)
)
)
)
)
)
)
KELLY HEMMELGARN, individually;)
RANDALL SNYDER, individually;
)
INGRID MILLER, individually;
)
SYLVIA MATHEWS BURWELL, in )
her official capacity as Secretary for )
the United States Department of
)
Health and Human Services; and
)
JEROME ADAMS, in his official
)
capacity as Commissioner of the
)
Indiana State Department of Health )
Defendants.
)
relief and money damages under 42 U.S.C. 1983 against the defendants sued in
their individual capacities. The injunctive relief is sought the defendants sued in
their official capacities under Ex Parte Young, 209 U.S. 123 (1908), and its progeny.
Jurisdiction and Venue
1.
and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
2.
because this action arises under the Constitution or laws of the United States.
3.
1343 because this is an action to redress the deprivation, under color of State law of
rights, privileges or immunities secured by the Constitution of the United States
providing for equal rights of citizens or of all persons within the jurisdiction of the
United States and is an action to recover damages or to secure equitable or other
relief under any Act of Congress protecting civil rights.
4.
substantial part of the events or omissions giving rise to the claim occurred in this
district.
Parties
5.
Hamilton County, Indiana. He is also the owner of plaintiff, Home Care Providers,
Inc. (Home Care), an Indiana corporation with its principal place of business in
of business in Indiana. It is a home health agency licensed under Ind. Code 16-271-8. It also has a Medicare Provider Agreement with the Secretary of Health and
Human Services, through the Center for Medicare and Medicaid Services and a
Medicaid Provider agreement with the Indiana Office of Medicaid Policy and
Planning, through the Indiana State Medicaid Director.
8.
business in Indiana and is a hospice licensed under Ind. Code 16-25-3-1. It also
has a Medicare Provider Agreement with the Secretary of Health and Human
Services, through the Center for Medicare and Medicaid Services and a Medicaid
Provider agreement with the Indiana Office of Medicaid Policy and Planning,
through the Indiana State Medicaid Director.
10.
Acute Care Division of the Indiana State Department of Health (sometimes referred
to as ISDH) with responsibility for surveys for State licensing, Medicare Program
Participation, and Medicaid Program Participation for Home Health Agencies;
Hospice providers; Rural Health Centers; and End Stage Renal Disease Clinics. At
all times relevant to this Complaint she acted under color of State law. Ms.
Hemmelgarn is sued in her individual capacity.
11.
of the Indiana State Department of Health with responsibility for surveys for State
licensing, Medicare Program Participation, and Medicaid Program Participation for
Home Health Agencies; Hospice providers; Rural Health Centers; and End Stage
Renal Disease Clinics. At all times relevant to this Complaint she acted under color
of State law. Ms. Miller is sued in her individual capacity.
12.
Department of Health. He has final authority for all decisions made by the Indiana
State Department of Health. At all times relevant to this Complaint, he acted
under color of State law. Mr. Adams is sued in his official capacity only, and only
for injunctive relief, as permitted by Ex Parte Young.
14.
Burwell because they reside in this state and transact business here.
16.
This Court has personal jurisdiction over Burwell because this is a suit
relating to her actions that are purposefully directed at the State of Indiana and
that are designed to and do have a substantial impact in the State of Indiana.
The Medicare Program
17.
providers must agree to and comply with statutory and regulatory conditions of
participation and must enter into a provider agreement.
19.
Centers for Medicare and Medicaid Services (CMS), uses the Indiana State
Department of Health to survey healthcare providers for compliance with program
requirements for reimbursement under Medicare (and Medicaid). Such surveys are
conducted periodically to recertify providers for the program and upon complaints
initiated by or received by the Indiana State Department of Health or CMS.
20.
Commission for Health Care. Secretary Burwell has statutory authority to have
surveys conducted by that accrediting agency.
Plaintiffs Businesses
22.
Nightingale serves many patients that cannot obtain such care from
other home health agencies due to geography or the difficulty, expense, or lack of
profitability of providing care to those patients.
24.
including assisted living facilities, other licensed facilities, and private homes.
25.
Hospice serves many patients that cannot obtain such care from other
Hospice has operated in Indiana for nine years. Neither has ever had a malpractice
claim or lawsuit brought against it.
27.
could not find another provider, and many new patients Nightingale would
otherwise serve could not find a provider. As a result, Indiana residents would
either be deprived of needed care or would be forced to seek that care in
substantially more expensive institutional settings, i.e., hospitals and nursing
homes.
28.
provides hospice care could not find another provider, and many new patients that
Hospice would otherwise serve could not find a provider.
29.
surveyed for State licensure purposes and for certification or recertification for
participation in the Medicare or Medicaid program and because of complaints
received by or initiated by the Indiana State Department of Health or CMS.
Defendants Conduct
30.
the survey process to subject Dr. Brar, Home Care, Nightingale, and Hospice to a
continuing campaign of harassment, discrimination, intimidation, and retaliation
based on race, Plaintiffs exercise of their First Amendment rights, and personal
dislike or disapproval of Dr. Brar and his companies.
31.
reports and findings to Nightingale and Hospice than they have to similarly
situated providers for similar conditions, with no rational basis for doing so.
32.
Health surveyors to find deficiencies in the care Nightingale and Hospice provide,
without regard to whether such findings are justified, and have directed surveyors
to find that patients are in immediate jeopardy, without regard to whether the
facts justify such findings.
35.
surveyors to disregard survey guidelines that CMS publishes. CMS publishes those
guidelines to ensure that surveys of healthcare providers are consistent and fair.
36.
the extraordinary step of personally driving the distance between Plaintiffs parent
headquarters in Carmel and the proposed branch office location in Merrilville,
finding that it was just outside permissible limits. Branch locations at the same or
greater distances have been approved for other providers.
38.
Hospices closed former business premises, which were no longer open to the public
because Hospice had relocated its office from Fort Wayne to Crown Point, and by
rummaging through desks, boxes and filing cabinets in a general search for which
there was neither probable cause nor a warrant. On information and belief,
Defendant Miller was acting on instructions from Hemmelgarn and/or Snyder.
39.
subjected Plaintiffs has its genesis, in part, in racially tinged remarks that a
colleague of Snyders made, and which were recorded because Snyders colleague
failed to disconnect a call after leaving a voice message for Nightingale.
Nightingales voicemail system recorded additional comments the colleague made to
another ISDH official who was in her office at the time of the call.
40.
Dr. Brar complained about the racially tinged remarks to higher level
Since that time, and in retaliation for Dr. Brars and Nightingales
harassment. In 2015, Hospice decided to close its office in Fort Wayne, where it had
only a single patient on service nearby. After initially indicating that Hospice could
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result of an ISDH initiated complaint based on the unlawful search and seizure
conducted by Defendant Miller.
44.
that Nightingales Medicare and Medicaid status and provider agreements should
be terminated and its license to provide home healthcare services should be revoked
and instructed surveyors acting under their direction that the surveyors should find
deficiencies and find instances of immediate jeopardy that would justify such
actions.
46.
statements to Nightingale that we are going to shut you down before the survey
was even completed.
47.
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48.
to provide Nightingale with a list that would permit Nightingale to identify patients
designated solely by number on Defendants survey reports, in violation CMSs
survey manual, so Nightingale could correct and remove any deficiencies that
pertained to particular patients.
12
53.
to review and respond to Nightingale's Plans for Removal of the immediate jeopardy
situations in a consistent and timely manner, leaving Nightingale without fair
notice of what conditions the Defendants believed placed patients in immediate
jeopardy, and without information on which patients were allegedly in jeopardy.
That action deprived Nightingale of the ability to promptly remove any such
conditions, as required by State and federal regulations and survey procedures.
54.
know what conditions allegedly created immediate jeopardy, the ISDH surveyors
submitted the survey reports to CMS and Defendants purported to use those
reports to justify termination of Nightingales Medicare status and provider
agreement.
55.
review of the Defendants erroneous findings, and therefore need not further
exhaust administrative remedies before invoking the Courts power to grant relief.
56.
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57.
discrimination against Nightingale and have now directed the same tactics and
conduct at Hospice, with the preconceived intent to shut down Hospice.
58.
surveyors and decision makers who do not come to the survey process with a
preconceived intent to find Plaintiffs out of compliance and take punitive actions
against them.
59.
in this paragraph.
61.
All defendants other than the Secretary have, under color of State law,
subjected and continue to subject Dr. Brar, Home Care, Nightingale, and Hospice to
a deprivation of rights secured by the Constitution and laws of the United States.
62.
The Secretary has, under color of federal law, subjected and continues
to subject Dr. Brar, Home Care, Nightingale, and Hospice to a deprivation of rights
secured by the Constitution and laws of the United States.
63.
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64.
in this paragraph.
66.
Dr. Brar and his businesses on the basis of race, ethnicity and/or national origin, in
violation of the equal protection clause of the Fourteenth Amendment to the
Constitution of the United States.
67.
discriminated against Dr. Brar and his businesses on the basis of race, ethnicity,
and/or national origin, in violation of the equal protection component of the due
process clause of the Fifth Amendment to the Constitution of the United States.
Count II Equal Protection (Class of One)
68.
in this paragraph.
69.
Dr. Brar and his businesses by treating them more harshly than other hospice and
home healthcare providers, with no rational basis to do so, in violation of the equal
protection clause of the Fourteenth Amendment to the Constitution of the United
States.
15
70.
discriminated against Dr. Brar and his businesses by treating them more harshly
than other hospice and home healthcare providers, with no rational basis to do so,
in violation of the equal protection component of the due process clause of the Fifth
Amendment to the Constitution of the United States.
Count III First Amendment
71.
in this paragraph.
72.
The Defendants other than the Secretary have retaliated against Dr.
Brar and his businesses for protected speech and protected efforts to petition the
government for redress of their grievances, in violation of the First Amendment to
the Constitution of the United States, as incorporated into the due process clause of
the Fourteenth Amendment to the Constitution of the United States.
73.
against Dr. Brar and his businesses for protected speech and protected efforts to
petition the government for redress of their grievances, in violation of the First
Amendment to the Constitution of the United States.
Count IV Procedural Due Process
74.
in this paragraph.
75.
The Defendants other than the Secretary have ignored and violated
required procedures for Medicare surveys, depriving Dr. Brar and his businesses of
16
and violated required procedures for Medicare surveys, depriving Dr. Brar and his
businesses of liberty and/or property interests in their Medicare status and/or
provider agreements, in violation of the due process clause of the Fifth Amendment
to the Constitution of the United States.
Count V Unlawful Search and Seizure
77.
in this paragraph.
78.
misconduct will put Plaintiffs out of business. Therefore, they seek preliminary and
permanent injunctive relief :
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3.
Plaintiffs also seek all other relief that is just and proper.
Respectfully submitted,
/s/ Arend J. Abel. #10763-49
Irwin B. Levin, # 8786-49
Arend J. Abel, #10763-49
Takeena M. Thompson, #28807-53
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, Indiana 46204
Phone: 317-636-6481
Fax: 317-636-2593
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