UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARES COMMUNITY HEALTH,
Plaintiff,
v. Civil Action No. 17-2774 (JEB)
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et
al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Cares Community Health provides a variety of services to people in the
Sacramento, California, area regardless of their ability to pay. Cares also operates a pharmacy
there that offers prescription drugs under Medicare Part D, and a federal program enables Cares
to procure those drugs from manufacturers at a discount. Cares, however, does not necessarily
retain the benefit of that discount; rather, at least one insurance company has altered its contract
with Cares to reimburse it at a discounted rate. As a result, Cares has now sued the U.S.
Department of Health and Human Services and certain officials, contending that the Government
has ignored a statutory duty to regulate those contracts in order to require companies to pay
Cares the market rate for discounted drugs. Defendants now move to dismiss under Federal
Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). Finding that Cares has standing but
has failed to state a claim, the Court will grant the Motion.
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I. Background
The Court will provide some brief background on the Medicare Part D program and
Federally Qualified Health Centers (FQHCs) — of which Cares is an example — before delving
into the facts of this particular dispute.
A. Statutory Framework
Medicare Part D subsidizes prescription drugs for Medicare beneficiaries. See 42 U.S.C.
§ 1395w-101(a)(1). To administer Part D, the Centers for Medicare and Medicaid Services
(CMS) contracts with private entities known as Part D plan “Sponsors.” Id. § 1395w-115. The
Government contracts only with those Sponsors, and not directly with pharmacies, to deliver Part
D benefits. Id. § 1395w-27(a). Sponsors then enter into contracts with pharmacies to reimburse
them for providing prescription drugs to Part D beneficiaries. Id. § 1395w-104(b).
FQHCs receive grants from the Government to provide health-care services to
communities that HHS has designated “medically underserved.” See 42 U.S.C. §§ 254b,
1396d(l)(2)(B); 42 U.S.C. § 1395x(aa)(4)(A)(i). FQHCs can bill CMS for providing Medicare
or Medicaid services. Id. §§ 1395k(a)(2)(D)(ii), 1396a(bb)(2). In addition, they may purchase
prescription drugs from manufacturers at discounted prices pursuant to the Section 340B
program. See 42 U.S.C. § 256b(a)(4)(A).
At issue in this case is a statutory provision governing payment for FQHC services. To
summarize, it provides that FQHCs must be paid “not less than” non-FQHC entities for
Medicare services. See 42 U.S.C. § 1395w-27(e)(3)(A). CMS has implemented this FQHC
payment requirement by promulgating regulations providing that “[t]he contract between the
[Sponsor] organization and CMS must specify that . . . [t]he [Sponsor] organization must pay
a[n] [FQHC] a similar amount to what it pays other providers for similar services.” 42 C.F.R. §
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422.527(a). The dispute centers on whether this provision also applies to Part D prescription
drugs.
B. Factual History
Cares is an FQHC located in Sacramento, California, providing “services to all persons
within [its] designated medically underserved area . . . regardless of whether those persons can
pay for the services they receive.” ECF No. 13 (Am. Compl.), ¶¶ 7–8. In 2009, it entered into a
Pharmacy Provider Agreement with Part D plan Sponsor Humana Health Plan, Inc. Id., ¶ 34.
The Agreement governed Humana’s payment to Cares for any “Retail Pharmacy Services”
provided to Humana’s enrollees and covered all plans Humana offered, including Part D. Id.
When, in December 2014, Humana proposed amending the contract to reduce the Part D
payment rates for “340B pharmacy services,” Cares objected. Id., ¶¶ 37–38. The parties went to
arbitration, but the arbitrator concluded that “the ultimate ‘legal question [of whether Humana
was required to pay Cares under the pay ‘not less than’ standard] require[d] the reconciliation of
conflicting policies’ — in other words, an interpretation of federal law had to be made, which
was something the Arbitrator found was not arbitratable.” Id., ¶ 39.
Cares then filed this suit against HHS, its Secretary, and the CMS Administrator,
claiming that they had “unlawfully withheld” agency action in violation of the APA, see 5
U.S.C. § 706(1), because they failed to “carry out [their] mandatory duty to include the [FQHC
payment] requirement in contracts” with Part D plan Sponsors. See ECF No. 1 (Complaint), ¶
58. After Defendants moved to dismiss that Complaint, contending that the § 706(1) claim was
deficient because the FQHC payment requirement does not apply to Part D contracts, see ECF
No. 9 (Def. First MTD) at 16–18, Cares filed the Amended Complaint. Although the Amended
Complaint contains only one count, it appears to assert two distinct but related claims under the
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APA — one for unlawfully withheld agency action under § 706(1) and, alternatively, one for
arbitrary and capricious agency action under § 706(2)(A). See Am. Compl., ¶¶ 44–50.
Cares seeks an order: (1) declaring that the FQHC payment requirement applies to Part D
drugs; (2) declaring “that [D]efendants have failed to exercise their nondiscretionary duty to
include the FQHC pay ‘not less than’ term in the Part D contracts it has entered into with
[Sponsors]”; (3) enjoining “[D]efendants from entering into future Part D contracts . . . that do
not include” the FQHC payment requirement; and (4) requiring, “[r]egarding existing Part D
contracts, . . . [that] [D]efendants . . . take such actions as may be necessary to ensure that the . . .
recipients of those contracts provide for payment to FQHCs with which they have contracts at a
level and amount that is not less than what they would pay other (non-FQHC) providers for
similar services.” Id. at 21. Defendants now move to dismiss the Amended Complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). See ECF No. 14 (Def.
MTD).
II. Legal Standard
In evaluating Defendants’ Motion to Dismiss, the Court must “treat the complaint’s
factual allegations as true . . . and must grant [P]laintiff ‘the benefit of all inferences that can be
derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation
omitted); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005).
The pleading rules are “not meant to impose a great burden upon a plaintiff,” Dura Pharm., Inc.
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v. Broudo, 544 U.S. 336, 347 (2005), and it must thus be given every favorable inference that
may be drawn from the allegations of fact. Sparrow, 216 F.3d at 1113.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails “to state a claim upon which relief can be granted.” Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The Court need not accept as
true, then, “a legal conclusion couched as a factual allegation,” nor an inference unsupported by
the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C.
Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks
omitted). For a plaintiff to survive a 12(b)(6) motion, the facts alleged in the complaint “must be
enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555–56 (2007) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
Under Rule 12(b)(1), Plaintiff bears the burden of proving that the Court has subject-
matter jurisdiction to hear its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). A court also has an “affirmative obligation to ensure that it is acting within the scope of
its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.
2d 9, 13 (D.D.C. 2001). For this reason, “‘the [p]laintiff’s factual allegations in the
complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a
12(b)(6) motion for failure to state a claim.” Id. at 13–14 (quoting 5A Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).
As this Court does not reach the Rule 12(b)(7) argument, it need not lay out that standard.
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III. Analysis
Defendants seek dismissal of Cares’s Amended Complaint on three grounds: first,
Plaintiff lacks standing; second, it has not stated a claim for unlawfully withheld agency action
or for arbitrary and capricious agency action; and third, it has failed to join necessary parties.
The standing requirement is a matter of Article III jurisdiction, and so the Court will begin with
that question before moving to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94–101 (1998). Concluding that Cares has standing but has not sufficiently stated a claim,
the Court will dismiss the case without addressing the joinder issue.
A. Standing
Not every disagreement merits a lawsuit. Federal courts decide only “cases or
controversies,” a phrase given meaning by the doctrine of “standing.” See Whitmore v.
Arkansas, 495 U.S. 149, 154–55 (1990); U.S. Const. art. III. To have standing to bring an
action in federal court, the plaintiff must establish that: (1) he has suffered a concrete and
particularized injury that is actual or imminent, not conjectural or hypothetical; (2) there is a
causal relationship between his injury and the defendant’s conduct; and (3) it is likely that a
victory in court will redress his injury. Lujan, 504 U.S. at 560–61. The Court considers the first
separately and the other two together.
1. Injury-in-Fact
Cares has alleged that it is losing thousands of dollars a day from the non-enforcement of
the statutory payment requirement, see Am. Compl., ¶ 41, an economic injury that easily clears
the injury-in-fact hurdle. See Clinton v. City of New York, 524 U.S. 417, 432–33 (1998). Cares
also elaborates that this particular experience with Humana is illustrative of its larger and
ongoing economic quandary. See Am. Compl., ¶ 40. The Government briefly rejoins that Cares
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lacks standing with respect to any contract to which it is not a party, since injury-in-fact
contemplates not injury to third parties but personal injury. See Def. MTD at 17. Defendant is
correct that “a party ‘generally must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U.S.
125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). Plaintiff, however,
describes only its own monetary losses. See Am. Compl., ¶¶ 40–42. To the extent the
Government’s argument here addresses an implication in Cares’s pleading that non-parties’
injuries ought also to be redressed in this suit, the Court will consider that issue in the following
section.
2. Causation and Redressability
Defendants maintain at greater length that Cares cannot show the existence of the second
two requirements here — namely, causation and redressability. In doing so, the Government
makes four principal arguments: first, any economic injury is traceable to a third party’s conduct,
not to the Government’s; second, any declaration by the Court that CMS has failed to act on a
non-discretionary duty would not redress Cares’s economic injury; third, the Court cannot enjoin
the Government from entering into future contracts without the payment requirement because
Cares has not established the harm will recur; and finally, Cares’s injury is not redressable
because, to the extent it seeks modification of all contracts between CMS and Part D plan
Sponsors, the Court cannot alter contractual obligations of non-parties. See Def. MTD at 11–12
& n.6, 14–16. The Court will address these arguments in order.
As to the first, the Court finds that Cares’s injury is sufficiently caused by government
action for the purposes of standing. Defendant is correct that the injury Plaintiff alleges —
namely, losing several thousand dollars per working day, see Am. Compl., ¶ 41 — is a result of
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Humana’s decision to modify the contract. The core of the Complaint, nevertheless, is that
Humana’s modification would be unlawful if CMS had complied with a mandatory duty to
require a higher rate. Id., ¶¶ 17, 33, 39. Although it is well established that a heightened
showing is necessary when “a plaintiff’s asserted injury arises from the [G]overnment’s
allegedly unlawful regulation (or lack of regulation) of someone else,” Lujan, 504 U.S. at 562,
that standard has been met here. “[A] party has standing to challenge government action that
permits or authorizes third-party conduct that would otherwise be illegal in the absence of the
Government’s action.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940
(D.C. Cir. 2004), abrogated on other grounds by Perry Capital LLC v. Mnuchin, 864 F.3d 591
(D.C. Cir. 2017). The converse is also true. In other words, had Defendants taken the action that
Cares alleges is legally required, Humana’s downward modification of the contract rates would
be illegal.
The Government insists that “it is entirely plausible that Humana is paying Cares lower
Part D rates not because” CMS failed to require Humana to pay higher rates, “but rather because
Humana understands that Part D drugs do not qualify as ‘FQHC services’ to which the FQHC
payment requirement even applies.” Def. MTD at 12. This argument holds little water because
it presumes the Government’s success on the merits where, in evaluating standing, the Court
must presume Cares will prevail. See City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir.
2003). HHS also urges that “the Amended Complaint is devoid of any facts . . . supporting an
inference that Humana would change its behavior and pay Cares higher Part D rates if CMS took
the . . . action that Cares demands.” Def. MTD at 11–12. Yet Plaintiff is entitled to assume
Humana would not take “the extraordinary measure of continuing [its] injurious conduct in
violation of the law.” Renal Physicians Ass’n v. U.S. Dep’t of Health & Human Servs., 489 F.3d
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1267, 1275 (D.C. Cir. 2007) (internal quotations and citation omitted). For the same reason,
Defendants’ second contention — namely, that an order from the Court finding that CMS had
unlawfully failed to act would not redress Cares’s economic injury — is unconvincing.
HHS’s third argument — i.e., that Cares has not adequately pled future injury to support
an injunction as to future contracts — fares little better. As an initial matter, should Cares
prevail on its statutory claim and obtain an order declaring CMS has a legal obligation to enforce
the payment requirement as to Part D, such an injunction would seem unnecessary. To the extent
that Cares’s pleading of ongoing injury may be relevant to its ability to get any form of relief, the
Court finds its allegations adequate. Plaintiff identifies a quandary, explaining that its
“experience with Humana is an apt demonstration of the result of CMS’s interpretation that the
FQHC payment requirement is not applicable to Part D.” Am. Compl., ¶ 40. Given that it
follows from the Amended Complaint that Cares will continue to enter into contracts of this type,
additional specificity on its part is not required for the Court to conclude that Plaintiff’s injury
will not cease with the expiry of this particular contract.
The Government’s final argument, however, is more persuasive. It contends that the
Court does not have the power to “take such actions as may be necessary” to enforce the
payment requirement as to existing contracts, as Cares requests. See Def. MTD at 14–15. At the
very least, it is not clear to the Court what actions it might take to revise every existing contract,
including those binding exclusively non-parties. Cares must demonstrate standing for each form
of relief it seeks, see Friends of the Earth, Inc. v. Laidlaw Env’l Servs., 528 U.S. 167, 185
(2000), and it has not done so here.
* * *
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To sum up, then, Cares has adequately demonstrated the three requirements to support
standing for each form of relief it seeks, except as to its requested modification of existing
contracts. The Court now turns to the merits.
B. APA Claim
Cares contends that CMS has breached a clear and discrete statutory duty to include the
payment requirement and has therefore either unlawfully withheld agency action or,
alternatively, acted arbitrarily and capriciously by entering into Part D contracts without the
payment requirement. See ECF No. 16 (Pl. Opp.) at 20. Defendants respond that Cares has not
identified any non-discretionary duty CMS has breached because the proposition that the FQHC
payment requirement must be included in Part D contracts or that the payment requirement
applies to Part D drugs is “wrong as a matter of law.” Def. MTD at 22. Having examined the
statutory scheme, the Court agrees with the Government.
First and foremost, the text of the payment requirement does not contemplate prescription
drugs:
A contract under this section with [a Sponsor] organization shall
require the organization to provide, in any written agreement
described in section 1395w-23(a)(4) of this title between the
organization and a [FQHC], for a level and amount of payment to
the [FQHC] for services provided by such health center that is not
less than the level and amount of payment that the plan would make
for such services if the services had been furnished by a[n] entity
providing similar services that was not a [FQHC].
42 U.S.C. § 1395w-27(e)(3)(A) (emphasis added). The provision thus makes clear that an
FQHC must be paid “for services provided by such health center . . . not less than the level and
amount of payment” that would be rendered for similar services provided by a non-FQHC entity.
See 42 U.S.C. § 1395w-27(e)(3)(A). In other words, reimbursement cannot be made at a
discounted rate. The statute defines “[FQHC] services” as “preventative primary health
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services”; “physicians’ services and such services and supplies . . . if furnished as an incident to a
physician’s professional service”; and “services furnished by a physician assistant,” nurse
practitioner, clinical psychologist, or a clinical social worker and “such services and supplies
furnished as an incident to his service.” 42 U.S.C. § 1395x(aa)(1)(A)-(C), (3). As “incident to
his service,” the statute means “services and supplies (including drugs and biologicals which are
not usually self-administered by the patient) furnished as an incident to a physician's professional
service, of kinds which are commonly furnished in physicians’ offices and are commonly either
rendered without charge or included in the physicians’ bills.” Id. § 1395x(s)(2)(A). This
definition of services excludes prescription drugs.
Plaintiff rejoins that the definition of services in 42 U.S.C. § 1395x should not be
controlling because the payment requirement quoted above from § 1395w does not explicitly
refer to “[FQHC] services,” but rather to “services provided by [an FQHC],” a different
formulation that it believes is broader and more general. See Pl. Opp. at 11–12. Although
Plaintiff is correct that the § 1395x definition is specifically of “FQHC services” and that the
statute in other places does use that specific phrase rather than the iteration used in the payment
requirement, see, e.g., 42 U.S.C. § 1395y(a)(2), the Court concludes that the slight variation in
phrasing cannot bear the weight of Plaintiff’s argument. The statute does not separately define
services; rather, it lists categories of them. See, e.g., 42 U.S.C. § 1395x(b),(h),(m),(s). In other
words, there is no more general statutory definition of “services” on which Plaintiff can rely. It
is logical, given that structure, to apply the statutory definition of “FQHC services” to the
linguistic synonym “services provided by an FQHC.”
Cares’s strongest argument is based on 42 U.S.C. § 1395w-112(b)(3)(D) — the statutory
provision that applies the FQHC payment requirement, along with the other elements of
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§ 1395w-27(e), to Part D contracts. See Pl. Opp. at 16–17. It elaborates that § 1395w-
112(b)(3)(D) modifies some of the § 1395w-27(e) provisions in their application to Part D, but
does not modify the payment requirement, indicating the Congress intended the payment
requirement to apply to Part D unchanged. Id. The problem for Plaintiff is that § 1395w-112(b)
does not alter the statutory definition of services, which excludes Part D drugs. Cares replies that
so interpreting the incorporation provision would create a superfluity problem insofar as the
incorporation of § 1395w-27(e)(3)(A) to Part D would have no practical effect. Id. at 17. Of
course, Plaintiff does not dispute that there are many contractual terms enumerated in § 1395w-
27(e) besides the subsection at issue that do apply to Part D. To the extent Cares is correct that
the incorporation of the payment-requirement provision specifically would have no effect,
however, the possibility of some amount of surplusage is not enough to defeat the plain text of
the provision, which limits its applicability only to services. See Marx v. Gen. Revenue Corp.,
568 U.S. 371, 385 (2013). “Particular[ly]” here, “where the surplus words consist simply of a
numerical cross-reference,” it is not appropriate to allow a general rule against surplusage to
defeat the clear reading. See Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001).
The Court need not discuss at great length Plaintiff’s next argument, which concerns
statutory purpose. Cares contends that Congress intended FQHCs, not Plan D Sponsors, to
internalize the benefit of discounted prescription drugs. See Pl. Opp at 13. While that argument
may be intuitive enough, nowhere does a hook for it appear in the statute. Congress could easily
have implemented some provision to ensure that FQHCs retained the discount in the Part D
context. That much is clear because Congress did something similar for Part C by providing for
a so-called “wrap-around” payment. Medicare must reimburse FQHCs for the services they
provide. See 42 U.S.C. § 1395l(a)(3)(A). To the extent that FQHCs may be paid less by an
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insurance company administering Part C than it would be paid under Parts A and B, HHS pays
FQHCs a wrap-around payment to make up the difference. See 42 U.S.C. §§ 1395l(a)(3)(B),
1395w-23(a)(4). No similar payment exists for Part D.
To the extent Plaintiff offers a textual basis for its purpose argument, it relies on a
different statute: the 340B discounted-prescription-drug program. Cares contends that, as a
condition of its participation in the 340B program, it may not transfer to an insurer the benefits it
receives, nor may it apply any discounts when collecting fees so as not to subsidize other health-
care payors. See Pl. Opp. at 15–16. The provisions on which Cares relies, however, do not
sweep so broadly. Participants in the program may not resell the drugs they receive, but the
statute does not broadly proscribe transferring a benefit. See 42 U.S.C. § 256b(a)(5)(B). And
the latter provision is simply an application criterion for the program. See 42 U.S.C.
§ 254b(k)(3)(G)(ii)(II). These scattered references in a separate statute are insufficient to salvage
Plaintiff’s reading of the FQHC payment requirement.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion and dismiss
Plaintiff’s Complaint for failure to state a claim pursuant to Rule 12(b)(6). A separate Order
consistent with this Opinion will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: September 28, 2018
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