What’s at Stake in Espinoza v. Montana Department of Revenue? What the Equal Protection Clause Means in the Context of Classifications Based on Religiosity

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois Law dean Vikram David Amar and UC Davis emeritus professor Alan E. Brownstein comment on a case before the U.S. Supreme Court that raises the question whether a religiously neutral student-aid program in Montana that affords students the choice of attending religious schools violates the religion clauses or the Equal Protection Clause of the U.S. Constitution. Amar and Brownstein express no opinion as to whether the courts’ often-expressed concerns about striking down invidiously motivated laws can be effectively overcome, but they contend that jurists who reject invalidating invidiously motivated laws must explain why reasons sufficient in other contexts are not persuasive in this case.

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GGNSC Chestnut Hill LLC v. Schrader

Court: US Court of Appeals for the First Circuit

Docket: 18-1779

Opinion Date: May 11, 2020

Judge: Per Curiam

Areas of Law: Arbitration & Mediation, Constitutional Law, Contracts, Health Law, Personal Injury

In this case concerning arbitration agreements, nursing homes, and wrongful death claims under Massachusetts law, the First Circuit affirmed the judgment of the district court compelling arbitration after first certifying two questions to the Massachusetts Supreme Judicial Court (SJC), holding that the SJC's decision compelled the First Circuit to affirmed the judgment compelling arbitration. The personal representative of a deceased former nursing home resident brought a state wrongful death action against a set of organizations that oversaw the nursing home (collectively, nursing home). The nursing home sued to compel arbitration. The federal court compelled arbitration. On appeal, the personal representative argued that she was not bound by the decedent’s agreement to arbitrate with the nursing home because her wrongful death right of recovery was independent of the decedent’s wrongful death claim. The First Circuit certified questions of law to the SJC. After the SJC answered that claims of statutory beneficiaries under the state's wrongful death statute are derivative of the decedent's own cause of action, the First Circuit affirmed the district court's judgment, holding that the SJC's decision required this Court to affirm the judgment compelling arbitration.

Yang v. Tenet Healthcare Inc.

Court: California Courts of Appeal

Docket: E071693(Fourth Appellate District)

Opinion Date: May 8, 2020

Judge: Raphael

Areas of Law: Business Law, Civil Procedure, Health Law, Personal Injury

In June 2018, plaintiffs-respondents Suzanne Yang and Doc Yang Medical Corporation sued defendants-appellants Tenet Healthcare Inc. doing business as John F. Kennedy Memorial Hospital (the hospital), its medical staff, and individual doctors, alleging defamation and nine other causes of action. Defendants filed a special motion to strike (anti-SLAPP motion) targeting only the defamation cause of action. Dr. Yang alleged that since March 2016, defendants conspired to drive her practice out of business in various ways, including by making defamatory statements. Defendants’ anti-SLAPP motion contended that the statements were protected activity because they were made in connection with the hospital’s peer review process, and because they were made in furtherance of the exercise of the right of free speech in connection with a public issue or an issue of public interest. Defendants also contended that Dr. Yang could not demonstrate a probability of prevailing because she consented to the peer review process that the statements were purportedly in connection with, and because the statements were privileged. Applying the California Supreme Court's recent opinion in FilmOn.com Inc. v. DoubleVerify, Inc., 7 Cal.5th 133 (2019), and concluded defendants’ conduct arose from protected activity because their allegedly defamatory statements were made in connection with an issue of public interest. Furthermore, the Court concluded Dr. Yang did not demonstrate a probability of prevailing on the merits. The Court therefore reversed the trial court, which denied the anti-SLAPP motion.

FMS Nephrology Partners North Central Indiana Dialysis Centers, LLC v. Meritain Health, Inc.

Court: Supreme Court of Indiana

Docket: 20S-PL-302

Opinion Date: May 11, 2020

Judge: Slaughter

Areas of Law: ERISA, Health Law, Insurance Law

The Supreme Court vacated the trial court's grant of summary judgment for Defendants, holding that the trial court erred by entering summary judgment for defendant health-insurance plans, which were governed by the Employee Retirement Income Security Act of 1974 (ERISA), based on ERISA preemption. Plaintiff, a health-care provider, contracted with two third-party networks. Defendants and its affiliated employee health-insurance plans contacted with both health networks. Seven patients received treatments from Plaintiff, and the patients were covered under Defendants' plans. Plaintiff sued Defendants, alleging that they failed to pay agreed reimbursement rates for covered services under their plans. The trial court granted summary judgment against Plaintiff, concluding that Plaintiff's claims were preempted under ERISA's conflict-preemption provision, 29 U.S.C. 1144(a). The Supreme Court vacated the judgment, holding that genuine issues of disputed fact existed concerning the central issue of whether the provider's claims were denied coverage under the plans or whether the provider's claims necessitated interpreting the plan documents.

Michigan v. Wang

Court: Michigan Supreme Court

Docket: 158013

Opinion Date: May 13, 2020

Judge: Brian K. Zahra

Areas of Law: Constitutional Law, Criminal Law, Health Law, Professional Malpractice & Ethics, Public Benefits

After a bench trial, Xun Wang was convicted of two counts of Medicaid fraud, and one count of unauthorized practice of a health profession. Defendant earned a medical degree in her native China, and earned a Ph.D. in basic medical science in the United States. Notwithstanding her education in the United States and abroad, defendant was never licensed to practice in a health profession in the United States. The Michigan Department of the Attorney General’s Health Care Fraud Division discovered that a high volume of narcotics prescriptions were being written at the clinic for which she worked part time. In 2014, the department conducted an investigation, during which Drew Macon and Lorrie Bates, special agents with the department, separately went to the clinic while posing as patients with Medicaid benefits. Defendant saw both agents when they posed as patients, identified herself as clinic-owner Dr. Murtaza Hussain’s assistant, and took written notes of their medical histories. Defendant also performed physical examinations, answered their questions, and wrote prescriptions for both agents on a prescription pad that Hussain had previously signed, including a prescription for Ambien, a Schedule 4 controlled substance. The patients’ notes were entered into the clinic’s computer system and were electronically signed by Hussain; the notes indicated that both defendant and Hussain had seen the agents. The Medicaid processing system reflected that claims were submitted for both agents’ treatment and were paid to Hussain for a total of $260. The trial court sentenced her to concurrent terms of 365 days in jail for each conviction, which was suspended upon the successful completion of five years’ probation and the payment of $106,454 in fines and costs. The Michigan Supreme Court found after review that while the lower courts did nor err in determining there was sufficient evidence to convict defendant on unauthorized practice of a health profession, the evidence did not establish she was aware or should have been aware that the patients at issue were Medicaid beneficiaries and their treatment was substantially certain to cause the payment of a Medicaid benefit under the applicable statute. Therefore, defendant's convictions of Medicaid fraud were reversed. The matter was remanded back to the trial court for reconsideration of the fines assessed.

Mississippi Division of Medicaid v. Windsor Place Nursing Center, Inc. et al.

Court: Supreme Court of Mississippi

Citation: 2018-SA-01263-SCT

Opinion Date: May 14, 2020

Judge: Beam

Areas of Law: Government & Administrative Law, Health Law, Public Benefits

The Mississippi Division of Medicaid (DOM) appealed a chancery court judgment ordering the DOM to reverse the adjustments for “Legend Drug” costs reported by Windsor Place Nursing Center, Inc., d/b/a Windsor Place Nursing & Rehab Center (Windsor) and Billdora Senior Care, Lexington Manor Senior Care, and Magnolia Senior Care (collectively Senior Care). The chancery court found that legend drug expenses incurred by these providers were properly reported on each of their Long Term Care (LTC) cost reports as an allowable cost and should have been taken into account the by DOM in determining the per diem rates for each provider. The DOM contends that its decision to disallow the legend drug expenses claimed by the providers in their required cost report for reporting years 2005, 2007, and 2008 was supported by substantial evidence, was not arbitrary or capricious, and was within its authority to decide. Therefore, the chancery court’s order must be reversed and the DOM’s decision must be reinstated. The Mississippi Supreme Court agreed with the DOM. "No where in the controlling statutes, the state plan, or Medicaid’s policy do we see language that lends itself to a construction taken by the providers that all prescription drug costs “not covered” by the Medicaid drug program means drug costs 'not paid for' by Medicaid. ... While the DOM may have failed to catch this in the past, legend drugs covered by Medicaid’s Drug Program are subject to direct reimbursement from Medicaid to the dispensing pharmacist, and constitute a non-allowable cost for the provider’s pier diem reimbursement report. And any action taken to the contrary by Medicaid is a violation of its rules and regulations."

Wingfield v. Department of Public Health & Human Services

Court: Montana Supreme Court

Citation: 2020 MT 120

Opinion Date: May 12, 2020

Judge: Shea

Areas of Law: Government & Administrative Law, Health Law

The Supreme Court affirmed the order of the district court granting the Montana Department of Public Health and Human Services' (DPHHS) motion for judgment on the pleadings, holding that the district court did not err in concluding that guardians had the authority to decide whether their wards would return to the At Home Assisted Living and At Home Also (collectively, At Home) facility. In 2017, the DPHHS suspended At Home's license for noncompliance with certain DPHHS rules and regulations and required the At Home residents to be relocated. After DPHHS reinstated At Home's license, some relocated residents who were wards with guardians appointed by DPHHS Adult Protection Services indicated their desire to return to the facility. The APS guardians refused to allow their wards to return. At Home and its owners sued DPHHS alleging intentional interference. The district court granted judgment on the pleadings for DPHHS. The Supreme Court affirmed, holding that the district court did not err in determining that the guardians had the authority to determine where the wards would reside and in thus granting judgment on the pleadings.

Mullinnex et al . v. Menard et al.

Court: Vermont Supreme Court

Citation: 2020 VT 33

Opinion Date: May 8, 2020

Judge: Eaton

Areas of Law: Civil Procedure, Class Action, Government & Administrative Law, Health Law

Defendants Michael Touchette and Centurion Healthcare brought an interlocutory appeal of a trial court's certification of a class of plaintiffs in a Vermont Rule 75 action. The certified class was comprised of people in the custody of the Vermont Department of Corrections (DOC), each of whom suffered from opioid-use disorder, and alleged defendants’ medication-assisted treatment (MAT) program did not meet prevailing medical standards of care as required by Vermont law. Defendants, the former Commissioner of the DOC and its contract healthcare provider, argued the trial court erred both in finding that plaintiff Patrick Mullinnex exhausted his administrative remedies before filing suit, and in adopting the vicarious-exhaustion doctrine favored by several federal circuits in order to conclude that Mullinnex’s grievances satisfied the exhaustion requirement on behalf of the entire class. Defendants also contended the trial court’s decision to certify the class was made in error because plaintiffs did not meet Rule 23’s numerosity, commonality, typicality, and adequacy-of- representation requirements. After review, the Vermont Supreme Court reversed, concluding that - even if the vicarious-exhaustion doctrine was appropriately applied in Vermont - it could not apply in this case because, on the record before the trial court, no member of the putative class succeeded in exhausting his administrative remedies. Because plaintiffs’ failure to exhaust left the courts without subject-matter jurisdiction, the Supreme Court did not reach defendants’ challenges to the merits of the class-certification decision.

Wisconsin Legislature v. Palm

Court: Wisconsin Supreme Court

Docket: 2020AP000765-OA

Opinion Date: May 13, 2020

Judge: Patience D. Roggensack

Areas of Law: Government & Administrative Law, Health Law

The Supreme Court held that Andrea Palm's order confining all people to their homes, forbidding travel, and closing businesses in response to the COVID-19 coronavirus (Emergency Order 28) was unenforceable because the order was a rule, and Palm did not follow statutory emergency rule making procedures established by the Legislature. On March 12, 2020, Governor Tony Evers issued Executive Order 72 proclaiming that a public health emergency existed in Wisconsin and directed DHS to take "all necessary and appropriate measures" to prevent incidents of COVID-19 in the State. On March 24, Palm, as secretary-designee of the Department of Health Services, issued Emergency Order 12 ordering Wisconsin citizens to stay at home. On April 16, Palm issued Emergency Order 28 ordering individuals to stay at home or risk punishment. The Wisconsin Legislature brought an emergency petition for original action asserting that Palm failed to follow emergency rulemaking procedures required under Wis. Stat. 227.24. The Supreme Court held (1) Emergency Order 28 is a "rule" under Wis. Stat. 227.01(13); (2) because Palm did not follow rulemaking procedures during Order 28's promulgation, there could be no criminal penalties for violations of her order; and (3) Palm's order further exceeded the statutory authority of Wis. Stat. 252.02.