs’ and other class members’ access to—and the Provider Plaintiffs’ own ability to provide—these critical medical services. Defendants’ actions violate Section 1396a(a)(23) of Title 42 of the United States Code (“Medicaid freedom of choice provision”) because, by barring the Provider Plaintiffs from the Medicaid program, Defendants prevent Provider Plaintiffs’ patients, including Plaintiffs Jane Doe #1 through #10, from receiving services from their qualified, willing provider of choice. Defendants’ actions further impermissibly single out Plaintiffs for unfavorable treatment without adequate justification, in violation of the equal protection clause of the Fourteenth Amendment.
7. Unless enjoined, the termination of Provider Plaintiffs’ Medicaid provider agreements will take effect as early as December 8, depending on exactly when HHSC issues its Final Notices of Termination, immediately disqualifying Provider Plaintiffs from providing basic and preventive health care services to over 13,500 Texas women and men who depend on Provider Plaintiffs for that care. Defendants’ actions will cause significant and irreparable harm to Provider Plaintiffs and to their Medicaid patients, including Plaintiffs Jane Doe #1 through #10, who will lose their provider of choice, will find their family planning services interrupted, and in many cases will be left with reduced access to care.
3

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 4 of 20
JURISDICTION AND VENUE 8. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. 10. Venue in this judicial district is proper under 28 U.S.C. § 1391.
THE PARTIES A. Plaintiffs
11. Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. is a Texas not-for-profit corporation, headquartered in Dallas. PPGT and its predecessor organizations have provided high-quality care to Medicaid beneficiaries in Texas for decades. PPGT provides family planning and other preventive health services to Medicaid beneficiaries at seventeen health centers in Texas: in Addison, Arlington, Austin, Bedford, Cedar Hill, Dallas, Denton, Fort Worth, Plano, Lewisville, Mesquite, Paris, Tyler, and Waco. PPGT offers Medicaid patients a range of family planning and other health services at these centers, including physical exams, contraception (including long-acting reversible contraception or “LARC”) and contraceptive counseling, clinical breast exams, screening and treatment for cervical cancer, testing for sexually transmitted infections (“STIs”), pregnancy testing and counseling, and certain procedures including biopsies and colposcopy. In 2014, PPGT provided over 10,000 visits to over 5000 patients enrolled in the Texas Medicaid program, including over 2800 visits to provide or remove LARCs and over 2800 well women exams. PPGT brings this action on behalf of itself and its patients.
4

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 5 of 20
12. Planned Parenthood San Antonio, Planned Parenthood Cameron County, and Planned Parenthood South Texas Surgical Center, not-for-profit corporations headquartered in San Antonio, are subsidiaries of Planned Parenthood South Texas, Inc. PPST and its predecessor organizations have provided high-quality care to Medicaid beneficiaries in Texas for decades. PPST provides family planning and other preventive health services to Medicaid beneficiaries at six health centers in Texas in Brownsville, Harlingen, and San Antonio. PPST offers Medicaid patients a range of family planning and other health services at these centers, including physical exams, contraception (including LARC) and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, screening for STIs, pregnancy testing and counseling, and certain procedures including biopsies and colposcopy. In 2014, PPST provided over 3000 visits to over 1900 patients enrolled in the Texas Medicaid program, including over 1800 exams, over 900 LARCs, over 1400 STI tests (including nearly 600 HIV tests), and over 600 visits to provide hormonal contraception. PPST brings this action on behalf of itself and its patients.
13. Planned Parenthood Gulf Coast, Inc. is a Texas not-for-profit corporation, headquartered in Houston. PPGC and its predecessor organizations have provided high-quality care to Medicaid beneficiaries in Texas for decades. PPGC provides family planning and other preventive health services to Medicaid beneficiaries at seven health centers in the Houston Metropolitan area. PPGC offers Medicaid patients a range of family planning and other health services at these centers, including physical exams, contraception (including LARC) and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, screening for STIs, pregnancy testing and counseling, and certain procedures including biopsies and colposcopy. In 2014, PPGC provided over 9000 visits to over 6500 patients enrolled
5

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 6 of 20
in the Texas Medicaid program, including over 11,900 STI tests (including nearly 2000 HIV screenings), over 2200 well women exams, over 4600 units of LARCs, and over 1100 visits for oral contraception.
14. PPGC does not provide abortions. PPGC has a facilities and services agreement with a separate organization, Planned Parenthood Center for Choice, Inc. (“PPCFC”), which does. PPCFC rents space in a building owned by PPGC and operates the PPCFC Ambulatory Surgical Center. PPGC and PPCFC share a president and CEO, but each organization has its own board of directors, bylaws, and staff. PPGC brings this action on behalf of itself and its Texas patients.
15. Plaintiff Jane Doe #1, a Texas resident and Medicaid patient, obtains her reproductive health care at various PPST health centers and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
16. Plaintiff Jane Doe #2, a Texas resident and Medicaid patient, obtains her reproductive health care at PPST’s Marbach health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
17. Plaintiff Jane Doe #3, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGT’s North Austin health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGT.
18. Plaintiff Jane Doe #4, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGC’s Prevention Park health center and desires to continue to do
6

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 7 of 20
so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
19. Plaintiff Jane Doe #5, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGT’s Waco health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGT.
20. Plaintiff Jane Doe #6, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGT’s North Austin health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGT.
21. Plaintiff Jane Doe #7, a Texas resident and Medicaid patient, obtains her reproductive health care at PPST’s Marbach health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
22. Plaintiff Jane Doe #8, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGC’s Greenspoint health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
23. Plaintiff Jane Doe #9, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGC’s Greenspoint health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
7

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 8 of 20
24. Plaintiff Jane Doe #10, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGT’s North Austin health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGT.
25. Plaintiffs Jane Doe #1 through #10 appear pseudonymously because of the private and personal nature of the medical care that they receive at Provider Plaintiffs, and their desire not to have that information become public in order for them to assert their legal rights. B. Defendants
26. Chris Traylor is Executive Commissioner of HHSC, and in that role, governs HHSC, which is the state agency that administers Texas’s Medicaid program and has notified the Provider Plaintiffs that it intends to terminate their provider agreements. Defendant Traylor is sued in his official capacity, as are his employees, agents, and successors in office.
27. Stuart W. Bowen, Jr. is Inspector General of HHSC, whose office—the Office of Inspector General—is a division within HHSC. Defendant Bowen notified Provider Plaintiffs that he intended to terminate their provider agreements on behalf of HHSC. Defendant Bowen is sued in his official capacity, as are his employees, agents, and successors in office.
THE MEDICAID PROGRAM A. The Medicaid Statute
28. The Medicaid program, established under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq., pays for medical care for eligible needy people. A state may elect whether or not to participate; if it chooses to do so, it must comply with the requirements imposed by the Medicaid statute and by the Secretary of the U.S. Department of Health and
8

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 9 of 20
Human Services (“HHS”) in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1)–(83).
29. To receive federal funding, a participating state must develop a “plan for medical assistance” and submit it to the Secretary of HHS for approval. 42 U.S.C. § 1396a(a).
30. Among other requirements, the State plan must provide that: “[A]ny individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23)(A).
31. Congress has singled out family planning services for special additional protections to ensure freedom of choice, specifically providing that, with respect to these services and with certain limited exceptions not applicable here, “enrollment of an individual eligible for medical assistance in a primary care case-management system . . . , a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services…” 42 U.S.C. § 1396a(a)(23)(B).
32. The federal government reimburses the state of Texas 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5). B. Implementation of the Medicaid Act
33. For decades, the Centers for Medicare & Medicaid Services (“CMS”), the agency within HHS that administers Medicaid (and its predecessor organization), has repeatedly interpreted the “qualified” language in Section 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaid-
9

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 10 of 20
covered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider chooses to offer.
34. CMS has explained that “[t]he purpose of the free choice provision is to allow [Medicaid] recipients the same opportunities to choose among available providers of covered health care and services as are normally offered to the general population.” Ctrs. for Medicare & Medicaid Servs., CMS Manuals Publication #45, State Medicaid Manual § 2100.
35. Consistent with this understanding, CMS has a long history of rejecting state plans that seek to limit the type of provider that can provide particular services. See, e.g., 53 Fed. Reg. 8699-03 (Mar. 16, 1988) (noting rejection of a state plan that would limit providers to “private nonprofit” organizations); 67 Fed. Reg. 79121 (Dec. 27, 2002) (noting disapproval of a state plan amendment that would have limited “beneficiary choice . . . by imposing standards that are not reasonably related to the qualifications of providers”).
36. More recently, CMS rejected an Indiana plan that barred state agencies from contracting with or making grants to any entities that perform abortion because it violated the Medicaid freedom of choice provision. Letter from Donald M. Berwick, Adm’r, CMS, to Patricia Casanova, Dir., Ind. Off. of Medicaid Pol’y and Plan. (June 1, 2011), http://www.politico.com/static/PPM169_110601_indiana_letter.html.
37. Moreover, even though CMS is permitted to waive § 1396a(a)(23) in demonstration projects approved under Social Security Act § 1115, CMS repeatedly rejects state requests to do so for family planning services, including twice in the last year and a half: first in Pennsylvania, see Letter from Marilyn Tavenner, Adm’r, CMS, to Beverly Mackereth, Sec’y, Pa. Dep’t of Pub. Welfare (Aug. 28, 2014), http://www.medicaid.gov/Medicaid-CHIP-ProgramInformation/By-Topics/Waivers/1115/downloads/pa/pa-healthy-ca.pdf (“No waiver of freedom
10

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 11 of 20
of choice is authorized for family planning providers.”); and more recently in Iowa, see Letter from Manning Pellanda, Dir., CMS Div. of State Demonstrations and Waivers, to Julie Lovelady, Interim Medicaid Dir., Iowa Dep’t of Human Servs. (Feb. 2, 2015), http://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Waivers/1115/downloads/ia/wellness-plan/ia-wellness-plan-current-appvl-02022015.pdf (“No waiver of freedom of choice is authorized for family planning providers.”).
HHSC’S EFFORTS TO TERMINATE PROVIDER PLAINTIFFS 38. On October 19, 2015, without prior warning, HHSC sent a letter to each of the Provider Plaintiffs (received by each on October 21) terminating their Medicaid provider agreements, to be effective fifteen days after the receipt of a Final Notice of Termination. Although sent to each provider Plaintiff, the letters focus entirely on (false) allegations against Plaintiff PPGC and against a separate organization with which Plaintiffs associate, Planned Parenthood Federation of America (“PPFA”). A. PPGC Allegations 39. Defendants claim four bases justifying PPGC’s termination from the Medicaid program. None of these supposed bases undermines PPGC’s competence to provide care in the Medicaid program—much less the competence of PPGT and PPST—and none is sustainable. 40. First, PPGC’s Notice of Termination claims that heavily edited and misleading videos produced by the radical anti-abortion group Center for Medical Progress (“CMP”) indicate that PPGC “follow[s] a policy of agreeing to procure fetal tissue even if it means altering the timing or method of an abortion,” and that “these practices violate accepted medical standards, as reflected in federal law, and are Medicaid program violations that justify termination.” Neither PPGC nor its related entity PPCFC (which, unlike PPGC, provides
11

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 12 of 20
abortions) has any such policy. PPGC does not provide abortions, and does not participate in any fetal tissue donation. PPCFC is not currently involved in any way with fetal tissue donation and has not been for several years, and its policies expressly forbid alteration of the timing or method of the abortion for the purpose of obtaining the fetal tissue.
41. Second, the Notice of Termination claims, again based on a CMP video, that PPGC has “failed to prevent conditions that would allow the spread of infectious diseases among employees, as well as patients and the general public,” and specifically, “allowed individuals posing as commercial buyers of fetal body parts to handle bloody fetal tissue while wearing only gloves,” in violation of “mandatory ‘universal precautions,’ including the use of ‘protective barriers,’” required when infectious materials are handled. These accusations appear based on a portion of the video in which one of the anti-abortion activists posing as a representative from a fake tissue procurement company was permitted to examine fetal tissue in a lab at PPCFC. The precautions taken met the requirements of universal/standard precautions.
42. Third, the Notice of Termination also asserts that the video reflects that staff “were not trained in infection control and barrier precautions with regard to the handling of fetal blood and tissue or they failed to comply with the minimum standards that mandatory training requires.” No further information is given about the nature of the supposed deficiency. At PPCFC, staff receive appropriate training on infection control, including on blood-borne pathogens and appropriate barrier protections, as required by its own policies and by the licensure requirements for ambulatory surgical centers.
43. Fourth, the Notice of Termination also asserts that Defendants “ha[ve] information suggesting that fraud and other related program violations have been committed by a number of Planned Parenthood affiliates enrolled in the Medicaid program in Texas, including
12

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 13 of 20
[PPGC].” In addition to unspecified “information that my office has recently received,” HHSC cites two court cases as “proof” that PPGC is guilty of illegal billing practices – the Reynolds case, Reynolds v. Planned Parenthood Gulf Coast, No. 9:09-cv-124 (E.D. Tex.), and the Carroll case, Carroll v. Planned Parenthood Gulf Coast, No. 4:12-cv-03505 (S.D. Tex.).
44. With respect to HHSC’s statement that it is acting on allegations related to Reynolds, it is expressly barred from doing so. Reynolds was a meritless lawsuit against PPGC that both Texas and the federal government declined to join, settled with no admission of wrongdoing for practical reasons, including concern about patient confidentiality being compromised if the case proceeded. As part of the settlement, Texas expressly “agree[d] to release and refrain from instituting, directing or maintaining any action seeking permissive exclusion from the Texas Medicaid Program against PPGC for the Covered Conduct.”
45. The sole other “information” Defendants offer to support their fraud accusation is the existence of the Carroll case, an open case in which, again, both Texas and the federal government declined to join, and there has been no admission or finding of wrongdoing.
46. None of the grounds asserted by Defendants relate at all to PPGC’s competence to provide care in the Texas Medicaid program.
47. On information and belief, Defendants’ bases for terminating PPGC’s provider agreements are highly irregular and have not been applied to any other Medicaid provider.
48. Absent an injunction from the Court, Defendants will terminate PPGC’s provider agreements on or about December 8, 2015. B. PPGT and PPST Allegations
49. HHSC’s main stated reason for terminating contracts with PPGT and PPST is that they are allegedly affiliated with PPGC.
13

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 14 of 20
50. PPGT and PPST are wholly separate corporations from each other and from PPGC. They share no ownership interests; nor do they share any control over the delivery of health services at the various health centers each corporation operates, personnel, or finances.
51. HHSC also indicates that it is terminating Provider Plaintiffs, in part, because of their association with PPFA, which HHSC suggests has some “national policy” of condoning “program violations.” PPFA maintains no such policy.
52. Provider Plaintiffs are not subsidiaries of PPFA. Rather, PPFA is a membership organization that promulgates medical and other standards to which members (known as “affiliates”), such as PPGT, PPST, and PPGC, must adhere to operate under the name “Planned Parenthood” and otherwise use the Planned Parenthood service mark. PPFA does not provide medical services or operate health centers.
53. There are fifty-nine Planned Parenthood affiliates across the country, each with its own board, CEO, and management structure, and each with control of its own finances and operations.
54. Absent an injunction from the Court, Defendants will terminate PPGT’s and PPST’s provider agreements on or about December 8, 2015.
THE IMPACT OF DEFENDANTS’ ACTIONS ON PROVIDER PLAINTIFFS AND THEIR PATIENTS
55. The need for publicly supported family planning services is great in Texas, which regularly ranks among the worst states for reproductive health care. In 2010, 54% of pregnancies in Texas were unintended., St. Facts About Unintended Pregnancy: Tex. (2014), GUTTMACHER INST., https://www.guttmacher.org/statecenter/unintended-pregnancy/TX.html (hereafter “State Facts: Texas”). Texas is tied for the third highest teen pregnancy rate among the fifty states. Kathryn Kost & Stanley Henshaw, U.S. Teenage Pregnancies, Births and Abortions,
14

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 15 of 20
2010: Nat’l and St. Trends by Age, Race and Ethnicity 4 (2014), Guttmacher Inst., http://www.guttmacher.org/pubs/USTPtrends10.pdf. 73.7% of Texas’s unplanned births are publicly funded, which is higher than the national average of 68%. State Facts: Texas. Texas also has high and rising STIs rates. Chlamydia and gonorrhea rates in Texas are well above the national average. Moreover, the number of reported gonorrhea, chlamydia, and syphilis cases has increased consistently since 2010. Ctrs. for Disease Control & Prevention, Sexually Transmitted Disease Surveillance 2014, at 81–82, 93–94, 107–08 (2015), http://www.cdc.gov/std/stats14/surv-2014-print.pdf.
56. In 2013, an estimated 3,190,970 Texas women needed contraceptive services and supplies. Of these, 1,774,240 women (55.6%) needed publicly supported services., Jennifer L. Frost, et al., Contraceptive Needs and Servs., 2013 Update at 19 (July 2014), Guttmacher Inst., http://www.guttmacher.org/pubs/win/counties/pdf/contraceptive-needs-2013.pdf.
57. Only the most needy individuals in Texas are eligible to receive Medicaid coverage. In addition to having a low-income, an individual must also meet a special characteristic, such as being pregnant or having a disability, to be eligible for Medicaid.
58. In recent years, the provider network available to Texas Medicaid patients has declined, to just over 30% of practicing physicians as of 2012. Drop In Physician Acceptance of Medicaid, Medicare Patients (2012), Tex. Med. Ass’n, http://www.texmed.org/template.aspx?id=24764.
59. Even if other providers were available, patients insured through Medicaid choose Provider Plaintiffs based on a number of factors that are generally not available at other providers. With its evidence-based practices and up-to-date technology, Provider Plaintiffs are known as providers of high-quality medical care. Many individuals who receive other health care
15

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 16 of 20
through community care providers or other Medicaid providers choose to have a separate provider such as Provider Plaintiffs for their reproductive health care because they are concerned about their privacy and because they fear being judged by other providers.
60. In addition, many low-income patients have unique scheduling constraints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family planning services, Provider Plaintiffs offer extended hours. In addition, Provider Plaintiffs space patient appointments so as to minimize wait times. They also offer same-day birth control shots, birth control implants, and intrauterine devices, so that patients only need to make one trip to a health center to obtain their contraceptive method of choice. Provider Plaintiffs have either a full-time Spanish speaker on staff or translator services available to non-English speaking patients at all times.
61. Defendants’ actions will deprive all of Provider Plaintiffs’ Medicaid patients, including Plaintiffs Jane Doe #1 through #10, of access to the high-quality, specialized care that Provider Plaintiffs provide.
62. All Patient Plaintiffs rely on Provider Plaintiffs as the providers they can turn to for critical medical care and for prompt, efficient, and compassionate services. If Provider Plaintiffs are eliminated from Medicaid, Plaintiffs Jane Doe #1 through #10, and other class members, will be prevented from receiving services from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
63. In 2014, PPGT’s reimbursements for providing these critical health services to low-income patients totaled 5% of its overall revenue.
16

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 17 of 20
64. In 2014, PPST’s reimbursements for providing these critical health services to low-income patients totaled 10% of its overall revenue.
65. In 2014, PPGC’s reimbursements for providing these critical health services to low-income patients totaled over 20% of its Texas revenue.
66. Without this revenue, Provider Plaintiffs may be unable to continue to provide services in the same manner and may be forced to lay off staff members, reduce hours, or close a health center. If a health center closes, this will affect not only the Medicaid patients at that health center, but all of the patients who seek reproductive health care at that health center.
CLASS ALLEGATIONS 67. This lawsuit is properly maintained as a class action under Federal Rules of Civil Procedure 23(b)(1)(B) and (b)(2). 68. The class consists of all Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at Provider Plaintiffs. 69. Although the precise size of the class is unknowable, as alleged in Paragraphs 11, 12, and 13 above, Provider Plaintiffs provided covered health care services to over 13,500 Medicaid patients in 2014. Therefore, the approximate size of the class is 13,500 individuals. 70. Plaintiffs Jane Doe #1 through #10 are adequate class representatives because they, like other members of the class, are Texas residents and Medicaid patients who obtain their reproductive health care at Provider Plaintiffs’ health centers and desire to continue to do so. Unless Defendants are enjoined, class representatives and class members will suffer the same injury and resulting harm: they will be unable to obtain health care services at the provider of their choice. As a result, many of Provider Plaintiffs’ Medicaid patients, including Plaintiffs Jane Doe #1 through #10 and other class members, who already have few or no alternative options,
17

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 18 of 20
will find it difficult or impossible to access the reproductive and other health care services they need.
71. Defendants’ actions—terminating Provider Plaintiffs from the Medicaid program—apply generally to the class, such that both declaratory and injunctive relief is appropriate for all members of the class.
72. Class members raise the same questions of law, including whether Defendants’ termination of Provider Plaintiffs’ Medicaid provider agreements violates the Medicaid freedomof-choice provision, 42 U.S.C. § 1396a(a)(23), and the Fourteenth Amendment, such that, as a practical matter, adjudication of their claims would be dispositive of the interests of the other class members.
CLAIMS FOR RELIEF CLAIM I—MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 73. Plaintiffs hereby incorporate Paragraphs 1 through 72 above. Defendants’ actions violate Section 1396a(a)(23) of Title 42 of the United States Code by denying Provider Plaintiffs’ patients, including the Plaintiffs Jane Doe #1 through #10, the right to choose any willing, qualified health care provider in the Medicaid program.
CLAIM II—FOURTEENTH AMENDMENT EQUAL PROTECTION 74. Plaintiffs hereby incorporate Paragraphs 1 through 72 above. 75. Defendants’ actions violate Plaintiffs’ rights by singling them out for unfavorable treatment without adequate justification.
18

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 19 of 20
RELIEF REQUESTED WHEREFORE, Plaintiffs request that this Court:
76. Order that this action be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1)(B) and/or 23(b)(2);
77. Issue a declaratory judgment that Defendants’ actions violate the Medicaid Act; 78. Issue a declaratory judgment that Defendants’ actions violate the Fourteenth Amendment; 79. Issue temporary, preliminary, and permanent injunctive relief, without bond, enjoining Defendants and their agents, employees, appointees, delegates, or successors from terminating, or threatening to terminate Provider Plaintiffs’ Medicaid provider agreements; 80. Grant Plaintiffs attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988; and, 81. Grant such further relief as this Court deems just and proper.
Respectfully submitted the 23rd day of November, 2015.
HUSCH BLACKWELL, L.L.P BY: /s/ Thomas H. Watkins THOMAS H. WATKINS Texas Bar No. 20928000 Email: Tom.Watkins@huschblackwell.com 111 Congress Avenue, Suite 1400 Austin, Texas 78701 (512) 472-5456 (512) 479-1101 (facsimile) JENNIFER SANDMAN * PLANNED PARENTHOOD FEDERATION OF AMERICA Email: Jennifer.Sandman@ppfa.org 434 West 33rd Street New York, NY 10001
19

Case 1:15-cv-01058-SS Document 1 Filed 11/23/15 Page 20 of 20
(212) 261-4584 (212) 247-6811 (facsimile) ALICE CLAPMAN * RICHARD MUNIZ * ᶿ PLANNED PARENTHOOD FEDERATION OF AMERICA Email: Alice.Clapman@ppfa.org Email: Richard.Muniz@ppfa.org 1110 Vermont Avenue NW, Suite 300 Washington, DC 20005 (202) 973-4862 (Alice Clapman) (202) 973-4997 (Richard Muniz) (202) 296-3480 (facsimile) ATTORNEYS FOR PLAINTIFFS * Application for admission pro hac vice pending ᶿ Practicing under supervision of lawyers
admitted in DC.
20

 </s> Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

PLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING AND PREVENTATIVE HEALTH SERVICES, INC.; PLANNED PARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON COUNTY; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; PLANNED PARENTHOOD GULF COAST, INC.; and JANE DOE #1; JANE DOE #2; JANE DOE #4; JANE DOE #7; JANE DOE #9; JANE DOE #10; and JANE DOE #11, on their behalf and on behalf of all others similarly situated,

No. 1:15-CV-01058-SS

P laint iffs ,

v.

CHARLES SMITH, Executive Commissioner, Texas Health and Human Services Commission, and STUART W. BOWEN, JR., Inspector General, Texas Health and Human Services Commission, Office of Inspector General,

Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF—CLASS ACTION Plaintiffs, by and through their attorneys, and on behalf of all members of the class, bring
this Complaint against the above-named Defendants and their employees, agents, delegates, and successors in office, in their official capacity, and in support thereof state the following:
INTRODUCTORY STATEMENT 1. This civil action is brought pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the federal Medicaid statutes as well as the U.S. Constitution. 2. Plaintiffs P lanned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. (“PPGT”); Planned Parenthood San Antonio (“PPSA”), Planned

1

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 2 of 22
Parenthood Cameron County (“PPCC”), Planned Parenthood South Texas Surgical Center (“PPSTSC”) (together with PPSA and PPCC, “PPST”); and Planned Parenthood Gulf Coast, Inc. (“PPGC”) (collectively, “Provider P laintiffs” or “P lanned Parenthood Providers”) provide critically needed family planning and preventive health services to thousands of women and men in underserved areas of Texas through the Medicaid program. For several decades, the Provider Plaintiffs have been trusted Medicaid providers for tens of thousands of Texans.
3. As is required by federal law, Medicaid enrollees may seek services from a participating provider of their choice and have those services covered by Medicaid. P laintiffs Jane Doe #1, 2, 4, 7, 9,10, and 11 (“Patient Plaintiffs”) are such women—patients of Provider Plaintiffs who are enrolled in Medicaid and who prefer Provider Plaintiffs to other Medicaid providers. Texas Medicaid does not pay for abortions except in extremely narrow circumstances.
4. In October 2015, without prior warning, the Texas Health and Human Services Commission (“HHSC”) issued termination letters to the Provider Plaintiffs (who are the only Planned Parenthood Providers in Texas), relying primarily on deceptively edited and misleading YouTube videos made by a radical anti-abortion group with ties to violent extremists, videos that have been widely debunked and that are wholly irrelevant to four out of the five Provider Plaintiffs. HHSC also relied on a prior settlement of qui tam litigation, again, by only one of the providers (PPGC), even though the settlement contained no admission of liability and also contained an agreement by Texas that it would not seek to use the litigation as a basis to exclude PPGC from Medicaid.
5. Perhaps aware of its failure to identify any legitimate basis for the terminations, after Plaintiffs filed suit seeking a TRO and/or preliminary injunction from this Court, HHSC backtracked, taking the position that it did not yet know if it would terminate the Provider
2

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 3 of 22
Plaintiffs. But it did not rescind the pending termination letters, instead promising ongoing investigations. Without further contacting the Provider Plaintiffs about this, fourteen months later, on December 20, 2016, HHSC issued a final notice of termination. Despite this lengthy delay and supposed ongoing investigation, HHSC makes only vague allegations—all about PPGC—that seem to relate almost entirely to one of the same YouTube videos HHSC cited last October, which was taken at PPGC.
6. Plaintiffs seek declaratory and injunctive relief to protect Patient Plaintiffs’ and other class members’ access to—and the Provider P laintiffs’ own ability to provide—these critical medical services. Defendants’ actions violate Section 1396a(a)(23) of Title 42 of the United States Code (“Medicaid freedom of choice provision”) because, by barring the Provider Plaintiffs from the Medicaid program, Defendants prevent Provider P laintiffs’ patients, including Patient Plaintiffs, from receiving services from their qualified, willing provider of choice. Defendants’ actions further impermissibly single out Plaintiffs for unfavorable treatment without adequate justification, in violation of the Equa l Protection Clause of the Fourteenth Amendme nt.
7. Unless enjoined, the termination of Provider Plaintiffs’ Medicaid provider agreements will take effect as early as January 21, 2017, immediately disqualifying Provider Plaintiffs from providing basic and preventive health care services to nearly 11,000 Texas women and men who depend on Provider Plaintiffs for that care. Defendants’ actions will cause significant and irreparable harm to Provider Plaintiffs and to their Medicaid patients, including Patient Plaintiffs, who will lose their provider of choice, will find their family planning services interrupted, and in many cases will be left with reduced access to care.
3

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 4 of 22
JURISDICTION AND VENUE 8. Subject-matter jurisdiction is conferred on this Court by 28 U.S.C. §§ 1331 and 1343. 9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court. 10. Venue in this judicial district is proper under 28 U.S.C. § 1391.
THE PARTIES A. Plaintiffs 11. Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. is a Texas not-for-profit corporation, headquartered in Dallas. PPGT and its predecessor organizations have provided high-quality care to Medicaid beneficiaries in Texas for decades. PPGT provides family planning and other preventive health services to Medicaid beneficiaries at seventeen health centers in Texas: in Addison, Arlington, Austin, Bedford, Cedar Hill, Dallas, Denton, Fort Worth, Plano, Lewisville, Mesquite, Paris, Tyler, and Waco. PPGT offers Medicaid patients a range of family planning and other health services at these centers, including physical exams, contraception (including long-acting reversible contraception or “LARC”) and contraceptive counseling, clinical breast exams, screening and treatment for cervical cancer, testing for sexually transmitted infections (“STIs”), pregnancy testing and counseling, and certain procedures including biopsies and colposcopy. In 2015, PPGT provided over 8000 visits to over 4000 Medicaid beneficiaries, including over 3800 STI/HIV tests and screenings, over 2500 well-woman exams, and over 4400 visits for hormonal contraception, as well as over 1300 units of LARCs. PPGT brings this action on behalf of itself and its patients.
4

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 5 of 22
12. Planned Parenthood San Antonio, Planned Parenthood Cameron County, and Planned Parenthood South Texas Surgical Center, not-for-profit corporations headquartered in San Antonio, are subsidiaries of P lanned Parenthood South Texas, Inc. PPST and its predecessor organizations have provided high-quality care to Medicaid beneficiaries in Texas for decades. PPST provides family planning and other preventive health services to Medicaid beneficiaries at six health centers in Texas in Brownsville, Harlingen, and San Antonio. PPST offers Medicaid patients a range of family planning and other health services at these centers, including physical exams, contraception (including LARC) and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, screening for STIs, pregnancy testing and counseling, and certain procedures including biopsies and colposcopy. In 2015, PPST provided over 2600 visits to over 1700 Medicaid patients, including over 3500 STI tests (including nearly 600 HIV screenings), and over 3100 units of hormonal contraception, including the birth control shot. PPST brings this action on behalf of itself and its patients.
13. Planned Parenthood Gulf Coast, Inc. is a Texas not-for-profit corporation, headquartered in Houston. PPGC and its predecessor organizations have provided high-quality care to Medicaid beneficiaries in Texas for decades. PPGC provides family planning and other preventive health services to Medicaid beneficiaries at seven health centers in the Houston Metropolitan area. PPGC offers Medicaid patients a range of family planning and other health services at these centers, including physical exams, contraception (including LARC) and contraceptive counseling, screening for breast cancer, screening and treatment for cervical cancer, screening for STIs, pregnancy testing and counseling, and certain procedures including biopsies and colposcopy. In calendar year 2015, PPGC provided over 7900 visits to over 5000 patients
5

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 6 of 22
enrolled in the Texas Medicaid program, including over 9000 STI tests (which include over 1900 HIV screenings), and over 4600 units of LARC and birth control shots.
14. PPGC does not provide abortions. PPGC has a facilities and services agreement with a separate organization, Planned Parenthood Center for Choice, Inc. (“PPCFC”), which does. PPCFC rents space in a building owned by PPGC and operates the PPCFC Ambulatory Surgical Center. PPGC and PPCFC share a president and CEO, but each organization has its own board of directors, bylaws, and staff. PPGC brings this action on behalf of itself and its Texas patie nts.
15. Plaintiff Jane Doe #1, a Texas resident and Medicaid patient, obtains her reproductive health care at various PPST health centers and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
16. Plaintiff Jane Doe #2, a Texas resident and Medicaid patient, obtains her reproductive health care at PPST’s Marbach health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
17. Plaintiff Jane Doe #4, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGC’s Prevention Park health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
18. Plaintiff Jane Doe #7, a Texas resident and Medicaid patient, obtains her reproductive health care at PPST’s Marbach health center and desires to continue to do so. She
6

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 7 of 22
sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
19. Plaintiff Jane Doe #9, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGC’s Greenspoint health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGC.
20. Plaintiff Jane Doe #10, a Texas resident and Medicaid patient, obtains her reproductive health care at PPGT’s North Austin health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPGT.
21. Plaintiff Jane Doe #11, a Texas resident and Medicaid patient, obtains her reproductive health care at PPST’s Marbach health center and desires to continue to do so. She sues on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at PPST.
22. Patient P laintiffs appear pseudonymously because of the private and personal nature of the medical care that they receive at Provider Plaintiffs, and their desire not to have that information become public in order for them to assert their legal rights.
B. Defendants 23. Charles Smith is Executive Commissioner of HHSC, and in that role, governs HHSC, which is the state agency that administers Texas’s Medicaid program and has notified the Provider Plaintiffs that it is terminating their provider agreements. Defendant Smith is sued in his official capacity, as are his employees, agents, and successors in office.
7

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 8 of 22
24. Stuart W. Bowen, Jr. is Inspector General of HHSC, whose office—the Office of Inspector Genera l—is a division within HHSC. Defendant Bowen notified Provider Plaintiffs that his office is terminating their provider agreements on behalf of HHSC. Defendant Bowen is sued in his official capacity, as are his employees, agents, and successors in office.
THE MEDICAID PROGRAM 25. The Medicaid program, established under Title XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq., pays for medical care for eligible needy people. A state may elect whether or not to participate; if it chooses to do so, it must comply with the requirements imposed by the Medicaid statute and by the Secretary of the U.S. Department of Health and Human Services (“HHS”) in her administration of Medicaid. See generally 42 U.S.C. § 1396a(a)(1)–(83). 26. To receive federal funding, a participating state must develop a “plan for medical assistance” and submit it to the Secretary of HHS for approval. 42 U.S.C. § 1396a(a). 27. Among other requirements, the State plan must provide that: “[A]ny individual eligible for medical assistance . . . may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required . . . who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23)(A). 28. Congress has singled out family planning services for special additional protections to ensure freedom of choice, specifically providing that, with respect to these services and with certain limited exceptions not applicable here, “enrollment of an individual eligible for medical assistance in a primary care case-management system . . . , a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services . . . .” 42 U.S.C. § 1396a(a)(23)(B).
8

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 9 of 22
29. The federal government reimburses the state of Texas 90% of expenditures attributable to offering, arranging, and furnishing family planning services and supplies in Medicaid. 42 U.S.C. § 1396b(a)(5).
30. Texas has some of the most stringent Medicaid requirements in the country: in addition to having a low income, an individual must also meet a special characteristic, such as having dependent children or a disability, to be eligible for Medicaid. For example, a woman with dependent children qualifies for Medicaid only if she has an income up to 15% of the federal poverty level, which amounts to an annual household income of $3756 for a family of three.
31. For decades, the Centers for Medicare & Medicaid Services (“CMS”), the agency within HHS that administers Medicaid (and its predecessor organization), has repeatedly interpreted the “qualified” language in Section 1396a(a)(23) to prohibit states from denying access to a provider for reasons unrelated to the ability of that provider to perform Medicaidcovered services or to properly bill for those services, including reasons such as the scope of the medical services that the provider chooses to offer.
32. CMS has explained that “[t]he purpose of the free choice provision is to allow [Medicaid] recipients the same opportunities to choose among available providers of covered health care and services as are normally offered to the general population.” Ctrs. for Medicare & Medicaid Servs., CMS Manuals Publication #45, State Medicaid Manual § 2100. HHSC’S ATTEMPTS TO TERMINATE PROVIDER PLAINTIFFS FROM MEDICAID
A. First Notice of Termination 33. On April 9, 2015, two anti-abortion extremists from a radical anti-abortion organization known as the Center for Medical Progress (“CMP”), masquerading as
9

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 10 of 22
representatives from a sham tissue biotechnology company, set up a meeting at PPGC’s headquarters in Houston. Unbeknownst to PPGC staff, these individuals secretly recorded the meeting, at which they repeatedly baited PPGC staff in an attempt to gain statements that could be distorted to suggest wrongdoing.
34. Then, starting in July 2015, CMP began publicly releasing a series of heavily edited and misleading videos of secretly recorded conversations with P lanned Parenthood staff and other individuals. These videos were edited and spliced to try to create an impression of wrongdoing on the part of P lanned Parenthood staff and others. On August 4, 2015, CMP released such a video featuring PPGC’s Director of Research.
35. Although CMP spent many hours baiting PPGC staff, distorting their words, and heavily editing the raw footage in an effort to create an appearance of wrongdoing, these videos do not show any violations of the law or other applicable standards.
36. On October 19, 2015, without prior warning, HHSC sent a letter titled “Notice of Termination” to each Provider P laintiff terminating its Medicaid provider numbers, to be effective fifteen days after the receipt of a final notice of termination. Each stated: “The State has determined that you . . . are no longer capable of performing medical services in a professionally competent, safe, and legal manner,” and that “[i]f you fail to respond to this Notice of Termination within 30 calendar days of receipt, then we will issue a Final Notice of Termination.” While sent to all of the Provider P laintiffs, those Notices rely largely on videos that, while unidentified, appear to be the CMP videos, and focus entirely on (false) allegations against P laintiff PPGC and Planned Parenthood Federation of America (“PPFA”). The Notices also relied on a prior settlement of qui tam litigation, again, by only PPGC, even though the
10

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 11 of 22
settlement contained no admission of liability and also contained an agreement by Texas that it would not seek to use the litigation as a basis to exclude PPGC from Medicaid.
37. Perhaps aware of its failure to identify any legitimate basis for the terminations, after Plaintiffs filed suit seeking a TRO and/or preliminary injunction from this Court, HHSC backtracked, taking the position that it did not yet know if it would terminate the Provider Plaintiffs. But it did not rescind the pending termination letters, instead promising ongoing investigations.
B. The Intervening Year (1) Texas State Investigations
38. The day after the CMP video concerning PPGC came out, Lieutenant Governor Dan Patrick directed the Harris County District Attorney to initiate a criminal investigation. The District Attorney conducted a thorough joint investigation, together with the Texas Rangers and the Houston Police Department, and PPGC cooperated in full, making its staff, facilities, and documents available as requested.
39. At the conclusion of the joint investigation, on January 25, 2016, the District Attorney announced: “For more than two months, the 232nd Grand Jury extensively reviewed the joint investigation into allegations of misconduct by PPGC . . . [and] cleared PPGC of breaking the law.” Instead, the grand jury indicted two of the anti-abortion extremists who created the videos.
40. Immediately after the release of the first CMP video, which did not contain any information or allegations regarding PPGC or PPCFC, officials from the Texas Attorney General’s office and the Department of State Health Services (“DSHS”) visited PPCFC’s
11

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 12 of 22
Ambulatory Surgical Center and demanded information regarding, among other things, fetal tissue donation and disposal. PPCFC staff fully cooperated with these requests.
41. Soon after their visit to PPCFC’s Ambulatory Surgical Center, on July 22, 2015, DSHS officials requested from each Provider Plaintiff detailed information regarding fetal tissue that had been donated over the past seven years. Provider P laintiffs quickly provided all requested information to DSHS.
42. Then in late July 2015, the Attorney General’s office sent requests to examine demanding a large number of documents from Provider Plaintiffs, and referenced potential violations of Texas law related to fetal tissue as the reason for the requests. Provider P laintiffs produced hundreds of pages of documents to the Attorney General in response to these requests.
43. Further, three days after it issued the initial Notices of Termination, HHSC dispatched investigators to the Texas Planned Parenthood Providers’ health centers across the state to deliver subpoenas for a wide range of documents and other records. Provider P laintiffs complied fully, submitting thousands of pages of documents.
(2) Congressional Investigations 44. After the CMP videos were released in July 2015, four separate Congressional Committees initiated investigations into PPFA and P lanned Parenthood affiliates in connection with the videos. PPFA and Planned Parenthood affiliates, including PPGC, fully cooperated with the Congressional investigations, producing over 25,000 pages of documents and making Planned Parenthood staff from across the country available for interviews. The exhaustive investigations by all four Committees found no wrongdoing by PPGC or any Texas Planned Parenthood affiliate. While one Congressional Committee referred four Planned Parenthood affiliates for further investigation, there was no such similar referral for PPGC.
12

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 13 of 22
45. Then, in October 2015, the House of Representatives formed and tasked another, fifth, Committee with investigating PPFA and Planned Parenthood affiliates: the Select Investigative Panel (“Select Panel”). On December 1, 2016, the Chairwoman of the Select Panel, Representative Marsha Blackburn, who strongly opposes abortion and has consistently voted for abortion restrictions, wrote a letter asking the Texas Attorney General to further investigate PPGC. After more than a year of investigation, Chairwoman Blackburn could point to no actual evidence of wrongdoing by PPGC, but instead could only request the Texas Attorney General investigate claims that had already been investigated by the Harris County District Attorney. Instead, Representative Blackburn’s letter appears to suggest that the Attorney General should investigate whether PPGC violated a Texas statute forbidding transferring a human organ for valuable consideration (a charge already rejected by the Harris County District Attorney investigation).
46. As the Democrat minority members of the Select Panel made clear in their December 2016 report, the Select Panel majority has used the committee “as a political weapon to punish women, their doctors, and researchers,” “adopt[ed] McCarthy-era tactics to demand names and bully witnesses,” “conducted an end-to-end attack on fetal tissue donation and women’s health care,” and “abused congressional authority and made repeated inflammatory claims of criminal misconduct in continued reliance on the discredited []CMP videos and without any actual evidence of wrongdoing.” After considering the exhaustive documentary and testimonial evidence supplied by Planned Parenthood entities and others involved in the research process, the minority members found that “the key concern for [Planned Parenthood] providers is always patient safety, and they do not alter the timing or method of abortions . . . to enhance fetal
13

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 14 of 22
tissue donation,” and that “P lanned Parenthood affiliates do not profit and actually lose money when they facilitate fetal tissue donation, as do other clinics.”
C. The Final Notice of Termination (1) PPGC Allegations
47. On December 20, 2016, HHSC sent a Final Notice of Termination (“Final Notice”) to each Provider P laintiff purporting to complete the process that was begun 14 months ago. None of these supposed bases undermines PPGC’s competence to provide care in the Medicaid program—much less the competence of PPGT and PPST—and none is sustainable.
48. The Final Notice appears to abandon three of the four bases of termination listed in the first Notice.
49. The Final Notice states that PPGC “follows a policy of agreeing to procure fetal tissue, potentially for valuable consideration, even if it means altering the timing or method of an abortion.” It also provides several additional, unclear examples of what HHSC claims are violations of accepted standards of medical practice, including that PPGC has “a history of deviating from accepted standards to procure samples that meet researcher’s needs,” “a history of permitting staff physicians to alter procedures to obtain targeted tissue samples needed for their specific outside research,” and a “willingness to charge more than the costs incurred for procuring fetal tissue.” It states these claims are supported by what the Final Notice claims is an unedited version of the CMP video taken at PP GC.
50. These allegations are without basis in fact. Neither PPGC nor its related entity PPCFC (which, unlike PPGC, provides abortions) has any such policy. PP GC does not provide abortions, and does not participate in any fetal tissue donation. PPCFC is not currently involved in any way with fetal tissue donation and has not been for several years,
14

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 15 of 22
and its policies expressly forbid alteration of the timing or method of the abortion for the purpose of obtaining fetal tissue; nor have its physicians ever engaged in such alteration. And similarly, PPCFC has never accepted “valuable consideration” for fetal tissue donation or been reimbursed more than its actual costs, as is legally and ethically permitted.
51. The Final Notice also alleges that HHSC has unspecified “evidence that you engaged in misrepresentations about your activity related to fetal tissue procurements.” HHSC offers no explanation of what this “evidence” is, beyond that it was provided by the Select Panel. The Final Notice does not identify what misrepresentations it claims PP GC has ma de.
52. On information and belief, Defendants’ bases for terminating PPGC’s provider agreements are highly irregular and have not been applied to any other Medicaid provider.
53. Absent an injunction from the Court, Defendants will terminate PPGC’s provider agreements on or about January 21, 2017.
(2) PPGT and PPST Allegations 54. While the Final Notice does not distinguish among the Planned Parenthood Providers in its accusations, its accusations all relate to a CMP video taken at one of PPGC’s health centers, and thus appear to focus entirely on allegations against PPGC. 55. The allegations in the Final Notice do not pertain to PPGT or PPST. 56. PPGT does not engage—and has not engaged—in fetal tissue donation. No PPGT staff member appears in the video that is the basis for the first allegation. 57. PPST does not engage—and has not engaged—in fetal tissue donation. No PPST staff member appears in the video that is the basis for the first allegation.
15

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 16 of 22
58. The Final Notice does not appear to suggest that PPGT or PPST has made any misrepresentations, given that the subject matter of claimed misrepresentations is fetal tissue procureme nt.
59. The Final Notice claims PPGT and PPST may be terminated because it is allegedly affiliated with PPGC, based on several “indicia of affiliation” it claims are established by the CMP video and other unidentified “evidence.”
60. PPGT and PPST are wholly separate corporations from each other and from PPGC. There is no overlap whatsoever between PPGT, PPST, and PPGC in ownership, control, operations, personnel or finances.
61. The only legal relationship between PPGT, PPST, and PPGC is that each are members of PPFA, a membership organization that promulgates medical and other standards to which members (known as “affiliates”) must adhere to operate under the name “Planned Parenthood” and otherwise use the Planned Parenthood mark. PPGT, PPST, and other members enter into affiliation agreements with PPFA, but members do not have affiliation agreements amongst themselves.
62. PPGT is not an affiliate, subsidiary, parent, employee, contractor, vendor, or agent of PPGC. Nor is PPGC an affiliate, subsidiary, parent, employee, contractor, vendor, or agent of PPGT.
63. PPST is not an affiliate, subsidiary, parent, employee, contractor, vendor, or agent of PPGC. Nor is PPGC an affiliate, subsidiary, parent, employee, contractor, vendor, or agent of PPST.
64. There are fifty-six Planned Parenthood affiliates across the country, each with its own board, CEO, and management structure, and each with control of its own finances and
16

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 17 of 22
operations. 65. Absent an injunction from the Court, Defendants will terminate PPGT’s and
PPST’s provider agreements on or about January 21, 2017. THE IMPACT OF DEFENDANTS’ ACTIONS ON PROVIDER PLAINTIFFS AND THEIR PATIENTS 66. The need for publicly supported family planning services is great in Texas, which
regularly ranks among the worst states for reproductive health care. In 2010, 54% of pregnancies in Texas were unintended. The state has the fifth highest teen pregnancy rate among the 50 states. Approximately 74% of Texas’s unplanned births are publicly funded, which is higher than the national average of 68%. Texas also has high and rising STIs rates. Chlamydia and gonorrhea rates in Texas are well above the national average. Moreover, the number of reported gonorrhea, chlamydia, and syphilis cases has increased consistently since 2010.
67. In 2014, an estimated 3,264,120 Texas women needed contraceptive services and supplies. Of these, 1,795,160 women (54.9%) needed publicly supported services.
68. Only the most needy individuals in Texas are eligible to receive Medicaid coverage. In addition to having a low-income, an individual must also meet a special characteristic, such as being pregnant or having a disability, to be eligible for Medicaid. These patients are extremely vulnerable to begin with, even without this additional hardship.
69. Other Medicaid providers are already stretched thin, with some not taking any non-pregnant Medicaid patients and others having long wait-times. If Provider Plaintiffs are forced to stop providing care in the Medicaid program, this situation will worsen.
70. Many of Provider P laintiffs’ health centers are situated in areas that have already been designated as medically underserved areas or serve specific populations that are medically underserved; some areas also suffer from a shortage of primary care providers. Patients in these
17

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 18 of 22
areas may have a particularly difficult time finding prompt or adequate alternative family planning care.
71. In recent years, the provider network available to Texas Medicaid patients has declined, to just over 30% of practicing physicians as of 2012.
72. Even if other providers were available, patients insured through Medicaid choose Provider Plaintiffs based on a number of factors that are generally not available at other providers. With its evidence-based practices and up-to-date technology, Provider Plaintiffs are known as providers of high-quality medical care. Many individuals who receive other health care through community care providers or other Medicaid providers choose to have a separate provider such as Provider Plaintiffs for their reproductive health care because they are concerned about their privacy and because they fear being judged by other providers.
73. In addition, many low-income patients have unique scheduling constra ints because they are juggling inflexible work schedules, childcare obligations, transportation challenges, and lack of childcare resources. To ensure that these patients have access to family planning services, Provider Plaintiffs offer extended hours. In addition, Provider Plaintiffs space patient appointments so as to minimize wait times. They also offer same-day birth control shots, birth control implants, and intrauterine devices, so that patients only need to make one trip to a health center to obtain their contraceptive method of choice. Provider Plaintiffs have either a full-time Spanish speaker on staff or translator services available to non-English speaking patients at all times.
74. Defendants’ actions will deprive all of Provider Plaintiffs’ Medicaid patients, including Patient Plaintiffs, of access to the high-quality, specialized care that Provider P laintiffs provide.
18

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 19 of 22
75. All Patient Plaintiffs rely on Provider Plaintiffs as the providers they can turn to for critical medical care and for prompt, efficient, and compassionate services. If Provider Plaintiffs are eliminated from Medicaid, Patient Plaintiffs, and other class members, will be prevented from receiving services from their provider of choice, will have their health care interrupted, and may encounter difficulties finding alternative care.
76. In 2015, PPGT’s reimbursements for providing these critical health services to low-income patients totaled nearly 5% of its overall revenue.
77. In 2015, PPST’s reimbursements for providing these critical health services to low-income patients totaled 6% of its overall revenue.
78. In 2015, PPGC’s reimbursements for providing these critical health services to low-income patients totaled over 29% of its Texas revenue.
79. Without this revenue, Provider Plaintiffs may be unable to continue to provide services in the same manner and may be forced to lay off staff members, reduce hours, or close a health center. If a health center closes, this will affect not only the Medicaid patients at that health center, but all of the patients who seek reproductive health care at that health center.
CLASS ALLEGATIONS 80. This lawsuit is properly maintained as a class action under Federal Rule of Civil Procedure 23(b)(1)(B) and (b)(2). 81. The class consists of all Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services at Provider Plaintiffs. 82. Although the precise size of the class is unknowable, as alleged in Paragraphs 11, 12, and 13 above, Provider P laintiffs provided covered health care services to nearly 11,000 Medicaid patients in 2015. Therefore, the approximate size of the class is 11,000 individuals.
19

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 20 of 22
83. Patient Plaintiffs are adequate class representatives because they, like other members of the class, are Texas residents and Medicaid patients who obtain their reproductive health care at Provider P laintiffs’ health centers and desire to continue to do so. Unless Defendants are enjoined, class representatives and class members will suffer the same injury and resulting harm: they will be unable to obtain health care services at the provider of their choice. As a result, many of Provider Plaintiffs’ Medicaid patients, including Patient Plaintiffs and other class members, who already have few or no alternative options, will find it difficult or impossible to access the reproductive and other health care services they need.
84. Defendants’ actions—terminating Provider Plaintiffs from the Medicaid program—apply generally to the class, such that both declaratory and injunctive relief is appropriate for all members of the class.
85. Class members raise the same questions of law, including whether Defendants’ termination of Provider P laintiffs’ Medicaid provider agreements violates the Medicaid freedomof-choice provision, 42 U.S.C. § 1396a(a)(23), and the Fourteenth Amendment, such that, as a practical matter, adjudication of their claims would be dispositive of the interests of the other class members.
CLAIMS FOR RELIEF CLAIM I—MEDICAID ACT (TITLE XIX OF SOCIAL SECURITY ACT) 86. Plaintiffs hereby incorporate Paragraphs 1 through 85 above. 87. Defendants’ actions violate Section 1396a(a)(23) of Title 42 of the United States Code by denying Provider Plaintiffs’ patients, including the Patient Plaintiffs, the right to choose any willing, qualified health care provider in the Medicaid program.
20

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 21 of 22
CLAIM II—FOURTEENTH AMENDMENT EQUAL PROTECTION 88. Plaintiffs hereby incorporate Paragraphs 1 through 84 above. 89. Defendants’ actions violate P laintiffs’ rights by singling them out for unfavorable treatment without adequate justification.
RELIEF REQUESTED WHEREFORE, Plaintiffs request that this Court: 90. Order that this action be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(1)(B) and/or 23(b)(2); 91. Issue a declaratory judgment that Defendants’ actions violate the Medicaid Act; 92. Issue a declaratory judgment that Defendants’ actions violate the Fourteenth Amendment; 93. Issue temporary, preliminary, and permanent injunctive relief, without bond, enjoining Defendants and their agents, employees, appointees, delegates, or successors from terminating, or threatening to terminate, Provider Plaintiffs’ Medicaid provider agreements; 94. Grant P laintiffs attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988; and, 95. Grant such further relief as this Court deems just and proper. Respectfully submitted the 6th day of January, 2017.
HUSCH BLACKWELL, L.L.P BY: /s/ Thomas H. Watkins THOMAS H. WATKINS Texas Bar No. 20928000 Email: Tom.Watkins@huschblackwell.com 111 Congress Avenue, Suite 1400 Austin, Texas 78701 (512) 472-5456 (512) 479-1101 (facsimile)
21

Case 1:15-cv-01058-SS Document 76 Filed 01/17/17 Page 22 of 22
JENNIFER SANDMAN* MAITHREYI RATAKONDA* PLANNED PARENTHOOD FEDERATION OF AMERICA Email: Jennifer.Sandman@ppfa.org Email: Mai.Ratakonda@ppfa.org 123 William Street, 9th Floor New York, NY 10038 (212) 261-4584 (Jennifer Sandman) (212) 261-4405 (Maithreyi Ratakonda) (212) 247-6811 (facsimile) ALICE CLAPM AN* RICHARD MUNIZ* PLANNED PARENTHOOD FEDERATION OF AMERICA Email: Alice.Clapman@ppfa.org Email: Richard.Muniz@ppfa.org 1110 Vermont Avenue NW, Suite 300 Washington, DC 20005 (202) 973-4862 (Alice Clapman) (202) 973-4997 (Richard Muniz) (202) 296-3480 (facsimile) ATTORNEYS FOR PLAINTIFFS * Admitted pro hac vice
22

 </s> IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

c
PH t:29

PLANNED PARENTHOOD OF GREATER
TEXAS FAMILY PLANNING AND
PREVENTATIVE HEALTH SERVICES, INC., PLANNED PARENTHOOD SAN ANTONIO, PLANNED PARENTHOOD CAMERON COUNTY, PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER, PLANNED PARENTHOOD GULF COAST, INC., and JANE DOES ##1, 2, 4, 7, 9-11 on Their Behalf and on Behalf of All Others Similarly Situated,
Plaintiffs,
-vs-
CHARLES SMITH, Executive Commissioner, Texas Health and Human Services Commission, and STUART W. BOWEN, JR., Inspector General, Texas Health and Human Services Commission, Office of Inspector General,
Defendants.

Case No. A-15-CA-1058-SS

ORDER
BE IT REMEMBERED on the 17th, 18th, and 19th days of January 2017, the Court held a
hearing in the above-styled cause, and the parties appeared in person or through counsel. This case concerns a § 1983 suit brought by five Texas Planned Parenthood health care providers (Provider Plaintiffs) and seven known but anonymized Jane Does (Individual Plaintiffs) (collectively, Plaintiffs). Plaintiffs sue Defendants Charles Smith and Stuart Bowen, Jr. in their official capacities
as Executive Commissioner and Inspector General of the Texas Health and Human Services

/

Commission (HHSC), challenging HHSC's decision to terminate its Medicaid provider agreements with Provider Plaintiffs.
Before the Court are Plaintiffs' Motion for aPreliminary Injunction [#58], HHSC' s Response [#70] in opposition, Plaintiffs' Letter Brief [#9 1] in support, HHSC's Letter Brief [#92] in
opposition, Plaintiffs' Proposed Findings of Fact and Conclusions of Law [#93] in support, and HHSC's Proposed Findings of Fact and Conclusions of Law [#94] in opposition.1 Having reviewed the documents, the evidence presented at the hearing, the arguments of counsel, the relevant law, and
the file as a whole, the Court now enters the following opinion and orders.
Introduction A secretly recorded video, fake names, a grand jury indictment, congressional investigationsthese are the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program. Yet, rather than a villain plotting to take over the world, the subject ofthis case is the State ofTexas's efforts to expel a group of health care providers from a social health care program for families and individuals with limited
resources.
Stalling for nearly a year after issuing an initial notice of termination, HHSC reinitiated its
efforts to terminate Planned Parenthood health care providers from the Texas Medicaid program. Following extensive investigations, the Inspector General's reasons for termination constituted
unsubstantiated and indeterminate allegations, including a "policy of agreeing to" and a
1 There are also three other pending motions in this case. First, Plaintiffs filed a motion to certify class, but a ruling on this motion is postponed until it is fully briefed. See Mot. Certify Class [#9]. Because the motion does not specify whether it is opposed or unopposed and this case was stayed, the Court will allow HHSC seven days to respond to the motion to certify. Second, HHSC filed a motion to seal [#7 1], which the Court GRANTS. Third, HHSC filed a motion to dismiss, which only became ripe three days ago and the Court has yet to fully examine. See Mot. Dismiss [#95].
-2-

"willingness" to violate medical and ethical standards. Without any evidence indicating an actual program violation warranting termination, the Inspector General nevertheless acted to terminate one of the Provider Plaintiffs from the Texas Medicaid program and sought to terminate the other Provider Plaintiffs by extension. After reviewing the evidence currently in the record, the Court finds the Inspector General, and thus HHSC, likely acted to disenroll qualified health care providers from Medicaid without cause. Such action would deprive Medicaid patients of their statutory right to
obtain health care from their chosen qualified provider. The deprivation of that right is an irreparable injury in and ofitselfbut could also disrupt the care ofthe 12,500 Texas Medicaid patients receiving
services from Planned Parenthood. In sum, the Individual Plaintiffs have established entitlement to a preliminary injunction by
proving a substantial likelihood of success on the merits, an irreparable injury, and both the balance of harms and public interest favor granting the injunction. The Court therefore grants Plaintiffs'
motion for a preliminary injunction to preserve its ability to render a meaningful decision on the merits.
Background I. Parties A. Provider Plaintiffs
The five Provider Plaintiffs in this suit are all nonprofit organizations domiciled in Texas providing services both through the Medicaid Program and to the general public.
Planned Parenthood Gulf Coast (PPGC), the Provider Plaintiff central to this case, is headquartered in Houston and operates seven health centers throughout the Houston area. Pls.' Hr'g Ex. 65 (Linton Decl.) ¶ 3. Another Provider Plaintiff, Planned Parenthood Greater Texas, Inc.
-3-

(PPGT), is headquartered in Dallas and operates seventeen health centers in Addison, Arlington, Austin, Bedford, Cedar Hill, Dallas, Denton, Fort Worth, Piano, Lewisville, Mesquite, Paris, Tyler, and Waco. Pis.' Hr'g Ex. 40 (Lambrecht Deci.) ¶ 3. The final three Provider Plaintiffs, Planned Parenthood Cameron County, Planned Parenthood San Antonio, and Planned Parenthood South
Texas Surgical Center, are all entities under the umbrella of Planned Parenthood South Texas (PPST). Pis.' Proposed Findings [#93] ¶ 3. PPST operates six health centers offering services to
Medicaid patients. Id. In total, PPGC, PPGT, and PPST provide Medicaid services at thirty health centers across
Texas. Id. ¶ 4. Approximately 12,500 Texas Medicaid patients receive services from Planned Parenthood. Hr'g Tr. Vol. 3 at 14:5-10. Specializing in reproductive and sexual health, these clinics
offer Medicaid patients contraception and contraceptive counseling, breast cancer screening, cervical cancer screening and treatment, sexually transmitted disease (STD) testing and treatment, pregnancy testing and counseling, as well as other services. Mot. Prelim. Inj. [#5 8] at 5. In the Texas Medicaid program, only the Provider Plaintiffs are labeled as family planning specialists. Hr'g Tr. Vol. 3 at 17:10-17.
In addition to reproductive health care, the Provider Plaintiffs offer other limited primary care services because their patients may not see other doctors. Hr'g Tr. Vol. 1 at 209:1-210:6. The Provider Plaintiffs strive to accommodate low-income patients who may face additional barriers to health care access, such as child care or inflexible work schedules, by offering evening and weekend hours, walk-in appointments, short wait times, bilingual staff or translation services, and same-day contraceptive services. Id. at 19:23-20:19; Mot. Prelim. Inj. [#58] at 5-6.
El

While PPGC, PPGT, and PPST are separate organizations, they are all affiliates, of the Planned Parenthood Federation of America (PPFA). Mot. Prelim. Inj. {#58] at 4. PPFA is a
membership organization that develops medical and organizational standards to which its affiliates must adhere in order to operate under the Planned Parenthood name and use the Planned Parenthood mark. Id. There are approximately fifty-six affiliates across the county. Id.
The facts of this case primarily focus on PPGC, the only Provider Plaintiff to participate in fetal tissue research. While PPGC itself does not perform abortions, its related entity, Planned
Parenthood Center For Choice (PPCFC) does perform abortions.Id. at 16. PPGC' s headquarters and a health care clinic are located in the same building in Houston as PPCFC. Hr'g Tr. Vol. 1 at 120:20-121:9. While PPGC and PPCFC were originally one entity, the entities separated in 2005
as a condition of PPGC receiving funding it no longer receives. Hr'g Tr. Vol. 1 at 3 8:8-13. Most significantly here, PPGC's research department handles any research requests or agreements that involve PPCFC because PPCFC has no research department or separate personnel of its own.2 Id.
at 64:12-65:13. B. Individual Plaintiffs
The Individual Plaintiffs are all Texas residents insured through Medicaid. A brief introduction to each Jane Doe plaintiff, anonymized to protect their identities, provides context for this suit.
2 At this stage of the lawsuit, the Court declines to determine whether PPCG and PPCFC are separate entities or are effectively one organization. Instead, the Court assumes, without deciding, the actions ofPPCFC can be considered the actions of PPGC. Rather than attempt to distinguish between the actions of PPGC and PPCFC for purposes of this motion for a preliminary injunction, the Court will only refer to PPGC for the remainder of this order.
-5-

Doe # 1 lives in San Antonio and has been a patient at a variety of the health centers under PPST's umbrella since she was seventeen. Pis.' Hr'g Ex. 94 (Doe # 1 Decl.) ¶ 2. Now thirty-three, she has obtained a spectrum of services from PPST health centers including annual exams, STD screening, birth control, pregnancy tests, and general reproductive care. Id. ¶ 5. Doe # 1 wishes to continue receiving health care from PPST because she would not know where to go if she could not get care from Planned Parenthood, cannot afford to pay out of pocket, and fears she will end up at a health center where it is difficult to schedule appointments or where she will not like how she is treated. Id. ¶ 7.
Doe # 2 is an eighteen-year-old patient of a Planned Parenthood health center under PPST. Pls.' Hr'g Ex. 96 (Doe #2 Decl.) ¶J 1-2. She is a full-time student in a pre-medical program and has a two-year-old son. Id. ¶ 3. She relies on her Planned Parenthood health center for STD screening, pregnancy testing, and birth control. Id. ¶ 4. She does not know ifshe could obtain the same services from another provider or if she would be comfortable with another provider. Id. ¶ 6.
Doe # 4 has thrombocytopenia, a shortage of blood platelets. Pis.' Hr'g Ex. 97 (Doe # 4 Deci.) ¶ 2. As a result of her condition, she is prone to excessive bleeding. Id. When her prior
OB/GYN provider prescribed a drug that had to be injected to treat her condition but could not do
the injections himself, she turned to PPGC. Id. ¶ 5. Doe #4 now visits PPGC every three months for
her injections as well as for other treatments. Id. ¶ 6. She wishes to continue her care with PPGC in light ofher positive experience, especiallyconsidering the long waits she faced with other providers.
Id. Twenty-six-year-old Doe # 7 is a single mother who tries to get all her health care from a
Planned Parenthood health center under PPST. Pls.' Hr'g Ex. 99 (Doe # 7 Deci.) ¶J 1-2, 8. She

sometimes visits her Planned Parenthood health center as a walk-in patient, but if she calls for an
appointment her Planned Parenthood center is usually able to fit her in the same day. Id. ¶ 6. She feels less comfortable talking to other doctors about women's reproductive issues and wishes to continue to get the services she needs through PPST. Id. ¶1J 7, 9.
Doe # 9 has a four-year-old son, is a part-time student, and works part-time. Pls.' Hr'g Ex. 100 (Doe # 9 Decl.) ¶ 2. She visits a PPGC health center for well-woman exams, STD testing, and birth control. Id. ¶ 3. She appreciates that PPGC treats Medicaid patients the same as patients with private insurance. Id. ¶ 4. She previously saw another provider who accepted Medicaid, but the wait times for that provider ranged up to two hours. Id. ¶ 5. Doe # 9 has found it difficult to find a good provider who will take Medicaid patients and worries she will be unable to find another provider in light of her commitments to her son, school, and work. Id. ¶ 7. She would prefer to remain with PPGC which has her medical history and has earned her trust. Id. ¶ 8.
Doe # 10 is an Austin resident who grew up in the foster care system. Pls.' Hr' g Ex. 102 (Doe # 10 Decl.) ¶IJ 1, 3. Doe # 10 was raped and had a negative experience with the doctor who examined her afterward. Id. ¶ 5. As a result, she is very nervous in a health center. Id. She wishes to continue her care with PPGT because she is comfortable with the doctors there and PPGT is flexible with scheduling. Id. ¶J 7-8. She and her younger sister do not know where they would go for health care
if PPGT was not an option. Id. ¶J 9-10. Doe # 11, now twenty-four, has been a patient of a PPST health center since she was fifteen.
Pls.' Hr'g Ex. 104 (Doe # 11 Decl.) ¶IJ 1-2. While she briefly went to another provider when her Planned Parenthood health center was closed, she returned to her Planned Parenthood health center
-7-

when it reopened because it had all her medical records and she was more comfortable there. Id. ¶ 5. She also appreciates the reproductive health education Planned Parenthood provided her. Id. ¶ 7. C. HHSC
Defendant Charles Smith is the Executive Commissioner of HHSC and Defendant Stuart Bowen is the Inspector General ofHHSC (Inspector General). The Inspector General consulted with his organization's Chief Medical Officer in deciding to terminate the Provider Plaintiffs from the Texas Medicaid Program, but the ultimate decision to terminate was made by the Inspector General individually. Hr'g Tr. Vol 2 at 18:24-20:15, 88:8-13. II. The Texas Medicaid Program
In Texas, there are approximately 4.3 million people enrolled in Medicaid. Hr'g Tr. Vol. 3 at 6:15-17. In order for a health care provider to serve these patients through the Medicaid program, it must execute a HHSC Medicaid Provider Agreement (Provider Agreement), which lays out the responsibilities and obligations of a Texas Medicaid provider. Hr'g Tr. Vol.2 at 11:3-10. By signing a Provider Agreement, a provider agrees to comply with all the requirements of the Provider Manual, a document describing Texas Medicaid program policies, as well as state and federal law. Defs.' Hr' g Ex. 21 (Provider Agreement) at 1. A provider also agrees to ensure all its employees and agents comply with such requirements. Id. All of the Provider Plaintiffs involved in this lawsuit executed a Provider Agreement. Hr'g Tr. Vol. 2 at 11:24-12:2.
Section 6 of a Provider Agreement indicates the circumstances under which a Provider
Agreement may be terminated: [E]xclusion from participation in Medicare, Medicaid, or any other publically funded
health-care program; loss or suspension of professional license or certification; any
circumstance resulting in ineligibility to participate in Texas Medicaid; and failure

to comply with the provisions of this Agreement or any applicable law, rule or policy of the Medicaid program; and any circumstances indicating that the health or safety of clients is or may be at risk.
Provider Agreement at 13. The Provider Manual supplies additional guidance on the rules governing
Texas Medicaid providers. For instance,"[i]t is a violation of Texas Medicaid rules when a provider
fails to provide health care services oritems to Medicaid clients in accordance with acceptedmedical community standards. . . ." Defs.' Hr'g Ex. 20 (Provider Manual) at 13. Simply put, any violation
of federal law, state law, or the Texas Medicaid program policies is a basis for termination, commonly referred to as a program violation. See Hr'g Tr. Vol. 2 11:3-23.
Under Texas law, the Inspector General is charged with enforcing the rules of the Mediciaid
program. 1 TEx. ADMIN. CODE § 371.1603. Such enforcement authority includes the ability to expel a provider from enrollment in the Texas Medicaid program. Id. Specifically, the Inspector General may terminate a provider's participation in the Texas Medicaid program when the Inspector General establishes by prima facie evidence the provider committed a program violation, is affiliated with a provider that commits a program violation, or commits an act for which sanctions, damages, penalties, or liability could be assessed by the Inspector General. Id. § 371.1703©.
In terms of substantive coverage, Texas does not pay for abortions for women insured by Medicaid except in extremely narrow circumstances. Lambrecht Decl. ¶ 6.
In addition to Medicaid, Texas oversees other state health programs such as the Healthy Texas Women Program, the Family Planning Program, and the Breast and Cervical Cancer Screening Program. Hr'g Tr. Vol. 2 at 135:10-15.

III. Research Activities of the Provider Plaintiffs PPGC has an internal department devoted to research, headed by Research Director Melissa
Farrell (Ms. Farrell). Pls.' Hr'g Ex. 225 (Farrell Decl.) ¶ 2. Ms. Farrell worked as a nurse for two
years in labor and delivery and pre-natal care before becoming the research coordinator at Baylor
College of Medicine. Id. ¶ 1. In 2006, she became the research director at PPGC. Id. She has never witnessed an abortion or even been in the room when an abortion was performed. Hr'g Tr. Vol. 1
at 64:2-11. The PPGC research department is involved in approximately twenty projects a year,
responsible for coordinating and managing research-related activities between PPGC and
third-parties. Id. The majority of research projects facilitated by PPCG' s research department concern family planning services. Id. Such projects have included developing new forms of STD
screening and treatment, advances in emergency contraception, and an HPV vaccine. Id. When PPGC receives a request for a research partnership, Ms. Farrell works with the
researchers to gather information and learn whether PPGC could participate. Pls.' Hr'g Ex. 108 (Fine Deci.) ¶ 23. Ms. Farrell's role includes providing researchers with information about PPGC's services and facilities, developing a budget, negotiating a contract, facilitating Institutional Review Board (IRB) submissions and approval, and guiding internal approval processes. Farrell Dee!. ¶J 4-5. As part of this process, she consults with other staff members from PPGC to evaluate whether the research request is feasible and what operational changes and additional training would be required. Fine Dee!. ¶ 23. Before any research project can begin, it must be approved by PPGC's medical director, the CEO, and PPFA. Id. If a project is approved, Ms. Farrell coordinates staff training and clinical logistics. Hr'g Tr. Vol. 1 at 78:21-79:14.
-10-

While PPGC is not currently involved with any fetal tissue studies or fetal tissue donation, it has facilitated fetal tissue donation in the past. Fine Dccl. ¶ 10. Since 2006, PPGC has been
involved in two research projects relating to fetal tissue. Farrell Deci. ¶J 9-10; Hr'g Tr. Vol. 1 at 74:23-75:12. The first study, in progress when Ms. Farrell arrived at PPGC in 2006, concerned first-trimester fetal tissue. Hr'g Tr, Vol. 1 at 75:2-3. The second study, running from 2010 to 2011, concerned first-trimester placental tissue. Farrell Decl. ¶ 9. During Ms. Farrell's tenure as research director PPGC has not engaged in research on or the donation of fetal tissue obtained from second-trimester abortions. Farrell Deci. ¶ 10.
When the prior studies relating to fetal tissue received all the required approvals, Ms. Farrell
integrated each study into the clinical procedures of an abortion. In a typical procedure modified for
research, a patient would receive a consultation and ultrasound and would be walked through the abortion consent process. Hr'g Tr. Vol. 1 at 76:16-77:1. The doctor would then determine the
abortion method entirely based on the gestational age of the embryo or fetus without considering whether the patient was interested in donating fetal tissue. Fine Deci. ¶ 17.
Donation of fetal tissue was not discussed until after the woman completed all consents necessary for the abortion. Hr'g Tr. Vol. 1 at 77:4-13. A separate research consent process would then be undertaken. Id. at 76:22-77:3. If a patient consented to donate fetal tissue, a separate file and chart with the patient's research profile was created. Id. The doctor was not involved in obtaining a patient's consent to participate in fetal tissue donation and was not informed whether a particular patient agreed to donate tissue. Id. at 77:21-78:13, 177:1-6; Fine Dccl. ¶ 22. The separate research file was delivered to a laboratory where all fetal tissue would be evaluated after a procedure. Hr'g Tr. Vol. lat 78:3-13.
-11-

After an abortion, the doctor would then be asked to sign off on a form indicating no change was made to the timing, method, or procedure of the abortion for fetal tissue tagged for research. Id. at 78:9-13. After the doctor's signature was obtained, the fetal tissue would be processed and
packaged according to research needs. The most recent study concluded in 2011 and was conducted in conjunction with the
University of Texas Medical Branch in Galveston (UTMB). Farrell Decl. ¶ 10. It concerned the collection of first-trimester placental tissue from women who consented and required PPGC to use a sterile process to collect the placental tissue after the abortion. Id.; Hr'g Tr. Vol. 1 at 79:15-81:17.
As part of the contract between UTMB and PPGC, UTMB agreed to reimburse PPGC twenty-five dollars "for stafftime expense involved in obtaining consent" for up to 500 patients and $1,500 for expenses related to a specific training necessary for the research. Pls.' Hr'g Ex. 239
(Tissue Supply Agreement and Amendment) at 1. Once the study began, the agreement was amended, however, to account for costs related to the length of time required to obtain consent, the
sterile procedures, the collection of a maternal blood draw, and an administrative fee. Id. at 3-4; Hr' g Tr. Vol. lat 84:7-85:22. Under the amended agreement, UTMB reimbursed PPGC $50 per patient consent and $100 per consent for the combination of the sterile process and maternal blood draw;
UTMB also reimbursed a one-time $2,000 fee for surgical services, research management, oversight,
and storage. Hr'g Tr. Vol. lat 85:21-86:22. In total, UTMB reimbursed PPGC slightly less than $10,000. Id. at 87:3-6. Ms. Farrell testified that amount did not fully reimburse PPGC for all of its expenses in light of administrative and staff time devoted to the research partnership. Id. at 87:7-23.
One of PPGC's physicians who performed abortions was also an investigator on the research
side for the UTMB project. Id. at 77:14-16.
-12-

Neither PPGT, its related entity that performs abortions, nor PPST participates or previously
participated in fetal tissue research or a donation program. Lambrecht Deci. ¶ 6; Pls.' Hr'g Ex. 92 (Hons Deci.) ¶ 7. IV. Center for Medical Progress Videos
On April 9, 2015, Ms. Farrell conducted a site visit with two individuals purporting to be
representatives of a tissue procurement company. Farrell Decl. ¶J 6-7. The two individuals,
however, were not tissue procurement representatives but were affiliated with the Center for Medical Progress (CMP), an anti-abortion organization. Id. Using fake names, the two anti-abortion activists attended PPFA conferences and portrayed themselves as starting a company interested in connecting Planned Parenthood health centers with research studies. Id. In response to an email from these activists, Ms. Farrell arranged the site visit to PPGC's headquarters. Id.
During the site visit, one of the activists secretly videotaped conversations with Ms. Farrell and the tour of the PPGC facility she provided. See Defs.' Hr'g Ex. 2 (CMP Video). Ms. Farrell also
arranged for the anti-abortion activists to meet with the Ambulatory Surgical Center (ASC) Director
and to take a tour of the surgical facilities. Id. While touring the surgical facilities, the activists asked to see an example of fetal tissue and the hosts obliged. Id. All of these interactions were covertly recorded, netting over eight hours of undercover video. Id.
A few months later, CMP released a series of undercover videos, including the one filmed at PPGC's headquarters, purportedly showing Planned Parenthood and its affiliates were contracting to sell aborted human fetal tissue and body parts. Mot. Prelim. Inj. [#58] at 7. The release of the videos prompted a number of federal and state investigations concerning Planned Parenthood
organizations.
-13-

In Texas, the Harris County District Attorney, together with the Texas Rangers and the Houston Police Department, investigated PPGC. Mot. Prelim. Inj. [#58-1] Ex. 2C (Harris County District Attorney Press Release). The investigation found no wrongdoing by PPGC, but the grand jury indicted the two anti-abortion activists who created the videos. Id. These charges were eventually dismissed. Linton Decl. ¶ 25 n. 1. During the same period, the Texas Attorney General's
Office, Texas Department of State Health Services, and HHSC all conducted their own investigations. Id. ¶IJ 27-30. Aside from HHSC's allegations with respect to the Texas Medicaid program, the record includes no additional findings of wrongdoing from the investigations and no efforts to revoke any license or qualification of the Plaintiff Providers. V. Proposed Research Project with Baylor College of Medicine
Starting in 2013, a researcher from Baylor College of Medicine (Baylor) approached PPGC to explore a new fetal tissue donation project. Farrell Deci. ¶ 36. Ms. Farrell, the Baylor researcher,
and a research coordinator from Baylor corresponded for nearly a year concerning the potential project. Id.
In mid-November of 2014, the research coordinator from Baylor emailed Ms. Farrell. Pis.' Hr'g Ex. 198 (Nov. 17, 2014) at 2. The title of the email included the phrase "IRB Approval
Obtained" and indicated "[Baylor] heard back from the IRB today and like we discussed, the study does not constitute human subject[] research." Id. Ms. Farrell responded to the email "Thank you!" Jd. at 1. The next email in the chain, from the Baylor researcher, asked about next steps "[n]ow that we have approval for these studies. . . ." Id.
Following the November 2014 email chain, both Baylor and PPGC continued to discuss the project, exchanging a draft contract. See Pls.' Hr'g Exs. 205 (May 21, 2015 Emails), 206 (Jun. 22,
-14-

2015 Emails). On July 7, 2015, Ms. Farrell asked the Baylor team to "insert any language that is
pertinent to the project" into the contract and emphasized "that ifthis study involves DNA, isolation of cell lines, etc. . . [sic] the IRB approval and ICF need to specify this. I don't have a recollection that DNA research was your projected plan." Pis.' Hr'g Ex. 207 (July 7, 2015 Emails) at 1.
No site visit concerning the potential project was ever conducted. Farrell Decl. ¶J 3 8-39. No
contract or budget was ever finalized or approved by PPGC or PPFA. Id.
After the release of the CMP videos, the Baylor researcher emailed Ms. Farrell to ask if"[i]n light of recent events," they needed to make other changes to the contract. Pis.' Hr'g Ex. 214 (Oct.
13, 2015 Email to PPGC). Nearly a month later, Ms. Farrell responded, clarifying that there was no valid contract and "PPGC will not commit to engage in any fetal tissue research endeavors at this time." Pls.' Notice Filing [#81-12] Ex. K (Nov. 4, 2015 Email to Baylor) at 2. VI. Congressional Investigation
In the wake of several Congressional committee investigations following the release of videos by CMP, the Select Investigative Panel (Select Panel) was formed by the House of Representatives and tasked with investigating fetal tissue donation practices. Defs.' Hr'g Ex. 61 (Select Panel Report) at 2-3. Representative Marsha Blackburn of Tennessee, a Republican, was named Chair of the Select Panel. Id. In addition to the Chair, seven Republicans and six Democrats
were selected to serve on the Select Panel. Id. at 3. On December 1, 2016, Representative Blackburn emailed Ken Paxton, the Attorney General
of Texas, a letter describing evidence the Select Panel had gathered concerning PPGC. Defs.' Hr'g
Ex. 68 (Referral Letter). Representative Blackburn claimed PPGC had violated two specific laws:
-15-

Texas Penal Code § 48.02, prohibiting the purchase and sale ofhuman organs, and Texas Penal Code § 37.08, prohibiting a false report to a law enforcement officer. Id. at 1, 10.
Representative Blackburn concluded her letter, "Based on the facts outlined above and the supportingdocumentation, I urge youroffice to conduct athorough investigation into whether PPGC
violated these statutes, and, ifyou agree that such violations occurred, to take all appropriate action." Id. at 11. Representative Blackburn signed the letter with her name and title as Chairman of the
Select Panel. Id. No other Select Panel member signed the letter. See id. On December 30, 2016, the Select Panel issued a final report. See Select Panel Report. Only
Representative Blackburn's name and the seven Republican panel members' names appear in the
author block ofthe final report. Id. VII. Procedural History of this Suit A. October 2015 Termination Letter
On October 19, 2015, HHSC issued a "Notice of Termination" to each of the Provider Plaintiffs. E.g., Mot. Prelim. Inj. [#58-1] Ex.1A (Initial Notice). The Initial Notice "effect[ed] a process to end [the Provider Plaintiffs'] enrollment in the Texas Medicaid program." Id. (citing TEx. ADMIN. CODE § 371.1703(e)).3 Plaintiffs filed suit, seeking a temporary restraining order or,
alternatively, a preliminary injunction. Compi. [#1] at 19. Although the Initial Notice warned the Provider Plaintiffs their Provider Agreements would
be terminated fifteen days following receipt of a Final Notice of Termination, HHSC claimed the
The Initial Notice alleged four bases for termination: video evidence indicating (1) a policy of agreeing to procure fetal tissue "even if it means altering the timing or method of an abortion"; (2) failure to prevent conditions allowing the spread of infectious diseases; and (3) inadequate training for infection control and barrier precaution in handling fetal blood and tissue; as well as (4) prior qui tam litigation. See Initial Notice.
-16-

lawsuit was premature as it had not yet actually decided termination was in order. Defs.' Ltr. Br. [#38] (citing Initial Notice). In light of HHSC' s representation, the Court stayed the case pending
the issuance of a final termination notice. Ord. of Jan. 27, 2016 [#42]. The case remained dormant
for nearly a year. See Mot. Prelim. Inj. [#58] at 14.
B. December 2016 Termination Letter On December 20, 2016, more than a year after the Initial Notice had been issued, HHSC sent
a Final Notice of Termination (Final Notice) to each of the Provider Plaintiffs. Pis.' Hr'g Ex. 1 (Final
Notice) at 1. The Final Notice informed the Provider Plaintiffs that the Inspector General "finds you are not qualified to provide medical services in a professionally competent, safe, legal and ethical manner under. . . state and federal law pertaining to Medicaid providers." Id. at 1-2.
The Final Notice cites three sources of evidence for the Inspector General's conclusions: the
video footage obtained byCMP (CMP Video), discussions with PPGC staff, and evidenceuncovered by the Select Panel. Id. at 2. According to the Final Notice, "the unedited video footage indicates that
Planned Parenthood follows a policy of agreeing to procure fetal tissue, potentially for valuable consideration, even if it means altering the timing or method of an abortion." Id. The Final Notice
also states the Inspector General consulted with his agency's Chief Medical Officer, who reviewed the video and concluded the Plaintiff Providers' "willingness to engage in these practices violates generally accepted medical standards. . . ." Id.
Summarizing the evidence from the CMP Video, the Final Notice enumerates alleged
violations of generally accepted standards of medical practice: 1. a history of deviating from accepted standards to procure samples that meet
researcher's needs;
-17-

2. a history of permitting staff physicians to alter procedures to obtain targeted tissue samples needed for their specific outside research;
3. a willingness to convert normal pregnancies to the breech position to ensure researchers receive intact specimens;
4. an admission that "we get what we need to do to alter the standard of care where we are still maintaining patient safety, still maintaining efficiency in clinic operations, but we integrate research into it";
an admission that Planned Parenthood gets requests for "information from
our study sponsor on what data they need that is not our standard of care," and that [Planned Parenthood] provides what is needed by creating a separate research protocol or template that can include medically unnecessary testing;
and
6. a willingness to charge more than the costs incurred for procuring fetal tissue.
In addition to alleging violations of medical and ethical standards, the Final Notice indicates
the Inspector General relied on evidence from the Select Panel that Planned Parenthood "engaged in misrepresentations about [its] activity related to fetal tissue procurements.. . ." Id. at 3. While the
Final Notice primarily outlines bases for termination pertaining to PPGC, it also notes "if you are
affiliated with a provider that commits a program violation subjecting it to enrollment termination,
then the affiliate is also subject to enrollment termination." Id. The Final Notice then outlines indicia
of affiliation. Id.
With the Provider Plaintiffs' termination from Medicaid set to take place thirty days after the
receipt of the Final Notice, Plaintiffs filed an amended complaint and a new motion for a preliminary
injunction to prevent termination. Am. Compl. [#76]; Mot. Prelim. Inj. [#58]. Starting January 17,
2017, this Court held a three-day evidentiaiy hearing on Plaintiffs' motion for injunctive relief. At
the conclusion of the evidentiary hearing, the Court entered an order prohibiting the termination of

the Plaintiff Providers' enrollment in Medicaid until February 21, 2017. Ord. of Jan. 19, 2017 [#84] at 2. The Court also requested letter briefs and authorized the parties to file findings of fact and conclusions of law. Id. Both parties have done so.
Analysis
I. Legal Standard for Injunctive Relief
A preliminary injunction is an "extraordinary equitable remedy." Jackson Women 's Health
Org. v. Currier, 760 F,3d 448, 452 (5th Cir. 2014). In essence, "[t]he purpose of a preliminary injunction is to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits." Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 627
(5th Cir. 1985) (citation omitted).
The Court may issue such relief only if the movant establishes "(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest."
Jackson Women 's Health Org., 760 F.3d at 452 (citation and internal quotation omitted). Because
preliminary injunctions are extraordinary remedies, the movant must "clearly carr[y] the burden of persuasion on all four requirements." PCI Transp. Inc. v. Fort Worth & W.R.R. Co., 418 F.3d 535,
545 (5th Cir. 2005) (citation and internal quotation omitted). II. Application A. Substantial Likelihood of Success on the Merits
Plaintiffs bring this suit based on rights secured by the federal Medicaid statute and the United States Constitution. Am. Compi. [#76] ¶J 86-89. Yet, Plaintiffs seek a preliminary injunction
-19-

solely via their federal Medicaid statutory claim, not the constitutional claim. See Mot. Prelim. Inj.
[#58] at 22-32. Specifically, Plaintiffs allege a violation of 42 U.S.C. § 1396a(a)(23)(A), which
states, "[A]ny individual eligible for medical assistance may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required. . . and who undertakes to provide him such services. . . ." Plaintiffs allege HHSC violated this provision, referred to as the free-choice-of-provider requirement, because the Provider Plaintiffs are qualified and willing to undertake family planning services.
The Court briefly addresses the issue of standing before examining the merits of Plaintiffs'
Medicaid Act claim. I. Standing
The Fifth Circuit's recent opinion in Planned ParenthoodofGulfCoast v. Gee provides the guidance for a § 1983 action alleging a violation of Medicaid's free-choice-of-provider requirement.
837 F.3d 477 (5th Cir. 2016). In Gee, the Fifth Circuit affirmed the district court's holding that the Medicaid's free-choice-of-provider requirement creates a private right enforceable under § 1983 and the individual plaintiffs met their burden to show entitlement to a preliminary injunction. Id. at 487, 502. Thus, this Court looks both to the Fifth Circuit's Gee opinion as well as to the district court's opinion in the same case, Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F. Supp. 3d 604 (M.D. La. 2015).
HHSC raises the issue of standing, emphasizing the Fifth Circuit is still considering whether to grant enbanc review of the Gee opinion. Defs.' Proposed Findings [#94] at 45 n. 6. HHSC refuses to concede § 13 96a(a)(23) provides a private right of action for individuals and also argues providers do not have a right of action under the same provision. Id.
-20-

Although the Fifth Circuit may grant en banc review, the Gee opinion currently stands as the authority in the Fifth Circuit. In Gee, the Fifth Circuit "join[ed] every other circuit to have addressed
this issue to conclude that § 1 396a(a)(23) affords the Individual Plaintiffs a private right of action
under § 1983." 837 F.3d at 489. Thus, this Court, heeding the Fifth Circuit's unqualified statement
from Gee, finds the Individual Plaintiffs in this case have a right of action under § 1396a(a)(23). Moreover, just as the district court in Kliebert concluded, this Court finds if either the
Individual Plaintiffs or the Provider Plaintiffs prevail on the merits, "the same remedya permanent
injunctionwould be due and any potential action by [HHSC] would be similarly affected." 141 F. Supp. 3d at 636. The Court need not conclude all Plaintiffs have a substantial likelihood of
prevailing on the Medicaid Act claim for a preliminary injunction to issue at this time. Id. at 636. If Plaintiffs satisfy the elements needed to show a substantial likelihood of success on the Individual Plaintiffs' § 1 396a(a)(23) claim only, so long as the other factors are met, a preliminary injunction is appropriate. See id. Accordingly, because this Court finds the Individual Plaintiffs have a right of action, it need not decide whether the Provider Plaintiffs also have such a right, either on their own behalf or on the behalf of their patients. See Id.
ii. Medicaid Act Claim "Medicaid is a cooperative program between the federal government and the states in which the federal government gives financial assistance to states to provide medical services to Medicaid-eligible individuals." Gee, 837 F.3d at 489. Through Medicaid, the federal government and participating states share health care costs. Id. at 489 (citing Atkins v. Rivera, 477 U.S. 154, 156-57 (1986)). The federal government provides the states with federal funding, and "[i]n return participating States are to comply with the requirements imposed by the [Medicaid] Act and by the
-21-

Secretary of Health and Human Services." Id. (internal quotation marks omitted). In other words,
"Medicaid offers the States a bargain: Congress provided federal funds in exchange for the States' agreement to spend them in accordance with congressionally imposed conditions." Id. (quoting Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1382 (2015) (Scalia, J.) (plurality opinion) (internal quotation marks omitted)).
This case concerns the contours of Medicaid's mandated free-choice-of-provider
requirement. As the Supreme Court explained, the free-choice-of-provider requirement "gives
recipients the right to choose among a range of qualified providers, without government
interference." 0 'Bannon v. Town CourtNursing Ctr., 447 U.S. 773,785 (1980). While the Medicaid
statute does not define the term "qualified," the Fifth Circuit interpreted qualified in the Medicaid
context to mean "to be capable of performing the needed medical services in a professionally
competent, safe, legal, and ethical manner." Gee, 837 F. 3d at 495 (internal quotation marks omitted)
(quoting Planned Parenthood ofmd., Inc. v. Comm 'r ofmd. State Dep 't ofHealth, 699 F.3d 962,
978 (7th Cir. 2012)). Within the federal Medicaid scheme, states may exclude providers on the grounds provided
under § 1 396a(p)(1) of the Medicaid Act and on analogous state grounds relating to provider
qualification. Id. at 495. Therefore, while a state retains broad authority to define provider qualifications and to exclude providers who are not qualified, that authority is limited by the meaning of qualified as it relates to the ability to perform medical services. Id.
Previously, the Fifth Circuit rejected Louisiana's asserted bases for terminating PPGCtwo
qui tam claims, unspecified misrepresentations, and a pending investigationbecause they did not relate to PPGC's qualifications. Id. at 495-96. In particular, Louisiana failed to show how its
-22-

grounds for termination even related to PPGC's qualifications. Id. The Fifth Circuit implied that in order to survive a § 1396a(a)(23) challenge, a state's basis for denying a Medicaid beneficiary their chosen provider requires "factual support or linkage" between the grounds for termination and the provider's qualifications. Id. at 499.
Under Texas law, the Inspector General may terminate a provider's enrollment in Medicaid
if the Inspector General establishes by prima facie evidence the provider committed a program
violation, is affiliated with a provider that commits a program violation, or commits an act for which sanctions, damages, penalties, or liability could be assessed by the Inspector General, 1 TEx. ADMIN. CODE § 371.1703©. Prima facie evidence in this context is defined as evidence "sufficient to establish a fact or raise a presumption unless disproved."Id. § 371.1(62). Thus, in order for the Inspector General to terminate a provider, he must have evidence sufficient to establish the provider
or its affiliate committed a program violation, i.e. a violation of state law, federal law, or Texas
Medicaid policies. See Id. § 371.1703©.
Additionally, both federal and Texas law require a provider be given notice of termination,
which must describe the reasons for termination. See, e.g., 42 U.S.C. § 1320a-7 (requiring "reasonable notice" before termination); 42 U.S.C. § 405(b) (mandating the notice include a
"discussion of the evidence" and the "reason or reasons upon which [termination] is based"); 1 TEX. ADMIN. CODE § 371.1703(f) (requiring a provider be given notice of termination as part of due process); Id. 371.1703(e) (mandating notice of termination include "the basis for termination").
-23-

Consequently, the Court will not consider bases for termination not included in the notice of
termination.4
It is undisputed the Inspector General individually made the decision to terminate the PlaintiffProviders' enrollment in Medicaid and the Final Notice sets forth the bases for that decision. Hr' g Tr. Vol. 2 at 88:2-16, 18:8-14. Thus, the Court looks to see whether the Inspector General had
prima facie evidence sufficient to conclude the bases of termination set forth in the Final Notice merited finding the Plaintiff Providers were not qualified.
The Inspector General had three overarching bases for termination: (1) video evidence
indicating PPGC violated medical and ethical standards; (2) evidence PPGC misrepresented activity
related to fetal tissue procurement; and (3) evidence the other Provider Plaintiffs were affiliated with
PPGC. See Final Notice; Hr'g Tr. Vol.2 atl8:11-22:7, 31:6-35:9, 37:16-41:4.
In short, the Court finds the Inspector General did not have any factual support to conclude
the bases oftermination set forth in the Final Notice merited finding the PlaintiffProviders were not qualified. Rather, in light of the current record, it appears the termination decision had nothing to
do with the Provider Plaintiffs' qualifications. As a result, the Court finds the Individual Plaintiffs
met their burden of proof showing a substantial likelihood of success on the merits of their claim
under § 1396a(a)(23).
In its pleadings and at the evidentiary hearing, HHSC alleged bases for termination such as the Provider Plaintiffs' failure to obtain informed consent, but, as discussed above, the Court will not consider reasons for termination not included in the Final Notice andnot part of the Inspector General's termination decision. See, e.g., Defs.' Resp. [#70] at 13-14; Hr'g Tr. Vol. 1 at 129:17-132:6.
5Notwithstanding the Inspector General's sworn testimony he reviewed the Select Panel's report in making the decision to terminate the Provider Plaintiffs from Texas Medicaid, Hr'g Tr. Vol. 2 at 35:12-36:21, the Court notes the Select Panel's report was published on December 30, 2016, ten days after the Inspector General sent the Final Notice to the Provider Plaintiffs. See Select Panel Report. Additionally, the validity of the Select Panel Report remains in question as six out of the thirteen committee members declined to endorse the report. see id.
-24-

a. Video evidence indicating PPGC violated medical and ethical standards In essence, the Inspector General alleges the CMP Video demonstrates PPGC violated medical and ethical standards in three ways. First, the Inspector General concluded, based on
consultation with HHSC's Chief Medical Officer, the CMP Video shows PPGC has "a history of'
altering and "a willingness" to alter abortion procedures for research purposes. See Final Notice at 2; Hr'g Tr. Vol. 2 at 28:22-31:24. Second, the Inspector General determined the CMP Video demonstrates researchers at PPGC performed and possibly altered abortions to procure fetal tissue for their own research. See Final Notice at 2; Hr'g Tr. Vol. 2 at 31:25-33:1. And third, the Inspector General found PPGC had "a willingness" to profit from procuring fetal tissue. See Final Notice at 3; Hr'g Tr. Vol. 2 at 28:22-32:21. After reviewing the CMP Video in its entirety and considering the Inspector General's testimony, the Court finds there is no evidence in the record PPGC violated any medical or ethical standard.
As a threshold matter, the CMP Video is the only evidence the Inspector General relied upon
to conclude PPGC violated medical and ethical standards. See Hr'g Tr. Vol. 2 at 28:22-32:21
(reviewing the video clips the Inspector General relied upon to conclude PPGC violated ethical and medical standards). While the Chief Medical Officer did provide the Inspector General with his
opinion, that opinion was only offered as an analysis ofwhat the CMP Video showed, not whether
a violation occurred. Id. at 18:24-20:8.
Ultimately, the quality and strength of the evidence the CMP Video provides is suspect. While the record shows the Inspector General knew there were multiple versions of the video available on the internet, Hr'g Tr. Vol. 2 at 24:7-5, HHSC offered no evidence the Inspector General
-25-

took steps to authenticate the CMP Video he relied upon or verify it had not been altered.6 Indeed, HHSC offered no evidence to authenticate the CMP Video at all.
Despite concerns about the authenticity of the video, the Court nevertheless examines the CMP Video to evaluate whether it provided the Inspector General with prima face evidence to conclude PPGC violated medical and ethical standards. To summarize the CMP Video for those not blessed with eight free hours to watch it, the vast majority of the footage concerns conversations between Ms. Farrell and the two anti-abortion activists during the April 9, 2015 site visit. CMP Video at 7:41:15-13:57:03, 14:30:03-14:49:50. A thirty-minute section ofthe CMP Video features a tour of the Ambulatory Surgical Center (ASC), which includes conversations with the ASC Director and Ms. Farrell and a visit to a laboratory. Id. at 13:57:03-14:28:30.
Turning now to the first allegationPPGC has both a history of altering and a willingness to alter abortion procedures for research purposesthe Court finds the Inspector General had no
evidence to support this allegation. In particular, the Inspector General had no evidence any PPGC doctor altered an abortion procedure and the video he relied upon, the CMP Video, features unclear
and ambiguous dialogue, statements by Ms. Farrell who had no personal knowledge of abortion
procedures, and conversations exploring theoretical possibilities. Most significantly, the Inspector General admitted he had no evidence any PPGC doctor
altered the medical procedure of an abortion, for research purposes or for any other reason, when he
HHSC only offers evidence that other versions of the CMP Video posted on YouTube were verified as authentic by independent digital forensic professionals. Resp. [#70] at 21. As the Inspector General testified he did not rely on videos available via YouTube, the authentication of such videos is not relevant here. See Hr'g Tr. Vol. 2 at 24:7-25:25.
The Court uses the time stamps from the CMP Video to reference sections of footage. -26-

issued the Final Notice (nor did he have such evidence at the hearing). Hr'g Tr. Vol. 2 at 50:14-21, 69: 17-70: 13.
Rather, in support of his determination, the Inspector General pointed to CMP Video clips he claims show Ms. Farrell admitted PPGC doctors previously altered abortion procedures. Hr'g Tr. Vol. 2 at 29:1-31:24 (citing CMP Video at 7:59:00-8:00:43, 8:00:54-8:01:50); see also Defs.' Ltr. Br. [#92] at2-5 (citingCMP Video at 8:04:08-8:05:35, 8:11:25-8:11:53, 11:59:30-12:01:40). After reviewing these clips in the context of the full video, the Court notes the conversations in the CMP
ideo shift quickly between discussing changes to clinical processes necessary to incorporate research into a health center's operations and discussing changes to the medical procedures of abortion. Even viewing these conversations in the light most favorable to the Inspector General, the Court sees nothing more than confused and ambiguous dialogue, open to interpretation. Compare Pls.' Ltr.
Br. [#91] with Defs.' Ltr. Br. [#93] (citing the same or adjacent clips of the CMP Video for opposite
propositions). In addition to Ms. Farrell's statements captured in the CMP Video, the Inspector General
indicated he relied on the section of the CMP Video depicting the tour of the ASC. Hr'g Tr. 2 29:1-31:24 (citing CMP Video at 13:56:54-13:59:10, 14:03:11-14:03:50, 14:17:03-14:17:55, 14:20:10-14:20:56, 14:24:57-14:25:26). HHSC arguesthis sectionoftheCMP Video demonstrates
PPCG doctors altered abortion procedures to remove intact fetuses, or would be willing to do so, for
research. Plaintiffs, however, offer the uncontradicted testimony of Dr. Fine, an experienced
OB/GYN who has performed numerous abortions, that it is always clinically desirable to remove the fetus as intact as possible to minimize entries into the uterus. Hr'g Tr. Vol. 1 at 156:17-157:3.
-27-

By comparison, the Inspector General, a lawyer with no medical training, testified he relied
on the Chief Medical Officer, to determine if the CMP Video included any medically unethical conduct. Hr'g Tr. Vol. 2 at 6:19-7:19, 19:3-20:15, 58:16-25. Yet, the Chief Medical Officer, an
orthopedic surgeon who practices sports medicine, admitted he would have to defer to an OB/GYN to evaluate abortion procedures. Id. at 91:18-93:2. He also admitted that he and the Inspector
General would have a similar understanding of the abortion terms and procedures discussed in the CMP Video, the understanding of a lay person. Id.
Furthermore, the Court discounts the secretly recorded statements by Ms. Farrell, especially
as the CMP Video repeatedly shows Ms. Farrell had no personal knowledge of the medical aspects of abortion procedures or PPGC's abortion procedures. For example, Ms. Farrell simply shrugged when asked if PPGC' s doctors could convert a fetus to breech position and later indicated she would
have to ask why converting to breech would be medically necessary. CMP Video at 8:05:23-8:06:00, 11:53:53-11:54:45. Similarly, when confronted with questions from the anti-abortion activists concerning potential changes to abortion procedures, Ms. Farrell admitted she was unsure how the gestational age for a fetus is determined or how second-trimester procedures differ. E.g., CMP Video at 11:50:39-11:54:35. While Ms. Farrell previously worked as a nurse, she has never seen an abortion performed or even been in the room when an abortion was performed. Hr'g Tr. Vol. 1 at 64:2-11.
Rather, Ms. Farrell's day-to-day role involves managing clinical operations and is unrelated
to the medical procedures of abortion. Farrell Deci. ¶J 4-5. Statements from the CMP Video
demonstrate how Ms. Farrell indicated she would have to discuss changes to medical procedures with the doctors. See, e.g., CMP Video at 8:01:25-8:01:34; 8:05:16-8:05:42. Plaintiffs also

emphasize that the site visit featured in the video is only a preliminary step in a research partnership; more approval, from senior clinical staff and PPFA, would be required before any research project could be undertaken. Hr'g Tr. Vol. 1 at 161:7-12; Fine Dccl. ¶ 23. After evaluating the CMP Video, PPGC's prior research partnerships, and Ms. Farrell's experience, it appears more likely Ms. Farrell believed she was discussing changes to clinical operations rather than changes to the medical
procedures of abortion. See, e.g., Hr'gTr. Vol. 1 91:5-92:14, 97:4-15.
The theoretical nature of the conversations recorded in the CMP Video further undermines the support for the Inspector General's allegation. The last study even relating to fetal tissue ended
in 2011, Farrell Dee!. ¶ 9. During that study, PPGC abortion doctors were unaware of whether a patient consented to donate fetal tissue. PPGC clinical staff maintained separate files for a patient's clinical information and any research involvement. Hr'g Tr. Vol. 1 at 76:22-77:3. Doctors were not involved in obtaining a patient's consent for donation. Hr'g Tr. Vol. 1 at 77:21-78:13, 177:1-6; Fine Decl. ¶ 22.
Overall, the context of the CMP Video eliminates the plausibility of interpreting it to show PPGC had a history of and willingness to alter the medical aspects of abortion procedures. Viewing
the evidence holistically, the Court concludes the Inspector General had no evidence indicating PPGC ever altered an abortion procedure or would be willing to do so.
Evaluating the Inspector General's second allegationthe CMP Video demonstrates
researchers at PPGC performed abortions to procure fetal tissue, possibly altering procedures, for
their own researchthe Court finds this allegation similarly unsupported by evidence. As discussed
above, the Inspector General had no evidence any PPGC doctor ever altered an abortion procedure, for research or for any other purpose. And, again, there is no evidence any PPGC doctor ever knew
-29-

ifa patient consented to donate to research. Consequently, there is no evidence a PPGC doctor could

have altered an abortion procedure for research purposes.

But the Court also notes the Inspector General had no evidence a researcher who performs

abortions and collects the fetal tissue after the procedure for her own research purposes violates

medical or ethical standards. HHSC cites three sections of federal law as evidence PPGC violated

medical and ethical standards, but there is no indication these sections apply to the studies in which

PPGC participated. HHSC cites no other source for the medical or ethical standards PPCG allegedly

violated. See Defs.' Proposed Findings [#94] at ¶J 24-28.
Specifically, HHSC cites 45 C.F.R. § 46.204 as prohibiting researchers from performing abortions and collecting fetal tissue for their own research. Resp. [#70] at 11; Defs.' Proposed

Findings [#94] at ¶ 24. This regulation, however, imposes a condition on federal funding for research on fetuses in utero, not research performed on tissue collected after an abortion. See § 46.204;

Consolidated Appropriations Act, Pub. L. No. 111-117, § 509(a)(2), 123 Stat. 3034,3280-81(2010)

for. ("None of the funds made available in this Act may be used

. . research in which a human a

human embryo. . . [is] knowingly subjected to risk of injury or death greater than that allowed for

research on fetuses in utero under 45 C.F.R. § 46.204(b) . . . ."); see also Hr'g Tr. Vol. 3 at 39:25-40:18. Furthermore, HHSC does not contend the Inspector General had any evidence the

studies with which PPGC partnered received federal funding.

HHSC also cites 42 U.S.C. § 289g-1(c)(4) and (b)(2)(C)(I) as evidence a researcher cannot
play a role in the decision to terminate a pregnancy and must disclose if she has an interest in

research conducted with the tissue. Defs.' Proposed Findings [#94] at ¶J 25-26. Yet, again, these

two sections pertain to conditions on federal research funding. See 42 U.S.C. § 289g-1(a)(1).

-30-

Relatedly, the two prior studies PPGC engaged in received IRB approval, which means an IRB panel validated the studies' plans for managing legal and ethical issues. Hr'g Tr. Vol. 1 at 75:13-76:15. The Inspector General presented no evidence suggesting the IRB review and approval was insufficient. In conclusion, the Court finds the Inspector General had little to no evidence a doctor who performed abortion procedures and subsequently conducted research on the tissue collected violated medical or ethical standards.
Finally, the Court examines the Inspector General's third allegation for how PPGC violated
medical and ethical standardsPPGC had "a willingness" to profit from procuring fetal tissue. As an initial matter, the Court is unconvinced mere willingness, without any evidence of attempt, is enough to deprive a Medicaid beneficiary of the right to her otherwise qualified provider. See Gee,
837 F.3d at 495, 499 (warning that a state cannot simply label an exclusionary rule as a qualification). The Inspector General offered no evidence indicating PPGC ever made a profit from procuring fetal tissue for research. Specifically, the Inspector General could not point to a single payment PPGC ever received that exceeded its expenses incurred. Instead, the Inspector General again relied on the conversations between Ms. Farrell and the two anti-abortion activists from the
CMP Video. The Inspector General testified Ms. Farrell's use of the term "financially beneficial" led him to conclude PPGC was willing to procure fetal tissue for valuable consideration. Hr'g Tr.
Vol. 2 at 34:2-12. Yet, it is undisputed that it is a financial benefit to receive reimbursement for actual, reasonable expenses. Hr'g Tr. Vol. 2 at 75:1-75:10. And no PPGC employee, in the CMP Video or otherwise, represented that PPGC sought to make a profit on fetal tissue research. Id. at 74:15-25.
-31-

Therefore, to summarize, the Inspector General relied on an unauthenticated video and the
advice of an orthopedic surgeon to conclude PPGC violated medical and ethical standards related
to abortion procedures. The video in question offers, at most, theoretical conversations concerning what might be possible in a research partnership between a health care provider and a tissue procurement company. The Inspector General had no evidence any PPGC doctor ever altered an abortion procedure, for research or for any other purpose. The Inspector General also possessed no evidence any researcher ever knowingly performed or altered an abortion to procure fetal tissue for
his or her own research. And even if a doctor did collect fetal tissue for her own research after
performing an abortion, the Inspector General had no evidence such activity violates medical or ethical standards. Lastly, the Inspector General possessed no evidence PPGC ever profited, or even sought to profit, from procuring fetal tissue. Thus, the Court finds there is no factual support in the record for the conclusion PPGC violated medical and ethical standards or would be willing to do so.
b. Evidence PPGC misrepresented activity related to fetal tissue procurements
The Final Notice stated the Inspector General had evidence the Provider Plaintiffs "engaged in misrepresentations about your activity related to fetal tissue procurements, as revealed by evidence provided by the [Select Panel]." Final Notice at 3. At the evidentiary hearing, the Inspector General
testified he only considered evidence of one alleged misrepresentation in making his termination
decision: evidence a Texas Ranger was told the IRB had not yet approved a proposed research project between Baylor and PPGC. Hr'g Tr. Vol. 2 at 36:12-2 1, 51:6-14.
Under Texas law, "[a] person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to: . . [a law enforcement employee] conducting the investigation. . . ." TEx. PENAL CODE § 37.08(a).
-32-

Such an offense is a program violation. See Provider Agreement at 13 (indicating the failure to follow any applicable law is grounds for termination from Texas Medicaid).
In determining PPGC made a misrepresentation, the Inspector General relied on the letter
Representative Blackburn emailed the Attorney General of Texas. Hr'g Tr. Vol. 2 at 34:18-35:7
(discussing the Referral Letter). That letter called the Inspector General's attention to an email chain between Ms. Farrell and the Baylor researchers where the subject line included "IRB approval obtained." Id. The Referral Letter cited the email chain and a subsequent report by a Texas Ranger
issued as part of the investigations into PPCG. Referral Letter at 7-9 (discussing Defs.' Hr'g Ex. 79 (Email Chain) and Defs.' Hr'g Ex. 81 (Texas Ranger Report)). The Texas Ranger Report states,
"The Institutional Review Board had not yet given approval for the Baylor [study]." Texas Ranger Report at 4.
While the Inspector General reviewed the Referral Letter and the documents it cites, specifically the Email Chain and the Texas Ranger Report, the Inspector General conducted no
additional interviews or investigations of the alleged misrepresentation. Hr'g Tr. Vol. 2 at 52:2-10.
Yet, the Inspector General acknowledged he did not know whether the statement indicating the Baylor study had not yet obtained IRB approval was a mistake or misrepresentation. Hr'g Tr. Vol. 2 at 52:1-23. Admittedly, he had no evidence on whether the statement's speaker had the required intent to deceive.8 Id.
At the same time, evidence in the record suggests IRB approval for the Baylor study, in truth, may not have been obtained or it was at least reasonable to believe IRB approval had not been
8 The Court is also unconvinced the Inspector General had any evidence showing the statement concerning IRB approval for the Baylor study was material to a criminal investigation. See TEx. PENAL CODE § 37.08(a); Hr'g Tr. Vol. 2 at 53:5-54:6.
-33-

secured. Pls.' Hr'g Ex. 207 (July 7, 2015 Emails) at 1 (indicating IRB approval would have to specify ifthe study involved DNA). Given the lag in negotiations following the initial IRB approval in November 2014, the fact a contract had not yet been confirmed in July 2015, and the lack of clarity on the study's details, an additional IRB approval process could have been necessary. See Farrell Decl. ¶ 38 (noting the IRB process is an ongoing process requiring annual re-submission and
additional approvals when project modifications are made). Without any evidence that a single allegedly incorrect statement was a misrepresentation
rather than a mistake, the Court finds it likely the Inspector General did not have sufficient evidence to conclude PPGC made a misrepresentation.
c. Evidence the other Provider Plaintiffs were affiliated with PPGC Most importantly, to find the Provider Plaintiffs, other than PPGC, should be terminated from Texas's Medicaid program because of their affiliation with PPGC, the Inspector General needed prima facie evidence PPGC committed a violation. See 1 TEx. ADMIN. CODE § 371.1703(c). Yet, as discussed above, the Inspector General had no evidence PPGC violated any medical or ethical standards and no evidence PPGC engaged in misrepresentations. Thus, the Inspector General had no evidence the other Provider Plaintiffs could be terminated on the basis of affiliation. However, even ifthe Inspector General could establish prima facie evidence PPGC committed a violation, the Inspector General would likely be unable terminate the other Provider Plaintiffs' enrollment in Medicaid on the basis of affiliation alone. To reiterate, the Fifth Circuit confirmed states retain board authority to define provider qualifications and to exclude providers on that basis, but that authority is limited by the meaning of qualified. Gee, 837 F.3d at 495. The Fifth Circuit has expressly defined qualified in the Medicaid
-34-

context as meaning "capable of performing the needed medical services in a professionally
competent, safe, legal, and ethical manner." Id.
The Final Notice relies on indicia of affiliation such as "common identifying information,"
"individual providers working across affiliates,"9 and the Provider Plaintiffs' relationship with PPFA to find all the Provider Plaintiffs are affiliates. Thus, applying this line oflogic, the Inspector General
concluded if one Planned Parenthood provider could be terminated from Medicaid, all Planned Parenthood providers could be terminated as affiliates. Hr'g Tr. Vol. 2 at 38:23-41:3.
Yet, indicia of affiliation are likely unconnected to a provider's qualifications to provide medical services. See Id. at 492-95 (discussing the scope of a state's ability to set reasonable standards related to a provider's qualifications). Excluding a provider from Medicaid as not qualified, if the provider is otherwise legally qualified to provide the required medical services
within the state, violates Medicaid patients' statutory right to obtain medical care from the qualified
provider of their choice. Id. at 493 (citing Planned Parenthood ofmd., 699 F.3d at 968 (7th Cir. 2012) and Planned Parenthood ofAriz. Inc. v. Beadlike, 727 F.3d 960,970(9th Cir. 2013)). HHSC's expansion of a state's power to exclude qualified providrs because of organizational associations
would likely eviscerate the free-choice-of-provider requirement as an exclusionary rule unrelated to qualification. See Id. at 494 (restating the principle that allowing a state to define qualified for its own purposes would destroy a Medicaid patient's right to choose his or her own qualified provider).
Generally, Medicaid's statutory scheme suggests the "individual or entity" a state may exclude must be the same individual or entity the state determines is not qualified to provide medical
HHSC identified one doctor who worked at two different Provider Plaintiffs but there is no evidence this doctor ever worked at more than one provider at the same time. Hr'g Tr. Vol 2 at 80:7-81:17.
-35-

services. 42 U.S.C. § 1396a ("[Al State may exclude any individual or entity for purposes of
participating under the State plan under this subchapter for any reason for which the Secretary could
exclude the individual or entity from participation in a program.. . .") (emphasis added); see also Planned Parenthood Se., Inc. v. Bentley, 141 F. Supp. 3d 1207, 1223 (M.D. Ala. 2015) (similarly
holding the entity a state may exclude from Medicaid must be the same entity the state determines
is unqualified and not an affiliate).
In contrast, HHSC argues federal law permits the termination of entities based on their affiliation, citing 42 C.F.R. § 1001.1001 (a)(i)©. Defs.' Proposed Findings [#94] at ¶ 47. In relevant
part, § 1001.1001(a) provides the following:
(1) The [Office of the Inspector General] may exclude an entity if:
(i) A person with a relationship with such entity
© Has been excluded from participation in Medicaid or any of the State health care programs, and
(ii) Such person
(A)( 1) Has a direct or indirect ownership interest (or any combination thereof)
of 5 percent or more in the entity; (2) Is the owner of a whole or part interest in any mortgage, deed of trust, note or other obligation secured (in whole or in part) by the entity or any of
the property assets thereof, in which whole or part interest is equal to or
exceeds 5 percent of the total property and assets of the entity; (3) Is an officer or director of the entity, if the entity is organized as a
corporation;
(4) Is partner in the entity, if the entity is organized as a partnership; (5) Is an agent of the entity; or
-36-

(6) Is a managing employee, that is, an individual (including a general manager, business manager, administrator or director) who exercises operational or managerial control over the entity or part thereof, or directly or
indirectly conducts the day-to-day operations of the entity or part thereof, or

(B)Was formerly described in paragraph (a)(1)(ii)(A) of this section, but is no longer so described because of a transfer of ownership or control interest to an immediate family member or a member of the person's household.

(emphasis added).'°

The Court disagrees with HHSC's interpretation. Section 1001.1001(a)(i)© allows

discretionary exclusion of an entity in a narrow circumstance, when a sanctioned person has an

ownership or control interest in the entity or is an officer, director, agent, or managing employee of

the entity. In such a situation the individual is an alter ego of the entity. Here, the Provider Plaintiffs

are separate entities, with no evidence of an ownership or control interest. Consequently, the Court

holds the Inspector General would likely be unable to terminate the other Provider Plaintiffs'

enrollment in Medicaid on the basis of affiliation alone.

d.

HHSC's Course of Conduct

Plaintiffs offer evidence HHSC seeks to terminate the Provider Plaintiffs for reasons other

than their qualifications.

Most significantly,Plaintiffs emphasizehow HHSC began its effort to terminate the Provider

Plaintiffs from the state's Medicaid system in the fall of 2015 with the Initial Notice. See Initial

Notice [#58-1]. The Inspector General even admitted he had not reviewed the CMP Video before

the Initial Notice was issued. Hr'g Tr. Vol. 2 49:2-15. Only after Plaintifffiled this suit to challenge

termination did HHSC concede it was not ready to move forward with termination. Mot. Prelim. lnj.

10 HHSC misquotes 42 C.F.R. § lOO1.lOO1(a)(1)(i)©, neglecting the and emphasized above and failing to explore how the other requirements of the section apply. See Defs.' Proposed Findings [#94] at ¶ 47.
-37-

{#58] at 2. Despite being unwilling to proceed with termination, HHSC did not rescind the Initial Notice, causing this case to languish on this Court's docket for over a year. Id.
When HHSC ultimately decided to issue the Final Notice, it did so five days before Christmas, forcing Plaintiffs to renew their efforts to challenge termination in the middle of the holiday season.11 Id. Without explanation, the Final Notice abandons the majority of the bases for termination alleged in the Initial Notice and asserts new grounds for termination. Compare Initial Notice with Final Notice.
In addition, the general lack of evidence supporting the Inspector General's termination
decision, discussed above, implies HHSC seeks to terminate the Provider Plaintiffs for reasons other
than their qualifications.'2 Moreover, there is no evidence in the record of any effort to revoke the license or any other qualification needed to render medical services of any Provider Plaintiff See Gee, 837 F.3d at 499 (considering the fact Louisiana made no effort to revoke the license of PPGC
or limit its entitlement to render medical services to the general population as evidence the termination decision had nothing to do with PPGC's qualifications).
The Individual Plaintiffs have met their burden to establish a likelihood of success on the merits. The Inspector General did not have prima facie of evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the Plaintiff
Almost simultaneously with HHSC's issuance of the Final Notice, the Texas Department of State Health Services adopted new rules restricting disposal methods for fetal tissue; the new rules were published on December 9, 2016, and intended to take effect on December 18th. See Mot. Prelim. Inj., Whole Woman Health etal. v. Hellerstedt, No. 1:16-cv-0 1300 (W.D. Tex. Dec. 12,2016), ECF No. 6. The Court notes the coincidental timing of the Final Notice and the intended effective date of fetal tissue disposal rules.
12 appears the letter to the Texas Attorney General recommending further investigation ofPlanned Parenthood was sent by Representative Blackburn in her individual capacity, see Referral Letter at 11, and only half of the Select Panel is recognized in the author block of the Report. See Select Panel Report.

Providers were not qualified. The Inspector General relied on an unauthenticated video and the advice of an orthopedic surgeon to conclude PPGC violated medical and ethical standards related to abortion procedures. Likewise, the Inspector General concluded PPGC made a misrepresentation following the identification of a single allegedly incorrect statement, without any evidence the statement was a misrepresentation rather than a mistake. Simply put, the Inspector General did not have any basis to conclude PPGC warranted termination from the Medicaid program as unqualified.
Even if the Inspector General could establish by prima facie evidence PPGC was unqualified,
the Inspector General would likely be unable terminate the other Provider Plaintiffs' enrollment in Medicaid because organizational affiliation is unrelated to fitness to provide medical services. Finally, the evidence currently in the record implies HHSC was motivated by reasons other than qualifications to terminate the Provider Plaintiffs from Medicaid. For all these reasons, the Court holds the Individual Plaintiffs are substantially likely to succeed in showing HHSC violated their rights under § 1396a(a)(23).
B. Threat of Irreparable Injury
HHSC argues the Individual Plaintiffs will not be harmed because they can seek medical care through other Medicaid providers and through Texas's other health care programs such as Texas
Healthy Women. Defs.' Proposed Findings [#94] at ¶J 14-18, 58-59. HHSC's argument fails to appreciate that § 1 396a(a)(23) provides Medicaid beneficiaries the right to their chosen qualified provider, not just access to any qualified provider.
In Gee, the Fifth Circuit concluded the district court did not err in finding the individual
plaintiffs would be irreparably harmed if they were unable to receive medical care from the qualified Medicaid provider of their choice. 837 F.3d at 50001.The same reasoning applies here. Each of the
Individual Plaintiffs submitted a declaration stating her preference for continuing to receive health care -39-

from her chosen Planned Parenthood provider. The declarations collectively show the Individual Plaintiffs do not know where they would get the same kind and quality of care, each citing the nonjudgmental service the Provider Plaintiffs offer, the flexible hours, and the short wait times.
Consequently, because the Individual Plaintiffs in this case would be deprived of their legal right to the qualified health care provider of their choice, the Court finds the Individual Plaintiffs would suffer an irreparable injury if not granted a preliminary injunction. C. Threatened Injury Outweighs M!eged Harms to Texas
On one side of the harm scale, HHSC claims denying the injunction is necessary to protect
patients, and granting the injunction would allow an unqualified provider to continue "engag{ing] in behavior that violates medical and ethical standards." Resp. [#70] at 40. However, as discussed above, the current record does not include sufficient evidence to support Texas's claim PPGC violated any ethical and medical standards. There is also no claim the other Provider Plaintiffs violated any standards.
On the other side of the scale, as previously stated, the Individual Plaintiffs have proven a substantial likelihood of success on their claim terminating the Provider Plaintiffs from Medicaid violates their right to their chosen provider and would cause irreparable harm. If the termination were allowed to proceed, the Individual Plaintiffs would, at minimum, see their health care disrupted.
This Court is not convinced all of the Provider Plaintiffs' patients would be able to quickly and easily find new providers if they were prevented from seeing their chosen provider, a harm in and of
itself. Terminating the Provider Plaintiffs would eliminate thirty health centers across Texas from the Medicaid program. These centers are the only family planning specialists in the state and provide a
wide variety of services in a manner specifically designed to be convenient for vulnerable populations.

For these reasons, the Court holds injuries suffered by the Individual Plaintiffs outweigh any harm to HHSC.
D. Public Interest Favors Injunction
Finally, like the district court in Kliebert, this Court finds an injunction in this case serves the public interest by ensuring Medicaid recipients in Texas will continue to have access to medical care at their chosen providers. 141 F. Supp. 3d at 651. Because HHSC's termination of the Provider Plaintiffs' provider agreements likely violates federal law, there is no legitimate public interest in allowing Texas to complete its plaimed terminations based on the current facts. See Gee, 837 F.3d at 502. Instead, the public interest favors enforcing the Individual Plaintiffs' rights and avoiding
disrupting the health care of some of Texas's most vulnerable individuals. E. No Bond Required
Federal Rule of Civil Procedure 65 allows a court to "issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined
or restrained." A court may waive this requirement, however, at its discretion. See, e.g., Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996).
Here, HHSC requested a bond, arguing if it were enjoined from terminating the Provider
Plaintiffs' enrollment in Medicaid then it would have to continue to reimburse Planned Parenthood.
Resp. [#70] at 41-42. HHSC contends forcing the continuation of payment would be a violation of Texas's authority over the Medicaid program within its borders. Id.
Regardless of whether this Court enjoined the termination of the Provider Plaintiffs, Texas
would still have an obligation to reimburse some providers for the services the Individual Plaintiffs and other Medicaid beneficiaries require. The Court therefore finds the injunction will not harm
-41-

Texas's budget. Furthermore, as noted above, Texas does not have an interest in administering the state's Medicaid program in a maimer that violates federal law. As a result, the Court finds no reason to require Plaintiffs to provide security for the preliminary injunction.
Conclusion Because the Individual Plaintiffs have met their burden on the elements for a preliminary injunction, the Court GRANTS Plaintiffs' Motion for a Preliminary Injunction. With this injunction, the Court preserves its ability to render a meaningful decision on the merits. Accordingly,
IT IS ORDERED that Plaintiffs' Motion for a Preliminary Injunction [#58] is GRANTED;
IT IS FURTHER ORDERED that Defendants, their employees, agents, and successors, and all others acting in concert or participating with them are PRELIMiNARILY ENJOiNED from terminating the Provider Plaintiffs' Medicaid Provider Agreements. No bond is required. The preliminary injunction will remain in force until further ordered; and
IT IS FINALLY ORDERED that the parties confer and submit a proposed scheduling order specifying the time period requested for necessary discovery for the Court's consideration within THIRTY (30) DAYS from the entry of this order. The Court will then
schedule a trial date. A form scheduling order is available at
http://www.txwd.uscourts.gov/IJSDC%20Rules/StandingOrders/Austinlsched-ss.pdf. SIGNED this the 6tJ day of Februaiy 2017.
SAM SPARKS UNITED STATES DISTRICT JUDGE
-42-

 </s> Case: 17-50282 Document: 00514800434 Page: 1 Date Filed: 01/17/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 17-50282

January 17, 2019 Lyle W. Cayce

Clerk

PLANNED PARENTHOOD OF GREATER TEXAS FAMILY PLANNING AND PREVENTATIVE HEALTH SERVICES, INC; PLANNED PARENTHOOD SAN ANTONIO; PLANNED PARENTHOOD CAMERON COUNTY; PLANNED PARENTHOOD GULF COAST, INC; PLANNED PARENTHOOD SOUTH TEXAS SURGICAL CENTER; JANE DOE #1; JANE DOE #2; JANE DOE #4; JANE DOE #7; JANE DOE #9; JANE DOE #10; JANE DOE #11,

Plaintiffs - Appellees

v.

CHARLES SMITH, in his official capacity as Executive Commissioner of HHSC; SYLVIA HERNANDEZ KAUFFMAN, in her official capacity as Acting Inspector General of HHSC,

Defendants - Appellants

Appeal from the United States District Court for the Western District of Texas
Before JOLLY, JONES, and HAYNES1, Circuit Judges. EDITH H. JONES, Circuit Judge:
The Texas Health and Human Services Commission’s Office of Inspector General (“OIG”) sought to terminate the Medicaid provider agreements of Planned Parenthood affiliates throughout the state. The agency based this
1 Judge Haynes concurs in the judgment only.

Case: 17-50282 Document: 00514800434 Page: 2 Date Filed: 01/17/2019
No. 17-50282
decision largely on undercover video footage of graphic discussions with Planned Parenthood personnel concerning the prospective sale of liver, thymus, and neural tissue from fetuses aborted during the second trimester of pregnancy. The videos justified terminating the affiliates’ provider agreements, the agency contended, because they indicated noncompliance with accepted medical and ethical standards. Three Planned Parenthood affiliates (“Provider Plaintiffs”) and several Medicaid beneficiaries (“Individual Plaintiffs”) sought a preliminary injunction against the termination decision. The district court held that the Individual Plaintiffs possessed a private right of action under the “qualified-provider” provision of the Medicaid Act, 42 U.S.C. § 1396a(a)(23), and issued a preliminary injunction preventing Texas from terminating Medicaid funding to the Planned Parenthood facilities statewide. The state agency has appealed.
We are constrained to affirm the district court’s conclusion that the plaintiffs possess a private right of action, as held by this court in Planned Parenthood Gulf Coast v. Gee, 862 F.3d 445 (5th Cir. 2017) (hereafter, “Gee”) (cert denied, 139 S. Ct. 408). But Judge Jones, in a separate concurrence, urges rehearing en banc on that issue, which has divided the appellate courts. We vacate the preliminary injunction and remand for the district court to limit its review to the agency record under an arbitrary-and-capricious standard.
I. BACKGROUND A. Planned Parenthood Affiliates The Provider Plaintiffs operate health centers and provide family planning services to about 12,500 Medicaid patients and the general public. Planned Parenthood Gulf Coast (“PPGC”) runs seven health centers in the Houston area. Planned Parenthood Greater Texas (“PPGT”) and Planned
2

Case: 17-50282 Document: 00514800434 Page: 3 Date Filed: 01/17/2019
No. 17-50282
Parenthood South Texas (“PPST”)2 operate an additional 23 health centers. As affiliates of Planned Parenthood Federation of America (“PPFA”), they must adhere to various organizational standards to use the Planned Parenthood name and trademark.
Among the Provider Plaintiffs, only PPGC has sold fetal tissue for use in outside research.3 Melissa Farrell has served as PPGC’s Research Director since 2006. In this role, she provides information about PPGC’s services to outside researchers, develops budgets and contracts, and facilitates Institutional Review Board (“IRB”) submissions. Ms. Farrell has been involved in several outside studies involving fetal tissue research. In 2006, PPGC participated in a first-trimester fetal tissue study. A second study, conducted in conjunction with the University of Texas Medical Branch in Galveston (“UTMB”), ran from 2010 to 2011 and concerned first-trimester placental tissue.
To facilitate these studies, Ms. Farrell stated that she would modify certain clinical procedures and require consent from the abortion patients whose procedures yielded fetal tissue. Both studies required that fetal tissue be processed and packaged following the abortions. The UTMB study additionally required PPGC to use a sterile process to collect the placental
2 PPST is technically an umbrella organization comprising three other named plaintiffs: Planned Parenthood Cameron County, Planned Parenthood San Antonio, and Planned Parenthood South Texas Surgical Center.
3 PPGC itself does not technically provide abortions. But an affiliated entity—located in the same building as PPGC’s headquarters and called Planned Parenthood Center For Choice (“PPCFC”)—does provide abortions. PPGC’s own research department handles all of PPCFC’s research agreements because PPCFC has no separate research department or personnel of its own. The district court pretermitted the question whether PPGC and PPCFC were effectively a single organization.
3

Case: 17-50282 Document: 00514800434 Page: 4 Date Filed: 01/17/2019
No. 17-50282 tissue after the abortion. Dr. Regan Theiler, a researcher involved in the UTMB project, also performed abortions at PPGC’s facility.
Ms. Farrell communicated with Baylor College of Medicine regarding another fetal tissue donation project from 2013 through 2015. They discussed IRB approval, next steps, and draft contract terms, but no contract or budget was finalized.
B. Undercover Videos and Ensuing Investigations In 2015, the Center for Medical Progress (“CMP”), a pro-life organization, released more than eight hours of undercover videos disclosing conversations held at the PPGC headquarters. In the CMP videos, two individuals posed as representatives from a fetal tissue procurement company. They claimed to be interested in purchasing liver, thymus, and neural tissue from fetuses aborted during the second trimester of pregnancy. Ms. Farrell features prominently in the video, as she discusses the possibility of a research partnership, provides a tour of PPGC’s surgical facilities, and displays tissue samples from recently aborted fetuses.
Dr. Tram Nguyen, the director of PPGC’s abortion facility, confirmed many of Ms. Farrell’s statements.
4

Case: 17-50282 Document: 00514800434 Page: 5 Date Filed: 01/17/2019
No. 17-50282
The release of these graphic videos prompted federal and state investigations into numerous Planned Parenthood affiliates. The Harris County District Attorney, the Texas Rangers, and the Houston Police Department investigated but brought no charges. Likewise, the Texas Attorney General’s Office, the Texas Department of State Health Services, and the Texas Health and Human Services Commission conducted investigations.
Additionally, the U.S. House of Representatives formed a Select Investigative Panel (“Select Panel”) to investigate abortion providers’ medical practices involving fetal tissue procurement. Representative Marsha Blackburn of Tennessee, a Republican, was named Chair of the bipartisan Select Panel. In December 2016, Blackburn emailed the Texas Attorney General Ken Paxton evidence the Select Panel had gathered about PPGC and asked Texas to investigate possible violations of Tex. Penal Code § 48.02, which prohibits the purchase and sale of human organs, and Tex. Penal Code § 37.08, which prohibits making a false report to a law enforcement officer.
C. Termination of Medicaid Provider Agreements As participants in the Texas Medicaid program,4 the Provider Plaintiffs and each of their related health centers signed Medicaid provider agreements and agreed to comply with all Texas Medicaid policies and applicable state and federal regulations. The Provider Plaintiffs received $3.4 million from Texas Medicaid funds.5 Texas Health and Human Services Commission Office of Inspector General (“OIG” or “the agency”) oversees compliance with state
4 Texas Medicaid only pays for abortions under narrow circumstances—specifically, when a woman’s life is in danger or for victims of rape and incest.
5 This amount is a smidgen of the three affiliates’ combined revenues of approximately $57 million in 2013.
5

Case: 17-50282 Document: 00514800434 Page: 6 Date Filed: 01/17/2019
No. 17-50282
Medicaid policies and may conduct investigations and terminate Medicaid provider agreements for noncompliance.
OIG may terminate a Medicaid provider agreement when “prima facie evidence” establishes that a provider has committed a “program violation” or is “affiliated with a person who commits a program violation.” 1 Tex. Admin. Code § 371.1703(c), (c)(6)-(8). A “program violation” includes any violation of federal law, state law, or the Texas Medicaid program policies. For instance, as explained in the Texas Medicaid Provider Procedures Manual, a provider violates Texas Medicaid rules if it fails to offer health services in accordance with “accepted medical community standards.” See 1 Tex. Admin. Code § 371.1659(2).
In October 2015, OIG sent each Provider Plaintiff a Notice of Termination, stating that each was “no longer capable of performing medical services in a professionally competent, safe, and legal manner.” The Notice listed the bases for termination and stated that, unless the Provider Plaintiffs responded within 30 days, a Final Notice of Termination would issue.
Instead of responding to the Notice and pursuing administrative and state judicial avenues of relief, the Provider Plaintiffs sued in federal court to block the termination. The Individual Plaintiffs—Texas Medicaid beneficiaries who have received services from the Provider Plaintiffs—joined in this challenge. On the state agency’s motion, the district court stayed the proceedings for almost a year pending a Final Notice of Termination. OIG sent the Final Notice on December 20, 2016.
The Final Notice states that the Inspector General had determined that the Provider Plaintiffs were “not qualified to provide medical services in a professionally competent, safe, legal and ethical manner under the relevant provisions of state and federal law pertaining to Medicaid providers.” The
6

Case: 17-50282 Document: 00514800434 Page: 7 Date Filed: 01/17/2019
No. 17-50282
Final Notice bases this conclusion on the CMP videos and evidence provided by the Select Panel. The Final Notice states that the Inspector General consulted with the Chief Medical Officer, who reviewed the evidence and concluded that PPGC had violated “generally accepted medical standards, and thus [was] not qualified to provide medical services.”
The Final Notice then specifies the “numerous violations of generally accepted standards of medical practice” established by the CMP video, including “a history of deviating from accepted standards to procure samples that meet researcher[s’] needs” and “a history of permitting staff physicians to alter procedures to obtain targeted tissue samples needed for their specific outside research.” The Final Notice also states that evidence establishes that PPGC engaged in misrepresentations regarding fetal tissue procurement. The Final Notice concludes that under OIG’s regulations, affiliates of a terminated entity are also subject to termination. See 1 Tex. Admin. Code § 371.1703(c)(7).
D. Court Proceedings After reviewing the Final Notice, the plaintiffs filed an amended complaint and a new motion for a preliminary injunction. The district court conducted a three-day evidentiary hearing, during which it reviewed the CMP videos and heard testimony from medical and ethics experts on both sides. The plaintiffs offered testimony of the Provider Plaintiffs’ CEOs, Ms. Farrell, and PPGC’s Medical Director. The agency offered testimony of the Inspector General, OIG’s Chief Medical Officer, an expert in obstetrics and gynecology, and a bioethics expert. Much of the evidentiary hearing consisted of review and analysis of clips from the CMP videos. The agency focused on evidence that PPGC had violated federal regulations relating to fetal tissue research by altering abortion procedures for research purposes or allowing the researchers themselves to be
7

Case: 17-50282 Document: 00514800434 Page: 8 Date Filed: 01/17/2019
No. 17-50282
involved in performing abortions to harvest their preferred tissue samples. See 42 U.S.C. § 289g-1(c)(4) (requiring researchers to certify that they “had no part in any decisions as to the timing, method, or procedures used to terminate the pregnancy made solely for the purposes of the research”); 45 C.F.R. § 46.204(i) (for research involving pregnant women or fetuses, requiring that “[i]ndividuals engaged in the research will have no part in any decisions as to the timing, method, or procedures used to terminate a pregnancy”); 42 U.S.C. § 289g-1(b)(2)(A)(ii) (requiring researchers to certify that “no alteration of the timing, method, or procedures used to terminate the pregnancy was made solely for the purposes of obtaining the tissue”). The plain purposes of the regulations are to prevent conflicts of interest between the researcher and patients and to eliminate any temptation to place research studies above the patients’ medical needs. In addition to federal regulations, state regulations authorize sanctions for providers who fail to adhere to “accepted medical community standards.” See 1 Tex. Admin. Code § 371.1659(2).
Various of Ms. Farrell’s statements were offered as evidence that PPGC had violated or is willing to violate these standards. For example, at one point in the video, Ms. Farrell responds to questions about whether PPGC has “physicians who would be able to change the procedure a bit” for research purposes, and Ms. Farrell says, “Yep.” She then adds:
Yes. And it will depend. Obviously the change in the procedure will have to be where it’s not going to put the patient at more risk . . . prolong the procedure putting her at more risk, and altering the procedure where we leave content in the patient, which obviously we’re trying to get . . . and that’s something we’ll have to discuss, you know, with the docs . . . and see how they can do it. Because some of our[] doctors in the past have projects, and they’re collecting the specimens so they do it in a way that they get the best specimen. So I know it can happen.
8

Case: 17-50282 Document: 00514800434 Page: 9 Date Filed: 01/17/2019
No. 17-50282
Later in the video, Ms. Farrell identifies Dr. Theiler, a participant in the UTMB study, as someone who would be a good reference. She explains:
Yeah. So she knows what’s involved in modifying what we need to do to get you the specimens that are intact because she’s done it. . . . And she was doing those here. Dr. Nguyen confirmed that the PPGC abortion facility can obtain intact liver and thymus. The doctor stated, sarcastically, that while federal law (prohibiting partial birth abortions) restricts a facility from intentionally retrieving an intact fetus, PPGC can make it happen by signing a form that they did not so “intend.” Nguyen also stated that obtaining intact specimens of liver, thymus, and neural tissue depends upon the amount of cervical dilation of the patient and the patient’s pain tolerance. The doctor noted risks associated with fetal tissue procurement that PPGC is willing to take because “it is for a good cause.” The doctor acknowledged that two particular PPGC doctors can alter the abortion procedure to meet a researcher’s request. Relying on these statements, others like them, and their expert testimony, OIG sought to justify its termination decision. The plaintiffs’ live witnesses, on the other hand, denied that PPGC ever altered abortion procedures for research purposes. Ms. Farrell herself testified that, in the videos, she was actually discussing changes to clinical operations and not changes to the abortion procedures themselves. Following the hearing, the district court issued a memorandum and order granting the plaintiffs’ motion for a preliminary injunction. The district court held that the Individual Plaintiffs possessed a private right of action to challenge OIG’s termination decision. Analyzing OIG’s evidence of PPGC’s program violations, the district court credited the plaintiffs’ self-justifying explanations. The court found that even in the light most favorable to the agency, the videotaped discussions were ambiguous and open to interpretation.
9

Case: 17-50282 Document: 00514800434 Page: 10 Date Filed: 01/17/2019
No. 17-50282
The district court stated, inaccurately, that the CMP video had not been authenticated and suggested that it may have been edited.6 The district court also noted that neither the Inspector General nor the Medical director had expert knowledge concerning abortion procedures. And the court discounted Ms. Farrell’s videotaped statements because she claimed on the witness stand that she really had no personal knowledge of the medical aspects of abortion procedures and had never even been in the room when an abortion was performed.
While the court felt free to credit all of the trial testimony from the Provider Plaintiffs—none of which had been offered during the state administrative procedures—the court bound the IG solely to the administrative record and expressly refused to consider any support for termination “not included in the Final Notice and not part of the Inspector General’s termination decision.” Having thus narrowed the evidence, the court concluded that OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the Plaintiff Providers were not qualified.” The agency timely appealed.
II. STANDARD OF REVIEW “A preliminary injunction is an ‘extraordinary remedy.’” Texans for Free Enter. v. Tex. Ethics Comm’n, 732 F.3d 535, 536 (5th Cir. 2013) (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). “To be entitled to a
6 In fact, the record reflects that OIG had submitted a report from a forensic firm concluding that the video was authentic and not deceptively edited. And the plaintiffs did not identify any particular omission or addition in the video footage. Moreover, the district court also suggested that there was no evidence that any of PPGC’s research was federally funded, so the regulations relied on by OIG might be inapplicable. But the record actually establishes that the UTMB study was funded by the National Institute of Health.
10

Case: 17-50282 Document: 00514800434 Page: 11 Date Filed: 01/17/2019
No. 17-50282
preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest.” Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012) (brackets and citations omitted). The party seeking preliminary injunctive relief must clearly carry the burden of persuasion on all four elements. Id. This court “review[s] a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.” Texans for Free Enter., 732 F.3d at 537. When a court applies incorrect legal principles, it abuses its discretion. See Atchafalaya Basinkeeper v. United States Army Corps of Engineers, 894 F.3d 692, 696 (5th Cir. 2018).
III. DISCUSSION The following discussion demonstrates that the district court erred in evaluating the evidence de novo, in its peculiarly asymmetrical way, rather than under the arbitrary and capricious standard, and in applying Gee’s reasoning to its determination of a “qualified” provider in this context. For those reasons, the court erred legally and Appellees are unable to show a likelihood of success on the merits of their claim. Accordingly, it is unnecessary for us to address the other elements of preliminary injunctive relief. The Medicaid program exemplifies cooperative federalism—a partnership between federal and state agencies to provide medical services to needy individuals. The federal government shares the costs of funding the program with participating states. Atkins v. Rivera, 477 U.S. 154, 156–57, 106 S. Ct. 456, 2458–59 (1986). In exchange for federal funds, the states must
11

Case: 17-50282 Document: 00514800434 Page: 12 Date Filed: 01/17/2019
No. 17-50282
“agree[] to spend them in accordance with congressionally imposed conditions.” Armstrong v. Exceptional Child Ctr., Inc., 135 S Ct. 1378, 1382 (2015).
Under the Medicaid Act’s “qualified-provider” provision, “[a] State plan for medical assistance must . . . provide that [ ] any individual eligible for medical assistance . . . may obtain such assistance from any institution . . . qualified to perform the service or services required . . . who undertakes to provide him such services.” 42 U.S.C. § 1396a(a)(23). The Supreme Court has held that this provision “gives recipients the right to choose among a range of qualified providers, without government interference.” O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785, 100 S. Ct. 2467, 2475 (1980).
Relying on this court’s decision in Gee, the district court concluded that the “qualified-provider” provision grants the Individual Plaintiffs a right of action to challenge OIG’s termination of the Provider Plaintiffs’ Medicaid agreements. 862 F.3d 445 (5th Cir. 2017). The district court then issued a preliminary injunction against the agency after holding that the plaintiffs met the criteria for extraordinary relief.
On appeal, OIG raises two principal arguments: the plaintiffs lack a private right of action because Gee does not control this case; and the district court abused its discretion in concluding that the plaintiffs were likely to succeed on the merits of their challenge because, inter alia, the court erroneously applied de novo review in evaluating OIG’s termination decision instead of limiting its review to the agency record under the deferential arbitrary-and-capricious standard.
A. Private Right of Action In Gee, a divided panel of this court held that, under some circumstances, 42 U.S.C. § 1396a(a)(23) can afford Medicaid beneficiaries a private right of action to challenge a state’s erroneous termination of Medicaid provider
12

Case: 17-50282 Document: 00514800434 Page: 13 Date Filed: 01/17/2019
No. 17-50282
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).
13

Case: 17-50282 Document: 00514800434 Page: 14 Date Filed: 01/17/2019
No. 17-50282
cited by other circuits: “[t]o be ‘qualified’ in the relevant sense is to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” See id. at 462 (quoting Planned Parenthood of Ind., 699 F.3d at 978). The court then determined that none of LDHH’s asserted justifications for terminating the Medicaid provider agreements implicated whether the health clinics were “qualified” under this definition. See id. at 470.
OIG argues that Gee is distinguishable. Specifically, the agency suggests that Gee must be narrowly construed to prevent conflict with the Supreme Court’s decision in O’Bannon v. Town Court Nursing Center, 447 U.S. 773, 100 S. Ct. 2467 (1980). In O’Bannon, the Supreme Court held that patients lacked a private right of action under Section 1396a(a)(23) to challenge the state agency’s termination of a nursing home’s Medicaid provider agreements for failure to meet statutory and regulatory standards. The Court asserted that the Medicaid Act “clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified.” Id. at 785, 100 S. Ct at 2475. Consequently, under Section 1396a(a)(23), a patient “has no enforceable expectation of continued benefits to pay for care in an institution that has been determined to be unqualified.” Id. at 786, 100 S. Ct at 2476.
Over a cogent dissent by Judge Owen, see 862 F.3d at 475 (Owen, J., dissenting), the Gee majority distinguished O’Bannon for two reasons. First, the majority stated that O’Bannon involved a due process challenge whereas the Gee plaintiffs “assert[ed] the violation of a substantive right.” Id. at 460. Second, the majority asserted that, in O’Bannon, the state had “decertified” the nursing center, whereas in Gee, “there was no decertification decision.” Id.
14

Case: 17-50282 Document: 00514800434 Page: 15 Date Filed: 01/17/2019
No. 17-50282
at 461. “When, as here, a state terminates only a Medicaid provider agreement, independent of any action to enforce statutory and regulatory standards, O’Bannon is inapposite.” Id.
OIG focuses on the majority’s second reason for distinguishing O’Bannon—the absence of a “decertification decision” by LDHH. OIG emphasizes that LDHH had “conceded that [the clinics were] competent to provide the relevant medical services” and had not sought to decertify the health centers beyond ejecting them from the Medicaid program. Id. at 466. Thus, LDHH admitted that its termination of the clinics’ Medicaid provider agreements was “independent of any action to enforce statutory or regulatory standards.” 862 F.3d at 461. Texas, however, has not conceded that the Provider Plaintiffs are “qualified” in any way. Moreover, unlike LDHH, the OIG’s termination action is predicated on specific findings that federal and state statutory and regulatory standards have been violated. In other words, the plaintiffs in this case are doing precisely what O’Bannon disallowed— challenging the merits of a state agency’s decertification decision.
The Gee majority indeed indicated several times that the plaintiffs were not contesting the “the merits of [LDHH’s] decertification decision.” 862 F.3d at 461. But we are unpersuaded by the distinction urged by the state. The Gee majority states that “it bears repeating that LDHH has conceded that PPGC is competent to provide the relevant medical services to any and all non-Medicaid patients.” 862 F.3d at 466 (emphasis added). Although the Gee majority acknowledged that LDHH’s justifications for termination “might well relate to a provider’s qualifications,” the state had “taken no action to revoke PPGC’s
15

Case: 17-50282 Document: 00514800434 Page: 16 Date Filed: 01/17/2019
No. 17-50282
license and has not called into question any qualification that enables PPGC to offer medical care generally.” 862 F.3d at 469 (emphasis in original).8
Here, there is far stronger evidence in support of OIG’s termination decision than the justifications offered by LDHH, but there is also no evidence that the state of Texas questions the competence of the Provider Plaintiffs or that it has taken steps to prevent the Provider Plaintiffs from offering medical care to non-Medicaid patients. In the end, the plaintiffs’ claim here is roughly the same as it was in Gee: the state agency violated the “qualified provider” provision by excluding them from the Medicaid program for reasons allegedly unrelated to whether they are “capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” OIG’s attempt to distinguish Gee regarding an implied individual claim is unavailing.
This does not mean, of course, that the agency’s O’Bannon-based arguments are frivolous. Seven judges on this circuit joined a dissent from the denial of rehearing en banc focused on the conflict with O’Bannon. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 876 F.3d 699, 700 (5th Cir. 2017) (Elrod, J., dissenting from denial of rehearing en banc) (explaining that Gee “is directly at odds with the Supreme Court’s holding in O’Bannon”). But this panel lacks authority to contradict the current law of the circuit.
B. Likelihood of Success on the Merits Gee controls this appeal as to the plaintiffs’ right of action but the plaintiffs, and to an extent the district court, suggest that this case is merely Gee redux. That is incorrect. In Gee, the state agency’s purported justifications
8 See also 862 F.3d at 476–77 (Owen, J., dissenting) (characterizing the majority opinion as holding, “whenever a State terminates a provider’s Medicaid agreement, regardless of the grounds for termination, a patient may sue to contest the termination, unless the State also precludes the provider from providing services or care to all patients, not just Medicaid recipients.”).
16

Case: 17-50282 Document: 00514800434 Page: 17 Date Filed: 01/17/2019
No. 17-50282
for termination were tantamount to contending that a provider can be excluded “simply because state law says so,” 862 F.3d at 466, or that a state can “simply label[ ] any exclusionary rule as a ‘qualification’” to circumvent Section 1396a(a)(23)’s requirements. Id. at 466 (quoting Planned Parenthood of Ind., 699 F.3d at 980). OIG, however, based its termination decision on, inter alia, a record of incriminating admissions by PPGC’s own personnel that show, the agency contends, a failure to comply with federal regulations or, at the very least, a failure to comply with the ethical standards that Texas requires of Medicaid providers.
It is true that the district court purported to find “not . . . even a scintilla of evidence” impugning PPGC’s qualifications. But this occurred only after the district court credited the plaintiffs’ witnesses’ self-serving testimony about their videotaped statements, while asymmetrically refusing to consider OIG’s post-termination evidence. None of the plaintiffs’ evidence, moreover, was ever presented to the agency through the standard administrative procedures or judicial review required by the Medicaid statutes.
OIG challenges the district court’s procedures as facially inequitable. But the agency’s principal argument on appeal is that the district court abused its discretion by reviewing the agency’s decision de novo instead of under the deferential arbitrary-and-capricious standard required by this court’s decision in Abbeville General Hospital v. Ramsey, 3 F.3d 797 (5th Cir. 1993). We agree that Abbeville’s analysis applies here: a state agency’s decision terminating a Medicaid provider agreement—and the agency’s determination that the provider is not “qualified”—should be reviewed like any other administrative case—on the record that was made before the agency and under the arbitraryand-capricious standard.
17

Case: 17-50282 Document: 00514800434 Page: 18 Date Filed: 01/17/2019
No. 17-50282
However, before explaining the appropriate standard of review, it is first necessary to clarify how Gee’s analysis of the “qualified-provider” requirement applies to state agencies like OIG. We then explain why the district court had to review the agency’s decision under the more deferential standards.
1. The meaning of “qualified” The Medicaid Act itself does not define what it means for a provider to be “qualified to perform the service or services required.” 42 U.S.C. § 1396a(a)(23). But “Medicaid regulations allow states to set reasonable standards relating to the qualifications.” Gee, 862 F.3d at 462 (quoting 42 C.F.R. § 431.51(c)(2)). And Gee emphasized that “states retain broad authority to define provider qualifications and exclude providers on that basis.” Id. at 465; see also Detgen ex rel. Detgen v. Janek, 752 F.3d 627, 631 (5th Cir. 2014) (explaining that states possess “broad discretion to implement the Medicaid Act”). Nevertheless, Gee held that a state’s discretion is “circumscribed by the meaning of ‘qualified’ in this context.” 862 F.3d at 465. Rather than offer a comprehensive definition of what it means for a provider to be “‘qualified’ in this context,” Gee instead relied on a general definition used by several other circuits. See id. at 462. This definition of “qualified,” which LDHH never challenged, is “capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” See id. at 462 (quoting Planned Parenthood of Ind., 699 F.3d at 978). Absent further explanation, this broad statement could unduly circumscribe an agency’s ability to “define provider qualifications and exclude providers on that basis,” Gee, 862 F.3d at 465, and it conflicts with other Medicaid statutory provisions and with the interpretation of federal funding statutes. First, the word “capable” must be construed with reference to the limiting terms “competence,” “safety,” “legality,” and “ethics.” Being “capable
18

Case: 17-50282 Document: 00514800434 Page: 19 Date Filed: 01/17/2019
No. 17-50282
of” providing health services is not the same as being “qualified” to do so. Being “capable of” denotes merely the ability to perform a function.9 In contrast, being “qualified” means “[h]aving qualities or possessing accomplishments which fit one for a certain . . . function” and, often, it means that this fitness is “officially recognized.”10 If being merely “capable” of providing health services—say, safely—were the standard for being a “qualified” provider, a Medicaid provider could challenge its termination by showing that it could have acted safely—even if it seriously or frequently failed to do so. A state agency should not have to show that a provider is incapable of operating appropriately to hold a provider accountable under the “qualified-provider” provision. None of the cases that have relied on the general definition of “qualified” have indicated otherwise.
Similarly, courts may not interpret Gee to hold that a Medicaid provider must be considered “qualified” until the state has totally barred that provider from serving the public. A literal understanding of “capable of performing the needed medical services” could lead to that interpretation, as could several of the Gee majority’s statements in dicta. See, e.g., id. at 465 (“While as a general rule a state may terminate a provider’s Medicaid agreements for reasons bearing on that provider’s general qualification to provide medical services, we are not aware of any case that holds a state may do so while continuing to license a provider’s authorization to offer those same services to non-Medicaid patients.”). But any such requirement would hamstring state agencies like
9 See The Oxford English Dictionary (online ed. 2018), available at http://www.oed.com/view/Entry/27354?redirectedFrom=capable#eid.
10 See The Oxford English Dictionary (online ed. 2017), available at http://www.oed.com/view/Entry/155867?rskey=k2PgDU&result=1&isAdvanced=false#eid.
19

Case: 17-50282 Document: 00514800434 Page: 20 Date Filed: 01/17/2019
No. 17-50282
OIG that have no authority to decertify health care providers generally. The Provider Plaintiffs’ Texas medical licenses are regulated by the Texas Medical Board, which is a separate agency operating under separate statutory authority. See Tex. Occ. Code §§ 151.003(2), 152.001(a). And to the extent the Provider Plaintiffs or their affiliated health clinics are abortion providers, they are separately licensed by the Texas Department of State Health Services. See 25 Tex. Admin. Code § 139.1(a). Moreover, if Louisiana’s failure to revoke the health clinics’ licenses were dispositive, the Gee majority would not have needed to review LDHH’s justifications for termination at all. In sum, a state’s decision to revoke a health care provider’s license may be sufficient, but it is not necessary in order for a state to exclude a provider from the Medicaid program.
Second, requiring a state to decertify a provider entirely before jettisoning it from the Medicaid program would also conflict with the Medicaid Act’s provision of numerous grounds on which the Secretary of the Department of Health and Human Services (“HHS”) or a state can or must exclude a Medicaid provider from the program. See 42 U.S.C. §§ 1396a(p)(1) – (3), 1320a7. Indeed, the general exclusionary provision in Section 1396a(p)(1) authorizes a state to disqualify a provider for many reasons unrelated to violations that would require the provider to cease operating entirely. Suspension from another state health care program, for example, is one of many statutory bases upon which the Medicaid Act allows a state to exclude a provider. See id. § 1320a-7. The applicable regulations amplify that “a State may exclude an individual or entity . . . for any reason for which the Secretary could exclude that individual or entity from participation in Federal health care programs” and “[n]othing contained in this part should be construed to limit a State’s own authority to exclude an individual or entity from Medicaid for any reason or
20

Case: 17-50282 Document: 00514800434 Page: 21 Date Filed: 01/17/2019
No. 17-50282
period authorized by State law.” 42 C.F.R. § 1002.3(a)-(b). Gee also recognized that “[s]tates undoubtedly must be able to terminate provider agreements in cases of criminal activity, fraud and abuse, and other instances of malfeasance.” 862 F.3d at 469. The Medicaid Act’s comprehensive regulatory framework nowhere suggests that a provider may only be disqualified once it is deemed unfit to provide care for the general public.
Third, because the Medicaid program transfers funds to states on conditions, a “clear statement” of any mandatory condition is required by Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981), and OIG’s interpretation and implementation of the regulations is valid unless “plainly prohibited” by the statute. Detgen ex rel. Detgen v. Janek, 752 F.3d at 631. As noted above, states have definitional latitude, and there is no federal definition of “qualified provider.”
In light of this analysis, Gee’s holding that a state may not exclude a Medicaid provider for “reasons unrelated to that provider’s qualifications.” 862 F.3d at 462 (emphasis in original), is best read to mean that a state agency’s justifications for terminating a provider must actually implicate whether the provider operates in a “safe, legal, and ethical manner” under state and federal law. A state cannot exclude a provider “for no reason at all.” Id. at 468. Nor can a state “simply label[] any exclusionary rule a ‘qualification’” and then contend a provider is unqualified on that basis. Id. at 469 (quoting Planned Parenthood of Ind., 699 F.3d at 978). Thus, the Seventh and Ninth Circuits found violations of the “qualified-provider” requirement where states excluded providers merely because they provided abortions. As Gee explained, “a state may not exclude a provider simply based on the scope of the services it provides.” 862 F.3d at 469.
21

Case: 17-50282 Document: 00514800434 Page: 22 Date Filed: 01/17/2019
No. 17-50282
To comply with Gee, a state agency undertaking to decide that a Medicaid provider is not “qualified” should identify regulations concerning the “safe, legal, and ethical manner” of furnishing healthcare services and point to evidence of the provider’s violations. As reflected in the Gee majority’s analysis, this should be an easy standard for the state to meet in most cases. See id. at 468 (“[W]e reiterate for emphasis the unique circumstances of the instant case.”).
2. Arbitrary and Capricious Review With the governing legal standard in mind, we turn to the proper standard of judicial review. OIG contends that the district court erred procedurally by applying de novo review and allowing the plaintiffs to offer evidence outside the administrative record, because this court held in Abbeville that the “substantive adequacy and reasonableness” of a state agency’s findings in administering the Medicaid Act should be reviewed by courts “using the arbitrary and capricious standard of review.” 3 F.3d at 803–04. Although the district court did not specify the standard of judicial review, the court clearly did not defer to OIG’s findings. Instead, the court distinguished the state’s findings at every opportunity. And by considering and crediting the plaintiffs’ post-termination evidence, while expressly discrediting the state’s witnesses, the court did not limit its review to the agency record. This procedure violates Abbeville’s requirements. In Abbeville, this court held that the deferential arbitrary-and-capricious standard applies to a state agency’s rate-setting action under the Medicaid Act’s Boren Amendment. Abbeville, 3 F.3d at 802. Federal courts are accustomed to applying the “deferential” standard to the actions of federal agencies under the Administrative Procedure Act. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658, 127 S. Ct. 2518, 2529 (2007);
22

Case: 17-50282 Document: 00514800434 Page: 23 Date Filed: 01/17/2019
No. 17-50282
5 U.S.C. § 706(2)(A). Under this deferential standard, an agency’s finding may only be overturned if it fails to satisfy “minimum standards of rationality.” La. Envt’l Action Network v. U.S. E.P.A., 382 F.3d 575, 582 (5th Cir. 2004). Courts accordingly may consider only “whether the agency action ‘bears a rational relationship to the statutory purposes’ and [whether] there [is] ‘substantial evidence in the record to support it.” Id. at 582 (quoting Tex. Oil & Gas Ass’n v. U.S. E.P.A., 161 F.3d 923, 934 (5th Cir. 1998) (quoting Mercy Hosp. of Laredo v. Heckler, 777 F.2d 1028, 1031 (5th Cir.1985))). Arbitrary and capricious review is conducted on the basis of the agency record alone. Luminant Generation Co. v. U.S. EPA, 675 F.3d 917, 925 (5th Cir. 2012) (internal citation omitted).
Abbeville’s application of this deferential standard to a state agency was not novel; indeed, the court referred to the applicability of this standard as an “indisputable proposition” supported by a “litany of cases.” See Abbeville, 3 F.3d at 802 & n.6 (citing cases); see also Miss. Hosp. Ass’n, Inc. v. Heckler, 701 F.2d 511, 517 (5th Cir. 1983) (reviewing state agency’s Medicaid reimbursement plan under the arbitrary-and-capricious standard). Abbeville clarified that whether a state had complied with the Medicaid Act’s procedural requirements was subject to de novo review. Id. at 802.11 However, once a state agency complies with any required Medicaid procedures, “a presumption of regularity and [a] deferential standard attaches” to the agency’s decision. Id. at 804.
11 In Abbeville, itself, the state agency “admit[ted] . . . that it conducted no studies and made no efforts to” make the required findings. Id. at 806. For this reason, the court reversed the agency’s reimbursement plan for procedural noncompliance without applying arbitrary and capricious review. Id. at 810.
23

Case: 17-50282 Document: 00514800434 Page: 24 Date Filed: 01/17/2019
No. 17-50282
The plaintiffs argue that Abbeville is inapposite because the instant case does not actually involve the appeal of an agency decision; rather, it is “a statutory claim under the Medicaid Act giving rise to a right of action in federal court under §[ ]1983.” The plaintiffs contend that there is “no case law imposing arbitrary-and-capricious review on such a claim.” The plaintiffs are mistaken. Abbeville itself involved a Section 1983 action seeking to enforce statutory rights. See Abbeville, 3 F.3d at 801 (“The Hospitals filed a § 1983 action against the Secretary of LDHH and other agency officials, claiming their actions deprived them of rights secured under the Boren Amendment.”).12 Other courts have likewise concluded that the review of state Medicaid decisions as applied to individual plaintiffs in Section 1983 cases is governed by the arbitrary and capricious standard. See Smith v. Rasmussen, 249 F.3d 755, 760 (8th Cir. 2001); Brown v. Day, 434 F.Supp.2d 1035, 1041 (D. Kan. 2006).
Contrary to the plaintiffs’ assertion, moreover, this case plainly involves judicial review of an agency action. Here, OIG, the state agency empowered to investigate violations of the Medicaid program and terminate providers for noncompliance, decided to exclude the Provider Plaintiffs after finding evidence that they had violated various medical and ethical standards. The plaintiffs have sought judicial review of that termination decision. The plaintiffs’ challenge is functionally equivalent to any other appeal of an agency decision. To hold that the plaintiffs’ challenge could receive review in federal court without the deference due in a case brought by the Provider Plaintiffs directly would be to elevate patients’ rights beyond the complex federal-state cooperative and enforcement structure of the Medicaid statute itself. Put
12 Similarly, Miss. Hosp. Ass’n. does not cite Section 1983 but must also have been brought to enforce federal law under that provision.
24

Case: 17-50282 Document: 00514800434 Page: 25 Date Filed: 01/17/2019
No. 17-50282
otherwise, had the Secretary of HHS excluded the Provider Plaintiffs, there is no question that its decision would be subject to arbitrary and capricious review.13 And put otherwise again, the result the Individual Plaintiffs obtained goes far beyond their personal claims to be treated by the Provider Plaintiffs, as it prevents the state from denying millions in state funds to those entities; this result cannot be proportional to the litigation of an individual claim, but must arise from wholesale review of agency action toward the Providers.
The plaintiffs next contend that Gee precludes the application of arbitrary-and-capricious review in this context because Gee reviewed LDHH’s termination decision de novo. Had Gee addressed this question and applied de novo review, we might be bound to do likewise. But Gee never addressed nor was it required to or even asked to address the applicable standard of review. LDHH’s grounds for terminating the health clinics amounted to no more than unsupported suspicions of misconduct. Unlike in this case, LDHH had done no factfinding and conceded that the providers were “qualified.” Thus, although Gee did not address Abbeville, it is consistent with the prior decision’s requirements: as in Abbeville, the lack of findings rendered the LDHH decision subject to de novo review. This stands in stark contrast to the present case in which OIG made findings.
Further, not one of the circuits that have recognized a private right of action under Section 1396a(a)(23) has intimated that an arbitrary-andcapricious standard would be inappropriate. In Planned Parenthood of Indiana and Betlach, the Seventh and Ninth Circuits had no need to address
13 See 5 U.S.C. § 706(2)(A); see also Nursing Ctr. v. U.S. Dep’t of Health & Human Servs., 606 F. App’x 164, 167 (5th Cir. 2015) (reviewing whether Secretary’s decision imposing sanctions on Medicaid provider was arbitrary and capricious).
25

Case: 17-50282 Document: 00514800434 Page: 26 Date Filed: 01/17/2019
No. 17-50282
this question because they dealt only with state laws, not agency decisions, that blocked Medicaid funding for abortion providers. See 699 F.3d at 967; 727 F.3d at 962. Likewise, the underlying issue in the Sixth Circuit’s Olszewski decision was whether HHS reasonably construed the Medicaid Act’s phrase “medical devices” to include “incontinence products.” 442 F.3d at 465.14 The state agency’s determination was not properly at issue. Additionally, the Tenth Circuit’s decision in Andersen largely parrots Gee in its rejection of a state agency’s termination decision and likewise does not discuss the standard of review. 882 F.3d at 1236.
The plaintiffs next argue that the deferential standard is inappropriate because the Individual Plaintiffs, as Medicaid beneficiaries, have no administrative remedy and thus cannot develop the administrative record.15 The plaintiffs also point out that Gee held that the plaintiffs “are not subject to . . . any administrative exhaustion requirement.” Gee, 862 F.3d at 455. That is true. But the absence of an exhaustion requirement does not mean there can be no consequences for the provider’s decision to ignore the prescribed administrative process. The absence of an exhaustion requirement does not entitle plaintiffs to de novo review of OIG’s factual findings and conclusions.
Indeed, it is a feature—not a bug—of the arbitrary-and-capricious standard that it incentivizes providers to use the state administrative appeal process required by the Medicaid Act itself. See 42 U.S.C. § 1396a(a)(4);
14 The court applied Chevron deference to HHS’s construction of the act and found it reasonable. Id. at 470.
15 The Individual Plaintiffs, of course, serve here as the Providers’ litigation proxies, and the Providers had ample opportunity to develop the administrative record. If this deficiency ultimately operates to the detriment of the Individual Plaintiffs, O’Bannon recognized that Medicaid beneficiaries might well have a cause of action against their Providers for becoming decertified. 447 U.S. at 787, 100 S. Ct. at 2476.
26

Case: 17-50282 Document: 00514800434 Page: 27 Date Filed: 01/17/2019
No. 17-50282
42 C.F.R. § 1002.213 (“Before imposing an exclusion under § 1002.210, the State agency must give the individual or entity the opportunity to submit documents and written argument against the exclusion.”). It is highly doubtful that Congress intended a loophole whereby providers could use patients as litigation proxies to avoid the state’s remedial procedures and develop separate, potentially conflicting judicial standards of compliance. Requiring arbitrary and capricious review that is limited to the administrative record encourages Medicaid providers to pursue a state’s administrative-hearing procedures in order to develop the administrative record in their favor.16
In an effort to apply rather than distinguish Abbeville, the plaintiffs alternatively contend that the district court did no more than the federal court in that case and simply disregarded OIG findings that were not “bona fide” or “supported by some minimum quantum of evidence.” Abbeville, 3 F.3d at 804, 805. As explained above, however, Abbeville was reviewing LDHH’s procedural compliance with Medicaid standards, not its substantive compliance.
In any event, there is no question that the OIG here made factual findings after viewing the videos and related evidence. On the basis of the administrative record—not the post hoc justifications offered by plaintiffs’ witnesses in the district court—the OIG determined that video discussions “centered on clinic processes and tissue packaging rather than the abortion procedure itself; the video featured repeated discussion about the position of
16 In this way, requiring the deferential standard of review could ameliorate what some members of this court saw as negative consequences of the Gee decision. See Gee, 876 F.3d at 702 (Elrod, J., dissenting from denial of rehearing en banc) (“Disqualified providers can now circumvent state law because the panel majority opinion deems it unnecessary to have a final administrative determination so long as there are patients to join a lawsuit filed in federal court.”).
27

Case: 17-50282 Document: 00514800434 Page: 28 Date Filed: 01/17/2019
No. 17-50282
the fetus in the uterus, the risk to the patient, and the patient’s pain tolerance.” The OIG further concluded, based on the videos, that the Provider Plaintiffs at a minimum violated federal standards regarding fetal tissue research and standards of medical ethics by allowing doctors to alter abortion procedures to retrieve tissue for research purposes or allowing the researchers themselves to perform the procedures. The plaintiffs’ briefing with regard to the substance of the discussions contained in the videos (as opposed to their trial witnesses’ post hoc justifications) is curiously silent.
The plaintiffs finally insinuate that arbitrary and capricious review should not apply because OIG has insufficient expertise to determine the qualifications of abortion providers. On this point, the district court was also dismissive, suggesting that the Inspector General and OIG’s Chief Medical Officer were insufficiently informed regarding how to perform abortions. We reject this argument. OIG is the agency that the state of Texas has empowered to investigate and penalize Medicaid program violations. The agency is in the business of saying when providers are qualified and when they are not. That the Chief Medical Officer is a surgeon—and not himself an abortion provider— does not mean that he deserves no deference when deciding whether a provider has failed to meet the medical and ethical standards the state requires.17 It is even odder to claim that federal judges, who have no experience in the
17 Here, it seems necessary to consider the appropriate deference owed to OIG outside the abortion context. It is certainly inappropriate “to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue.” Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2321 (2016) (Thomas, J., dissenting) (quoting Stenberg v. Carhart, 530 U.S. 914, 954, 120 S. Ct. 2597, 2621 (2000) (Scalia, J., dissenting)). To bend the rules here would be particularly imprudent. Had OIG terminated the Medicaid provider agreements of any other type of health care provider, the incongruity of allowing that provider to use patient litigation proxies to avoid administrative review and receive de novo review in federal court would be obvious and unacceptable.
28

Case: 17-50282 Document: 00514800434 Page: 29 Date Filed: 01/17/2019
No. 17-50282 regulations and ethics applicable to Medicaid or medical practice, much less in regard to harvesting fetal organs for research, should claim superior expertise.
In sum, the district court erred by giving no deference to OIG’s factual findings and by accepting evidence beyond the agency record. The arbitrary and capricious standard applies to review of the record alone. 18
CONCLUSION For these reasons, we must affirm that the Individual Plaintiffs possess a private right of action. However, because the district court apparently conducted de novo review of the OIG’s decision, and its procedure was incompatible with the proper standard, the basis for its preliminary injunction cannot be sustained. Whether plaintiffs might establish a likelihood of success on the merits depends on application of the arbitrary and capricious standard to the administrative record alone. We VACATE the preliminary injunction and REMAND for the district court to limit its review to the agency record under an arbitrary-and-capricious standard.
18 A separate issue raised by Planned Parenthood is whether OIG could terminate Medicaid funding for all of the Provider Plaintiffs where only one, PPGC, has engaged in or contemplated fetal tissue research. State regulations authorizing action against “affiliates” of a provider are at issue. This issue becomes relevant and must be reconsidered by the district court if, on remand, it upholds the OIG’s termination decision against PPGC.
29

Case: 17-50282 Document: 00514800434 Page: 30 Date Filed: 01/17/2019
No. 17-50282 EDITH H. JONES, Circuit Judge, concurring:
The panel agrees that the Gee decision is binding law for our circuit at present, but I urge reconsideration en banc. Gee is inconsistent with O'Bannon, and it makes no practical sense to hold that a Medicare provider charged with misfeasance by state regulating authorities may simply bypass state procedures, which are required by the Medicaid statute, and use patients as stalking horses for federal court review of its status. That the arbitrary and capricious standard of review governs such review in federal court is a secondbest solution to the legal necessity of aligning our precedent with the Supreme Court’s holding. Finally, despite being litigated with the trappings of the abortion debate, this is fundamentally a statutory construction case, not an abortion case. Gee v. Planned Parenthood of Gulf Coast, Inc., 139 S. Ct. 408, 409 (2018) (dissenting from denial of certioriari).
Prudential and practical objections may be made to this recommendation. From a prudential standpoint, the Supreme Court denied certiorari in Gee in the past month, and this court rejected en banc reconsideration of the decision in 2017. Therefore, it would follow, the states of this circuit should be bound by judicial inertia to a plainly incorrect statutory interpretation. Pragmatically, there is no harm, no foul, because the nature of arbitrary and capricious review ought ordinarily shield the decisions of state authorities who claim evidentiary and legal support when attempting to sanction or terminate provider status. In my view, none of these rationales suffices.
Start with this evenly divided court's denial of en banc reconsideration. See Planned Parenthood of Gulf Coast v. Gee, 876 F.3d 699 (5th Cir. 2017) (Elrod, J., dissenting). At the time of that denial, the Gee decision claimed support from three other circuits, but the Eighth Circuit had rejected the
30

Case: 17-50282 Document: 00514800434 Page: 31 Date Filed: 01/17/2019
No. 17-50282 creation of a patient’s implied private right of action under Section 1396a(a)(23). Compare Planned Parenthood of 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) (all finding a private right of action), with Does v. Gillespie, 867 F.3d 1034 (8th Cir. 2017) (rejecting a private right of action). Importantly, however, this court’s even split indicated our recognition that the statutory interpretation issue posed in Gee is seriously debatable. A refusal to vote a case en banc under such circumstances is a victory of sorts for the panel decision, but it reflects no endorsement by the majority of active judges. Reconsidering the en banc decision, especially in light of the Supreme Court’s recent action, would secure a clear majority decision on this surely recurring issue.
In December 2018, the Supreme Court declined certiorari in Gee and the Tenth Circuit’s Andersen decision, both of which implied a patient’s private right of action to challenge Medicaid providers’ regulatory terminations. See Planned Parenthood of Kansas v. Andersen, 882 F.3d 1205 (2018). A conflict exists with the Eighth Circuit’s contrary holding, yet the Supreme Court left in place the circuit conflict. It is a fair bet that the Court’s avoidance indicates considerable uncertainty about the statutory issue. To restore the uniformity of federal law, the conflict must eventually be addressed. Until that happens, three different courses of action are afforded to Medicaid providers in different states. In states where no circuit court decision has approved private plaintiffs’ ability to challenge the providers’ sanctions, the providers must repair to Medicaid-required state administrative and judicial procedures. In the Tenth Circuit, providers may use private plaintiffs’ federal court suits, level of federal review undetermined, as an alternative to undergoing state-crafted
31

Case: 17-50282 Document: 00514800434 Page: 32 Date Filed: 01/17/2019
No. 17-50282 procedures. And in this circuit, providers have alternative recourse to private plaintiffs’ suits under the arbitrary and capricious standard of review. Tens of thousands of provider entities are subject to the Medicaid program’s detailed scheme of integrated federal and state regulation.
That Planned Parenthood providers achieved recognition of implied private plaintiffs’ actions should not detract from the program-wide uncertainty spawned by this circuit conflict. Equally to the point, the lower courts remain obliged to undertake careful statutory review while the issue is undecided, especially if the statute, properly construed, offers providers no alternative federal court remedy. The Court’s denial of certiorari, in other words, strengthens the propriety of this court’s reconsidering Gee en banc.
The pragmatic argument for denying en banc relief would seem to include two parts. This court’s adoption of the deferential arbitrary and capricious standard means that state authorities will ordinarily be able to defend their program termination decisions successfully in federal court, reducing the friction between federal courts and state Medicaid administrators. Thus, it would be argued, the cost of reconsidering Gee, especially if Gee was correctly decided, is higher than the cost of federal litigation pending a definitive Supreme Court decision. But there is a second wrinkle here in that whether to apply an arbitrary and capricious standard is a res nova decision by this panel made necessary by Gee. The parties strenuously disputed the standard of review. As long as a circuit split persists, other courts weighing in on the standard of review may disagree with this panel’s decision. Following the Gee case thus entails ongoing legal uncertainty.
Another pragmatic consideration, however, favors en banc reconsideration: the complexity and cost to state agencies that administer and regulate Medicaid. The program is already one of the most expensive
32

Case: 17-50282 Document: 00514800434 Page: 33 Date Filed: 01/17/2019
No. 17-50282 components of state budgets. Regulating providers comprises comprehensive federal and state medical, and ethical dictates as well as parameters for facilities that provide patient care. Authorizing lawsuits by patients to challenge their providers’ terminations burdens state agencies with redundant and intrusive oversight while the high cost of federal litigation displaces more efficient uses of state resources. As Justice Thomas also noted in his dissent from denial of cert., “the looming potential for complex litigation inevitably will dissuade state officials from making decisions that they believe to be in the public interest.” 139 S. Ct. at 409. State courts, moreover, are well suited to handle these cases based on their more intimate familiarity with the agencies, the regulation of the practice of medicine, and state administrative law—as was contemplated in the Medicaid statutes’ prescription of coordinate state responsibilities for the program. If Gee is incorrect, these practical costs will be avoided.
Having explained why there should be no impediment to our rehearing this case en banc in order to reconsider Gee, I repeat briefly the arguments that others have fulsomely developed. Gee is inconsistent with the Supreme Court’s decision in O’Bannon and in tension with numerous other provisions of the Medicaid statute.
Judge Owen, dissenting in Gee, argued that O’Bannon precluded the individual plaintiffs’ assertion of a private right of action to challenge LDHH’s termination decision. See 862 F.3d at 475 (Owen, J., dissenting). The majority opinion asserted that in O’Bannon, “the patient-plaintiffs’ injuries were alleged to stem from a deprivation of due process rights,” and “[i]n contrast, the Individual [Gee] Plaintiffs here assert the violation of a substantive right.” Id. at 460(citations omitted). Judge Owen pointed out the fundamental logical flaw with this reasoning: the majority “fail[s] to appreciate that there is no
33

Case: 17-50282 Document: 00514800434 Page: 34 Date Filed: 01/17/2019
No. 17-50282 right to due process unless there is a substantive right that may be vindicated if adequate process is accorded.” 862 F.3d at 475. The majority completely missed the dissent’s primary point that O’Bannon rejected the notion that Section 1396a(a)(23) creates any substantive liberty or property right. Id. at 476.
Judge Owen criticized the majority’s broad assertion that only a total termination of a Medicaid provider from all medical services would render the provider “unqualified” for purposes of Section 1396a(a)(23). She cited, inter alia, Section 1396a(p)(1), a provision that authorizes a state to “exclude any…entity [from Medicaid] for any reason for which the Secretary could exclude the…entity from participation in [several federal programs listed].” And she referenced multiple other reasons justifying state termination decisions under the Medicaid statute itself. Id. at 477.
Judge Owen also rebutted the majority’s claim that in O’Bannon, the state had “totally” decertified the nursing center, whereas in Gee, “there was no decertification decision.” Id. at 472. The majority concluded, “[w]hen, as here, a state terminates only a Medicaid provider agreement, independent of any action to enforce statutory and regulatory standards, O’Bannon is inapposite.” Id. The majority’s error was a “shaky” basis for distinguishing the Supreme Court precedent, according to Judge Owen, because the Court never specified that the nursing home had been totally decertified by the state. 862 F.3d at 483.
Six other judges on this circuit found Judge Owen’s dissent sufficiently persuasive to join a dissent from the denial of rehearing en banc. See Planned Parenthood of Gulf Coast, Inc. v. Gee, 876 F.3d 699, 700 (5th Cir. 2017) (Elrod, J., dissenting from denial of rehearing en banc) (explaining that Gee “is directly at odds with the Supreme Court’s holding in O’Bannon”). And Judge
34

Case: 17-50282 Document: 00514800434 Page: 35 Date Filed: 01/17/2019
No. 17-50282 Elrod’s dissent added that “the panel majority opinion’s reasoning is not only at odds with O’Bannon but also with the entirety of the statutory framework in 42 U.S.C. Section 1396a.” 876 F.3d at 701.
There are other reasons for rejecting Gee. The Eighth Circuit held in even more detail, albeit in a split decision, that Section 1396a(a)(23) confers no private right of action on patients concerning the termination of a Medicaid provider’s state agreement, because to do so would place that provision in conflict with related Medicaid provisions. See Does v. Gillespie, 867 F.3d 1034, 1041–1043 (8th Cir. 2017) (referring to the lack of an individual entitlement conferred by the provision itself and 82 related provisions governing State duties to the federal program; the availability of other means to enforce the State’s obligations under the Medicaid Act and the resulting likelihood of conflict between the implied individual remedy and a provider’s administrative and state judicial remedies; and the “aggregate” or “substantial compliance” nature of the federal government’s oversight duties). All of these structural indications, Judge Colloton explained, conflict with the requirement set out in Gonzaga v. Doe, that a plaintiff relying on federal law to underpin a Section 1983 case must show that “Congress clearly intended to create an enforceable federal right.” Does, 867 F.3d at 1039 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268 (2002)).1
In Andersen, Judge Bacharach dissented on the basis that Section 1396a(a)(23) does not “unambiguously” provide an implied private right of action, contrary to Gonzaga, because any “right” conferred on patients in that provision conflicts with the state’s broad rights under Medicaid “to
1 Judge Shepherd, concurring in the Eighth Circuit decision, echoed Judge Owen’s sentiments about O’Bannon as an independent ground for rejecting plaintiffs’ implied private right of action.
35

Case: 17-50282 Document: 00514800434 Page: 36 Date Filed: 01/17/2019
No. 17-50282 exclude an individual or entity from Medicaid for any reason or period authorized by State law.” 42 C.F.R. § 1002.3(b), interpreting 42 U.S.C. § 1396a(p)(1). Andersen, 882 F.3d 1205, 1243–45 (10th Cir. 2018). Judge Bacharach would accordingly distinguish between situations where a state attempted to prohibit all Medicaid funding to abortion providers (contrary to law) and situations like that in Andersen, and in this case, where neutral regulations were violated by the providers.
Finally, Justice Thomas and two colleagues noted the “significant implications” of the question “whether Medicaid recipients have a private right of action to challenge a State’s determination of ‘qualified’ Medicaid providers” under Section 1396a(a)(23) and Section 1983. Gee, 139 S. Ct. at 408. Justice Thomas noted the threats to state administration of Medicaid programs, not only from the financial burdens of litigation and deterrence of sound management decisions, but also because private patients’ suits “give Medicaid providers ‘an end run around the administrative exhaustion requirements in [the] state’s statutory scheme.’” Id. at 409, (quoting 876 F.3d at 702 (Elrod, J., dissenting)).
Given the still-unsettled state of the law and the absence of precedential or pragmatic disincentives to rehearing en banc, these persuasive arguments deserve the attention of our full court. I respectfully request rehearing en banc to reconsider whether Section 1396a(a)(23) creates a private right of action on behalf of Medicaid patients to challenge the termination of their providers’ contracts by the States.
36

Case: 17-50282 Document: 00514800439 Page: 1 Date Filed: 01/17/2019

LYLE W. CAYCE CLERK

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK
TEL. 504-310-7700 600 S. MAESTRI PLACE,
Suite 115 NEW ORLEANS, LA 70130

January 17, 2019

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW

Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 17-50282

Planned Parenthood of Grt TX, et al v. Charles Smith, et al USDC No. 1:15-CV-1058

--------------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.)

FED. R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc.

Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately.

Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court.

Court Appointed Counsel. Court appointed counsel is responsible for filing petition(s) for rehearing(s) (panel and/or en banc) and writ(s) of certiorari to the U.S. Supreme Court, unless relieved of your obligation by court order. If it is your intention to file a motion to withdraw as counsel, you should notify your client promptly, and advise them of the time limits for filing for rehearing and certiorari. Additionally, you MUST confirm that this information was given to your client, within the body of your motion to withdraw as counsel.

Case: 17-50282 Document: 00514800439 Page: 2 Date Filed: 01/17/2019

The judgment entered provides that plaintiffs-appellees pay to defendants-appellants the costs on appeal. A bill of cost form is available on the court's website www.ca5.uscourts.gov.

Sincerely, LYLE W. CAYCE, Clerk

Enclosure(s)
Mr. Boris Bershteyn Mr. Michael Cantrell Ms. Alice J. Clapman Mr. Roger K. Evans Mr. Adam Gustafson Ms. Heather Gebelin Hacker Mr. Lawrence John Joseph Mr. Jonathan F. Mitchell Ms. Martha Jane Perkins Ms. Jennifer Sandman Ms. Hillary Schneller Mr. Andrew Bowman Stephens Mr. Thomas Hart Watkins

By: _______________________ Debbie T. Graham, Deputy Clerk

 </s> Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 1 of 26
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:15−cv−01058−SS

APPEAL

Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. et al v. Charles Smith et al Assigned to: Judge Sam Sparks Case in other court: 5th USCA, 17−50282
5th USCA, 17−50534 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/23/2015 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.

represented by Alice Clapman Planned Parenthood Federation of America 1110 Vermont Avenue, N.W., Suite 300 Washington, DC 20005 (202) 973−4862 Email: alice.clapman@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Helene T. Krasnoff Planned Parenthood Federation of America 1110 Vermont Avenue N.W., Suite 300 Washington, DC 20005 (202) 973−4800 Fax: (202) 296−3480 Email: helene.krasnoff@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Sandman Planned Parenthood Federation of America Public Policy Litigation & Law 123 William St. 9th Floor New York, NY 10038 212−261−4584 Fax: 212−247−6811 Email: jennifer.sandman@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz Planned Parenthood Federation of America 1110 Vermont Ave., NW, Suite 300 Washingtion, DC 20005 202−973−4997 Fax: 202−296−3480 Email: richard.muniz@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans Planned Parenthood Federation of America 123 William Streek, 9th Floor New York, NY 10038 (212) 261−4708 Fax: 212/247−6811 Email: roger.evans@ppfa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 2 of 26

Plaintiff Planned Parenthood San Antonio
Plaintiff Planned Parenthood Cameron County

Maithreyi Ratakonda Planned Parenthood Federation of America 123 William Street, 9th Floor New York, NY 10038 212−261−4405 Fax: 212−247−6811 Email: mai.ratakonda@ppfa.org PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas H. Watkins Husch Blackwell LLP 111 Congress Ave. Suite 1400 Austin, TX 78701 (512) 472−5456 Fax: (512) 480−5033 Email: tom.watkins@huschblackwell.com ATTORNEY TO BE NOTICED
represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED
represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Muniz (See above for address)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 3 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood Gulf Coast, Inc.

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Planned Parenthood South Texas Surgical Center

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 4 of 26

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe I on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPST

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 2 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPST

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 5 of 26

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 3 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGT TERMINATED: 01/17/2017

represented by Alice Clapman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 4 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGC

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 6 of 26

ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 5 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGT TERMINATED: 01/17/2017

represented by Alice Clapman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 6 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGT TERMINATED: 01/17/2017

represented by Alice Clapman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 7 of 26

ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 7 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPST

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 8 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGC TERMINATED: 01/17/2017

represented by Alice Clapman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 8 of 26

TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) TERMINATED: 01/17/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) TERMINATED: 01/17/2017 PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) TERMINATED: 01/17/2017 ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 9 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGC

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 10 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGT

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 9 of 26

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 11 on behalf of herself and as a representative of a class of Texas Medicaid beneficiaries who obtain, or who seek to obtain, covered health care services as PPGT

represented by Alice Clapman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Sandman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Muniz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Roger K. Evans (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maithreyi Ratakonda (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas H. Watkins (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Chris Traylor Executive Commissioner of HHSC, in his official capacity TERMINATED: 01/17/2017

represented by Adam Arthur Biggs Office of the Attorney General 300 W. 15th Street Austin, TX 78701 512−463−2120 Fax: 512−320−0667 Email: adam.biggs@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda J. Cochran−McCall Office of the Attorney General General Litigation Division

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 10 of 26

300 W. 15th St. Austin, TX 78701 (512) 463−2120 Fax: (512) 320−0667 Email: amanda.cochran−mccall@texasattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Bowman Stephens Office of the Attorney General of Texas PO Box 12548 Capital Station Austin, TX 78711 (512) 463−2120 Fax: 512/320−0667 Email: andrew.stephens@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marc Edward Rietvelt Office of the Attorney General Capitol Station PO Box 12548 Austin, TX 78711 512−463−2120 Email: marc.rietvelt@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick K. Sweeten Texas Attorney General 300 West 15th St. − 9th Flr Austin, TX 78701 (512) 936−1307 Fax: 512/499−0712 Email: Patrick.Sweeten@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shelley Dahlberg Office of the Attorney General Capitol Station 300 W. 15th, 11 Floor Austin, TX 78701 (512) 463−2120 Fax: 512/320−0667 Email: shelley.dahlberg@TexasAttorneyGeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Stuart W. Bowen, Jr. Inspector General of HHSC, in his official capacity

represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amanda J. Cochran−McCall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew Bowman Stephens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 11 of 26

Defendant
Charles Smith Executive Commissioner of HHSC

Marc Edward Rietvelt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick K. Sweeten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shelley Dahlberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker Office of the Attorney General of Texas 209 W. 14th Street 7th Floor Austin, TX 78701 512−836−2540 Fax: 512−474−2697 Email: heather.hacker@oag.texas.gov ATTORNEY TO BE NOTICED
represented by Amanda J. Cochran−McCall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Bowman Stephens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heather Gebelin Hacker (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/23/2015
11/23/2015
11/23/2015

# Docket Text
1 COMPLAINT Complaint for Injunctive and Declaratory Relief − Class Action ( Filing fee $ 400 receipt number 0542−7980522), filed by Jane Doe 6, Jane Doe 2, Planned Parenthood San Antonio, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe 8, Jane Doe I, Planned Parenthood Cameron County, Jane Doe 4, Jane Doe 7, Jane Doe 10, Jane Doe 9, Jane Doe 3, Planned Parenthood Gulf Coast, Inc., Jane Doe 5, Planned Parenthood South Texas Surgical Center.(Watkins, Thomas) (Entered: 11/23/2015)
2 REQUEST FOR ISSUANCE OF SUMMONS by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) (Entered: 11/23/2015)
3 RULE 7 DISCLOSURE STATEMENT filed by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) (Entered: 11/23/2015)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 12 of 26

11/23/2015 11/23/2015
11/23/2015 11/23/2015
11/23/2015 11/23/2015 11/23/2015 11/23/2015 11/23/2015

4 JS44 (Civil Cover Sheet) submitted by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) (Entered: 11/23/2015)
5 MOTION for Leave to Exceed Page Limitation Plaintiffs' Motion to Exceed 10−Page Limit for Application for Temporary Restraining Order and Preliminary Injunction by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order Order granting motion to exceed page limit, # 2 Exhibit Application and Memorandum of Law in Support Thereof forTemporary Restraining Order and Preliminary Injunction, # 3 Appendix I, # 4 Appendix II, # 5 Appendix III, # 6 Appendix IV, # 7 Proposed Order order granting preliminary injunction)(Watkins, Thomas) (Entered: 11/23/2015)
Case Assigned to Judge Sam Sparks. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (afd) (Entered: 11/23/2015)
6 MOTION for Leave to Exceed Page Limitation Plaintiffs' Motion to Exceed 10−Page Limit for Motion for Class Certification by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order Order granting motion to exceed page limit, # 2 Exhibit Plaintiffs' Motion for Class Certification, # 3 Proposed Order Order Granting Motion for Class Certification)(Watkins, Thomas) (Entered: 11/23/2015)
7 MOTION for Protective Order Plaintiffs' Motion for Protective Order by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Appendix, # 2 Proposed Order)(Watkins, Thomas) (Entered: 11/23/2015)
8 MOTION for Temporary Restraining Order and Preliminary Injunction by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Proposed Order)(td) (Entered: 11/23/2015)
9 MOTION for Class Certification by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order)(td) (Entered: 11/23/2015)
10 Letters to Jennifer Sandman, Alice Chapman and Richard Muniz re: Non−Admitted Status. (afd) (Entered: 11/23/2015)
Notice of Correction: re 6 MOTION for Leave to Exceed Page Limitation Plaintiffs' Motion to Exceed 10−Page Limit for Motion for Class Certification, 5 MOTION for Leave to Exceed Page Limitation Plaintiffs' Motion to Exceed 10−Page Limit for Application for Temporary Restraining Order and Preliminary Injunction. When filing a Motion for Leave to Exceed Page Limitations in the AUSTIN Division, the document which exceeds the page limit should NOT be attached to the motion, but rather filed as a separate pleading. We will take the necessary steps to pull

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 13 of 26

11/23/2015 11/23/2015
11/23/2015
11/23/2015
11/23/2015 11/23/2015 11/30/2015 11/30/2015
11/30/2015 11/30/2015

the documents from the Motion for leave to exceed page limit and get it added to the docket record. No further action is required. Please note this information for future filing purposes. (td) (Entered: 11/23/2015)
11 ORDER GRANTING 5 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (td) (Entered: 11/23/2015)
12 MOTION to Appear Pro Hac Vice by Thomas H. Watkins (Alice Clapman) ( Filing fee $ 100 receipt number 0542−7982369) by on behalf of Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order)(Watkins, Thomas) (Entered: 11/23/2015)
13 MOTION to Appear Pro Hac Vice by Thomas H. Watkins (Jennifer Sandman) ( Filing fee $ 100 receipt number 0542−7982418) by on behalf of Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order)(Watkins, Thomas) (Entered: 11/23/2015)
14 MOTION to Appear Pro Hac Vice by Thomas H. Watkins (Richard Muniz) ( Filing fee $ 100 receipt number 0542−7982442) by on behalf of Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order)(Watkins, Thomas) (Entered: 11/23/2015)
15 Summons Issued as to Stuart W. Bowen, Jr., Chris Traylor. (afd) (Entered: 11/23/2015)
16 ORDER, Set Motion Hearing for 8 MOTION for Temporary Restraining Order and Preliminary Injunction on 12/14/2015 at 9:30 AM before Judge Sam Sparks. Signed by Judge Sam Sparks. (td) (Entered: 11/23/2015)
17 DEFICIENCY NOTICE to Thomas H. Watkins: re 12 MOTION to Appear Pro Hac Vice by Thomas H. Watkins (Alice Clapman) (Filing fee $ 100 receipt number 0542−7982369). (td) (Entered: 11/30/2015)
18 CORRECTED MOTION to Appear Pro Hac 12 MOTION to Appear Pro Hac Vice by Thomas H. Watkins (Alice Clapman) ( Filing fee $ 100 receipt number 0542−7982369), 17 Deficiency Notice by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) Modified on 11/30/2015 (td). (Entered: 11/30/2015)
19 ORDER GRANTING 13 Motion by Jennifer Sandman to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (td) (Entered: 11/30/2015)
20 ORDER GRANTING 14 Motion by Richard Muniz to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (td) (Entered: 11/30/2015)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 14 of 26

12/01/2015
12/01/2015 12/08/2015
12/08/2015
12/08/2015 12/09/2015
12/15/2015 01/11/2016 01/11/2016 01/12/2016 01/12/2016
01/12/2016 01/13/2016 01/13/2016 01/14/2016 01/14/2016 01/14/2016 01/14/2016 01/14/2016 01/21/2016 01/26/2016

21 ORDER GRANTING 18 Motion by Alice Chapman to Appear Pro Hac Vice. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (td) (Entered: 12/01/2015)
22 ORDER GRANTING 6 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (td) (Entered: 12/01/2015)
23 ORDERED that the hearing for HEARING ON TRO AND PRELIMINARY INJUNCTION on Monday, December 14, 2015 at 09:30 AM is hereby CANCELLED until further order of the court. Signed by Judge Sam Sparks. (td) (Entered: 12/08/2015)
24 Minute Entry for proceedings held before Judge Sam Sparks: Status Conference re: TRO and Preliminary Injunction Request held on 12/8/2015 (Minute entry documents are not available electronically.). (Court Reporter Joe Reynosa.)(td) (Entered: 12/08/2015)
25 Sealed Order. Signed by Judge Sam Sparks. (td) (Entered: 12/09/2015)
26 NOTICE of Attorney Appearance by Marc Edward Rietvelt on behalf of Stuart W. Bowen, Jr., Chris Traylor. Attorney Marc Edward Rietvelt added to party Stuart W. Bowen, Jr.(pty:dft), Attorney Marc Edward Rietvelt added to party Chris Traylor(pty:dft) (Rietvelt, Marc) (Entered: 12/09/2015)
27 Sealed Transcript filed (This transcript is not available electronically) (Reynosa, Joe) (Entered: 12/15/2015)
28 Motion for leave to File Sealed Document (Attachments: # 1 Proposed Order, # 2 Sealed Document) (Watkins, Thomas) (Entered: 01/11/2016)
29 Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Letter Brief, # 2 Proposed Order) (Rietvelt, Marc) (Entered: 01/11/2016)
30 DEFICIENCY NOTICE to Marc Edward Rietvelt: re 29 Motion for leave to File Sealed Document. (td) (Entered: 01/12/2016)
31 CERTIFICATE OF SERVICE by Stuart W. Bowen, Jr., Chris Traylor Corrected Certificate of Service 29 Motion for leave to File Sealed Document (Rietvelt, Marc) (Entered: 01/12/2016)
32 Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Motion, # 2 Proposed Order) (Rietvelt, Marc) (Entered: 01/12/2016)
33 ORDER GRANTING 32 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (td) (Entered: 01/14/2016)
34 Sealed Motion to Dismiss filed. (td) (Entered: 01/14/2016)
35 ORDER GRANTING 28 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (td) (Entered: 01/14/2016)
36 Sealed Letter Brief filed by Plaintiffs. (td) (Entered: 01/14/2016)
37 ORDER GRANTING 29 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (td) (Entered: 01/14/2016)
38 Sealed Letter Brief filed by Defendants. (td) (Entered: 01/14/2016)
39 PROTECTIVE ORDER. Signed by Judge Sam Sparks. (td) (Entered: 01/14/2016)
40 NOTICE Attorney Marc Rietvelt's Vacation Letter by Stuart W. Bowen, Jr., Chris Traylor (Rietvelt, Marc) (Entered: 01/21/2016)
41 Unopposed MOTION to Stay Plaintiffs' Response to Defendants' Motion to Dismiss by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 15 of 26

01/27/2016 03/09/2016 10/12/2016 10/14/2016 10/14/2016 10/14/2016
10/24/2016 10/25/2016 10/26/2016 12/20/2016 12/20/2016 12/22/2016 12/22/2016 12/30/2016
01/03/2017

and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order)(Sandman, Jennifer) (Entered: 01/26/2016)
42 ORDER GRANTING 41 Motion to Stay Plaintiffs' Response to Defendants' Motion to Dismiss. Signed by Judge Sam Sparks. (td) (Entered: 01/27/2016)
43 NOTICE of Change of Address by Jennifer Sandman (Sandman, Jennifer) (Entered: 03/09/2016)
44 ORDER, (Status Conference/All Pending Matters set for 10/26/2016 at 9:00 AM before Judge Sam Sparks). Signed by Judge Sam Sparks. (td) (Entered: 10/13/2016)
45 ***DEFICIENT PLEADING − should have been filed traditionally*** ATTACHMENT Transcript Order Form by Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) Modified on 10/14/2016 (td). (Entered: 10/14/2016)
46 DEFICIENCY NOTICE to Thomas H. Watkins: re 45 Attachment. (td) (Entered: 10/14/2016)
47 MOTION for Leave to File Request for Hearing Transcript by Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Watkins, Thomas) (Entered: 10/14/2016)
48 Unopposed MOTION For Leave to Request a Copy of Sealed Hearing Transcript by Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Exhibit, # 2 Proposed Order, # 3 Exhibit)(Watkins, Thomas) (Entered: 10/24/2016)
49 ORDER GRANTING 48 Unopposed Motion for Leave to Request a Copy of Sealed Hearing Transcript. Signed by Judge Sam Sparks. (td) (Entered: 10/25/2016)
50 Minute Entry for proceedings held before Judge Sam Sparks: Status Conference held on 10/26/2016 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(td) (Entered: 10/26/2016)
51 NOTICE of Attorney Appearance by Adam Arthur Biggs on behalf of Stuart W. Bowen, Jr., Chris Traylor. Attorney Adam Arthur Biggs added to party Stuart W. Bowen, Jr.(pty:dft), Attorney Adam Arthur Biggs added to party Chris Traylor(pty:dft) (Biggs, Adam) (Entered: 12/20/2016)
52 NOTICE of Attorney Appearance by Andrew Bowman Stephens on behalf of Stuart W. Bowen, Jr., Chris Traylor (Stephens, Andrew) (Entered: 12/20/2016)
53 ORDER, (Hearing set for 1/17/2017 at 9:00 AM before Judge Sam Sparks). Signed by Judge Sam Sparks. (td) (Entered: 12/22/2016)
54 Minute Entry for proceedings held before Judge Sam Sparks: Status Conference held on 12/22/2016 (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(td) (Entered: 12/27/2016)
55 MOTION for Leave to Exceed Page Limitation Plaintiffs' Motion to Exceed 10−Page Limit for Application for Temporary Restraining Order and Preliminary Injunction by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order Order granting Motion to Exceed Page Limit, # 2 Exhibit Application and Memorandum of Law in Support Thereof forTemporary Restraining Order and Preliminary Injunction, # 3 Appendix I, # 4 Appendix II, # 5 Appendix III, # 6 Appendix IV, # 7 Proposed Order Proposed Order order granting preliminary injunction)(Sandman, Jennifer) (Entered: 12/30/2016)
56 NOTICE by Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 16 of 26

01/04/2017 01/04/2017
01/04/2017
01/04/2017 01/05/2017 01/06/2017 01/06/2017
01/06/2017 01/06/2017 01/11/2017 01/12/2017 01/12/2017

Services, Inc. (Watkins, Thomas) (Entered: 01/03/2017)
57 ORDER GRANTING 55 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (jf) (Entered: 01/04/2017)
58 MOTION for Preliminary Injunction, MOTION for Temporary Restraining Order by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Appendix I, # 2 Appendix II, # 3 Appendix III, # 4 Appendix IV, # 5 Proposed Order)(jf) (Entered: 01/04/2017)
59 MOTION to Appear Pro Hac Vice by Jennifer Sandman (Maithreyi Ratakonda) ( Filing fee $ 100 receipt number 0542−9171413) by on behalf of Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order)(Sandman, Jennifer) (Entered: 01/04/2017)
60 MOTION for Disclosure of Abortion Related Information by Stuart W. Bowen, Jr., Chris Traylor. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 01/04/2017)
61 MOTION for Protective Order by Stuart W. Bowen, Jr., Chris Traylor. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Biggs, Adam) (Entered: 01/05/2017)
62 ORDER GRANTING 59 Motion to Appear Pro Hac Vice for Maithreyi Ratakonda. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (jf) (Entered: 01/06/2017)
63 MOTION to Amend Complaint by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Exhibit Exhibit A − First Amended Complaint, # 2 Proposed Order)(Sandman, Jennifer) (Entered: 01/06/2017)
64 ORDER GRANTING 60 JOINT MOTION FOR AN ORDER AUTHORIZING THE DISCLOSURE AND USE OF ABORTION−RELATED DOCUMENTS, INFORMATION, AND DATA. Signed by Judge Sam Sparks. (td) (Entered: 01/09/2017)
65 CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by Judge Sam Sparks. (td) (Entered: 01/09/2017)
66 NOTICE of Attorney Appearance by Patrick K. Sweeten on behalf of Stuart W. Bowen, Jr., Chris Traylor. Attorney Patrick K. Sweeten added to party Stuart W. Bowen, Jr.(pty:dft), Attorney Patrick K. Sweeten added to party Chris Traylor(pty:dft) (Sweeten, Patrick) (Entered: 01/11/2017)
67 Minute Entry for proceedings held before Judge Sam Sparks: Conference Call in Chambers held on 1/12/2017 Re: Upcoming Preliminary Injunction Hearing (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(td) (Entered: 01/12/2017)
68 MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction by Stuart W. Bowen, Jr., Chris Traylor. (Attachments: # 1 Brief Resp in Opp to Pls' PI, # 2 Appendix Part 1, # 3 Appendix Part 2, # 4 Appendix Part 3, # 5 Appendix Part 4, # 6 Appendix Part 5, # 7 Appendix Part 6)(Stephens, Andrew) (Entered: 01/12/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 17 of 26

01/12/2017
01/13/2017 01/13/2017 01/13/2017 01/14/2017 01/17/2017 01/17/2017
01/17/2017 01/17/2017

70 Response in Opposition to Motion, filed by Stuart W. Bowen, Jr., Chris Traylor, re 58 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by Plaintiff Jane Doe 8, Plaintiff Jane Doe 2, Plaintiff Jane Doe 9, Plaintiff Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Plaintiff Jane Doe 7, Plaintiff Jane Doe 6, Plaintiff Jane Doe 3, Plaintiff Planned Parenthood Gulf Coast, Inc., Plaintiff Jane Doe 4, Plaintiff Planned Parenthood Cameron County, Plaintiff Jane Doe 10, Plaintiff Jane Doe 5, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Jane Doe I, Plaintiff Planned Parenthood San Antonio (Attachments: # 1 Appendix Part 1, # 2 Appendix Part 2, # 3 Appendix Part 3, # 4 Appendix Part 4, # 5 Appendix Part 5, # 6 Appendix Part 6)(td) (Additional attachment(s) added on 2/21/2017: # 7 Sealed Document Appendix 1, # 8 Sealed Document Appendix 2) (jf). (Entered: 01/13/2017)
69 DEFICIENCY NOTICE to Andrew Bowman Stephens: re 68 MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction. (td) (Entered: 01/13/2017)
Notice of Correction: re 68 MOTION for Leave to Exceed Page Limitation for Response to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction. When filing a Motion for Leave to Exceed Page Limitations in the AUSTIN Division, the document which exceeds the page limit should NOT be attached to the motion, but rather filed as a separate pleading. We will take the necessary steps to pull the document from the Motion for leave to exceed page limit and get it added to the docket record. No further action is required. Please note this information for future filing purposes. (td) (Entered: 01/13/2017)
71 Motion for leave to File Sealed Document (Attachments: # 1 Appendix Part 1, # 2 Appendix Part 2, # 3 Proposed Order) (Stephens, Andrew) (Entered: 01/13/2017)
72 NOTICE of Filing by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. (Attachments: # 1 Exhibit 1−Decl of John Robertson, # 2 Exhibit 1A− John Robertson CV, # 3 Exhibit 2− Suppl. Decl. of Paul Fine)(Sandman, Jennifer) (Entered: 01/14/2017)
73 MOTION to Appear Pro Hac Vice by Roger Evans on behalf of Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (td) (Entered: 01/17/2017)
74 ORDER GRANTING 73 Motion to Appear Pro Hac Vice for Attorney Roger K. Evans for Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (td) (Entered: 01/17/2017)
75 ORDER GRANTING 63 Motion for Leave to File Amended Complaint. FURTHER ORDERED that Defendants' Motion to Dismiss # 34 is DISMISSED WITHOUT PREJUDICE to refiling because one of the alleged grounds for relief, lack of ripeness, is MOOT and Plaintiffs filed an Amended Complaint. Signed by Judge Sam Sparks. (td) Modified on 1/18/2017 to add text (td). (Entered: 01/17/2017)
76 AMENDED COMPLAINT against Stuart W. Bowen, Jr., Charles Smith amending 1 Complaint, filed by Jane Doe 2, Planned Parenthood San Antonio, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe I, Planned Parenthood Cameron County, Jane Doe 4, Jane Doe 7, Jane Doe 10, Jane Doe 9, Planned Parenthood Gulf Coast, Inc., Planned Parenthood South Texas Surgical Center, Jane Doe 11.(td) (Entered: 01/17/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 18 of 26

01/17/2017
01/18/2017 01/18/2017 01/18/2017 01/18/2017
01/18/2017
01/19/2017 01/19/2017 01/19/2017
01/19/2017

77 Minute Entry for proceedings held before Judge Sam Sparks: Motion Hearing held on 1/17/2017 re 58 MOTION for Preliminary Injunction filed by Jane Doe 8, Jane Doe 2, Jane Doe 9, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe 7, Jane Doe 6, Jane Doe 3, Planned Parenthood Gulf Coast, Inc., Jane Doe 4, Planned Parenthood Cameron County, Jane Doe 10, Jane Doe 5, Planned Parenthood South Texas Surgical Center, Jane Doe I, Planned Parenthood San Antonio (Minute entry documents are not available electronically.), Motion Hearing continued to 1/18/2017 09:00 AM before Judge Sam Sparks. (Court Reporter Lily Reznik.)(td) (Entered: 01/18/2017)
78 ORDER GRANTING 68 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (td) (Entered: 01/18/2017)
79 MOTION for Leave to File Jane Doe Identities Under Seal by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order Proposed Order Granting Mot to File Under Seal)(Sandman, Jennifer) (Entered: 01/18/2017)
80 ORDER GRANTING 79 Motion for Leave to File Jane Doe Identities Under Seal. Signed by Judge Sam Sparks. (td) (Entered: 01/18/2017)
81 NOTICE of Filing by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. (Attachments: # 1 Declaration of Melissa Farrell, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K)(Sandman, Jennifer) (Entered: 01/18/2017)
82 Minute Entry for proceedings held before Judge Sam Sparks: Motion Hearing held on 1/18/2017 re 58 MOTION for Preliminary Injunction filed by Jane Doe 8, Jane Doe 2, Jane Doe 9, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe 7, Jane Doe 6, Jane Doe 3, Planned Parenthood Gulf Coast, Inc., Jane Doe 4, Planned Parenthood Cameron County, Jane Doe 10, Jane Doe 5, Planned Parenthood South Texas Surgical Center, Jane Doe I, Planned Parenthood San Antonio (Minute entry documents are not available electronically.), Set Motion Hearing for 58 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order (Motion Hearing continued to 1/19/2017 09:00 AM before Judge Sam Sparks). (Court Reporter Lily Reznik.)(td) (Entered: 01/19/2017)
83 Miscellaneous Objection − Plaintiffs' Objection to the Declaration of David Daleiden by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) (Entered: 01/19/2017)
84 ORDER. Signed by Judge Sam Sparks. (jf) (Entered: 01/19/2017)
85 Minute Entry for proceedings held before Judge Sam Sparks: Motion Hearing held on 1/19/2017 re 58 MOTION for Preliminary Injunction filed by Jane Doe 8, Jane Doe 2, Jane Doe 9, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe 7, Jane Doe 6, Jane Doe 3, Planned Parenthood Gulf Coast, Inc., Jane Doe 4, Planned Parenthood Cameron County, Jane Doe 10, Jane Doe 5, Planned Parenthood South Texas Surgical Center, Jane Doe I, Planned Parenthood San Antonio (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(td) (Entered: 01/20/2017)
86 Witness List for Preliminary Injunction Hearing held on January 17, 2017. (td) (Entered: 01/20/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 19 of 26

01/19/2017
01/23/2017 01/24/2017
01/25/2017 01/26/2017 01/26/2017 01/30/2017 01/30/2017 01/31/2017 02/06/2017
02/14/2017
02/16/2017

87 Exhibit List for Preliminary Injunction Hearing held on January 17, 2017. (td) (Additional attachment(s) added on 2/22/2017: # 1 Plaintiff Exhibits Part 1, # 2 Plaintiff Exhibits Part 2, # 3 Plaintiff Exhibits Part 3, # 4 Plaintiff Exhibits Part 4, # 6 Plaintiff Exhibits Part 5, # 7 Plaintiff Exhibits Part 6, # 8 Plaintiff Exhibits Part 7, # 9 Defendant Exhibits Part 1, # 10 Defendant Exhibits Part 2, # 11 Defendant Exhibits Part 3, # 12 Defendant Exhibits Part 4, # 13 Defendant Exhibits Part 5, # 14 Defendant Exhibits Part 6, # 15 Defendant Exhibits Part 7, # 16 Defendant Exhibits Part 8, # 17 Defendant Exhibits Part 9, # 18 Defendant Exhibits Part 10, # 19 Defendant Exhibits Part 11), Defendant Exhibits 194A−194L are video clips on a thumb drive. These exhibits are not compatible with system requirements and are unable to be uploaded; they will be retained in the Clerks Office thru the pendency of this action (ml). (Attachment 15 replaced on 5/22/2017) (td). (Additional attachment(s) added on 5/22/2017: Exhibits Sealed per Order 151 − #(20) Sealed Exhibit(s) DX68, DX79 & DX81) (td). (Entered: 01/20/2017)
88 Miscellaneous Objection to Plaintiffs' Declarations by Stuart W. Bowen, Jr., Charles Smith. (Stephens, Andrew) (Entered: 01/23/2017)
89 MOTION for Extension of Time to File by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order Proposed Order Granting Motion for Extension of Time)(Sandman, Jennifer) (Entered: 01/24/2017)
90 ORDER DENYING 89 Motion for Extension of Time to File Proposed Findings of Fact and Conclusions of Law. Signed by Judge Sam Sparks. (td) (Entered: 01/25/2017)
91 BRIEF by Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) (Entered: 01/26/2017)
92 BRIEF by Stuart W. Bowen, Jr.. (Biggs, Adam) (Entered: 01/26/2017)
93 Proposed Findings of Fact by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Sandman, Jennifer) (Entered: 01/30/2017)
94 Proposed Findings of Fact by Stuart W. Bowen, Jr.. (Biggs, Adam) (Entered: 01/30/2017)
95 Second MOTION to Dismiss by Stuart W. Bowen, Jr.. (Biggs, Adam) (Entered: 01/31/2017)
96 UNSEALED PER ORDER # 151 Transcript filed of Proceedings held on 12/22/2016, Proceedings Transcribed: Telephonic Status Conference. Court Reporter/Transcriber: Lily I. Reznik, Telephone number 512−391−8792 or Lily_Reznik@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal(This transcript is not available electronically) (Reznik, Lily) Modified on 6/2/2017 to add text (td). (Entered: 02/06/2017)
97 Response in Opposition to Motion, filed by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., re 95 Second MOTION to Dismiss filed by Defendant Stuart W. Bowen, Jr. (Sandman, Jennifer) (Entered: 02/14/2017)
98 ORDER Modifying Style. Signed by Judge Sam Sparks. (td) (Entered: 02/16/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 20 of 26

02/17/2017 02/21/2017 02/21/2017 02/28/2017 02/28/2017
03/01/2017
03/01/2017 03/08/2017
03/09/2017 03/09/2017
03/13/2017 03/14/2017 03/14/2017 03/14/2017

99 REPLY to Response to Motion, filed by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor, re 95 Second MOTION to Dismiss filed by Defendant Stuart W. Bowen, Jr. (Stephens, Andrew) (Entered: 02/17/2017)
100 ORDER GRANTING 58 Motion for Preliminary Injunction; GRANTING 71 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (jf) (Entered: 02/21/2017)
101 ORDER of JUDGMENT re 100 Order on Motion for Preliminary Injunction, Order on Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (jf) (Entered: 02/21/2017)
102 MOTION for Leave to Exceed Page Limitation for Response to Motion for Class Certification by Stuart W. Bowen, Jr., Charles Smith. (Attachments: # 1 Proposed Order, # 2 Exhibit)(Stephens, Andrew) (Entered: 02/28/2017)
103 Response in Opposition to Motion, filed by Stuart W. Bowen, Jr., Charles Smith, re 9 MOTION to Certify Class filed by Plaintiff Jane Doe 8, Plaintiff Jane Doe 2, Plaintiff Jane Doe 9, Plaintiff Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Plaintiff Jane Doe 7, Plaintiff Jane Doe 6, Plaintiff Jane Doe 3, Plaintiff Planned Parenthood Gulf Coast, Inc., Plaintiff Jane Doe 4, Plaintiff Planned Parenthood Cameron County, Plaintiff Jane Doe 10, Plaintiff Jane Doe 5, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Jane Doe I, Plaintiff Planned Parenthood San Antonio. (td) (Entered: 03/01/2017)
Notice of Correction: re 102 MOTION for Leave to Exceed Page Limitation for Response to Motion for Class Certification. When filing a Motion for Leave to Exceed Page Limitations in the AUSTIN Division, the document which exceeds the page limit should NOT be attached to the motion, but rather filed as a separate pleading. We will take the necessary steps to pull the documents from the Motion for leave to exceed page limit and get it added to the docket record. No further action is required. Please note this information for future filing purposes. (td) (Entered: 03/01/2017)
104 ORDER GRANTING 102 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (td) (Entered: 03/01/2017)
105 MOTION to Withdraw 9 MOTION to Certify Class by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Sandman, Jennifer) (Entered: 03/08/2017)
106 DEFICIENCY NOTICE to Jennifer Sandman: re 105 MOTION to Withdraw 9 MOTION to Certify Class . (td) (Entered: 03/09/2017)
107 ATTACHMENT Proposed Order to 105 MOTION to Withdraw 9 MOTION to Certify Class by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Sandman, Jennifer) (Entered: 03/09/2017)
108 Opposed MOTION for More Definite Statement by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 03/13/2017)
109 ATTACHMENT Declaration to 108 Opposed MOTION for More Definite Statement by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Stephens, Andrew) (Entered: 03/14/2017)
110 Pro Hac Vice Fee Paid by Roger K. Evans; Filing fee $ 100, receipt number 100029760. (jf) (Entered: 03/14/2017)
111 RESPONSE to Motion, filed by Stuart W. Bowen, Jr., Charles Smith, re 105 MOTION to Withdraw 9 MOTION to Certify Class filed by Plaintiff Jane Doe 2, Plaintiff Jane Doe 9, Plaintiff Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Plaintiff Jane Doe 7, Plaintiff Jane Doe 11, Plaintiff

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 21 of 26

03/15/2017 03/15/2017 03/21/2017 03/21/2017
03/23/2017
03/23/2017 03/24/2017 03/24/2017 03/30/2017 03/30/2017

Jane Doe 3, Plaintiff Planned Parenthood Gulf Coast, Inc., Plaintiff Jane Doe 4, Plaintiff Planned Parenthood Cameron County, Plaintiff Jane Doe 10, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Jane Doe I, Plaintiff Planned Parenthood San Antonio (Biggs, Adam) (Entered: 03/14/2017)
112 DEFICIENCY NOTICE to Adam Biggs: re 111 Response to Motion. Pursuant to the Administrative Policies and Procedures, Proposed Orders are Required when a Response to a Non−Dispositive Motion is filed. DO NOT RE−FILE the entire document. Please, file ONLY the Proposed Order. Use the "ATTACHMENT" event from the menu and LINK the Proposed Order to your Response. In the Docket Text, type "(Proposed Order)". (klw) (Entered: 03/15/2017)
113 ATTACHMENT Proposed Order to 111 Response to Motion,, by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Stephens, Andrew) (Entered: 03/15/2017)
114 Opposed MOTION to Amend/Correct Preliminary Order and Judgment Under Rule 59(e) by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 03/21/2017)
115 REPLY to Response to Motion, filed by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., re 105 MOTION to Withdraw 9 MOTION to Certify Class filed by Plaintiff Jane Doe 2, Plaintiff Jane Doe 9, Plaintiff Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Plaintiff Jane Doe 7, Plaintiff Jane Doe 11, Plaintiff Jane Doe 3, Plaintiff Planned Parenthood Gulf Coast, Inc., Plaintiff Jane Doe 4, Plaintiff Planned Parenthood Cameron County, Plaintiff Jane Doe 10, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Jane Doe I, Plaintiff Planned Parenthood San Antonio (Sandman, Jennifer) (Entered: 03/21/2017)
116 Joint MOTION to Amend Judgment by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Proposed Order Order Granting Joint Motion to Clarify and Amend)(Sandman, Jennifer) (Entered: 03/23/2017)
117 Joint MOTION to Extend Scheduling Order Deadlines by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 03/23/2017)
118 ORDER GRANTING 116 Joint Motion to Clarify and Amend the Preliminary Injunction Order and Judgment. Signed by Judge Sam Sparks. (td) (Entered: 03/24/2017)
119 ORDER DISMISSING 105 Motion to Withdraw Motion to Certify Class; DISMISSING 108 Motion for More Definite Statement; DISMISSING 114 Motion to Amend/Correct; GRANTING IN PART AND DENYING IN PART 117 Motion to Extend Scheduling Order Deadlines; DISMISSING 9 Motion to Certify Class. Signed by Judge Sam Sparks. (td) (Entered: 03/24/2017)
120 Appeal of Order entered by District Judge 101 , 119 , 100 by Stuart W. Bowen, Jr., Charles Smith. ( Filing fee $ 505 receipt number 0542−9446116) (Stephens, Andrew) Modified on 4/3/2017 to delete filer (td). (Entered: 03/30/2017)
NOTICE OF APPEAL following 120 Notice of Appeal (E−Filed) by Stuart W. Bowen, Jr., Charles Smith. Filing fee $ 505, receipt number 0542−9446116. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (td) Modified on 4/3/2017 to delete filer (td). (Entered: 03/31/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 22 of 26

04/05/2017 04/05/2017 04/10/2017 04/11/2017 04/11/2017 04/12/2017 05/01/2017 05/03/2017
05/04/2017 05/04/2017
05/04/2017 05/04/2017
05/04/2017

121 TRANSCRIPT REQUEST by Stuart W. Bowen, Jr., Charles Smith for dates of 01/17−19/2017 & 01/12/2017. Proceedings Transcribed: Preliminary Injunction. Court Reporter: Lily Reznik. (td) (Entered: 04/05/2017)
122 TRANSCRIPT REQUEST by Stuart W. Bowen, Jr., Charles Smith for dates of 12/22/2016, 10/26/2016 & 12/08/2015. Proceedings Transcribed: Status Conference. Court Reporter: Lily Reznik. (td) (Entered: 04/05/2017)
123 Joint MOTION to Stay Proceedings Pending Appeal by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Stephens, Andrew) (Entered: 04/10/2017)
124 DEFICIENCY NOTICE to Andrew Bowman Stephens: re 123 Joint MOTION to Stay Proceedings Pending Appeal. (td) (Entered: 04/11/2017)
125 ATTACHMENT Proposed Order to 123 Joint MOTION to Stay Proceedings Pending Appeal by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. (Stephens, Andrew) (Entered: 04/11/2017)
126 ORDER GRANTING 123 Joint Motion to Stay Proceedings. Signed by Judge Sam Sparks. (td) (Entered: 04/13/2017)
127 Opposed MOTION to Unseal Document 67 Miscellaneous Hearing, 54 Status Conference by Stuart W. Bowen, Jr., Charles Smith. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 05/01/2017)
128 Response in Opposition to Motion, filed by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., re 127 Opposed MOTION to Unseal Document 67 Miscellaneous Hearing, 54 Status Conference filed by Defendant Stuart W. Bowen, Jr., Defendant Charles Smith (Attachments: # 1 Exhibit Decl. of Kathryn Gottlieb)(Sandman, Jennifer) (Entered: 05/03/2017)
129 DEFICIENCY NOTICE: re 128 Response in Opposition to Motion. (td) (Entered: 05/04/2017)
130 ATTACHMENT Proposed Order to 128 Response in Opposition to Motion,, by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Sandman, Jennifer) (Entered: 05/04/2017)
131 Sealed Transcript filed (This transcript is not available electronically) Appeal Record due by 5/19/2017, (Reznik, Lily) (Entered: 05/04/2017)
132 UNSEALED PER ORDER # 151 Transcript filed of Proceedings held on January 12, 2017, Proceedings Transcribed: Telephonic Status Conference. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512−391−8792 or Lily_Reznik@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/25/2017, Redacted Transcript Deadline set for 6/5/2017, Release of Transcript Restriction set for 8/2/2017, Appeal Record due by 5/19/2017(This transcript is not available electronically) Appeal Record due by 5/19/2017, (Reznik, Lily) Modified on 6/2/2017 to add text (td). (Entered: 05/04/2017)
133 Transcript filed of Proceedings held on January 17, 2017, Proceedings Transcribed: Motion Hearing, Volume 1 of 3. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512−391−8792 or Lily_Reznik@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 23 of 26

05/04/2017
05/04/2017
05/10/2017 05/10/2017 05/10/2017 05/11/2017 05/16/2017 05/16/2017 05/17/2017

the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/25/2017, Redacted Transcript Deadline set for 6/5/2017, Release of Transcript Restriction set for 8/2/2017, Appeal Record due by 5/19/2017, (Reznik, Lily) (Entered: 05/04/2017)
134 Transcript filed of Proceedings held on January 18, 2017, Proceedings Transcribed: Motion Hearing, Volume 2 of 3. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512−391−8792 or Lily_Reznik@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/25/2017, Redacted Transcript Deadline set for 6/5/2017, Release of Transcript Restriction set for 8/2/2017, Appeal Record due by 5/19/2017, (Reznik, Lily) (Entered: 05/04/2017)
135 Transcript filed of Proceedings held on January 19, 2017, Proceedings Transcribed: Motion Hearing, Volume 3 of 3. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512−391−8792 or Lily_Reznik@txwd.uscourts.gov. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 5/25/2017, Redacted Transcript Deadline set for 6/5/2017, Release of Transcript Restriction set for 8/2/2017, Appeal Record due by 5/19/2017, (Reznik, Lily) (Entered: 05/04/2017)
136 MOTION for Leave to Exceed Page Limitation by Stuart W. Bowen, Jr., Charles Smith. (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 05/10/2017)
137 REPLY to Response to Motion, filed by Stuart W. Bowen, Jr., Charles Smith, re 127 Opposed MOTION to Unseal Document 67 Miscellaneous Hearing, 54 Status Conference filed by Defendant Stuart W. Bowen, Jr., Defendant Charles Smith (Stephens, Andrew) (Additional attachment(s) added on 5/22/2017: # 1 Sealed Document Sealed Exhibit A, # 2 Sealed Document Exhibit B (Part 1), # 3 Sealed Document Exhibit B (Part 2)) (td). (Entered: 05/10/2017)
138 Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document, # 2 Sealed Document, # 3 Sealed Document, # 4 Proposed Order) (Stephens, Andrew) (Entered: 05/10/2017)
139 ORDER GRANTING 136 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (jf) (Entered: 05/12/2017)
140 MOTION for Leave to File Surreply to Defendants' Partially Opposed Motion to Unseal Portions of the Record by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Attachments: # 1 Exhibit Plaintiffs' Surreply, # 2 Proposed Order)(Sandman, Jennifer) (Entered: 05/16/2017)
141 Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document, # 2 Proposed Order) (Sandman, Jennifer) (Entered: 05/16/2017)
142 CERTIFICATE OF SERVICE by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. 141 Motion for leave to File Sealed Document

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 24 of 26

05/17/2017 05/17/2017 05/18/2017
05/19/2017 05/20/2017 05/22/2017 05/22/2017
05/22/2017 05/22/2017 05/22/2017

(Sandman, Jennifer) (Entered: 05/17/2017)
143 DEFICIENCY NOTICE to Jennifer Sandman: re 142 Certificate of Service. (td) (Entered: 05/17/2017)
144 CERTIFICATE OF SERVICE by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. 141 Motion for leave to File Sealed Document (Sandman, Jennifer) (Entered: 05/17/2017)
145 Response in Opposition to Motion, filed by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor, re 141 Motion for leave to File Sealed Document filed by Plaintiff Jane Doe 2, Plaintiff Jane Doe 9, Plaintiff Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Plaintiff Jane Doe 7, Plaintiff Jane Doe 11, Plaintiff Planned Parenthood Gulf Coast, Inc., Plaintiff Jane Doe 4, Plaintiff Planned Parenthood Cameron County, Plaintiff Jane Doe 10, Plaintiff Planned Parenthood South Texas Surgical Center, Plaintiff Jane Doe I, Plaintiff Planned Parenthood San Antonio (Attachments: # 1 Proposed Order)(Stephens, Andrew) (Entered: 05/18/2017)
146 ORDER, (Status Conference/All Pending Matters set for 5/22/2017 at 10:00 AM before Judge Sam Sparks). Signed by Judge Sam Sparks. (td) (Entered: 05/19/2017)
147 NOTICE of Attorney Appearance by Heather Gebelin Hacker on behalf of Stuart W. Bowen, Jr., Charles Smith. Attorney Heather Gebelin Hacker added to party Stuart W. Bowen, Jr.(pty:dft), Attorney Heather Gebelin Hacker added to party Charles Smith(pty:dft) (Hacker, Heather) (Entered: 05/20/2017)
148 MOTION for Admission Pro Hac Vice of Helene Krasnoff by Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.. (Watkins, Thomas) (Entered: 05/22/2017)
149 Minute Entry for proceedings held before Judge Sam Sparks: Motion Hearing held on 5/22/2017 re 141 Motion for leave to File Sealed Document filed by Jane Doe 2, Jane Doe 9, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe 7, Jane Doe 11, Planned Parenthood Gulf Coast, Inc., Jane Doe 4, Planned Parenthood Cameron County, Jane Doe 10, Planned Parenthood South Texas Surgical Center, Jane Doe I, Planned Parenthood San Antonio, 138 Motion for leave to File Sealed Document filed by Stuart W. Bowen, Jr., Charles Smith, 140 MOTION for Leave to File Surreply to Defendants' Partially Opposed Motion to Unseal Portions of the Record filed by Jane Doe 2, Jane Doe 9, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc., Jane Doe 7, Jane Doe 11, Planned Parenthood Gulf Coast, Inc., Jane Doe 4, Planned Parenthood Cameron County, Jane Doe 10, Jane Doe I, Planned Parenthood South Texas Surgical Center, Planned Parenthood San Antonio, 127 Opposed MOTION to Unseal Document 67 Miscellaneous Hearing, 54 Status Conference filed by Stuart W. Bowen, Jr., Charles Smith (Minute entry documents are not available electronically.). (Court Reporter Kristie Davis.)(td) (Entered: 05/22/2017)
150 ORDER GRANTING 148 Motion to Appear Pro Hac Vice by Helene Krasnoff. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (td) (Entered: 05/22/2017)
151 ORDER GRANTING IN PART AND DENYING IN PART 127 Motion to Unseal Document; GRANTING 138 Motion for Leave to File Sealed Document; GRANTING 140 Motion for Leave to File; GRANTING 141 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (td) (Entered: 05/22/2017)
152 SEALED Sur−reply to Defendants' Partially Opposed Motion to Unseal Portions of the Record 127 filed by by Jane Doe 10, Jane Doe 2, Jane Doe 4, Jane Doe 7, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. (td) (Entered: 05/22/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 25 of 26

05/30/2017 06/05/2017
06/06/2017 06/20/2017 06/20/2017
06/22/2017 06/26/2017 06/27/2017 08/16/2017 08/18/2017 08/18/2017 09/19/2017 10/18/2017 10/18/2017

153 Pro Hac Vice Fee Paid by Helene T. Krasnoff; Filing fee $100, receipt number 100030380. (td) (Entered: 05/31/2017)
154 Transcript filed of Proceedings held on 5−22−17, Proceedings Transcribed: Status Conference. Court Reporter/Transcriber: Kristie Davis, Telephone number: 254−340−6114. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 6/26/2017, Redacted Transcript Deadline set for 7/6/2017, Release of Transcript Restriction set for 9/5/2017, Appeal Record due by 6/20/2017, (Davis, Kristie) (Entered: 06/05/2017)
Certification of the Electronic Record on Appeal has been accepted by the 5th Circuit re Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (td) (Entered: 06/06/2017)
155 Appeal of Order entered by District Judge 151 by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. No filing fee submitted (Stephens, Andrew) (Entered: 06/20/2017)
NOTICE OF APPEAL following 155 Notice of Appeal (E−Filed) by Stuart W. Bowen, Jr., Charles Smith. Filing fee $505 DUE. Per 5th Circuit rules, the appellant has 14 days, from the filing of the Notice of Appeal, to order the transcript. To order a transcript, the appellant should fill out Form DKT−13 (Transcript Order) and follow the instructions set out on the form. This form is available in the Clerk's Office or by clicking the hyperlink above. (td) (Entered: 06/20/2017)
156 USCA Appeal Fees received $ 505 receipt number 100030621 re Notice of Appeal, filed by Stuart W. Bowen, Jr., Charles Smith. (td) (Entered: 06/23/2017)
157 TRANSCRIPT REQUEST by Stuart W. Bowen, Jr., Charles Smith for dates of 5/22/2017. Proceedings Transcribed: Status Conference. Court Reporter: Kristie M. Davis. (td) (Entered: 06/27/2017)
158 ORDER of USCA Granting Appellants' motion to view and obtain sealed documents re: Notice of Appeal. (td) (Entered: 06/28/2017)
Certification of the Electronic Record on Appeal has been accepted by the 5th Circuit re Notice of Appeal. Attorneys are advised that they may now download the EROA from the Fifth Circuit CM/ECF site by following these instructions here (td) (Entered: 08/17/2017)
159 Transmitted Record on Appeal to US Court of Appeals re Notice of Appeal. (td) (Entered: 08/18/2017)
160 ORDER of USCA Granting Appellee's unopposed motion to view and obtain sealed documents re: Notice of Appeal. (td) (Entered: 08/18/2017)
161 Certified copy of USCA JUDGMENT/MANDATE (17−50534) re 155 Notice of Appeal (E−Filed) filed by Stuart W. Bowen, Jr., Charles Smith, Chris Traylor. Under FED R. APP. P. 42(b), the appeal is dismissed as of September 19, 2017, pursuant to appellant's motion. (td) (Entered: 09/20/2017)
162 Motion for leave to File Sealed Document (Attachments: # 1 Sealed Document Jane Doe Identities Filed Under Seal, # 2 Proposed Order Proposed Order) (Sandman, Jennifer) (Entered: 10/18/2017)
163 NOTICE of Filing Notice of Jane Doe Identities Filed Under Seal by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. (Sandman, Jennifer) (Entered: 10/18/2017)

Case: 1:15-cv-1058 As of: 03/17/2018 08:56 PM CDT 26 of 26

10/19/2017 10/19/2017
10/30/2017 10/30/2017

164 DEFICIENCY NOTICE to Jennifer Sandman: re 162 Motion for leave to File Sealed Document. (td) (Entered: 10/19/2017)
165 CERTIFICATE OF SERVICE by Jane Doe 10, Jane Doe 2, Jane Doe 3, Jane Doe 4, Jane Doe 5, Jane Doe 6, Jane Doe 7, Jane Doe 8, Jane Doe 9, Jane Doe I, Jane Doe 11, Planned Parenthood Cameron County, Planned Parenthood Gulf Coast, Inc., Planned Parenthood San Antonio, Planned Parenthood South Texas Surgical Center, Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc. Corrected 162 Motion for leave to File Sealed Document (Sandman, Jennifer) (Entered: 10/19/2017)
166 ORDER GRANTING 162 Motion for Leave to File Sealed Document. Signed by Judge Sam Sparks. (td) (Entered: 10/30/2017)
167 Sealed Document filed. (td) (Entered: 10/30/2017)


[CONTENT] November 23, 2015 | five | Texas | ten | Medicaid | Planned Parenthood | the U.S. District Court | the Western District | Texas ||| Executive | the Inspector General of the Health and Human Services Commission | under 42 | 1983 ||| the Planned Parenthood Federation of America ||| HHSC | the Medicaid Act | the Equal Protection Clause | the Fourteenth Amendment | Medicaid ||| October 21, 2015 | HHSC | HHSC | the Provider Plaintiffs' | Medicaid Provider Agreement ||| HHSC ||| HHSC | Medicaid Provider Agreement ||| January 27, 2016 | U.S. | Sam Sparks ||| nearly a year ||| Texas | U.S. | Congress | Planned Parenthood ||| Planned Parenthood ||| December 20, 2016 | HHSC | Notice of Termination ||| January 17, 2017 ||| That day ||| January 19, 2017 | Sparks | February 21, 2017 ||| February 21, 2017 | Sparks | the Provider Plaintiffs' |||  ||| March 24, 2017 ||| March 30, 2017 | the Fifth Circuit ||| The Fifth Circuit | January 17, 2019 ||| 913 | 551 |||  ||| Jones | Medicaid ||| January 31, 2019 ||| The next day | February 4, 2019 ||| 914 | 994 ||| February 4, 2019 | January 31, 2019 ||| 914 | 994 ||| The same day |||  ||| Feb 15, 2019 | the Fifth Circuit ||| May 14, 2019 |||  [SUMMARY] On November 23, 2015, five Texas Planned Parenthoods (provider plaintiffs) and ten Medicaid patients of Planned Parenthood (patient plaintiffs) filed this lawsuit in the U.S. District Court for the Western District of Texas. The plaintiffs sued the Executive Commissioner and the Inspector General of the Health and Human Services Commission (HHSC) under 42 U.S.C. § 1983. The plaintiffs, represented by the Planned Parenthood Federation of America, asked the court for class action certification; declaratory judgments; temporary, preliminary, and permanent injunctions; and attorney's fees. The plaintiffs claimed that HHSC had violated the Medicaid Act and the Equal Protection Clause of the Fourteenth Amendment by barring the provider plaintiffs from the Medicaid program.

Specifically, the plaintiffs explained that on October 21, 2015, the HHSC notified the provider plaintiffs that HHSC would soon terminate the Provider Plaintiffs' Medicaid Provider Agreement. The HHSC justified the termination using false allegations, which were primarily based on misleading videos leaked by anti-choice activists. 

The HHSC claimed that the case was premature because they had not yet terminated the provider plaintiffs' Medicaid Provider Agreement. On January 27, 2016, U.S. District Judge Sam Sparks stayed the case pending a final termination letter. For nearly a year, the case lay relatively dormant. In this time, Texas and the U.S. Congress conducted separate investigations into the allegations against Planned Parenthood raised by the misleading videos. Planned Parenthood was repeatedly found free of wrongdoing. Nonetheless, on December 20, 2016, HHSC sent a final Notice of Termination to each provider plaintiff. 

On January 17, 2017, the plaintiffs filed an amended complaint outlining the events since the order to stay the case. That day the court held a hearing on the plaintiffs' motion for a preliminary injunction to prevent termination. On January 19, 2017, Judge Sparks entered an order temporarily enjoining the defendants from terminating the provider plaintiffs' Medicaid Provider Agreements until February 21, 2017. 

On February 21, 2017, Judge Sparks granted the plaintiffs' motion for a preliminary injunction, enjoining the defendants from terminating the Provider Plaintiffs' Medicaid Provider Agreements. The defendants appealed the preliminary injunction.

The plaintiffs then moved to withdraw their motion for class certification, which the court granted without prejudice on March 24, 2017. 

On March 30, 2017, the defendants submitted an appeal regarding the order granting the plaintiff’s preliminary motion to the Fifth Circuit. 

The Fifth Circuit vacated the preliminary injunction and remanded the case to the district court on January 17, 2019. 913 F.3d 551. The panel determined that while the individual plaintiffs had a private right of action, the district court erred by failing to defer to agency's findings, by accepting evidence beyond agency record and by conducting de novo review. Judge Jones wrote a concurrence urging a rehearing en banc to reconsider whether the individual plaintiffs did have a private right of action on behalf of Medicaid patients to challenge the termination of their providers’ contracts. 

The defendants filed a petition for rehearing en banc on January 31, 2019. The next day, the defendants filed a petition to stay the district court’s preliminary injunction pending the rehearing, which was granted on February 4, 2019. 914 F.3d 994. 

On February 4, 2019, the en banc court granted rehearing on the court’s own motion, therefore appellants’ petition for rehearing en banc filed on January 31, 2019, was denied as moot. 914 F.3d 994.

The same day, the plaintiffs submitted an opposition to the defendants' stay application. In the alternative, the plaintiffs requested to defer the effective date in order to seek a temporary restraining order or preliminary injunction. On Feb 15, 2019, the appellant’s motion to stay the district court’s injunction pending the en banc consideration was ordered to be carried by the Fifth Circuit on behalf of the en banc court. The en banc oral argument was held on May 14, 2019. 

The case is ongoing. 