Bader v. Wernert (178 F. Supp. 3d 703, 2016)

OPINION AND ORDER

THERESA L. SPRINGMANN, UNITED STATES DISTRICT COURT

This case involves several plaintiffs seeking to enjoin the actions of Dr. John J. Wernert and Joe Moser, who are the officials in the Indiana Family and Social Services Administration (FSSA) charged with overseeing Indiana’s Medicaid program (the “Defendants”). The plaintiffs include healthcare providers Dr. Patricia Bader and the Northeast Indiana Genetic Counseling Center, P.C. (the “Providers”), and several patients: P.D., through his guardian and representative, Cynthia Church; A.W.; and A.K. and C.K., each through their guardian and representative, Perla Graber (the “Patients”). On December 10, 2015, the Plaintiffs filed a motion requesting that this Court enjoin FSSA from (1) “terminating the Providers from the Indiana Medicaid program and” (2) “continuing to block all payments owed to the Providers for claims submitted over a two-year period through the placement of the Providers in the so-called ’Medicaid Prepayment Review Program.’” (Pis.’ Mot. TRO & Prelim. Inj. 18, ECF No. 2.) On December 16, 2015, the Court held an on-the-record, ex parte telephone conference with Plaintiffs’ counsel regarding the Temporary Restraining Order (TRO). However, upon being notified that FSSA’s counsel entered their appearances after the telephone conference started, the Court continued the telephone conference. On December 17, 2015, the Court resumed the on-the-record telephone conference with all parties participating, and as such, the request for a TRO was rendered moot.

This matter is now before the Court on the Plaintiffs’ Motion for Preliminary Injunction [ECF No. 2]. The Plaintiffs bring all their claims under 42 U.S.C. § 1983. The Patients allege that FSSA’s decision to terminate Dr. Bader as a Medicaid provider, as well as FSSA’s use of prepayment review against the Providers, violates their statutory right to freely choose their Medicaid provider. 42 U.S.C. § 1396a(a)(23). The Providers allege that FSSA has violated their right to due process under the Fourteenth Amendment. The parties have fully briefed the issues and the Court presided over a five-day evidentiary hearing that started on January 19, 2016, and ended on January 25, 2016. For the reasons set forth below, the Plaintiffs’ Motion is granted in part, and denied in part. FSSA’s without cause termination of Dr. Bader is preliminarily enjoined, but the Plaintiffs’ other claims are denied.

BACKGROUND

Dr. Bader is a physician who has an Indiana medical license. She is certified in pediatrics by the American Board of Pediatrics, and certified in clinical genetics and clinical cytogenetics by the American Board of Medical Genetics. In 1981, Dr. Bader founded Northeast Indiana Genetic Counseling Center (NIGCC). Since that time, Dr. Bader has been the president of NIGCC, as well as its primary physician. Through NIGCC, Dr. Bader provides patients with “genetic services including evaluation, genetic diagnostic services, counseling, management[,] and surveillance recommendations.” (Dr. Bader Aff. 1, ECF No. 2-2.) NIGCC’s office is located in Fort Wayne, Indiana, and its patients reside across the northern Indiana region, including the Fort Wayne metropolitan area. About 50 percent of NIGCC’s patients reside in areas designated by the federal Health Resources and Services Administration as underserved and physician shortage areas.

Dr. Bader testified that NIGCC serves patients who have “muscular dystrophy, cystic fibrosis, Huntington’s disease, Mar-fan Syndrome, hemochromatosis, chromosome abnormalities, autism, mental retardation, fetal alcohol syndrome, and many patients with birth defects that lead to disability.” (Dr. Bader Aff. 3.) Throughout most of NIGCC’s existence and Dr. Bad-er’s career, she has been the only Medicaid-eligible provider of genetic services in northeastern and north central Indiana. However, from August 2013 through November 2015, NIGCC also employed Dr. Karl de Dios, who is a biochemical geneticist certified by the American Board of Medical Genetics and Genomics. Dr. de Dios treated Medicaid patients while employed by NIGCC. NIGCC also currently employs a nurse practitioner. Apart from NIGCC, in late 2015, northeastern Indiana gained another physician-geneticist. This geneticist is located in Topeka, Indiana, and is certified by the American Board of Medical Genetics and Genomics. Geneticists are also located in South Bend and Indianapolis. Dr. Bader testified that “[NIGCC’s] patient population relies heavily on the Indiana state Medicaid program.” (Dr. Bader Aft 3.)

From 1981 through August 2013, Dr. Bader was the only full-time physician working at NIGCC. In June 2003, Joe Bader was hired as the office manager for NIGCC. At that time, NIGCC’s staff included Dr. Bader, Mr. Bader, “one full-time clerical person,” and “a part-time person that came in one day a week.. .maybe a half a day.” (Prelim. Inj. Hr’g Tr. vol. 3, 549:21-24.) Mr. Bader testified that, in 2003, NIGCC had overall revenue that was “not very steady,” and ranged from $15,000 to $20,000 per month. (Hr’g Tr. vol. 3, 549:18-20.) Further, NIGCC treated “less than 1500” Medicaid patients, which represented “the majority” of the office’s patients. (Hr’g Tr. vol. 3, 532:12-15, 551:1-2.) Two weeks after Mr. Bader joined NIGCC, he hired Lori Gomez to serve as the office’s second billing provider. Gomez’s primary job responsibility is to process medical claims after the medical providers treat patients and complete the billing sheets, which includes submitting claims to Medicaid for payment.

Mr. Bader testified that, starting in 2003, NIGCC’s practice grew exponentially. By 2013, revenues ranged from $80,000 to $100,000 per month, with “[o]ver 70 percent” of NIGCC’s overall revenue coming from Medicaid payments. (Hr’g Tr. vol. 3, 550: 20-22.) Dr. Bader testified that when NIGCC had five practitioners on staff, it was treating about 10,000 patients per year and about 70 percent of the patients were on Medicaid. One of these practitioners included Dr. de Dios once he joined NIGCC in August 2013 as the second geneticist. NIGCC also had about nine non-practitioners on staff, meaning that it had a total of fourteen full-and part-time employees.

At NIGCC, Dr. Bader treats patients who request one-time appointments, as well as other patients who see her on a regular basis for continuing care. The Patients in this lawsuit fall into the latter category. P.D., who is twenty-eight years old, is diagnosed with “autism spectrum disorder, moderate mental disability, and anxiety.” (Church Aff. 2, ECF No. 2-4.) Cynthia Church, who is P.D.’s biological mother and legal guardian, testified that he will need assistance all his life because he has a first-grade reading level and has low functioning skills. P.D. first received treatment from Dr. Bader when he was eight years old. Subsequently, P.D. stopped seeing Dr. Bader for an -unspecified period of time, but he resumed seeing Dr. Bader around the time he turned eighteen. P.D. sees Dr. Bader and NIGCC about four times per year for routine check-ups, during which Dr. Bader usually prescribes medication to treat his autism spectrum disorder, moderate mental disability, and anxiety.

A.W. is eighteen years old and has seen Dr. Bader since he was eight years old. A.W. has appointments with Dr. Bader “once a month on average” for routine check-ups and he receives prescription medication. (A.W. Aff. 2, ECF No. 2-5.) A.W. has been diagnosed with “conduct disorder, mild retardation, attention deficit disorder, impulse control disorder, depression, withdrawal, lead poisoning, and sensory receptive disorder.” (A.W. Aff. 2.) He also has seizures and hearing loss.

Dr. Bader and NIGCC also treat Perla Graber’s adoptive children, A.K. and C.K, who are seventeen years old and thirteen years old, respectively. Perla Graber, as the legal guardian of A.K. and C.K., testified on their behalf. According to Ms. Graber, A.K. first saw Dr. Bader around fourteen years ago for her conditions, which include “fetal alcohol syndrome, anxiety, depression... [and] fetal cocaine diagnosis.” (Hr’g Tr. vol. 2, 214:7-10.) A.K. sees Dr. Bader for routine check-ups, monthly prescriptions, and emergency care during acute episodes. This results in A.K. meeting with Dr, Bader three times per year, but the additional-appointments with Dr. Bader for emergency care could increase the frequency of appointments to once a month. C.K. has fetal alcohol syndrome, Asperger’s syndrome, and anxiety. Similar to A.K., Dr, Bader sees C.K, for routine check-ups, monthly prescriptions, and emergency care during acute episodes, and C.K. may meet with Dr. Bader as often as once a month. However, unlike A.K., C.K. “first began receiving' care from Dr. Bader a few years ago. He subsequently switched to another provider” but “moved back to using Dr. Bader” “in the past year” because “we were happier with [her] care.” (Graber Aff. 2, ECF No. 2-3.)

The Patients have uniformly stated, either personally or through a guardian: (1) that their conditions “could have a genetic component to them” (Graber Aff. 3; Church Aff. 2; A.W. Aff. 2); (2) that they are happy with the care they receive from Dr. Bader and NIGCC; (3) that they would be upset if they could no longer see Dr. Bader; and (4) that they are unsure about whether they could provide their own transportation to see another geneticist, as well as whether their medical care would continue. Further, the Patients all receive some form of Medicaid that pays for their care from Dr. Bader.

Starting in late-2013, the Providers’ interactions with FSSA changed. -On October 28,2013, FSSA issued a letter stating that, in accordance with 42 C.F.R. § 455,23, NIGCC had been placed on a payment suspension, which applied to “any and all Medicaid claims submitted by” NIGCC. (Pis.’ Hr’g Ex. 1, at 1; Notice of Payment Suspension 1, ECF No. 2-6.) The letter informed NIGCC that the Office of Medicaid Policy and Planning instituted this temporary suspension because it received credible allegations of fraud. Specifically, that NIGCC “has billed codes with time components in excess of daily operating hours” and “has billed evaluation and management codes at the highest possible level at a higher rate than peers.” (Pis.’ Hr’g Ex. 1, at'l; Notice of Payment Suspension 1.)

That same day, FSSA also issued a second letter, which notified NIGCC that it had been placed on prepayment review, Prepayment review is a statewide surveillance and utilization control that “’Safeguards against unnecessary or inappropriate use of Medicaid services and against excess payments.’” (Pis.’ Hr’g Ex. 2, at 2 (quoting 42 C.F.R. § 456.3).) A provider on prepayment review is not paid for a submitted claim until a prepayment review analyst has reviewed the claim to verify its accuracy. In contrast, a provider not on prepayment review has a claim paid without it being reviewed by a prepayment review analyst. A provider is removed from prepayment review when their billing accuracy rate meets or exceeds 85 percent for three consecutive months;. In other words, if 85 percent or more of the Providers’. claims are approved over a three-month period, then they are no longer subject to FSSA’s prepayment review team.

Although NIGCC was placed on prepayment review for all its Medicaid claims, the FSSA prepayment review team is only responsible for reviewing a portion of these claims. To the extent relevant here, Indiana Medicaid is separated into two categories: (1) traditional fee-for-sérvice; and (2) managed care. The FSSA prepayment review team only reviews claims for Medicaid patients who receive traditional fee-for-sérvice. Managed care entities (MCEs) administer claims for Medicaid patients who are on managed care. FSSA does not have oversight authority over MCEs. Further, MCEs have their own prepayment review teams to process NIGCC’s claims, as well as their own rules for prepayment review. NIGCC’s patient population includes Medicaid recipients who receive either traditional fee-for-service or managed care. Because MCEs are separate from FSSA, FSSA does not have data showing how many of NIGCC’s patients are on managed care.

On November 8, 2013, NIGCC timely filed a request for a stay and appeal of the payment suspension. On November 18, 2013, NIGCC was informed that FSSA decided not to grant the stay, but the appeal remained pending. The appeal was resolved on November 10, 2014, when FSSA lifted the payment suspension. Although NIGCC could now receive payment on claims it submitted, NIGCC remained on prepayment review. On May 13, 2015, FSSA issued a letter that notified NIGCC that it was terminated as a Medicaid provider. This notice of termination, which Scott Gartenman identified as a “for cause” termination, stated that NIGCC committed regulatory violations because its billing “included a lack of supporting documentation, incorrect procedure code billing, and a lack of evidence to prove physician involvement in claims billed.” (Pis.’ Hr’g Ex. 11, at 2.) Further, an FSSA audit revealed a claim error rate of 99.07 percent. NIGCC’s claims reviewed through prepayment review had an error rate of 100 percent. Despite this “for cause” basis to terminate NIGCC’s provider agreement, FSSA ultimately dismissed the termination after it learned that “the prepayment review team had ... never signed and sent” a 12-month compliance document to NIGCC. (Gartenman Dep. 40:12-24, ECF No. 30.) Due to this oversight, FSSA allowed NIGCC to remain a Medicaid provider, and NIGCC resumed participating in prepayment review as of July 1, 2015.

On July 8, 2015, Dr. Bader received a notice stating that, pursuant to paragraph 39(b) of the Indiana Health Coverage Program Provider Agreement, FSSA would implement a without cause termination of her provider agreement in sixty days. On July 10, 2015, Dr. Bader requested a stay of the without cause termination and an appeal. Following the sixty-day period, FSSA issued a notice stating that it was “exercising the option to terminate the provider agreement of Patricia Bader, MD without cause rendering Dr. Bader ineligible to participate in the Indiana Medicaid program.” (Defs.’ Hr’g Ex. T, at 1.) The termination was effective September 8, 2015, and the notice informed Dr. Bader of her right to appeal. On September 24, 2015, Dr. Bader appealed her without cause termination. This appeal is still pending before an administrative law judge. Therefore, Dr. Bader presently does not have a provider agreement with Medicaid, but NIGCC has an active provider agreement that is subject to prepayment review.

NIGCC’s billing processor, Gomez, testified that the current process for submitting Medicaid claims imposes a burden on NIGCC. Before being placed on prepayment review, Gomez testified that upon receiving the data from the provider who treated the patient, it would take her about seven minutes to submit the form electronically. Generally, each claim would be approved within two hours of being submitted, and then NIGCC would receive the funds as part of a weekly deposit.

Under prepayment review, Gomez testified that it takes her more than thirty minutes to submit a claim. For each claim, Gomez compiles supporting documentation and mails it to Hewlett Packard, which is FSSA’s fiscal agent and vendor that pays Medicaid providers. Hewlett Packard performs an initial review that may take up to thirty days, and then it forwards the claims to FSSA’s prepayment review team. Once the FSSA prepayment review team receives a claim, an analyst reviews it to determine whether NIGCC accurately completed the claim. FSSA has an administrative, self-imposed goal to adjudicate or review a claim within sixty days. This time frame is not always met. According to NIGCC, it now takes several months for its claims to be approved and paid. If the FSSA prepayment review team denies a claim, NIGCC is notified through a document called a remittance advice. This document, which NIGCC receives weekly, lists the specific reasons that each claim was denied. A single denial reason is sufficient to deny a claim.

NIGCC attributes many of its financial troubles to FSSA’s prepayment review program. During the time NIGCC was on payment suspension, NIGCC continued to treat Medicaid patients and submit claims for reimbursement. An FSSA witness testified that her supervisor instructed the FSSA prepayment review staff not to adjudicate the claims of any providers that were on a payment suspension because the suspension meant the providers’ claims would not be paid even if prepayment review approved one of their claims. Accordingly, the FSSA prepayment review team did not review NIGCC’s claims for several months. However, the FSSA prepayment review team was still able to adjudicate 263 claims submitted by NIGCC during its suspension. Of these claims, 170 claims were reviewed in October 2014, which is the month before the- payment suspension was lifted. The FSSA prepayment' review team denied all these claims because each claim had a deficiency that warranted denial.

With the payment suspension no longer in place, the FSSA prepayment review team adjudicated claims at a consistent pace. From November 2014 to May 2015, the FSSA prepayment review team adjudicated 2255 claims submitted by NIGCC. Each claim was denied and a remittance advice was issued that stated the reason for each denial. NIGCC’s claims often had four or five reasons for denial. The first time the FSSA prepayment review team approved a claim from NIGCC was in June 2015. Subsequently, from June 2015 to December 2015, the FSSA prepayment review team has adjudicated 1555 claims submitted by NIGCC, of which 827 claims have been approved and 728 claims have been denied. Any denied claim may be resubmitted for payment after NIGCC corrects any identified deficiency. NIGCC regularly resubmits claims that the FSSA prepayment review team has denied.

Dr. Bader and the other NIGCC witnesses have repeatedly stated that FSSA’s conduct has brought them to the brink of collapse. Specifically, Dr. Bader testified that she has spent several hundred thousand dollars to keep NIGCC operating, which includes funds held by the business and her. personally, as well as business and personal lines of credit. Accordingly, Dr. Bader testified that she has exhausted all financial resources. Mr. Bader testified that NIGCC is struggling to operate and that Dr. Bader has not been paid her biweekly salary since 2015, which his “best guesstimate of take home” was “a couple thousand dollars.” (Hr’g Tr. vol. 3, 671:19-24.) Since 2013, NIGCC’s staff has been reduced from fourteen people to seven people. These losses include Dr. de Dios, who left NIGCC in November 2015 because it could no longer pay his salary, and a nurse practitioner, an ultrasound technician, and a genetic counselor, who cited no progression in pay as the main reason they decided to leave. NIGCC has spent about $400,000 in professional fees since October 2013.

Although NIGCC’s witnesses expressed that NIGCC is in imminent danger of closing, little insight was provided as to NIGCC’s current revenue, or its revenue for the last four months of 2015. NIGCC’s financial condition is also affected by an FSSA audit, which determined that NIGCC has been overpaid $568,620.97 in Medicaid reimbursements. (Dr. Bader Aff. 10.) NIGCC appealed this overpayment determination and the case is still pending. The overpayment determination is not being challenged in this litigation and the parties have not addressed this sum of money in any detail. As of the evidentiary hearing, NIGCC was still treating Medicaid patients.

ANALYSIS •

Medicaid is a cooperative federal-state program that “offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care.” Nat’l Fed’n of Indep. Bus. v. Sebelius, .— U.S. -, 132 S.Ct. 2566, 2581, 183 L.Ed.2d 450 (2012). As a condition of receiving federal funds, states that elect to participate in the Medicaid program must comply with all federal requirements and standards set forth in the Medicaid Act. See 42 U.S.C. § 1396a(a); see also Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir.2003). States submit their plans and any subsequent amendments for federal approval, and this plan operates as a contract that permits the Department of Health and Human Services to withhold federal funds if a state fails to comply with the plan that was approved and adopted. See 42 U.S.C. § 1396c; 42 C.F.R. §§ 430.10, 430.12, 430,35; Planned Parenthood of Ind., Inc. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 969 (7th Cir.2012), cert. denied, — U.S. -, 133 S.Ct. 2736, 186 L.Ed.2d 193 (2013) (mem.). Provided that the federal requirements are met, “states have substantial discretion to choose the proper mix of amount, scope, and duration limitations on coverage, as long as care and services are provided,” Planned Parenthood of Ind., 699 F.3d at 969 (quoting Alexander v. Choate, 469 U.S. 287, 303, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)), “in a manner consistent with simplicity of administration and the best interest of the recipients,” 42 U.S.C. § 1396a(a)(19).

The Plaintiffs are asking this Court to enjoin FSSA’s (1) without cause termination of Dr. Bader from the Medicaid program; and (2) conduct regarding the prepayment review program. Specifically, the Patients allege that Dr. Bader’s without cause termination violates their statutory rights under the Medicaid Act’s “freedom of choice” provision. 42 U.S.C. § 1396a(a)(23). The Providers allege that FSSA’s prepayment review process, particularly an inability to appeal one’s status and the accompanying delays and denials of NIGCC’s claims, violates the Providers’ due process rights. Separately, the Patients assert that FSSA’s actions with prepayment review deprives them of their “freedom of choice.”

A. Abstention

As a preliminary matter, FSSA argues that Colorado River abstention applies and this Court should not hear the Patients’ § 1983 claim that Dr. Bader’s without cause termination from Medicaid violates their “freedom of choice” under § 1396a(a)(23). Alternatively, FSSA asks the Court to stay this case until Dr. Bad-er’s administrative appeal of the without cause termination is resolved.

A federal court’s ability to abstain from a case that falls within its jurisdiction ‘“is the exception, not the rule,’ and can be justified only in exceptional circumstances.” Adkins v. VIM Recycling, Inc., 644 F.3d 483, 496 (7th Cir.2011) (quoting Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992)). Further, Colorado River abstention is permitted in considerably fewer circumstances than the other theories of abstention. Id. at 498 (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Under the Colorado River doctrine, a federal court may stay or dismiss a suit before it when there is a concurrent state court case and exceptional circumstances exist that would promote “wise judicial administration.” Colo. River, 424 U.S. at 817-18, 96 S.Ct. 1236. A district court must make a two-part inquiry to determine whether Colorado River abstention should apply: (1) whether the concurrent state and federal actions are actually parallel; and (2) if so, whether “exceptional circumstances” justify abstention. Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th Cir.2014).

Cases are parallel under Colorado River if there is “a substantial likelihood that the state litigation will dispose of all claims presented in the federal case.” Adkins, 644 F.3d. at 499. “A court should examine ‘whether the suits involve the same parties, arise out of the same facts and raise similar factual and legal issues,”’ id. (quoting Tyrer v. City of S. Beloit, 456 F.3d 744, 752 (7th Cir.2006)), and any doubt should be resolved in favor of exercising jurisdiction, id. A cursory review reveals that no parallel action exists. The administrative appeal is not an action pending in state court, as FSSA even acknowledges that Dr. Bader may appeal the final administrative decision to state court once it is issued. Further, Dr. Bader’s state court appeal is no longer active because it was dismissed as premature.

Even if the administrative appeal qualifies as a pending state court action, the matters are not substantially similar. Although FSSA and Dr. Bader are parties to the administrative appeal, the Patients are not parties. In the administrative appeal, Dr. Bader may only seek reversal of her without cause termination on the grounds that FSSA did not comply with its own policies and procedures in effecting the termination. For example, Dr. Bader’s without cause termination may be reversed if it is found that Dr. Bader did not receive the required sixty-day notice. The limited scope of this appeal means that the Patients’ “freedom of choice” claim will not be decided. See Planned Parenthood Gulf Coast, Inc. v. Kliebert, 141 F.Supp.3d 604, 633-34, No. 3:15-cv-565, 2015 WL 6551836, at *20 (M.D.La. Oct. 29, 2015) (finding Colorado River abstention inapplicable because the patients were unable to initiate any state administrative proceeding to challenge their provider’s termination). The Providers’ procedural due process claims against FSSA will also be absent from the state administrative appeal. Given these incongruities, Dr. Bad-er’s state administrative appeal will not dispose of all the claims presented in this case. Therefore, Colorado River abstention does not warrant dismissing or staying these proceedings, and not satisfying the first part of the test excuses the Court from analyzing the lengthy list of non-exhaustive factors used to determine whether “exceptional circumstances” are present. Freed, 756 F.3d at 1018 (stating that the court need not address the second part if the first part is not met).

With no basis to abstain, this Court proceeds to the merits of the Plaintiffs’ various claims that touch upon the complexities of the Medicaid statutes and regulations.

B. Injunctive Relief

“[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the mov-ant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997). Accordingly, “the moving party must demonstrate a reasonable likelihood of success on the merits, no adequate remedy at law, and irreparable harm absent the injunction.” Planned Parenthood of Ind., 699 F.3d at 972. Once the district court determines these threshold requirements are met, it must consider the irreparable harm the plaintiff or defendant would suffer if the injunction is denied or granted, respectively. Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir.2012). The district court must also consider the public interest in granting or denying an injunction. Id. Balancing of harms is carried out by weighing each factor “against one another ‘in a sliding scale analysis,”’ id. (quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.2006)), which is a “subjective and intuitive” approach that “permits district courts to weigh the competing considerations and mold appropriate relief,” id. (quoting Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895-96 (7th Cir.2001)) (internal quotation marks omitted). When it is more likely that the moving party will succeed on the merits, the balance of harms may weigh less in its favor. Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc., 549 F.3d 1079, 1100 (7th Cir.2008).

1. Dr, Bader’s Without Cause Termination

The Patients argue that FSSA’s without cause termination of Dr. Bader from the Indiana Medicaid program violates their statutory rights under the Medicaid Act’s “freedom of choice” clause. 42 U.S.C. § 1396a(a)(23). Under § 1396a(a)(23), a state Medicaid plan must provide that “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” Id. (emphasis added); see also 42 C.F.R. § 431.51 (“[A] beneficiary may obtain Medicaid services from any [provider] that is — (i) Qualified to furnish the services; and (ii) Willing to furnish them to that particular beneficiary.”). The Patients are seeking to enforce this statutory right under § 1983. The Seventh Circuit and other federal courts have concluded that § 1396a(a)(23) creates a private right enforceable under § 1983. E.g., Planned Parenthood Ariz., Inc. v. Betlach, 727 F.3d 960, 965-68 (9th Cir.2013), cert. denied, — U.S. -, 134 S.Ct. 1283, 188 L.Ed.2d 300 (2014) (mem.); Planned Parenthood of Ind., 699 F.3d at 972-77; Harris v. Olszewski, 442 F.3d 456, 460-65 (6th Cir.2006). FSSA does not challenge the Patients’ standing to file suit. Instead, FSSA argues that it has not violated the Patients’ freedom of choice and that the Patients have otherwise not shown that they are entitled to a preliminary injunction. The Court agrees that FSSA’s without 'cause termination of Dr. Bader violates the Patients’- freedom of choice,

a. Likelihood of Success on the Merits

The Patients rely heavily on Planned Parenthood of Indiana to show that a preliminary injunction is warranted. To determine whether this case demonstrates that the Patients have a “‘better than negligible’ chance of success on the merits,” Girl Scouts of Manitou Council, 549 F.3d at 1096, a detailed examination of the relevant authority is needed. Although the Patients’ reliance upon cases involving abortion providers causes one to question whether the-Patients’ claim will ultimately succeed, the breadth of the language in Planned Parenthood of Indiana convinces this Court that the Patients have met the more relaxed showing required to establish a likelihood of succeeding on the merits. Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999) (“The threshold for this showing is low.”).

In Planned Parenthood of Indiana, Indiana enacted a law that singled out abortion providers by prohibiting them from receiving any state contracts and grants, including state-administered federal funds. 699 F.3d at 969-70. This barred Planned Parenthood from receiving “Medicaid reimbursement and funding from state and federal grants for services urn-elated to abortion.” Id. at 971. The Centers for Medicare and Medicaid Services (CMS), a division of the Department of Health and Human Services, denied Indiana’s request to amend its Medicaid plan to exclude any provider that offers abortion services. Id, at 969-70. Before the CMS administrative process concluded, two Indiana residents who received Medicaid services from Planned Parenthood clinics filed suit in federal court to block the defunding law. Id. at 968 & n. 1, 971. The Seventh Circuit affirmed the district court’s award of a preliminary injunction because it held that the Medicaid patients were likely to succeed on their § 1983 claim that the defunding law violates § 1396a(a)(23). Planned Parenthood of Ind., 699 F.3d at 980; see also Planned Parenthood Ariz., 727 F.3d at 963 (considering an Arizona law that was “nearly identical” to Indiana’s law and “echoing the Seventh Circuit’s” determination that it violated § 1396a(a)(23)).

The court arrived at this conclusion because it rejected Indiana’s argument that “the State’s interest in avoiding indirect subsidization of abortion” provided a legitimate basis to prevent a Medicaid recipient from obtaining treatment from a provider that, absent this asserted state interest, would be qualified. Planned Parenthood of Ind., 699 F.3d at 978. Despite recognizing that “[n]o one disputes that states retain considerable authority to establish licensing standards and other related practice qualifications for [Medicaid] providers,” Indiana’s defunding law exceeded “the limits of that authority.” Id. at 980. Indiana claimed “plenary authority to exclude Medicaid providers for any reason, as long as it furthers a legitimate state interest.” Id. at 978.

This attempt to “ascribe any meaning to the statutory term ‘qualified’”' was not supported by the Medicaid statutes and regulations. Id. at 978 (noting that states may set “reasonable standards” for a provider’s qualifications (quoting 42 C.F.R. § 431.51(c)(2))). Contrary to Indiana’s definition, the court held that Planned Parenthood’s clinics were' “qualified” under § 1396a(a)(23), meaning they were “capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” Planned Parenthood of Ind., 699 F.3d at 978. The defunding law violated the free-choice-of-provider requirement because it represented an attempt to create an exclusionary rule, label it a “qualification,” and use it to restrict patient choice to “a class of providers” even though the exclusionary rule was unrelated to the “provider’s fitness to treat Medicaid patients.” Id. at 978, 980; see also id. at 979 (observing that 42 U.S.C. § 1396a(p)(l) and its cross-referenced sections of the Medicaid Act represent a non-exhaustive list of specific mandatory or permissive grounds for states to exclude providers, including “fraud, drug crimes, and failure to disclose necessary information to regulators”).

Although the patients in Planned Parenthood of Indiana obtained a preliminary injunction, significant factual differences exist between these cases. Chiefly, this case does not involve family planning. Dr. Bader performs testing to determine whether individuals have genetic disorders and also counsels patients to help them manage their conditions. This scope of practice is vastly different from that of Planned Parenthood. It is also far removed from the highly politicized arena that spurred Indiana to enact a law designed tó defund Planned Parenthood based on the mere fact that its scope of practice included abortions. See Planned Parenthood of Ind., 699 F.3d at 978. In contrast to Indiana’s past conduct toward abortion providers, FSSA’s medical experts testified that geneticists are important. Further, FSSA’s medical experts refer their patients to geneticists as needed, and Indiana Medicaid reimburses providers that perform genetic services. Because Planned Parenthood and Dr. Bader have different spheres of operations, separate “freedom of choice” concerns are implicated.

The free-choice-of-provider requirement treats family planning providers different from other types of providers. This provision has two components. Under subsection (A), “state plans must generally allow Medicaid recipients to obtain care from any provider who is ‘qualified to perform the service or services required’ and *who undertakes to provide... such services.’” Planned Parenthood Ariz., 727 F.3d at 964 (quoting § 1396a(a)(23)(A)). Under subsection (B), ‘“enrollment of an individual eligible for [Medicaid] in a primary case-management system..., a medicaid managed care organization, or a similar entity shall not restrict the choice of the qualified person from whom the individual may receive services under section 1396d(a)(4)(C) of this title,’ i.e., ‘family planning services.’” Planned Parenthood Ariz., 727 F.3d at 964 (quoting §§ 1396a(a)(23)(B) & 1396d(a)(4)(C)). The text of the free-choice-of-provider requirement shows that Congress choose to “carve[ ] opt and insulate[ ] ■ family planning services from limits that may otherwise apply under approved state Medicaid plans... [to] assur[e] covered patients an unfettered choice of provider for family planning services.” Id. (citing § 1396a(a)(23)(B)). Thus, Congress viewed family planning as the area of medical care in which k recipient’s free choice of provider is “most critical.” Planned Parenthood Se., Inc. v. Bentley, 141 F.Supp.3d 1207, 1217, No. 2:15-cv-620, 2015 WD 6517875, at *7 (M.D.Ala. Oct. 28, 2015); see also Statement of Interest of the United States at 13, Planned Parenthood Gulf Coast, Inc. v. Kliebert, (M.D.La. Aug. 31, 2015) (No. 3:15-cv-565), 2015 WL 5736205, ECF No. 24 (quoting § 1396a(a)(23)(B) to show that “Congress singled out family planning services — such as those provided by [Planned Parenthood] — for particular protection” and concluding that Congress clearly intended no restrictions on a Medicaid beneficiary’s ability to choose a family planning provider).

Without noting this distinction, the Patients rely exclusively on cases where a state targeted Planned Parenthood because of its status as an abortion provider. The Patients identify the crucial question as whether Dr. Bader is a “qualified” provider of the relevant healthcare services. After reciting that “qualified” means “to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner,” (Mem. Supp. Pls.’ Mot. TRO & Prelim. Inj. 9, ECF No. 3 (quoting Planned Parenthood of Ind., 699 F.3d at 978) (internal quotation marks omitted)), the Patients assert that nothing has changed in the past several months to make Dr. Bader unqualified. This characterization of events is true only if FSSA’s without cause termination of Dr. Bader, the president of a non-abortion provider, unlawfully ended her Medicaid provider status.

The Patients argue that Dr. Bader’s without cause termination is unlawful because Alabama used an at-will termination to preclude Planned Parenthood from Medicaid, and a district court enjoined this termination. Planned Parenthood Se., 141 F.Supp.3d at 1221-22, 2015 WL 6517875, at *10. In Planned Parenthood Southeast, the governor of Alabama sent Planned Parenthood a letter notifying it that the state was exercising its ability to terminate Planned Parenthood’s Medicaid contract with fifteen days written notice. Id. at 1218-19, at *8. The Governor also “tweeted” his decision to terminate Planned Parenthood’s provider agreement. Id. at 1219-21, at *9. The Governor took this action after videos surfaced that purported to show Planned Parenthood affiliates engaging in fetal-tissue donation, and he stated that he “had no plan to terminate [Planned Parenthood’s] provider agreement before viewing this video.” Id. at 1212, at *3.

In this abortion context, Alabama argued that it may “terminate Medicaid provider agreements on any basis recognized under state law,” including “state contract law.” Id. at 1220, at *9 (emphasis added). Relying upon Planned Parenthood Arizona and Planned Parenthood of Indiana, the court rejected Alabama’s contentions that the Medicaid statute gave it unbounded authority “to exclude providers for any reason whatsoever” that had no connection to “medical competency or legal and ethical propriety.” Id. at 1219-22, at *9-10 (quoting Planned Parenthood Ariz., 727 F.3d at 972 and Planned Parenthood of Ind., 699 F.3d at 979) (internal quotation marks omitted). The court’s rationale centered around concern that Alabama’s ability to cite “any reason with a basis in state law” would “greatly weaken[]” a recipient’s free-choice-of-provider rights by subjecting this right “to state policies and politics having nothing to do with the Medicaid program.” Id. at 1221, at *10 (quoting Planned Parenthood Ariz., Inc. v. Betlach, 899 F.Supp.2d 868, 883 (D.Ariz.2012) (internal quotation marks omitted) (expressing this fear when considering Arizona’s law that disqualified “an entire class of providers”), appeal dismissed as moot, 727 F.3d at 963); see also id. (“The state-law ground on which the Governor terminated [Planned Parenthood’s] provider agreement — the at-will termination clause — falls well outside the range of grounds germane to the purposes of the Medicaid Act.”); Statement of Interests of the United States at 14-15, Planned Parenthood Gulf Coast, Inc., 141 F.Supp.3d at 616 (No. 3:15-cv-656), 2015 WL 6551836 (“Under Louisiana’s [without cause] interpretation, a State could terminate a provider’s agreement for reasons entirely unrelated to the ability of the provider to perform services or to properly bill for those services — or for no reason at all — and the federal government would be required to support that decision.”).

After courts invalidated state statutes that defunded abortion providers, at least some states have resorted to a state law based “at-will” termination to target abortion providers. Permitting states to terminate abortion providers “without cause” or “at will” triggers many of the same concerns that courts cited when presented with state statutes that excluded providers from Medicaid merely because their scope of services included abortion. The fear is that states will create “a significant loophole restricting patient choice” that contradicts “the broad access to medical care that § 1396a(a)(23) is meant to preserve.” Planned Parenthood of Ind., 699 F.3d at 978.

In contrast to the multitude of cases involving the class of providers that includes Planned Parenthood, the Patients do not cite to any other instance where a state statute sought to exclude a geneticist from Medicaid. Further, the Patients do not cite to any casé where a non-abortion medical provider’s patients challenged an at-will termination. In light of the heightened free-choice-of-provider requirement recognized for family planning services, the question becomes whether the at-will or without cause termination of a medical provider, whose scope of services does not encompass abortions, may be considered a “‘permissible variation^] in the ordinary concept’ of what it means to be ‘qualified.’” Id. (“Medicaid beneficiaries ‘may obtain [medical] assistance from any [provider] qualified to perform the service or services required. To be ‘qualified’... is to be capable of performing the needed medical services in a professionally competent, safe, legal, and ethical manner.” (quoting § 1396a(a)(23)(A))). FSSA has not explained why inserting a without cause termination clause in a provider agreement permits it to lawfully render a provider unqualified, or that this type of termination falls under the state’s residual authority to set provider qualifications. Without such a discussion, it is hard to dispern, at least at this stage of the litigation,' why the reasoning of Planned Parenthood of Indiana does not render a without cause termination an impermissible “loophole restricting patient choice.” Id. at 978.

FSSA argues that because the without cause termination took effect Dr. Bader does not even reach the threshold requirement of being a “provider.” Thus, FSSA concludes that this Court does not need to analyze whether Dr. Bader is qualified and the free-choice-of-provider requirement has not been violated. This reasoning is unpersuasive because it presumes that a termination is unreviewable. Planned Parenthood Se., 141 F.Supp.3d at 1216-19, 2015 WL 6517875, at *7-8 (rejecting a similar argument because accepting it would permit a state to terminate a provider’s agreement on an unlawful basis. and use that same unlawful basis to preclude a patient’s' challenge, which would render the free-choice-of-provider provision an empty right).- Courts have defined “qualified” in the context of the free-choice-of-provider requirement and have reviewed whether a state appropriately adjudged a provider “unqualified.” E.g., Planned Parenthood of Ind., 699 F.3d at 978-80; Planned Parenthood Ariz., 727 F.3d at 969, 975 (quoting Planned Parenthood of Ind., 699 F.3d at 978). This Court is equally capable of reviewing FSSA’s actions, even- if a state retains some role in determining provider qualifications. Planned Parenthood Ariz., 727 F.3d at 968 & n. 6 (“A court applying the free-choice-of-provider provision -in a § 1983 case does not usurp a state’s authority to set medical qualifications; instead, it defers to and applies the state’s own determination of appropriate qualifications for the services provided.”).

Even if FSSA misstates how the without cause termination affects this Court’s review, it points the Court to Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170 (2d Cir.1991), as showing a without cause termination of a qualified provider occurring outside the abortion context. In Kelly Rare, a qualified home health-care provider and several of its Medicaid patients sued the county department of social services after it terminated the provider’s Medicaid contract, without cause, upon thirty days’ notice. Id. at 173. The patients unsuccessfully argued, couched in terms of property and liberty interests, that their provider’s without cause termination violated their rights under § 1396a(a)(23)(A) because it deprived them of their right to choose any qualified Medicaid provider. Id.

The Seventh Circuit considered Kelly Rare when it rejected Indiana’s argument that patients could not use § 1983 to enforce § 1396a(a)(23). Planned Parenthood of Ind., 699 F.3d at 977. At that point, the court discarded Kelly Rare by identifying it as a due process case, rather than a substantive claim that Indiana’s law violated § 1396a(a)(23). Id. However, there was no commentary on the Second Circuit’s approval of a without cause termination of a Medicaid provider agreement. This is not to say that Kelly Rare is dispositive, Planned Parenthood Gulf Coast, Inc., 141 F.Supp.3d at 628, 2015 WL 6551836, at *16 (admonishing the defendant for relying upon Kelly Rare and similar cases because they “cannot be legally relevant” when § 1396a(a)(23) provides the claim’s basis and no procedural due process claim is made), but it is relevant as an acknowledgment that without cause terminations have a long-standing basis in Medicaid provider agreements.

Except for a ease where Planned Parenthood is a party, the Patients fail to cite any case where the without cause or at-will termination of a Medicaid provider agreement has been held unlawful. Further, in addition to Indiana’s statute that provides authority for a without cause termination, Ind. Code § 12-15-11-3, a non-exhaustive search shows that several other states provide their Medicaid agencies with similar authority. Fla. Stat. § 409.907(2); La. Rev. Stat. § 437.11(C); Wash. Rev. Code § 74.09.290 (providing authority for “for convenience” terminations, Wash. Admin. Code § 182-502-0040, in addition to the lengthy list of “for cause” grounds enumerated in Wash. Admin. Code § 182-502-0030); N.Y. Comp. Codes R. & Regs, tit. 18, § 504.7(a)-(b). Presumably, a state that permitted without cause terminations would include this provision in the State plan for Medicaid that the federal government approves. See 42 C.F.R. 430.10 (identifying the State plan as a comprehensive written statement describing its nature and scope, which includes an assurance it will be administered in accordance with federal law); 42 C.F.R. § 430.12 (“The plan must...be amended whenever necessary to reflect — (i) [cjhanges in Federal law, regulations, policy interpretation, or court decisions; or (ii) [mjaterial changes in State law, organization, or policy, or in the State’s operation of the Medicaid program.”); 42 C.F.R. 430,14. Based on a right that has only been enforced to prevent assaults by states on Planned Parenthood, the Patients are asking this Court to strike new ground and upend a system states apply generally to the administration of their Medicaid providers. The Court is hesitant to make that proclamation.

FSSA also raises an argument that the Planned Parenthood cases do not address, which is the significance of § 1396a(a)(23)(A)’s language that modifies “qualified” — specifically, whether this provider’s services are “required.” Planned Parenthood Ariz., 727 F.3d at 969, FSSA does not argue that the Patients do not need ongoing care for their medical conditions; rather, it argues that Dr. Bader is not “capable of performing the needed medical services.” Planned Parenthood of Ind., 699 F.3d at 978 (defining “qualified”). To support this, FSSA’s medical experts testified that they reviewed the Patients’ medical records and determined the Patients do not require continued care from a geneticist and should instead receive care from a mental health specialist. Based on her review of the medical records,- Dr. Hulvershorn testified that Dr. Bader’s treatment of the Patients does not meet the standard of care.

Although FSSA offers this evidence, it also reiterates that Dr. Bader’s termination was without cause and conceded during the evidentiary, hearing that, a “without cause [termination] should not require any kind of outside analysis.” (Hr’g Tr. vol. 2, 353:13-14); Planned Parenthood Se., 141 F.Supp.3d at 1218-19, 2015 WL 6517875, at *8 (ignoring the significant evidence presented by the parties showing the Governor’s motivation to terminate Planned Parenthood’s provider agreement because the letter did not provide a substantive reason or a statutory basis). Further, FSSA has not pointed to a specific statute that permits a for cause termination and argued that its evidence about Dr. Bader’s substandard care provides an independent basis for its action. Id. at 1221-23, at *10-11 (stating, in dicta, that the defendant’s for cause ground (i.e., substandard patient care — 42 U.S.C. § 1320a-7(b)(6)(B)), which was belatedly raised in its response brief to Planned Parenthood’s motion for a preliminary injunction, would not have succeeded because this Planned Parenthood office had no'ties to any substandard care purportedly shown in the fetal-tissue donation video).

The various Planned Parenthood cases did not address a scenario where it was alleged that the specific provider in question failed to act in a “professionally competent, safe, legal, and ethical manner.” Planned Parenthood of Ind., 699 F.3d at 978; see, e.g., Planned Parenthood Ariz., 727 F.3d at 974-75; Planned Parenthood Se., 141 F.Supp.3d at 1212-13, 1222-23, 2015 WL 6517875, at *3, *11 (noting that no allegations of wrongdoing existed, except for the unrelated fetal-tissue donation video). If FSSA has legitimate for cause grounds based on Dr. Bader’s standard of care, or even billing history, it has not been adequately articulated in the context of Dr. Bader’s without cause termination. Regardless, Indiana’s residual authority “to establish licensing standards and other related practice qualifications for providers” provides an alternative mechanism to address such problems, which should not be conflated with a termination that has been designated to be without cause. Id. at 980.

FSSA has not attempted to fit a without cause termination within the Medicaid statutes or regulations, likely because the Seventh Circuit rejected many of FSSA’s potential arguments when considering the defunding statute. For example, states have pointed to § 1396a(p)(l) to justify broad power to terminate a provider, as that provision states,

In addition to any other authority, a State may exclude any individual entity for purposes of participating under the State plan... for any reason for which the Secretary could exclude the individual or entity.. .under section 1320a-7, 1320a-7a, or 1395cc(b)(2) of this title.

However, this standard savings clause “signals a non-exclusive list of specific grounds upon which states may bar providers from... Medicaid. It does not imply that states have an unlimited authority to exclude providers for any reason whatsoever.” Planned Parenthood of Ind., 699 F.3d at 979; Planned Parenthood Ariz., 727 F.3d at 971-72 (“This sequence indicates that the Medicaid Act itself must provide that ‘other’ authority, just as it supplies the ‘authority’ covered by the rest of the subsection.”). Instead, FSSA relies upon paragraph 39(b) of the Indiana Health Coverage Program Provider Agreement and asserts that the without cause termination should be upheld as a matter of policy.

Even though the Patients do not show the free-choiee-of-provider requirement being violated outside the abortion context, accepting FSSA’s position would lead to the same problems when interpreting the statute. “Nowhere in the Medicaid Act has Congress given a special definition to ‘qualified,’ much less indicated that each state is free to define this term for purposes of its own Medicaid program however it sees fit.” Planned Parenthood Ariz., 727 F.3d at 970. FSSA’s use of without cause terminations is another manifestation of Indiana’s claimed authority to “establish provider-eligibility criteria based on any legitimate state interest.” Planned Parenthood of Ind., 699 F.3d at 978. FSSA’s characterization of Dr. Bader’s termination as “simply the State making a business decision,. .that we no longer wanted to contract with Dr. Bader,” illustrates that the termination was wholly unrelated to her qualifications. (Gartenman Dep. 33:25-34:1-4.) It does not help that FSSA uses without cause terminations sparingly. (Gartenman Dep. 24:11-19 (estimating that over a year and a half FSSA carried out over thirty for cause terminations and about three to five without cause terminations).) By definition, a legal relationship being “at will” permits a person to act “as one wishes or chooses. . .without cause.” Black’s Law Dictionary 125 (7th ed. 1999). FSSA’s ability to cite unspecified business interests to render a Medicaid provider unqualified “would open a significant loophole for restricting patient choice, contradicting the broad access to medical care that § 1396a(a)(23)is meant to preserve.” Planned Parenthood of Ind., 699 F.3d at 978

The general need for FSSA to resort to without cause terminations is also unclear given the methods available to FSSA under the Medicaid Act that would not implicate the free-choice-of-provider requirement.. Most obvious, and upon which FSSA often resorts, are the Medicaid Act’s various mandatory and permissive for cause grounds to exclude or terminate individual providers. § 1396a(p)(1); § 1320a-7; § 1395cc(b)(2). Further, states may apply for waivers to limit a recipient’s choice in certain situations. See, e.g., 42 U.S.C. § 1315 (demonstration projects); § 1396n(b) (efficiency). FSSA has not argued that any exceptions apply to Dr. Bad-er’s without cause termination. Being bound by our “duty to give effect, if possible, to every clause and word of a statute,” United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955), FSSA’s argument would impermissibly infringe upon a Medicaid recipient’s freedom of choice.

Because FSSA’s without cause termination of Dr. Bader excludes her from being a Medicaid provider for no reason at all, which has no bearing on her qualifications to treat patients, the Patients have more than a negligible chance of succeeding on the merits.

b. No Adequate Remedy at Law, Irreparable Harm, and Balancing of Harms

When a party is seeking temporary relief, it must prove that absent such relief, “it will suffer irreparable harm in the interim period prior to final resolution of its claims,” and “that traditional legal remedies would be inadequate.” Girl Scouts of Manitou Council, 549 F.3d at 1086; Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 383 (7th Cir.1984) (noting the overlap between “no adequate remedy at law” and “irreparable harm” in the preliminary injunction setting); see also id. at 386 (“[I]rreparable harm...is[] harm that cannot be prevented or fully rectified by the final judgment after trial.”); Maxim’s Ltd. v. Badonsky, 772 F.2d 388, 390 (7th Cir.1985) (“[A]n adequate remedy at law...is[] whether interim harm caused by the activity to be enjoined can be completely offset by a subsequent award of damages or other legal relief.”).

The Patients argue that any violation of their statutory “freedom of choice” constitutes per se irreparable harm because a Medicaid patient’s inability to see his provider of choice (in this case Dr; Bader), even for a short period, is an injury that cannot be rectified. Further, the Patients predict that their health may deteriorate if they cannot see Dr. Bader during the pendency of this litigation, as the distance to other Medicaid-participating physician-geneticists may spur these patients to forego treatment. In response, FSSA argues that per se irreparable harm is limited to constitutional violations. With only a statutory right implicated, FSSA contends that irreparable harm should not be found any time four patients subjectively believe that they need care from a physician-geneticist, and especially where FSSA’s medical experts disagree with Dr, Bader that the Patients should be treated by a geneticist rather than a mental health specialist.

Courts have shown heighted concern when a plaintiff alleges a constitutional violation. See Preston v. Thompson, 589 F.2d 300, 303 (7th Cir.1978) (“[0]nce a constitutional violation is demonstrated, ‘the scope of a district court’s equitable powers to remedy past wrongs is broad (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971))); see also Campbell v. Miller, 373 F.3d 834, 840 (7th Cir.2004) (Williams, J., dissenting) (“[WJhen an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”) (collecting cases). The Patients do not allege a constitutional violation, and unless directed otherwise, broadly treating any statutory violation as per se irreparable harm would be inconsistent with a district court’s discretion to grant injunctive relief. Cf. Bedrossian v. Nw. Mem’l Hosp., 409 F.3d 840, 843 (7th Cir.2005) (“[Ujnless a statute clearly mandates injunctive relief for a particular set of circumstances, the courts are to employ traditional equitable considerations (including irreparable harm) hi' deciding whether to grant such relief.”).

The Patients rely on Planned Parenthood of Indiana to show that any violation of the free-choice-of-provider requirement is per se irreparable harm. The Court does not draw this conclusion from that case. Rather than interpreting any violation of § 1396a(a)(23) as per se irreparable harm, the court acknowledged the district court’s holding that “the loss of Medicaid funding” would cause Planned Parenthood irreparable harm because it would have to “lay off dozens of workers, close multiple clinics, and stop serving a significant number of its patients” and “[Planned Parenthood’s] Medicaid patients would lose their provider of choice.” Planned Parenthood of Ind., 699 F.3d at 980-81. Noting these situational factors, and only attributing them “significant weight given Planned Parenthood’s strong likelihood of success on the merits,” suggests that the court did not adopt a per se rule that controls whenever a Medicaid recipient’s freedom of choice light is implicated. Id,

Applying these considerations here also reveals some distinctions from the harm suffered in Planned Parenthood of Indiana, First, NIGCC has not lost its Medicaid funding and it is still able to treat patients, albeit with its traditional fee-for-service claims subject to prepayment review. NIGCC’s witnesses testified about its financial difficulties and that its staff has been reduced from fourteen people to seven people since 2013. Although the Plaintiffs assert that Dr. Bader’s without cause termination has harmed NIGCC’s operations, and this Court may infer that Dr. Bader generated a significant share of NIGCC’s Medicaid claims, virtually all the evidence related to NIGCC’s operations was directed to challenging prepayment review. Therefore, unlike Planned ■ Parenthood of Indiana, where the organization’s termination as a Medicaid provider would result in across-the-board loss of Medicaid revenue, a lesser limit was imposed that still allows NIGCC to participate in Medicaid.

Second, Planned Parenthood of Indiana did not address the termination of a single doctor in an organization. Granted, the free-choice-of-provider requirement applies to “any institution