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Attorneys for the state are asking a federal judge to decertify a class-action lawsuit challenging Arkansas' discontinuation of Medicaid funding for Planned Parenthood services.

The case began in 2015 as a lawsuit filed on behalf of three anonymous women who used Planned Parenthood services. U.S. District Judge Kristine Baker granted a preliminary injunction preventing the state from refusing to fund services for those three women until questions about whether they had a right to be free from government interference in choosing a provider could be permanently decided.

Then in 2016, after certifying the case as a class action to include all Medicaid patients in Arkansas who choose Planned Parenthood as a health care provider, Baker expanded the injunction to apply to the entire class.

On Nov. 13, the 8th U.S. Circuit Court of Appeals in St. Louis refused to reconsider an Aug. 16 panel decision that vacated the injunctions, leaving Planned Parenthood's two clinics in Arkansas -- one each in Little Rock and Fayetteville -- to provide care for Medicaid clients for free.

Although the clinics planned to keep providing the care in the hopes they could later seek reimbursement from the state Medicaid program if they were ultimately successful, Planned Parenthood attorneys said they hit a brick wall Jan. 5.

That's when they learned that even if they were able to be reimbursed at some point for services provided up to a year earlier, the state was also cutting off coverage for prescriptions, test results and follow-up specialist care, essentially mooting the provider's efforts.

Since then, the clinics haven't been treating Medicaid patients, and Planned Parenthood attorneys have renewed constitutional claims in the 2015 lawsuit that they initially didn't pursue while they focused instead on whether individuals have the right under the Medicaid Act to sue over their choice of provider.

"We've been forced to turn away patients due to the state's actions," Aaron Samulcek, interim president and chief executive officer of Planned Parenthood Great Plains said Jan. 19. He said that on behalf of the clinics' patients who rely on Medicaid coverage and want to continue using Planned Parenthood as their provider, "we are continuing this fight."

"Arkansas' politicians are waging a politically motivated war against basic health care services that directly hurts the state's patients who are struggling financially and also those who already face barriers to accessing health care -- especially people of color, people with low to moderate incomes, as well as people who live in rural areas," Samulcek said.

The renewed claims -- whether the discontinuation of state Medicaid funds violates the plaintiffs' rights to equal protection and due process -- have pushed the reset button on the lawsuit, though attorneys for the state have complained that the "piecemeal" approach wastes time and money.

Last week, attorneys representing the state argued that the lawsuit should no longer have class-action status.

"This case is at a unique juncture," wrote Nicholas Bronni, deputy solicitor general under Attorney General Leslie Rutledge. Noting that the 8th Circuit concluded that the plaintiffs have no right of action under the Medicaid Act, he said the plaintiffs "now proceed on two other claims that apparently were not meritorious enough to warrant pursuing the first time around, bringing a new preliminary injunction motion."

Bronni said a unique situation has developed, in that "a class remains certified, although the basis for certification ... was eviscerated by the 8th Circuit's reversal." He argued that the anonymous plaintiffs don't have standing -- a vested interest in the outcome -- to pursue either of the remaining claims.

"For this reason," he said, "the patient class must be decertified."

While the judge refused in 2016 to limit class certification to the Medicaid Act claim, she relied on claims of commonality and typicality that rested on the now-defunct Medicaid Act claim, Bronni argued.

Planned Parenthood and the women filed the lawsuit in response to Gov. Asa Hutchinson's 2015 directive ordering the state to terminate its Medicaid contract with Planned Parenthood because of videos that claimed to show unethical behavior by Planned Parenthood affiliates in other states. Those videos have since been discredited.

Hutchinson's order didn't affect abortion services, because state law already prevented Medicaid money from being used to pay for abortions in Arkansas. However, the clinics also provide contraception; cancer screenings including Pap tests, breast exams and colonoscopies; tests and treatments for sexually transmitted infections; and education programs.

Bronni reminded the judge that in 2015, the state requested an evidentiary hearing attended by the three anonymous women to explore their allegations, but the request was denied, as were the state's later requests to depose the women before a preliminary injunction hearing and through written questions.

Planned Parenthood had objected on the grounds of protecting the women's anonymity and logistical problems, such as the attorneys' difficulty in being able to readily communicate with the women.

Although Baker allowed attorneys for the state to send a list of questions through Planned Parenthood attorneys for the women to answer in writing, state attorneys weren't able to cross-examine the women, Bronni noted.

After the three women were granted an injunction to restore Medicaid funding for themselves only, Planned Parenthood sought class-action status. Bronni noted that attorneys for the state then unsuccessfully sought permission to depose each potential class representative for up to two hours, to ensure they had enough in common with the class as a whole to adequately represent it.

He complained that a lack of information about the women and their similarities with other class members should prevent them from being allowed to lead a class on the remaining constitutional claims, particularly when it has been 2½ years since they were allowed to proceed as class representatives.

To have standing, a plaintiff must show that she has suffered an actual or threatened injury as a result of the challenged action. Although each member of a class isn't required to prove standing, Bronni said, "a class cannot be certified if it contains members who lack standing."

He also argued that the renewed claims appear to focus not on the women who would be class representatives but on the state's termination of the Arkansas Planned Parenthood affiliates because of their association with the larger organization and affiliates in other states.

Metro on 02/18/2018

Print Headline: State asks U.S. judge to decertify class suit; Medicaid, Planned Parenthood at case hub

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  • gagewatcher
    February 18, 2018 at 4:18 p.m.

    what services does Planned Parenthood provide that their local county Health clinic doesn't ? and since there are only two planned parenthood clinics in Arkansas Little Rock and Fayetteville it would seem reasonable that the majority of clients would spend more in travel expense than they could afford since they are on state medicaid.

  • mrcharles
    February 18, 2018 at 6:04 p.m.

    Your concern is heart wrenching.

    As alternative, perhaps prayer at the local tax free deity system structure would be even better. Might as well get a return on list revenues.