Judge Mary H. Strobel, Case 22STCP00750 2023-04-04 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner K. Andrew Johnson, M.D. (“Petitioner”) petitions for a writ of mandate directing Respondents California Department of Health Care Services (“DHCS” or “Department”) and Michelle Baass, Director of the State Department of Health Care Services (“Director”) (collectively “Respondents”) to, within 90 days of issuance of the court’s order, “review the Medi-Cal reimbursement levels for anesthesiology physician services in the Medi-Cal fee-for service delivery system” and “take into account at least the following factors: (1) Annual cost increases for anesthesiology physicians as reflected by the Consumer Price Index, (2) Anesthesiology physician reimbursement levels under the Medicare Program, and (3) Anesthesiology prevailing customary physician charges within the state and in various geographical areas.”

Petitioners also seek a writ stating: “At the conclusion of the above-described review process, the Respondents shall issue a written report to the court and Petitioners’ attorneys demonstrating that they have adequately considered the relevant factors described above (i.e., CPI, Medicare rates, prevailing charges), and established a rational connection between those factors, the choice made, and the purposes of the enabling statute. This report will also describe the revisions, if any, that are warranted based on said review in the Medi-Cal reimbursement levels for anesthesiology physician services in the Medi-Cal fee-for-service delivery system.” (Proposed Order at 23.)

Petitioner “is board certified by the American Board of Anesthesiology and duly licensed as a medical doctor by the State of California. He has provided, and continues to provide, anesthesia services at various locations in southern California.” (FAP ¶ 2.)

In this writ action, Petitioner seeks to enforce Welfare and Institutions Code section 14079 on behalf of himself and “other physician anesthesiologists in the State of California.” (Id. ¶¶ 2-10.) Petitioner contends that Department failed to comply with section 14079 when setting Medi-Cal rates for physician anesthesiologists. (Id. ¶¶ 1-2.)

(a) The director shall periodically review the reimbursement levels for physician and dental services in the Medi-Cal fee-for-service delivery system, and shall periodically revise the rates of reimbursement to physicians and dentists to the extent the director deems necessary to comply with applicable federal Medicaid program requirements, including provisions on reasonable access to physician and dental services for Medi-Cal beneficiaries.

(b) To the extent consistent with the department's federally approved access monitoring plan, or any successor methodology for monitoring reasonable access to Medi-Cal covered services, as described in Section 1396a(a)(30)(A) of Title 42 of the United States Code, this periodic review, as it relates to rates for physician services, shall take into account at least the following factors:

(1) Annual cost increases for physicians as reflected by the Consumer Price Index.

(3) Prevailing customary physician charges within the state and in various geographical areas.

(4) Characteristics of the current population of Medi-Cal beneficiaries and the medical services needed.

Section 14079 was originally enacted in 1976. It was amended in 1992 and 4 again in 2020. The 1992 version stated that “the director annually shall review the reimbursement levels for physician and dental services under Medi-Cal, and shall revise periodically the rates of reimbursement to physicians and dentists to ensure the reasonable access of Medi-Cal beneficiaries to physician and dental services.” (See 1992 Cal. Legis. Serv. Ch. 713 (A.B. 3564) (WEST).) The original 1976 statute and the 1992 amendment both required the director to consider the four factors specified in section (b)(1)-(4) of the current statute. (Ibid. and Opening Brief (“OB”) 6-7.)

On June 29, 2020, the Legislature enacted Assembly Bill 80 (Cal. Stats 2020 Ch. 12) (AB 80), which amended Section 14079 to require only periodic reviews of reimbursement levels and to adjust “rate reviews for physician and dental reimbursable services to more closely align with federal access-to-care requirements.” (See e.g. Petitioner’s Compendium of Evidence (“PC”) 497-508.)[1]

“Medicaid is a cooperative federal-state program through which the federal government reimburses states for certain medical expenses incurred on behalf of needy persons.’” (Keffeler v. Partnership Healthplan of California (2014) 224 Cal.App.4th 322, 326-27; see 42 U.S.C. § 1396 et seq.) "States do not have to participate in Medicaid, but those that choose to do so must comply both with statutory requirements imposed by the Medicaid Act and with regulations promulgated by the Secretary of the U.S. Department of Health and Human Services." (Keffeler, supra at 326-27.) States administer the program and "determine eligibility, the types of services covered, payment levels for services, and other aspects of administration, within the confines of federal law." (Id. at 327.)

There are two methods of reimbursement and payment under Medi-Cal: “a fee-for-service basis or a managed care basis.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 94, citing Welf. & Inst. Code § 14016.1(b).) Petitioner’s claims concern California’s fee-for-service rates for physician anesthesiologists. (FAP ¶¶ 1-3.)

To qualify for federal funds, a state must submit its Medicaid plan and any amendments to the federal agency that administers the program, the Centers for Medicare & Medicaid Services (CMS). (Douglas v. Independent Living Center of So. Calif., Inc. (2012) 565 U.S. 606, 610.) “Participating states are required to include in their plans reimbursement methods and standards for the medical services provided.” (California Hosp. Ass’n v. Maxwell-Jolly (2010) 188 Cal.App.4th 559, 565.)

State plans and amendments must " provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan (including but not limited to utilization review plans as provided for in section 1396b(i)(4) of this title) as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” (42 U.S.C. § 1396a(a)(30)(A) [hereafter section 30(A)].)

“Section 30(A) is commonly understood to set two standards for Medicaid provider rates: ‘efficiency, economy and quality of care’ (EEQ) and equal access to care.” (Santa Rosa Memorial Hospital, Inc. v. Kent (2018) 25 Cal.App.5th 811, 820.)

Significantly in this case, “state plans and amendments are submitted for review and necessary approval”” to CMS. (Santa Rosa, supra, 25 Cal.App.5th at 820 [bold italics added].) The state “must receive the agency's approval of the plan and any amendments. Before granting approval, the agency reviews the State's plan and amendments to determine whether they comply with the statutory and regulatory requirements governing the Medicaid program….” (Douglas, supra, 565 U.S. at 610 [bold italics added].) As discussed below, federal Medicaid regulations also require states to develop and update an Access Monitoring Review Plan (AMRP). (42 CFR § 447.203, § 447.204.) Although the AMRP itself apparently does not require federal approval, each state’s Medicaid plan and amendments affecting payment rates must comply with federal law and Medicaid payments can be withheld from the state for failure to comply with federal requirements. (See e.g. 42 CFR § 447.204(c) [“CMS may disapprove a proposed state plan amendment affecting payment rates….”]; 42 CFR § 430.35 [governing the “withholding of [Medicaid] payment for failure to comply with Federal requirements”]; see generally 80 Fed. Reg. 67576-01 [commentary to federal regulations, which states multiple times that CMS will approve or disapprove of Medicaid state plan amendments].)

Medi-Cal is California's state Medicaid program. (See e.g. Welf. & Inst. Code §§ 14132.) Department administers the Medi-Cal program. (22 C.C.R. § 50004(a).)

“Medicaid providers and recipients may challenge CMS approval of a state plan under the Administrative Procedure Act (APA).” (Santa Rosa, supra, 25 Cal.App.5th at 815.) “[T]hey may obtain judicial review should the agency uphold the rates” after that administrative process. (Id. at 818.)

In or about November 2015, CMS promulgated regulations requiring states to prepare AMRPs to document “whether Medicaid payments are sufficient to enlist providers to assure beneficiary access to covered care and services consistent with section 1902(a)(30)(A) of the Social Security Act (the Act).” (80 Fed. Reg. 67576; available at 2015 WL 6603366.) The regulations became effective on or about January 4, 2016. (Ibid.)

In his writ briefing, Petitioner relies heavily on two of these regulations, 42 CFR sections 447.203 and 447.204. Among other things, section 447.204 requires the department to develop an access monitoring review plan (“ARMP”) and to submit it to CMS for review for each review period. Section 447.204 concerns the procedure for making a state plan amendment affecting payment rates.

Department’s most recent AMRPs were issued in September 2016 and December 2019. (Pet. Comp. Exh. 1, 13.) Due to the federal COVID-19 Public Health Emergency, CMS extended the deadline for updated AMRPs from October 1, 2022, to October 1, 2024. (Pet. Comp. Exh. 10.) It is undisputed that Department has not issued an AMRP since 2019 and that its updated AMRP is not due until October 1, 2024. (See OB generally and 8, fn. 1.)

On March 3, 2022, Petitioner filed a verified petition for writ of ordinary mandate and complaint for declaratory relief against Respondents.

On June 29, 2022, Respondents filed a demurrer and a meet and confer declaration. The court received Petitioner’s opposition and Respondents’ reply.

On September 8, 2022, after a hearing, the court sustained Respondents’ demurrer to the petition with leave to amend. The court’s September 8, 2022, ruling is not repeated here but is incorporated by reference.

On October 31, 2022, Respondents filed their demurrer to the FAP and meet and confer declaration. The court received Petitioner’s opposition and Respondents’ reply.

On January 31, 2023, after a hearing, the court overruled Respondents’ demurrer to the FAP. The court’s January 31, 2023, ruling is not repeated here but is incorporated by reference.

On February 2, 2023, Petitioner filed his opening brief in support of the petition. The opening brief substantially exceeds applicable page limits without leave of court. Petitioner is admonished to comply with the California Rules of Court and to address at the hearing the reason why it filed an oversized brief without leave.

The first, second, and third causes of action are for writ of ordinary mandate. There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where … the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

“However, [mandamus] will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.” (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.)

Petitioner bears the burden of proof and persuasion in a mandate proceeding brought under CCP section 1085. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.) A reviewing court “will not act as counsel for either party … and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742.)

To have standing to seek a writ of mandate, a party must be “beneficially interested.” (CCP § 1086.) “A petitioner is beneficially interested if he or she has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.” (Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal. App. 4th 899, 913; accord Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796-97.) “This standard … is equivalent to the federal ‘injury in fact’ test, which requires a party to prove by a preponderance of the evidence that it has suffered ‘an invasion of a legally protected interest that is '(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'’” (Associated Builders and Contractors, Inc. v. San Francisco (1999) 21 Cal.4th 352, 361-362.) “One who is in fact adversely affected by governmental action should have standing to challenge that action if it is judicially reviewable.” (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165.)

In Armstrong v. Exceptional Child Center, Inc. (2015) 575 U.S. 320, the U.S. Supreme Court held that “[t]he sheer complexity associated with enforcing § 30(A), coupled with the express provision of an administrative remedy, § 1396c, shows that the Medicaid Act precludes private enforcement of § 30(A) in the courts.” (Id. at 329.)

In Santa Rosa Memorial Hospital, Inc. v. Kent (2018) 25 Cal.App.5th 811, the California Court of Appeal applied Armstrong to a writ petition seeking to enforce section 30(A) in state court and held the petitioner lacked standing. In Santa Rosa, a group of hospitals sued California’s Department of Health Care Services (i.e., the Respondent here) in state court and alleged that certain rate reductions violated section 30(A). The hospitals sought a writ of mandate to declare the rates void and “and to obtain an award of almost $100 million in recalculated rates.” (Id. at 814.) The Santa Rosa Court held that the hospitals could not seek a writ of mandate against DHCS to contest Medicaid reimbursement rates under section 30(A). The Court concluded “that under no circumstances is writ relief against the state agency available to challenge on substantive grounds rates that have been approved by CMS.” (Santa Rosa, supra, at 819-820.)

In part, the FAP challenges the sufficiency of federally approved Medi-Cal reimbursement rates. Petitioner contends that California’s Medi-Cal reimbursement rates are inadequate. (FAP ¶¶ 32, 38, 45.) Petitioner seeks orders directing Respondents to “update” the rates and “to pay retroactive reimbursement to physician anesthesiologists from 2001 to the present.” (Prayer ¶¶ 2-3.) Petitioner does not allege in the FAP, and he submits no evidence, that CMS has not approved California’s current Medi-Cal reimbursement rates or found them inconsistent with section 30(A). Thus, like the hospitals in Santa Rosa, Petitioner “challenge[s] on substantive grounds rates that have been approved by CMS.” The Santa Rosa Court held that writ relief is not available for that purpose.

In its ruling on demurrer dated January 31, 2023, the court concluded that “Section 14079 is not a rate-setting statute” and that, pursuant to Armstrong and Santa Rosa, Petitioner lacks standing “to the extent he seeks writs compelling Department to modify its Medi-Cal reimbursement rates or pay retroactive reimbursement.” (1/31/23 Minute Order at 9-11.) The court confirms that prior ruling.

The FAP also seeks a writ directing “Respondents to take into account in their next access report, and all future access reports, the statutory factors set forth in California Welfare & Institutions Code section 14079, subd. (b)(1) - (b)(3) (i.e., CPI, Medicare rates, and physician charges).” (FAP Prayer ¶ 1.) In his proposed order, Petitioner somewhat modifies the relief he seeks. Petitioner now seeks a writ compelling Respondents to consider the section 14079 factors within 90 days and prior to completion of the next AMRP, due in October 2024. Petitioner also seek a writ directing Respondents to "issue a written report to the court and Petitioners’ attorneys demonstrating that they have adequately considered the relevant factors described above (i.e., CPI, Medicare rates, prevailing charges), and established a rational connection between those factors, the choice made, and the purposes of the enabling statute.” (Proposed Order at 3.)

Respondents contend that there is no “legal support” to compel Department to “conduct a review within 90 days and issue a report to this court, explaining its findings and rationale.” (Oppo. 14.) Depending on the circumstances, a trial court could issue a writ directing Department to consider the statutory factors set forth in section 14079 and to file a return (which is similar to a written report) showing compliance with the writ. Any conclusion to the contrary would suggest section 14079 is unenforceable and superfluous. “[I]nterpretations which render any part of a statute superfluous are to be avoided.” (Young v. McCoy (2007) 147 Cal.App.4th 1078, 1083.)

As an anesthesiologist that treats Medi-Cal patients (see PC 764), Petitioner has standing to enforce section 14079 by writ of mandate. Respondents contend that Petitioner “lacks standing because his writ claim is not ripe for review.” (Oppo. 17.) However, Respondents have not disputed that Petitioner, as an anesthesiologist, has a beneficial interest in the enforcement of section 14079. Ripeness is a separate issue, which the court addresses next.[2]

Respondents contend that Petitioner’s claim under section 14079 is not ripe because the 2016 and 2019 ARMPs are not evidence of Respondents’ current compliance with section 14079; Petitioner “relies upon evidence from 2012-2017 to allege violations of a statute that did not go into effect until 2020”; and the deadline for Department’s next AMRP is not until October 1, 2024. (Oppo. 18-20.) In reply, Petitioner responds that his claim is ripe because “the Court can order the Department to comply with section 14079 before the due date of the next AMRP” and because two decades of data prove that “Department has not taken into account the statutory factors in section 14079 during the rate setting process.” (Reply 9-11.) The court agrees with Respondents that Petitioner has not proven the ripeness of his claim.

“‘[A] basic prerequisite to judicial review of administrative acts is the existence of a ripe controversy.’ (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 169, 188 Cal.Rptr. 104, 655 P.2d 306.) The ripeness doctrine is based upon the recognition that judicial decisions are best made in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy. (Id. at p. 170, 188 Cal.Rptr. 104, 655 P.2d 306.) ‘The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ (Id. at pp. 170–171, 188 Cal.Rptr. 104, 655 P.2d 306.) ‘A controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’’ [Citation.] Courts will not be drawn into disputes that depend for their immediacy on speculative future events.” (Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, 708.)

“[The] basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” (Santa Teresa, supra, 114 Cal.App.4th at 708.) In deciding whether a claim is ripe, courts “evaluate both [1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.” (Santa Teresa, supra, 114 Cal.App.4th at 708; see also Pacific Legal Foundation, supra, 33 Cal.3d at 172-173 [applying this two-part test].)

Petitioner contends that the Department violated Section 14079 by allegedly failing to account for: (1) the annual cost increases for physicians as reflected by the Consumer Price Index; (2) physician reimbursement levels under the Medicare program; and (3) prevailing customary physician charges within the state and in various geographical areas. (FAP ¶¶ 32, 38, 45.)

As discussed in the court’s January 31, 2023, ruling, the factors set forth in section 14079(b) cannot be read in isolation and must be harmonized with the entire statute. (See 1/31/23 Minute Order at 11-12.) Section 14079(a) states that “[t]he director shall periodically review the reimbursement levels for physician … services in the Medi-Cal fee-for-service delivery system, and shall periodically revise the rates of reimbursement to physicians … to the extent the director deems necessary to comply with applicable federal Medicaid program requirements, including provisions on reasonable access to physician and dental services for Medi-Cal beneficiaries.” (bold italics added.) Section 14079(b) also states that “[t]o the extent consistent with the department's federally approved access monitoring plan, or any successor methodology for monitoring reasonable access to Medi-Cal covered services, as described in Section 1396a(a)(30)(A) of Title 42 of the United States Code, this periodic review, as it relates to rates for physician services, shall take into account at least the following factors: ….” (bold italics added.)

Thus, section 14079 directly ties the Director’s “periodic” review and revision of rates to a determination by the Director that the changes are “necessary to comply with applicable federal Medicaid program requirements.” The four factors specified in section 14079(b) only need to be considered “to the extent consistent” with Department’s federally approved plans under section 30(A). The Director’s duties under section 14079 are necessarily intertwined with the ongoing federal process under which Department and CMS review Medi-Cal rates to ensure they comply with federal access-to-care requirements in section 30(A).

Significantly, the parties agree that the 2020 amendments to section 14079 were made “to align” with the federal “access-to-care” and AMRP requirements in 42 CFR sections 447.203 and 447.204. (OB 9-10, citing PC 497-508; Oppo. 10.) In a “Fact Sheet” prepared by Department in support of the amendments, Department stated, in pertinent part: “This proposal would eliminate obsolete requirements when DHCS performs rate reviews for physician and dental reimbursable services to more closely align with federal access-to-care requirements…. The federal Centers for Medicare and Medicaid Services (CMS) enforces compliance with the access-to-care requirements, including access to physician services, via review and approval of California’s Medicaid State Plan and State Plan Amendments, and the ongoing oversight of DHCS’ administration of California’s Medicaid State Plan. CMS also enforces compliance with the access-to-care requirements via the access monitoring review standards set forth in 42 Code of Federal Regulations Section 447 Subpart B. To meet these requirements, California must, among other things, conduct baseline reviews of core services through its access monitoring review plan and continue to monitor access data to promote ongoing access to care. DHCS has been monitoring access in its fee-for-service (FFS) delivery system, in part, by maintaining a CMS-approved framework referred to as the Access Monitoring Review Plan (AMRP) since 2011, the most recent of which is entitled the California FFS Medi-Cal Program Health Care Access Monitoring Plan and was published in September 2016 and updated in 2017. The AMRP is a comprehensive report that contains information and data related to the needs of enrollees, availability of providers, changes in beneficiary utilization of covered services, characteristics of the Medi-Cal beneficiary population, and service payment information, among other things. The proposed revision of W&I Code Section 14079 will update the factors utilized in the rate review to reflect available data to comply with the federally-approved framework.” (PC 497-498.)

To support his claim that Department is presently out of compliance with section 14079, Petitioner cites evidence that anesthesiology Medi-Cal payment rates remained largely unchanged from June 30, 2001, to October 15, 2021, despite regular increases in the Consumer Price Index (“CPI”); that the ratio of Medi-Cal to Medicare payment rates for anesthesiology was around 63% in 2020 and has been gradually decreasing since 2000; and that, between 2012-2018, the nationwide actual charges for anesthesiology were higher than Medicare anesthesiology rates by 540% to 700%. (OB 16-22; see e.g. PC 1-8, 435-453, 455-457, 460-467, 759-766.) Respondents do not materially dispute this evidence, but they do point out, correctly, that much of Petitioner’s evidence predates the 2020 amendments to section 14079. (Oppo. 18-19.)

As discussed, section 14079 is not a rate-setting statute and does not require Department to revise its rates. Rather, section 14079 directs Department to conduct a periodic review of the Medi-Cal rates consistent with the federal AMRP process, which generally occurs every three years. Even if the Director exercises her discretion to revise Medi-Cal rates based on the review of factors, section 14079 does not set any statutory deadline for Department to do so. Standing alone, Petitioner’s historical evidence cannot prove Department’s compliance, or non-compliance, with section 14079 in this ongoing process.

Petitioner argues that section 14079 requires Department to both review and revise its physician rates at least every three years. (Reply 4-7.) This argument ignores the court’s ruling that section 14079 is not a rate-setting statute. While section 14079 requires Director to “periodically revise the rates of reimbursement to physicians and dentists to the extent the director deems necessary to comply with applicable federal Medicaid program requirements,” that language is discretionary in nature. After her review of the section 14079 factors, the Director could exercise her discretion not to revise the rates. Thus, evidence that Department has not recently revised the reimbursement rates does not, in itself, prove that Department is failing to comply with its duty under section 14079 to conduct a periodic review of the rates.

Petitioner also contends that Department’s 2016 and 2019 AMRPs show that “Department did not review and revise physician rates based on the three required statutory factors” in section 14079. (OB 22-23.) However, as Petitioner acknowledges, CMS extended the deadline for updated AMRPs from October 1, 2022, to October 1, 2024, due to the federal COVID-19 Public Health Emergency. (PC Exh. 10.) It is undisputed that Department has not issued an AMRP since 2019 and that its updated AMRP is not due until October 1, 2024. (See OB generally and 8, fn. 1.) In the FAP, Petitioner concedes that the 2016 and 2019 AMRPs do not reflect whether Department is currently reviewing its rates based on the factors set forth in section 14079. (FAP ¶ 33.) Indeed, more than three years have elapsed since the 2019 AMRP was issued. It is speculative to make conclusions from the 2016 and 2019 AMRPs about Department’s current review process.

Petitioner could have conducted discovery to inquire as to the steps Department is currently taking to comply with section 14079 and the AMRP requirements of 42 CFR sections 447.203 and 447.204. Petitioner submits no evidence of whether or not Department is currently conducting a periodic review under section 14079 and, if so, what factors Department is considering. Contrary to the suggestion in reply, Petitioner, not Department, has the initial burden of proof on these issues. (Reply 4:3-7, 7:6-23.)

Petitioner contends that “[t]he fact that the Department has not revised physician rates in the last 20 years is overwhelming evidence of the absence of any meaningful review.” (Reply 7.) The court is not persuaded by this argument.

The only issue before the court is whether Respondents are presently out of compliance and have a present duty to take action under section 14079. (Treber v. Superior Court of City and County of San Francisco (1968) 68 Cal.2d 128, 134 [“the applicant for a writ of mandate must also show that the respondent has a present duty to perform the act he seeks to compel”].) The court is not required to provide an advisory opinion about Respondents’ past compliance.

It would be speculative to make findings or conclusions about Department’s current compliance with section 14079 based on Petitioner’s historical evidence and the 2016 and 2019 AMRPs. Further, even if arguendo Department failed to comply with section 14079 in the past (which the court does not decide), that would not prove there is a controversy ripe for judicial decision. (See Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573 [“ripeness is not a static state”].) Petitioner’s claim under section 14079 depends on Department’s present actions to review Medi-Cal reimbursement rates for compliance with section 14079 and the federal access-to-care requirements. Pursuant to section 14079 and the federal regulations, that process is ongoing and need not be completed until October 2024. On the record presented, Petitioner has not shown that this case presents a “definite and concrete” controversy and an “actual set of facts” to which judicial decisionmaking may be applied. “Courts will not be drawn into disputes that depend for their immediacy on speculative future events.” (Santa Teresa, supra, 114 Cal.App.4th at 708.) Courts will also not issue advisory opinions on unripe disputes. (Wilson & Wilson, supra, 191 Cal.App.4th at 1573.)

The court notes that the federal regulations mandate a comment period during which the public may comment on a state’s AMRP for at least 30 days “prior to being finalized and submitted to CMS for review.” (42 CFR § 447.203(b).) Since the AMRP must be submitted by October 1, 2024, this comment period will presumably occur in or about September 2024. Petitioner will be able to comment on the updated AMRP in or about September 2024. Petitioner may have a ripe claim at that point.

Petitioner argues that he and other anesthesiologists will be harmed if the court withholds judicial consideration of his claim because “the 6,174 physician anesthesiologists would have lost a total of $327,345,480 ($53,020 x 6,174)” during the past 20 years, in which Medi-Cal rates were not increased. (Reply 12.) Petitioner does not frame the issue correctly. As the court ruled for the demurrer, Petitioner lacks standing in state court to compel Department to modify its Medi-Cal rates or to pay reimbursement. Since section 14079 is not a rate-setting statute, Petitioner must show a hardship in a delay in the relief that he could obtain in this writ action, namely an order compelling Department to consider the section 14079 factors. Furthermore, the hardship analysis should focus on the delay in withholding court consideration from now until September-October 2024, when the comment period will occur and when the updated AMRP is due. As discussed, it is speculative to conclude on this record that Department is not currently, or will not over the next year and half, consider the section 14079 factors as it prepares a new AMRP pursuant to federal regulations. Petitioner’s alleged injury from delay in court consideration is similarly speculative.

Based on the foregoing, Petitioner’s claim is not fit for judicial decision and the hardships to the parties does not demand that the claim be resolved now. Since Petitioner’s claim is not ripe, the petition must be denied.

The court finds Petitioner’s claim to be unripe. Alternatively, the court concludes that Petitioner does not prove a present abuse of discretion by Department or a present legal duty to act. For the same reasons discussed above, it would be speculative to make findings or conclusions about Department’s current compliance or non-compliance with section 14079 based on Petitioner’s historical evidence and the 2016 and 2019 AMRPs. A writ of ordinary mandate will only issue if the agency has a present duty to act. (See Treber v. Superior Court of City and County of San Francisco (1968) 68 Cal.2d 128, 134 [“the applicant for a writ of mandate must also show that the respondent has a present duty to perform the act he seeks to compel”].) For these separate reasons, Petitioner has not met his burden of proof to obtain writ relief.

The fourth cause of action concerns entitlement to attorneys’ fees. Fees are only awardable, if at all, to a prevailing party. Because Petitioner does not prevail on his writ claims, the fourth cause of action is also denied.

[1] The court cites to the 766-page, Bates-stamped compendium of evidence filed by Petitioner as “PC.”

[2] Respondents make no argument that section 14079 is preempted by federal law. Accordingly, the court need not discuss Petitioner’s arguments regarding preemption. (OB 12-16.)