Fairfield County Medical Association V. United Healthcare .

Case: 13-4608Document: 119Page: 1112/30/2013112380448which the Plaintiff Associations challenge here has on the doctor-patientrelationship, on doctors' ability to provide continuity of care, and on the healthcareconsuming public in general. United's conduct, if not enjoined, would havedevastating effects in all of these categories, as will be discussed.United also argues that the District Court also erred in finding that theAssociation Plaintiffs have standing to sue on behalf of their members. That issimply incorrect. Plaintiffs have satisfied all of the requirements of Hunt v. Wash.St. Apple Adver. Comm 'n, 432 U.S. 333, 343 (1977), in which the U.S. SupremeCourt set forth the circumstances under which an association may sue on itsmembers' behalf. United's attempt to fabricate a "conflict of interest" between themembers of the Plaintiff Associations who have been terminated by United andthose who have not fails. The litigation brought by the Plaintiff Associationsbenefits all oftheir physician members, and creates no such conflict.Contrary to United's second argument against associational standing, theclaims here do not require the Plaintiff Associations' members to participateextensively in the litigation. Medical societies such as the Plaintiff Associationsand amici are regularly found to have standing to sue on behalf of their membersunder circumstances similar to those presented here. Contractual obligations to gothrough an individual appeals process and individual arbitration do not mean thatindividual participation is required in the instant litigation, which ultimately seeks5

Case: 13-4608Document: 119Page: 1212/30/2013112380448only to preserve the rights of physicians to undergo those processes pursuant to theterms ofthe provisions contained in United's standard-form participating physiciancontracts.ARGUMENTi. THE PLAINTIFF ASSOCIATIONS' MEMBERS WILL BEIRREPARABLY HARMED IN THE ABSENCE OF AN INJUNCTIONThe Plaintiff Associations' members would be irreparably harmed in theabsence of an injunction because United would proceed with its plannedterminations of physicians from its MA network on February 1, 2014, therebyinterfering with the Plaintiff Associations' members' physician-patientrelationships.3 Lifting the injunction would necessarily force affected Medicarepatients - the elderly and disabled, who disproportionately tend to suffer fromchronic and often life-threatening conditions whose treatment is enhanced bycontinuing care - to find new physicians to meet their medical needs.In granting the injunction, the District Court found that:the Associations' members who are subject to the termination noticeswill suffer (i) disruption of their relationships with the MedicareAdvantage patients. . . . The disruption of physician-patientrelationships results from the high cost of medical care in the countryand the structure of health insurance reimbursement plans thatdistinguish between in-network and out-of-network service providers.3 While United also argues that the Plaintiff Associations would not sufferirreparable harm, the correct inquiry is whether their members would suffer suchharm, as the Plaintiff Associations are not suing in their own behalf, but solely ontheir members' behalf.6

Case: 13-4608Document: 119Page: 1312/30/2013112380448The terminated providers' patients could continue their existingrelationships with the affected physicians only if they are able andwillng to pay substantially greater sums to obtain those medicalservices. (l.A. 809-10.)In so ruling, the Court noted that although the Second Circuit has notdirectly ruled on whether the disruption of the physician-patient relationshipconstitutes irreparable harm, "several district and circuit courts have found thatdisruption of the physician-patient relationship can cause irreparable harm thatjustifies issuing preliminary injunctive relief, particularly when the patient belongsto a vulnerable class or may have a deep trust relationship with the physicianbecause ofthe serious nature ofthe patient's illness or medical needs." (l.A. 808-09 (citing to Schisler v. Heckler, 574 F. Supp. 1538, 1552 - 53 (W.D.N.Y. 1983),Roudachevski v. All-Amer. Care Ctrs., Inc., 648 F.3d 701, 706-707 (8th Cir. 2011),and Barron v. Vision Servo Plan, 575 F. Supp, 2d. 825, 835-36 (N.D. Ohio 2008).)The Court's findings were supported by substantial evidence in the recordregarding the impact of disrupting the physician-patient relationships betweenPlaintiff Association members slated for termination and their patients, particularlyin light of these patients' serious medical conditions. As stated by William A.Hunt, M.D., a nephrologist: "(TJhe long-standing physician-patient relationship isbeing threatened. .Continuity of care is crucial in managing kidney ilnessesbecause of its progressive nature and its association with numerous multi-systemcomplications. Physicians who know and understand the particular nuances of7

Case: 13-4608Document: 119Page: 1412/30/2013112380448their elderly patients, especially those with substantial medical histories andrecords, often rely on their familiarity and unique experience with each individualpatient, in order to fashion and manage an appropriate plan of treatment." (l.A.224.)In arguing that the Plaintiff Associations' members will not be irreparablyharmed by the lifting of the preliminary injunction, United totally ignored thisfinding by the District Court, which was amply supported by the record below.Rather, United boldly states that "contrar to District Court's conclusion, theaffected providers will not 'suffer a disruption of their relationships with their("App. Br.") at 30 (quoting fromMedicare Advantage patients'" (Appellants' BrieflA. 808)), but then makes no effort to explain how the disruption of physicianpatient relationships can possibly be avoided when thousands of physicians areterminated from its MA network. Instead, United mischaracterizes the DistrictCourt's concern as one of "patient confusion during the open-enrollment period."(App. Br. at 30.) However, the unambiguous language from the District Court'sopinion makes it clear that the finding of irreparable harm was based on the factthat patients generally have to pay more for out-of-network care, and that thesefinancial imperatives would prevent patients from continued treatment by theircurrent physicians. As the declarations filed in the record below make clear, this isparticularly problematic for the elderly and disabled patients enrolled in MA plans,8

Case: 13-4608Document: 119Page: 1512/30/2013112380448who tend to suffer from chronic and often life-threatening conditions for whichcontinuity of treatment is criticaL. (See generally l.A. 220-25; l.A. 200-19; lA.253-73; lA 241-52.)The likely reason for United's utter failure to address the issue of disruptionof physician-patient relationships is that it undermines United's argument thatthere is no irreparable harm because "money damages would make an aggrievedprovider whole." (App. Br. at 30.) Clearly, no amount of money damages couldcompensate for the disruption of the many physician-patient relationships that wilinevitably occur ifthe injunction is lifted.United further argues that lifting the injunction would not harm the PlaintiffAssociations' members because there is suffcient time for these physicians toappeal and arbitrate the terminations before the February 1,2014 termination date.light of(Id. at 29.) That assertion is speculative at best, particularly inthe fact thatFebruary 1, 2014 is less than six weeks away and in view of the interveningholidays. Moreover, because United has been terminating thousands of physiciansfrom its MA networks across the country (hence, the interest of amici), United willpresumably be arbitrating these cases in multiple venues in this short interim.Consequently, it is unlikely that the arbitrations for all the physicians covered bythe injunction will be concluded by Februar 1,2014.9

Case: 13-4608Document: 119Page: 1612/30/2013112380448Lifting the injunction would compound the irreparable harm to anyassociation member whose arbitration was successfully concluded after Februaryi, 2014, because by that time the member's patients likely will have sought carewith physicians whose in-network status was not disrupted, and will be unlikely toswitch back after the physician is reinstated. In finding irreparable harm sufficientto warrant a preliminary injunction halting termination of an optometrist from aninsurer's network in the Barron v. Vision Servo Plan case cited by the DistrictCourt, the Northern District of Ohio stated: "Out of network benefits, however,are less than 'in network' benefits. It is unlikely that many patients would see anon-network optometrist when they could see a network optometrist forsignificantly less. .If (the optometrist) were to prevail on his claim., it isunlikely that many of his former patients would return to him once he rejoined thenetwork. In the meantime, most patients would have found other providers." 575F. Supp. 2d 825, 836.This problem is particularly acute in the context of the MA Network.Medicare beneficiaries in the MA network pay a supplemental MedicareAdvantage fee in addition to their Medicare premiums, and thus expect not to paymore for their care. While Medicare FFS patients are aware that they must paycopayments and coinsurance after their deductible is met, MA plan members havea general expectation that everyhing is covered (which is why they have10

Case: 13-4608Document: 119Page: 1712/30/2013112380448purchased an MA plan in the first place, because they are risk-adverse and want allof their care to be covered, and thus pay more up-front). Therefore, rather thancontinuing to see their existing physicians and paying even more because thosephysicians are no longer in-network, many if not most MA plan members willchoose to find another physician who is in-network. In many cases there is nocoverage for any out-of-network care in the MA plan descriptions, which makes itthat much more likely that patients will seek care elsewhere when a physician isterminated from the MA network.There can be no doubt that United's February 1, 2014 terminations willdisrupt longstanding physician-patient relationships for elderly and disabledpatients whose care is enhanced by continuity of care. In so doing, United hasbreached its obligation under its MA contract to uphold and protect enrollee rights.In response, United can only point to physicians' rights to arbitrate theterminations. In order to ensure that these rights are real, and to allow for thecontinuation of physician-patient relationships for those physicians who prevail atarbitration, the injunction must be maintained. Otherwise, the physicians and theirrelationships with their patients will suffer irreparable harm.II. THE BALANCE OF THE HARDSHIPS TILTS IN FAVOR OFPRELIMINARY INJUNCTIVE RELIEFUnited attempts to argue that the injunction does not maintain the status quobecause keeping the terminated physicians in its MA network imposes certaini i

Case: 13-4608Document: 119Page: 1812/30/2013112380448obligations on United. In support of this argument, United only lists administrativetasks and processes such as online and printed provider directories, customer carescripts and its ongoing appeals processes. (App. Br. at 32.)However, theinjunction does maintain the status quo with respect to the status of the providerswithin the MA network, allowing the physician-patient relationships to continuepending the outcome ofthis litigation, and ensuring that the arbitrations proceed inan orderly fashion. United's administrative concerns are greatly outweighed by thevery real harm that would be caused by the disruption of the physician-patientrelationships and the harm to these patients' care which would result without theprotection of the injunction.In addition, United argues that the balance of hardships weighs in its favorbecause "the District Court's order deprives United of its contractual right to builda competitive, sustainable network that can better achieve improved populationhealth outcomes, improved patients' experience with care, and lower per-capitahealth care costs" and "intrudes on CMS' authority to regulate United's networkdecisions." (App. Br. at 31 (emphasis added).)Despite United's efforts to cast its contractual rights as improving healthoutcomes, its self-serving statements must be viewed in the context of its brief, inwhich United dropped any effort to argue that the public interest favors itsposition. It cannot make any such argument because the public interest lies in12

Case: 13-4608Document: 119Page: 1912/30/2013112380448ensunng that United's MA network has suffcient pnmary care and specialtyphysicians to serve its Connecticut MA patients and in ensuring that there is nodisruption in care for MA members, concerns raised by Connecticut AttorneyGeneral George Jepson in a November 6, 2013 letter to the U.S. Department ofHealth and Human Services (Exhibit A hereto), and in the letters of amicus theConnecticut State Medical Society in two letters to CMS, dated October 23,2013and December 2,2013. (Exhibits Band C hereto).United's argument regarding a supposed intrusion on CMS' authority fallsflat in the face of evidence that CMS has not scrutinized the impact of United'snetwork terminations on various patient populations in Connecticut. As stated inCMS's December 6, 2013 letter to Mr. Jepson: "Our time/distance/numberstandards do not, however, take into account the special needs of the disabled,elderly, low income, without personal transportation, and non-English speakingmembers." (Exhibit D hereto.) In response, Mr. Jepson issued a statement saying"I am deeply disappointed by CMS's response and its continuing refusal to takeconcrete action to protect thousands of patients affected by United's terminationsofConnecticut physicians." (Exhibit E hereto.)In fact, by emphasizing that the terminated physicians will remain in itsother networks, United has conceded that the terminations are not related to thequality of care, but rather are tied to its costs to providing care to its MA members.13

Case: 13-4608Document: 119Page: 2012/30/2013112380448The letter to terminated providers specifically states: "Please note that yourAgreement shall remain in full force and effect for all other networks not specifiedin this Agreement and we are pleased to have you remain in those networks." (I.A.42.)Thus, the public interest is served by maintaining the injunction in effect,allowing Connecticut's MA members to continue seeking care from theirphysicians - the Plaintiff Associations' members affected by United's massterminations - pending the outcome of this litigation. When the public interest isweighed against United's administrative tasks and its efforts to cut costs, it is clearthat the balance of the interests tilts decidedly in favor of maintaining theinjunction.II. THE PLAINTIFF ASSOCIATIONS HAVE STANDINGUnited also argues that the District Court erred in finding that the PlaintiffAssociations had standing to assert claims on their members' behalf. That issimply incorrect. Under Hunt v. Wash. St. Apple Adver. Comm 'n, 432 U.S. 333(1977), the Plaintiff Associations have standing to sue on their members' behalf if:(I) their members, "or anyone a/them," would have standing to sue in their ownright; (2) the interests the Plaintiff Associations seek to protect are germane to thePlaintiff Associations' organizational purpose; and (3) neither the claim assertednor the relief requested requires the participation of the individual members in the14

Case: 13-4608Document: 119Page: 2112/30/2013112380448lawsuit. Id. at 342-43 (emphasis added). United's argument that the PlaintiffAssociations fail to satisfy prongs (2) and (3) above must faiL.A. The Plaintiff Associations' Litigation on Their Members' BehalfDoes Not Create a Conflct of InterestUnited argues that the Plaintiff Associations' claims "stand to benefit only arelative handful of their members," and that "(aJny such benefit will come at theexpense of the large number of Association members who remain in United'sMedicare Advantage Network." (App. Br. at 20.) Thus, United posits, there is aconflict of interest here that defeats associational standing under either the secondor third prong of the Hunt test. (Id. at 2 i.) United is wrong.United's argument is premised on the false notion that "United's removal ofa small number of providers from its network will benefit every remainingprovider in the network because those remaining providers will face lesscompetition from others in the same network." (Id.) To the contrary: First, as isalleged in the underlying complaint, "in many cases, the Medical Associations'members are the only providers furnishing these services in their geographic area."(I.A. 22, ir 52.) Thus, the notion that non-terminated members stand to gain by areduction in "competition" is not consistent with the reality of many communities.Second, United's improper termination of providers from the MA network in areaswhere there are other providers available would negatively affect those otherproviders, who would have to bear the burden of serving Medicare patie

Society of Interventional Pain Physicians, American Academy of Family Physicians, New Jersey Society of Gastroenterology and Endoscopy, New Jersey Chapter of the American College of Cardiology, the New Jersey Rheumatology Association, the New Jersey Academy of Otolaryngology - Head & Neck Surgery and the New Jersey Academy of Facial Plastic .