Plaintiff Robert B. Ciarpaglini, an Illinois Medicaid participant, challenges Illinois legislation that caps at four the number of prescriptions a Medicaid recipient can receive without prior approval within a thirty-day period. See 305 Ill. Comp. Stat. 5/5-5.12(j). At the time he filed suit, he was subject to that legislation and alleged he was struggling to obtain his medications because оf it. While his suit was pending, though, he was moved to a managed care program. As a result he is no longer subject to that cap.
The main dispute before us, though not the only one, is whether the transfer to managed care rendered moot Ciarpaglini’s claims for declaratory and injunctive relief. The district court held that it did. Ciarpaglini v. Quinn, No. 13 C 50213,
We hold that there is insufficient evidence in the record to determine whether Ciarpaglini’s claims for injunctive relief are moot, a conсlusion we explain further below. We remand this matter to the district court for limited fact-finding proceedings aimed at permitting both sides to develop a record on the question of mootness. We retain jurisdiction of this matter pending completion of those proceedings.
I. Factual and Procedural Background
The central claim in this appeal is plaintiffs challenge under federal law to what he сalls the “four-prescription limitation” in Illinois’s Medicaid program. The Medicaid program covers prescription medicines. As a cost-control measure, Illinois enacted legislation in 2012 requiring prior approval for reimbursement for more than four prescriptions for one patient within a thirty-day period. 305 Ill. Comp. Stat. 5/5-5.12(j). We refer to this provision as the prior-аpproval requirement.
We accept plaintiff Robert Ciarpaglini’s well-pled allegations as true for purposes of this appeal. See St John’s United Church of Christ v. City of Chicago,
. Plaintiff Ciarpaglini is an Illinois Medicaid recipient. He suffers from several chronic conditions, including bipolar disorder, attention. deficit hyperactivity disorder, panic disorder, and generalized anxiety disorder. Doctors have prescribed at least seven medicаtions to manage these conditions. Ciarpaglini alleges that after the prior-approval requirement took effect, he could not, at least at times, obtain the medications he needed. (He acknowledges the prior-approval mechanism but calls the system “fraught -with flaws” and says it does not guarantee he will be able to get his medications.) He allеges that as a result he has contemplated committing suicide, committing petty crimes so that he would be jailed, or, checking himself into
After informal complaints to state officials failed to produce action, Ciarpaglini filed this pro se lawsuit in June 2013. He challenges the prior-approval requirement as a violation of federal Medicaid law, the Ameriсans with Disabilities Act, the Rehabilitation Act, and the Constitution.
A few months later, sometime in September or October 2013, Illinois moved Ciarpaglini from the general fee-for-service Medicaid program to a new managed care program. The prior-approval requirement for prescription medications does not apply to Ciarpaglini under the managеd care program. That change led the defendants to move to dismiss his central claim as moot. As part of its, broader final judgment, the district court agreed, and plaintiff has appealed. After reviewing the briefs submitted .in the pro se appeal, we appointed counsel to represent plaintiff and ordered supplemental briefing. The law firm of Jenner & Bloсk has ably represented him and assisted the court in this appeal.
II. Analysis of Justiciability Issues
Article III of the Constitution limits the jurisdiction of federal courts to “cases” and “controversies.” Campbell-Ewald Co. v. Gomez, 577 U.S. -,
Relevant to this issue, plaintiff submitted a declaration in opposition to defendants’ motion to dismiss saying that when he moved to the managed care program, he asked a defendant state official whether the relief from the prior-approval rеquirement was permanent. He was told no, that he could bé subjected to the requirement again if he moved to another county without the managed-care program or if the state’s “fiscal issues” did not improve. Plaintiff also asserted that when he received this news, he “wanted to move out of Winnebago County and into Stephenson County,” where he would again be subject to the prior-approval requirement.
Plaintiff offers three theories for finding his challenge is not moot and is otherwise justiciable: the so-called voluntary cessation exception to mootness;' the mootness exception for wrongs capable of repetition that would otherwise evade review; and a pre-enforcement challenge to the rеquirement in the county where he wants to move.
A. Voluntary Cessation
Courts are understandably skeptical when a defendant seeks dismissal of an injunctive claim as moot on the ground that it has changed its practice while reserving the right to go back to its old ways after the lawsuit is dismissed. E.g., United States v. W.T. Grant Co.,
Decisions by the Supreme Court and this court make clear that a defendant seeking dismissal based on its voluntary change of practice or policy must clear a high bar.- “A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Ass’n,
We applied this rule in Milwaukee Police Association v. Jones,
At oral argument in this case, defendants asserted that their move of plaintiff from the fee-for-service program to the managed care program was part of a much broadеr policy-shift in the Illinois Medicaid program. The state of Illinois did not roll out managed care for all Medicaid recipients in Winnebago County in order to undermine Ciarpaglini’s lawsuit, they argue, nor does the state have any intention of returning to the fee-for-service model when the lawsuit ends.
Publicly available information lends support to this view. An Illinois law, effective as of January 25, 2011, mandated that 50 percent of recipients eligible for benefits in medical assistance programs be covered in a managed care program by January 1, 2015. 215 Ill. Comp. Stat. 106/23. A state website has identified five “mandatory managed care regions” in Illinois Medicaid. See http://www.illinois.gov/hfs/Site CollectionDocuments/CareCoorPlan.pdf (last visited March 25, 2016). One of those is the Rockford Region, which includes Winnebago County. See http://www. illinois.gov/hfs/SiteCollectionDocuments/ CCExpahsionMap.pdf (last visited March 25, 2016).
If the change in plaintiffs care program was indeed part of this broad shift in policy that affected' all or most Medicaid recipients in Winnebago County, rather than an individually targeted effort to neutralize his lawsuit, then his challenge to the prior-approval requirement is probably moot.- Statewide or even- countywide changes in Medicaid policy are not made ■quickly or lightly. As a practical matter, the prospect that Illinbis will implement further change relevant to this lawsuit— for example, by abandoning the managed care program entirely, or by’making the prior-approval requirement for • medi
We recognize that government policies and practices change. That will always be true. But a defendant may show a case is moot by demonstrating there is “no reasonable expectation that the wrong will be repeated.” Milwaukee Police Ass’n,
The problem in this appeal is that the record does not allow us to determine fairly whether plaintiffs move from fee-for-service to managed carе was in fact part of a broader policy change affecting all Medicaid recipients ■ in Winnebago County. Plaintiff has not had a fair opportunity to address information on the state defendants’ website. Cf. Rowe v. Gibson,
Accordingly, we think the best course here is to remand this -case for limited fact-finding by the district court on the circumstances of Ciarpaglini’s transfer from the fee-for-service program, where he was subject to the prior-аpproval requirement, to the managed care program, .now in effect in Winnebago County. See Barnhart v. United States,
B. Capable of Repetition Yet Evading Review
For completeness, we also address plaintiffs other theories for avoiding rnootness. One is that the alleged wrongdoing is capable of repetition but will evade judicial review if we do not consider it now. “The exception applies where ‘(1) the сhallenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’” Federal Election Comm’n v. Wisconsin Right to Life, Inc.,
The capable-of-repetition exception does not apply here. This controversy is not one _ of those inherently transitory situations, such as a pregnancy or an election campaign, that will run its course faster than courts can usually act to provide complete review on the merits. See Wisconsin Right to Life,
This case is similar in one respect to Olmstead v. L.C. ex rel. Zimring,
The Supreme Court noted that this change did not render the case moot in view of the plaintiffs’ histories of “multiple institutional placements.” Olmstead,
While these decisions suggest there is not a razor-sharp doctrinal boundary between the “voluntary cessation” and “capable of repetition” exceptions to mootness, we. expect -that the district court’s findings on the voluntary cessation exception will govern,the result under either exception. In Olmstead, the public officials were making patient-specific treatment decisions, and the plaintiffs’ community placements had previously proven unstable. There were real prospects that the plaintiffs would again face the treatments they were challenging in court — ‘particularly , given thq number of times they had been institutionalized in the past.
Whether. Ciarpaglini’s move into managed care was a, decision made on an, individual basis, or whether it was part-of a statewide policy shift, is an inquiry along the .same lines. It, is essentially the same question that controls the voluntary cessation exception. Thus, to the extent that Olmstead leaves room for defendants’ conduct here to be considered capable of repetition-but evading review, the outcome under that test is unlikely to divergе from the voluntary cessation analysis.
. C. Pre-enforcement .Challenge
■ Plaintiff, also argues that his interest in moving from Winnebago County to an adjacent county where he would again be subject to the prior-approval requirement
The factual record on this point is minimal. Plaintiffs declaration says in relevant part:
7. Sometime in late September or early October, 2013, defendants Hamos, Arndt and Parker placed me in a managed care program and at the time I received that notification I wanted to move out of Winnebago County and into Stephenson County.
8. Because of the defendants^] threat of re-imposing the four prescription limitation upon me should I leave Winnebago County and because I cannot afford to pay for all my medications I have remained in Winnebago County.
At our requеst, the parties : briefed whether such a desire to move'to another county (or state) is sufficient to -give a plaintiff standing on the theory that the allegedly illegal condition of a government benefit program like Medicaid discourages the plaintiff from moving his residence. On the one hand, plaintiff contends he has a constitutional right to move and to live where he wishes. On the other hand, this theory of standing poses obvious risks of lawsuits by interlopers with little ■ real stake in a dispute, without involving other potential plaintiffs who reside in the affected jurisdiction and may have much greater stakes in the matter. On this issue, also, we would benefit from additional fact-finding on the circumstances, reasons for, obstacles to, and sincerity of plaintiffs stated desire to move to Stephenson County.
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For these reasons, we order a limited remand of this matter to the district court for what we hope will be prompt and limited proceedings to determine facts relevant to: (1) the voluntary cessation exception to mootness, and (2) plaintiffs stated desire to move to another county, where he would again be subject to the prior-approval requirement for more than four prescription drugs within a month. We retain jurisdiction pending that limited remand.
Notes
. The district court dismissed various other claims for damages on grounds' of immunity and failure to state a claim on which relief could be granted. We will" resolve the appeal of those claims once the proceedings on remand are complete.