A. v. Phillips ( 2023 )

Case: 21-30580 Document: 00516617806 Page: 1 Date Filed: 01/20/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 20, 2023
No. 21-30580 Lyle W. Cayce
Clerk
A. A., by and through his mother, P.A.; B. B., by and
through her mother, P.B.; C. C., by and through her
mother, P.C.; D. D., by and through his mother, P.D.; E.
E., by and through his mother, P.E.; F. F., by and
through her mother, P.F.,
Plaintiffs—Appellees,
versus
Courtney N. Phillips, Dr., in her official capacity as
the Secretary of the Louisiana Department of Health;
Louisiana Department of Health,
Defendants—Appellants.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-770
Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-30580 Document: 00516617806 Page: 2 Date Filed: 01/20/2023
No. 21-30580
Medicaid-eligible children living in Louisiana allege that the Louisiana
Department of Health (the “Department”) fails to provide them and
similarly situated children with intensive home- and community-based
services (“IHCBS”) needed to treat their diagnosed mental health or
behavioral health conditions, as required by Medicaid’s Early and Periodic
Screening, Diagnostic, and Treatment (“EPSDT”) mandate. Plaintiffs on
behalf of themselves and a putative class of similarly situated Medicaid-
eligible children sued the Department and its Secretary for violating
Plaintiffs’ rights to necessary treatment under EPSDT and to treatment in
the least restrictive setting under the ADA and Rehabilitation Act. The
district court certified the class, which Defendants appeal. We VACATE
the class certification and REMAND the case for further proceedings
consistent with this opinion.
I.
Plaintiffs are six Medicaid-eligible children residing across Louisiana
who have been diagnosed with mental health or behavioral health conditions.
Plaintiffs allege that the Department fails to provide Plaintiffs and similarly
situated children across Louisiana with the IHCBS needed to treat their
conditions, as required by Medicaid’s EPSDT mandate. Under the EPSDT
mandate, Medicaid-administering agencies like the Department must
provide or arrange for all “necessary health care, diagnostic services,
treatment, and other measures described in subsection (a),” which
encompasses all services identified as medically necessary by a health
professional. 1
1
42 U.S.C. §§ 136d(a)(13), 1396d(r)(5). Congress amended the EPSDT provision
in 1989 to impose “a mandatory duty upon participating states to provide EPSDT-eligible
children with all . . . treatments and other measures described in § 1396d(a) of the Act,
2
Case: 21-30580 Document: 00516617806 Page: 3 Date Filed: 01/20/2023
No. 21-30580
Plaintiffs’ core allegation is that the Department maintains a policy of
not providing IHCBS, which the district court defined as “intensive care
coordination, crisis services, and intensive behavioral services and supports
that are necessary to correct or ameliorate [Plaintiffs’] mental illnesses or
conditions.” Plaintiffs allege that the Department instead only provides basic
mental health interventions such as medication management and infrequent
counseling. As a result, Medicaid-eligible children requiring intensive mental
health care are untreated and, when they inevitably experience mental health
crises, are forced to seek emergency care or psychiatric institutionalization.
In 2019, Plaintiffs, on behalf of themselves and a putative class of
similarly situated Medicaid-eligible children in Louisiana, sued the
Department and its Secretary, Dr. Courtney Phillips, in her official capacity,
(collectively “LDH”) contending that LDH’s failure to provide IHCBS
violates their right to medically necessary treatment under Title XIX of the
Social Security Act (the “Medicaid Act”) 2 and violates their right to
treatment in the least restrictive setting under Title II of the ADA 3 and the
Rehabilitation Act. 4 The district court certified a class under Rules 23(a) and
(b)(2) consisting of:
All Medicaid-eligible youth under the age of 21 in the State of
Louisiana (1) who have been diagnosed with a mental health or
behavioral disorder, not attributable to an intellectual or
developmental disability, and (2) for whom a licensed
practitioner of the healing arts has recommended intensive
when necessary to correct or ameliorate health problems discovered by screening . . . .”
S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 589–90 (5th Cir. 2004) (emphasis added).
2
42 U.S.C. § 1396(a)(13).
3
42 U.S.C. § 12132, et seq.
4
29 U.S.C. § 701, et. seq.
3
Case: 21-30580 Document: 00516617806 Page: 4 Date Filed: 01/20/2023
No. 21-30580
home- and community- based services to correct or ameliorate
their disorders.
LDH appeals the class certification, arguing that the class is not
ascertainable, the district court abused its discretion in certifying the class,
and the district court failed to conduct a rigorous analysis.
II.
We review a district court’s decision to certify a class for abuse of
discretion. 5 A district court “maintains great discretion in certifying and
managing a class action.” 6 We will reverse a class certification if a district
court “abuses its discretion when its ruling is based on an erroneous view of
the law or a clearly erroneous assessment of the evidence.” 7 “Implicit in this
deferential standard is a recognition of the essentially factual basis of the
certification inquiry and of the district court’s inherent power to manage and
control pending litigation.” 8 “Whether the district court applied the correct
legal standard in reaching its decision on class certification, however, is a legal
question that we review de novo.” 9
5
M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 836 (5th Cir. 2012).
6
Berger v. Compaq Comput. Corp., 257 F.3d 475, 478 (5th Cir. 2001) (quoting Mullen
v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)).
7
Yates v. Collier, 868 F.3d 354, 359 (5th Cir. 2017) (quoting Bocanegra v. Vicmar
Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).
8
Stukenberg, 675 F.3d at 836 (quoting Maldonado v. Ochsner Clinic Found., 493 F.3d
521, 523 (5th Cir. 2007)).
9
Berger, 257 F.3d at 479 (quoting Allison v. Citgo Petroleum Corp., 151 F.2d 402, 408
(5th Cir. 1998)).
4
Case: 21-30580 Document: 00516617806 Page: 5 Date Filed: 01/20/2023
No. 21-30580
III.
For class certification to succeed under Rule 23, the class “must be
adequately defined and clearly ascertainable.” 10 To be ascertainable, the
class must be susceptible to a precise definition to properly identify “those
entitled to relief, those bound by the judgment, and those entitled to
notice.” 11 The district court “need not know the identity of each class
member before certification[,]” but it needs to “be able to identify class
members at some stage of the proceeding.” 12 “The order defining the class
should avoid subjective standards (e.g., a plaintiff’s state of mind) or terms
that depend on resolution of the merits (e.g., persons who were discriminated
against).” 13 “There can be no class action if the proposed class is
‘amorphous’ or ‘imprecise.’” 14 “[T]he possibility that some [claimants]
may fail to prevail on their individual claims will not defeat class
10
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); see also John v. Nat'l
Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The existence of an ascertainable
class of persons to be represented by the proposed class representative is an implied
prerequisite of Federal Rule of Civil Procedure 23.” (footnote omitted)).
11
In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004) (quoting 5 JAMES
W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 23.21[6] (Matthew Bender 3d ed.
1997)).
12
Seeligson v. Devon Energy Prod. Co., L.P., 753 F. App’x 225, 230 (5th Cir. 2018)
(unpublished per curiam) (quoting Frey v. First Nat’l Bank Sw., 602 F. App’x 164, 168 (5th
Cir. 2015) (unpublished per curiam)). The ascertainability standard is less burdensome in
this circuit than in others, which require that the class be readily ascertainable at
certification. See id. at 230 (discussing the Third Circuit’s requirements).
13
Plaza 22, LLC v. Waste Mgmt. of La., LLC, No. CIV.A. 13-618-SDD, 2015 WL
1120320, at *3 (M.D. La. Mar. 12, 2015) (quoting MANUAL FOR COMPLEX LITIGATION §
21.222 at *1 (4th ed. 2004)).
14
John, 501 F.3d at 445 n.3 (quoting 5 JAMES W. MOORE ET AL., MOORE’S
FEDERAL PRACTICE § 23.21[1] (Matthew Bender 3d ed. 1997)).
5
Case: 21-30580 Document: 00516617806 Page: 6 Date Filed: 01/20/2023
No. 21-30580
membership’ on the basis of the ascertainability requirement.” 15 Ultimately,
“the touchstone of ascertainability is whether the class is ‘sufficiently
definite so that it is administratively feasible for the court to determine
whether a particular individual is a member.’” 16
LDH argues that the class definition is not ascertainable because it is
not clear which services are included in the term “IHCBS” and which are
not. We agree. The district court defined IHCBS as “intensive care
coordination, crisis services, and intensive behavioral services and supports
that are necessary to correct or ameliorate [class members’] mental illness or
conditions.” These three terms are not defined, nor are they specific, billable
behavioral health services ordered by a doctor or licensed mental health
professional. Billable specialized behavioral health services include things
like psychosocial rehabilitation or community psychiatric support and
treatment. Here, it is not clear which care coordination services and
behavioral services are “intensive,” falling within the IHCBS definition, and
which are not. Knowing which services IHCBS encompasses is essential to
evaluating whether an individual is a class member.
The district court found that the class definition was ascertainable in
large part because IHCBS is the “functional equivalent” to specialized
behavioral health (“SBH”) services that Louisiana state law mandates. 17
15
In re Deepwater Horizon, 739 F.3d 790, 821 (5th Cir. 2014) (quoting In re
Rodriguez, 695 F.3d 360, 370 (5th Cir. 2012)); see also McKeage v. TMBC, LLC, 847 F.3d
992, 999 (8th Cir. 2017) (holding that manual review does not preclude ascertainability).
16
Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (quoting 7A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER ET AL., FEDERAL PRACTICE &
PROCEDURE § 1760 (3d ed. 1998)).
17
See La. Admin. Code tit. 50, Pt. XXXIII, § 2101 (2021) (“The specialized
behavioral health services rendered to children with emotional or behavioral disorders are
6
Case: 21-30580 Document: 00516617806 Page: 7 Date Filed: 01/20/2023
No. 21-30580
Because the Louisiana Legislative Auditor reports on SBH services available
to Louisiana’s Medicaid recipients and LDH has responded to those
findings, the district court reasoned that LDH must understand what
services are included in SBH, and thus understand what services are included
in its “functional[ly] equivalent” IHCBS. But “functional equivalent” does
not mean that SBH services are identical to IHCBS. For example, while some
SBH services, like inpatient care and long-term residential care, 18 are
presumably not included in IHCBS, it is not clear if other SBH services, like
group therapy, functional family therapy, and homebuilders services, 19 are
encompassed in IHCBS. Accordingly, we are not convinced that LDH’s use
of the term SBH services indicates an understanding of what services are
included in IHCBS. 20
those services necessary to reduce the disability resulting from the illness and to restore the
individual to his/her best possible functioning level in the community.”).
18
LOUISIANA LEGISLATIVE AUDITOR, ACCESS TO COMPREHENSIVE AND
APPROPRIATE SPECIALIZED BEHAVIORAL HEALTH SERVICES IN LOUISIANA, LA. DEP’T
HEALTH 1 (Feb. 14, 2018),
https://www.lla.la.gov/PublicReports.nsf/B99F834BF8F4AB908625823400758F9B/$F
ILE/000179B4.pdf.
19
Id. at 6, 14. Functional family therapy “[t]argets youth primarily demonstrating
externalizing behaviors or at risk for developing more severe behaviors which affect family
functioning.” Id. at 6. Homebuilders services “[t]argets families with children at imminent
risk of out-of-home placement or being reunified from placement.” Id. It is not clear to us
whether these services would be considered “intensive care coordination, crisis services,
and intensive behavioral services and supports that are necessary to correct or ameliorate
[class members’] mental illness or conditions.”
20
We recognize that an Illinois district court approved a class with an identical
definition. N.B. v. Hamos, 26 F. Supp. 3d 756, 762 (N.D. Ill. 2014). However, the defendant
in that case did not object to the use of the term “IHCBS.”
7
Case: 21-30580 Document: 00516617806 Page: 8 Date Filed: 01/20/2023
No. 21-30580
We hold that the term IHCBS, as defined by the district court, is too
vague to identify class members, and that the class—as currently defined—
is unascertainable.
IV.
We VACATE the class certification and REMAND the case to the
district court for further proceedings consistent with this opinion to clarify
which services are included in the term IHCBS. Because further proceedings
may impact the Defendants’ remaining claims that the district court abused
its discretion certifying the class under Rules 23(a)(1)–(4) and (b)(2) and
failed to conduct a rigorous analysis, we do not address those claims now.
8