D.U. v. Rhoades
2016 U.S. App. LEXIS 10141
7th Cir.2016Background
- D.U., a severely disabled minor, received 70 hours/week of Medicaid-funded private duty skilled nursing after a catastrophic 2005 injury; later continued under Wisconsin’s Katie Beckett program.
- Wisconsin requires prior authorization for private duty nursing and defines "skilled nursing" and medical necessity under state regs; private duty nursing requires ≥8 hours/day of skilled nursing.
- In 2013 DHS rated D.U. “borderline” for private duty nursing, denied continued authorization after reviewing documentation, and offered a transition to lesser services; D.U. did not pursue administrative appeal.
- D.U. sued DHS Secretary Rhoades and QAARS nurse consultant Townsend and moved for a preliminary injunction to restore 70 hours/week pending litigation; the district court denied the injunction.
- The Seventh Circuit found the district court erred in evaluating likelihood of success (the threshold is low — "better than negligible") but affirmed because D.U. failed to show irreparable harm (monetary depletion of a special needs trust does not establish irreparable injury when money damages could compensate).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether D.U. is likely to succeed on the merits that 70 hrs/wk private duty nursing is medically necessary under Medicaid/EPSDT | D.U. submitted doctors’ opinions and a detailed nurse affidavit showing ongoing skilled tasks and progress attributable to skilled nursing; thus she has > negligible chance | DHS argued documentation did not show ≥8 hrs/day of skilled nursing; many tasks are monitoring or personal care suitable for paraprofessionals, family, or therapists | Court: District erred — D.U. showed more than a negligible chance of success; evidence warranted moving past the threshold |
| Whether the district court correctly applied EPSDT and medical necessity standards | D.U.: EPSDT requires states to provide necessary services to ameliorate conditions; medical necessity under state regs supports skilled nursing here | DHS: EPSDT does not eliminate medical necessity limits; state may deny private duty nursing when tasks don't require RN/LPN skills | Court: Agreed EPSDT does not remove medical necessity limit; remonstrated district court’s narrow weighing but found D.U. met the low threshold for likelihood of success |
| Whether D.U. demonstrated irreparable harm absent an injunction | D.U.: Special needs trust being depleted to pay for care; loss of services is immediate and harms development | DHS: Monetary expenditures can be remedied by damages; alternative services exist; no showing of irreparable non-monetary harm | Held: No irreparable harm — money damages (and eventual court relief) make D.U. whole; preliminary injunction denied |
| Whether balance of equities/public interest favor injunction | D.U.: Continued skilled nursing benefits child’s health and development | DHS: Public interest and state resources not met; must follow medical-necessity rules | Held: Court did not reach in depth after finding no irreparable harm; affirmed denial on that basis |
Key Cases Cited
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (preliminary injunction standard requires likelihood of irreparable harm and extraordinary relief)
- Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079 (7th Cir. 2008) (plaintiff needs a better-than-negligible chance of success for preliminary relief)
- Curtis v. Thompson, 840 F.2d 1291 (7th Cir. 1988) (discusses "sliding scale" approach to preliminary injunctions)
- Michigan v. United States Army Corps of Engineers, 667 F.3d 765 (7th Cir. 2011) (low threshold for likelihood of success on the merits)
- Sampson v. Murray, 415 U.S. 61 (1974) (monetary losses typically do not constitute irreparable harm for injunctions)