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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION BLUE CROSS BLUE SHIELD OF MISSISSIPPI, A MUTUAL INSURANCE COMPANY vs. GOVERNOR PHIL BRYANT, in his Capacity as Governor of the State of Mississippi MOTION FOR TEMPORARY RESTRAINING ORDER Pursuant to Federal Rule of Civil Procedure 65(b), Blue Cross Blue Shield of Mississippi, A Mutual Insurance Company (Blue Cross), respectfully requests that the Court issue a temporary restraining order preserving the status quo and preventing Mississippi Governor Phil Bryant from taking any action to enforce Executive Order 1327 to the extent that it requires Blue Cross to re-contract with and re-admit six HMA-owned hospital into its provider Network. The stated basis for Governor Bryants Executive Order is the threat that Blue Cross may be in violation of various laws, including Insurance Code (Mississippi Code) 83-41-409 and 83-5-33. Less than a week ago, Mississippi Department of Insurance Commissioner Mike Chaney responded to the Governors concerns and advised him in writing that he is aware of the issue and is following the process set forth by statute to examine the Blue Cross network and determine whether it complies with the statutory requirements of 83-41-409. Commissioner Chaney also specifically advised the Governor that he has analyzed the allegations concerning 83-5-33 and that he believes the Governor has no authority to order Blue Cross to re-contract with the HMA hospitals.

PLAINTIFF CIVIL ACTION NO.: 3:13cv655-HTW-LRA

DEFENDANT

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Rather than follow Commissioner Chaneys advice and the statutory framework for addressing these issues, Governor Bryant has imposed an unprecedented, unconstitutional mandatory injunction forcing Blue Cross to re-contract with the HMA hospitals--until it is determined whether the law has been violated. Governor Bryant has no legitimate authority or basis for his actions. Governor Bryant is merely responding to the political and public pressure instigated by HMA, its lawyers and its lobbyists. For the reasons discussed below, and in Blue Cross Petition [Docket No. 1], incorporated herein by reference, Governor Bryant has absolutely no authority--constitutionally, statutorily or otherwise--to force Blue Cross, a private party, to enter into contracts with HMAowned hospitals, other private parties. As Commissioner Chaney previously stated before a joint session of the Mississippi Legislature, the exclusion of the HMA-owned hospitals from Blue Cross provider Network will not deny Blue Cross subscribers access to health care. Commissioner Chaney presently is carrying out his statutory duty to confirm this finding, and Commissioner Chaney expects to issue a final accessibility report on or before December 1, 2013. Blue Cross has completed its own managed care accessibility analysis and has concluded, even with the exclusion of the HMA-owned hospitals from its Network, Blue Cross has a sufficient provider Network to meet the requirements of Mississippi Code 83-41-409(b). Moreover, as set forth in its Petition, [Docket No. 1], Blue Cross offered to reinstate the hospitals in Clarksdale, Batesville and Amory even though there are Network hospitals within 30 miles of each City. Blue Cross also offered to reinstate Womans in Rankin County. HMA rejected the first offer of October 14, 2013 and was silent on the renewed offer of October 18, 2013, which offer was made after the Petition was filed. On October 21, 2013, having heard nothing from HMA, Blue Cross unilaterally recognized these four hospitals as Network

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Providers and determined to provide network-level benefits for its members at those hospitals. No contracting is required. The decision was made after consulting with Insurance Commissioner Chaney. Any executive action forcing Blue Cross to re-admit the remaining six HMA-owned hospitals into its provider Network will irreparably harm Blue Cross as it will result in a clear violation of Blue Cross constitutionally protected rights under the Due Process Clause, Equal Protection Clause and Contracts Clause of both the United States Constitution and the Mississippi Constitution. Thus, Blue Cross respectfully submits that it has met its burden under Rule 65(b) and is entitled to entry of a temporary restraining order preventing Mississippi Governor Phil Bryant from taking any action to enforce Executive Order 1327. In support of this Motion, Blue Cross states the following: 1. Federal Rule of Civil Procedure 65(b) provides as follows:

The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and the movants attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(B)

Fed. R. Civ. Pro. 65(b). 2. For the reasons outlined in the Affidavit of Jeffery T. Leber, Executive Vice

President and Chief Financial Officer of Blue Cross, attached as Exhibit A, and the Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Relief [Docket No. 1], attached as Exhibit B and incorporated herein by reference, Blue Cross will suffer immediate and irreparable injury if Governor Bryant is permitted to take any action to
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enforce Executive Order 1327 requiring Blue Cross to re-contract with and re-admit six HMAowned hospitals into its provider Network. 3. Blue Cross is substantially likely to prevail on the merits of its claim for

declaratory relief. Governor Bryant has made a finding, without the required notice to Blue Cross and an opportunity to be heard, that the exclusion of the HMA-owned hospitals threatens patients access to care. As a result of this unsubstantiated finding, Governor Bryant has

unconstitutionally ordered Blue Cross to re-contract with six HMA-owned hospitals, voiding Blue Cross bargained for right to terminate its Agreements with these six hospitals. Further, on October 21, 2013, Blue Cross finalized a managed care accessibility analysis that concludes, even with the exclusion of the HMA-owned hospitals from its provider Network, Blue Cross has a sufficient provider Network to meet the requirements of Mississippi Code 83-41-409(b). See Exhibit 1 to the Affidavit of Jeffery Leber, attached hereto as Exhibit A. Stated differently, Blue Cross current provider Network has providers of sufficient number throughout its service area to assure reasonable access to care with minimum inconvenience to its subscribers. 4. The threatened harm to Blue Cross business operations substantially outweighs

any theoretical harm that the Defendant may suffer. Enjoining the Defendant from enforcing Executive Order 1327 until its constitutionality can be determined will not harm the Defendant. 5. The entry of the requested temporary restraining order is consistent with public

policy as it will preserve the status quo and will ensure that a private party is not forced to enter into a contract with other private parties in violation of its constitutionally protected rights guaranteed by the United States Constitution and the Mississippi Constitution.

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6.

Undersigned Counsel certifies that he has served by hand delivery a copy of this

Motion, supporting Memorandum and attached exhibits to Mississippi Attorney General Jim Hood and Governor Phil Bryant. 7. In accordance with the requirements of Federal Rule of Civil Procedure 65(c),

Blue Cross stands ready to post reasonable bond in connection with the issuance of the requested temporary restraining order. 8. This Motion for Temporary Restraining Order is supported by Blue Cross

Memorandum in Support of its Motion for Temporary Restraining Order, which is being filed and served upon opposing counsel and the Court contemporaneously with the filing of this Motion. Additionally, this Motion is supported by the following Exhibits: Exhibit A: Exhibit B: Affidavit of Jeffery T. Leber (and supporting Exhibits); Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and Declaratory Relief [Docket No. 1]; Transcript of Insurance Commissioner Chaneys Testimony at Joint Legislative Hearing and information provided to Legislators by Commissioner Chaney; October 17, 2013 Letter from Commissioner Chaney to Carol Pigott; October 17, 2013 Letter from Governor Bryant to Carol Pigott; October 17, 2013 Letter from Governor Bryant to Commissioner Chaney: October 18, 2013 Letter from Commissioner Chaney to Governor Bryant; and Executive Order 1327.

Exhibit C:

Exhibit D:

Exhibit E: Exhibit F:

Exhibit G:

Exhibit H:

ACCORDINGLY, Blue Cross respectfully submits it has met its burden under Federal Rule of Civil Procedure 65(b), and that it is entitled to entry of a temporary restraining order,
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preserving the status quo, and precluding the Governor from taking any action to enforce Executive Order 1327 to the extent that it requires Blue Cross to re-contract with and re-admit six HMA-owned hospitals into its provider Network. Blue Cross respectfully requests any additional relief that the Court deems just and proper. Dated: October 23, 2013. Respectfully submitted, BLUE CROSS BLUE SHIELD OF MISSISSIPPI, A MUTUAL INSURANCE COMPANY By: /s/ R. David Kaufman______________________ One of Its Attorneys

OF COUNSEL: R. David Kaufman, Esq. (MSB No. 3526) Cheri D. Green, Esq. (MSB No. 4988) Brunini, Grantham, Grower & Hewes, PLLC Post Office Drawer 119 Jackson, Mississippi 39205 Telephone: (601) 948-3101 Facsimile: (601) 960-6902

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CERTIFICATE OF SERVICE I, R. David Kaufman, certify that I have this day caused the above and foregoing pleading or other document to be served via ECF and HAND DELIVERY on the following: Attorney General Jim Hood Walter Sillers Building 550 High Street, Suite 1200 Jackson, MS 39201 Governor Phil Bryant Walter Sillers Building 550 High Street, 19th Floor Jackson, MS 39201 Dated: October 23, 2013.

__/s/ R. David Kaufman__________ R. David Kaufman

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