Flack, Cody et al v. Wisconsin Department of Health Services et al

Filing 248

FINAL ORDER on Permanent Injunctive and Equitable Relief. Signed by District Judge William M. Conley on 10/31/2019. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CODY FLACK, et al.,
Individually and on behalf of all others similarly situated,

v.

Plaintiffs,

ORDER

WISCONSIN DEPARTMENT OF HEALTH
SERVICES, et al.,

18-cv-309-wmc

Defendants.
ORDER
IT IS ORDERED that:
1. For the reasons stated in the court’s August 16, 2019, Opinion and Order (dkt.
#217), Wis. Admin. Code §§ DHS 107.03(23)–(24), 107.10(4)(p) (“the
Challenged Exclusion”), is hereby declared null and void under: Section 1557
of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116; the
Medicaid Act’s availability requirement, 42 U.S.C. § 1396a(a)(10)(A); the
Medicaid Act’s comparability requirement, 42 U.S.C. § 1396a(a)(10)(B); and
the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.
2. Defendants are also permanently enjoined from enforcing the Challenged
Exclusion.
3. Within 180 days of this order, defendants shall publish a coverage policy
regarding services previously excluded under the Challenged Exclusion.
4. Within 90 days of this order, defendants shall:
a. issue a ForwardHealth Update that includes a notice of this order
permanently enjoining enforcement of the Challenged Exclusion and
explains that current Wisconsin Medicaid beneficiaries may be eligible for
services that were previously excluded from coverage under the Challenged
Exclusion, and previously may have been denied;
b. provide notice to the social service providers on Appendix A of plaintiffs’
amended proposed order (Pls.’ Am. Proposed Order, App. A (dkt. #237-1)
12) that this court has permanently enjoined enforcement of the

Challenged Exclusion and providing that current Wisconsin Medicaid
beneficiaries may be eligible for coverage for services that were previously
excluded from coverage under the Challenged Exclusion, and previously
may have been denied;
c. provide notice to all Wisconsin Medicaid Health Maintenance
Organizations (“the HMOs”) that this court has permanently enjoined
enforcement of the Challenged Exclusion and that individual authorization
requests for services previously excluded from coverage under the
Challenged Exclusion are subject to the Wisconsin Department of Health
Services’ standard review, prior authorization procedures, and
determinations for medical necessity, and encourage the HMOs to consider
notifying individuals previously denied coverage for services because of the
Challenged Exclusion that they may be eligible to request coverage for a
service or services previously found to be excluded from coverage; and
d. consider notifying fee-for-service beneficiaries previously denied coverage
because of the Challenged Exclusion that they may be eligible to request
coverage for a service or services previously found to be excluded from
coverage.
5. The parties’ joint stipulation of partial dismissal (dkt. #247) is accepted.
Dated this 31st day of October, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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