Latimer v. Robinson

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0530n.06
Filed: June 21, 2005
No. 04-5828
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HARVEY L. LATIMER, HUEY
NEWBERRY, PATRICIA W. NEWBERRY,
and DARRYL BIVENS,
Plaintiffs-Appellants, ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
v. MIDDLE DISTRICT OF TENNESSEE
KENNETH ROBINSON, Commissioner of ORDER
the Tennessee Department of Health, and
MANNY MARTINS, Deputy Commissioner
of the Tennessee Tenncare Bureau,
Defendants-Appellees.
/
BEFORE: CLAY and SUTTON, Circuit Judges; REEVES, District Judge.*
PER CURIAM. Plaintiffs Harvey L. Latimer, Huey Newberry, Patricia W. Newberry, and
Darryl Bivens, who are general dentists practicing in Tennessee, appeal the district court’s May 24,
2004 order dismissing their claim under 42 U.S.C. § 1983 against Defendants Kenneth Robinson,
who is Tennessee’s Commissioner of the Department of Health, and Manny Martins, who is the
Deputy Commissioner of the Tennessee TennCare Bureau. Plaintiffs allege that TennCare’s recent
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
No. 04-5828
promulgation, without notice or an opportunity to be heard, of Standard Operating Procedure
(“SOP”) No. 039, under which general dentists are no longer reimbursed for orthodontic services
they provide to Tennessee’s Medicaid enrollees except in extenuating circumstances, violated their
rights to procedural and substantive due process under the Fourteenth Amendment to the U.S.
Constitution. See U.S. CONST. amend. XIV (providing that no State shall “deprive any person of
life, liberty, or property, without due process of law”). The district court held that Plaintiffs’
complaint failed to state a claim upon which relief can be granted, and dismissed it pursuant to Fed.
R. Civ. P. 12(b)(6), because it fails to allege a constitutionally-protected property interest in
Plaintiffs’ continued receipt of reimbursements from TennCare for the provision of orthodontic
services.
“[T]hree inquiries must be made to determine whether, in a § 1983 action, a procedural due
process violation has been established. They are: (1) whether the claimant has established a life,
liberty or property interest protected by the Due Process Clause; (2) whether that interest was
‘deprived’ within the meaning of the Due Process Clause; and (3) whether adequate procedures were
afforded prior to the deprivation of the protected interest.” Franklin v. Aycock, 795 F.2d 1253,
1261-62 (6th Cir. 1986). The sole question on appeal is whether Plaintiffs have articulated a
cognizable property interest.
Plaintiffs maintain that SOP No. 039 deprives them of their property interest in their dentistry
licenses, which permit them to perform orthodontic services in Tennessee. A license to perform
dental services, however, does not translate into an entitlement to receive a particular business
opportunity from the TennCare program (i.e., reimbursement for orthodontic services). Cf. Med
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No. 04-5828
Corp, Inc. v. City of Lima, 296 F.3d 404, 410 (6th Cir. 2002) (rejecting asserted property interest of
ambulance company alleging violation of its due process rights in connection with city’s proposed
suspension of 911 calls to the company for a period of one week; although the city code guaranteed
the plaintiffs the right to do business, it did not guarantee them “the right to receive particular
business opportunities from the City”). Plaintiffs still can practice dentistry to the fullest extent
permitted by their licenses on both TennCare enrollees and non-TennCare enrollees. See TENN.
COMP. R. & REGS 1200-13-1-.05(c) (“Providers may seek payment from a Medicaid recipient under
the following conditions: … the services provided are not covered by Medicaid and the provider
informed the recipient the service was not covered prior to providing the service.”). They simply
are no longer reimbursed by the State of Tennessee when they perform certain orthodontic services
on TennCare enrollees.
Plaintiffs also have alleged no facts showing that TennCare’s policy of not reimbursing
general dentists for orthodontic care renders their dental licenses valueless. In fact, Plaintiffs’ own
complaint reveals that the lion’s share of their revenue (70 to 80%) comes from dental services that
are not impacted by SOP No. 039. Because the policy does not “completely destroy the value” of
their dental licenses, Med Corp., 296 F.3d at 413 (emphasis in original), there is no basis to hold that
SOP No. 039 amounts to an effective revocation of their dental licenses.
In addition, although the TennCare program has promulgated eligibility criteria for provider-
participants who seek reimbursement for Medicaid services, see TENN. COMP. R. & REGS 1200-13-
1-.05(1)(a); id. 1200-13-.16(2)(a), the eligibility criteria alone are insufficient to create a property
interest in the receipt of reimbursements. There also must be a statute, regulation, or rule that limits
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No. 04-5828
TennCare’s ability to define the universe of providers eligible for such reimbursements. See Lucas
v. Monroe County, 203 F.3d 964, 967-68, 978 (6th Cir. 2000) (holding that wrecker service
operators did not have a property interest in being on a towing service call list maintained by the
sheriff; although the operators had to satisfy a number of eligibility criteria to be placed on the list,
none of the criteria limited the sheriff’s ability to remove an operator from the list, and there were
no procedures for suspension or removal from the list); Med Corp., 296 F.3d at 410 (rejecting
asserted property interest because the plaintiff could not point to “some policy, law, or mutually
explicit understanding that both confer[red] the benefit and limit[ed] the discretion of the City to
rescind the benefit”). As in Med Corp. and Lucas, there is no regulation or policy (at least Plaintiffs
have pointed to none) that limits TennCare’s discretion to adopt a policy that denies reimbursement
to general dentists for orthodontic services they provide to TennCare enrollees.
Finally, the lack of a cognizable property interest is exemplified by Plaintiffs’ concession
that the TennCare program has the legal right to completely exclude all dentists from the program
and/or eliminate reimbursements for orthodontic services altogether to any provider. See Pls’ Br.
at 8 (“[Plaintiffs] can not [sic] complain if they, along with every other dentist similarly situated, are
terminated from participation in the program or if their fees are drastically reduced by the program
or, due to budgetary reasons, the Program eliminates the provision of orthodontics to enrollees
altogether.”). If a complete denial of TennCare reimbursements to dentists generally would not give
rise to a due process claim, it necessarily follows that TennCare’s decision to deny reimbursement
to dentists for only a subset of dental services also does not interfere with Plaintiffs’ due process
rights.
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Plaintiffs’ substantive due process right claim fails for the same reasons. They are required
to show that Defendants denied them a federal right in the form of a protected property or liberty
interest. Sperle v. Michigan Dep’t of Corrs., 297 F.3d 483, 490 (6th Cir. 2002); Silver v. Franklin
Township, Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992) (“To establish a violation
of substantive due process, a plaintiff must first establish the existence of a constitutionally-
protected property or liberty interest.”). Because Plaintiffs have no property or liberty interest in
continuing to be reimbursed for providing orthodontic services to TennCare enrollees, their
substantive due process claim necessarily fails.
For all the foregoing reasons, we AFFIRM the May 20, 2004 order of the district court,
dismissing Plaintiffs’ complaint with prejudice.
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