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M.G. v. Armijo.

No. 23-2093. 9/17/2024. D.N.M. Judge Murphy. Medicaid—Medically Fragile Children—Provision of Private Duty Nursing Hours—Preliminary Injunction—Standing.

September 17, 2024


Plaintiffs are profoundly ill children with life-threatening conditions, including difficulty breathing, frequent seizures, and the inability to feed themselves or go to the bathroom unassisted. They are “medically fragile children” under New Mexico’s Medicaid program. Plaintiffs sued the New Mexico Human Services Department (HSD), asserting that it consistently fails to provide them with the number of private duty nursing (PDN) hours to which New Mexico has determined they are entitled. Plaintiffs sought a preliminary injunction to require HSD to take good-faith steps to provide them with their entitled level of PDN hours pending the resolution of their suit. The district court granted their requested injunction.

On interlocutory appeal, HSN argued that plaintiffs lack standing because they failed to show that a favorable judicial decision will redress their injuries. HSD maintained that a nationwide nursing shortage makes it impossible to provide all of the allotted PDN hours that plaintiffs are entitled to, and the record does not show that a mandated rate increase would result in the provision of additional PDN hours. Here, plaintiffs sought multiple remedies, and in granting injunctive relief, the district court ordered HSD to take other good-faith efforts to increase the number of PDN hours to plaintiffs; it did not order HSD to make a rate-based adjustment. And the district court specifically found, with record support, that it was not impossible to increase the number of PDN hours provided to plaintiffs. Accordingly, plaintiffs satisfied their obligation to demonstrate redressability and thus have standing to seek injunctive relief.

On the merits, HSN also argued that the district court erred in concluding that plaintiffs are entitled to a preliminary injunction. Plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm without preliminary relief, (3) the balance of equities is in their favor, and (4) an injunction is in the public interest. First, HSN asserted that plaintiffs failed to establish a likelihood of success on the merits of their Medicaid Act claims. The Medicaid Act requires that a state Medicaid plan furnish PDN services to people, like plaintiffs, who live in their home communities. New Mexico participates in the Medicaid program, with HSD serving as its designated agency. Here, HSN failed to show that the district court erred in finding that each child had proven they were entitled to the number of PDN hours set out in the budgets developed by New Mexico or that it was impossible to provide the full allotment of hours HSN had already determined they were entitled to receive. Further, the district court did not err in concluding that by taking the steps identified in the preliminary injunction, HSN could possibly provide additional PDN hours to plaintiffs. Accordingly, the district court acted within its discretion in determining plaintiffs are substantially likely to prevail on the merits of their Medicaid Act claim and in granting injunctive relief.

Second, HSN further argued that plaintiff M.G. was receiving all the PDN hours to which she claims she was entitled when the preliminary injunction was entered, so she failed to establish irreparable injury. However, the record supports the district court’s finding that plaintiffs M.G. and C.V. have consistently not received the PDN hours to which they are entitled and that without preliminary injunctive relief they will experience the same treatment while litigation is pending. Further, HSD did not challenge the district court’s finding, which is supported by the record, that a continued shortage of allotted PDN hours will very likely subject plaintiffs to medical harm. Accordingly, the district court’s decision to grant interim injunctive relief is supported.

Third, HSD waived any argument on the balance of equites by failing to adequately brief the issue. And the record supports the district court’s ruling that the balance of harms heavily favored issuance of the preliminary injunction.

Fourth, HSD contended that because of a nursing shortage, granting the requested preliminary injunction could limit services to other Medicaid beneficiaries, so it is contrary to the public interest. However, HSD did not adequately raise this issue in its opening brief, so it waived the argument. Notwithstanding the waiver, the district court’s order does not require HSD to shift resources away from other Medicaid beneficiaries in an effort to provide extra hours to plaintiffs.

HSD further asserted that the district court’s preliminary injunction is impermissibly vague in that it does not adequately inform HSD of its obligations. Contrary to HSD’s assertion, the district court’s preliminary injunction sets out specific steps that HSD can take in good faith to provide additional PDN hours to plaintiffs.

Lastly, HSN argued that the US Supreme Court’s decision in Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320 (2015), forecloses plaintiffs’ request for injunctive relief. In Armstrong, habilitation providers claimed that state officials violated 42 USC § 1396a(a)(30)(A) by reimbursing them at rates lower than those allowed by § 1396a(a)(30)(A). Therefore, the district court did not err in concluding that Armstrong does not apply here because plaintiffs were not proceeding pursuant to § 1396a(a)(30)(A) and were not asking the court to undertake a review of HSD’s reimbursement rates.

The preliminary injunction was affirmed.

The full opinion is available at https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010111113524.pdf.

 

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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