O. B., et al v. Felicia Norwood
Filing
Filed opinion of the court by Judge Posner. AFFIRMED. Diane P. Wood, Chief Judge; Richard A. Posner, Circuit Judge and Frank H. Easterbrook, Circuit Judge, concurring. [6785102-1] [6785102] [16-2049]
Case: 16-2049
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐2049
O.B. et al., individually and on behalf of a class,
Plaintiffs‐Appellees,
v.
FELICIA F. NORWOOD, in her official capacity as Director of
the Illinois Department of Healthcare and Family Services,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 10463 — Charles P. Kocoras, Judge.
____________________
ARGUED SEPTEMBER 7, 2016 — DECIDED SEPTEMBER 23, 2016
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
POSNER, Circuit Judge. This appeal by the Illinois Depart‐
ment 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 re‐
quires us to interpret provisions of the Medicaid Act, with
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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 sim‐
plify 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), re‐
quires the state to “provide for … arranging for (directly or
through referral to appropriate agencies, organizations, or
individuals) corrective treatment the need for which is dis‐
closed by such child health screening services.” (Corrective
“treatment” is “T” in the acronym “EPSDT.”) Another pro‐
vision, 42 U.S.C. § 1396a(a)(8), requires that medical assis‐
tance “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 ab‐
breviate 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 de‐
termined 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, ap‐
proved by HFS for home nursing, and diagnosed with Down
Syndrome, lung disease, and cardiac abnormalities. Ventila‐
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tor‐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 nourish‐
ment.
At the age of nine months he’d been hospitalized in Peo‐
ria for respiratory failure, and while he was there HFS ap‐
proved 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 ade‐
quate 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, attempt‐
ing to arrange for), with the requisite reasonable prompt‐
ness, 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 par‐
ents or guardians. And convinced that there is a high likeli‐
hood 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
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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 simi‐
larly 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 in‐
junction is too vague to be enforceable, the order granting
the injunction gave reasons for it, stated its terms, and de‐
scribed 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 de‐
nied 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 num‐
ber 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
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[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 par‐
ents 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 mem‐
bers of the class are poor. For with rare exceptions a child is
eligible for Medicaid in Illinois only if his or her family in‐
come exceeds the federal poverty line by no more than 42
percent. See Center for Medicare & Medicaid Services, Medi‐
caid & CHIP in Illinois, https://www.medicaid.gov/medicaid‐
chip‐program‐information/by‐state/stateprofile.html?state=il
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, https://aspe.hhs.gov/poverty‐guide
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 cap‐
ita. See Illinois Center for Nursing, “Registered Nurse Work‐
force Survey 2014” 17–18 (December 2014), http://
nursing.illinois.gov/PDF/2015‐05‐04_icn_rnws2014_report.p
df; “Licensed Practical Nurse Workforce Survey Report
2015” 16–17 (March 2016), http://nursing.illinois.gov/PDF/
2016‐03‐09_ICN_LPN_2015_Survey_Report_Final.pdf.
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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
http://dscc.uic.edu/, 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 ade‐
quate 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 deter‐
mine, 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
doesnʹt cover such service, few hospitals may be able to help
parents find home nursing for their children. See American
Academy of Pediatrics, “Policy Statement: Financing of Pe‐
diatric Home Health Care,” 118 Pediatrics 834 (2006), http://
pediatrics.aappublications.org/content/118/2/834.long.
HFS doesn’t argue that home nursing is inappropriate for
O.B. or any other member of the class; it couldn’t argue that,
because it decided it was appropriate for him (and the oth‐
ers). As far as we can glean from the sparse record, HFS has
given up on searching (if it ever did) for nurses for children
whom the agency deems entitled to home nursing. It’s left
the search to parents many or even most of whom may not
be competent to conduct a timely and effective search for
multiple nurses (no nurse is going to work 18 hours a day,
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day in and day out). If this is true, as Judge Kocoras found,
HFS has violated the Medicaid Act.
The state argues that “if nurses are not able to fully staff
[the plaintiffs’] hours [presumably the reference is to the
hours that HFS has agreed to pay for], Plaintiffs can receive
care elsewhere at the State’s expense.” The “elsewhere”
probably means hospitals. But it’s the state that decided that
home nursing was right for the plaintiffs’ children. So far as
appears, the only alternative would be the indefinite con‐
finement of O.B. and the other class members in hospitals.
The state has yet to provide any evidence that alternatives to
home nursing, such as hospitalization, are adequate to the
children’s needs. It argues that HFS “simply cannot guaran‐
tee that enough nurses will be available to care for Plaintiffs
in their homes,” which is doubtless true. But the plaintiffs
aren’t asking for a guarantee; they’re asking for the nurses,
and there is no indication that HFS will (unless compelled by
the courts) lift a finger to find nurses to provide home nurs‐
ing for children in O.B.’s situation. Indeed HFS denies hav‐
ing any obligation to do so. It argues that the preliminary
injunction “improperly asserts that [HFS] should take af‐
firmative steps to provide in‐home nursing care, without
identifying those steps or acknowledging the many steps al‐
ready taken, and includes erroneous assumptions about
what the Medicaid Act requires.” But surely HFS knows
what those “affirmative steps” are—that is implicit in its
claim to have taken many steps already. In asking the plain‐
tiffs to tell it what those steps are, the state is asking the
plaintiffs to substitute themselves for HFS. And the prelimi‐
nary injunction should be understood simply as a first cut:
as insisting that the state do something rather than nothing to
provide in‐home nursing care for these children. The ade‐
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quacy of what it does can then be evaluated, perhaps leading
to modification or even abrogation of the preliminary injunc‐
tion.
The state’s reference to “many steps already taken” is un‐
substantiated in its briefs, and its reference to “erroneous as‐
sumptions” is a misunderstanding of the law, as we’ll show.
But we want first to note that the state has not told us what
“steps” it has taken to provide in‐home nursing care for
children with the afflictions involved in this case. Has it
made active efforts to recruit nurses for such children? There
is no indication that it has, and certainly no evidence. It
hasn’t told us how many nurses (if any) it has ever recruited
to provide home nursing care for afflicted children, or even
how many nurses there are in Illinois (163,000, according to
The Henry J. Kaiser Family Foundation, State Health Facts,
“Total Number of Professionally Active Nurses,” April 2016,
http://kff.org/other/state‐indicator/total‐registered‐nurses/?
currentTimeframe=0&sortModel=%7B%22colId%22:%22Loca
tion%22,%22sort%22:%22asc%22%7D). Nor are we told how
many nurses in other states might be recruited at reasonable
cost to provide care for the children of the plaintiffs and oth‐
er class members, should it be difficult to recruit Illinois
nurses.
This is not to suggest that the district court could order
nurses to be removed from positions caring for other people
and transferred to the homes of the members of the plaintiff
class. The state argues that there is a nurse shortage in Illi‐
nois, and implicitly that there is nothing the state can do
about it; and this may be true. (And if the shortage is of
nurses willing to work at the reimbursement rates set by
HFS, we could not order the agency to eliminate the short‐
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age by raising those rates. Armstrong v. Exceptional Child Cen‐
ter, 135 S. Ct. 1378, 1385 (2015). But the nurse‐shortage ar‐
gument was not made in the district court until after the pre‐
liminary injunction was issued, and while repeated in the
state’s briefs in this court no particulars are offered and no
supporting evidence cited. The reason appears to be the
state’s “erroneous assumptions” argument, which is that all
that Medicaid requires of a participating state is payment for
medical services, not the services themselves; that while the
statute requires the state and hence HFS to “mak[e] medical
assistance available” to the plaintiffs, 42 U.S.C.
§ 1396a(a)(10)(A), “medical assistance” just means either the
provision of “the care and services” needed by the patient or
the “payment of part or all of [their] cost.” § 1396d(a). In
other words, the state argues that it gets to choose whether
to pay for services or to provide services, though of course if
it fails to provide services and no one fills the gap, it won’t
have to pay either.
But in giving two meanings to “medical assistance” the
statute need not be read to authorize HFS to decide which
meaning shall govern in each case. In fact the statute can’t be
read so, because, for example, it states that a “State plan for
medical assistance must provide for … arranging for (directly
or through referral to appropriate agencies, organizations, or
individuals) corrective treatment the need for which is dis‐
closed by such child health screening services.”
§ 1396a(a)(43)(C) (emphases added). See, e.g., Katie A. ex rel.
Ludin v. L.A. County, 481 F.3d 1150, 1158–59 (9th Cir. 2007),
and cases cited there; see also Centers for Medicare and
Medicaid Services, State Medicaid Manual, chs. 4 and 5,
https://www.cms.gov/Regulations‐and‐Guidance/Guidance
/Manuals/Paper‐Based‐Manuals‐Items/CMS021927.html?DL
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Page=1&DLEntries=10&DLSort=0&DLSortDir=ascending).
And remember that the Medicaid Act requires the state to
provide the required services with reasonable promptness.
In arguing that all the Act requires of HFS is financial
contribution, HFS relies on Bruggeman ex rel. Bruggeman v.
Blagojevich, 324 F.3d 906, 910 (7th Cir. 2003), which called
“Medicaid … a payment scheme, not a scheme for state‐
provided medical assistance.” At that time the statute de‐
fined “medical assistance” only as “payment of part or all of
the costs of” enumerated care. 42 U.S.C. § 1396d(a) (2009).
But Congress amended this definition by the Patient Protec‐
tion and Affordable Care Act in response to Bruggeman and
the decisions that followed it. And as explained in A.H.R. v.
Washington State Health Care Authority, 2016 WL 98513, at *12
(W.D. Wash. Jan. 7, 2016) (internal quotation marks omitted),
by doing this “Congress intended to clarify that where the
Medicaid Act refers to the provision of services, a participat‐
ing State is required to provide (or ensure the provision of)
services, not merely to pay for them.”
We note a final oddity in HFS’s appeal. The state was
willing to pay $19,178 a month for home nursing services for
O.B. (at the estimated requirement of 18 hours of nursing
service per day, equal to 540 hours per month, the average
hourly cost would be $35.51). But O.B.’s hospitalization cost
the state roughly $78,000 a month—four times the expense of
home nursing. And surely HFS could scour the state for
nurses willing to work for $35.51 an hour (not a bad wage—
it equates to an annual wage of $71,020 a year for a nurse
who works 2000 hours a year) more rapidly and efficiently
and productively than the parents of these unfortunate chil‐
dren. HFS does not remark this anomaly in its briefs.
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The district judge’s grant of the preliminary injunction is
AFFIRMED.
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EASTERBROOK, Circuit Judge, concurring. Although I join
the court’s opinion, I remain concerned by the language of the
district court’s injunction.
The injunction requires Director Norwood to “take imme‐
diate and affirmative steps to arrange directly or through re‐
ferral to appropriate agencies, organizations, or individuals,
corrective treatment of in‐home shift nursing services to
Plaintiffs and such similarly situated Medicaid‐eligible chil‐
dren 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 in‐home shift nursing services at the level ap‐
proved by Defendant, as required by the Medicaid Act.”
What steps, in particular? The injunction does not say. Yet
Fed. R. Civ. P. 65(d)(1)(C) tells us that an injunction must “de‐
scribe in reasonable detail … the act or acts restrained or re‐
quired.” This injunction does not supply any detail. The Su‐
preme Court has reversed injunctions that read like this one.
See, e.g., Schmidt v. Lessard, 414 U.S. 473 (1974).
Some of the district court’s opinion suggests that the judge
thought particulars unnecessary because the goal is to pro‐
duce a defined result: children get the nursing services au‐
thorized for them. Since the Department of Healthcare and
Family Services knows the desired end, the judge implied, it
must know the means to produce that end.
That is a non‐sequitur. If as the Department asserts there
is a shortage of nurses, then the end cannot be achieved with‐
out taking medical care away from other deserving persons,
and the district judge did not suggest that rationing of nurs‐
ing care is either required by the Medicaid Act or an appro‐
priate use of the court’s equitable powers. Raising reimburse‐
ment rates might induce nurses to supply additional services,
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but Armstrong v. Exceptional Child Center, 135 S. Ct. 1378 (2015),
holds that judges cannot change reimbursement rates in pri‐
vate suits. Yet if the judge cannot command Illinois to pay
more money, it may not be possible to achieve the end that the
judge thought required by the statute.
The injunction in a case of this kind should be designed to
specify those steps (other than raising promised rates of pay‐
ment) that the Department must take in order to find nurses
for the plaintiff class—if, as class counsel believe, there are
nurses to be found. The principal problem with drafting such
an injunction is one my colleagues mention: we do not know
what will work. We shouldn’t expect class counsel to have this
knowledge; lawyers are not professional healthcare adminis‐
trators. Nor should we expect the judge to know what the De‐
partment ought to do. The Department itself may not know
what will suffice; it is so committed to the idea that all it need
do is offer to pay for services that it may never have tried any
other approach.
Perhaps a declaratory judgment would have been a better
starting point, but the Department is not complaining about
the use of an injunction rather than a declaratory judgment.
All a district court can do in a situation such as this is require
the defendant to start trying. Rule 65(d) requires “reasonable”
detail, not more detail than is possible under the circum‐
stances. Last May the Department sent the judge a letter with
a list of some options it could pursue. As long as the Depart‐
ment starts working through this list, or takes some other step
that seems to have a prospect of success, it has complied with
the injunction. It would be out of the question for the district
court to hold the Department in contempt for trying one or
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more approaches that turn out poorly. As long as the injunc‐
tion is detail‐free, the most the judge can demand is that the
Department do something—and if the first one or two some‐
things fails, try something else.
The district judge should keep tabs on what is happening
and adjust the injunction as appropriate. If the Department
turns out to be right about the supply of nurses, the judge also
must ensure that the interests of other persons, competing
with the class for scarce resources, are adequately protected.
Not unless the Department defies a command far more spe‐
cific than the one issued so far would be it permissible (or sen‐
sible) to consider taking punitive steps.
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