IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION TWELVE
DR. JOHN M. HIEBERT, M.D.; )
fig. KANSAS L.L.C.; and )
fig. OVERLAND PARK L.L.C., )
Petitioners, )
)
v. ) Case No. 07-C-1200
)
)
KANSAS STATE BOARD OF )
HEALING ARTS, )
Respondent. )
)
MEMORANDUM DECISION AND ORDER
This action for judicial review comes before the Court on a Motion for Temporary Injunction filed by the Petitioners on August 31, 2007. At the time the Motion for Temporary Injunction was filed, a hearing date was set for 2:00 p.m. on September 10, 2007. The Court did not receive any additional filings from either party until literally minutes before the court hearing was scheduled to commence. However, since time is of the essence in this matter, the evidentiary hearing went forward as scheduled. Following the hearing, both parties submitted written closing arguments to the Court. Thus, since the Motion for Temporary Injunction has now been fully briefed and argued, the Court deems it to be submitted for decision.
FINDINGS OF FACT
The procedural history of this matter is not in dispute and is reflected in the Agency Record filed with the Court. On or about April 21, 2007, the Kansas Board of Healing Arts (hereinafter “the Board”) adopted K.A.R. 100-22-8 as a temporary regulation. (A copy of the temporary regulation is included in the Agency Record as Exhibit 1.) On April 23, 2007, General Counsel for the Board sent a Memorandum to the Kansas Rules and Regulations Board requesting that the temporary regulation become effective immediately “in order to preserve the public health, safety and welfare.” This request was granted and the temporary regulation became effective on April 24, 2007.
A “Notice of Hearing on Proposed Administrative Regulations” issued by Lawrence T. Buening, Jr., in his capacity as Executive Director of the Board was also published in the Kansas Register on May 3, 2007, as was the temporary regulation. The “Notice of Public Hearing” stated that a public hearing would be held by the Board “to consider the adoption of one proposed new rule and regulation (K.A.R. 100-22-8) dealing with dishonorable conduct.” The Agency Record reflects that the “new rule and regulation” which was proposed by the Board was identical to the temporary regulation which had become effective on April 24, 2007.
Furthermore, the “Notice of Hearing” provided for a 60-day “public comment period” and indicated that the public hearing on the proposed regulation would be held on July 5, 2007. The “Notice of Hearing” also stated: “All interested parties will be given a reasonable opportunity to present their views, orally or in writing, concerning the adoption of the [proposed] regulation during the hearing.” The “Notice of Hearing” also contained a summary of the proposed regulation. The summary stated that the proposed regulation provided “that a physician engages in dishonorable conduct in administering or authorizing another to administer [phosphatidylcholine and sodium deoxycholate (hereinafter “PCDC”)] except in a proper clinical research project or when compounded for a specific patient following the physician’s order.” (Emphasis added.)
The Minutes of the public hearing held on July 5, 2007, as well as a complete transcript of the hearing, are included in the Agency Record. The Agency Record also includes the “written comments” which were submitted to the Board. At the beginning of the public hearing, the General Counsel for the Board (who served as the Presiding Officer) stated: “The Board adopted the regulation that is now proposed as a temporary regulation. The State rules and regs board approved that regulation on April 24th and it did become effective as a temporary regulation on that date.” (Emphasis added.) Furthermore, the General Counsel stated that the Public Hearing provided interested persons “the opportunity to speak and give some verbal comments on this proposed regulation.” (Emphasis added.)
Hence, it is apparent that the subject of the public hearing on July 5, 2007, was a proposed regulation that contained the same language as the temporary regulation which became effective on April 24, 2007. It is also apparent that at the time of the public hearing, paragraph (c) of the proposed regulation continued to permit the “subcutaneous injection” of PCDC in Kansas “if a person licensed to practice medicine and surgery or osteopathic medicine and surgery performs a physical examination of the patient, records the patient’s medical history, and issues a written prescription order to compound the mixture for that patient.” Moreover, this Court has found nothing in either the Minutes or transcript of the public hearing which would have given the participants any indication that the Board was considering the deletion of this provision from the proposed regulation.
It is difficult to determine from the Agency Record what occurred following the conclusion of the public hearing held on July 5, 2007. The Agency Record does not contain Minutes from the Board’s meeting held on August 20, 2007, nor does it contain a transcript of the meeting. Rather, Agency Record contains a Certification signed by the Board’s Executive Director on August 22, 2007, which states that “a new permanent regulation” had been adopted by the Board at the August 20th meeting. However, in comparing the wording of the “new permanent regulation” with that of the proposed regulation, it is apparent that substantial modifications had been made by the Board at some point following the public hearing. Specifically, paragraph (c) had been deleted in the entirety. (A copy of the “new permanent regulation” is included in the Agency Record as Exhibit 24.)
There is nothing in the Agency Record to explain the Board’s rationale for the elimination of paragraph (c) from the version of the regulation which had received a public hearing. The only other documents which appear in the Agency Record are a Memorandum to the Board from its General Counsel dated September 7, 2007, which addresses the Petitioners’ request for an administrative stay, and a letter submitted by the Board’s Executive Director to this Court on the afternoon of September 10, 2007, regarding a special meeting which had been held over the noon hour. As indicated above, since the Board did not grant the administrative stay requested by the Petitioners, the Court went forward with the hearing to consider the Motion for Temporary Injunction on the afternoon of September 10, 2007.
STANDARD OF REVIEW
Whether a temporary injunction should be granted or denied is left to the sound discretion of the trial court. See Board of Leavenworth County Comm’rs v. Whitson, 281 Kan. 678, 683, 132 P.3d 920 (2006). In Kansas, there are four (4) requirements for obtaining a temporary injunction. These requirements are:
“(1) there is a reasonable probability of irreparable future injury to the movant; (2) an action at law will not provide an adequate remedy; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest.”
Steffes v. City of Lawrence, ___ Kan. ___, 160 P.3d 843, 854 (June 22, 2007) (quoting Whitson, 281 Kan. at 683.)
In addition to the four (4) requirements set forth above, the movant must also establish that there is a substantial likelihood of success in order to obtain a temporary injunction. See Steffes, 160 P.3d at 854. Moreover, it has been held that “the purpose of a temporary or preliminary injunction is not to determine any controverted right but to prevent injury to a claimed right pending a final determination of the controversy on its merits . . . A temporary injunction merely preserves the status quo until a final determination of a controversy can be made.” Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, Syl. 2, 726 P.2d 287 (1986). Finally, in ruling on the Motion for Temporary Injunction, the Court must keep in mind that a temporary order “should be no broader than the occasion shown requires.” Wichita Wire, Inc., 11 Kan. App. 2d at 466.
Notwithstanding the above, it is important to recognize that this action is before the Court on a Petition for Judicial Review. As such, this action is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, (hereafter “KJRA”) K.S.A. 77-601 et seq. Under the KJRA, requests for stays and other temporary remedies, are controlled by K.S.A. 77-616. If a state agency denies a request for a stay or other temporary relief, a party “may file a motion in the reviewing court, during the pendency of the judicial review, seeking interlocutory review of the agency’s action on application for stay or other temporary remedies.” K.S.A. 77-616(b). “If the Court determines that relief should be granted . . . the Court may remand the matter to the agency with directions . . . or the Court may issue an order . . . granting a stay on appropriate terms or granting other temporary remedies.” K.S.A. 77-616(e).
The general rule is that a court “shall grant relief if it finds, in its independent judgment, that the agency’s action on the application for stay or other temporary remedies was unreasonable in the circumstances.” K.S.A. 77-616(d). However, if a state agency makes a finding “that its action on an application for stay or other temporary remedies is justified to protect against a substantial threat to the public health, safety or welfare, the court may not grant relief unless it finds that four requirements are met.” K.S.A. 77-616(c).
The four (4) requirements set forth in K.S.A. 77-616( c ) are:
“(1) The applicant is likely to prevail when the court finally disposes of the matter; (2) without relief the applicant will suffer irreparable injury; (3) the grant of relief to the applicant will not substantially harm the other parties to the proceedings; and (4) the threat to public health, safety or welfare relied on by the agency is not sufficiently serious to justify the agency’s action in the circumstances.”
In this action, it is questionable whether the standard set forth in K.S.A. 77-616(c) is applicable since it does not appear that the Board made a finding that its refusal to grant a stay was “justified to protect against a substantial threat to the public health, safety or welfare.” Regardless, since the Court recognizes the importance of the underlying issue to the public, it will review the current motion from the perspective of K.S.A. 77-616(c).
LEGAL ANALYSIS AND CONCLUSIONS
At the outset, the Court would like to take the opportunity to recognize the diligent manner in which this matter has been handled by legal counsel. As the parties are aware, the Court placed the Motion for Temporary Injunction on an accelerated schedule since K.A.R. 100-22-8 is scheduled to become effective on September 14, 2007. However, just as it has asked counsel to work under an aggressive schedule, the Court has also attempted to work diligently to review hundreds of pages of documents and to conduct extensive legal research in a short period of time in an attempt to render a fair and just decision prior to the September 14th deadline.
A. Likelihood Petitioner Hiebert will Prevail on the Merits.
Based on its review of the Agency Record and the law applicable to this case, the Court finds that Petitioner Hiebert will likely prevail when the underlying issues presented in this action for judicial review are finally resolved on the merits. In the interest of time, the Court will not go into a lengthy discussion. However, it is important to note that as the Court indicated in the Findings of Fact, it can find nothing in the Agency Record which explains the Board’s rationale for removing paragraph (c) of the proposed regulation following the public hearing held on July 5, 2007. The Court further finds that the deletion of paragraph (c) constituted a substantial and material alteration of the proposed regulation which was the subject of the public hearing held on July 5, 2007. Thus, it appears likely to the Court that the provisions of K.S.A. 77-415 et seq. were not followed by the Board.
As the Board’s General Counsel frankly admits in his written closing argument: “The question of whether additional public hearings were required by state law is open to fair debate.” Based on the evidence provided to date, the Court finds that additional public hearings were likely necessary in order to comply with the Kansas statutes controlling the adoption of administrative rules and regulations. It is also likely that such a substantial and material alteration of the proposed regulation without additional public hearings violated procedural due process.
“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” (Emphasis added.) State v. Moody, 282 Kan. 181, Syl. 2, 144 P.3d 612 (2006). At this point in time, the Court does not find that interested persons were given the opportunity to be heard regarding the elimination of paragraph (c) from the proposed regulation “at a meaningful time and in a meaningful manner.” Furthermore, based on the failure to provide any justification for the substantial changes made after the Public Hearing, it is likely that the Court would find the Board’s action to delete paragraph (c) was unreasonable, arbitrary and/or capricious.
B. Likelihood Petitioner Hiebert will Suffer Irreparable Harm.
After reviewing the Agency Record and considering the testimony which was offered at the hearing held on September 10, 2007, the Court finds that it is likely that Petitioner Hiebert will suffer irreparable injury if temporary relief is not granted. Although the Board has raised a legitimate question regarding the standing of a non-health care provider to challenge K.A.R. 100-22-8, it is undisputed that Petitioner Hiebert has standing to pursue this action for judicial review. Thus, for the purposes of considering the Motion for Temporary Injunction, the Court has disregarded the testimony of Sharmyn Calhoun and Kelly Adam.
Notwithstanding, the Court found Petitioner Hiebert’s testimony to be credible and to provide a sufficient basis to establish a likelihood that he would suffer irreparable harm if a temporary injunction is not entered. Specifically, the Court finds that it is likely that the physician-patient relationship between Petitioner Hiebert and his patients will be irreparably harmed if he is required to abandon them during the middle of their PCDC treatments. As indicated above, the Court’s role at this juncture is simply to determine whether the status quo should be protected until a final determination of the underlying controversy can be made. Under the circumstances presented, the Court finds sufficient evidence in the record to establish that there is a likelihood of irreparable future harm to Petitioner Hiebert in the event that the status quo is not protected. In addition, the Court finds that since the Respondent is a state agency, it is unlikely that an action at law would be available to provide Petitioner Hiebert with an adequate remedy should temporary relief be denied.
C. Likelihood of Substantial Harm to the Board.
From a review of the Agency Record and the evidence presented at the hearing, the Court finds that the granting of temporary relief to Petitioner Hiebert will not substantially harm the Board. The Board will continue to have jurisdiction over the Kansas medical licenses of Petitioner Hiebert and other physicians who prescribe “subcutaneous injections” of PCDC to their patients. Likewise, if “fig.Overland Park, L.L.C.” has actually violated the “corporate practice doctrine” as the Board contends in its written closing argument, the Board or other proper authorities will continue to have the ability to take whatever action that may be appropriate to enforce Kansas law.
D. Threat to Public Health, Safety or Welfare.
It is also important to recognize that at the time the “new permanent regulation” was adopted on August 20, 2007, the Board’s temporary regulation was still effective. It is undisputed that the temporary regulation specifically permitted “subcutaneous injection [of PCDC] if a person licensed to practice medicine and surgery or osteopathic medicine and surgery performs a physical examination of the patient, records the patient’s medical history, and issues a written prescription order to compound the mixture for the patient.” Moreover, there is no evidence in the Agency Record that any attempt was made to revoke the temporary regulation prior to the time it expired pursuant to the terms of K.S.A. 77-422. Hence, it is logical to conclude that as of August 20, 2007, the Board did not believe that the prescription of “subcutaneous injections” of PCDC by licensed physicians caused a substantial threat to the public health, safety or welfare.
E. Findings Regarding Burden of Proof.
Under all of the circumstances presented, the Court finds that Petitioner Hiebert has made an appropriate showing to obtain temporary relief in order to preserve the status quo. The Court further finds that Petitioner Hiebert has met his burden of proof under the four (4) requirements for obtaining a temporary injunction. Likewise, the Court finds that Petitioner Hiebert has also met his burden of proof to obtain temporary relief pursuant to K.S.A. 77-616. Thus, since the Court has determined that temporary relief should be granted, it must now determine the appropriate temporary remedies to be imposed.
F. Imposition of Temporary Remedies.
The Motion for Temporary Injunction filed by the Petitioners seeks to stay the effective date of K.A.R. 100-22-8. However, since a temporary remedy should be no broader than the particular circumstances require, the Court finds that the Petitioners’ request is overly broad. As Petitioner Hiebert recognized during the hearing held on September 10, 2007, the Board’s action to attempt to keep PCDC “out of the hands of the unscrupulous or untrained” provides protection to the public and serves an important purpose. Thus, the Court finds that a less restrictive temporary remedy should be imposed in this action to protect the status quo.
Based on the unique circumstances presented in this action, the Court finds that it is appropriate to temporarily enjoin the Board from enforcement of K.A.R. 100-22-8 (or any other temporary or permanent regulations which are substantially similar) against any person licensed in Kansas to practice medicine and surgery or osteopathic medicine and surgery who properly performs a physical examination of the patient, properly records the patient’s medical history, and properly issues a written prescription order to compound the mixture for that patient in accordance with the appropriate standard of care. The Court further finds that it is appropriate that this temporary injunction remain in effect until further order of the Court or until this action for judicial review is finally terminated..
Furthermore, in order to give the parties the opportunity to continue to work together to explore other alternatives for resolution of this dispute, the Court finds that it is appropriate to remand this matter to the Board for further action. As such, in accordance with the provisions of K.S.A. 77-619(b), the Court remands this action to the Board to conduct fact-finding and/or other appropriate proceedings which are necessary to determine the appropriate restrictions which are necessary for regulating the prescription of “subcutaneous injections”of PCDC by those licensed to practice medicine and surgery or osteopathic medicine and surgery by the State of Kansas. Specifically, the Court does not find the Agency Record is adequate to allow for judicial review of the Board’s action relating to the deletion of paragraph (c) of the proposed regulation following the public hearing held on July 5, 2007.
CONCLUSION
Therefore, pursuant to K.S.A. 77-616, the Court hereby enters a Temporary Injunction on the terms and conditions set forth in this Memorandum Decision and Order. In addition, the Court remands this action for judicial review to the Board of Healing Arts for additional fact-finding or other appropriate proceedings pursuant to K.S.A. 77-619. Finally, the Court directs the Board to keep an adequate record of all proceedings relating to the issues presented in this action for judicial review.
This Memorandum Decision and Order shall serve as the final order of the Court. No further Journal Entry is required.Entered on this ______ day of September, 2007.
_____________________________
David E. Bruns
District Court Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the day of September, 2007, she served a true and correct copy of the above and foregoing pleading by United States mail, first class postage prepaid to:
Thomas G. Lemon
Bryan Smith
CAVANAUGH, SMITH & LEMON, P.A.
2942A SW Wanamaker Drive-Ste. 100
Topeka, Kansas 66614
Mark Stafford
Diane Bellquist
Kansas State Board of Healing Arts
235 S. Topeka Boulevard
Topeka, Kansas 66603-3068
Colleen A. Speaker
Administrative Assistant