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Comprehensive Community Development v. Kathleen Sebelius

March 7, 2012

COMPREHENSIVE COMMUNITY DEVELOPMENT CORP., D/B/A SOUNDVIEW HEALTHCARE NETWORK ET AL., PLAINTIFFS,
v.
KATHLEEN SEBELIUS,*FN1 BOTH INDIVIDUALLY AND AS SECRETARY OF THE U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES (DHHS) ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul A. Engelmayer, District Judge:

OPINION AND ORDER

Plaintiff Comprehensive Community Development Corp., d/b/a Soundview Health Care Network ("Soundview"), and its fellow plaintiffs*fn2 seek a preliminary injunction and temporary restraining order ("TRO") against defendants United States Department of Health and Human Services ("HHS"), the Health Resources and Services Administration ("HRSA"), an operating division of HHS, and their fellow defendants.*fn3 As preliminary relief, plaintiffs ask the Court to issue an order mandating that the Government redirect funds from a federal grant awarded effective February 1, 2012 to Urban Health Plan, Inc. ("Urban Health") to Soundview, which had unsuccessfully applied for the grant. Because the relief plaintiffs seek is unavailable as a matter of law, the Court denies plaintiffs' application for preliminary relief.

I.Background*fn4

A.Federal Grants Under the Health Center Program

HRSA administers the Health Center Program ("the Program"). The Program is designed to promote the development of community-based health centers, which provide primary care services in medically underserved areas or for medically underserved populations. The Program is authorized by § 330 of the Public Health Service Act ("the Act"), as amended. See 42 U.S.C. § 254b. Through the Program, HRSA provides grant funding to an eligible health center in each of approximately 1,125 service areas throughout the United States. Grants are awarded for project periods of up to five years. However, funds are distributed annually, and grantees must submit budget applications every year to receive the funds for the year ahead. Important here, as the grant-making process has been described by HHS to the Court, grants are awarded for each new project through publicly announced Service Area Competitions ("SAC"). See Decl. of Tonya Bowers, Director of HHS's Office of Policy and Program Development ("Bowers Decl.") ¶¶ 3-4.

A health center that receives benefits under § 330 of the Act is thereby also eligible to receive additional federal benefits. For example, such a center, and any officer, governing board member, employee, or qualified contractor, may be deemed to be federal employees for the purposes of medical malpractice liability protection under the Federal Tort Claims Act. See 42 U.S.C. § 233(g). As such, the center and such personnel are immune from suit for medical malpractice claims based on conduct within the scope of their employment, and the federal government assumes responsibility for the costs of litigating such claims and the payment of any resulting settlements and judgments. To be eligible for such protection, the health center must submit what defendants identify as a "deeming application" to HRSA on an annual basis, and HRSA, acting on behalf of the Secretary of HHS, must approve the application. A health center receiving funding under § 330 is also eligible, as a Federally Qualified Health Center, to purchase outpatient prescription and non-prescription medication at reduced rates under the Act and to receive enhanced reimbursement rates from the Medicare program and the applicable state Medicaid programs. Bowers Decl. ¶¶ 5-6.

B.Soundview's Unsuccessful Application for the 2012-2017 Grant

Since 1978, Soundview has been receiving federal funds through a series of grant awards under § 330. See Decl. of Pls.' Counsel Ezra B. Glaser, Esq. ("Glaser Decl.") 3-4. Soundview is situated in the Soundview section of the Bronx, an urban neighborhood containing nine low-income public housing projects. Soundview has four locations within the service area. Id. The three-year period covered by Soundview's most recent grant began on February 1, 2009 and ended on January 31, 2012. Bowers Decl. ¶ 8 & Ex. A.

According to HHS, on June 14, 2011, HRSA publicly announced the FY 2012 SAC funding opportunity for areas serviced by Program grantees, including Soundview, whose project periods would be ending in fiscal year 2012 (October 1, 2011 through September 30, 2012). HRSA made that announcement by sending a listserve notification to all Program grantees and other entities, and by activating links to information about the SAC on the HRSA website and on the website "grants.gov." The SAC application covering the Soundview service area was available on those two websites between June 14, 2011 and September 19, 2011. Bowers Decl. ¶ 10.

As described by HHS, the application process consisted of two phases. Phase I required applicants to submit basic organizational information, including a brief budget overview and a project abstract, to grants.gov. Phase II required applicants to submit the remaining application materials, including a detailed budget, program narrative, required forms, and required attachments (e.g., bylaws, an organization chart) to the Electronic Handbook ("EHB") records system maintained by HRSA. Bowers Decl. ¶ 11. For Soundview's service area, the Phase I deadline was September 19, 2011; the EHB deadline was October 3, 2011. Id.¶ 12. The grant competition for that service area was for a five-year period commencing on February 1, 2012, and ending on January 31, 2017 (the "2012-2017 grant"); for FY 2012, the grant would provide the recipient with $1,876,258 in federal funds. Id.

There were three applicants for Soundview's service area: Soundview, Urban Health Plan, Inc. ("Urban Health"), and Union Community Health Center ("Union"). Union requested a waiver of the EHB deadline, citing difficulties uploading certain documents due to server errors; HRSA approved a waiver that permitted Union to submit an application by 5:00 p.m. on October 5, 2011. Bowers Decl. ¶ 14.

The applications were forwarded to HRSA's Division of Independent Review for review by an "objective review committee" ("ORC"). The ORC consisted of three members, each of whom had been screened for conflicts of interest. Bowers Decl. ¶ 15. According to HHS, each ORC member reviewed each application; based on the review criteria set forth in the funding opportunity announcement, each member noted strengths and weaknesses and assigned each application a point score. The ORC then provided the program official responsible for the final selection with the average point score for the application and a summary of its strengths and weaknesses. According to HHS, Urban Health had the highest-scoring application. It was, accordingly, selected by the program official to receive the 2012-2017 grant. Id.

On January 12, 2012, HRSA sent a letter to Soundview notifying it that its application received a score of 78 (out of 100) in the competitive process. The letter further stated that that score had not been "sufficiently high" to prevail in the competitive process and that another applicant (whom it did not name and whose score it did not reveal) had won the 2012-2017 grant. The letter stated: "Please be assured that your application received full and fair consideration." Bowers Decl. Ex. D ("ORC Letter to Soundview").

The ORC Letter to Soundview attached a three-page "Objective Review Committee Final Summary Statement" which summarized, in bullet-point format, the strengths and weaknesses in its application, as identified by the ORC. These strengths and weaknesses were sorted under seven criteria: (1) need, (2) response, (3) collaboration, (4) evaluative measures, (5) resources/ capabilities, (6) governance, and (7) support requested. See id. In total, the letter identified seven strengths and 19 weaknesses of Soundview's. Many weaknesses identified by HRSA related to missing data, inadequate or missing explanations, and deficient internal controls. See id. at Criteria 1, 2, 4, 5, and 7.

Soundview's most recent grant expired by its own terms of January 31, 2012. The 2012-2017 grant to Urban Health became effective on ...


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