I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Press reports read the entrails and see things in BCBS ruling mere mortals might miss

Update: Jeff Amy of the AP points out in comments that Judge Wingate made a bench ruling not reflected on the Pacer docket. His story spelled this out (and I should have caught it): “U.S. District Judge Henry T. Wingate read a temporary restraining order from the bench saying Bryant didn’t provide enough proof to justify an executive order he issued last week.” This passage raises as many questions as it answers. Does Bryant really have to put on “proof to justify an executive order”? Seriously? I would love to read the bench opinion.

I’m going to leave this update as a correction and not change the text, below.

Bobby Harrison in the Daily Journal flips the expectation of what will happen at the preliminary injunction hearing.  He writes

In Monday’s ruling, Wingate said he “is not holding the executive order was legally flawed,” but scheduled a hearing for Nov. 5 at the federal courthouse in Jackson on the issue. At that time, the governor will have the opportunity to present witnesses and evidence backing up his claim that dropping the hospitals harms health care access in the state.

Not sure where he got the notion that the hearing will about Bryant justifying his order.  What the hearing will be about is BCBS proving they will likely succeed on a claim that the order violates due process (or, much less likely equal protection), either because it unconstitutionally interferes with BCBS contract rights or because it was done in violation of procedural due process guaranties.

Both the AP story and the Clarion Ledger story report rulings that the judge does not seem to have made.  I am guessing that they attended the hearing and are taking questions or statements the judge made from the bench as explaining his ruling.  Kingfish blogged the hearing, and what he reports suggest this may be so, although the specific point both stories make (that the judge criticized Bryant’s order as based on “anecdotal assertions”) is not reported in his account.  I’m curious if he thinks the same thing.  Here’s what Jeff Ayres in the Clarion Ledger writes:

The judge has scheduled a Nov. 5 hearing in which both BCBS and the state are expected to call witnesses to give testimony in an effort to more definitively decide whether Bryant’s order was proper. HMA hospitals have been out of the insurer’s network since September when a rate dispute ended negotiations between the two companies.

Wingate said he ruled as he did not because Bryant’s order, issued last week, was legally flawed, as the insurer claimed, but because the insurance company should have been granted a hearing before any executive order was issued. He also said Bryant’s order appeared to be based on “anecdotal assertions” of the potential impact on access to care the hospitals’ out-of-network status could create rather than a demonstrated impact on access already occurring.

The AP writes:

Wingate set a Nov. 5 hearing to further explore Bryant’s claims of harm that patients would suffer if Blue Cross doesn’t contract with the hospitals.

“The executive order leans heavily on threatened harm verified primarily by anecdotal assertion,” Wingate said. “The hearing will determine the facts undergirding those assertions.”

Wingate emphasized that he was not calling Bryant’s order illegal. However, he said that Blue Cross had met the legal hurdles for him to freeze the current status and keep six hospitals owned by HMA out of the insurer’s network.


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