
ATTORNEYS FOR APPELLANTS          ATTORNEYS FOR APPELLEES

STEVE CARTER                      MICHAEL B. MCMAINS
Attorney General of Indiana             MATTHEW W. FOSTER
                                  McMains Foster & Morse, P.C.
DAVID L. STEINER             Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana                   ATTORNEYS FOR AMICI CURIAE
                                  AmHealth (Evansville), Inc., et al.
                                  J. MICHAEL GRUBBS
                                  THOMAS F. SHEA

                                  JODY L. DEFORD

                                  Barnes & Thornburg
                                  Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA


INDIANA FAMILY AND SOCIAL SERVICES      )
ADMINISTRATION, et al.,                      )
                                        )
      Appellants (Defendants),               )
                                        )
            v.                          )  No. 49S00-0112-CV-647
                                        )
WALGREEN CO., et al.,                   )
                                        )
      Appellees (Plaintiffs).                      )






                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Gary Miller, Judge
                        Cause No. 49D05-0109-CP-1480




                                May 28, 2002



SHEPARD, Chief Justice



      Common  wisdom  holds  that  the  most  complicated  matter  in  state
government  is  the  school  funding  formula.   This  case  about  Medicaid
administration places that in doubt.

       Faced  with  a  sizeable  projected  financial  shortfall,  Indiana’s
Medicaid administrators adopted both emergency and permanent  rules  to  pay
pharmacies a dollar less per prescription dispensed and  reduce  their  drug
reimbursement rate by three percent.  These measures would  save  the  State
$825,000 per month.

      A group of retail drug companies,  pharmacy  trade  associations,  and
individual  Medicaid  recipients  (collectively  “Walgreens”)   obtained   a
preliminary injunction preventing  these  rules  from  taking  effect.   For
reasons explained below, we  reverse  the  order  granting  the  preliminary
injunction.



                        Facts and Procedural History


       The  Indiana  Family  and  Social  Services  Administration  and  its
subdivision, the  Office  of  Medicaid  Policy  and  Planning  (collectively
“FSSA”), administer Indiana’s  Medicaid  program.   In  December  2000,  the
director of  that  office,  Kathleen  Gifford,  reviewed  the  forecasts  of
Medicaid spending for fiscal year 2002[1] and concluded that  appropriations
would not cover program  expenditures.   Gifford  ultimately  projected  the
fiscal 2002 Medicaid deficit at over a hundred million dollars.

      To address this shortfall, Gifford explored various  cost  containment
measures.  Among other things, she recommended reducing the drug  dispensing
fee  from  four  dollars  to  two  dollars  and  decreasing   the   pharmacy
reimbursement rate from  ninety  to  eighty-seven  percent  of  the  average
wholesale price (AWP).[2]

      On April 1, 2001, FSSA published a proposed permanent rule  reflecting
these reductions, and on April 23rd it conducted a  public  hearing.   Based
upon the hearing and input provided by “members of the pharmacy  community,”
FSSA revised the proposed rule to reflect a three dollar dispensing fee.

      The Attorney General’s office received the  final  rule  on  July  10,
2001, and approved it on August 24th.  Governor Frank  O’Bannon  signed  the
rule on August 28th, and the Secretary of State’s  office  accepted  it  for
filing on August 29th, with a designated effective  date  of  September  28,
2001.

      While the permanent rule was still in the pipeline,  FSSA  adopted  an
emergency rule “to put the cost containment measures in as soon as  possible
because of the fiscal crisis.”  (T.R. at 56.)  On  August  20,  2001,  State
Budget  Director  Betty   Cockrum   exercised   recently-enacted   statutory
authority and directed FSSA to  adopt  emergency  rules  to  limit  Medicaid
expenditures to the amount of the legislative appropriation.  See P.L.  291-
2001 § 48.  FSSA officials signed an emergency rule that  was  substantively
identical to the permanent rule, and notified Medicaid  providers  that  the
new rates would become effective on August 27, 2001.

       Walgreens  obtained  a   temporary   restraining   order   to   delay
implementation of the  emergency  rule  and  sought  an  injunction  against
implementation of both rules.  Following a hearing, the trial court  granted
the preliminary injunction on October 9th.

      We  accepted  jurisdiction  over  the  ensuing  appeal  without  prior
consideration by the Court of Appeals, to expedite a resolution.   See  Ind.
Appellate Rule 56(A).





                    I.  The “Per Se” Injunction Standard



      The grant or denial of  a  preliminary  injunction  rests  within  the
sound discretion of the trial court, and our review is  limited  to  whether
there was a clear abuse of that discretion.  Harvest Ins.  Agency,  Inc.  v.
Inter-Ocean Ins. Co., 492 N.E.2d 686, 688 (Ind. 1986).

      To obtain a preliminary injunction, the moving party has the burden of
showing by a preponderance of the evidence the following:
      1)  [movant’s]  remedies  at  law  were   inadequate,   thus   causing
      irreparable harm pending resolution of the substantive action;  2)  it
      had  at  least  a  reasonable  likelihood  of  success  at  trial   by
      establishing a prima facie case;  3) its threatened injury  outweighed
      the potential harm to appellant resulting  from  the  granting  of  an
      injunction;  and 4) the public interest would not be disserved.

Id. (citations omitted); T.H. Landfill  Co.,  Inc.  v.  Miami  County  Solid
Waste Dist., 628 N.E.2d 1237, 1238 (Ind. Ct.  App.  1994).   If  the  movant
fails to prove any of these requirements, the  trial  court’s  grant  of  an
injunction is an abuse of discretion.  Boatwright v. Celebration  Fireworks,
Inc., 677 N.E.2d 1094, 1096 (Ind. Ct. App. 1997).

      The  trial  court  held  that   FSSA   violated   several   procedural
requirements in adopting the permanent and emergency  rules.   Having  found
statutory violations that demonstrated a likelihood of  success,  the  court
relied on a “per se” rule under which the other  elements  of  the  standard
injunction analysis were presumed.


      This Court has indicated that a  relaxed  standard  may  sometimes  be
applied for clear, uncontested unlawful  conduct.   Schrenker  v.  Clifford,
270 Ind. 525, 529, 387 N.E.2d  59,  61  (1979).   But  because  parties  are
relieved of several showings usually necessary to obtain injunctive  relief,
this relaxed standard “is only proper when it is clear that [a] statute  has
been violated.”  Union Township Sch. Corp.  v.  State  ex  rel.  Joyce,  706
N.E.2d 183, 192 (Ind. Ct. App. 1998).

      In prior Indiana decisions employing the relaxed  standard,  the  “per
se” rule has been used to enjoin  activity  that  is  clearly  unlawful  and
against the public interest, such as the  practice  of  medicine  without  a
license.[3]  The “per se” rule has never  been  used  to  permit  a  private
party to enjoin State action based on an alleged  procedural  deficiency  in
promulgating rules.  A private assertion  of  public  interest  will  rarely
justify enjoining State conduct when  it  is  based  only  on  a  procedural
challenge and a prima facie case.

      Here, there is no question that FSSA has  legal  authority  to  revise
Medicaid dispensing fees and reimbursement rates.  The question  is  whether
it went about the task appropriately.  The rules at issue  may  or  may  not
have been properly promulgated  (as  we  discuss  further  below),  but  the
action itself is one the statute allows.

      Absolving Walgreens from proving irreparable injury and a  balance  of
harm in its favor was error.  We therefore proceed to  review  the  standard
proofs necessary for obtaining injunctive relief.



                 II.  Irreparable Harm and Balance of Harms


      As noted above, a plaintiff  must  prove  four  things  to  justify  a
preliminary injunction, which  we  caption  as  (1)  irreparable  harm,  (2)
likelihood of success on the merits, (3) balance of harms,  and  (4)  public
interest.  We will proceed to consider each factor.

      Walgreens’ initial burden was to demonstrate  that  “remedies  at  law
were inadequate, thus causing irreparable harm  pending  resolution  of  the
substantive action.”  Tilley, 725 N.E.2d at 153-54 (citations omitted).   If
an adequate remedy at law exists, injunctive relief should not  be  granted.
A party suffering mere economic injury is not entitled to injunctive  relief
because damages are sufficient to make the party whole.   Xantech  Corp.  v.
Ramco Indus., Inc., 643 N.E.2d 918, 921-22 (Ind. Ct. App. 1994).[4]

      The crux of Walgreens’ argument is  that  a  reduction  in  dispensing
fees and reimbursement rates will cause a handful of  pharmacies  to  close.
Plaintiff Ralph Anderson testified that he owns two Bedford  pharmacies:   a
retail  pharmacy  that  offers  prescription  home  delivery,  among   other
services, and an institutional  pharmacy  that  does  not  conduct  business
directly with the public.  Anderson said the  institutional  pharmacy  would
likely close and speculated that the other might as well.[5]  (T.R. at  212,
227-28.)

      Also, a CVS spokesman testified that “some” of the 268 CVS  pharmacies
located in Indiana “will ultimately have to be closed” as a  result  of  the
Medicaid cuts.  (T.R. at 254, 256,  259.)   He  cited  only  three  definite
instances, and further  testified  that  closing  stores  was  part  of  the
ordinary course of business and that customers of the closed  stores  always
find alternative providers.  (T.R. at 259, 267-68, 270-72, 277.)

      Walgreens  failed  to  identify  any  injury  beyond  purely  economic
injury, which is not enough to justify injunctive relief.  We conclude  that
post-trial damages would  adequately  compensate  for  any  injuries  should
Walgreens  prevail  at  trial.   Moreover,  the  potential  harm  from   the
estimated one  hundred  million  dollar  State  Medicaid  deficit  outweighs
Walgreens’ potential injury.


                  III.  Likelihood of Success on the Merits

      Walgreens claims that the emergency and  permanent  rules  violated  a
number of  statutory  procedural  requirements.   Rather  than  focusing  on
whether Walgreens was likely to prevail  on  each  claim,  the  trial  court
flatly held that FSSA violated each  cited  statute.   We  therefore  review
each of these conclusions for clear error.





               A.  Statutory Authority for the Emergency Rule


      During its 2001 session, the General Assembly gave  the  state  budget
director  broad  authority,  effective  July  1,  2001,  to   cut   Medicaid
expenditures to match appropriated funds:


      Notwithstanding . . . any other  law,  or  any  rule,  if  the  budget
      director makes a determination at any time during either  fiscal  year
      of the biennium that Medicaid expenditures to date are at a level that
      may cause total expenditures for the year  to  exceed  total  Medicaid
      appropriations for the year, the budget director may, after review  by
      the budget committee, direct the secretary to adopt emergency rules to
      the  Medicaid  program  to  decrease  expenditures  that  have   risen
      significantly  to  limit  Medicaid  expenditures   to   the   Medicaid
      appropriations in this act.  Adjustments  under  this  subsection  may
      not:
     1) violate a provision of federal law; or
     2) jeopardize the state’s share of federal financial participation;
      applicable to the  state  appropriations  contained  in  the  biennial
      budget for Medicaid assistance and Medicaid administration.


P. L. 291-2001 § 48 (emphasis added).[6]




      The legislature explicitly provided that this statute  would  supplant
all others.  Therefore, if the statute’s provisions were met, the  emergency
rule is valid.


      Walgreens argues that FSSA did not satisfy the  statute’s  requirement
of review by the  budget  committee,  so  the  emergency  rule  is  invalid.
Director Gifford testified that  in  June  2001  she  presented  the  budget
committee with a summary of all pending cost containment rules  and  advised
them of the likelihood of emergency action.  (T.R.  at  62.)   Gifford  said
the committee members “listened to my information and asked  questions”  and
that there  was  “discussion  about  –  among  the  members  of  the  budget
committee about the [dispensing fee and reimbursement rate]  reductions.”[7]
 (T.R. at 68, 104.)    Gifford also gave budget committee members a  handout
summarizing the status of Medicaid cost  containment  proposals.   (T.R.  at
104, Def. Exh. A.)


      Walgreens offered testimony by two budget committee members,  Senators
Vi Simpson and Robert Meeks.  Senator Simpson  testified  that  only  formal
agenda items are “reviewed” by the committee and that “if we don’t  want  to
review something, we just don’t put it on the agenda.”[8]   (T.R.  at  186.)
Senator Simpson acknowledged that the committee discussed the  proposed  AWP
reimbursement and dispensing fee cuts.  (T.R. at 188.)


      The words of the statute do not bear out Walgreens’ argument that FSSA
can act only after the budget committee lists its proposals for review as  a
separate item on the agenda.   Public  Law  291-2001  §  48  assures  budget
committee  members  advance  notice  of  agency  actions  and   creates   an
opportunity for the members to participate in the  deliberations.   It  does
not,  however,  condition  FSSA’s  authority  to  act  on  approval  by  the
committee, as certain other statutes do.[9]


      Here, Gifford told the committee about the specifics  and  urgency  of
these anticipated measures, and committee  members  had  an  opportunity  to
express their views.   This  appears  to  comply  with  the  straightforward
language of the statute.[10]


      We conclude that P.L. 291-2001 § 48 authorized the procedure  followed
in adopting the  emergency  rule,  and  that  budget  committee  review  was
sufficient.  The trial court’s findings  and  conclusions  to  the  contrary
were therefore clearly erroneous.  Based on this  conclusion,  we  need  not
address Walgreens’ other statutory challenges to the emergency rule.


      To expedite resolution of  this  dispute,  we  address  one  practical
consideration that neither party has raised:  how  long  an  emergency  rule
under P.L. 291-2001 § 48 may remain in effect.   Section  48  is  silent  on
this point, so we  rely  on  the  time  frame  in  the  general  statute  on
emergency rules, Ind. Code Ann. § 4-22-2-37.1(g) (West  2001).   Under  this
statute, emergency rules may generally remain  in  effect  for  ninety  days
after they are accepted for filing and may be extended  by  re-adoption  for
one additional ninety-day period.  Id.  Here, the clock will  begin  to  run
when the temporary injunction is lifted and the  emergency  rule  goes  into
effect.





                    B.  Challenges to the Permanent Rule


      Walgreens claims that the permanent rule violated  several  procedural
statutes.  We will address each in turn.


      1.  The Survey Statutes.  Walgreens bases part  of  its  challenge  on
Ind. Code Ann. §§ 12-15-31-1 through 4 (West 2001), which said:
      Sec. 1.  Not later than  October  1  of  each  year,  the  office  [of
      Medicaid Policy and Planning]  shall  conduct  a  survey  of  pharmacy
      providers to assess the appropriate level of  dispensing  fees  to  be
      paid to providers for prescribed drugs.


      Sec. 2.  A survey under section 1 of  this  chapter  must  include  an
      evaluation of dispensing fees in other states and the policies of  the
      federal Health Care Financing Administration (HCFA).


      Sec. 3.  A dispensing fee shall be evaluated based upon the  following
      information concerning the costs of pharmacy operation:
   1) Operational data.
   2) Professional services data.
   3) Overhead data.
   4) Profit data.


      Sec. 4.  If an adjustment is made following a survey  conducted  under
      section 1 of this chapter, the secretary shall commence the rulemaking
      process under IC 4-22-2 to make the adjustment not later than November
      1 of the year in which the survey was conducted.



      The General Assembly repealed this  statute,  effective  approximately
April 29, 2001.  See P.L. 291-2001 § 211.  This was after the proposed  rule
was published  and  the  public  hearing  held,  but  before  the  rule  was
finalized and submitted to the Attorney General.


      The trial court held that FSSA’s failure to conduct a survey  violated
the statute because the repeal was effective only prospectively.  The  court
reasoned that the repeal “did not release  Defendants’  previously  incurred
obligation to conduct the dispensing fee  survey”  because  the  requirement
“remain[ed] in force” under Ind. Code § 1-1-5-1, which says “repeal  of  any
statute shall not have the effect to  release  or  extinguish  any  penalty,
forfeiture, or liability incurred under such statute.”  Ind. Code Ann. §  1-
1-5-1 (West 2001) (emphasis added).


      We  do  not  agree  that  the  term  “liability,”  in  this   context,
encompasses rule-making  procedural  requirements.   Moreover,  the  statute
merely established a deadline “if [a  dispensing  fee]  adjustment  is  made
following [an annual] survey.”  Ind. Code  §  12-15-31-4  (emphasis  added).
The statute did not, by its own  terms,  preclude  the  action  taken  here,
which was an adjustment made independently  of  this  annual  market  review
process.


      2.  Administrative Rules Oversight Committee (AROC) Review.  Walgreens
argues that FSSA’s failure to obtain pre-adoption  AROC  review  invalidates
the rule.  Indiana Code Ann.  §  4-22-2-46  (West  2001)  requires  AROC  to
“carry out a program to review each rule adopted under this chapter” if  its
fiscal  impact  exceeds  $500,000.   The  review  covers  economic   impact,
compliance with legislative intent, extent  of  any  unfunded  mandate,  and
compliance with Ind. Code Ann. § 4-22-2-19.5 (see discussion  below).   Ind.
Code § 4-22-2-46.


      Contrary to Walgreens’ argument and the trial court’s conclusion, this
statute plainly governs only the conduct of AROC, which is not  a  party  to
this action.  FSSA did not violate the statute by adopting the rule  without
AROC’s review.


      3.  Standards for Rules.  Ind. Code Ann.  §  4-22-2-19.5  (West  2001)
says, in part:

      (a)  To the extent possible, a rule adopted under this article .  .  .
           shall comply with the following:
     1) Minimize the expenses to:
              A) regulated entities that are required  to  comply  with  the
                 rule
              B) persons who pay taxes or pay fees for  government  services
                 affected by the rule; and
              C) consumers of products and services  of  regulated  entities
                 affected by the rule.
           2) Achieve the regulatory goal in the least restrictive manner.


      Walgreens  argues  that  FSSA  did  not  even  attempt  to  meet  this
requirement.  FSSA counters that this  is  a  very  flexible  standard,  and
correctly points out that  while  the  statute  requires  “minimiz[ing]  the
expenses to regulated entities,” this rule did not affect pharmacy  expenses
at all.   Ind.  Code  §  4-22-2-19.5(a)(1)(A);  (Appellants’  Br.  at  22.).
Rather, it reduced their revenues.


      We agree that “to  the  extent  possible”  affords  the  agency  broad
latitude in exercising judgment, and  that  this  rule  did  not  alter  the
pharmacies’ compliance expenses.  Moreover, this Medicaid  cost  containment
strategy furthered both of the other objectives stated in Ind. Code §  4-22-
2-19.5(a)(1)(B)  and  (C),  i.e.,  minimizing  costs  to  taxpayers  and  to
Medicaid recipients.  We therefore conclude that  FSSA’s  failure  to  offer
evidence of any formal analysis to satisfy this statute does not  invalidate
the permanent rule.


      4.  Payments to Providers Statute.  Indiana Code Ann. §  12-15-13-2(a)
(West 2001) requires that payments to Medicaid providers be “(1)  consistent
with efficiency, economy, and quality of care; and (2) sufficient to  enlist
enough providers so that care and services are available under Medicaid,  at
least to the extent that  such  care  and  services  are  available  to  the
general population in the geographic area.”


      Gifford worked with an outside consulting firm in deciding  what  cuts
to propose and in assessing whether the  cuts  would  leave  Medicaid  rates
more comparable to non-Medicaid  rates.   (T.R.  at  30.)   As  we  observed
above, Walgreens offered testimony only that a handful of pharmacies  around
Indiana would close as  a  result  of  these  cuts  and  that  some  special
services  could  be  eliminated.   The  record  indicates  that  alternative
providers  would  be  available  and  that  FSSA  has  committed   to   take
appropriate steps to ensure access and a quality  of  care  consistent  with
that offered to the general public.


      On the other side of the coin, revising Medicaid  rates  so  they  are
more commensurate with private sector rates is consistent with  economy  and
efficiency, as the statute requires.  FSSA has therefore met its  burden  of
demonstrating compliance with this statutory requirement.


      5.  Advice of Medical Staff.  Indiana Code  Ann.  §  12-15-21-2  (West
2001) says, “The  secretary  shall,  with  the  advice  of  the  office[  of
Medicaid Policy and Planning]’s medical staff, adopt rules under  IC  4-22-2
and consistent with . . . the federal  Social  Security  Act.”[11]   Indiana
Code Ann. § 12-15-21-3  (West  2001)  also  requires  adoption  of  Medicaid
rules, including those “establishing limitations that  are  consistent  with
medical  necessity  concerning  the  amount,  scope,  and  duration  of  the
services and supplies to be provided.”


      Walgreens argues that FSSA did not prove that Gifford  consulted  with
the doctor on the Office’s medical  advisory  panel,[12]  but  Gifford  said
that  the  doctor  participated   in   discussions   and   later   testified
unequivocally that the Office’s  medical  advisory  committee  reviewed  the
proposal.[13]  (T.R. at 50,  99-100.)   Furthermore,  these  rules  did  not
eliminate any medically necessary supplies and only  potentially  eliminated
some services that the program does not guarantee, such  as  home  delivery.
We therefore hold that the trial court committed clear error  in  concluding
that FSSA violated these statutes.


      6.  Fiscal Analysis.  Indiana Code Ann.  §  4-22-2-28(b)  (West  2001)
requires that after an agency has preliminarily adopted  any  rule  with  an
estimated economic impact on regulated entities exceeding $500,000, it  must
submit the proposed rule to the Legislative Services Agency  (LSA)  so  that
LSA can prepare a fiscal analysis on the effect of compliance on  the  state
and the regulated entities.  The analysis must include an  estimate  of  the
proposed rule’s  economic  impact  and  a  quantification  of  any  unfunded
mandate.  Id.  The agency “shall consider the fiscal  analysis  as  part  of
the rulemaking process.”  Id.

       FSSA  concedes  that  this  was  not  done,  but  argues  that   this
requirement only applies to  rules  that  create  unfunded  mandates.   This
reading contradicts  the  explicit  statutory  language  that  requires  “an
estimate of the economic impact of the proposed  rule  and  a  determination
concerning the extent  to  which  the  proposed  rule  creates  an  unfunded
mandate . . . .”  Ind. Code §  4-22-2-28(b)  (emphasis  added).   FSSA  also
argues that the exclusive focus  of  the  statute  is  increased  regulatory
burdens on businesses, and that this rule does not  create  such  a  burden.
Again, however, nothing in the statutory language  supports  such  a  narrow
construction.

      We agree with the  trial  court,  therefore,  that  FSSA  should  have
obtained an LSA fiscal analysis.


      The question then becomes, what is the proper  remedy.    Per  Indiana
Code Ann. § 4-22-2-44 (West  2001),  “A  rulemaking  action  that  does  not
conform with this chapter is invalid, and a rule that is the  subject  of  a
noncomplying rulemaking action does not have the effect of law until  it  is
adopted in conformity with this chapter.”  Before  the  permanent  rule  may
take effect, therefore, FSSA must obtain LSA’s fiscal analysis.


      Because the  requirement  does  not  attach  until  after  preliminary
adoption, FSSA need not go all the way back to square one.  Rather, once  it
has obtained  and  properly  considered  an  LSA  fiscal  analysis,  it  may
resubmit the proposed rule to the  Attorney  General’s  office  and  proceed
toward permanent adoption should it so choose.




              C. Summary – Likelihood of Success on the Merits


      To recap,  the  trial  court’s  conclusions  that  the  emergency  and
permanent rules  violated  statutory  procedural  requirements  are  clearly
erroneous except for the conclusion  that  FSSA  failed  to  obtain  an  LSA
fiscal analysis of the permanent rule.  As  stated  above,  FSSA  will  have
ninety days plus one available ninety-day extension with the emergency  rule
in effect to rectify this omission.




                            IV.  Public Interest


      Finally, we conclude that an injunction in favor  of  Walgreens  would
disserve the public interest.   FSSA  adopted  rules  to  counteract  a  one
hundred million dollar projected  Medicaid  deficit.   This  action  clearly
invoked the public interest.[14]  On the other hand, Walgreens asserts  that
a reduction in reimbursement rates will cause a handful  of  store  closures
and  potential  discontinuation  of  some  special  services.   In  essence,
Walgreens identifies its  private interest and  extrapolates  that  harm  to
the general public interest.  We conclude that the  public  interest  weighs
against injunctive relief in favor of Walgreens.




                                 Conclusion

      We reverse the trial court’s order of a preliminary injunction.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] July 1, 2002, through June 30, 2003.
[2]  Gifford  developed  these  recommendations  after  comparing  Indiana’s
Medicaid rates to private sector rates  using  research  from  an  actuarial
consulting firm, information from  health  maintenance  organizations  under
contract to the state, rates for the state employee health  insurance  plan,
and a newsletter from a pharmacy network.  (T.R. at 30.)
[3] We take no  position  on  whether  these  cases  correctly  applied  our
holding, but note only the Court of Appeals  has  occasionally  invoked  the
“per se” standard when faced with  clearly  unlawful  conduct.   See,  e.g.,
Union  Township  Sch.  Corp.,  706  N.E.2d  at  192   (defendants   violated
construction wage statute); L.E. Servs., Inc. v. State Lottery  Comm’n,  646
N.E.2d 334, 338, 349 (Ind. Ct. App. 1995) (company’s plan  to  provide  mail
order  service  for  out-of-state  lottery  tickets  violated  anti-gambling
statutes); Kaminsky v. Med. Licensing Bd., 511 N.E.2d  492,  498  (Ind.  Ct.
App. 1987) (injunction based on unauthorized practice  of  medicine);  State
ex rel. Med. Licensing Bd. v. Stetina, 477 N.E.2d 322, 327  (Ind.  Ct.  App.
1985) (denial of injunction for a clear violation of  unauthorized  practice
of medicine statute was error); State ex rel. Dept. of Natural Resources  v.
Mason, 416 N.E.2d 1312, 1315-16 (Ind. Ct.  App.  1981)  (enjoining  improper
construction of boat  channel  that  substantially  departed  from  permit’s
scope); DeMayo v. State ex rel. Dep’t of Natural Res., 182  Ind.  App.  241,
244-45, 394 N.E.2d 258, 260-61 (1979) (upholding  injunction  when  property
owner encroached on shoreline without a valid permit).
[4] The great weight of authority holds that  merely  economic  injury  does
not warrant injunctive relief  because  post-trial  damages  can  adequately
compensate the injured party.   See,  e.g.,  Ind.  Family  &  Social  Servs.
Admin. v. Legacy Healthcare, Inc., 756 N.E.2d 567,  571-72  (Ind.  Ct.  App.
2001); Jay County Rural  Elec.  Membership  Corp.  v.  Wabash  Valley  Power
Ass’n, Inc., 692 N.E.2d 905, 909 (Ind. Ct. App. 1998);  Xantech  Corp.,  643
N.E.2d at 921; Ind. State Dept. of Welfare, Medicaid Div.  v.  Stagner,  410
N.E.2d 1348, 1352-53 (Ind. Ct.  App.  1980)  (citation  omitted).   Imminent
business loss or failure is  a  form  of  economic  injury.    We  find  the
reasoning of Virginia Petroleum Jobbers Ass’n  v.  Fed.  Power  Comm’n,  259
F.2d 921, 925 (D.C. Cir. 1958), persuasive:
      The key word in this consideration  is  irreparable.   Mere  injuries,
      however substantial, in terms of money, time  and  energy  necessarily
      expended in the absence of a stay, are not  enough.   The  possibility
      that  adequate  compensatory  or  other  corrective  relief  will   be
      available at a later date,  in  the  ordinary  course  of  litigation,
      weighs heavily against a claim of irreparable harm.
[5] Walgreens also presented the trial court  with  the  affidavits  of  six
Medicaid beneficiaries who testified that they would be harmed if  the  cost
cuts go into effect.  The one affidavit presented  in  the  record  for  our
review is from Inez Rodman, who receives home delivery of her  prescriptions
by Ralph Anderson’s pharmacy.  (Appellees’  App.  at  436.)   Rodman  stated
that she and  others  in  Bedford  would  be  “hurt  if  [Anderson’s  retail
pharmacy] went out of business.”  (Id. at 436-37.)
   This showing does not meet Walgreens’ burden in demonstrating irreparable
harm.  First, Anderson testified that the  home  delivery  service  was  not
required by Medicaid and was provided as a “community  service.”   (T.R.  at
216.)  Second, Anderson did not testify  that  either  his  retail  pharmacy
would close or that the home delivery service  would  terminate.   (T.R.  at
227-28.)  Third, Bedford has at  least  four  other  pharmacies.   (T.R.  at
231.)  Finally, Director Gifford testified that the State, through the  FSSA
staff and help line, would “do whatever we needed to do to ensure  [Medicaid
beneficiaries] had sufficient access.”  (T.R. at 114-16.)
[6] Indiana Code Ann. § 4-22-2-37.1(a)(20) (West 2001) already  provided  an
expedited mechanism for emergency FSSA rules.   Public  Law  291-2001  §  48
further streamlined this process.
[7] Gifford further testified:  “I made it very clear that I  understood  my
instructions to be to implement these as quickly as  possible  and  to  move
forward because I believe it was Senator Simpson who was urging us  to  hold
off on these cuts.  And I told her that my instructions were not  to  do  so
and to move forward as quickly as possible.”  (T.R. at 106.)
[8] Senator Simpson preceded this statement by explaining,
      [R]eview has, for the purposes of the Budget Committee, . . .  a  very
      specific connotation. . . .  And  when  we  do  a  review,  with  that
      connotation, it is listed as a review item  on  the  agenda,  and  the
      action of the Budget Committee . . . is . . . an  explanation  .  .  .
      and/or discussion of that particular item.  That is like our  approval
      of that particular item.  We don’t actually vote on it.  The review is
      all that’s required.
(T.R. at 186.)  She went on to say:
      Remember[] that the majority members of the Budget Committee – in this
      case the three Democrats on the Budget Committee – set the agenda, and
      we . . . discuss every agenda item prior  to  it  showing  up  on  the
      agenda.  So it is very much an intentional selection of items that are
      put on the agenda.
(T.R. at 188.)
      Senator Meeks echoed this view, saying, “There was  a  report  but  no
review.  If there had been a review, it would  have  been  an  item  on  the
agenda.  It was not . . . . What we got was a report on the status of  where
they were and where they were expected to go.”  (T.R. at 243-44.)   He  went
on to say, “[T]hey were talking about where the  shortfalls  were  and  some
necessary plans that they were going to try to put in place to  remedy  that
shortfall.”  (T.R. at 245.)
[9] See, e.g., Ind. Code Ann. §  11-13-2-1  (West  2001)  (requiring  budget
committee approval  before  Indiana’s  judicial  conference  may  distribute
state financial aid for court probation services); Ind. Code Ann. §  12-8-1-
12(a)  (requiring  unanimous  budget  committee  recommendation   prior   to
appropriation of additional Medicaid funds  to  supplement  the  legislative
appropriation,  when  necessary  to   avoid   violating   federal   law   or
jeopardizing federal Medicaid funding).  See  also  Black’s  Law  Dictionary
1320 (7th ed. 1999) (defining review  as  “[c]onsideration,  inspection,  or
reexamination,” not approval).
[10] Amici curiae argue that the statute requires  budget  committee  review
within the affected fiscal year (in this case, after July  1,  2001),  after
the budget  director  has  reviewed  fiscal  year-to-date  expenditures  and
identified a problem.  (Amicus Br. at 7-8.)   We  find  this  too  narrow  a
construction.  The statute only requires that  the  committee  review  occur
before the budget director directs the Secretary of FSSA to adopt  emergency
rules, which was the case here.  See P.L. 291-2001 § 48.  In her August  20,
2001 letter, Budget Director Cockrum stated that she had determined, as  the
statute requires, “that Medicaid expenditures are at a level that may  cause
total expenditures for the year to exceed total Medicaid appropriations  for
the year.”  See id.; (Def. Exh. B.)
[11] Indiana Code article 15 is titled “Medicaid”; chapter  21  is  “Rules”;
section 2 is “Secretary to  adopt  rules;  consistency  with  Title  XIX  of
Social Security Act.”  This  statute  is  therefore  a  general  legislative
directive to FSSA to adopt rules governing Indiana’s Medicaid program.
[12] Gifford was questioned about this during the hearing before  the  trial
court:
   Q. What medical advice did you obtain?
      A. What do you mean by medical advice?
      Q. Did you talk to a doctor?
      A. . . . No, I didn’t talk to the  doctor.   But  I’m  confused  about
what what you mean by medical advice.  That  a  doctor  might  know  what  a
pharmacist would find sufficient?
      Q. Let’s make it simpler.  Did you talk with any  doctors  about  what
level would be appropriate for either the drug  cost  reimbursement  or  the
dispensing fee level?
      A. I don’t believe so.  There’s a physician  on  my  staff  who  would
have  been  around  the  table  in  some  of  it,  but  I  don’t  believe  I
specifically addressed the question to her.
(T.R. at 50.)
[13] Q.  . . . Was the pharmacy declared reduction reviewed by your  medical
advisory committee?
   A. Yes.
   Q. And to the best of  your  knowledge  is  there  a  physician  on  that
committee?
   A. Yes.
   Q. And I believe you testified earlier  that  OMPP,  Office  of  Medicaid
Policy and Planning, does have a staff pharmacist?
   A. Yes.
   Q. Did he or she also review the pharmacy declared reduction?
   A. Yes.
(T.R. at 99-100.)
[14] The actions of the  General  Assembly  further  demonstrate  that  this
injunction does not better serve the public interest.  As  described  above,
P.L. 291-2001 § 48 gave the state budget  director  extraordinary  emergency
power to cut Medicaid program expenditures in response to a massive  looming
deficit.

