Opinion
19-P-1441
08-04-2020
MOUHAB Z. RIZKALLAH & another v. THE GOVERNOR & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from the judgment dismissing their complaint for failure to state a claim. Our review is de novo. Glovsky v. Roche Bros. Supermarkets, Inc., 469 Mass. 752, 754 (2014). We must assume all facts in the complaint are true, and draw every reasonable inference in favor of the plaintiffs. Id.
Background. Plaintiff Mouhab Z. Rizkallah is an orthodontist and a provider within the MassHealth dental program, as well as the president of the Medicaid Orthodontists of Massachusetts Association, Inc. (MOMA), a professional association of orthodontists. MOMA first brought suit against the Governor, the Secretary of the Executive Office of Health and Human Services (EOHHS), and the Assistant Secretary for MassHealth; Rizkallah signed the original verified complaint on behalf of MOMA. MassHealth, the Massachusetts State Medicaid program and an agency of the EOHHS, compensates its orthodontic providers by having them bill each phase of orthodontic treatment to MassHealth under a separate billing code. The original verified complaint alleged that MassHealth unlawfully changed its billing schedule and reimbursement rate for periodic orthodontic adjustment visits, i.e., visits to adjust patients' braces.
Under the prior policy, providers billed MassHealth for every quarter in which there was at least one periodic adjustment visit, and billed at a rate of $268. As of July 1, 2017, new regulations took effect that required providers to bill every month in which they saw a patient for an adjustment visit; they would be compensated at a rate of ninety dollars per month and would only receive $270 per quarter if they were to see patients for adjustment visits each of the three months. Prior to this point, providers billed quarterly but only saw patients for adjustment visits when medically necessary, and existing regulations suggested that providers should see patients every four to six weeks.
The policy change caused an unwarranted reduction in the payment for providers' adjustments to braces that had already been put on, unless providers were able to begin seeing patients every month for adjustment visits. As alleged, this proved particularly problematic for providers who sought to take on MassHealth patients with braces who were transferring to their care from another provider (hereinafter transfer patients). Because another provider had already billed MassHealth for putting on the patient's braces, providers taking on transfer patients could no longer break even by billing at this new lower rate for the transfer patient's adjustment visits. As a result, many MassHealth providers, including Rizkallah, stopped accepting new transfer patients in their practices.
The original verified complaint was filed on June 29, 2017. By November 1, 2017, MassHealth had fully returned to its prior, quarterly billing policy, rendering moot certain portions of the plaintiffs' complaint (which by then had been amended to add Rizkallah as a plaintiff). The plaintiffs were given leave to again amend their complaint. In October of 2018, a second amended complaint was filed. This complaint contained Rizkallah's claim against Donna Jones, the dental director of MassHealth, in her personal capacity, for civil rights violations, the dismissal of which is the subject of this appeal.
The plaintiffs' second amended complaint also set out a claim for declaratory judgment on Rizkallah's entitlement to payment for unpaid visits in the second quarter of 2017, a breach of contract claim based on MassHealth's failure to pay for adjustment visits between April 1 and June 30, 2017, and a claim for attorney's fees. The motion judge dismissed all four of the plaintiffs' claims.
Rizkallah alleges that two months after MOMA brought the original verified complaint, which was signed by Rizkallah and named him as a provider who refused to take on MassHealth transfer patients because of this new MassHealth policy, he received an e-mail from Jones. This e-mail, which provides the sole basis for Rizkallah's civil rights claims, was sent in response to an e-mail inquiry by Rizkallah about a particular patient who was to be assigned an alternative provider. Jones's e-mail addressed not only that patient, but also stated that Rizkallah's practice of refusing to treat MassHealth transfer patients violated MassHealth regulations prohibiting providers from discriminating against MassHealth members, see 130 Code Mass. Regs. § 450.202 (2013), and that he must, by September 1, 2017, provide her with written notification that he would begin treating such patients, or he might face sanctions under 130 Code Mass. Regs. § 450.238 (2017). The e-mail also noted that Rizkallah could avoid these sanctions by refusing to take additional MassHealth patients altogether -- although his business depended on providing care for such patients. Rizkallah alleges that Jones knew of many providers who were refusing to treat transfer patients -- indeed, of all the providers in Massachusetts, only Boston Children's Hospital continued to treat such patients -- but that she intentionally and deliberately singled out and threatened Rizkallah because of his role in the lawsuit against MassHealth. It was, he claims, intentional retaliation for his exercise of his rights under the First Amendment to the United States Constitution. The second amended complaint alleged violations of his rights under both G. L. c. 12 § 11I, and 42 U.S.C. § 1983.
Rizkallah did not include his own initial e-mail to Jones in the attachments to his second amended complaint; this e-mail also is not included in the record appendix.
The motion judge granted the defendants' motion to dismiss this claim, concluding that Rizkallah failed to allege sufficient facts to sustain claims for civil rights violations and that Jones was entitled to qualified immunity.
Discussion. We may assume without deciding that, despite Jones's right as the dental director of MassHealth to inform providers of the regulations, to insist on providers' compliance with those regulations, and to make clear that sanctions will be utilized to ensure that compliance, her doing so selectively in retaliation for an individual spearheading a lawsuit would be unlawful, as the plaintiffs claim, under both the Massachusetts Civil Rights Act, see G. L. c. 12, § 11I, and 42 U.S.C. § 1983. Nonetheless, we agree with the motion judge that Jones was entitled to qualified immunity and, thus, that the plaintiffs' claim properly was dismissed.
Under the doctrine of qualified immunity, a government official performing discretionary tasks is shielded from civil liability "insofar as [her] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ahmad v. Department of Correction, 446 Mass. 479, 484 (2006), quoting Shedlock v. Department of Correction, 442 Mass. 844, 859 (2004). To determine whether an official is entitled to qualified immunity, we ask "(1) whether the facts taken in the light most favorable to the plaintiff demonstrate that there was a violation of the plaintiff's Federal constitutional or statutory rights; . . . (2) if so, whether at the time of the violation those rights were clearly established; and (3) whether a reasonable person in the defendant's position would understand that his conduct violated those clearly established rights." Cristo v. Evangelidis, 90 Mass. App. Ct. 585, 590 (2016). "For a right to qualify as 'clearly established,' the unlawfulness of the defendant's conduct 'must be apparent' based on then existing law." Shedlock, supra, quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987).
With respect to § 1983, a plaintiff's First Amendment rights are violated by an official's retaliation when the plaintiff's speech or conduct is protected, the official takes adverse action against the plaintiff, and a causal connection exists between the plaintiff's speech and the official's adverse action. Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004). To constitute an adverse action, the official conduct must be the kind that "would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights" (citation omitted). Id.
Rizkallah claims that Jones intended to chill his First Amendment rights with her e-mail, and violated his rights of free speech and access to the courts. But even if he is correct, it was not clearly established on August 21, 2017, when Jones sent her e-mail, that an official's warning that legal action may be taken be against a provider for his violation of existing regulations, even if the warning was subjectively intended to chill other, protected speech, would constitute an unlawful adverse action under this test.,
Rizkallah points to Snodgrass-King Pediatric Dental Assocs., P.C. v. DentaQuest USA Ins. Co., 79 F. Supp. 3d 753 (M.D. Tenn. 2015), arguing that it established that a provider's right not to face retaliation for criticizing a State Medicaid program is protected by the First Amendment. This case has no bearing on our qualified immunity analysis. The question underlying Jones's qualified immunity defense in this case is not whether Rizkallah's right to criticize MassHealth is a clearly established right protected by the First Amendment. The question instead is whether it was clearly established that such a right would be violated by an e-mail threatening possible lawful action in response to conduct in not treating transfer patients, which makes no mention of Rizkallah's suit against, or criticisms of, MassHealth. The alleged violative conduct in Snodgrass does not resemble Jones's conduct here; in Snodgrass the plaintiff provider alleged that he had been excluded from participating in Tennessee's Medicaid program in retaliation for exercising his First Amendment rights. See id. at 756.
The plaintiffs argue that in our qualified immunity analysis, we are required to first decide whether, given the facts as alleged, Rizkallah's constitutional rights were violated, citing Nelson v. Salem State College, 446 Mass. 525, 531 (2006). In Nelson, however, the Supreme Judicial Court indicated that we need not begin with the constitutional violation prong of the qualified immunity test where it would present unresolved questions of constitutional law that are unnecessary to decide the underlying qualified immunity defense. See Nelson, supra at 532 ("where, as here, a State court judge is presented with a difficult and unresolved issue of Federal constitutional law and the defendant raises a qualified immunity defense, the judge may exercise discretion and determine that fully resolving the constitutional issue is unnecessary"). The decision of the Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236 (2009), too, makes clear that appellate courts need not consider the prongs of the qualified immunity defense in a particular sequence. When "'it is plain that a constitutional right is not clearly established,' a court may grant the requested immunity without undertaking the 'essentially academic exercise' of ascertaining whether the specific facts depict a constitutional violation." Haley v. Boston, 657 F.3d 39, 47 (1st Cir. 2011), quoting Pearson, supra at 237.
Likewise, with respect to the Massachusetts Civil Rights Act, it was not clearly established that a threat of lawful civil action selectively applied to an individual who announced his policy of violating the regulations by way of a lawsuit, even if the threat was intentionally in response to the lawsuit, would violate the Massachusetts Civil Rights Act.
Judgment affirmed.
By the Court (Meade, Rubin & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 4, 2020.