                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


    BHM HEALTHCARE SOLUTIONS, INC.,

                        Plaintiff,

                        v.                            Case No. 1:18-cv-01119 (TNM)

    URAC, INC.,

                        Defendant.


                                     MEMORANDUM OPINION

        BHM Healthcare Solutions, Inc. (“BHM”), a medical review service provider, seeks a

preliminary injunction against URAC, Inc.’s (“URAC”) revocation of its accreditation as an

independent review organization. Am. Compl. 1, ECF No. 15. BHM argues that URAC applied

its review standards arbitrarily and capriciously, violated BHM’s common law due process rights

and breached the implied covenant of good faith and fair dealing, and that without an injunction,

its business will suffer significant loss. Id. ¶¶ 169-93. URAC asserts, among other defenses,

that the parties’ contract prohibits BHM from bringing this action, and therefore seeks dismissal

of the case. Opp. to Pl.’s Mot. for Prelim. Inj. (“Opp. to Mot. for Prelim. Inj.”) 16, ECF No. 14;

Mot. to Dismiss 12-16, ECF No. 17. 1 The Court finds that the exculpatory clause in the parties’

contract precludes this action and that the clause is not unconscionable. BHM’s Motion for a

Preliminary Injunction will be denied and URAC’s Motion to Dismiss will be granted.




1
  While briefing was ongoing for the Motion for a Preliminary Injunction, BHM filed an
Amended Complaint; URAC responded with a Motion to Dismiss. See id. The parties agreed
during a telephone conference that both motions could be considered together and consolidated
into one Memorandum Opinion. See Minute Entry, June 19, 2018.
                                    I.      BACKGROUND

       A. BHM and Its Accreditations from URAC

       BHM, a for-profit corporation headquartered in Florida, provides medical review services

to health insurance plans, healthcare systems, and related administrators and management

organizations. Am. Compl. ¶ 2. Most of its business, which reached $6.3 million in revenues in

2017, is based on services provided as an independent review organization (“IRO”) assessing

whether medical services are medically necessary and eligible for coverage. Id. BHM’s IRO

services are divided between “internal” reviews where a BHM peer reviewer determines in the

first instance either to approve medical treatment or deny or reduce coverage (an “adverse

benefit determination”), and “external” reviews where a BHM peer reviewer reviews an adverse

benefit determination made by another IRO and either upholds or overturns it. Id. ¶¶ 10, 12, 17-

21. URAC is a non-profit entity headquartered in the District of Columbia; it evaluates and

accredits organizations that provide IRO services. Id. ¶ 3.

       BHM has provided IRO services since 2002, but first became URAC-accredited in

August 2012 after increasing client demand for this accreditation. Supp. Decl. of Brian Johnson

(“Supp. Johnson Decl.”) ¶¶ 9, 25, ECF No. 15-1. During oral argument, BHM attributed much

of this sea change to the Patient Protection and Affordable Care Act (“ACA”) and revisions to

the Code of Federal Regulations requiring third party reviews to be conducted by “an IRO that is

accredited by URAC or by [a] similar nationally-recognized accrediting organization.” 45 CFR

§ 147.136(d)(2)(iii) (2016); TRO Hr’g Tr. 17, May 21, 2018. The initial accreditation lasted for

a term of three years. See Am. Compl. ¶ 39.

       In September 2014, BHM and URAC entered an Accreditation Application Agreement

(the “Contract”) for another three-year accreditation. Id.; id. Ex. 1 Attach. 3 (“2014 Contract”),



                                                 2
ECF No. 15-4. As part of its accreditation process, URAC conducted an onsite validation review

and evaluated BHM’s policies, procedures, and internal systems against URAC’s standards (the

“Core Requirements”). Am. Compl. ¶ 35. Having successfully met the Core Requirements,

BHM received another three-year accreditation from August 2015 to August 2018. Id. ¶¶ 35, 39.

As this is the revoked accreditation at issue, the provisions of this Contract control.

       In July 2017, before the August 2015 accreditation expired, BHM applied for re-

accreditation. Id. ¶ 41. BHM’s desktop review was successful and URAC found BHM to be in

full compliance with all “Mandatory Standard Elements.” Id. ¶ 42; Id. Ex. 1 Attach. 5, ECF No.

15-6. In late May 2018, after this action began, URAC wrote to BHM that it “looks forward to

moving ahead with you into the next phase of the accreditation process.” Id. Attach. 6, ECF No.

15-7. On July 13, 2018, BHM’s application was approved, and BHM will be “fully accredited

by URAC effective August 1, 2018.” Def.’s Supp. Mem. Regarding Pl.’s Mot. for Prelim. Inj.,

ECF No. 20. Nonetheless, the company still seeks relief because of the reputational harm from

the prior revocation’s “lasting effects.” See Am. Compl. ¶ 175.


       B. URAC’s Revocation of BHM’s Accreditation

       In August 2017, URAC informed BHM that it received a grievance reporting “[c]oncerns

about the quality of services, edits of clinical determinations on reviews completed by peer

reviewers.” Id. Attach. 7, ECF No. 15-8. URAC requested documentation from BHM relating

to Core Requirements 17 (Performance Monitoring) and 18 (Summary Reports). Id. URAC

notified BHM that after reviewing the information requested, it could conduct, among other

remedial measures, a “for cause” onsite review “[s]hould further steps become necessary to

complete this investigation.” Id. URAC did perform an onsite review in late November 2017,

led by Dr. Karen Watts. Am. Compl. ¶ 49. Dr. Watts and her team interviewed only non-


                                                  3
leadership BHM staff members, except for Dr. Jennifer Jackson-Wohl, BHM’s Medical Director

for Behavioral Health, who resigned from BHM shortly afterwards. Id. ¶¶ 54, 149. BHM

complains that URAC did not conduct an entrance or exit conference contrary to previous

practices, nor permitted senior leadership to be present during the interviews. Id. ¶¶ 51-55.

BHM also had no opportunity to review or discuss Dr. Watts’ findings while she was onsite or

anytime later until January 9, 2018, when URAC informed BHM that it was revoking BHM’s

accreditation. Id. ¶¶ 58-59.

        The following day, URAC provided BHM with a “Scoring Summary Report” listing each

Mandatory Standard Element and URAC’s determination whether or not it was met. Id. Ex. 1

Attachs. 10-11. Over the next few weeks, BHM sought clarification and documentation from

URAC about its decision and rationale, id. ¶ 75, resulting in Dr. Watts sending a three-page

document to BHM briefly explaining the findings of non-compliance. Id. Ex. 1 Attach. 12. The

document explained that BHM was non-compliant with the following Core Requirements for

these reasons: 2

        •   Core Requirement 4(b) (“ensures the organization’s compliance with
            applicable laws and regulations”) – BHM failed to file the annual report
            necessary for incorporation in Florida. The report was due between January 1
            and May 1, 2017 and BHM’s corporation status was dissolved due to the failure
            to file the report. BHM paid a penalty and was reinstated on September 26,
            2017.
        •   Core Requirement 13(a) (“provides for data integrity”) – BHM “could not
            provide system demonstration or policy or procedure that support Reviewer
            decisions were not being changed.” Contrary to BHM’s policy that stated that
            “once the independent review is complete, a record can only be changed or
            edited by the system administrator (President/CEO) following a strict protocol,”
            reviewers found that several individuals demonstrated that they had access to
            the drop-down menu that permits changes to a Peer Reviewer’s decisions;
            others stated that changes could be made with the Peer Reviewer’s approval;

2
 In addition to the four Core Requirements listed, Dr. Watts identified non-compliance with
Core Requirements 4(a), 4(c), and 11(c), which were later overturned by URAC’s Executive
Committee. Id. ¶¶ 156-58.


                                                 4
           and interviewees apparently stated that the “strict protocol” referenced in the
           policy was under development.
       •   Core Requirement 17(a)(ii) (“The organization conducts a quality check and
           if a review does not meet the organization’s quality standards, then each issue
           and its outcome are documented”) – 30 files were randomly selected from a
           report provided by BHM listing any file with changes after completion (in
           URAC’s view, “completion” means after a Peer Reviewer makes a final clinical
           decision) and only 27% of the files had documented issues and outcomes. See
           also Am. Compl. ¶ 131.
       •   Core Requirement 32(b) (“is responsible for oversight of clinical decision-
           making aspects of the program”) – During the interview of the BHM’s senior
           clinical staff person, Dr. Jackson-Wohl, she claimed to be unaware of her IRO
           roles and responsibilities.

Id. Ex. 1 Attach. 12. BHM submitted a 26-page written response to the findings outlined in the

document. Id. ¶ 89; see also id. Ex. 1 Attach. 8 (“BHM Appeal”), ECF No. 15-9. The

arguments in its internal appeal to URAC are largely the same as those in its Amended

Complaint and Motion for a Preliminary Injunction.

       As for Core Requirement 4(b), BHM explained that it relied on a third-party agent to

track deadlines and make the appropriate filings and that, when the agent changed names and

updated its record in Florida, it inadvertently excluded the email address for BHM’s point of

contact, leading to a missed deadline for the annual filing. Id. at 7. Once BHM discovered the

issue, it corrected the error and received reinstatement within hours. Id. BHM also argued that

URAC’s own Accreditation Guide states that it “is evaluating that the organization has a

mechanism in place to comply with regulatory requirements; URAC is not verifying that the

organization is in compliance with those regulations.” Id. at 6. BHM now also argues that

Florida law treats corrected dissolutions as retroactive to the effective date of the dissolution, as

“if the administrative dissolution had never occurred.” Mem. in Support of Mot. for Prelim. Inj.

(“Mot. for Prelim. Inj.”) 11, ECF No. 13-1 (quoting Fla. Stat. § 607.1422(3)); see also Am.




                                                  5
Compl. ¶¶ 97-103. To BHM, it is irrational for URAC to hold it accountable for this error when

Florida itself does not. See Mot. for Prelim. Inj. 11.

       As for Core Requirement 13(a), BHM argued that URAC erred by not speaking with its

Chief Information Officer (“CIO”), opting instead to speak with the Compliance Officer and

clinical specialists who are not subject matter experts on data integrity and security. BHM

Appeal 9-10. BHM claimed that URAC’s findings all derived from a misunderstanding of

BHM’s systems and terminology, which would have been avoided had URAC interviewed the

CIO or conducted an exit conference. Id. at 10-11. BHM now also contends that its electronic

record tracks any changes made, and that the arbitrariness of URAC’s decision is underscored by

the fact that URAC has identified no instance in which a BHM employee made an improper

change. Mot. for Prelim. Inj. 14-15; see also Am. Compl. ¶ 118.

       For Core Requirement 17(a)(ii), BHM quarreled with URAC’s definition of

“completion” as “when the Peer Reviewer makes the final clinical decision and submits the file

to the Applicant” rather than “after a quality check has been completed” and submitted to the

ultimate client. BHM Appeal 16; Mot. for Prelim. Inj. 11-12. The difference matters, BHM

says, because it means that the case files URAC selected for review are not within the scope of

this Core Requirement. Id. at 11; Am. Compl. ¶¶ 129-30. Substantively, BHM argues that, for

the cases sampled where a quality check occurred, most of the cases identified no issues and so

required no follow-up. Mot. for Prelim. Inj. at 12-13; see also BHM Appeal 17. For the

remaining cases sampled where a quality check was not conducted, BHM explains that the cases

were older and completed under a then-existing protocol that did not require documentation at all

if no issue arose during the quality check. Id. BHM points to URAC’s guidance, which accepts




                                                  6
“‘documentation by exception’” as standard industry practice. Id.; Mot. for Prelim. Inj. 12; Am.

Compl. ¶ 136.

       Last, for Core Requirement 32(b), BHM appealed because the Medical Director

interviewed left the company soon afterward, suggesting that her answers were, at best,

unreliable or, at worst, intentionally false. BHM Appeal 12. BHM presented evidence showing

that the Medical Director was aware of her oversight role of the clinical program, including

timesheets, copies of emails, a signed job description, and a transcript of a training video. Id.;

Mot. for Prelim. Inj. 15; Am. Compl. ¶ 150. In its Amended Complaint and motion for a

preliminary injunction, BHM argues that another individual, Dr. Daniel Harrop, also served as a

behavioral health clinical staff person and was also capable of overseeing behavioral health,

meeting the requirement that “URAC will verify that there is a senior clinical staff person, other

clinicians, or a combination of the two available to cover the clinical areas”). Id. ¶ 152; Mot. for

Prelim. Inj. 16.

       URAC’s Executive Committee reviewed BHM’s appeal and upheld the findings of non-

compliance with these four Core Requirements. Am. Compl. ¶¶ 156, 159. The Executive

Committee overturned three other findings of non-compliance, but it found that the upheld

findings were enough to sustain the revocation of BHM’s accreditation. Id. ¶¶ 156, 158.


       C. Proceedings in this Action

       The day after BHM received notice of URAC’s Executive Committee’s decision to

uphold the revocation of accreditation, it sought a temporary restraining order and preliminary

injunction from this Court. Mot. for TRO and Mot. for Prelim. Inj., ECF No. 2. I denied the

motion for a temporary restraining order. Minute Order, May 21, 2018. A revised motion for a

preliminary injunction followed, and BHM filed an Amended Complaint while the motion was


                                                  7
being briefed. URAC responded to the Amended Complaint with a motion to dismiss and the

parties agreed that both motions could be considered together given the similar arguments made.

See Minute Entry, June 19, 2018.

        BHM seeks a preliminary injunction to restore its accreditation in full and to order URAC

to conduct its grievance and accreditation processes consistent with the Core Requirements and

BHM’s contractual and due process rights. Mot. for Prelim. Inj. 26. BHM asserts two causes of

action: the violation of common law due process and breach of the implied covenant of good

faith and fair dealing. Id. at 25-26. BHM also seeks a determination that a provision in the

parties’ contract purporting to preclude judicial review is unconscionable. Id. at 26.

        URAC argues that the parties’ governing contract explicitly precludes filing a judicial

action. Opp. to Mot. for Prelim. Inj. 16-22; Mot. to Dismiss 12, 16. On the merits, URAC

argues that substantial deference should be given to the determinations of accrediting

organizations and that no claim exists for the breach of the implied duty of good faith and fair

dealing in the context of accreditation determinations. Id. at 34-35; Opp. to Mot. for Prelim. Inj.

22-28, 35-36. URAC also disagrees that BHM has met any of the factors considered by courts in

evaluating motions for preliminary injunctions. Id. at 3.


                                   II.     LEGAL STANDARDS


        A preliminary injunction is an “extraordinary remedy never awarded as of right” but is an

exercise of a court’s equitable discretion. Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7, 24 (2008). A party seeking a preliminary injunction “must establish” that it is

(1) likely to succeed, (2) likely to suffer irreparable harm without preliminary relief, (3) that the

balance of equities tips in its favor, and (4) that an injunction is in the public interest. Id. at 20.

Historically, these four factors have been balanced and evaluated on a “‘sliding scale,’” where a


                                                    8
strong showing in one factor can compensate for a weaker showing on another factor. Davis v.

Pension Benefits Guaranty Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). But the Supreme

Court’s decisions in Winter and Munaf v. Green, 553 U.S. 674, 690 (2008), suggest that the

standard may be more exacting: a party seeking a preliminary injunction must establish both a

likelihood of success on the merits and irreparable harm. Davis, 571 F.3d at 1292 (demurring on

whether the stricter standard applies); id. at 1295-96 (explaining that the “old sliding-scale

approach” may no longer be controlling) (Kavanaugh, J., concurring).

       A party may move to dismiss a complaint because it “fail[s] to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) requires

that a complaint contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” This requires the complaint to contain sufficient factual allegations that, if

true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). A complaint is insufficient if it merely offers “‘labels and conclusions’” or

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Twombly, 550 U.S. at 555, 546). Instead, “[a] claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In evaluating a

motion to dismiss under Rule 12(b)(6), the Court must construe the complaint in the light most

favorable to the plaintiff and accept as true all reasonable factual inferences drawn from well-

pleaded factual allegations. See In re United Mine Workers of Am. Emp. Benefit Plans Litig.,

854 F. Supp. 914, 915 (D.D.C. 1994). Last, “[i]n determining whether a complaint fails to state

a claim, [the court] may consider only the facts alleged in the complaint, any documents either

attached to or incorporated in the complaint and matters of which [the court] may take judicial




                                                   9
notice.” Hurd v. District of Columbia Gov’t, 864 F.3d 671, 678 (D.C. Cir. 2017) (internal

quotation omitted).


                                        III.    ANALYSIS


       The exculpatory clause in the parties’ Contract, which is not unconscionable, precludes

this action from judicial review. For this reason, URAC’s Motion to Dismiss must be granted.

This determination also means that BHM has failed to show a likelihood of success on the

merits, which is fatal under Winter’s suggestion, if not holding, that this factor is “an

independent, free-standing requirement for a preliminary injunction.” See Sherley v. Sebelius,

644 F.3d 388, 393 (D.C. Cir. 2011). Even if considered under a sliding scale approach, BHM’s

showing of irreparable harm does not overcome its deficient showing on the likelihood of

success on the merits. See Davis, 571 F.3d at 1292 (determining that the court need not decide

whether the stricter standard applies because the plaintiffs lose under a sliding scale approach).


       A. The Parties’ Contract Precludes Judicial Review and Is Not Unconscionable

           1. The Plain Meaning of the Exculpatory Provision Precludes Judicial Review

       The parties’ Contract sets clear limitations on BHM’s legal rights (referred to within the

Contract as the “Applicant”):

               Applicant agrees that it will not file or take any legal or regulatory
               or administrative action against URAC, its directors, officers,
               employees, agents, or advisors in connection with the accreditation
               process including the denial, revocation, suspension, corrective
               action, or any other action effecting Applicants [sic] accreditation
               status.

2014 Contract § I.V. (emphasis added). This action involves the revocation of BHM’s

accreditation and is a legal action against URAC. It is thus squarely within the clear prohibition



                                                 10
on legal action agreed to by the parties. See Spellman v. Am. Sec. Bank, N.A., 504 A.2d 1119,

1127 (D.C. 1986) (“The construction of a written agreement is a question of law when its

provisions are unambiguous.”).

       Although District of Columbia case law does not directly address the validity of

exculpatory clauses for accreditation decisions, exculpatory clauses in other contexts have been

upheld. See id. § III.G. (selecting the District of Columbia as governing law); Ferenc v. World

Child, Inc., 977 F. Supp. 56, 61 (D.D.C. 1997) (“Exculpatory contract provisions are valid and

enforceable in the District of Columbia.”). In DLY-Adams Place, LLC v. Waste Management of

Maryland, Inc., 2 A.3d 163, 167-70 (D.C. 2010), the court affirmed the trial judge’s ruling that a

forbearance agreement prevented the plaintiff from bringing a lawsuit to inhibit the defendant’s

use of an alleyway. The court determined that the contractual language was “plain and

unambiguous” and that the plaintiff could not “challenge the plain reading of the forbearance

agreement simply because it does not like its effect.” Id. at 168. Provisions releasing defendants

from liability in tort actions have also been reviewed without issue, see, e.g., Lamphier v.

Washington Hosp. Ctr., 524 A.2d 729, 731-735 (D.C. 1987) (remanding a case to determine the

meaning and effect of a liability release), McKenna v. Austin, 134 F.2d 659, 662 (D.C. Cir. 1943)

(finding that the release signed “would discharge defendant by operation of law.”).

       Courts in other districts have considered the issue in circumstances more like

accreditation. In Sanjuan v. American Board of Psychiatry and Neurology, Inc., the court upheld

a contractual agreement to handle internally any disagreements over the plaintiffs’ failed

applications for entrance into the American Board of Psychiatry and Neurology, and rejected the

argument that the release was an unconscionable contract of adhesion. 40 F.3d 247, 248-49 (7th

Cir. 1994). The court noted that the Board, a private organization, may determine its rules for




                                                11
membership and administration, and that removing the release would likely increase the cost of

application which most applicants would oppose. Id. at 249. Similar agreements for other

national certifications have been upheld. See, e.g., Whyte v. Am. Bd. of Physical Med. & Rehab.,

393 F. Supp. 2d 880, 888-90 (D. Minn. 2005) (citing Balaklaw v. Am. Bd. of Anesthesiology,

Inc., 562 N.Y.S.2d 360, 361-63 (Sup. Ct. 1990), Am. Registry of Radiologic Technologists v.

McClellan, No. 300-cv-2577, 2003 WL 22171702, at *2-3 (N.D. Tex. Mar. 5, 2003)). In these

cases, the courts “have upheld release provisions that bar medical professionals from suing a

certifying board because of actions taken by the board during the certification process.” Whyte,

393 F. Supp. 2d at 889. The circumstances of these cases are analogous to BHM’s and URAC’s

relationship—BHM, the applicant, is suing over the decision of URAC, a private certifying

entity, not to afford it a certain designation (here, an accreditation). The jurisdictions in most of

these other cases recognized the validity of exculpatory clauses, as the District of Columbia does.

See Sanjuan, 40 F.3d at 249 (Illinois law); Whyte, 393 F. Supp. 2d at 888 (Minnesota law);

McClellan, 2003 WL 22171702 at *2 (Texas law).

       BHM argues that Sanjuan, Whyte, and Balaklaw all suggest that their holdings may be

different were membership an “economic necessity,” Reply in Supp. of Mot. for Prelim. Inj. 19,

but it has not shown that the District of Columbia has any similar prohibition. 3 In addition to the

similarities between these facts and other cases just described, the parties here were also known



3
  In Sanjuan, the court held that despite the plaintiff’s argument that the Board was the only
organization in the United States offering this certification, it was not a “practical necessity for
his livelihood;” in other words, it was not required for the plaintiff to practice physical medicine
and rehabilitation. 393 F. Supp. 2d at 888-89. The parties here agree that URAC may be the
only accrediting entity for IROs, TRO Hr’g Tr. 21, May 21, 2018, but it is also undisputed that
BHM successfully operated for a decade before initially seeking and obtaining URAC
accreditation. Supp. Johnson Decl. ¶¶ 9, 25. While passage of the ACA may have made
accreditation more valuable, and indeed, necessary for many contracts, it is not necessarily the
case that BHM could not sustain a successful business model without URAC accreditation.


                                                 12
to each other, having successfully contracted in 2012 and maintained a three-year relationship

without issue. Thus, in 2014, when BHM paid over $26,000 to contract with URAC for another

three years, 2014 Contract § I.B., it had already operated under URAC’s rules (which neither

party has alleged changed) without issue; no evidence has arisen suggesting that when BHM

entered the 2014 Contract, it was not negotiating at arm’s length; and presumably the price of

application would have been higher and less desirable if BHM had sought to contract around the

exculpatory clause. Given these considerations, the plain language of the provision, and the

similarities between this case and the examples cited by the parties, all operating against the

backdrop of a presumption of enforceability of exculpatory clauses, I find that the exculpatory

clause in the parties’ contract precludes judicial review of this action.


           2. The Contract Is Not Substantively Unconscionable

       BHM seeks to save its claim by arguing that the exculpatory clause is unconscionable.

Mot. for Prelim. Inj. 29-33, Opp. to Mot. to Dismiss 21-24. To establish that a contract is

unconscionable, the party seeking to avoid the contract must show “an absence of meaningful

choice on the part of one of the parties together with contract terms which are unreasonably

favorable to the other party.” Urban Invs., Inc. v. Branham, 464 A.2d 93, 99 (D.C. 1983). In

other words, the challenging party must establish both procedural unconscionability—how the

contract was made, and substantive unconscionability—the actual terms of the contract. Id. An

unconscionable contract must “affront[] the sense of decency” and the party seeking to avoid the

contract must show that the “terms are so extreme as to appear unconscionable according to the

mores and business practices of the time and place.” Id. at 100 (internal quotation marks

omitted). To determine this question of law, a court looks beyond the four corners of the

contract to the “commercial setting, purpose, and effect of the contract.” Id.


                                                 13
       Here, the record reflects no extraordinary circumstances—except potentially one,

discussed below—that make the Contract one of adhesion. A contract of adhesion is “one

imposed upon a powerless party, usually a consumer, who has no real choice but to accede to its

terms.” Woodroof v. Cunningham, 147 A.3d 777, 789 (D.C. 2016). That a contract is “take-it-

or-leave-it” cannot establish procedural unconscionability; a party must show that the “parties

were greatly disparate in bargaining power, that there was no opportunity for negotiation and that

the services could not be obtained elsewhere.” Ruiz v. Millennium Square Residential Ass’n, 156

F. Supp. 3d 176, 181 (D.D.C. 2016). BHM has not provided contemporaneous evidence to

suggest that, when it entered the contract in September 2014, the parties did not negotiate in

good faith or at arm’s length; it also has not argued that exculpatory clauses were not recognized

in the law or not accepted business practice at the time. See generally Mot. for Prelim. Inj. 29-

33, Opp. to Mot. to Dismiss 21-24. Both parties are sophisticated commercial entities that had

transacted before without issue, and BHM does not suggest that URAC’s contract terms changed

between its initial term of accreditation and the 2014 Contract. See id.

       Instead, BHM focuses on the fact that, because it needs URAC accreditation “to maintain

the viability of its business,” it is a powerless party relative to URAC. Mot. for Prelim. Inj. 30.

It alleges that this relative disparity meant that it could not have negotiated more favorable terms

over the exculpatory clause. Id. at 31. Other than this brief, conclusory statement, BHM

provides no evidence to show that it considered this avenue or that it tried, and failed, to

negotiate amendment of the exculpatory provision. See id. BHM finds it an “absurd” suggestion

that the parties had equal bargaining power because URAC has four times the revenue and was

the “gatekeeper to the IRO marketplace,” id. at 30 n.9, but this argument proves too much. The

law does not require that parties have equal revenues to make an enforceable contract; the law




                                                 14
also specifically contemplates, and condones, certifying entities acting as “gatekeepers” giving

applicants the stamp of approval to engage in an activity under a certain professional

designation. See, e.g., Sanjuan, 393 F. Supp. 2d at 888-89 (rejecting plaintiff’s argument, part of

which was based on the fact that the certifying board was the only organization in the United

States offering the certification). Stripped to its essence, BHM’s argument is that the Contract

was procedurally unconscionable because it was a “take-it-or-leave-it” contract, which even they

admit is insufficient. See Mot. for Prelim. Inj. at 30 (citing Ruiz, 156 F. Supp. 3d at 181). Based

on these arguments, BHM has failed to show that the “parties were greatly disparate in

bargaining power, [and] that there was no opportunity for negotiation.” See id.

       A fact that perhaps differentiates BHM’s and URAC’s Contract is that in November

2015, the Department of Health and Human Services promulgated a final rule, effective January

1, 2016, requiring IROs to be “accredited by URAC or [a] similar nationally-recognized

accrediting organization.” 80 Fed. Reg. 72,192, 72,269 (Nov. 18, 2015) (codified at 45 C.F.R.

§ 147.136(d)(2)(iii)). This codified URAC’s role as the gatekeeper to entities seeking to provide

IRO services and strengthens BHM’s argument that URAC’s “services could not be obtained

elsewhere.” See Ruiz, 157 F. Supp. 3d. at 181.

       Although the rule allows for accreditation by a similar national organization, the parties

have made no written representations that any similar accrediting organization exists, either now

or in 2014, and URAC admitted during oral argument that it is unaware of another similar

organization. See TRO Hr’g Tr. 21, May 21, 2018. So, URAC is the sole accrediting

organization sanctioned by the Government to determine which entities can provide IRO

services, and organizations on both the supply (subject to the ACA and/or and seeking IRO

services) and demand (seeking to provide IRO services) sides are bound by its determinations.




                                                 15
       Having the United States Government’s imprimatur is significant, as shown here by

BHM’s testimony that the market has increasingly required URAC accreditation and its

estimation that a majority of its IRO revenues is now accreditation-dependent. Supp. Johnson

Decl. ¶¶ 9, 25; Am. Compl. ¶¶ 2, 170. Even Dr. Watts from URAC describes the ACA to

“require[] all health plans to adhere to the external review process that . . . recognizes IROs as

eligible . . . if the IROs are accredited by ‘a nationally recognized private accrediting

organization.” Opp. to Mot. for TRO Ex. 1 (“Decl. of Karen Watts”) ¶ 13, ECF No. 8-2. Thus,

that URAC accreditation is codified in Government regulations sets this situation apart from the

mine-run of cases where applicants are free to choose whether to seek accreditation or

certification. This unusual circumstance counsels toward finding that the contract was

procedurally unconscionable. Ultimately, however, I do not have to reach this question, 4

because the contract was not substantively unconscionable.

       Substantive unconscionability turns on whether the Contract terms are “unreasonably

favorable to the other party,” Urban Invs., 464 A.2d at 99, and requires “an assessment of

whether the contract terms are so outrageously unfair as to shock the judicial conscience.” Fox

v. Computer World Services Corp., 920 F. Supp. 2d 90, 99 (D.D.C. 2013). A substantively

unconscionable contract is “one that ‘no man in his senses and not under delusion would make

on the one hand, and as no honest and fair man would accept on the other.’” Hill v. Wackenhut

Services Intern., 865 F. Supp. 2d 84, 95 (D.D.C. 2012) (quoting Hume v. United States, 132 U.S.

406, 411 (1889)).




4
  I stop short of reaching this question because the regulation issued over a year after the parties
signed the Contract and the record is not fully developed about the state of the IRO industry
when the parties signed the Contract.


                                                 16
       Here, the Contract and URAC’s policies are not substantively unconscionable, as they

provide for the opportunity to be heard before neutral decision-makers and include a robust

investigative and appeals process. The Contract outlines the grievance and for cause review

procedures followed: a “for cause” review “may be initiated by URAC as a result of grievance

resolution,” 2014 Contract § I.R.1., after which URAC will determine whether any review

standards were violated and if “the violation is egregious, in URAC’s sole judgment; URAC may

suspend or revoke accreditation.” Id. § I.S. Adverse accreditation decisions may be appealed

within URAC. Id. § I.T. Accreditation determination disputes, including revocations of

accreditation, are “finally resolved” through this appeals process. Id. §§ I.T., III.A. These were

precisely the steps followed here. While these provisions tilt in URAC’s favor (e.g., the decision

to revoke accreditation is in URAC’s sole judgment), these provisions are not unreasonably

favorable to it because the process uses a multi-tiered approach to making final a determination

and, within it, affords applicants the ability to appeal adverse decisions.

       In addition to following the investigation, decision, and appeal procedures outlined in the

Contract, URAC followed its Grievance Administration and Appeals Management policies. See

Decl. of Karen Watts (“Watts Decl.”) Exs. A-B. URAC notified BHM of the grievance and

started an initial investigation, during which it determined that a for-cause review should occur.

See id. Ex. A. §§ IV.B.2.-3, C. After the for-cause review, the investigator provided her findings

to URAC leadership, who submitted the findings to URAC’s Accreditation Committee. Watts

Decl. ¶ 25. All members of the Accreditation Committee are volunteers (i.e., none are URAC

employees), and they make their decision on a blinded basis, meaning that they are unaware of

the identity of the organization. Id. ¶¶ 26, 42. Based on the evidence presented, the

Accreditation Committee decided to revoke BHM’s accreditation and informed BHM of its right




                                                 17
to appeal to the Executive Committee, which may accept, reject, or modify the Accreditation

Committee’s decision. See id. ¶¶ 34, 39; see also id. Ex. B at § I. BHM submitted written

materials for the Executive Committee’s decision. Id. ¶ 41. BHM’s Executive Committee,

whose voting members are volunteers (again, not URAC employees), also considered the appeal

also on a blinded basis. Id. ¶¶ 31, 33. The Executive Committee, exercising its authority,

overturned the Accreditation Committee’s decision on three findings, but upheld the

Accreditation Committee’s decision on four findings. Id. Ex. C. Under URAC’s scoring

methodology, the failure of three or more elements results in the denial (or here, revocation) of

accreditation. See id. ¶ 44. This process—which provided for a multi-step process with blind

grading at each critical stage and the opportunity to respond to the revocation decision in

writing—is not unreasonably favorable to URAC.

       BHM challenges aspects of each step of the process as deficient. It does not dispute

URAC’s authority or decision here to conduct a “for cause” review but alleges that the for cause

review team did not offer BHM an entrance or exit conference or spend meaningful time with

senior leadership, that it did not permit management to be present during the interviews with

staff, and that BHM leadership lacked the opportunity to discuss the team’s initial findings or

answer any questions. See Am. Compl. ¶¶ 51, 53-55, 57-58. It also alleges that URAC provided

only summary information about why it was revoking BHM’s accreditation, that URAC

expanded the scope of the review beyond the scope of the initial grievance filed, and that it is

unsure what information URAC used in making the revocation decision and appeal. Id. ¶¶ 52,

70, 88, 95. It also quarrels with the appeals process, objecting to not being permitted to review

the redacted (i.e., blinded) version of its appeal documents, not being provided a copy of any




                                                18
other materials put before the Executive Committee, and being refused to present its appeal in-

person to the Executive Committee. Id. ¶¶ 92-94.

       But focusing on these complaints misses the forest for the trees. Ultimately, these tiffs do

not alter the big picture; that BHM received written notice of the elements on which it was

considered non-compliant and the reasons for the determinations, it was provided an opportunity

to present written arguments, and its internal appeal went through two layers of blinded

evaluation. Both the terms of the contract and the process afforded to BHM are not so

outrageously unfair as to shock the judicial conscience, and the Contract is therefore not

substantively unconscionable. So, the Court will dismiss BHM’s claims.


       B. A Preliminary Injunction Should Not Be Granted, as BHM Has Not Shown a

           Likelihood of Success on the Merits

       The enforceable exculpatory clause of the parties’ Contract settles this lawsuit. Even

balancing the four preliminary injunction factors, however, BHM would not be entitled to a

preliminary injunction. Under Winter’s suggestion that likelihood of success on the merits is “an

independent, free-standing requirement for a preliminary injunction,” Sherley, 644 F.3d at 393,

the Court’s analysis on the exculpatory clause is determinative. Under the historical sliding scale

approach, the Court finds that BHM’s lack of likelihood of success on the merits weighs

decisively in favor of determining that it is not entitled to a preliminary injunction.

       Setting aside the exculpatory clause, analyzing BHM’s claims on the merits still leads to

the conclusion that the company is unlikely to succeed. BHM’s action is based on the implied

covenant of good faith and fair dealing and its common law due process rights. Am. Compl. ¶¶

187-93. BHM claims that URAC’s “application of its standards was arbitrary, unreasonable, and

contrary to the facts” and that it denied BHM due process when it “reviewed and rescinded


                                                  19
BHM’s accreditation without meaningful opportunity to be heard, proper disclosure of pertinent

facts, or a reasoned decision.” Mot. for Prelim. Inj. 23. The standards BHM cites focus on

reviewing for arbitrary and capricious (i.e., not unreasonable) decision-making. See Wright v.

Howard Univ., 60 A.3d 749, 754 (D.C. 2013) (explaining that a breach of the implied duty of

good faith and fair dealing must either involve bad faith or conduct that is arbitrary or

capricious); Allworth v. Howard Univ., 890 A.2d 194, 202 (D.C. 2006) (explaining that “‘fair

dealing’ involves reasonable rather than arbitrary or capricious action”); Kumar v. George

Washington Univ., 174 F. Supp. 3d 172, 190 (D.D.C. 2016) (stating that an arbitrary or

capricious decision is one that “could not be fairly characterized as the product of reasoned

decision-making.”). Although these cases arose in the context of employment disputes, Marjorie

Webster Junior Coll., Inc. v. Middle States Ass’n of Colls. & Secondary Schs., 432 F.2d 650, 655

(D.C. Cir. 1970), considered an accreditation denial. There, the D.C. Circuit, relying on cases

from various districts, summarized that courts will “scrutinize[] the standards and procedures

employed” and that the “standards set must be reasonable, applied with an even hand, and not in

conflict with the public policy of the jurisdiction.” The Court’s role is not to conduct a de novo

review of the evidence, but to determine whether URAC’s decision-making process was

reasonable and supported by the evidence before it. See Kumar, 174 F. Supp. 3d at 190. This is

necessarily a deferential standard because “professional societies possess a specialized

competence in evaluating the qualifications of an [entity] to engage in professional activities.”

Marjorie Webster, 432 F.2d at 655.

       Courts confronted with accreditation-specific cases use similar standards. McKeesport

Hospital v. Accreditation Council for Graduate Medical Education recognized that

“accreditation associations [should] employ fair procedures when making decisions affecting




                                                 20
their members,” 24 F.3d 519, 534-35 (3d Cir. 1994); Medical Institute of Minnesota v. National

Association of Trade & Technical Schools required an accrediting agency to “confirm its actions

to fundamental principles of fairness,” 817 F.2d 1310, 1314 (8th Cir. 1987); and North Dakota v.

North Central Association of Colleges and Secondary Schools, 99 F.2d 697, 700 (7th Cir. 1938)

noted that accreditation decisions would not survive if “arrived at arbitrarily and without

sufficient evidence.” And more recently, in Professional Massage Training Center, Inc. v.

Accreditation Alliance of Career Schools and Colleges, 781 F.3d 161, 170, 172 (4th Cir. 2015)

applied the arbitrary and capricious and fairness standards to uphold an accreditation denial.

       Notably, these cases are all in the higher education accreditation, and few cases address

applying these standards outside that context. See Mot. to Dismiss 17 (citing one 2015 district

court case in which the Western District of Virginia declined to extend the federal common law

right to due process outside the context of higher education). But given the similarities between

the industries—both the higher education and IRO services industries are highly regulated, both

provide services affecting the public, and both involve accreditation from private

organizations—it is appropriate to follow the same standard in this accreditation context. 5

       Under this deferential analysis, URAC’s decision was not arbitrary or capricious. For

each of the four standards upheld by URAC’s Executive Committee, BHM argues that URAC



5
  URAC contends that that the duty of good faith and fair dealing does not cover challenges to
accreditation decisions, and quotes from cases where courts have dismissed accreditation actions
brought under breach of contract. Mot. to Dismiss 34-35. But these cases also reference that the
“deferential principles of administrative law” could apply instead. Tsamota Certification Ltd. v.
Ansi ASQ Nat’l Accreditation Bd. LLC, No. 17-cv-839, 2018 WL 1936840, at *6 (E.D. Wis.
April 24, 2018); see also Found. For Interior Design Educ. Research v. Savannah Coll. of Art &
Design, 244 F.3d 521, 532 (6th Cir. 2001) (“the Foundation did not act in an arbitrary or
unreasonable manner in denying the College’s accreditation application”). I therefore assume
for the sake of argument that in the District of Columbia, an accreditation decision can be
reviewed under an arbitrary and capricious standard.



                                                21
considered the “wrong” evidence or should have employed other procedures to ensure that it

obtained and considered the “right” evidence. See Mot. for Prelim. Inj. 10-16. As detailed in

Section I.B., the arguments that BHM makes to this Court largely mirror those that it advanced

in its 26-page written appeal to the Executive Committee.

       The Committee’s decision to uphold the findings are supported by the record. For

example, for Core Requirement 4(b), not even BHM disputes the fact that it failed to file the

annual report necessary for incorporation in Florida, and that its corporate status was dissolved

for months as a result. BHM Appeal 7. It argues for essentially a “no harm, no foul” rule

because its corporate status was reinstated and made retroactive, but this does not change the fact

that the evidence still supports a finding of non-compliance. See id. For Core Requirement

13(a), BHM argues that URAC should have spoken with BHM’s CIO instead of the clinical

specialists who showed that they could access the drop-down menu that permits changes to be

made to a reviewer’s decision. Id. at 9-10. Again, the evidence—which not only involved this

demonstration, but other testimonial evidence as well—supports URAC’s finding, and it was

entitled to fashion its investigation in a way that efficiently and sufficiently answered its

inquiries. Am. Compl. Ex. 1 Attach 12. Who URAC selects to interview, as well as what

questions it asks, and whether and to what extent it conducts any follow-up, are matters within its

discretion that neither BHM nor this Court should dictate. The same analysis applies for Core

Requirements 17(a)(ii) and 32(b). BHM disputes URAC’s substantive findings and argues that

URAC should have ceded to BHM’s explanations for its seeming non-compliance. Mot. for

Prelim. Inj. 11-14, 15-16. But URAC, on three separate occasions, two of which were on a

blinded basis, determined that evidence gathered during the for-cause investigation was enough

to sustain a finding. The final decision-maker, the Executive Committee, made its decision with




                                                  22
the benefit of BHM’s written appeal. This Court will not disturb these findings, which were

made upon review of the facts by a knowledgeable entity with subject matter expertise, when

they are supported by the record and adequately explained by URAC. See Mot. to Dismiss 27-33

(explaining its determinations); Kumar, 174 F. Supp. 3d at 190 (D.D.C. 2016) (an arbitrary or

capricious decision is one that “could not be fairly characterized as the product of reasoned

decision-making.”).

       As for URAC’s decision-making process, the record shows that it followed “fundamental

principles of fairness.” See Med. Inst. of Minn. v. Nat’l Ass’n of Trade & Tech. Schs., 817 F.2d

at 1314. As described in greater detail in Section I. A.2., URAC followed its written procedures

throughout this process, involving: receiving a grievance, conducting a preliminary investigation,

starting a for cause review, conducting a site visit, making a determination, and considering and

resolving an appeal. There is no evidence of bias against BHM at any point throughout the

proceedings; indeed, both the Accreditation and the Executive Committees considered the

evidence and made their decisions on a blinded basis. Members of these committees also are

unpaid volunteers and not URAC employees. At the Executive Committee level, BHM

submitted a written appeal to advocate its case. And as evidence of the process working, the

Executive Committee overturned three of the seven findings below. These steps—the several

levels of independent and unbiased review with the opportunity to respond—satisfy any common

law due process rights that BHM has.

       In summary, BHM cannot show a likelihood of success on the merits, both because of the

exculpatory language in the parties’ Contract and because URAC’s determinations were the




                                                23
product of reasoned decision-making and a fair process. I conclude that BHM’s inability to

succeed on the merits is determinative and warrants a denial of the its Motion. 6


       C. URAC’s Motion to Dismiss Should Be Granted

       Because the parties’ contractual language is valid and enforceable, URAC’s Motion to

Dismiss must be granted. BHM’s Amended Complaint, even if the allegations it contains are

assumed to be true, does not state claims for which the Court may grant relief, as BHM agreed to

the exculpatory clause that precludes it from pursuing legal action for URAC’s revocation

decisions.




6
  Because this case must be dismissed under the exculpatory clause, the Court need not linger on
the other preliminary injunction factors. But consideration of these factors demonstrates that
BHM would not be entitled to an injunction in any case.

The Court agrees that BHM likely suffered significant reputational harm resulting from a
revocation of its accreditation. Though BHM did not provide any concrete evidence of a loss of
clients, and though URAC has since re-accredited BHM for 2018, the Court assumes that the
“irreparable harm” factor would tip in BHM’s favor.

The balance of equities in this case is in equipoise. It is true that URAC is the sole accrediting
entity that governs who may provide IRO services under the ACA. Thus, a loss of URAC
accreditation harms BHM’s capacity to conduct third party reviews for several clients. However,
URAC’s status as the sole accrediting entity also means that public trust in the fairness and
efficacy of its review processes is paramount. The perception that it may permit non-compliant
entities to continue providing critical, medical services would severely erode this trust.

Finally, the public interest is better served by denying a preliminary injunction. BHM argues that
its lack of accreditation “disrupt[s] reviews of medical decisions for hundreds of patients and
health plans, delaying prior authorization and coverage determinations until the health plans and
patients can resubmit their cases to other IROs.” Mot. for Prelim. Inj. 29. However, BHM has
not cited any support for this claim, and other accredited IROs could likely step in to service
BHM’s clients. Thus, it does not appear that any public harm would be long-lasting. On the
other hand, as discussed, the ability of the public to trust URAC-accredited entities is of the
utmost importance due to URAC’s status as the sole accrediting organization.


                                                24
                                    IV.    CONCLUSION


       For these reasons, the Plaintiff’s Motion for a Preliminary Injunction will be denied and

the Defendant’s Motion to Dismiss will be granted. A separate order will issue.



                                                                        2018.07.20
                                                                        15:09:08 -04'00'
Dated: July 20, 2018                                TREVOR N. MCFADDEN, U.S.D.J.




                                               25
