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O.B. v. Norwood

United States Court of Appeals, Seventh Circuit

September 23, 2016

O.B. et al., individually and on behalf of a class, Plaintiffs-Appellees,
Felicia F. Norwood, in her official capacity as Director of the Illinois Department of Healthcare and Family Services, Defendant-Appellant.

          Argued September 7, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 10463 - Charles P. Kocoras, Judge.

          Before WOOD, Chief Judge, and POSNER and Easterbrook, Circuit Judges.

          POSNER, Circuit Judge.

         This appeal by the Illinois Department of Healthcare and Family Services ("HFS") (Norwood, the nominal defendant-appellant, is sued only in her official capacity as the department's director) challenges Judge Kocoras's grant of a preliminary injunction. The appeal requires us to interpret provisions of the Medicaid Act, with which Illinois as a participant in Medicaid is required to comply; HFS is the agency charged with carrying out the state's duty of compliance.

         The Act defines "medical assistance" as including "early and periodic screening, diagnostic, and treatment services [EPSDT] ... for individuals ... under the age of 21" (to simplify we'll refer to all such persons as "children"), 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), which we'll abbreviate as "home nursing"; 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 HFS, which pays the nurses at rates determined by the agency.

         The children whom HFS approves for home nursing tend to be in very poor health; we can take O.B., the first named plaintiff, as representative and so the only class member we need discuss. He is two years old, enrolled in Medicaid, approved by HFS for home nursing, and diagnosed with Down Syndrome, lung disease, and cardiac abnormalities. Ventilator-dependent for breathing, he also cannot digest normally or take any of the oral nutrition supplements designed to help people who have difficulty digesting to get nourishment.

         At the age of nine months he'd been hospitalized in Peoria for respiratory failure, and while he was there HFS approved a $19, 718 monthly budget to pay nurses for up to 18 hours a day to take care of him at home. But when he was ready to be sent home to receive the home-nursing care that had been prescribed for him, his parents had first to arrange for that care. For while HFS had approved and agreed to pay for it up to the budgetary limit specified, it had left it to the parents to find the nurses, which they couldn't do before they knew when their son would be ready to be released by the hospital -and it wasn't safe for him to leave the hospital until his parents hired the nurses needed to take care of him at home. It took the parents almost a year to obtain an adequate home-nursing staff, and only then was O.B. sent home.

         The suit charges HFS with violating the Medicaid statute by failing to arrange for (or even, so far as appears, attempting to arrange for), with the requisite reasonable promptness, for home nursing to which it acknowledges O.B. and the other class members are entitled by the Medicaid Act.

         The district judge certified a class consisting of Illinois children who have been approved for home nursing but whose parents or guardians haven't been able to hire nurses for the hours of nursing to which the state entitles the parents or guardians. And convinced that there is a high likelihood of the plaintiffs' succeeding at trial in proving HFS's statutory violation, the judge issued a preliminary injunction (which is the ruling that the state is appealing). The essential provision of the injunction requires defendant Norwood (which is to say HFS) to "take 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 Plaintiffs and such similarly situated Medicaid-eligible children under the age of 21 in the State of Illinois who also have been approved for in-home shift nursing services, but who are not receiving [those] services at the level approved by [HFS], as required by the Medicaid Act." Although the state claims that the injunction is too vague to be enforceable, the order granting the injunction gave reasons for it, stated its terms, and described in "reasonable detail" the "acts ... required" by the state, and thus complied with FRCP 65(d)(1) (also (d)(2), but that is not contested by the state). All it tells the state to do is take prompt measures to obtain home nursing for the class members, and that is a reasonably clear directive.

         Remember that although O.B. had been approved for home nursing for which HFS had agreed to pay, he was denied it for almost a year because HFS, so far as it appears, made no attempt to find nurses for him. That left the search to be conducted by parents who apparently lacked the knowledge or experience required to hire the needed number of nurses without a painfully protracted search.

         The plaintiffs seek a permanent injunction, and a trial will be required to determine whether they're entitled to it. But Judge Kocoras was on solid ground in predicting, as the basis for granting the preliminary injunction sought by the plaintiffs, that they are likely to prevail at trial. Certainly the defenses thus far advanced by HFS are weak. The primary defense is that nothing in the Medicaid statute "required [HFS] to ensure that Plaintiffs would receive medical care from nurses in their homes." But it was HFS that decided that home nursing was the proper treatment for O.B., the other named plaintiffs, and the other members of the class.

         Apparently it's not easy to find nurses for children with health problems as serious as those of O.B. and the other members of the class, for HFS does not criticize O.B.'s parents for the time it took them to find nurses for their child. Adding to the difficulty is the fact that most, maybe all, of the parents of the plaintiff children and of the other members of the class are poor. For with rare exceptions a child is eligible for Medicaid in Illinois only if his or her family income exceeds the federal poverty line by no more than 42 percent. See Center for Medicare & Medicaid Services, Medicaid & CHIP in Illinois, linois (visited Sept. 12, 2016, as were the other websites cited in this opinion). For a household of four persons the ceiling is $34, 506-a very modest income for a household of that size. See U.S. Dep't of Health & Human Services, Poverty Guidelines 01/25/2016, lines. And some, maybe many-we're not told how many- members of the class live in southern Illinois, which is the poorest region in the state and has the fewest nurses per capita. See Illinois Center for Nursing, "Registered Nurse Workforce Survey 2014" 17-18 (December 2014), http:// df; "Licensed Practical Nurse Workforce Survey Report 2015" 16-17 (March 2016), 2016-03-09_ICN_LPN_2015_Survey_Report_Final.pdf.

          One might think that hospital personnel would be able to advise parents of patients such as O.B. where to find nurses able and willing to provide the required care for the children at HFS's payment ceiling. But there is no indication of this. HFS delegates the coordination of the care necessary for children like O.B. to the Division of Specialized Care for Children (DSCC) of the University of Illinois at Chicago, see, which "help[s] children and youth with special healthcare needs connect to services and resources." But there is no indication that when as in O.B.'s case adequate nursing staff is not within the easy reach of the parents of children entitled to home nursing, HFS, whether by itself or in conjunction with UIC, assists the parents in their search. As far as the record shows or we are able to determine, the hospitals from which children like O.B. are to be sent home to receive home nursing do not participate in the search for nurses. And because many nursing agencies do not offer pediatric home nursing and most private insurance doesn't cover such service, ...

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