M.G., a minor and through her mother Christina Garcia; C.V., a minor, by and through his father, Jeremy Vaughan; DISABILITY RIGHTS NEW MEXICO, INC., Plaintiffs - Appellees, and A.C., a minor, by and through her mother Alicia Cortez, Plaintiff, v. Kari Armijo, in her official capacity as Secretary for the Human Services Department of New Mexico; HUMAN SERVICES DEPARTMENT, Defendants - Appellants.
No. 23-2093
United States Court of Appeals Tenth Circuit
September 17, 2024
PUBLISH
Patricia G. Williams, Wiggins, Williams & Wiggins, PC, Albuquerque, New Mexico, for Defendants - Appellants.
Nancy L. Simmons, Law Offices of Nancy L Simmons PC, Albuquerque, New Mexico, for Plaintiffs – Appellees.
Before McHUGH, MURPHY, and CARSON, Circuit Judges.
MURPHY, Circuit Judge.
I. INTRODUCTION
M.G. and C.V. are “medically fragile children” for purposes of New Mexico‘s Medicaid program. See
This court exercises jurisdiction pursuant to
Exceptional Child Ctr., Inc., 575 U.S. 320 (2015), does not foreclose entry of a preliminary injunction in this case.
II. BACKGROUND
A. Factual Background4
M.G. and C.V. are, and A.C. was, profoundly ill minor children classified as
The Medicaid Act directs federal funding to states, including New Mexico, for the provision of medical assistance to low-income individuals who would not otherwise be able to afford healthcare. See generally
M.G., a three-year-old girl, suffers from seizures and is dependent on a ventilator and feeding tube. Her mother works as a service coordinator for New Mexico‘s Developmental Disabilities Waiver program; she has worked in that field for twenty-two years. She adopted M.G. in 2020, after caring for her as a foster parent. M.G.‘s mother‘s full-time employment in public service is at constant risk due to M.G.‘s lack of adequate PDN hours. The PDN shortfall creates a need for M.G.‘s mother to care for M.G. during normal working hours.
C.V., a three-year-old boy, suffers from medication-resistant seizures and is dependent on a feeding tube. C.V. can have over fifty seizures in a single day. C.V.‘s parents, both law enforcement personnel, have submitted, to no avail, repeated requests for PDN services to the managed care organization with whom HSD has contracted to provide these services. C.V.‘s parents allege that, due to the lack of PDN hours, they have been unable to earn income with which to better support C.V. C.V.‘s mother averred she had to give up a high-level position as a federal agent “to take a lower paying position that provides more flexibility for leave, and has since used up all her earned leave.” Due to the deficits in C.V.‘s PDN hours, C.V.‘s father initially planned to retire early from his position as a state police officer so he could be home with C.V. while his wife worked. He was, however, shot in the line of duty, resulting in “[p]ain in his back, neck and shoulders,” which has made it “extreme[ly] difficult[]” to pick up C.V. or attend to his
A.C. was a ten-year-old girl who required “maximum assistance in basic living functions such as feeding, walking, toileting and bathing,” and required “regular breathing assessments.” She passed away after being hospitalized for a medical emergency. A.C. allegedly experienced “an average shortfall of 23.8 hours [of PDN] per week.”
In the absence of adequate PDN hours, M.G. and C.V. are at constant risk of life-threatening medical complications. For example, in the winter of 2022, C.V. lacked coverage for some approved PDN hours. At that time, C.V.‘s mother was bottle feeding him and noticed “a runny nose, coughing, and some congestion,” which to most parents would indicate a common cold. The condition, however, continued for months. Finally in the summer, a nurse was able to observe C.V.‘s condition and recommended a swallow study, which revealed C.V. is unable to safely take food by bottle due to the risk of aspiration (i.e., fluid entering the lungs).
B. Procedural Background
M.G., C.V., and A.C. filed a complaint in district court on April 28, 2022. As their ninth cause of action, they asserted HSD denied them their statutory right to PDN hours, in violation of
In a thorough order, the district court concluded each of the four preliminary injunction requirements weighed heavily in M.G.‘s and C.V.‘s favor.6 In so doing, the district court found that HSD‘s impossibility arguments—arguments predicated on a universal shortage of nurses—failed whether viewed as a merits-based defense or an attack on M.G.‘s and C.V.‘s standing.
HSD appeals, challenging each of the district court‘s relevant findings or conclusions.
III. STANDING
HSD asserts M.G. and C.V. lack standing because they failed to demonstrate a favorable judicial decision will redress their injuries. “To satisfy the irreducible constitutional minimum of Article III standing, a plaintiff must not only establish (1) an injury in fact (2) that is fairly traceable to the challenged conduct, but [] must also seek (3) a remedy that is likely to redress that injury.” Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797 (2021) (quotation omitted).
HSD‘s justiciability argument is not substantial. Boiled down to its essence, HSD asserts a nationwide nursing shortage renders it impossible to provide all allotted PDN hours to which M.G. and C.V are entitled. Focusing exclusively on reimbursement rates paid to private duty nurses by home health agencies, HSD contends, given the nationwide shortage, there is no record evidence demonstrating a mandatеd rate increase would result in the provision of additional PDN hours to M.G. and C.V. HSD‘s argument fails for a plethora of reasons. First, HSD has not identified a single analogous case holding that the issue it raises is one of justiciability, rather than some kind of merits-based impossibility defense. This court recently rejected the notion a similar defense, one based on the significant probability it would be impossible to fashion a remedy that did not violate federal drug laws, went to the issue of redressability. Bartch v. Barch, 111 F. 4th 1043, 1054, 1055 (10th Cir. 2024); id. at 1064 n.1 (Baldock, J., dissenting) (agreeing with the majority that this was a merits problem not implicating justiciability). None of the cases cited in HSD‘s appellate briefing is to the contrary. Instead, those cases involve past harms that were unlikely to reoccur and, thus, could not be remedied by forward-looking injunctive relief. See, e.g., Am. Historical Ass‘n v. Nat‘l Archives & Records Admin., 310 F. Supp. 2d 216, 228-29 (D.D.C. 2004) (“It is quite obviously impossible to undo the delays that Plaintiffs experienced in gaining access to the Reagan presidential records, and as explained [above], any future injury Plaintiffs might suffer as a result of the Bush Order is speculative at this point.“). This case involves a continuing injury caused by an ongoing allegedly illegal practice on the part of HSD.
Ultimately, however, it is unnecessary to definitively resolve this legal question because HSD‘s argument fails as a matter of fact. As the district court made clear, see infra Section IV.C., HSD is flatly wrong to аssert this suit is focused primarily, let alone exclusively, on reimbursement rates for PDNs. Instead, M.G. and C.V. sought a full panoply of remedies to redress HSD‘s alleged failure to provide them with their full allotment of PDN hours. See Dist. Ct. Order at 26 (“[M.G.‘s and C.V.‘s] ‘primary claim’ as [Medicaid] beneficiaries is clearly for the life-saving healthcare for which they have been approved. Indeed, [their] proposed preliminary injunction includes
As a final nail in the coffin of HSD‘s justiciability argument, the district court specifically found it was not, in fact, impossible to increase the number of PDN hours provided monthly to M.G. and C.V. As discussed infra in Section IV.A.2.a., this finding is amply supported by evidence in the record. Even assuming HSD‘s arguments implicate redressability, rather than the merits, which would mean that M.G. and C.V. must shoulder the burden of demоnstrating a lack of impossibility, the record leaves no doubt they carried their burden. See Dist. Ct. Order at 10 (noting the district court found that “M.G.‘s mother was recently successful in finding her child additional nurses when [HSD was] unable (or unwilling) to do so“). After all, as long as the record supports the conclusion additional efforts on the part of HSD to live up to its obligations under the Medicaid Act would result in the provision of at least one additional incremental PDN hour to M.G. and C.V., they have satisfied their obligation to demonstrate redressability. Thus, even setting aside serious questions as to whether HSD‘s argument implicates justiciability, its standing argument fails as a matter of fact.
IV. ANALYSIS
A. Entitlement to Injunctive Relief
1. Standard and Standard of Review
Plaintiffs seeking a preliminary injunction must establish (1) they are “likely to succeed on the merits,” (2) they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in [their] favor,” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. at 24 (quotation and citation omitted). When a proposed injunction is mandatory rather than prohibitory, as is the case here, “such an injunction should be even more closely scrutinized to assure that the еxigencies of the case support the granting of a remedy that is certainly extraordinary.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 979 (10th Cir. 2004) (en banc).7
2. Merits
a. Likelihood of Success
M.G.‘s and C.V.‘s complaint and associated request for a preliminary injunction assert that HSD is violating the early and periodic screening, diagnostic and treatment (“EPSDT“) provisions of the Medicaid Act in denying them PDN hours to which HSD has already determined they are entitled. The Medicaid Act directs federal funding to states to provide medical assistance to individuals who would not otherwise be able to afford healthcare. See
New Mexico participates in the Medicaid program and HSD is the designated agency. HSD does not provide health services or payments directly to beneficiaries but, instead, contracts with managed care organizations (“MCOs“) to provide services. See Starko, Inc. v. N.M Human Servs. Dep‘t, 333 P.3d 947, 949-51 (N.M. 2014) (explaining the operation of New Mexico‘s Medicaid system). The Medicaid Act requires that a state plan furnish healthcare services “with reasonable promptness to all eligible individuals,” including PDN services to those living in their home communities, as opposed to uniformly requiring institutionalization for high-need patients.
A brief and helpful summary of the statutory basis for the mandate that participating states provide PDN services to medically fragile children is set out by the Seventh Circuit in O.B.:
The Act defines “medical assistance” as including “early and periodic screening, diagnostic, and treatment services [EPSDT] . . . for individuals undеr the age of 21,”
42 U.S.C. § 1396d(a)(4)(B) , and requires the state to “mak[e] medical assistance available” to all eligible individuals.§ 1396a(a)(10)(A) . A related provision,§ 1396a(a)(43)(C) , requires the state to “provide for . . . arranging for (directly or through referral to appropriate agencies, organizations, or individuals) corrective treatment the need for which is disclosed by such child health screening services.” (Corrective “treatment” is “T”in the acronym “EPSDT.“) Another provision, 42 U.S.C. § 1396a(a)(8) , requires that medical assistance “shall be furnished with reasonable promptness to all eligible individuals.”One of the EPSDT treatment services is “private duty nursing services,”
42 U.S.C. § 1396d(a)(8) . . . ; it means that the child lives at home rather than in a hospital or other medical-care facility and is attended by a nurse or series of nurses for the number of hours allowed by [the agency].
838 F.3d at 839; see also Moore ex rel. Moore v. Reese, 637 F.3d 1220, 1232-38 (11th Cir. 2011) (providing an exhaustive summary of the statutory and regulation system governing the provision of PDN services to medically fragile children).
The district court concluded M.G. and C.V. were likely to prevail on their claim HSD is violating the provisions of
C.V. had proven they were entitled to the number of PDN hours set out in EPSDT budgets developed by New Mexico. Second, the district court found HSD had not demonstrated it was impossible to provide to M.G. and C.V. the full allotment of hours it had already determined they were entitled to receive, let alone provide them with at least a few more hours than it was currently providing. HSD has not demonstrated the district court‘s findings in these regards are clearly erroneous.9
The district court did not err in finding, as a preliminary matter, that the number of PDA hours set out in each child‘s EPSDT budget is the number of hours HSD has determined are medically necessary. Margaret Agard, a former registered nurse case manager in New Mexico, testified at length regarding New Mexico‘s process to develop a medically fragile child‘s EPSDT budget. She stated that the documents making up the Level-of-Care packet, and New Mexico‘s ultimate approval of a particular Level of Care, satisfy the criteria for medical necessity. The medically
fragile child‘s level of care is ultimately
In response, HSD simply asserts Agard admitted parents of medically fragile children have some ability to override medical necessity decisions as part of the EPSDT budgeting process. The district court, however, was not compelled to read Agard‘s testimony as supporting that assertion. Indeed, during her testimony, Agard clarified comments she made in a deposition and, by doing so, rejected HSD‘s assertion parents were making medical necessity determinations: “Q. Families, case managers, and the nursing agencies determine the hours and needs for a child, correct? A. No. The hours are determined through the Level of Care, so that eligibility is determined when Qualis approves them at a certain level. Once we know which level, then we can discuss how to allocate those hours within that level.” Agard‘s testimony is corroborated by the testimony of Michelle German, a Location Director at Thrive Skilled Pediatric Care (“Thrive“). She testified she relies on the EPSDT budgets of each of Thrive‘s clients, including M.G. and C.V., because it is “always important to know how many hours a child qualifies for and also their utilization.” German also testified M.G. and C.V. appeared on Thrive‘s internal lists of patients that had not been able to obtain all the PDN hours to which they were entitled.
HSD also relies on the testimony of then HSD Secretary, Dr. David Scrase. Scrase averred that M.G.‘s and C.V.‘s PDN hours, even though allotted in their EPSDT budgets, were not medically necessary because much of the care they needed could be performed by a home health aide. Scrase did not, however, account in any way for the EPSDT budgeting process or explain
Nor did the district court clearly err in concluding HSD failed to preliminarily establish it was impossible to undertake a good faith effort to provide to M.G. and C.V. PDN hours at the level set out in their EPSDT budgets. See Dist. Ct. Order at 34
(“[T]he . . . injunction does not require perfect compliance with thе EPSDT mandate; it requires good faith efforts.“); Planned Parenthood S. Atl. v. Kerr, 95 F.4th 152, 167 (4th Cir. 2024) (recognizing the Medicaid Act “is an example of a substantial compliance statute“);
Most importantly, the district court did not err in concluding two concrete steps identified in the preliminary injunction could possibly lead to the provision of additional PDN hours to M.G. and C.V. First, the district court suggested HSD could at least partially satisfy its requirеd good faith effort by collecting accurate information about whether MCOs are providing M.G. and C.V. the PDN hours set out in the EPSDT budgets. Dist. Ct. Order at 44 (noting a step HSD can take to
comply with the injunction in good faith is to “increase[] monitoring of [M.G.‘s and C.V.‘s] weekly shortfalls“); see also id. at 40 (“Despite the passage of months, however, the answers to various essential questions in this case remain mysterious—whether traveling nurses could solve [M.G.‘s and C.V.‘s] shortfalls or not, the feasibility of attracting nurses from out of state, and why [M.G.‘s and C.V.‘s] parents are periodically able to solve the staffing
This brings this court to the district court‘s second concrete step that, if taken in good faith, could lead to the provision of additional PDN hours to M.G. and C.V. It is uncontested that the contracts HSD entered into with the MCOs serving M.G. and C.V. are risk-based contracts requiring those MCOs to provide all services necessary, specifically including PDN hours, even if they must do so at a loss. See Starko, 333 P.3d at 952. As the district court noted, there is no indication in the record that HSD has engaged in any effort to work with MCOs to assure they are living up to their contractual obligations. Instead, Scrase testified that because of a lack of information, HSD was not sure the MCOs were in breach. In response to Scrase‘s testimony, the district court asked him the following question: “So your position is you‘ve done nothing because you still, as of today, do not know that these children are not getting some of the nursing hours they‘ve been approved for? Is that your position?” In response, Scrase testified M.G. and C.V. were not getting their allotted hours and “we” could make sure they get their allocation.13 Given all the
record evidence, the district court did not clearly err in determining HSD failed to establish impossibility.
Each of the key facts undergirding the district court‘s likelihood-of-success determination challenged by HSD on appeal is supported by the record. Furthermore, this court‘s extensive review of the record leaves us with no doubt the district court acted within its discretion in determining M.G. and C.V. are substantially likely to prevail on the merits of their Medicaid Act claim.
b. Irreparable Injury
The district court undertook a thorough and searching analysis of the question
On appeal, HSD challenges only one narrow aspect of the district court‘s analysis of irreparable injury. It asserts M.G. was receiving all the PDN hours to which she claims she was entitled at the time of entry of the preliminary injunction and, therefore, she failed to establish the existence of irreparable injury. In so arguing, HSD emphasizes that the “purpose of a preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparable injury that will surely result without their issuance.” See DTC Energy Grp., Inc. v. Hirschfeld, 912 F.3d 1263, 1270 (10th Cir. 2018) (quotation omitted). And, according to HSD, the declaration executed by M.G.‘s mother on September 27, 2022, demonstrates that M.G. was then receiving eighty-four of eighty-four allotted PDN hours.14
HSD has not demonstrated the district court clearly erred in finding M.G. and C.V. are consistently not receiving their allotted PDN hours. See Tyson Foods, 565 F.3d at 776 (holding that on review of the grant or denial of a preliminary injunction, the district court‘s underlying factual findings are reviewed for clear error). HSD does not challenge the district court‘s finding that C.V. consistently received less than his allotted number of PDN hours. The record evidence relied on by the district court demonstrates that since C.V.‘s qualification as a medically fragile child, his parents “have struggled to get consistent [PDN] hours filled.” PDN staffing has always been inconsistent, with “some months where the
HSD‘s arguments are no better as to M.G. It is certainly true, as HSD notes, that at the time of the filing of M.G.‘s mother‘s September 27 declaration, M.G. was receiving all of her allotted PDN hours. The declaration also makes clear, however, the exceptional nature of that state of affairs. M.G. qualified as a medically fragile child in 2019. According to the declaration “[p]rior to September 2022, [M.G.] has typically not bеen able to access all of the hours of [PDN] that she requires. For instance, for the majority of 2021, M.G. was able to access only half or less of the [PDN] hours that she needs and qualifies for.” And, as recognized by the district court but ignored by HSD, M.G.‘s mother filed a follow-up declaration on February 21, 2023. The follow-up declaration revealed that within a month of the filing of the previous declaration, the provision of PDN hours returned to the historically unfortunate norm of irregularity. Furthermore, at an evidentiary hearing on M.G.‘s and C.V.‘s request for a preliminary injunction held on May 18, M.G.‘s mother testified that although M.G. was then allotted 112 PDN hours per week, the most hours M.G. had received during the month was approximately sixty-six hours.
In summary, the record fully supports the district court‘s finding that M.G. and C.V. have consistently not received the PDN hours to which they are entitled and that, absent issuance of a preliminary injunction, they will experience the same state of affairs during the pendency of the litigation. Furthermore, HSD has not challenged, and the record fully supports, the district court‘s finding that a continued shortage of allotted PDN hours will very likely subject M.G. and C.V. to medical harm, institutionalization, or death. The existence of this likely and imminent irreparable harm, coupled with M.G.‘s and C.V.‘s showing of likelihood of success on the merits of their Medicaid Act claim, strongly supports the district court‘s decision to grant M.G. and C.V. interim injunctive relief. See Delaware State Sportsmen‘s Assoc. v. Delaware Dep‘t of Safety & Homeland Sec., 108 F.4th 194, 201 (3d Cir. 2024) (holding that a showing of irreparable harm is more likely to support the issuance of preliminary relief when the potential harm is the movant‘s death and that death would prevent the court granting an effective remedy upon the litigation‘s conclusion).
c. Balance of Harms
The district court concluded M.G. and C.V. demonstrated their threatened injuries-risk of immediate medical harm, institutionalization, and possible death-outweighed any potential injury to HSD in complying with a preliminary injunction. The district court began by noting HSD waived any argument by failing to adequately brief the issue. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are waived . . . .”). The entirety of HSD‘s district court briefing of the issue consisted of a single-sentence paragraph, which focused exclusively on the existence of irreparable harm.15
In its opening brief on appeal to this court, HSD ignores the district court‘s ruling entirely, both as to waiver and the balance of harms. Instead, it merely repeats verbatim, with the exception of replacing a few parentheses with commas, the single-sentence argument it advanced in its district court briefing.16 HSD’s failure to grapple with any aspect of the district court’s ruling on the balance of harms amounts to a waiver of the issue. See
harms for the issuance of a mandatory
d. Public Interest
The district court concluded the requested preliminary injunction would not be adverse to the public interest. It began by recognizing the magnitude of the potential harm absent entry of preliminary relief and the irreparable nature of that harm. In response, HSD asserted “judicial interference with the administration of the New Mexico Medicaid program is counter to the public interest as the planning and commitment of healthcare resources is ‘peculiarly within the province’ of HSD.” HSD further argued, because there existed a shortage of nurses, granting M.G.‘s and C.V.‘s requested preliminary injunction could limit services to other Medicaid beneficiaries. The district court rejected HSD‘s public-interest argument as to rationing for the same reasons it found HSD‘s merits-based impossibility arguments wanting.17 The district court recognized New Mexico‘s “concerns regarding its autonomy and expertise in the state healthcare sector” were meaningful. For that reason, the district court tailored the preliminary injunction in such a way as to preserve as much discretion as possible for HSD in complying with the injunction‘s terms.18 So tailored, the district court ruled that the preliminary injunction was consistent with the public interest.19
Although introductory portions of HSD‘s opening brief on appeal appear to indicate HSD is challenging the district court‘s public interest determination, see HSD Opening Br. at 2, 7, no analysis of the issue appears in the merits section of HSD‘s brief. Indeed, the term “public interest” does not appear again in any substantive discussion in HSD‘s opening brief after the one sentence assertion in the “Summary of the Argument” that “[t]he injunction is contrary to the public interest.” Id. at 7. Unsurprisingly, given this state of affairs, M.G. and C.V. do not address the issue in their response brief. Because HSD did not adequately raise the issue in its opening brief, any challenge to the district court‘s public interest decision is waived. SCO Grp., 578 F.3d at 1226. Although HSD does briefly address the issue in its reply brief, we do not generally
Even if this court were to disregard HSD‘s waiver, we would easily conclude the district court did not err in ruling M.G.‘s and C.V.‘s preliminary injunction is not adverse to the public interest. Referencing M.G.‘s and C.V.‘s district court arguments regarding the balance of harms—i.e., that HSD is not substantially burdened by the preliminary injunction because it only obligates HSD to do what is already required by the Medicaid Act—HSD‘s reply brief asserts it “cannot identify sufficient PDNs to provide all the PDN hours approved or what [it] will be forced to do in the absence of those nurse[s] in light of the injunction. This is the applicable analysis for what constitutes the public interest.” HSD‘s Reply Br. at 10-11. This assertion, unfortunately, completely ignores the district court‘s analysis. The district court order makes clear HSD is not required to shift resources away from other Medicaid beneficiaries in an effort to provide extra hours to M.G. and C.V. Furthermore, the district court specifically found HSD had not produced any evidence that providing already allotted PDN hours to M.G. and C.V. would impose either (1) a financial hardship on New Mexico or (2) an untoward intrusion on HSD‘s administration of its Medicaid system. When coupled with the district court‘s findings and conclusions as to M.G.‘s and C.V.‘s substantial likelihood of success on the merits20 and its findings as to the likelihood and magnitude of irreparable injury to M.G. and C.V., it cannot be reasonably аrgued that the district court abused its discretion in concluding its preliminary injunction was not adverse to the public interest.
e. Conclusion
HSD has not identified any legal errors on the part of the district court and has failed to demonstrate any challenged district court finding of fact is clearly erroneous. The district court did not abuse its discretion in concluding the four preliminary injunction factors weigh heavily enough in M.G.‘s and C.V.‘s favor to support the issuance of a mandatory injunction. Thus, HSD‘s challenge to the district court‘s entry of preliminary injunctive relief fails.
Nevertheless, as HSD recognizes in its reply brief, the district court has broad power to deal with unique intricacies of each case, “for breadth and flexibility are inherent in equitable remedies.” See United States v. Paradise, 480 U.S. 149, 183-84 (1987).
HSD asserts the district court‘s preliminary injunction does not adequately inform it of its obligations. Instead, according to HSD, the preliminary injunction lacks specificity because it does “not suggest how HSD can produce or acquire more suitably skilled nurses, acceptable to the specific needs of M.G. and C.V.” HSD Opening Br. at 39. In like vein, HSD asserts the injunction is “impermissibly vague because it essentially orders HSD to solve a complex problem of labor supply and demand, and medical economics, without providing any concrete instructions for accomplishing the task.” Id. at 40
Considering all the facts and surrounding circumstances, HSD‘s vagueness argument is not convincing. In contrast to HSD‘s assertion, the district court‘s preliminary injunction sets out specific steps HSD can take in good faith to provide additional PDN hours to M.G. and C.V. Such steps include negotiation with HSD‘s MCO partners, making good faith attempts to attract qualified nurses from other states, and increased monitoring of M.G.‘s and C.V.‘s weekly shortfalls. See supra n.6. As discussed above, supra Section IV.A.2.a., the district court did not err in concluding these steps are a meaningful rejoinder to HSD‘s claim of impossibility. The preliminary injunction gives HSD flexibility in undertaking those efforts by specifically noting HSD need not “seriously compromis[e] other programmatic goals” in undertaking its good faith efforts to comply. Dist. Ct. Order at 40.22 And,
acting in the context of what it termed “information asymmetry.” Dist. Ct. Order at 40 (“Despite the passage of months . . . , the answers to various essential questions in this case remain mysterious—whether traveling nurses could solve [M.G.‘s and C.V.‘s] shortfalls or not, the feasibility of attracting nurses from out of state, and why [M.G.‘s and C.V.‘s] parents are periodically able to solve the staffing problem themselves while [HSD is] not.“); id. (“Given the information asymmetry involved in the current case, as well as [HSD‘s] expertise in administration of the New Mexico Medicaid program, the Court finds a flexible preliminary injunction to be both permissible and appropriate in this case.”). That is, HSD knew what steps it had taken in the past to recruit additional nurses into the system, which of those steps had been successful or unsuccessful, how the nursing workforce was currently deployed, and how deployments could potentially be altered to provide necessary PDN hours to M.G. and C.V. without depriving services to other Medicaid beneficiaries. “Courts have recognized . . . issuance of a nonspecific injunction . . . may be justified . . . when the information needed to make the order specific in form is known only to the party to be enjoined.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2955 (3d ed. June 2024 Update).
Under the facts of this case, the district court was not required to pre-determine every act required to be performed by HSD to ensure M.G. and C.V. are not subjected to further irreparable harm during
C. Impact of Armstrong
In Armstrong, providers of “habilitation services,” see
Four members of the Armstrong Court would have gone further and addressed an issue not raised by the providers: whether the providers could proceed under the Medicare Act itself. Id. at 331 (“The last possible source of a cause of action for respondents is the Medicaid Act itself. They do not claim that, and rightly so.“). Those four members would have held the habilitation-service providers could not proceed directly under
As it did before the district court, HSD argues on appeal that Armstrong forecloses M.G.‘s and C.V.‘s request for injunctive relief. The district court rejected this argument because M.G. and C.V. were not proceeding pursuant to
The district court did not err, clearly or otherwise, in concluding Armstrong has no application to this case because M.G. and C.V. are not, directly or surreptitiously, seeking to engage the district court in ratemaking pursuant to
v. Poole, 922 F.3d 69, 84-85 (2d Cir. 2019); Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 446-448 (6th Cir. 2020). After all, if Armstrong intended to mandate such a rule, it would say so. In any event, Justice Breyer‘s separate opinion specifically rejected the notion such a rule exists or should exist. On that front, as set out above, the district court applied the rubric set out in Planned Parenthood of Kansas and concluded the EPSDT provisions of the Medicaid Act created a private right. See supra n.9. HSD has not appealed that ruling. This court rejects as legally unsound HSD‘s suggestion that Armstrong precludes any suit based on the Medicaid
V. CONCLUSION
For those reasons set out above, the preliminary injunction issued by the United States District Court for the District of New Mexico is hereby AFFIRMED.
42
Notes
In relevant part, the complaint sought the following relief:
270. Declare in favor of Plaintiffs . . . that HSD Defendants are failing to comply with the requirements of the Medicaid Act . . . ;
271. Issue preliminary and permanent injunctive relief requiring [HSD] to furnish and fulfill authorized private-duty nursing hours, directly or through referral to appropriate agencies, organizations, or individuals, to Plaintiffs...;
As noted above, see infra n.1, by the time the district court entered the preliminary injunction, A.C. had passed away. Thus, the injunction only applies to M.G. and C.V. In relevant part, the preliminary injunction provides as follows:
[HSD] shall, in good faith, take additional immediate and affirmative steps to arrange directly or through referral to appropriate agencies, organizations, or individuals, corrective treatment of in-home shift nursing services to [M.G. and C.V.] at the level already approved by [HSD], as required by the Medicaid Act, pending final judgment in this action or until further order of the Court. . . . Such steps may include, but are not limited to, negotiation with Managed Care Organization partners regarding possible solutions, making good faith attempts to attract qualified nurses from other states, increased monitoring of [M.G.‘s and C.V.‘s] weekly shortfalls, or any other administrative or other action which tends to and does actually increase the average number of private duty nursing hours provided to [M.G. and C.V.] each month without seriously compromising other programmatic goals.
Dist. Ct. Order at 44.
This court notes that the district court left open the door to further challenges by HSD as to the medical necessity of PDN hours set out in M.G.‘s and C.V.‘s EPSDT budgets. The district court ruled as follows:
[Based on the evidence presented,] there will be a rebuttable presumption of entitlement to the PDN hours specified in the EPSDT budget. Such presumption may be rebutted by good cause shown, including, for example, an affidavit by the care manager that PDN services are not medically necessary for a given child at the level represented by the EPSDT budget, an affidavit showing increased need in between regular periodic assessments, or other changed circumstances. In the event that one side seeks to rebut this presumptive entitlement, the other side will have the right to submit evidence in their favor in reply, including, for example, provider testimony. The Court reserves the right to update this determination at any time as the case proceeds.
Dist. Ct. Order at 32. M.G. and C.V. note that at the time of the filing of their response brief, HSD has made no such challenge.
[Scrase]: No. I believe that we‘re not up to the full allocation of private duty nurses. I think we could get up to the full allocation of hours. I think that‘s possible, but I understand, particularly, you know, we have one of the kids who is getting all home health right now and another that‘s getting all Private Duty Nursing. So it‘s not the position that they‘re not getting it, it‘s that we—you know, this is—we got the Complaint. My attorneys have been working on this, trying to establish the facts in the case. And when those are clearly established, we‘re happy to move forward to resolve them.
THE COURT: What do you need for them to be clearly established? I mean, the plaintiffs have laid it out; the MCOs, presumably, have this actual data for you. When you say you want it clearly established, what do you mean?
THE WITNESS: I did not—so the data we submitted to you, Your Honor—
THE COURT: Yeah.
THE WITNESS:—with the average number of hours for the two children we‘re talking about today, that data, I first saw on—which I think is persuasive and it convinced me that we need to do more for the kids to get them these Services . . . .
Dist. Ct. Order at 17-18.Bеcause Plaintiffs have not shown irreparable harm, the Court need not engage in a balancing test to determine whether the cost and disruption to HSD of trying to comply with an impermissibly vague injunction . . . that does not guarantee any actual services for Plaintiffs (since HSD cannot create nurses and paying nurses more to serve the named Plaintiffs takes away nursing services from someone else) is outweighed by the harm to Plaintiffs.
HSD’s Opening Br. at 23. It is ironic HSD is concerned about rationing care. The district court concluded M.G. and C.V. were likely to prevail on the merits of their claim that HSD was systematically “rationing care” to them by providing less than their allotted PDN hours. More to the point, however, these two additional sentences do not save HSD from waiver. HSD does not cite to the record for factual support for these assertions and, more importantly, does not take into account the district court’s likеlihood-of-success-on-the-merits and tailoring analyses. The district court, via these analyses, found HSD’s impossibility argument was factually faulty and ruled the injunction could not be read to obligate HSD to undertake any rationing or shuffling of current nursing resources. This court affirms those rulings. See supra Section IV.A.2.a; infra. Section IV.B.The injunction puts HSD in the position of considering rationing care to New Mexicans, reducing eligibility hours by regulation systemwide or pulling PDN services from other patients who are not subject to the requirements of the injunction. HSD does not want to do any of these things but cannot allow itself to be in contempt of the injunction.
Dist. Ct. Order at 41-42.The Court is unwilling to craft relief which may mandate removal of nurses from other equally urgent duty stations, such as other New Mexico children requiring PDN hours, nursing homes or intensive care units. To do so would be to pit equally situated New Mexican patients against each other on the basis of who filed first. The Court is also uneager to usurp [HSD‘s] role[] in determining the best use of [its] limited resources. The Court does not presume to tell [HSD] how to perform the day-to-day administration of the state Medicaid program; the Court is merely in the position of being obligated to enforce compliance with the federal Medicaid Act to ensure provision of services to the neediest beneficiaries of [HSD‘s] programs. The Court has therefore tailored [M.G.‘s and C.V.‘s] proposed preliminary injunction to allow [HSD] maximum discretion.
Planned Parenthood of Kansas, 882 F.3d at 1224 (quotations and citation omitted). Thus, having concluded M.G. and C.V. made a strong showing they are likely to prevail on their claim the Medicaid Act compels HSD to provide them with all PDN hours it has, itself, determined they are entitled to receive, and having found it is not impossible to do so, the district court started on firm ground in analyzing the public interest. It fortified its decision by finding the fiscal impact on New Mexico flowing from the injunction was, in the grand scheme, minimal and by tailoring the injunction to alleviate concerns about interference in HSD‘s administrative and technical expertise.Medicaid offers the States a bargain: Congress provides federal funds in exchange for the States’ agreement to spend them in accordance with congressionally imposed conditions. This means that the federal government will share a state‘s cost of providing medical care to residents who [cannot] afford it, but only if the state complies with the Medicaid Act‘s requirements, including federal criteria governing matters such as who receives care and what services are provided at what cost.
Id.a commendable attempt to give the [district] more freedom to act within the confines of the law. We recognize the difficulty in drafting an injunction that will allow the district maximum latitude in formulating policies, while at the same time making the injunction sufficiently specific. The degree of specificity necessary may be determined in light of the difficult subject matter.
39as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area . . . .