Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 1 of 19 PageID #: 1

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UNITED STATES DISTRICT COURT

zt SOUTHERN DISTRICT OF INDIANA 10 MAR 25 AM 10;

INDIANAPOLIS DIVISION

, i
A.M.T., by his imother and next friend Karla)

T; J.J.M., by hils mother and next friend )

Amy M.; and JfM.G., by his father and next )

friend Michael :G., on their own behalf and )

on behalf ofth~se similarly situated,

)

!

)

Plaintiffs,

)

i
rI s.

)

)

No.

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)

ANNE WALT~RMANN MURPHY, in her )

:10-cv-0358SEB-TAB

official capacity as Secretary of the Indiana )

Family and So¢ial Services Administration, )

and PATRICI I CASANOVA, in her

)

official capacit as Director of the Office of )

Medicaid Polic and Planning of the Indiana)

Family and So ial Services Administration, )

)

COMPLAINT - CLASS ACTION

i

Defendants.

)

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CLASS ACtION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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Introductory Statement
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1. The pla~ntiffs in this case are all minors who are seriously disabled Medicaid recipients.
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In ordet to ensure that they obtain their best possible functional state and to prevent ,

regressibn in their conditions, the plaintiffs have been receiving therapies paid for by the
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Indianai Family and Social Services Administration (and have been receiving these

therapids for several years). These therapies, at the very least, are necessary to ensure
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that the! plaintiffs do not lose functional abilities, and without them the plaintiffs may

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cease tjeing able to walk, roll over, or stretch adequately, and they may require

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surgerit:;s-likely paid for by the Medicaid agency-in the future. Notwithstanding both

the need for these therapies and the recommendation of the plaintiffs' physicians and

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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 2 of 19 PageID #: 2
other treatment professionals that these therapies be provided, the Medicaid agency has
seized qn two (2) provisions of the Indiana Administrative Code to deny these requested
,
service~. First, the Indiana Administrative Code purports to limit the provision of
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therapi~s to two (2) years unless the patient demonstrates significant progress toward a
, ,
higher :trunctional state. See IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6). And second, the
Indiana!Administrative Code contains a blanket prohibition on the provision of so-called
"maint9nance therapy," which is therapy designed to prevent regression rather than to
i
enable rrogression. See IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7). These provisions,
both fa~iallY and as employed by the defendants, are violative of federal Medicaid law
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and mUft be enjoined.
~ Jurisdiction, enlle, and Cause of Action
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2. The Co~rt has jurisdiction of this case pursuant to 28 U.S.C. § 1331.
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3. Venue it proper in this district pursuant to 28 U.S.C. § 1391.
4. Declara ory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and
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28 U.S. . §§ 2201 and 2202.
5. This ac ion is brought pursuant to 42 U.S.c. § 1983 to redress the deprivation, under
color 0 I state law, of rights secured by the Constitution and laws of the United States, and
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as a pr,-emption claim brought pursuant to the decision of the United States Supreme
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Court i1 Shaw v. Delta Airlines, inc., 463 U.S. 85,96 n.l4 (1983) (holding that a plaintiff
presentrg a pre-emption claim "presents a federal question which the federal courts have
jurisdicFon under 28 U.S.c. § 1331 to resolve" even in the absence of a cause of action
under 4k U.S.c. § 1983).
Parties
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 3 of 19 PageID #: 3
6. A.M.T'I are the initials of a minor resident of Johnson County, Indiana. He brings this
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action l1y his mother and next friend, Karla T., and on his own behalf and on behalf of
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those siinilarly situated.
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7. J.J .M. are the initials of a minor resident of Marion County, Indiana. He brings this I
action ijy his mother and next friend, Amy M., and on his own behalf and on behalf of
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those sitnilarly situated.
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8. J.M.G. rrre the initials of a minor resident of Hamilton County, Indiana. He brings this
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action ~y his father and next friend, Michael G., and on his own behalf and on behalf of
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those sirilarly situated.
9. Anne Waltermann Murphy is the duly appointed Secretary of the Indiana Family and
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Social ~ervices Administration, and is sued in her official capacity.
10. Patricial Casanova is the duly appointed Director of the Office of Medicaid Policy and
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PlanninF of the Indiana Family and Social Services Administration, and is sued in her
officiallcapacity.
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Class Action 411egations
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11. The pl~intiffs bring this action on their own behalf and on behalf of a class of those
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similarl~ situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil
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procedire.
12. The cla$s is defined as follows:
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An~ and all persons in Indiana who are or will be enrolled in the Medicaid
pro~am and who are or will be under the age of twenty-one (21) who have been or ill be denied coverage for physical therapy, occupational therapy, respiratory ther py, and/or speech pathology ("therapies"), or who have had or will have cov rage for these therapies otherwise limited because of 405 lAC 5-22-6(b)(6) and/or 405 lAC 5-22-6(b)(7), notwithstanding the fact that a physician or other licensed practitioner of the healing arts acting within the scope of his or her
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 4 of 19 PageID #: 4
praqtice under Indiana law has or will recommend and/or prescribe these therapies for ~he Medicaid recipient.
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13. As defired, the class meets all requirements of Rule 23(a) of the Federal Rules of Civil
Procedure. Specifically:
a. The class is so numerous that the joinder of all members is impracticable. While the precise size of the class is unknown, it is believed to number at least in the hundreds and possibly in the thousands.
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b. 1There are questions of law or fact common to the class, specifically whether the ~efendants' practices or policies violate the rights of the class under federal Medicaid law.
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c. 1fhe claims of the representative parties are typical of those of the class.
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d. 1fhe representative parties will fairly and adequately protect the interests of the class.
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14. The futer requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure are met
in this ~ause with respect to the class in that the defendants, at all times, have acted or
have rebsed to act in a manner generally applicable to the class, thereby making final
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injuncti~e and declaratory relief appropriate with respect to the class as a whole.
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15. Unders~gned counsel is a skilled and experienced attorney in cases of this type, and
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should pe appointed as counsel for the class pursuant to Rule 23(g) of the Federal Rules
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of Civili Procedure.
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Legal Backgr~und
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Background to Ithe Medicaid Program
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16. Medicaid is a federal program of medical assistance for the poor established by Title XIX
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of the Social Security Act and funded by the federal government and participating states.
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See 42 iI.s.c. § 1396, et seq.
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 5 of 19 PageID #: 5

17. Federal, Medicaid appropriations to the states are designed to enable states to furnish

medica~ assistance to those whose incomes and resources are insufficient to meet the

costs of necessary medical services. See 42 U.S.C. § 1396-1.
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18. Eligibiltty for Medicaid is limited to low-income people who fall into one of several
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catego~es or groups specified in federal law, which includes disabled persons. See 42
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U.S.C. ~ 1396a(a)(10)(A).
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19. State p'jrticipation in the Medicaid program is voluntary. However, states that choose to
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participrte in the Medicaid program must submit plans to the United States Department

of Heat and Human Services in order to qualify for the federal matching funds, and

these p ans contain the requirements that a state must meet to receive federal approval.

y.s.c. See 42

§ 13963(,).

20. Indiana! participates in the federal Medicaid program and IS bound by all of its
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require ents. See IND. CODE 12-15-1-1,etseq.

21. Federal Medicaid law lists certain medical services that a participating state must cover in

its Med caid program (i.e., "mandatory" services), and lists certain other medical services
1 which state may choose to cover in its Medicaid program if it wishes (i.e., "optional"

service~). 42 U.S.C. § 1396a.
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Covered servit under Federal Medicaid Law

22. Federal I law requires that states participating in the Medicaid program cover, inter alia,

the foUtwing:

a. tarlY and periodic screening, diagnostic, and treatment services ("EPSDT ervices") for individuals who are under the age of 21. 42 U.S.c. § 396d(a)(4)(b).

~hysical b.

therapy and related services. 42 U.S.C. § 1396d(a)(11).

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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 6 of 19 PageID #: 6

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c. pther diagnostic, screening, preventative, and rehabilitative services, including ~y medical or remedial services (provided in a facility, a home, or other setting) tecommended by a physician or other licensed practitioner of the healing arts -within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. 42 U.S.C. § 1396d(a)(13).
,
23. EPSDTi services are defined to include "necessary health care, diagnostic servIces,
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treatmept, and other measures described in subsection (a) of [42 U.S.C. § 1396d] to
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correct rr ameliorate defects and physical and mental illnesses and conditions discovered
by the ~creening services, whether or not such services are covered under the State plan."
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42 U.S.t. § 1396d(r)(5).
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24. Federal!law requires that each medical service covered by a state Medicaid plan, whether
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"man10ry" or "optional," must be sufficient in amount, duration and scope to
reasontlY achieve its purpose, although the state Medicaid agency may place
appropt1ate limits on a service based on such criteria as medical necessity or on
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utilizatipn control procedures. 42 C.F.R. § 440.230(b),(d).
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25. Federal I and state Medicaid law mandate Medicaid coverage of medically necessary,
covere1 services, including "optional" services that the State chooses to cover. Thie v.
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Davis, ~88 N.E.2d 182 (Ind. ct. App. 1997), trans. denied; see also Coleman v. Indiana
Family !& Social Servs. Admin., 687 N.E.2d 366 (Ind. Ct. App. 1997); Davis v. Schrader,
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687 N.~.2d 370 (Ind. Ct. App. 1997).
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26. Indiana I Medicaid law defines a "medically reasonable and necessary service" as one
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"that is!required for the care or well being of the patient and is provided in accordance
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with geperally accepted standards of medical or professional practice." See IND. ADMIN.
CODE tit 405, r. 5-2-17.
Prior Authorization Requirements in Indiana

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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 7 of 19 PageID #: 7
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27. PursuaQt to Indiana law, some services-including physical therapy, occupational

therapyl respiratory therapy, and speech pathology-require pre-approval (in a process
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known i as "prior authorization") in order for them to be covered by the Medicaid

progran(l. IND. ADMIN. CODE tit. 405, r. 5-22-6.
,
28. Howev~r, state regulation provides that
I
[t]hfrapy for rehabilitative services will be covered for a recipient no longer than twoi(2) years from the initiation of the therapy unless there is a significant change
in ~dical condition requiring longer therapy. Habilitative services for a recipient
und eighteen (18) years of age may be prior authorized for a longer period on a cas -by-case basis. Respiratory therapy services may be prior authorized for a lon~er period of time on a case-by-case basis.
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IND. A~MIN. CODE tit. 405, r. 5-22-6(b)(6).
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29. State rtgulation additionally provides that "[m]aintenance therapy is not a covered

service'l under Indiana's Medicaid program. IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7).

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30. "Maint,nance therapy" is defined as "therapy addressing chronic medical conditions

~rther where

progress can no longer be expected or where progress is minimal in relation

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to the r e needed in therapy to achieve that progress." IND. ADMIN. CODE tit. 405. r. 5-

22-1(5)1 Factual Allegf tions

Factual Alle2:a ions Concemin2: the Defendants' Practices or Policies
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31. The Int·ana Family and Social Services Administration, through its Office of Medicaid

Policy ! d Planning, is responsible for the operation of, inter alia, the Medicaid program
I
in India~a. These agencies or departments are occasionally referred to herein collectively
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as the "~edicaid agency."

32. A Medicaid enrollee who desires to receive Medicaid payment for certain services-

including, inter alia, physical therapy, occupational therapy, respiratory therapy, and

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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 8 of 19 PageID #: 8
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speech !pathology (collectively, "therapies")---must obtain approval for these services
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from thr Medicaid agency before receiving Medicaid payment for these services. This is
a proce$s known as "prior authorization."
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33. A requ¢st for prior authorization is submitted on behalf of a Medicaid enrollee by the
provider that will provide the services to the Medicaid enrollee. Once such a request is
submittfd on behalf of a Medicaid enrollee, it will be approved, denied, or modified by
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the Me4icaid agency.
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34. The M~dicaid agency has contracted with two (2) companies to issue decisions on prior
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authori~ation requests. These companies are Advantage Health Solutions, Inc, and
MDWi*, Inc., and these companies both therefore operate as agents of the Medicaid
agencY·i
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35. The M9dicaid agency and its contractors refuse to approve therapies for more than two
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(2) year~ from the initiation of the therapy, unless there is a significant change in medical
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conditi~n requiring longer therapy.
36. The M¥Caid agency and its contractors also refuse to approve so-called "maintenance
therapy,r' which is defined as "therapy addressing chronic medical conditions where
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further ~rogress can no longer be expected or where progress is minimal in relation to the
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time ne,ded in therapy to achieve that progress."
37. Thus, "raintenance therapy" is, in essence, therapy designed to prevent an individual
from reressing to a lesser functional state rather than therapy designed to enable an
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individ~al to progress to a better functional state.
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 9 of 19 PageID #: 9

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38. Althou$h the Medicaid agency may approve therapies for longer than two (2) years for a
Medica~d recipient under the age of eighteen (18) on a case-by-case basis, it will not do
so ifit ~etermines that the therapies requested qualify as "maintenance therapy."
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39. The Medicaid agency's practices or policies in both of these regards have been
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promul~ated in Title 405 of the Indiana Administrative Code and have been recorded in
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its poli~y manual regarding prior authorization services. The relevant portions of the
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latter d9cument are attached and incorporated herein as Exhibit 1.
40. The MJdicaid agency enforces both of these policies even when the requested therapies
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have b en recommended and/or prescribed by a Medicaid enrollee's physician or other
license practitioner of the healing arts within the scope of their practice under Indiana
law.
41. Indeed,lbecause a prior authorization request must be submitted on a Medicaid enrollee's
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behalf ~y his or her physician or other licensed practitioner of the healing arts within the
scope ~f their practice under Indiana law, each prior authorization request for therapies
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has ntSari1Y been recommended and/or prescribed by these individuals.
42. These tro (2) limitations on the approval of prior authorization for therapies in Indiana
possess I no relationship to medical necessity, nor do they possess any relationship to
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whethel therapies are necessary for the maximum reduction of physical or mental
disabili y or the restoration of a Medicaid enrollee to his or her best possible functional
level. I
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43. Indeed'i minors for whom therapies have been recommended and/or prescribed will
oftentim.es have chronic medical conditions and/or serious disabilities that hinder their
ability to function or develop. For these individuals, because of their age it is difficult

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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 10 of 19 PageID #: 10
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and oft~ntimes impossible to determine whether and when they have reached their best I
possibl~ functional state.
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44. However, even if they have reached their best possible functional state, therapies are
generaIiy necessary in order to prevent regression. A minor for whom therapies have
been r~commended and/or prescribed and who possesses a chronic medical condition
I
and/or $erious disability that hinders his or her ability to function or develop will likely
! I
lose th¢ ability to walk, crawl, roll over, stretch, or assist their caretakers with their
activiticls of daily living if these therapies are stopped. In many cases, if therapies are
stopped! the minor will require one (1) or more surgeries (which will likely be paid for by
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the Me¥caid agency).
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45. Thus, r~gardless of whether therapies for minors are capable of advancing an individual
I I
to a higper functional state, they are certainly preventative in nature and are necessary to
prevent these individuals from regressing to a worse functional state.
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Factual Allegatrons Concerning the Named Plaintiffs
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Factual Allega4ions Concerning A.MT
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46. A.M.T. jare the initials of a seven (7) year old resident of Johnson County, Indiana, with a
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primary! diagnosis of cerebral palsy.
47. A.M.T.l is a juvenile Medicaid recipient who has been receiving physical therapy and
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occupational therapy since he was approximately four (4) months old. With very few
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exceptiqns over the past seven (7) years, he has received one (1) hour-long session of
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physica~ therapy and one (1) hour-long session of occupational therapy each week.
48. As a reJult of the therapies that A.M.T. has received, he is capable of walking. He has
also recently begun trying to run, although he is not yet capable of running.
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 11 of 19 PageID #: 11
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49. A.M.T. ,has not yet reached his best possible functional state. However, even if he has
neared this state, both physical therapy and occupational therapy are necessary in order to
keep hi~ from regressing.
ij 50. Thus, A.M.T. stops receiving these therapies, his muscles will become tighter and he
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will be~in having trouble walking and otherwise functioning. It is extremely likely that
~eed he will one (1) or more surgeries ifhis therapies are stopped.
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51. In earlt 2010, the Children's Theraplay Foundation, Inc., and a physician or other
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license1 practitioner of the healing arts submitted a request for prior authorization of
Medica d services on behalf of A.M.T. These services were thus recommended and/or
prescri ed by a physician and/or other licensed practitioner of the healing arts acting
within t e scope of his or her practice under Indiana law.
52. On M4ch 5, 2010, the prior authorization request submitted on behalf of A.M.T. was
denied ~n substantial part. According to the denial notice, the Medicaid agency would
I
approv1 only six (6) more weeks of therapies for A.M.T. This decision was "based on
the inf4rrnation provided and Indiana Administrative Code guidelines 405 lAC 5-22-6.
I
The patient has had therapies smce 8/2004. The requested services would not [b]e
restora1ve of an im[p]airment in function caused by an acute change in the pati[en]t's medica~ condition, and maintenance therapy is noncoverable per lAC guidelines." A true
I
and cop.ect copy of this notice is attached and incorporated herein as Exhibit 2
(identitg information has been redacted).
53. Contin1ed therapies have been recommended and/or prescribed by A.M.T.'s physician or
other libensed practitioner of the healing arts within the scope of their practice under
Indiana law. At least one (1) hour a week each of physical therapy and occupational
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 12 of 19 PageID #: 12 -,

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therapYi is medically necessary for A.M.T. At least this amount of therapy is necessary
for the ~aximum reduction of physical or mental disability and the restoration of A.M.T.
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to the b~st possible functional level. i i
54. This a~ount of therapies will correct or ameliorate A.M.T.'s defects and physical and
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mental tllnesses and conditions discovered by EPSDT screening services, whether or not
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such setlvices are covered under the State Medicaid plan. I I
Factual AllegaJions Concerning J.J.M.
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55. J.J.M. alre the initials of a nine (9) year old resident of Marion County, Indiana, with a

Primary! diagnosis of Pyruvate Carboxylase Deficiency Type II ("PCD Type II"), which I I
is a tYP~ of mitochondrial metabolic myopathy.

T~e 56. PCD

II is a condition that hinders J.J .M. 's ability to develop and to function, and

that res~lts in his being medically fragile. J.J.M. is the only known individual with PCD
I
Type III who has lived beyond the age of two (2) or three (3). As a result of this
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conditiqn, J.J.M. cannot walk. However, he does have the ability to roll around and to
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stretch ~is legs.
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57. J.J.M. ir a juvenile Medicaid recipient who has been receiving physical therapy and

occupat~onal therapy since he was an infant. Since he was approximately three (3) years
,
old, he has received three (3) hour-long sessions of physical therapy and one (1) hour-
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long session of occupational therapy each week.
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58. As a reisult of the therapies that J.J.M. has received, he is capable of rolling over,
stretchi~g his legs, and engaging in other movements that would be considered
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rudimentary for a child without disabling conditions.

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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 13 of 19 PageID #: 13
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59. J.1.M. ~as not yet reached his best possible functional state. However, even if he has
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neared this state, both physical therapy and occupational therapy are necessary in order to I I
keep hi~ from regressing.
d· 60. Thus, J.1.M. stops receiving these therapies, he will lose strength throughout his body,
I
his mu~cles will become tighter and he will begin having trouble rolling over, stretching
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-on his fwn, participating in his educational activities, and otherwise functioning. His
overall ~uality of life will, in this vein, be detrimentally affected. It is extremely likely
will!
that he need one (1) or more surgeries ifhis therapies are stopped.
61. In late :2009 or early 2010, the Children's Theraplay Foundation, Inc., and Dr. Paul
Jarvis, ~.D., submitted a request for prior authorization of Medicaid services on behalf
I I
of J.1'1' This request sought to continue J.1.M.'s therapies at their current level for an
additioqal six (6) months, and was substantially similar to the prior authorization requests
sUbmittfd on J.1.M.'s behalf and approved by the Medicaid agency for several years.
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62. On or ~bout December 9, 2009, the prior authorization request submitted on behalf of
J.1.M. iras denied in substantial part. According to the denial notice, the Medicaid
I
agency would approve only two (2) sessions of therapies each month for J.1.M. for four I i
(4) morths. This decision was because, according to the Medicaid agency,
I
"[r]eha}jilitative therapies will be covered for no longer then [sic] two (2) years except
I
when t~ere is a significant change in the recipient's condition necessitating additional I I
therapie~" and that the therapies had already "been provided for at least two (2) years
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with milnimal documented change in [J.J.M.'s] condition." This decision was made
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followi1g a "[r]eview of the criteria set out in [405 lAC 5] for the service requested." A
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 14 of 19 PageID #: 14
true and correct copy of this notice is attached and incorporated herein as Exhibit 3
(identif~ng infonnation has been redacted).
63. Contin~ed therapies at the rate of three (3) sessions of physical therapy and three (3)
,
session~ of occupational therapy each month have been recommended and/or prescribed
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by J.J.¥.'s physician or other licensed practitioner of the healing arts within the scope of
their pr*ctice under Indiana law. At least three (3) hours a week each of physical therapy
I
and occupational therapy are medically necessary for J.J.M. At least this amount of
!
therapy 'is necessary for the maximum reduction of physical or mental disability and the
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restorat~on of J.J.M. to the best possible functional level.
64. This amount of therapies will correct or ameliorate J.J .M. 's defects and physical and
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mental tIlnesses and conditions discovered by EPSDT screening services, whether or not
such setjvices are covered under the State Medicaid plan.
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Factual Allega~ions Concerning JM G.
I
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65. J.M.G. ~re the initials of a twelve (12) year old resident of Hamilton County, Indiana,
I I
with a pbmary diagnosis of cerebral palsy.
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66. As a re$ult of his condition, J.M.G. cannot walk or ambulate by himself. His cerebral
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palsy is! considered the worst of the three (3) categories of cerebral palsy, and it is
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unlikel~ that he will ever be able to walk or live by himself. He can stretch out, assist his
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parents lor caretakers somewhat with transfers, but cannot so much as crawl short
distance~. 67. J.M.G. l!S a juvenile Medicaid recipient who has been receiving physical therapy and
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occupational therapy for most of his life. For several years, he has received two (2) hour-
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Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 15 of 19 PageID #: 15
long sefsions of physical therapy and one (1) hour-long session of occupational therapy
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each w~ek.
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68. As a r¢sult of the therapies that J.M.G. has received, he is capable of rolling over,
I
stretchirg his legs, sitting independently on a chair or bench with supervision, assisting
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his pardnts or caretakers somewhat with transfers, and engaging in other movements that I I
would ~e considered rudimentary for a child without disabling conditions.
I
69. J.M.G. ~as not yet reached his best possible functional state. However, even if he has
i
neared ~his state, both physical therapy and occupational therapy are necessary in order to
I
keep hi~ from regressing. I I I
70. Thus, it! J.M.G. stops receiving these therapies, his tendons will shorten, his muscles will I i becomeI tighter, and he will begin having trouble stretching on his own, assisting his i parents jand caregivers in his daily care, and otherwise functioning. His parents and I I caretak1rs will have more difficulty transferring him or assisting him with bathing or
I
shower~, and moving and caring for J.M.G. (who is presently 126 pounds) will become
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incredi~IY hard on their backs. It is extremely likely that he will need one (1) or more
I
surgeries ifhis therapies are stopped or decreased.
I I
71. In late 1009, Homefront Learning Center, submitted a request for prior authorization of
I
Medicai~ services on behalf of J.M.G. This request sought to continue J.M.G. 's physical
therapy lat their current level for an additional six (6) months, and was substantially
I
similar ~o the prior authorization requests submitted on J.M.G.'s behalf and approved by
I I
the Me1icaid agency for several years. The previously approved prior authorization
request for J.M.G.'s occupational therapy has recently expired, although future services
15

Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 16 of 19 PageID #: 16
I
have bren suspended pending consultant reVIew, and therefore no new request for
J.M.G.'ls occupational therapy has been submitted.
I I
72. On or ~bout December 9, 2009, the prior authorization request submitted on behalf of
I !
J.M.G.iwas denied in substantial part. According to the denial notice, the Medicaid I I I
agency Idetennined that J.M.G.'s requested services should be denied as a result of 405
!
lAC 5-~2-6(b)(6) and 405 lAC 5-22-6(b)(7). A true and correct copy of this notice is
i
attachef and incorporated herein as Exhibit 4 (identifying information has been redacted).
73. Based ~n this denial, and the reasons stated therefore, J.M.G. and his parents believe and
I I
are un~erstandably concerned that a request to continue his occupational therapy at its
I I
current ,level will be denied for the same reasons as soon as it becomes time for J.M.G. to
I
request !renewed authorization for these services.
i I
74. J.M.o.lfiled an administrative appeal of the denial of the request for physical therapy
submitt d on his behalf, and an administrative fair hearing was scheduled on that appeal.
Shortly before the date on which the hearing was scheduled, a manager from Advantage
Health are contacted J.M.G.'s parents and informed them that, if they withdrew the
I
admini1trative appeal filed on J.M.G.'s behalf they would approve one (1) session of
physica1 therapy each week for four (4) months.
I
75. Becaus1 J.M.G. and his parents were concerned that if they did not agree to this they
would 10t receive any physical therapy, they agreed to withdraw their appeal on these
I
terms. rowever, both J.M.G.'s parents and his providers believe that two (2) sessions of
PhYSical therapy each week are medically necessary for J.M.G. and are necessary to
ensure hat he reaches his best possible functional state and to prevent him from
regressmg.
16

Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 17 of 19 PageID #: 17
.<
76. Based qn the denial of his prior authorization request, and the reasons stated therefore,
i
J.M.G.iand his parents believe and are understandably concerned that a request for any
I !
amount! of physical therapy after four (4) months will be denied for the same reasons as
i
soon asiit becomes time for 1.M.G. to request renewed authorization for these services.
I
77. ContinJed therapies at the rate of two (2) sessions of physical therapy and one (I) session
of occ4pational therapy each month have been recommended and/or prescribed by
J.M.G.'ls physician or other licensed practitioner of the healing arts within the scope of
I
i
their prl1ctice under Indiana law. At least two (2) hours a week each of physical therapy
and oc4upational therapy are medically necessary for J.M.G. At least this amount of
therapyI is necessary for the maximum reduction of physical or mental disability and the
I I
restoratlon of J.M.G. to the best possible functional level.
i
78. This antlOunt of therapies will correct or ameliorate J.M.G.'s defects and physical and
mental!llnesses and conditions discovered by EPSDT screening services, whether or not
I
such services are covered under the State Medicaid plan.
I
Concluding Faftual Assertions
79. As a re1ult ofthe practices or policies of the defendants, the plaintiffs and the members of
the put*ive class are suffering irreparable harm for which there is no adequate remedy at
law. I
80. At all rJlevant times, the defendants have acted or refused to act under color of state law.
I
Legal Claims I
I I
81. The detFndants' practice or policy whereby it denies and/or limits Medicaid coverage for
the Plai6tiffs and the members of the class for physical therapy, occupational therapy,
respiratory therapy, and/or speech pathology notwithstanding the fact that these services
17

. Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 18 of 19 PageID #: 18
have b4en recommended and/or prescribed by a Medicaid recipient's physician or other
I
licenseq practitioner of the healing arts acting within the scope of his or her practice
under I*diana law violates federal Medicaid law.
i I
82. The deiFndants' practice or policy whereby it refuses to cover "maintenance therapy" for
!
the plaibtiffs and the members of the class violates federal Medicaid law.
!
83. The de{endants' practice or policy whereby it refuses to cover therapies for more than
two (2) Iyears for the plaintiffs and the members of the class without a significant change
i
in medi~al condition requiring longer therapy violates federal Medicaid law.
!
Request for R,lief
I
WHER~FORE, the plaintiffs respectfully request that this Court:
I
1. Accept ~urisdiction of this cause and set it for hearing.
!
2. Certify this cause as a class action with the class and sub-class as defined above.
3. Declare Ithat the defendants have violated the rights of the plaintiffs and the class and sub-
class for the re1sons specified in paragraphs 81 through 83, above..
4. Issue a *reliminary injunction, later to be made permanent, enjoining the defendants from
refusing or li1iting Medicaid coverage for therapies recommended and/or prescribed by a
i
Medicaid reciP,ent's physician or other licensed practitioner of the healing arts acting within the scope of his or ~er practice under Indiana law.
I
5. Issue a +eliminary injunction, later to be made permanent, enjoining the defendants from
enforcing either Title 405, Rule 5-22-6(b)(6), or Title 405, Rule 5-22-6(b)(7), of the Indiana
Administrative pOde.
I
6. Award the plaintiffs their costs and attorneys' fees pursuant to 42 U.S.C. § 1988 and all
other applicable statutes.
18

.,. Case 1:10-cv-00358-JMS-TAB Document 1 Filed 03/25/10 Page 19 of 19 PageID #: 19 7. Issue all other proper relief.
avin M. Rose, No. 26565-53 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635-4059, x 106 Fax: 317/635-4105 <grose@ac1u-in.org> Attorney for the plaintiffS and the
putative class
19

 
 Case 1:10-cv-00358-JMS-TAB Document 12 Filed 03/25/10 Page 1 of 3 PageID #: 67

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

) ANNE WALTERMANN MURPHY, et al., )

)

Defendants.

)

No. 1:10-cv-0358-SEB-TAB

MOTION FOR PRELIMINARY INJUNCTION

COME NOW Plaintiffs and the putative class, by counsel, and respectfully move

this Court for a preliminary injunction in this cause, pursuant to Rule 65 of the Federal

Rules of Civil Procedure, enjoining the enjoining the defendants from refusing or limiting

Medicaid coverage for therapies recommended and/or prescribed to the plaintiffs or

members of the putative class by a Medicaid recipient’s physician or other licensed

practitioner of the healing arts acting within the scope of his or her practice under Indiana

law, and enjoining the defendants from enforcing either Title 405, Rule 5-22-6(b)(6), or

Title 405, Rule 5-22-6(b)(7), of the Indiana Administrative Code against the plaintiffs or

the members of the putative class. In support of this Motion, the plaintiffs state as

follows:

1. The challenged denial or limitation of the prescribed therapies is illegal under

federal Medicaid law, and therefore they will meet their obligation to demonstrate a

probability of success on the merits in this cause.

2. The plaintiffs are being and will be caused irreparable harm for which there is no

adequate remedy at law absent a preliminary injunction.

1

Case 1:10-cv-00358-JMS-TAB Document 12 Filed 03/25/10 Page 2 of 3 PageID #: 68
3. The balance of interests favors the grant of a preliminary injunction in this matter. 4. The public interest will not be disserved by the grant of a preliminary injunction in this matter. 5. The preliminary injunction should issue without bond. 6. The plaintiffs intend to support this Motion with affidavits and/or other evidence and a memorandum of law which will be filed in the near future or pursuant to a schedule set by this Court or agreed to by the parties.
WHEREFORE, the plaintiffs respectfully request that a preliminary injunction be granted in this cause, without bond, and request all other proper relief.
/s/ Gavin M. Rose Gavin M. Rose, No. 26565-53 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635-4059, x106 Fax: 317/635-4105 <grose@aclu-in.org> Attorney for the plaintiffs and the
putative class
2

Case 1:10-cv-00358-JMS-TAB Document 12 Filed 03/25/10 Page 3 of 3 PageID #: 69
CERTIFICATE OF SERVICE I hereby verify that on this 25th day of March, 2010, a copy of the foregoing was filed electronically with the Clerk of this Court. A copy was also served, by first class U.S. postage, pre-paid, on this 25th day of March, 2010, on the following persons:
Anne Waltermann Murphy, Secretary Indiana Family and Social Services Administration 402 W. Washington St., Rm. W-461 Indianapolis, Indiana 46204 Patricia Casanova, Director – OMPP Indiana Family and Social Services Administration 402 W. Washington St., Rm. W-461 Indianapolis, Indiana 46204 Greg Zoeller, Attorney General IGCS – 5th Floor 302 W. Washington St. Indianapolis, IN 46204
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
3

 
 Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 1 of 27 PageID #: 114

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

ANNE WALTERMANN MURPHY, et al., )

)

Defendants.

)

No. 1:10-cv-0358-SEB-TAB

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION1

INTRODUCTION

In an oft-cited opinion, the Fourth Circuit Court of Appeals has characterized the

statutory and regulatory framework for the Medicaid program as representing “among the most

completely impenetrable texts within human experience.” Rehab. Ass’n of Virginia v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994). Although the present case concerns the nuances

of federal Medicaid law, the questions that it presents are actually quite simple. The plaintiffs

are all seriously disabled children for whom therapy services have been prescribed by their

treating physicians in order to ward against or otherwise prevent significant regression in their

conditions. Notwithstanding both these recommendations and the indisputable fact that the

plaintiffs will lose physical and intellectual function absent the continuation of these therapies,

the Indiana Family and Social Services Administration has begun refusing to provide Medicaid

1 On March 25, 2010, the plaintiffs filed their Motion for Class Certification (R. Doc. 10). Briefing on this issue is proceeding, and it is anticipated that this Motion will be fully briefed in advance of the preliminary injunction hearing presently scheduled for May 28, 2010. In the event that the Court grants the plaintiffs’ request for class certification, the plaintiffs request that any preliminary injunction inure to the benefit of the class as well.

1

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 2 of 27 PageID #: 115
payment for therapies for longer than two (2) years (absent certain circumstances) or for
therapies that it considers “maintenance”—that is, therapies intended to prevent regression in a
patient’s condition rather than therapies intended to enable or cause significant progression. See
IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6),(7). This case therefore presents two (2) legal issues
for resolution: ¾ Whether a State may refuse to provide Medicaid payment for services to children when those services have been recommended as medically necessary by their treatment providers. ¾ Whether a State must provide Medicaid payment for therapy services to disabled children when those services are necessary to prevent significant regression in the children’s functional state or in their ability to complete their activities of daily living.
The Seventh Circuit has previously recognized that “in the context of individuals under the age
of twenty-one . . . a state’s discretion to exclude services deemed ‘medically necessary’ by a . . .
provider has been circumscribed by the express mandate of [federal Medicaid law].” Collins v. Hamilton, 349 F.3d 371, 376 n.8 (7th Cir. 2003). And the notion that a state may refuse to
provide Medicaid payment for therapy services to disabled children simply because those
services are only necessary to prevent substantial regression in their conditions flies in the face of the broad coverage that federal Medicaid law ensures will be available for minors.2
2 As noted immediately above, at issue in this case are two (2) policies of the State: (a) that forbidding the provision of Medicaid payment for therapies for longer than two (2) years, see IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6); and (b) that forbidding the provision of Medicaid payment for so-called “maintenance therapy,” see IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7). However, because the former (two-year) regulation also limits therapies that do not result in “a significant change in medical condition,” in actuality this regulation appears to be co-extensive with the State’s prohibition on Medicaid payment for “maintenance therapy.” Each of these regulations is therefore treated together throughout this brief under the nomenclature for “maintenance therapy.” Additionally, although the State’s two-year limit appears to possess a potential exception for juveniles, see id., no such exception exists concerning the provision of “maintenance therapy,” see IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7). In this vein, it is possible that an injunction prohibiting the enforcement of the “maintenance therapy” regulation will render the “two-year” regulation obsolete. Moreover, any exception to the “two-year” regulation
2

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 3 of 27 PageID #: 116

Given that the plaintiffs are likely to prevail on the merits of their claims and that they

will suffer irreparable harm absent immediate relief, a preliminary injunction enjoining the

agency from enforcing either challenged provision of the Indiana Administrative Code against

children should issue.

STATEMENT OF FACTS

It is anticipated that the following facts will be adduced during the preliminary injunction

hearing in this cause (which is presently scheduled for May 28, 2010):

I.

FACTS CONCERNING THE STATE’S PRACTICES OR POLICIES

The Indiana Family and Social Services Administration, through its Office of Medicaid

Policy and Planning, is responsible for the operation of, inter alia, the Medicaid program in

Indiana.

A Medicaid enrollee who desires to receive Medicaid payment for certain services—

including, inter alia, physical therapy, occupational therapy, respiratory therapy, and speech

pathology (collectively, “therapies”)—must obtain approval for these services from the Medicaid

agency before receiving Medicaid payment for these services. This is a process known as “prior

authorization.” A request for prior authorization is submitted on behalf of a Medicaid enrollee

by the provider that will provide the services to the Medicaid enrollee. Once such a request is

submitted on behalf of a Medicaid enrollee, it will be approved, denied, or modified by the

Medicaid agency. The Medicaid agency has contracted with two (2) companies to issue

decisions on prior authorization requests. These companies are Advantage Health Solutions, Inc,

is limited to those Medicaid recipients who are under eighteen (18) years of age, see IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6), whereas expansive Medicaid coverage for EPSDT-eligible children exists until the child’s twenty-first (21st) birthday, see 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C. § 1396d(4)(B). Thus, some members of the putative class are automatically ineligible for any potential exception to the “two-year” rule, and for these persons the two (2) regulations at issue appear to be more-or-less co-extensive with one another.
3

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 4 of 27 PageID #: 117
and MDWise, Inc., and these companies both therefore operate as agents of the Medicaid agency. 3
Based on the terms of explicit state regulations, the Medicaid agency and its contractors
refuse to approve therapies for more than two (2) years from the initiation of the therapy, unless there is a significant change in medical condition requiring longer therapy.4 The Medicaid
agency and its contractors also refuse to approve so-called “maintenance therapy,” which is
defined as “therapy addressing chronic medical conditions where further progress can no longer
be expected or where progress is minimal in relation to the time needed in therapy to achieve that progress.”5 Thus, “maintenance therapy” is, in essence, therapy designed to prevent an
individual from regressing to a lesser functional state rather than therapy designed to enable an
individual to progress to a better functional state. Although the Medicaid agency may approve
therapies for longer than two (2) years for a Medicaid recipient under the age of eighteen (18) on
a case-by-case basis, it will not do so if it determines that the therapies requested qualify as “maintenance therapy.”6
The Medicaid agency enforces both of these policies even when the requested therapies
have been recommended and/or prescribed by a Medicaid enrollee’s physician or other licensed
practitioner of the healing arts within the scope of their practice under Indiana law. Indeed,
3 For Indiana’s regulations detailing the prior authorization process, see IND. ADMIN. CODE tit. 405, r. 5-3-1, et seq. 4 See IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6) (“Therapy for rehabilitative services will be covered for a recipient no longer than two (2) years from the initiation of the therapy unless there is a significant change in medical condition requiring longer therapy. Habilitative services for a recipient under eighteen (18) years of age may be prior authorized for a longer period on a caseby-case basis.). 5 See IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7) (“Maintenance therapy is not a covered service.”); see also IND. ADMIN. CODE tit. 405, r. 5-22-1(5) (defining “maintenance therapy”). 6 These prohibitions are detailed in a portion of the Medicaid agency’s policy manual, which was attached to the plaintiffs’ Class Action Complaint for Declaratory and Injunctive Relief (filed Mar. 25, 2010), as Exhibit 1.
4

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 5 of 27 PageID #: 118
because a prior authorization request must be submitted on a Medicaid enrollee’s behalf by his or her physician or other licensed practitioner of the healing arts within the scope of their practice under Indiana law, each prior authorization request for therapies has necessarily been recommended and/or prescribed by these individuals. Minors for whom therapies have been recommended and/or prescribed will oftentimes have chronic medical conditions and/or serious disabilities that hinder their ability to function or develop. For these individuals, because of their age it is difficult and oftentimes impossible to determine whether and when they have reached their best possible functional state. However, even if they have reached their best possible functional state, therapies are generally necessary in order to prevent regression. A minor for whom therapies have been recommended and/or prescribed and who possesses a chronic medical condition and/or serious disability that hinders his or her ability to function or develop will likely lose the ability to walk, crawl, roll over, stretch, or assist their caretakers with their activities of daily living if these therapies are stopped. In many cases, if therapies are stopped the minor will require one (1) or more surgeries (which will likely be paid for by the Medicaid agency).
Thus, regardless of whether therapies for minors are capable of advancing an individual to a higher functional state, they are certainly preventative in nature and are necessary to prevent these individuals from regressing to a worse functional state. II. FACTS CONCERNING THE NAMED PLAINTIFFS
Each of the named plaintiffs is a seriously disabled child. Both A.M.T. (who is seven) and J.M.G. (who is twelve) have a primary diagnosis of cerebral palsy. J.J.M. (who is nine) has a primary diagnosis of Pyruvate Carboxylase Deficiency Type II (“PCD Type II”), which is a type of mitochondrial metabolic myopathy and, like cerebral palsy, a condition that hinders his ability to develop and to function, and that results in his being medically fragile. As a result of
5

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 6 of 27 PageID #: 119
their conditions, the named plaintiffs each have significant functional limitations. A.M.T., on the one hand, is capable of walking although he cannot yet run. J.J.M. cannot walk, although he is capable of rolling over, stretching his legs, and engaging in other movements that would be considered rudimentary for a child without disabling conditions. And J.M.G. can stretch out and assist his parents or caretakers somewhat with transfers, but cannot so much as crawl short distances.
The named plaintiffs are all Medicaid enrollees who are eligible for EPSDT services as a result of their age. For several years, the plaintiffs have received Medicaid payment for therapies prescribed by their treatment physicians: A.M.T. has received one (1) hour-long session of physical therapy and one (1) hour-long session of occupational therapy each week for the past seven (7) years; J.J.M. has received three (3) hour-long sessions of physical therapy and one (1) hour-long session of occupational therapy each week for the past six (6) years; and J.M.G. has also received two (2) hour-long sessions of physical therapy and one (1) hour-long session of occupational therapy each week for several years.
In late 2009 or early 2010, prior authorization requests were submitted on behalf of each of the named plaintiffs in order to continue their therapies at their current rate. These requests were submitted by the plaintiffs’ providers after these providers prescribed or otherwise recommended this rate of therapies for each of the named plaintiffs. Each of these requests, however, was denied in substantial part. According to the denial notice received by A.M.T., “[t]he requested services would not [b]e restorative of an im[p]airment in function caused by an acute change in the pati[en]t’s medical condition, and maintenance therapy is noncoverable per IAC guidelines.” According to the denial notice received by J.J.M., “[r]ehabilitative therapies will be covered for no longer then [sic] two (2) years except when there is a significant change in
6

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 7 of 27 PageID #: 120
the recipient’s condition necessitating additional therapies” and that the therapies had already “been provided for at least two (2) years with minimal documented change in [J.J.M.’s] condition.” And according to the denial notice received by J.M.G., the requested services were denied as a result of 405 IAC 5-22-6(b)(6) and 405 IAC 5-22-6(b)(7).7
However, without the continuation of the requested therapies, the plaintiffs can expect significant regression in their conditions and in their functional states. This regression will include the loss of muscle function and the shortening of tendons. A.M.T. will begin having difficulty walking. J.J.M., in turn, will begin having trouble rolling over, stretching on his own, participating in his educational activities, and otherwise functioning. And J.M.G., for his part, will begin having trouble stretching on his own, assisting his parents and caregivers in his daily care, and otherwise functioning. The unnamed members of the putative class can expect similar losses in their ability to function that would not occur if their therapies were continued at their previous rates. In this manner, the prescribed therapies—even if those therapies are considered “maintenance therapies” within the meaning of the Indiana Administrative Code—are medically necessary for each of the plaintiffs and each of the members of the putative class.
PRELIMINARY INJUNCTION STANDARD The standard in the Seventh Circuit for the granting of a preliminary injunction is clear. In order to determine whether a preliminary injunction should be granted, the Court weighs several factors: (1) whether the plaintiff has established a prima facie case, thus demonstrating at
least a reasonable likelihood of success at trial;
7 The denial notices received by each of the named plaintiffs were attached the plaintiffs’ Class Action Complaint for Declaratory and Injunctive Relief (filed Mar. 25, 2010), as Exhibits 2 through 4, respectively.
7

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 8 of 27 PageID #: 121

(2) whether the plaintiff=s remedies at law are inadequate, thus causing irreparable harm pending the resolution of the substantive action if the injunction does not issue;

(3) whether the threatened injury to the plaintiff outweighs the threatened harm the grant of the injunction may inflict on the defendant; and

(4) whether, by the grant of the preliminary injunction, the public interest would be disserved.

See, e.g., Baja Contractor, Inc. v. City of Chicago, 830 F.2d 667, 675 (7th Cir. 1987). The heart

of this test, however, is “a comparison of the likelihood, and the gravity of two types of error:

erroneously granting a preliminary injunction, and erroneously denying it.” Gen. Leaseways,

Inc. v. Nat’l Truck Leasing Ass’n, 744 F.2d 588, 590 (7th Cir. 1984). After weighing these

factors, it is clear that a preliminary injunction should issue in this case.

ARGUMENT

I.

LIKELIHOOD OF SUCCESS ON THE MERITS

A. Background to the Medicaid Program

Medicaid is a cooperative federal-state program through which the federal government

provides financial aid to states that furnish medical assistance to eligible low-income individuals.

See 42 U.S.C. § 1396, et seq.; Atkins v. Rivera, 477 U.S. 154, 156 (1986). Although state

participation is voluntary, states electing to participate in the program are required to comply

with certain statutory requirements imposed by federal law, as well as with regulations

promulgated by the United States Department of Health and Human Services. See Evergreen Presbyterian Ministries, Inc. v. Hood, 235 F.3d 908, 915 (5th Cir. 2000). To qualify for federal

assistance, therefore, “a state must submit to the [federal government] and have approved a ‘state

plan’ for ‘medical assistance’ that contains a comprehensive statement describing the nature and scope of the state’s Medicaid program.” S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 586 (5th

8

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 9 of 27 PageID #: 122
Cir. 2004) (citations omitted). Among other things, the state plan must establish “a scheme for reimbursing health care providers for the medical assistance provided to eligible individuals.” Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502 (1990).
The Medicaid Act defines “medical assistance” as “payment of part or all of the cost of . . . care and services” included in an enumerated list of twenty-seven (27) general categories of assistance. 42 U.S.C. § 1396d(a); see also, e.g., S.D., 391 F.3d at 586. Some of the categories of assistance are mandatory and must be included within a state’s Medicaid plan, whiles others are optional and may be included at the discretion of the state. See 42 U.S.C. § 1396a(a)(10)(A). One of the mandatory service categories is “early and periodic screening, diagnostic, and treatment services” (“EPSDT services”) for individuals who are under the age of twenty-one (21). See 42 U.S.C. § 1396a(a)(10)(A); 42 U.S.C. § 1396d(4)(B).
EPSDT services are defined to include all “necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of [42 U.S.C. § 1396d] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5). Among the services enumerated in 42 U.S.C. § 1396d(a) are the following:
a. Physical therapy and related services. 42 U.S.C. § 1396d(a)(11). b. Other diagnostic, screening, preventative, and rehabilitative services, including any
medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. 42 U.S.C. § 1396d(a)(13). Thus, “EPSDT is a comprehensive child health program designed to assure the availability and accessibility of health care resources for the treatment, correction, and amelioration of the unhealthful conditions of individual Medicaid recipients under the age of twenty-one.” S.D., 391
9

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 10 of 27 PageID #: 123
F.3d at 586. One of the principal goals of the program is to “assure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly.” Id. (citation and alteration omitted). In this manner, in the context of the EPSDT program, “there is a very strong inference to be inclusive rather than exclusive.” Ekloff v. Rogers, 443 F.Supp.2d 1173, 1180–81 (D. Ariz. 2006).
B. The Seventh Circuit has already decided definitively that Indiana does not have discretion to refuse Medicaid payment for services deemed necessary by an EPSDT provider, and the plaintiffs are therefore exceedingly likely to prevail on the merits of their claims.
It cannot be seriously disputed in this case that therapies have been prescribed or otherwise recommended for each of the plaintiffs by their treating physicians in an amount greater than that which was approved for Medicaid payment by the Indiana Family and Social Services Administration. Indeed, the policy at issue in this case prohibits any payment for therapies that are deemed “maintenance” in nature—therapies designed to prevent regression in the plaintiffs’ conditions—notwithstanding the recommendations of the plaintiffs’ physicians or their therapists.8
As noted above, among the EPSDT services for which Medicaid payment must be provided are “diagnostic, screening, preventative, and rehabilitative services . . . recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level.” 42 U.S.C. § 1396d(a)(13) (emphasis added); see also 42 U.S.C. § 1396d(r). In interpreting this statute, the Seventh Circuit has held explicitly that “in the context of individuals under the age of twenty-one subject to EPSDT services, a state’s
8 As noted above, the two (2) regulations at issue in this case are treated together throughout this brief under the nomenclature for “maintenance therapy.” See supra note 2.
10

Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 11 of 27 PageID #: 124
discretion to exclude services deemed ‘medically necessary’ by an EPSDT provider has been
circumscribed by the express mandate of the statute.” Collins v. Hamilton, 349 F.3d 371, 376 n.8 (7th Cir. 2003) (internal citation omitted). In other words, the only person who may properly
determine the appropriateness of a given treatment or service for an EPSDT-eligible individual
(as the plaintiffs in the present case quite clearly are) is, unsurprisingly, that individual’s provider.9
In Collins, a class of disabled children filed suit against officials from the Indiana Family
and Social Services Administration challenging the agency’s failure to provide long-term
residential treatment in psychiatric residential treatment facilities (PRTF) for EPSDT-eligible
children. See id. at 372. The Seventh Circuit framed the issues to be decided as follows:
The question in this case is whether Indiana is required to provide Medicaid coverage to eligible individuals under the age of twenty-one for placement in long-term PRTFs, or whether Indiana’s obligations under Medicaid are limited to coverage of the acute treatment options currently available in its inpatient psychiatric hospitals. Essentially, the issue boils down to whether Indiana’s exclusion of PRTFs encompasses ‘necessary’ medical services and whether a state has the discretion to make such exclusions under the Act[.]
Id. at 373–74. After rejecting the State’s position it was not required to cover long-term
placement and that such placement could not be medically necessary, the Collins court explicitly
found “that Indiana is required to fund the cost of placement in a PRTF if it is deemed ‘medically
necessary’ by an EPSDT screening.” Id. at 376; see also id. at 376 n.8 (quoted supra).
9 Insofar as Collins was decided against the Indiana Family and Social Services Administration—the defendants at present—the State is likely barred by the doctrine of collateral estoppel from insisting that it possesses discretion to refuse Medicaid payment for services deemed necessary by an EPSDT provider. See, e.g., H-D Michigan, Inc. v. Top Quality Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007) (reiterating the established test for determining when an issue is precluded by collateral estoppel, whereby (a) the issue sought to be precluded must have been actually litigated in prior litigation, (b) the determination of the issue must have been essential to the final judgment in the prior litigation, (c) the party against whom estoppel is invoked must have been fully represented in the prior action, and (d) the issue sought to be precluded must be the same as that involved in the prior litigation).
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This holding—that the responsibility for determining the propriety of services for EPSDT-eligible children rests with their actual providers—is also supported by the holdings of other courts. In Pediatric Specialty Care, Inc. v. Arkansas Department of Human Services, 293 F.3d 472 (8th Cir. 2002), for instance, the Eighth Circuit interpreted the same statutory backdrop as it related to a State’s proposed cuts in EPSDT services resulting from a budgetary shortfall. As in Collins, the court held explicitly that a state has no discretion to deny services recommended or otherwise prescribed by the treatment provider of an EPSDT-eligible child. Said the court: “We affirm the district court’s decision to the extent that it holds that a Medicaid eligible individual has a federal right to early intervention day treatment when a physician recommends such treatment.” Id. at 480 (emphasis added). Thus,
after [clinical staff] perform a diagnostic evaluation of an eligible child, if the . . . physician prescribes early intervention day treatment as a service that would lead to the maximum reduction of medical and physical disabilities and restoration of the child to his or her best possible functional level, the [State] must reimburse the treatment. Id. In the words of another district court, “if a competent and credible diagnosis shows that a child requires a specific treatment, courts will find that the state has an obligation to provide it.” Rosie D. v. Romney, 410 F.Supp.2d 18, 29 (D. Mass. 2006). This, once again, is hardly surprising. For one, it is entirely in keeping with the “broad mandate of the EPSDT program” that has been made “abundantly clear.” Smith v. Benson, __ F.Supp.2d __, 2010 WL 1404066, at *4 (S.D. Fla. Jan. 28, 2010); see also, e.g., Parents’ League for Effective Autism Servs. v. Jones-Kelley, 339 Fed. Appx. 542, 549 (6th Cir. 2009) (noting that judicial decisions must “comport with the broad coverage afforded under the EPSDT mandate”); Katie A. v. Los Angeles County, 481 F.3d 1150, 1154 (9th Cir. 2007) (noting that “[t]he EPSDT obligation is . . . extremely broad”); Ekloff, 443 F.Supp.2d at 1180–81 (noting that, in the context
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of EPSDT services, “there is a very strong inference to be inclusive rather than exclusive”); Rosie D., 410 F.Supp.2d at 25 (noting that “[a]s broad as the overall Medicaid umbrella is generally, the initiatives aimed at children are far more expansive”). Moreover, this interpretation of the EPSDT provisions is supported by the legislative history of these provisions: as this history makes clear, “Medicaid [was intended to] cover any medically necessary services identified as necessary through the EPSDT program.” 135 Cong. Rec. S6900 (June 19, 1989) (statement of Sen. Chafee). And finally, this may be viewed as simply the codification of the age-old principle that a treating physician is in the best position to assess the needs of his or her patient. See, e.g., Capizanno v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006); Gossage v. U.S., 91 Fed. Cl. 101, 107 (Fed. Cl. 2010).
That is precisely the case here, and, once again, controlling authority indicates that “a state’s discretion to exclude services deemed ‘medically necessary’ by an EPSDT provider has been circumscribed by the express mandate of the statute.” Collins, 349 F.3d at 376 n.8. In this case, the facts adduced at the preliminary injunction hearing will demonstrate that the therapy services at issue have been found medically necessary by the plaintiffs’ treatment providers and have therefore been recommended or prescribed. Indeed, the very nature of Indiana’s prior authorization program ensures that any requested service is first recommended by an individuals’ providers. See IND. ADMIN. CODE tit. 405, r.5-3-5(a) (requiring that, upon seeking approval for a given service, a provider submit “[w]ritten evidence of physician involvement and personal patient evaluation” as well as “a current plan of treatment and progress notes, as to the necessity, effectiveness, and goals of therapy services”). As such, the State’s reliance on two (2) provisions of the Indiana Administrative Code to refuse or otherwise limit requested therapies on behalf of the plaintiffs and the putative class is in violation of federal Medicaid law.
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C. Even if the State were to possess discretion to refuse physician-recommended services to EPSDT-eligible children, the refusal to provide Medicaid coverage for so-called “maintenance therapy” conflicts squarely with federal Medicaid law.
Even were this Court to conclude that the State possesses discretion under federal Medicaid law to refuse payment for prescribed therapies on behalf of EPSDT-eligible children, the State’s use of the two (2) challenged provisions of the Indiana Administrative Code suffers from a more fundamental fallacy. That is, the State has decided that it will not provide Medicaid payment for what it refers to as “maintenance therapy.” IND. ADMIN. CODE tit. 405, r. 5-226(b)(7). This is therapy that the State determines “addresses chronic medical conditions where further progress can no longer be expected or where progress is minimal in relation to the time needed in therapy to achieve that progress.” IND. ADMIN. CODE tit. 405, r. 5-22-1(5). And, although an ostensible exception to its rule that therapies will not be provided for more than two (2) years exists for children under eighteen (18) years of age, see IND. ADMIN. CODE tit. 405, r. 522-6(b)(7), the prohibition on the provision of “maintenance therapy” has no exceptions. This is so even when so-called “maintenance therapy” is necessary in order to ward against significant regression in a patient’s functional state. The legal issue, therefore—in its simplest terms—is whether federal Medicaid law requires a participating state to provide Medicaid payment for therapy services for children when those services are necessary in order to prevent a patient’s regression even when substantial further progression may not be likely. The answer is a resounding “yes.”
The Medicaid Act specifically requires participating states to cover medical care specified in 42 U.S.C. § 1396d(a) for minors when that care has been prescribed by a physician or licensed practitioner of the healing arts “to correct or ameliorate defects and physical and mental illnesses and conditions.” 42 U.S.C. § 1396d(r)(5). Thus, the analysis of whether the
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State is required to provide Medicaid payment for physical therapy, occupational therapy, respiratory therapy, and speech pathology even when those services are only necessary to be prevent against the regression in a child’s condition may proceed in two (2) parts: first, these services must fall within the ambit of the second clause of 42 U.S.C. § 1396d(r)(5) and be for the purpose of “correcting or ameliorating” a defect, illness, or condition; and second, these therapies must fall within the ambit of one of the services detailed in 42 U.S.C. § 1396d(a). In the present case, it is clear that both requirements are met.10
1. The “Correct or Ameliorate” Provision – 42 U.S.C. § 1396d(r)(5) Section 1396d(r)(5) of the Medicaid Act requires the provision of Medicaid payment on behalf of EPSDT-eligible children for all “necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of [42 U.S.C. § 1396d] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” The question, therefore, is whether “maintenance therapy”—by preventing or retarding medical and functional regression— corrects or ameliorates the defects and physical and mental illnesses of the plaintiffs, or whether this language bespeaks only therapies designed to enable significant progression in a Medicaid recipient’s medical condition. Initially, it deserves reiteration that, in the context of EPSDT services, “there is a very strong inference to be inclusive rather than exclusive.” Ekloff, 443 F.Supp.2d at 1180–81.
10 The EPSDT mandate also requires that the services at issue be prescribed or otherwise recommended by a patient’s physician or other licensed practitioner of the healing arts. 42 U.S.C. § 1396d(r)(5). Given that, as noted above, the prior authorization requirement in Indiana ensures that all requested services will be recommended by a patient’s treatment providers, this requirement is clearly met in this case, and the State may not seriously contend to the contrary.
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Moreover, the precise issue presented by this case was resolved in both Collins v. Hamilton, supra, and Ekloff. According to the district court in Collins,
[t]he Medicaid Act specifically directs the State to “ameliorate” mental illnesses in children. “Ameliorate” is defined as “to make better or more tolerable.” There is no time limitation evident in this definition. Required treatment includes anything which is to make a condition, even a long-term condition like mental illness, more tolerable. Collins v. Hamilton, 231 F.Supp.2d 840, 848–49 (S.D. Ind. 2002), aff’d, 349 F.3d 371 (7th Cir. 2003) (Young, J.) (quoting WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY (1963)). Continued the court, in words entirely apposite to the present case: “the State has decided that these children are ‘lost causes’ and it is not feasible to treat these children. In other words, they are ‘too disabled’ for treatment. The court does not believe that this was the intent of Congress in enacting the federal Medicaid Act.” Id. at 849. On appeal, the Seventh Circuit agreed. Addressing the State’s argument that long-term placements cannot “improve” a patient’s condition, the court “s[aw] no reason why residential treatment, even if long-term, cannot consist of ‘active treatment’ that ‘improves or ameliorates’ a patient’s condition.” Collins, 349 F.3d at 375–76. The Ekloff court relied on Judge Young’s decision in Collins to reach a similar conclusion. The question in that case was whether the EPSDT provisions required a state participating in the Medicaid program to provide payment for incontinence briefs “for preventative purposes.” 443 F.Supp.2d at 1179. Although the disabled children in Ekloff did not currently suffer from “skin breakdown,” these briefs were necessary “in order to avoid skin breakdown and infection and to enable [the children] to participate in social, community, therapeutic and educational activities.” Id. at 1175. Held the court: Webster’s Dictionary defines “ameliorate” as “to make better or more tolerable.” Clearly, the incontinence briefs are meant to make the children’s condition better
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or more tolerable by preventing skin breakdown. The briefs are used to not only prevent future pain from open skin sores but to facilitate and maximize their daily opportunities as well as to make their condition as tolerable as possible by not forcing them to suffer the needless pain of skin sores. This seems to be the very essence of what Congress had intended in their Medicaid statute. Id. at 1180. The court in Ekloff thus, explicitly and with no equivocation whatsoever, rejected the state’s argument that the “correct or ameliorate” provision only requires participating states “to cover services that correct or improve actually existing defects and conditions and . . . does not require preventative measures.” Id. at 1181. This extremely narrow reading of 42 U.S.C. § 1396d(r)(5) cannot not be squared with the language of the statute, prior case law, or legislative history. Id. The present case is on all fours with both Collins and Ekloff. The Indiana Family and Social Services Administration has determined that it will not provide Medicaid payment for therapy services that are necessary “only” to maintain a disabled child’s current functional state. However, without these services, the plaintiffs and the members of the putative class will lose significant functionality, will lose the ability to assist in their activities of daily living, and will likely require multiple surgeries—almost certainly paid for by the Medicaid program—in order to cure injuries caused by the absence of therapy services. Given that one of the principal goals of the EPSDT program is to “assure that health problems found are diagnosed and treated early, before they become more complex and their treatment more costly,” S.D., 391 F.3d at 586 (citation and alteration omitted), this cannot be so.11
11 The “correct or ameliorate” provision of the Medicaid Act—42 U.S.C. § 1396d(r)(5)—cannot be read to preclude the provision of Medicaid payment for so-called “maintenance therapy” for an additional reason. The first clause of that section requires the coverage of “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in” 42 U.S.C. § 1396d(a). Given that one of these services for which coverage must be provided is “preventative . . . services, including any medical or remedial services . . . for the maximum reduction of physical or mental disability,” 42 U.S.C. § 1396d(a)(13), the EPSDT provision is
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2. The Services Described in 42 U.S.C. § 1396d(a) Given that the “maintenance therapy” at issue in this case must be deemed to “correct or ameliorate defects and physical and mental illnesses and conditions,” the next issue to be resolved is whether these therapy services consitute “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [42 U.S.C. § 1396d(a)].” See 42 U.S.C. § 1396d(r)(5). The services at issue in this case are covered by three (3) separate provisions of 42 U.S.C. § 1396d(a).
a. Physical Therapy and Related Services – 42 U.S.C. § 1396d(a)(11) First, federal Medicaid law requires the coverage of “physical therapy and related services.” See 42 U.S.C. § 1396d(a)(11). The State’s prohibition on the provision of “maintenance therapy,” however, encompasses occupational, physical, and respiratory therapy, as well as speech pathology. See IND. ADMIN. CODE tit. 405, r. 5-22-6. Clearly physical therapy is covered by 42 U.S.C. § 1396d(a)(11). The issue as to occupational therapy, respiratory therapy, and speech pathology, however, requires a determination as to what constitutes a “related service” under that provision. However, an answer to this question may be gleaned from federal regulations, which specify that, at the very least, occupational therapy and speech pathology qualify as a service related to physical therapy. Meyers v. Reagan, 776 F.2d 241, 243–44 (8th Cir. 1985) (relying on 42 C.F.R. § 440.110); see also William T. v. Taylor, 465 F.Supp.2d 1267, 1287 (N.D. Ga. 2000) (noting that speech pathology services “are included in the statutory ‘physical therapy and related services’ category”); Fred C. v. Texas Health & Human Servs. Comm’n, 988 F.Supp.
rendered meaningless in part if “maintenance therapy” is deemed non-coverable. Clearly, courts must “avoid interpreting a statute in a way that renders a word or phrase redundant or meaningless.” E.g., United States v. Berkos, 543 F.3d 392, 396 (7th Cir. 2008).
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1032, 1034–35 (W.D. Tex. 1997) (noting that “services with speech hearing and language disorders” are included within the “related services” provision of 42 U.S.C. § 1396d(a)(11)) (citing Meyers, 776 F.2d at 243–44); Hunter v. Chiles, 944 F.Supp. 914, 919 (S.D. Fla. 1996) (same) (citing Meyers, 776 F.2d at 243–44).12
b. Respiratory Care Services – 42 U.S.C. § 1396d(a)(20) Second, as noted immediately above, the State’s prohibition on providing Medicaid coverage for “maintenance therapy” encompasses physical therapy, occupational therapy, respiratory therapy, and speech pathology. Three (3) of these services—physical therapy, occupational therapy, and speech pathology—are included within the “physical therapy and related services” category of 42 U.S.C. § 1396d(a)(11). See 42 C.F.R. § 440.110. While respiratory therapy is not included within this provision, federal Medicaid law explicitly (and separately) requires the coverage of “respiratory care services.” 42 U.S.C. § 1396d(a)(20). These are services “provided by a respiratory therapist or other health care professional trained in respiratory therapy.” 42 U.S.C. § 1396a(e)(9)(C). Clearly respiratory therapy, as that term is used in Title 405, rule 5-22-6 of the Indiana Administrative Code, is included within this provision.
c. Preventative and Rehabilitative Services – 42 U.S.C. § 1396d(a)(13) And finally, federal Medicaid law also requires the coverage of other diagnostic, screening, preventative, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts
12 “Physical therapy” is defined only as “services prescribed by a physician or other licensed practitioner of the healing arts within the scope of his or her practice under State law and provided to a recipient by or under the direction of a qualified physical therapist.” 42 C.F.R. § 440.110(a). “Occupational therapy” is defined in nearly identical terms. See 42 C.F.R. § 440.110(b). The utter lack of qualification in these definitions is also strong evidence that the services at issue in this case must be covered under the Medicaid program.
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within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. 42 U.S.C. § 1396d(a)(13). “Preventative services”—as that term is used in this statute—refers to services provided by a licensed practitioner of the healing arts in order to (a) prevent disease, disability, or other health conditions or their progression; (b) prolong life; or (c) promote physical and mental health and efficiency.” 42 C.F.R. § 440.130(c). Certainly, so-called “maintenance therapy” is, at the very least, intended to prevent the progression of disabilities and promote physical and mental health. For this reason as well, the therapies at issue in this case must be covered by the State. This reading is buttressed by the legislative history of the EPSDT statute. In testifying before the House Ways and Means Committee, the Secretary of the Department of Health, Education, and Welfare (now the Department of Health and Human Services) stated as follows: In low-income areas, we estimate that six out of every ten children who suffer from one or more chronic conditions are not receiving any treatment. * * * In most instances, this complete loss is unnecessary and preventable. Mitchell v. Johnston, 701 F.2d 337, 347 (5th Cir. 1983) (quoting Hearings Before the Committing on Ways & Means Regarding H.R. 57-10, at 189–91 (testimony of Secretary John Gardner)) (emphasis in Mitchell). Although the latter portion of Secretary Gardner’s testimony specifically concerned preventative dental care, these statements are equally applicable to the present care and are powerful evidence that Congress sought to ensure the coverage of treatment and other care directed toward even chronic medical conditions. It is this treatment that is not covered by the State at present. See IND. ADMIN. CODE tit. 405, r. 5-22-1(5) (defining “maintenance therapy,” in part, as “therapy addressing chronic medical conditions”).
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The district court in Parents League for Effective Autism Services (PLEAS) v. JonesKelley, 565 F.Supp.2d 905 (S.D. Ohio 2008), aff’d, 339 Fed. Appx. 542 (6th Cir. 2009), thus addressed an issue nearly identical to the issue presented by this case. In that case, the plaintiffs challenged the refusal of Ohio’s Medicaid agency to cover certain mental health services recommended for children with autism. Id. at 907, 909–10. That is, the agency in that case decided that the services at issue were “not generally ‘habilitative’ because the services [we]re not ‘restoring’ any skills that the child previously had,” and that they therefore did not fall within the ambit of 42 U.S.C. § 1396d(a)(13). Id. at 916. After first detailing the “extremely broad EPSDT obligation” on states, id. at 912, the district court soundly rejected this notion:
[The d]efendants have cited no authority for their restrictive interpretation that “remedial and medical services” are covered only if they are “rehabilitative.” . . . Given the expansive requirements of the EPSDT mandate, the Court finds no basis for such a restrictive reading of the statute. Moreover, section (a)(13) also requires that State’s [sic] provide “preventative services” which are defined as: services provided by a physician or other licensed practitioner of the healing arts within the scope of his practice under state law to: 1) prevent disease, disability, and other health conditions or their progression; 2) prolong life; and 3) promote physical and mental health and efficiency. Thus, the services . . . may well be “preventative” as well as “rehabilitative.” Id. at 916. This conclusion—that “the services required by the EPSDT mandate are more broad than [the d]efendants would suggest”—was also supported by case law. Id. at 916–17 (citing Rosie D. v. Romney, 410 F.Supp.2d 18 (D. Mass 2006), S.D. v. Hood, 391 F.3d 581 (5th Cir. 2004), and Pediatric Specialty Care, Inc. v. Arkansas Dep’t of Human Servs., 443 F.3d 1005 (8th Cir. 2006)).13
13 On appeal, the Sixth Circuit affirmed the district court’s decision in PLEAS. 339 Fed. Appx. 542 (6th Cir. 2009). In so doing, it focused on the mandate of 42 U.S.C. § 1396d(a)(13) that rehabilitative services be covered, and did not venture into the mandate that preventative services also be covered. However, the court soundly rejected the state agency’s contention that the
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Indeed, the “maintenance therapy” at issue in this case has as its very root the word
“maintain,” which is defined to include “preserve from failure or decline” and “to keep in an
existing state.” See WEBSTER’S SEVENTH NEW COLLEGIATE DICTIONARY 509 (1972). The clear
implication is, to put it crassly, that something bad will happen absent these services. In the case
of the plaintiffs and the members of the putative class, this “something bad” is significant
regression in their conditions, the loss of functionality and the ability to assist in their activities
of daily living, the deterioration of muscles and tendons, and the potential need for multiple
surgeries that would not otherwise be required. At the very least, the therapies at issue in this
case qualify as “preventative services” under 42 U.S.C. § 1396d(a)(13), and must therefore be
covered pursuant to the State’s EPSDT obligation. The plaintiffs are therefore exceedingly
likely to prevail on the merits of their legal claims.
services at issue need only be provided to return an individual to a previously possessed functional level, concluding as follows:
First, § 1396d(a)(13) reflects the extremely broad EPSDT obligation. [The d]efendants’ reading of § 1396d(a)(13) to cover only services that restore a child to a prior skill level would arguably mean that no child who is born with a disability[] could ever receive rehabilitative services. Such an outcome arguably does not comport with the broad coverage afforded under the EPSDT mandate.
Second, cases from other circuits have concluded that § 1396d(a) covers services that are arguably similarly to the [therapies at issue.]
Third, no administrative interpretations of § 1396d(a)(13) appear to clarify or restrict the provision in the way suggested by the defendants.
339 Fed. Appx. at 549. The Eighth Circuit in Pediatric Specialty Care reached a similar conclusion, see 293 F.3d at 480–81 (concerning early intervention day treatment), and the Seventh Circuit in Collins gave short shrift to the State’s argument the long-term residential placement at issue could not “improve” a patient’s condition, see 349 F.3d at 375–76. For the same reasons described above (concerning the “correct or ameliorate” provision of federal Medicaid law) the services presently at issue also qualify as “rehabilitative services” within the meaning of 42 U.S.C. § 1396d(a)(13)—and clearly they are designed to ensure the “maximum reduction of physical or mental disability” and to maintain individuals’ “best possible functional level.”
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II. IRREPARABLE HARM FOR WHICH NO ADEQUATE REMEDY AT LAW EXISTS Next, the harm that the plaintiffs will suffer absent a preliminary injunction in this cause
will be dramatic. After all, this case concerns the provision of therapy services that enable disabled children to maintain their highest degree of functionality. These services permit the plaintiffs to assist their parents or other caretakers with transfers, bathing, toileting, and all forms of mobility. Absent the provision of these services, the plaintiffs can expect significant regression in their conditions, including the potential for multiple surgeries and substantial loss of function. There is no other remedy for these consequences.
For these reasons, it is clear that “[i]n cases alleging that a state law violates the federal Medicaid statute and requesting injunctive relief”—as this case does—“irreparable harm nearly always follows a finding of success on the merits.” Smith v. Benson, __ F.Supp.2d __, 2010 WL 1404066, at *11 (S.D. Fla. Jan. 28, 2010) (citing numerous cases). Thus, “Medi[caid] recipients may demonstrate a risk of irreparable injury by showing that enforcement of a proposed rule ‘may deny them needed medical care.’” Indep. Living Ctr. of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 658 (9th Cir. 2009) (citation omitted); see also, e.g., Massachusetts Ass’n of Older Americans v. Sharp, 700 F.2d 749, 753 (1st Cir. 1983) (“Termination of benefits that causes individuals to forego . . . necessary medical care is clearly irreparable injury.”) (citations omitted). This line of cases is entirely on par with the present case, and it is clear that the plaintiffs will suffer irreparable injury without the issuance of a preliminary injunction. III. BALANCING OF HARMS
The balancing of harms likewise weighs in favor of the plaintiffs. Without an injunction, the plaintiffs will be faced with an ongoing violation of the Medicaid Act and with the ongoing inability to access necessary medical care. Because they have demonstrated a substantial
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likelihood of success on the merits of their claim, “no substantial harm to others can be said to inhere in its enjoinment.” See, e.g., Déjà vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 400 (6th Cir. 2001); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). On the other hand, an injunction will merely force the State to conform its conduct to legal norms and the requirements of federal law. A governmental entity cannot claim that requiring it to comply with controlling law is harmful. The balance of harms therefore favors the issuance of equitable relief. IV. PUBLIC INTEREST
Finally, it is “always in the public interest to prevent violation of a party’s constitutional rights.” Déjà vu of Nashville, 274 F.3d at 400 (quoting G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)). The same may be said of the plaintiffs’ federal rights under the Medicaid Act. After all, “there is a robust public interest in safeguarding access to medical care for those eligible for Medicaid, whom Congress has recognized as ‘the most needy in the country.’” Indep. Living Ctr., 572 F.3d at 659 (citing Schweiker v. Hogan, 457 U.S. 569, 590 (1982)). Thus, the public interest is served by the enforcement of the Medicaid Act.
THE INJUNCTION SHOULD ISSUE WITHOUT BOND Finally, Rule 65(c) of the Federal Rules of Civil Procedure states that no preliminary injunction should issue except until security is given in an amount deemed proper by the court. See FED. R. CIV. P. 65(c). Nonetheless, the amount of security required—and, indeed, whether security should be required at all—rests soundly in the discretion of the trial court. See Scherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir. 1972). Thus, despite the language of the federal rule, appropriate circumstances excuse the issuance of a preliminary injunction without a bond. See,
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e.g., Wayne Chemical, Inc. v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977). In determining whether a bond should be required, courts look to various factors: the possible loss to the enjoined party; the hardship a bond would impose on the applicant; and the impact of a bond on the enforcement of federal rights. See Smith v. Bd. of Election Comm’rs for the City of Chicago, 591 F.Supp. 70, 72 (N.D. Ill. 1984) (citing Crowley v. Local No. 82, 679 F.3d 978, 1000 (1st Cir. 1982)).
This case represents a challenge by seriously disabled juvenile Medicaid recipients to various standards governing the provision of services that have been implemented by a state agency with an annual budget in the billions of dollars. See Indiana Budget Agency, 2009–11 Budget, available at http://www.in.gov/sba/2543.htm (last visited Apr. 12, 2010). As noted above, Congress has declared the Medicaid population to be “the most needy in the country.” Schweiker, 457 U.S. at 590. Of course, the sub-set of the Medicaid population consisting of seriously disabled children is even more needy. To require a bond in the present case would be to condition the exercise of the plaintiff’s federal rights to adequate medical care on their financial status. Therefore, no bond should be required.
CONCLUSION For the foregoing reasons, the State should be preliminary enjoined from enforcing the challenged provisions of the Indiana Administrative Code against EPSDT-eligible children for whom therapy services have been prescribed or otherwise recommended by their treatment professionals. In the event that the Court grants the plaintiffs’ request for class certification, the preliminary injunction should inure to the benefit of the class as well.
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Case 1:10-cv-00358-JMS-TAB Document 23 Filed 04/16/10 Page 26 of 27 PageID #: 139 Respectfully submitted, /s/ Gavin M. Rose Gavin M. Rose, No. 26565-53 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635-4059, x106 Fax: 317/635-4105 <grose@aclu-in.org> Attorney for the plaintiffs and the putative class
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CERTIFICATE OF SERVICE I hereby verify that on this 16th day of April, 2010, a copy of the foregoing was filed electronically with the Clerk of this Court. This filing may be accessed through the Court’s electronic system. This filing was served on the following parties by operation of the Court’s electronic system:
Betsy M. Isenberg Eric J. Beaver Office of the Attorney General IGCS – 5th Floor 302 W. Washington St. Indianapolis, IN 46204
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
27

 
 Case 1:10-cv-00358-JMS-TAB Document 36 Filed 05/21/10 Page 1 of 1 PageID #: 190

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

ANNE WALTERMANN MURPHY, et al., )

)

Defendants.

)

No. 1:10-cv-0358-SEB-TAB

STIPULATION

COME NOW all parties, by counsel, and stipulate and agree as follows:

1. Attached Exhibits 1 and 2 are authentic and admissible.

2. All of the seventeen (17) denials on attached Exhibit 1 concerned requests made on

behalf of a Medicaid recipient under twenty-one (21) years of age.

3. Of the fifty-three (53) denials on attached Exhibit 2, thirty-two (32) concerned requests

made on behalf of a Medicaid recipient under twenty-one (21) years of age.

WHEREFORE, the parties respectfully enter into the above-described stipulation, and

request all other proper relief.

For the Plaintiffs:
_/s/ Gavin M. Rose_____________ Gavin M. Rose ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

For the Defendants:
_/s/ Betsy M. Isenberg_________________ Betsy M. Isenberg (with permission) Eric J. Beaver Office of the Attorney General 302 W. Washington St., Fifth Floor Indianapolis, IN 46204

1

 
 Case 1:10-cv-00358-JMS-TAB Document 55 Filed 09/20/10 Page 1 of 1 PageID #: 633

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

ANNE WALTERMANN MURPHY, et al., )

)

Defendants.

)

No. 1:10-cv-0358-JMS-TAB

SECOND STIPULATION

COME NOW all parties, by counsel, and stipulate and agree that, in lieu of proceeding

with the preliminary injunction hearing that was originally scheduled in this cause for May 28,

2010, the parties agreed that the named plaintiffs would be provided with Medicaid payment for

the therapies identified in the plaintiffs’ complaint pending the final disposition of this case.

WHEREFORE, the parties respectfully enter into this Second Stipulation, and request

all other proper relief.

For the Plaintiffs:
_/s/ Gavin M. Rose_____________ Gavin M. Rose Kenneth J. Falk ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202

For the Defendants:
_/s/ Betsy M. Isenberg_________________ Betsy M. Isenberg (with permission) Eric J. Beaver Office of the Attorney General 302 W. Washington St., Fifth Floor Indianapolis, IN 46204

1

 
 Case 1:10-cv-00358-JMS-TAB Document 57 Filed 09/28/10 Page 1 of 3 PageID #: 636

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., BY HIS MOTHER AND NEXT FRIEND

)

KARLA T., ET AL.,

)

Plaintiffs,

)

)

vs.

)

)

ANNE WALTERMAN MURPHY IN HER OFFICIAL )

CAPACITY AS SECRETARY OF THE INDIANA

)

FAMILY AND SOCIAL SERVICES ADMINISTRA- )

TION, ET AL.,

)

Defendants.

)

1:10-cv-0358-JMS-TAB

ORDER

In March 2010, Plaintiffs sued representatives of the Indiana Family and Social Services

Administration (“FSSA”) for practices or policies that they allege violate “federal Medicaid

law.” [Dkt. 1 at ¶¶ 81-83.] Presently before the Court is Plaintiffs’ Motion to Certify Class,

[dkt. 10], and the FSSA’s Motion to Dismiss Plaintiffs’ Complaint, [dkt. 33].

Accepting the allegations of the Complaint as true, Plaintiffs are seriously disabled mi-

nors who receive Medicaid benefits and whose physicians have recommended therapies “to en-

sure that the plaintiffs do not lose functional abilities.” [Dkt. 1 at ¶ 1.] The FSSA, however, has

denied or otherwise limited Plaintiffs’ requests for maintenance therapy because of 405 IAC 5-

22-6(b)(6) or (b)(7). Plaintiffs argue that the FSSA’s actions “violate[] federal Medicaid law.”

[Dkt. 1 at ¶¶ 81-83.]

The FSSA argues that Plaintiffs’ Complaint should be dismissed because Plaintiffs do not

allege which portion of federal Medicaid law 405 IAC 5-22-6(b)(6) and (b)(7) violate. [Dkt. 34

at 1.] Although the FSSA asks this Court to dismiss Plaintiffs’ Complaint, it conceded at oral

argument that its motion could be construed as a motion for more definite statement because it

- 1 -

Case 1:10-cv-00358-JMS-TAB Document 57 Filed 09/28/10 Page 2 of 3 PageID #: 637
ultimately asks Plaintiffs to more particularly specify their claim. Plaintiffs suggested as much in their opposition brief to the instant motion. [Dkt. 39 at 18.]
The Court will construe the FSSA’s motion as a motion requesting a more definite statement pursuant to Trial Rule 12(e) of the Federal Rules of Civil Procedure. Although motions of this nature are generally disfavored and should not be used as a substitute for discovery, Rosenbaum v. Seybold, 2007 U.S. Dist. LEXIS 48021 (N.D. Ind. 2007), the timing of this motion and the complexity of this case favors a more definite statement for at least two reasons. First, Medicaid law has been described as “among the most completely impenetrable texts within human experience.” Rehab. Ass’n v. Kozlowski, 42 F.3d 1444, 1450 (4th Cir. 1994). Its dense nature favors granting the FSSA’s motion so that the FSSA will have adequate notice of the provisions the Plaintiffs allege it violated, and both parties will be able to more clearly assess the case for possible settlement. Second, Plaintiffs seek class certification, and the specific Medicaid provisions they allege that the FSSA violated may well be relevant to the Court’s consideration of factors such as class typicality and class definition..
The Court is aware of Seventh Circuit authority providing that “plaintiffs in federal courts are not required to plead legal theories.” See, e.g., Hatmaker v. Mem’l Med. Ctr. , 2010 U.S. App. LEXIS 18098 *2 (7th Cir. 2010) (holding that Twombly and Iqbal did not undermine the pleading standard for legal theories). This case, however, presents a complex situation in which the parties and the Court would be greatly assisted by a more specific allegation than that the FSSA allegedly violated “federal Medicaid law.” [Dkt. 1 at ¶¶ 81-83.] For these reasons, the Court GRANTS the FSSA’s motion in part, [dkt. 33], to the extent it is treated as a motion for more definite statement, and DENIES it in part to the extent it was filed as a motion to dismiss.
- 2 -

Case 1:10-cv-00358-JMS-TAB Document 57 Filed 09/28/10 Page 3 of 3 PageID #: 638

The Court further ORDERS the Plaintiffs to file a more definite statement within fourteen days. Plaintiffs’ Motion to Certify Class will remain UNDER ADVISEMENT. [Dkt. 10.]

09/28/2010
Distribution via ECF only:
Eric James Beaver INDIANA OFFICE OF THE ATTORNEY GENERAL eric.beaver@atg.in.gov
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov
Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

- 3 -

 
 Case 1:10-cv-00358-JMS-TAB Document 58 Filed 10/01/10 Page 1 of 4 PageID #: 639

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

ANNE WALTERMANN MURPHY, et al., )

)

Defendants.

)

No. 1:10-cv-0358-JMS-TAB

MORE DEFINITE STATEMENT CONCERNING LEGAL CLAIMS

COME NOW Plaintiffs and the putative class, by counsel, and pursuant to this Court’s

Order of September 28, 2010 (R. Doc. 57), file this More Definite Statement Concerning Legal

Claims. Specifically, the plaintiffs inform the Court and all other parties of the following:

1. On March 25, 2010, the plaintiffs filed their Class Action Complaint for Declaratory and

Injunctive Relief (“Complaint”) in this cause.

2. On May 17, 2010, the defendants filed their Motion to Dismiss (R. Doc. 33) and

accompanying memorandum (R. Doc. 34) in this cause, in which they argued that the

plaintiffs’ Complaint should be dismissed insofar as “[t]he [p]laintiffs have made a broad,

sweeping allegation that the [d]efendants are violating federal Medicaid law” and “do not

point to a specific provision or provisions of federal Medicaid law that are violated by the

alleged practices of the [d]efendants.” Mem. in Supp. of Defts.’ Mot. to Dismiss, at 3.

3. On September 28, 2010, the Court granted in part the defendants’ Motion to Dismiss, “to

the extent that it is treated as a motion for more definite statement,” and ordered the

1

Case 1:10-cv-00358-JMS-TAB Document 58 Filed 10/01/10 Page 2 of 4 PageID #: 640
plaintiffs to file a more definite statement within fourteen days. Order of September 28,
2010, at 2–3.
4. Accordingly, the plaintiffs supply the following more definite statement concerning the
legal claims of their Complaint (paragraph numbers are derived from the plaintiffs’
Complaint):
81. The defendants’ practice or policy whereby it denies and/or limits Medicaid coverage for the plaintiffs and the members of the class for physical therapy, occupational therapy, respiratory therapy, and/or speech pathology notwithstanding the fact that these services have been recommended and/or prescribed by a Medicaid recipient’s physician or other licensed practitioner of the healing arts acting within the scope of his or her practice violates and is preempted by the following provisions of federal Medicaid law: 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230.
82. The defendants’ practice or policy whereby it refuses to cover “maintenance therapy” for the plaintiffs and the members of the class violates and is preempted by the following provisions of federal Medicaid law: 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230.
83. The defendants’ practice or policy whereby it refuses to cover therapies for more than two (2) years for the plaintiffs and the members of the class without a significant change in medical condition requiring longer therapy violates and is preempted by the following provisions of federal Medicaid law: 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230.
5. As noted during the hearing on the defendants’ Motion to Dismiss conducted on
September 22, 2010, 42 U.S.C. § 1396d is a definitional statute. Nonetheless, the
plaintiffs inform the Court and all other parties that the following provisions of that
statute are relevant to each of their legal claims: 42 U.S.C. § 1396d(a)(4)(B) (and 42
C.F.R. § 440.40(b) and 42 C.F.R. § 441.50, et seq.); 42 U.S.C. § 1396d(a)(11) (and 42
C.F.R. § 440.110); 42 U.S.C. § 1396d(a)(13) (and 42 C.F.R. § 440.130); 42 U.S.C. §
1396d(a)(20); and 42 U.S.C. § 1396d(r)(5). To the extent that the defendants’ practices
2

Case 1:10-cv-00358-JMS-TAB Document 58 Filed 10/01/10 Page 3 of 4 PageID #: 641
or policies have attempted to redefine the relevant services, these practices or policies are also preempted by the definitional statutes and regulations. WHEREFORE, the plaintiffs file their More Definite Statement Concerning Legal Claims pursuant to this Court’s Order of September 28, 2010 (R. Doc. 57), and request all other proper relief.
Respectfully submitted, /s/ Gavin M. Rose Gavin M. Rose, No. 26565-53 Kenneth J. Falk, No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635-4059, x106 Fax: 317/635-4105 <grose@aclu-in.org> Attorney for the plaintiffs and the putative
class
3

Case 1:10-cv-00358-JMS-TAB Document 58 Filed 10/01/10 Page 4 of 4 PageID #: 642
CERTIFICATE OF SERVICE I hereby verify that on this 1st day of October, 2010, a copy of the foregoing was filed electronically with the Clerk of this Court. This filing may be accessed through the Court’s electronic system. This filing was served on the following parties by operation of the Court’s electronic system:
Betsy M. Isenberg Eric J. Beaver Office of the Attorney General IGCS – 5th Floor 302 W. Washington St. Indianapolis, IN 46204
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
4

 
 Case 1:10-cv-00358-JMS-TAB Document 84 Filed 11/12/10 Page 1 of 3 PageID #: 822

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., et al.,

)

Plaintiffs,

)

)

vs.

) 1:10-cv-0358-JMS-TAB

)

ANNE WALTERMAN MURPHY, in her official )

capacity as Secretary of the Indiana Family )

and Social Services Administration, et al.,

)

Defendants.

)

ORDER ON DEFENDANTS’ MOTION TO STAY

Plaintiffs filed a Motion for Summary Judgment on October 12, 2010. [Dkt. 64.] Defen-

dants filed a Motion for Partial Judgment on the Pleadings on November 10, 2010. [Dkt. 78.]

Contemporaneously, Defendants also filed a Motion to Stay Briefing on Plaintiffs’ Motion for

Summary Judgment. [Dkt. 80.] Plaintiffs filed a response that same day, objecting to Defen-

dants’ request to stay briefing on their summary judgment motion. [Dkt. 81.]

Defendants argue that the Court should stay briefing on Plaintiffs’ Motion for Summary

Judgment for two reasons. First, Defendants argue that judicial economy dictates ruling on their

Motion for Partial Judgment on the Pleadings before they respond to Plaintiffs’ Motion for

Summary Judgment because Defendants will not have to respond to certain arguments if they

succeed on their Rule 12(c) motion. Second, Defendants argue that they need additional time to

conduct discovery because they are “unable to complete the necessary affidavits from medical

professionals to support their assertion that the requested therapies are not medically necessary.”

[Dkt. 83 at 2 ¶8.]

Defendants’ judicial economy argument fails because, as they admit, they have only

moved for partial judgment on the pleadings and “there are remaining issues even if the Court

- 1 -

Case 1:10-cv-00358-JMS-TAB Document 84 Filed 11/12/10 Page 2 of 3 PageID #: 823

grants the Defendants’ motion for partial judgment on the pleadings.” [Dkt. 83 at 2 ¶5.] Given the gravity of the issues at hand, Plaintiffs’ vulnerability, and the fact that issues will remain regardless of how the Court rules on Defendants’ 12(c) motion, the Court finds this argument unavailing.
As for Defendants’ argument that they need additional time to conduct discovery in order to respond on summary judgment, they have not filed a Rule 56(f) motion or submitted an affidavit as that rule requires. See Woods v. City of Chicago , 234 F.3d 979, 990 (7th Cir. 2000) (recognizing that party’s failure to “file an affidavit outlining his reasons for needing further discovery as contemplated by Rule 56(f) . . . alone justifies district court’s decision” to refuse additional discovery); see also Wallace v. Tilley, 41 F.3d 296, 302-03 (7th Cir. 1994) (holding that appellate court precluded from considering whether district court abused discretion in ruling on defendant’s summary judgment motion before allowing plaintiff to conduct requested discovery when non-moving party failed to file affidavit pursuant to Rule 56(f)).
For these reasons, the Court DENIES Defendants’ Motion to Stay Briefing on Plaintiffs’ Motion for Summary Judgment. [Dkt. 80.] The Court recognizes that it has not ruled on Plaintiffs’ Motion to Certify Class and that Defendants’ summary judgment response may be affected by the Court’s forthcoming ruling. Therefore, the Court grants Defendants an extension of time to respond to Plaintiffs’ Motion for Summary Judgment and ORDERS that they file their response within five business days of the Court’s ruling on Plaintiffs’ Motion to Certify Class.

11/12/2010

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

- 2 -

Case 1:10-cv-00358-JMS-TAB Document 84 Filed 11/12/10 Page 3 of 3 PageID #: 824 Distribution via ECF only: Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org
- 3 -

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

Plaintiffs,

)

)

vs.

)

)

MICHAEL A. GARGANO, in his official capac- )

ity as Secretary of the Indiana Family and

)

Social Services Administration, et al.,

)

Defendants.

)

1:10-cv-0358-JMS-TAB

ORDER CERTIFYING CLASS ACTION

Presently before the Court is Plaintiffs’ Motion to Certify Class. This action challenges

an administrative rule promulgated and enforced by the Indiana Family and Social Services Ad-

ministration (“FSSA”) that allegedly denies prescribed treatment to severely disabled minors in

violation of federal Medicaid law. [Dkt. 10.]

BACKGROUND FSSA is the State agency responsible for operating the Medicaid program in Indiana.

[Dkt. 37-1 at 4-5.] This program is operated under a state plan that has been approved by the

federal government. [Dkt. 37-1 at 5.] Medicaid enrollees who need certain services (including

physical therapy, occupational therapy, and speech pathology) must obtain a prescription for

those services from a medical provider and also receive approval for the services from FSSA.

[Dkt. 37-1 at 5-6.] FSSA reviews each request and then issues a decision either approving, deny-

ing, or modifying the request for services. [Dkt. 37-1 at 6, 15.]

- 1 -

Plaintiffs allege that FFSA has violated federal Medicaid law by denying or modifying requests for services pursuant to the following provisions of the Indiana Administrative Code:
(b) Unless specifically indicated otherwise, the following criteria for prior authorization of therapy services apply to occupational therapy, physical therapy, respiratory therapy, and speech pathology:
*** (6) Therapy for rehabilitative services will be covered for a recipient no longer than two (2) years from the initiation of the therapy unless there is a significant change in medical condition requiring longer therapy. . . . (7) Maintenance therapy is not a covered service. 405 I.A.C. 5-22-6(b)(6), (b)(7) (respectively, “§ (b)(6)” and “§ (b)(7)”). “Maintenance therapy” is defined as “therapy addressing chronic medical conditions where further progress can no longer be expected or where progress is minimal in relation to the time needed in therapy to achieve that progress.” 405 I.A.C. 5-22-1(5). Under § (b)(7), FSSA does not approve requests for maintenance therapy—in other words, “maintenance therapy is based on that person’s progression, and if . . . they’re no longer making progress and we’re now just doing maintenance such as that can be done by a nonprofessional entity such as a caregiver or the person themselves can do it, that then becomes noncovered.” [Dkt. 37-1 at 8.] The agency does not consider a person’s potential to regress, although FSSA agrees that it is possible that maintenance therapy could prevent or delay regression. [Dkt. 37-1 at 9, 11-12.] If an individual regresses after a request for therapy is denied, the provider can request additional services “as long as they can show that they’ve regressed and need additional therapy due to the ability to progress.” [Dkt. 37-1 at 10.] Under the other challenged provision, § (b)(6), FSSA enforces a two-year rule, whereby most individuals are precluded from receiving requested therapies for more than two years with-
- 2 -

out a significant change in condition. [Dkt. 37-1 at 12-13.] While minors can receive therapy for a longer period of time on a case-by-case basis, this exception is unavailable if the agency determines that continued therapies would be maintenance therapy under § (b)(7). [Dkt. 37-1 at 13.]
The named Plaintiffs—A.M.T., J.J.M., and J.M.G.—are disabled minors ages seven, nine, and twelve who are enrolled in the Medicaid program.1 Two of them have been diagnosed with cerebral palsy and one has been diagnosed with a type of mitochondrial metabolic myopathy. All three suffer from functional limitations and have received physical and occupational therapies pursuant to the recommendations of their treating physicians for most of their lives.
In late 2009 or early 2010, each of the Plaintiffs, through their respective providers, sought prior authorization from FSSA for their therapies to continue at the previous rates prescribed by their treating physicians for an additional six months. FSSA denied the Plaintiffs’ requests in substantial part by limiting the authorized treatment pursuant to § (b)(6) and/or § (b)(7). [See dkts. 60-2 to 60-4 (denial notices).] At least two of the named Plaintiffs had their requested treatments denied or modified pursuant to both § (b)(6) and § (b)(7). [Dkts. 60-2 at 3 (referencing treatment for more than two years and that maintenance therapy is “uncoverable per IAC gu[i]delines”); 60-3 at 3 (citing § (b)(6) and § (b)(7) and noting “member has been receiving physical therapy for more than two (2) years” and “little or no change in the therapy goals . . . , which is maintenance therapy”).]
Plaintiffs argue that FSSA’s “practice or policy” either denying or limiting coverage for therapies prescribed by a Medicaid recipient’s physician, refusing to cover maintenance therapy, and/or refusing to cover therapy for more than two years without a significant change in medical
1 For a detailed account of the Plaintiffs’ medical and treatment history with citations to evidence in the record, see dkt. 39 at 9-14.
- 3 -

condition violates provisions of federal Medicaid law. [Dkt. 60 at 18 ¶¶82-84 (citing 42 U.S.C. §
1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230).]
Plaintiffs request a permanent injunction to enjoin FSSA from enforcing § (b)(6) or § (b)(7).
[Dkt. 60 at 19.]
The parties agree that between May 1, 2008 and May 1, 2010, FSSA denied 49 requests
pursuant to § (b)(6) or § (b)(7) from minor Medicaid recipients who had further treatment pre-
scribed by their providers. [Dkts. 36 at 1, 36-1 at 2, 36-2 at 2.]
Plaintiffs now ask the Court to certify the following class:
Any and all persons in Indiana who are or will be enrolled in the Medicaid program and who are or will be under the age of twenty-one (21) who have been or will be denied coverage for physical therapy, occupational therapy, respiratory therapy, and/or speech pathology (“therapies”), or who have had or will have coverage for these therapies otherwise limited because of 405 IAC 5-22-6(b)(6) and/or 405 IAC 5-22-6(b)(7), notwithstanding the fact that a physician . . .[ 2] acting within the scope of his or her practice under Indiana law has or will recommend and/or prescribe these therapies for the Medicaid recipient.
[Dkt. 11 at 1-2.]
DISCUSSION
In deciding whether to certify a class, the Court may not blithely accept as true even the
well-pleaded allegations of the complaint but must instead “make whatever factual and legal in-
quiries are necessary under Rule 23” to resolve contested issues. Szabo v. Bridgeport Machs.,
Inc., 249 F.3d 672, 676 (7th Cir. 2001). Specifically, the Court must find that the putative class
satisfies the four “prerequisites” set forth in Federal Rule of Civil Procedure 23(a). If the puta-
2 Plaintiffs included the phrase “or other licensed practitioner of the healing arts” at this point in their proposed class definition. FSSA argues that those words should be removed because it is “unclear who would be included in this term and what this term means.” [Dkt. 27 at 6.] Plaintiffs do not object to FSSA’s proposed modification because it “will not affect class membership but will resolve the problem the State has with the class definition.” [Dkt. 38 at 8.] Because Plaintiffs do not object, the Court has removed the phrase.
- 4 -

tive class does satisfy these prerequisites, the Court must additionally find that it satisfies the requirements set forth in Federal Rule of Civil Procedure 23(b), which vary depending upon which of three different types of classes is proposed. The Court will address each of the requirements in turn.
I. Federal Rule of Civil Procedure 23(a) It is Plaintiffs’ burden to prove first that an identifiable class exists that merits certification under Federal Rule of Civil Procedure 23(a). Oshana v. Coca-Cola Co., 472 F.3d 506, 513 (7th Cir. 2006). If a class can be identified, the four prerequisites applied under Rule 23(a) are numerosity, commonality, typicality, and adequacy of representation. Siegel v. Sh ell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010).
A. Identifiable Class Plaintiffs must prove that the proposed class is identifiable, and the class definition must be definite enough that the class can be ascertained. Oshana, 472 F.3d at 513. A class is sufficiently defined “if the proposed class members are ascertainable by reference to objective criteria.” McGarry v. Becher , 2010 U.S. Dist. LEXIS 28246 *5 (S.D. Ind. Mar. 24, 2010). Conversely, a class is not sufficiently defined if highly individualized inquiries must be made to determine whether a person is a member of the proposed class. Id. FSSA argues that Plaintiffs’ proposed class is not sufficiently identifiable because it will require the Court “to conduct individual inquiries to determine whether each potential class member falls within the class.” [Dkt. 27 at 6.] The Court disagrees with this characterization, however, because the key inquiry will be whether FSSA denied all or part of an enrollee’s therapy request pursuant to § (b)(6) or § (b)(7). This can be determined by referencing objective criteria—specifically, FSSA’s denial notices indicating its reasons for denying the requested treat-
- 5 -

ments. [See, e.g., 60-2 to 60-4.] Therefore, the Court concludes that the putative class is identifiable.3
B. Numerosity The Court can only certify a class that “is so numerous that joinder of all members is im-
practicable.” Fed. R. Civ. Pro. 23(a)(1). “Although there is no ‘bright line’ test for numerosity,
a class of forty is generally sufficient to satisfy Rule 23(a)(1).” McCabe v. Crawford & Co., 210 F.R.D. 631, 644 (N.D. Ill. 2002) (collecting cases); Hubler Chevrolet, Inc. v. GMC Corp. , 193 F.R.D. 574, 577 (S.D. Ind. 2000).
The parties agree that during the relevant time period, FSSA denied 49 requests pursuant
to § (b)(6) or § (b)(7) from minor Medicaid recipients whose providers had prescribed therapies.
[Dkts. 36 at 1, 36-1 at 2, 36-2 at 2.] This number does not include treatment modifications—e.g., instances where FSSA approved a different amount of services than the provider prescribed—
and FSSA admits that modifications are 60% more common than outright denials. [Dkt. 37-1 at
15.] Plaintiffs contend, therefore, that in addition to the 49 denials, there were approximately
127 modifications (49 + (1.6 x 49)) under § (b)(6) or § (b)(7) during the relevant time period.
[Dkt. 38 at 3-4.]
FSSA argues that Plaintiffs have not met the numerosity requirement because there is no
evidence that each denial represents a separate individual. [Dkt. 47 at 2.] This argument fails,
3 FSSA also contends that the class is overbroad because Plaintiffs “continue to assume that any individual who is eligible for Medicaid and under the age of 21 is entitled to early and periodic screening, diagnostic, and treatment services” (“EPSDT”) but participation in EPSDT is voluntary pursuant to 405 I.A.C. 5-15-6(a). [Dkt. 47 at 4.] FSSA argues that “an individual under the age of 21 may request services and those services could be denied without any alleged violation of 42 U.S.C. § 1396d(r)(5)”—the provision defining EPSDT. [Dkt. 47 at 4.] FSSA made this argument, however, before Plaintiffs filed their Amended Complaint, which does not assert a violation of 42 U.S.C. § 1396d(r)(5). [See dkt. 60 at 18 ¶¶82-84.] Therefore, the Court need not address this argument.
- 6 -

however, because FSSA provided the data at issue in response to Plaintiffs’ request that FSSA produce “the number of Medicaid enrollees under the age of twenty-one” for whom requests for therapy were denied pursuant to § (b)(6) or § (b)(7). [Dkt. 37-1 at 19-20 ¶¶10-11.] FSSA is in the best position to know the actual number of minors affected by these regulations, and it was specifically asked to provide that information. It provides no evidence supporting its argument that the number of affected individuals could be less than the number of denials. And because that argument would indicate that FSSA provided a non-responsive answer to Plaintiffs’ discovery request, any ambiguity in this regard is attributable to FSSA. Additionally, FSSA does not respond to Plaintiffs’ calculation regarding the number of modifications or argue that there is a meaningful distinction for purposes of this case between denials and modifications.
Plaintiffs also seek to include future putative class members who are denied prescribed therapies pursuant to § (b)(6) or § (b)(7). FSSA advances the same argument that the number of denials may not equal the number of affected individuals, contending that “there is no evidence to support that assertion . . . that the class will continue to grow at a rapid pace.” [Dkt. 47 at 3.] This argument fails for the previously stated reason that any ambiguity regarding the number of individuals represented by the denials is attributable to FSSA. This conclusion applies with even more force to future members of the putative class because FSSA is already on notice that denials and modifications pursuant to § (b)(6) or § (b)(7) have been subject to discovery; therefore, it has an ongoing duty to ensure that its discovery responses remain correct. Fed. R. Civ. Pro. 26(e).
Moreover, the identity of future class members will be ascertained by objective criteria— i.e., whether or not FSSA denies them prescribed therapy pursuant to § (b)(6) or § (b)(7). Therefore, the Court rejects FSSA’s argument that the class cannot be shown to exist as to future class
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members. See also Willis v. Comm’r Ind. Dep’t of Corr., 1:09-cv-0815-JMS-LJM, [dkt. 47 at 3] (S.D. Ind. 2009) (holding that plaintiff established numerosity with 122 identifiable class members and future class members who could be ascertained by objective criteria).
Finally, it is important to recognize that members of the putative class are disabled minors, many severely disabled, who are enrolled in the Medicaid program and have had therapy prescribed by their providers but denied or modified by FSSA. The medical and economic vulnerability of the putative class members makes joinder even more impracticable and further supports the Court’s finding that numerosity exists. See Cortigiano v. Oceanview Manor Home for Adults, 227 F.R.D. 194, 204-05 (E.D.N.Y. 2005) (finding the numerosity requirement met in part because “the class members are, according to the complaint, mentally disabled, and thus they may have no other means to exercise their rights because of inadequate resources to prosecute their own claims”).
For these reasons, the Court finds that the Plaintiffs have satisfied the numerosity requirement.
C. Commonality A class action also requires “questions of law or fact common to the class.” Fed. R. Civ. Pro. 23(a)(2). The commonality requirement is a “relatively low hurdle for plaintiffs.” Randall v. Rolls-Royce Corp., 2010 U.S. Dist. LEXIS 23421, *22 (S.D. Ind. Mar. 12, 2010). Factual variation among class grievances does not defeat commonality. In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 167 (S.D. Ind. 2009) (citation omitted). Rather, commonality is satisfied when there is a “common nucleus of operative fact” that is, a “common question which is at the heart of the case.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (citation omitted).
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The common question at the heart of this case is the same for all members of the proposed class: Does FSSA violate federal Medicaid law when it denies or modifies prescribed therapy requests pursuant to § (b)(6) or § (b)(7) without examining whether regression may occur without the continued therapy? Evidence in the record (including testimony from FSSA’s Rule 30(b)(6) witness) confirms that FSSA has invoked § (b)(6) and § (b)(7) to deny or modify prescribed therapy for minor Medicaid enrollees, [dkts. 37-1 at 8, 12-13; 60-2 to 60-4], and the agency admits that it does not take potential regression into account to make its decision, [dkt. 37-1 at 9, 11-12]. While the parties dispute whether this practice violates federal Medicaid law, ruling on the merits of the case before ruling on class certification “puts the cart before the horse.” Thomas v. City of Peoria, 580 F.3d 633, 635 (7th Cir. 2009) (collecting cases). Because a common question exists at the heart of this case for all members of the putative class, the Plaintiffs have satisfied the commonality requirement.
D. Typicality The next prerequisite for a class action is that the “claims . . . of the representative parties [be] typical of the claims . . . of the class.” Fed. R. Civ. Pro. 23(a)(3). The commonality and typicality requirements of Rule 23(a) tend to merge because both “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Southwest v. Falcon , 457 U.S. 147, 158 n.13 (1982). Although typicality may exist even if there are factual distinctions between the claims of the named plaintiffs and other class members, the requirement “directs the district court to focus on whether the named representatives’ claims
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have the same essential characteristics as the claims of the class at large.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (citation omitted).
The claims of the named Plaintiffs have the same essential characteristics as the claims of the putative class members because, as described above, the uniting factor is that all members have had prescribed services denied or modified by FSSA pursuant to § (b)(6) or § (b)(7) without any consideration given to potential regression. While FSSA argues that there is no evidence that it isn’t giving each case an individualized determination, the “issue in this case” according to the Plaintiffs is that FSSA does not consider potential regression, which FSSA admits. [Dkt. 371 at 9, 11-12.] Because the named representatives’ claims have the same essential characteristics as the claims of the class at large, typicality exists.
E. Adequacy To satisfy the prerequisite of Rule 23(a), the Court must find that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. Pro. 23(a)(4). This is a two-step inquiry—“one relates to the adequacy of the named plaintiffs’ representation of the class and requires that there be no conflict between the interests of the representative and those of the class in general; the other relates to the adequacy of class counsel’s representation.” In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. at 168. The adequacy requirement also tends to merge with the commonality and typicality requirements, although adequacy “also raises concerns about the competency of class counsel and conflicts of interest.” Falcon, 457 U.S. at 158 n.13. There is evidence in the record that FSSA has refused requested services to Plaintiffs pursuant to § (b)(6) and/or § (b)(7), [dkts. 60-2 to 60-4], and again, FSSA admits that it does not consider the potential for regression when making these decisions, [dkt. 37-1 at 9, 11-12]. Addi-
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tionally, FSSA does not argue that the named Plaintiffs’ interests are adverse to the interests of the putative class members. Therefore, Plaintiffs are adequate class representatives.
Although FSSA contested the adequacy of Plaintiffs’ counsel in its brief opposing class certification, [dkt. 27 at 9], it withdrew this objection at the hearing. Moreover, the Court’s own experiences with Plaintiffs’ counsel confirm counsel’s legal abilities, and the Court finds that their representation is appropriate.
II. Federal Rule of Civil Procedure 23(b) Where, as here, a proposed class satisfies all the prerequisites of Rule 23(a), the Court can only certify the class if it fits within one of the categories described in Rule 23(b). Oshana, 472 F.3d at 513. The category Plaintiffs claim applies is 23(b)(2), which authorizes a class action when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. Pro. 23(b)(2). In this case, Plaintiffs claim that FSSA’s policy and practice violates federal Medicaid law, and they seek injunctive relief against any future violations. This is the “prime example” of a proper class under Rule 23(b)(2). Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997) (citation omitted); see also Doe v. Guardian Life Ins. Co. , 145 F.R.D. 466, 477 (N.D. Ill. 1992) (“[T]he primary limitation on the use of Rule 23(b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for the class members.”). Moreover, Plaintiffs have alleged a common injury to the class; specifically, that FSSA has a policy of denying or modifying prescribed therapies pursuant to § (b)(6) or § (b)(7) without any consideration given to potential regression. If Plaintiffs prove that this is a violation of fed-
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eral Medicaid law, injunctive relief could be appropriate. For these reasons, the Court finds that
Rule 23(b)(2) is satisfied here.
CONCLUSION For the reasons detailed in this Order, the Court GRANTS Plaintiffs’ Motion to Certify
Class and CERTIFIES the following class:
Any and all persons in Indiana who are or will be enrolled in the Medicaid program and who are or will be under the age of twenty-one (21) who have been or will be denied coverage for physical therapy, occupational therapy, respiratory therapy, and/or speech pathology (“therapies”), or who have had or will have coverage for these therapies otherwise limited, which denial or limitation is based upon 405 IAC 5-22-6(b)(6) and/or 405 IAC 5-22-6(b)(7), notwithstanding the fact that a physician acting within the scope of his or her practice under Indiana law has or will recommend and/or prescribe these therapies for the Medicaid recipient.
The Court hereby DESIGNATES A.M.T., J.J.M, and J.M.G. as the representative plaintiffs for
the certified class and, pursuant to Federal Rule of Civil Procedure 23(g), DESIGNATES Mr.
Kenneth Falk and Mr. Gavin Rose as lead class counsel.
The Court now ORDERS the parties to meet and confer with one another and, by De-
cember 3, 2010, submit a joint report in this matter setting forth a proposed plan (or alternative
plans) as to what notice, if any, should be provided to the class. Fed. R. Civ. Pro. 23(c)(2) (“For
any class certified under Rule [23(b)(2)], the court may direct appropriate notice to the class.”).
Additionally, pursuant to docket entry 84, FSSA has until December 1, 2010 to file a response to
Plaintiffs’ Motion for Summary Judgment.

11/22/2010

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

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Distribution via ECF only: Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., et al.,

)

Plaintiffs,

)

)

vs.

)

)

MICHAEL A. GARGANO, in his official capaci- )

ty as Secretary of the Indiana Family and So- )

cial Services Administration, et al.,

)

Defendants.

)

1:10-cv-0358-JMS-TAB

DECISION ON PENDING MOTIONS

Presently before the Court are Plaintiffs’ Motion for Summary Judgment, [dkt. 64], De-

fendants’ Motion for Partial Judgment on the Pleadings, [dkt. 78], and Defendants’ Alternative Motion Pursuant to Federal Rule of Civil Procedure 56(d),1 [dkt. 91].

Plaintiffs sued Defendants Michael A. Gargano and Patricia Casanova (collectively, “De-

fendants”) in their official capacities with the Indiana Family and Social Services Administration

(“FSSA”). In their Amended Complaint, Plaintiffs allege that Defendants’ enforcement of 405

I.A.C. 5-22-6(b)(6) and (b)(7) (respectively, “§ (b)(6)” and “§ (b)(7)”) violates federal Medicaid

law. [Dkt. 60 at 18.] The Court previously certified Plaintiffs’ claims as a class action, and

Plaintiffs now ask that summary judgment and a permanent injunction be entered in favor of the

class.

I. THE CLASS The class representatives—A.M.T., J.J.M., and J.M.G.—are disabled minors ages seven,

nine, and twelve who are enrolled in the Medicaid program. Two of them have been diagnosed

1 Defendants cite Federal Rule of Civil Procedure 56(f) to support their request; however, Rule 56 was amended effective December 1, 2010, and Defendants now seek relief under Rule 56(d).
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with cerebral palsy and one has been diagnosed with a type of mitochondrial metabolic myopa-
thy. All three suffer from functional limitations and have received physical and occupational therapies pursuant to the recommendations of their treating physicians for most of their lives.2
In late 2009 or early 2010, each of the Plaintiffs, through their respective medical provid-
ers, sought authorization for their therapies to continue at the previous rates prescribed by their
treating physicians for an additional six months. It is undisputed that Defendants invoked
§ (b)(6) and/or § (b)(7) to deny Plaintiffs’ requests in substantial part by limiting the prescribed
treatment. [See dkts. 60-2 to 60-4 (denial notices).] At least two of the named Plaintiffs had their requested treatments denied or modified pursuant to both § (b)(6) and § (b)(7). [Dkts. 60-2
at 3 (referencing treatment for more than two years and that maintenance therapy is “uncoverable
per IAC gu[i]delines”); 60-3 at 3 (citing § (b)(6) and § (b)(7) and noting “member has been re-
ceiving physical therapy for more than two (2) years” and “little or no change in the therapy
goals . . . , which is maintenance therapy”).]
In November 2010, this Court designated A.M.T., J.J.M., and J.M.G as representative
plaintiffs for the following certified class:
Any and all persons in Indiana who are or will be enrolled in the Medicaid program and who are or will be under the age of twenty-one (21) who have been or will be denied coverage for physical therapy, occupational therapy, respiratory therapy, and/or speech pathology (“therapies”), or who have had or will have coverage for these therapies otherwise limited, which denial or limitation is based upon 405 IAC 5-22-6(b)(6) and/or 405 IAC 5-22-6(b)(7), notwithstanding the fact that a physician acting within the scope of his or her practice under Indiana law has or will recommend and/or prescribe these therapies for the Medicaid recipient. [Dkt. 87 at 12 (emphasis added).]3
2 For a detailed account of the Plaintiffs’ medical conditions and treatment history, see dkt. 65 at 10-16.
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The parties make no distinction between § (b)(6) and § (b)(7), treating these “co-
extensive” rules together under the term “maintenance therapy.” [Dkts. 65 at 2 n.2; 93 at 2 n.1.]
Although only certain types of services are at issue—physical therapy, occupational therapy, res-
piratory therapy, and/or speech pathology—the parties do not distinguish between the types of
treatment in their arguments. The Court will refer to the services at issue collectively as “thera-
pies.”
II. DEFENDANTS’ MOTIONS A. Defendants’ Rule 56(d) Motion
In addition to their response to Plaintiffs’ summary judgment motion, Defendants filed an
“Alternative Motion” pursuant to Rule 56(d) motion, requesting that the Court not rule on Plain-
tiffs’ motion for summary judgment until the completion of discovery. [Dkt. 91.] Contempora-
neously with that request, and as required by Rule 56(d), counsel for Defendants submitted an
affidavit detailing six categories of discovery counsel plans to conduct to dispute Plaintiffs’
claims. [Dkt. 91-1 at 1.] These categories include obtaining expert testimony regarding the
3 Defendants make a passing reference to their view that if the Court determines that their actions violate federal Medicaid law relating to mandatory services under the EPSDT program, the class definition will be overly inclusive because it does not require class members to have been through an EPSDT screening. [Dkt. 93 at 12-13.] The reference is so slim it cannot even be deemed argument, as it is wholly undeveloped. The record evidence and existing law don’t seem to support it either. First, it is undisputed that the named Plaintiffs participated in an EPSDT screening and that services were at least initially provided as treatment arising from that screening. Second, Defendants are required to provide EPSDT screenings to children under 21 under federal Medicaid law. 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. § 1396d(r). Thus, the Court is left to speculate as to what children under 21 might be “overincluded.” Moreover, although Medicaid coverage for the service categories at issue is discretionary in non-EPSDT cases under federal law, Indiana has elected to provide these services to all Medicaid-eligible individuals. I.C. § 12-15-5-1. Defendants fail to cogently develop their passing reference or address these issues; therefore, their contention is waived. Wolotka v. Sch. Town of Munster, 399 F. Supp. 2d 885, 901 (N.D. Ind. 2005) (“Failure to develop an argument constitutes waiver.”).
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medical necessity of therapy services for children with chronic illnesses; obtaining testimony and documentation from the agencies contracting with FSSA regarding the criteria used to determine medical necessity of therapy services for children with chronic illnesses; determining the veracity of the allegations of the named Plaintiffs’ medical providers; determining the veracity of the allegations of the named Plaintiffs’ guardians; obtaining expert testimony regarding the ability of unskilled individuals to provider therapy services for children with chronic illnesses; and obtaining expert testimony regarding medical therapies, including alternatives, that can be used for children with chronic conditions. [Dkt. 91-1 at 1-2.]
The discovery that Defendants identify is irrelevant to the Court’s determination of the Plaintiffs’ narrow legal challenge. Specifically, the veracity of the allegations of the medical providers and the named Plaintiffs’ guardians is irrelevant because Defendants did not deny the prescribed services because of guardian or provider fraud, overbilling, or because an unskilled individual could provide the service.4 Testimony and documentation from the agencies contracting with the FSSA regarding the criteria used to determine medical necessity of therapies for children with chronic illnesses are irrelevant because Defendants already admit that they do not consider potential regression when making the determination. [Dkt. 37-1 at 9, 12-13.] Finally, expert testimony regarding medical necessity, alternative therapies, and the ability of unskilled individuals to provide therapies for children with chronic illnesses is inappropriate because Plaintiffs’ narrow legal challenge is a question of law for the Court, not for a testimonial expert. See United States v. Caputo, 517 F.3d 935, 942 (7th Cir. 2008) (affirming a district court judge’s decision to exclude expert testimony regarding the meaning of statutes and regulations because
4 The Court did not rely on the designated provider or guardian affidavits to decide the motions at issue in this order. It was not necessary because Defendants do not dispute that they do not consider regression.
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“[t]hat’s a subject for the court, not for testimonial experts[, and t]he only legal expert in a federal courtroom is the judge”).
The only question at issue is whether Defendants’ ban on maintenance therapy, without considering potential regression, violates federal Medicaid law. This is a legal question for the Court that is appropriate to decide on the current record. For these reasons, the Court denies Defendants’ alternative Rule 56(d) motion.
B. Defendants’ Motion for Partial Judgment on the Pleadings Defendants also filed a Motion for Partial Judgment on the Pleadings, arguing that no private right of action exists for Plaintiffs to bring their claim under 42 U.S.C. § 1983 for alleged violations of 42 U.S.C. §§ 1396a(a)(8), (a)(17), and 42 CFR 440.230. [Dkt. 78.] Defendants do not challenge Plaintiffs’ right to bring a private cause of action under 42 U.S.C. § 1396a(a)(10). [Dkt. 79 at 2 (“Defendants are not seeking judgment at this time on the Plaintiffs’ claim under 42 U.S.C. § 1396a(a)(10).”).] Because the Court ultimately finds that Defendants’ policy violates 42 U.S.C. § 1396a(a)(10) and Defendants do not challenge Plaintiffs’ right to bring a private cause of action under that provision, Defendants’ Motion for Partial Judgment on the Pleadings is denied as moot.5
5 Because there is no dispute that a private cause of action exists under 42 U.S.C. § 1396a(a)(10), relief is awarded to Plaintiffs under this section, not under 42 U.S.C. § 1983. See generally Ind. Protection & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin. , 603 F.3d 365, 380 (7th Cir. 2010 (en banc) (holding that plaintiff had right to sue under federal act and declining to address “alternative basis” for pursuing relief under 42 U.S.C. § 1983). Therefore, Plaintiffs’ request in their Amended Complaint for attorney fees under 42 U.S.C. § 1988 is denied.
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III. PLAINTIFFS’ SUMMARY JUDGMENT MOTION A. Summary Judgment Standard A motion for summary judgment asks that the Court find that a trial based on the uncontroverted and admissible evidence would, as a matter of law, conclude in the moving party’s favor and is thus unnecessary. See Fed. R. Civ. Pro. 56(c). When evaluating a motion for summary judgment, the Court must give the non-moving party the benefit of all reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of a genuine issue for trial . . . against the moving party.” Celotex Corp. v. Catrett , 477 U.S. 317, 330 n.2 (1986). Nevertheless, “the Court’s favor toward the non-moving party does not extend to drawing inferences that are supported by only speculation or conjecture.” Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). The non-moving party must set forth specific facts showing that there is a material issue for trial. Fed. R. Civ. Pro. 56(e); Celotex, 477 U.S. at 323. The key inquiry is the existence of evidence to support a plaintiff’s claims or a defendant’s affirmative defenses, not the weight or credibility of that evidence, both of which are assessments reserved to the trier of fact. See Schacht v. Wis. Dep’t of Corrections, 175 F.3d 497, 504 (7th Cir. 1999). B. Relevant Portions of Medicaid Law The Medicaid Act allows states to provide federally-subsidized medical assistance to eligible individuals and families with insufficient income or resources to pay for necessary medical services. Collins v. Hamilton, 349 F.3d 371, 374 (7th Cir. 2003); 42 U.S.C. § 1396. A state’s participation in the Medicaid program is voluntary; however, if a state elects to participate, “it must abide by all federal requirements and standards” set forth in the Medicaid Act. Collins, 349 F.3d at 374.
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Indiana participates in the Medicaid program and, therefore, is bound by its requirements. [Dkt. 93 at 5.] One of the mandatory service categories requires an early and periodic screening, diagnostic, and treatment service (“EPSDT”) for “categorically needy individuals under the age of twenty-one.” Collins, 349 F.3d at 374; 42 U.S.C. § 1396d(a)(4)(B). EPSDT services are mandated by § 1396a(a)(10), which requires states to provide the services listed in § 1396d(a)(1)-(5), (17), and (21). Within the scope of EPSDT services, states are also required to furnish “[s]uch other necessary health care, diagnostic services, treatment, and other measures described in [§ 1396d(a)] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5).
Plaintiffs allege that § (b)(6) and § (b)(7) violate federal Medicaid law. First, Plaintiffs take issue with § (b)(7), which provides that “[m]aintenance therapy is not a covered service.” “Maintenance therapy” is defined as “therapy addressing chronic medical conditions where further progress can no longer be expected or where progress is minimal in relation to the time needed in therapy to achieve that progress.” 405 I.A.C. 5-22-1(5). Defendants admit that maintenance therapy does not consider a disabled child’s potential to regress without therapy. [Dkt. 37-1 at 9.] If a child regresses after a request for therapies is denied, the child can obtain additional therapies “as long as they can show that they’ve regressed and need additional therapy due to the ability to progress.” [Dkt. 37-1 at 10.]
Second, Plaintiffs challenge § (b)(6), which provides that “[t]herapy for rehabilitative services will be covered for a recipient no longer than two (2) years from the initiation of the therapy unless there is a significant change in medical condition requiring longer therapy. . . .” Under § (b)(6), children are precluded from receiving therapies for more than two years without
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a significant change in their condition. [Dkt. 37-1 at 12-13.] While a child can receive therapies for a longer period of time on a case-by-case basis, this exception is unavailable if Defendants determine that continued therapies would constitute maintenance therapy under § (b)(7). [Dkt. 37-1 at 13.]
Plaintiffs allege that Defendants’ practice or policy of denying or limiting coverage for therapies prescribed by a Medicaid recipient’s physician, refusing to cover maintenance therapy, and/or refusing to cover therapies for more than two years without a significant change in medical condition violates various provisions of federal Medicaid law. [Dkt. 60 at 18 ¶¶82-84 (citing 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230).] Plaintiffs request a permanent injunction to enjoin Defendants from enforcing § (b)(6) and § (b)(7). [Dkt. 60 at 19.]
C. Discretion to Deny Prescribed Therapies The parties disagree whether Defendants have discretion to deny therapies that have been prescribed by a child’s medical provider as medically necessary. Plaintiffs argue that Defendants do not have discretion to deny or limit services prescribed as medically necessary by a child’s medical provider because “the responsibility for determining the propriety of services for EPSDT-eligible children rests with their actual providers.” [Dkt. 65 at 20.] Defendants, however, argue that they must have discretion to deny services prescribed by medical providers because “Congress could not have intended a system that would allow one physician to determine an individual’s plan of care without any oversight—such a system would be rampant with fraud or overbilling.” [Dkt. 93 at 10.] But fraud and overbilling are not at issue here. It is undisputed that Defendants denied or limited the class members’ prescribed therapies “based upon 405 IAC 5-22-6(b)(6) and/or 405
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IAC 5-22-6(b)(7).” [Dkt. 87 at 12 (class definition).] It is also undisputed that Defendants do not take a child’s potential to regress without the prescribed therapies into account when denying or limiting services as maintenance therapy. [Dkt. 37-1 at 9, 12-13.] As Plaintiffs emphasize, Defendants’ failure to consider their potential to regress when applying the state regulations is the only legal issue presented in this case. [See, e.g., dkt. 65 at 2 n.2 (“the legal question presented by this case is whether the State is required to provide Medicaid coverage for therapies that are necessary to prevent regression”) (original emphasis).]
As it turns out then, the parties’ arguments regarding the extent of Defendants’ discretion to deny or limit therapies prescribed as medically necessary are irrelevant to the legal dispute at issue. Whether or not Defendants have discretion to deny therapies on the bases of fraud, overbilling, or because unskilled individuals could perform the prescribed therapies is irrelevant because Defendants did not deny the class members’ prescribed therapies on any of those bases. Plaintiffs here raise a legal challenge to the enforceability of two of Defendants’ rules, and limit their challenge to where these rules alone form the basis for the denial. Discretion, or lack thereof, is not at issue because Defendants admit that they do not take potential regression into account. For these reasons, the Court will not address the merits of the parties’ discretion-based arguments. [See dkts. 65 at 19-22; 93 at 7-12; 97 at 8-11.]
D. Interpreting the Phrase “To Correct or Ameliorate” EPSDT services are mandated by 42 U.S.C. § 1396a(a)(10). Collins, 349 F.3d at 374; [see also dkt. 93 at 6 (acknowledging that EPSDT services are “mandatory”)]. That section requires coverage of EPSDT services described in 42 U.S.C. § 1396d(a)(4)(B), which references the scope of required EPSDT services defined at 42 U.S.C. § 1396d(r)(5). According to 42 U.S.C. § 1396d(r)(5), EPSDT services are mandated if those services are a type of medical assis-
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tance that is “necessary . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5) (emphasis added.) Thus, because Indiana chooses to participate in Medicaid, it must provide eligible children with Medicaid coverage for treatment that is found to be medically necessary in an EPSDT screening. And Indiana must cover any treatment that will correct or ameliorate defects and physical and mental illnesses and conditions.6 See Collins, 349 F.3d at 376 (holding that Indiana is required to fund the cost of placement in a long-term mental illness facility if it is deemed medically necessary by an EPSDT screening).
The Medicaid statutes do not specifically define the phrase “to correct or ameliorate.” The parties disagree about what that phrase means and whether maintenance therapy that prevents a child’s regression is included. Plaintiffs argue that therapies necessary to prevent regression are included in the phrase because without those therapies, members of the class will lose significant functionality, the ability to assist in their activities of daily living, and may require surgeries to regain previous functionality. [Dkt. 65 at 26.] Defendants argue that their rules denying coverage for maintenance therapy encompass a reasonable interpretation of the terms “correct” and “ameliorate.” [Dkt. 93 at 13.]
Although few courts have defined and applied the phrase “to correct or ameliorate,” two district courts have done so in analogous situations. The Court will provide a brief overview of each of these cases.
6 Likewise, Indiana’s EPSDT program provides that services not covered by the State Medicaid plan are still available to eligible recipients, subject to prior authorization, if the service “is necessary to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services.” 405 I.A.C. 5-15-4.
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1. Collins v. Hamilton - Indiana Required to Fund Medically Necessary LongTerm Care for Mentally Ill Children To Ameliorate Condition
This District is one of the few courts nationwide to define and apply the phrase “correct or ameliorate.” In Collins v. Hamilton, now Chief Judge Young held that defendants’ standing policy of refusing to provide necessary long-term residential treatment to mentally ill children violated federal Medicaid law. 231 F. Supp. 2d 840 (S.D. Ind. 2002), aff’d 349 F.3d 371 (7th Cir. 2003). Like the case before this Court, Collins involved a class action challenge to a policy enforced by the former heads of the FSSA. Id. at 841-42. The Collins defendants argued that “the psychiatric services to which an EPSDT child is entitled involve only ‘active’ treatment” and that the phrase “to correct or ameliorate” did not anticipate long-term residential care. Id. at 848.
The Collins district court referenced a well-known dictionary that defined the term “ameliorate” as “to make better or more tolerable.” Id. at 849. Noting that “[t]here is no time limitation evident in this definition,” the district court held that “[r]equired treatment includes anything which is to make a condition, even a long-term condition like mental illness, more tolerable.” Id. at 849. For that reason, the district court found that the defendants’ standing policy of refusing to provide long-term residential treatment for patients for whom such treatment had been found necessary by an EPSDT screening violated the federal Medicaid Act, entitling the class members to summary judgment and a permanent injunction. Id.
The Seventh Circuit Court of Appeals affirmed Judge Young’s decision, specifically noting that “[w]e see no reason why residential treatment, even if long-term, cannot consist of ‘active treatment’ that ‘improves or ameliorates’ a patient’s condition.” 349 F.3d at 375-76. Because Indiana was required to fund the cost of placement in the long-term treatment facility at
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issue, the Seventh Circuit affirmed the district court’s decision to grant summary judgment and
issue a permanent injunction. Id. at 376. 2. Ekloff v. Rodgers - Incontinence Briefs for Disabled Children Deemed Medically Necessary to Prevent Skin Breakdown
In Ekloff v. Rodgers, the United States District Court for the District of Arizona had to determine whether incontinence briefs prescribed as medically necessary to prevent skin break-
down for disabled children were covered by Arizona’s Medicaid program. 443 F. Supp. 2d 1173
(D. Ariz. 2006). At issue in that class action was whether preventative treatment is required un-
der the phrase “to correct or ameliorate.” Id. at 1180. Recognizing that Collins is “the only case nationwide that even makes an attempt to define ‘correct or ameliorate’ for purposes of Medica-
id,” Ekloff applied the Collins definition and held that [c]learly, the incontinence briefs are meant to make the children’s condition better or more tolerable by preventing skin breakdown. The briefs are used to not only prevent future pain from open skin sores but to facilitate and maximize their daily opportunities as well as to make their condition as tolerable as possible by not forcing them to suffer the needless pain of skin sores. This seems to be the very essence of what Congress had intended in their Medicaid statute.
Id. Ekloff reviewed the legislative history of EPSDT and concluded that it there “is a very
strong inference to be inclusive rather than exclusive.” Id. (citing H.R. 3299, 101st Cong. § 4213 (1989) (EPSDT was crafted to “be the nation’s largest preventative health program from child-
ren.”)).
Ultimately, Ekloff rejected the defendants’ argument that the phrase “to correct or ameliorate” means that the state only needs to cover services that correct or improve conditions that
actually exist. Under that logic, Ekloff noted that the state would “exclude such remedies as antipsychotic drugs until someone has already had a bout of insanity rather than prevent it in the first
place.” Id. at 1181. Ekloff rejected the state’s narrow interpretation and concluded that it was - 12 -

“impossible to integrate within the wider framework of Medicaid law.” Id. For these reasons, Ekloff held that the prescribed incontinence briefs were encompassed by the phrase “to correct or ameliorate” and that the state was obligated to provide them under federal Medicaid law. Id.
E. Whether Maintenance Therapy to Prevent Regression is a Covered Service At issue here is whether prescribed therapies that would prevent regression are covered under the Medicaid program. Defendants argue that therapies to maintain a level of functionality where further progress can no longer be expected or progress is minimal in relation to the time needed to achieve that minimal progress is not covered because it is “solely for the purposes of sustaining an individual at a particular level, rather than increasing or improving their abilities.” [Dkt. 93 at 15.] Defendants contend that they should be allowed to deny the prescribed therapies and wait for the children to be able to “show that they’ve regressed and need additional therapy due to the ability to progress” before covering the treatment. [Dkt. 37-1 at 10.] Defendants proffer additional definitions of “ameliorate” and argue that those definitions focus on “mak[ing] things better, rather than ‘more tolerable.’” [Dkt. 93 at 14-15.] This Court will follow the definition of “ameliorate” used by the district courts in Collins and Ekloff—“to make better or more tolerable.” In affirming the Collins district court, the Seventh Circuit did not take issue with the district court’s definition or application of the term, even commenting that “[w]e see no reason why residential treatment, even if long-term, cannot consist of ‘active treatment’ that ‘improves or ameliorates’ a patient’s condition.”7 349 F.3d at 375-76. Moreover, a comprehensive definition of the term complies with Congress’ intent to be inclusive
7 The former heads of the FSSA who were defendants in Collins could have raised any issues they had with the district court’s definition on appeal. There is no evidence, however, that they challenged the district court’s definition.
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rather than exclusive with EPSDT. 443 F. Supp. 2d at 1180; H.R. 3299, 101st Cong. § 4213 (1989).
The Court finds that Defendants’ practice and policy of denying or limiting prescribed therapies as maintenance therapy without considering a disabled child’s potential for regression violates federal Medicaid law. As Defendants admit, the plain meaning of a federal statute controls if it is clear. [Dkt. 93 at 13 (citing MBH Commodity Advisors, Inc. v. Commodity Fu tures Trading Comm’n, 250 F.3d 1052, 1060 (7th Cir. 2001).] The Court finds that the plain meaning of the term “ameliorate” encompasses therapies that prevent regression. Although a child with a chronic condition may reach a level where further progress can no longer be expected or where progress is minimal in relation to the time needed to achieve that minimal progress, therapies that prevent regression still ameliorate the condition by making it more tolerable. Specifically, therapies that prevent regression facilitate and maximize daily opportunities and prevent a child from suffering the needless degeneration of functionality. This was Congress’ intent with EPSDT. See Ekloff, 443 F. Supp. 2d at 1180; Collins, 349 F.3d at 375-76. Additionally, there is no time limitation on the requirement that services be provided to ameliorate a defect or condition. 42 U.S.C. § 1396d(r)(5). Because therapies that prevent regression ameliorate a disabled child’s condition, they are covered under federal Medicaid law. 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396d(a)(4)(B); 42 U.S.C. § 1396d(r)(5).
Defendants argue that the Court should defer to their interpretation of the term “ameliorate” and their limitations on maintenance therapy in the rules because they are reasonable. [Dkt. 93 at 13.] The Court disagrees. It is not reasonable to interpret the term to deny a disabled child prescribed therapies because he has reached a functional plateau, without evaluating
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whether he will regress without the prescribed therapies. It is even more unreasonable—to the point of absurdity—to contemplate a required regression before therapies can resume.
The Court will interpret statutes to avoid absurd results. Treadway v. Gateway Chevrolet Oldsmobile, Inc., 362 F.3d 971, 976 (7th Cir. 2004). The practical effects of Defendants’ policy are impermissible—once a disabled child reaches a functional plateau, he can only obtain additional therapies if he regresses and can show that he needs additional therapies due to his ability to again progress. [See dkt. 37-1 at 10 (admission that child can reapply and obtain additional therapies “as long as they can show that they’ve regressed and need additional therapy due to the ability to progress”) (emphasis added).] Defendants’ policy puts a disabled child and his guardians on a figurative rollercoaster to try to maintain the child’s highest level of functionality. If the child reaches a plateau, he will be denied therapies until he regresses to the point where he can progress. After reapplying, the child will be authorized for therapies until he reaches another plateau. Once he reaches that plateau, he will again be denied therapies until he regresses to a point where he can again progress.
Defendants’ policy also ignores the possibility that some children denied therapies may regress and, due to the lack of therapies, completely lose the ability to progress. Defendants’ policy would not allow these children to obtain additional therapies because they can no longer progress. Id. Under those circumstances, a disabled child would be perpetually denied additional therapies because of the adverse effect of Defendants’ initial denial. The practical effects of Defendants’ policy, which they ignore, lead to an absurd result.
Finally, Defendants’ policy contradicts the purposes of EPSDT. EPSDT was crafted to be the nation’s largest preventative health program for children. See Ekloff, 443 F. Supp. 2d at 1180 (quoting H.R. 3299, 101st Cong. § 4213 (1989)). As Defendants admit, “‘The purpose of
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the EPSDT program is to ensure that poor children receive comprehensive health care at an early age, so that they will develop fewer health problems as they get older.’” [Dkt. 93 at 6 (quoting Salazar v. Dist. of Columbia, 954 F. Supp. 278, 303 (D.D.C. 1996).] Nevertheless, Defendants’ policy excludes disabled children who have reached a functional plateau. Defendants’ policy also ignores the comprehensive preventative goals of EPSDT by denying treatment to disabled children who have reached a functional plateau but who, by Defendants’ own admission, can seek additional treatment later after regression. Allowing a disabled child seeking prescribed therapies to regress because he has reached a functional plateau is the opposite of preventative treatment and contradicts the purpose of EPSDT.
For these reasons, the Court concludes that maintenance therapy to prevent regression is encompassed by the term “ameliorate” and is covered under federal Medicaid law.
F. Permanent Injunction For the reasons described above, the Court concludes that Defendants’ enforcement of § (b)(6) and § (b)(7) to deny or limit the class members’ prescribed therapies violates 42 U.S.C. § 1396a(a)(10). That section of the federal Medicaid Act requires coverage of EPSDT services described in 42 U.S.C. § 1396d(a)(4)(B), which includes services defined in 42 U.S.C. § 1396d(r)(5), such as services that ameliorate defects and physical conditions. Plaintiffs request a permanent injunction enjoining Defendants from enforcing § (b)(6) and § (b)(7). [Dkts. 60 at 19; 65 at 34.] Because Defendants’ enforcement of these rules violates federal Medicaid law, the Court enters a permanent injunction enjoining Defendants, their agents, and their successors from denying or limiting coverage for prescribed physical therapy, occupational therapy, respiratory therapy, and/or speech pathology, for any person enrolled in
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the Medicaid program under the age of twenty-one where such denial or limitation is based upon 405 I.A.C. 5-22-6(b)(6) and/or (b)(7).
CONCLUSION For the reasons detailed herein, the Court GRANTS Plaintiffs’ Motion for Summary Judgment to the extent they sought summary judgment under 42 U.S.C. § 1396a(a)(10) and DENIES their request as moot to the extent they sought summary judgment under 42 U.S.C. § 1396a(a)(8), 42 U.S.C. § 1396a(a)(17), and 42 C.F.R. § 440.230. [Dkt. 64.] The Court DENIES Defendants’ Alternative Motion Pursuant to Federal Rule of Civil Procedure 56(d), [dkt. 91], and DENIES as moot Defendants’ Motion for Partial Judgment on the Pleadings, [dkt. 78]. The Court DENIES Plaintiffs’ request for attorney fees under 42 U.S.C. § 1988. The Court GRANTS Plaintiffs’ request for permanent injunctive relief. Defendants, their agents, and successors are hereby enjoined from denying or limiting coverage for prescribed physical therapy, occupational therapy, respiratory therapy, and/or speech pathology, for any person enrolled in the Medicaid program under the age of twenty-one where such denial or limitation is based upon 405 I.A.C. 5-22-6(b)(6) and/or (b)(7).

02/10/2011

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

Distribution via ECF only:
Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org
Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL
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Betsy.Isenberg@atg.in.gov Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org Erica Sue Sullivan INDIANA ATTORNEY GENERAL erica.sullivan@atg.in.gov
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., et al.,

)

Plaintiffs,

)

)

vs.

)

)

MICHAEL A. GARGANO, in his official capaci- )

ty as Secretary of the Indiana Family and So- )

cial Services Administration, et al.,

)

Defendants.

)

1:10-cv-0358-JMS-TAB

PERMANENT INJUNCTION AND FINAL JUDGMENT The Court enters FINAL JUDGMENT in favor of Plaintiffs and the class and against Defendants to the extent that Plaintiffs sought relief in their Amended Complaint under 42

U.S.C. § 1396a(a)(10).

The Court GRANTS Plaintiffs’ request for a permanent injunction. Defendants, their

agents, and successors are hereby enjoined from denying or limiting coverage for prescribed

physical therapy, occupational therapy, respiratory therapy, and/or speech pathology, for any

person enrolled in the Medicaid program under the age of twenty-one where such denial or limi-

tation is based upon 405 I.A.C. 5-22-6(b)(6) and/or (b)(7). Nothing in this injunction should be

read to prevent Defendants, their agents, or their successors from denying or limiting prescribed

benefits under any other provision of law.

02/10/2011

_______________________________
Hon. Jane Magnus-Stinson, Judge United States District Court Southern District of Indiana

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Distribution via ECF only: Kenneth J. Falk ACLU OF INDIANA kfalk@aclu-in.org Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL Betsy.Isenberg@atg.in.gov Gavin Minor Rose ACLU OF INDIANA grose@aclu-in.org Erica Sue Sullivan INDIANA ATTORNEY GENERAL erica.sullivan@atg.in.gov
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 Case 1:10-cv-00358-JMS-TAB Document 114 Filed 06/09/11 Page 1 of 2 PageID #: 1069

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

MICHAEL A. GARGANO , in his official )

capacity as Secretary of the Indiana Family )

and Social Services Administration, et al., )

)

Defendants.

)

No. 1:10-cv-0358-JMS-TAB

UNOPPOSED MOTION TO WITHDRAW (A) MOTION TO AMEND JUDGMENT PURSUANT TO RULE 59 OF THE FEDERAL RULES OF CIVIL PROCEDURE (ECF NO. 101) AND (B) MOTION FOR ATTORNEYS’ FEES AND COSTS PURSUANT TO 42
U.S.C. § 1988 (ECF NO. 103)

COME NOW Plaintiffs and the certified class, by counsel, and, the parties having resolved the matters without the necessity of Court intervention, respectfully move to withdraw their Motion to Amend Judgment Pursuant to Rule 59 of the Federal Rules of Civil Procedure (ECF No. 101) and their Motion for Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988 (ECF No. 103). Counsel for the defendants has reviewed this Motion and authorized undersigned counsel to report that the defendants have no objection.
WHEREFORE, the plaintiffs respectfully move to withdraw the above-referenced pleadings, and request all other proper relief.

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Case 1:10-cv-00358-JMS-TAB Document 114 Filed 06/09/11 Page 2 of 2 PageID #: 1070
Respectfully submitted, /s/ Gavin M. Rose Gavin M. Rose, No. 26565-53 Kenneth J. Falk, No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635-4059, x106 Fax: 317/635-4105 <grose@aclu-in.org>
Attorneys for the plaintiffs and the certified class
CERTIFICATE OF SERVICE
I hereby verify that on this 9th day of June, 2010, a copy of the foregoing was filed electronically with the Clerk of this Court. This filing may be accessed through the Court’s electronic system. This filing was served on the following parties by operation of the Court’s electronic system:
Betsy M. Isenberg Erica S. Sullivan OFFICE OF THE ATTORNEY GENERAL IGCS – 5th Floor 302 W. Washington St. Indianapolis, IN 46204
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
2

 
 Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 1 of 20 PageID #: 645

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T; J.J.M., by his mother and next friend )

Amy M.; and J.M.G., by his father and next )

friend Michael G., on their own behalf and )

on behalf of those similarly situated,

)

)

Plaintiffs,

)

)

vs.

)

)

ANNE WALTERMANN MURPHY, in her )

official capacity as Secretary of the Indiana )

Family and Social Services Administration, )

and PATRICIA CASANOVA, in her

)

official capacity as Director of the Office of )

Medicaid Policy and Planning of the Indiana )

Family and Social Services Administration, )

)

Defendants.

)

No. 1:10-cv-00358-JMS-TAB COMPLAINT – CLASS ACTION

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introductory Statement

1. The plaintiffs in this case are all minors who are seriously disabled Medicaid recipients.

In order to ensure that they obtain their best possible functional state and to prevent

regression in their conditions, the plaintiffs have been receiving therapies paid for by the

Indiana Family and Social Services Administration (and have been receiving these

therapies for several years). These therapies, at the very least, are necessary to ensure

that the plaintiffs do not lose functional abilities, and without them the plaintiffs may

cease being able to walk, roll over, or stretch adequately, and they may require

surgeries—likely paid for by the Medicaid agency—in the future. Notwithstanding both

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Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 2 of 20 PageID #: 646
the need for these therapies and the recommendation of the plaintiffs’ physicians and other treatment professionals that these therapies be provided, the Medicaid agency has seized on two (2) provisions of the Indiana Administrative Code to deny these requested services. First, the Indiana Administrative Code purports to limit the provision of therapies to two (2) years unless the patient demonstrates significant progress toward a higher functional state. See IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6). And second, the Indiana Administrative Code contains a blanket prohibition on the provision of so-called “maintenance therapy,” which is therapy designed to prevent regression rather than to enable progression. See IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7). These provisions, both facially and as employed by the defendants, are violative of federal Medicaid law and must be enjoined. Jurisdiction, Venue, and Cause of Action 2. The Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331. 3. Venue is proper in this district pursuant to 28 U.S.C. § 1391. 4. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202. 5. This action is brought pursuant to 42 U.S.C. § 1983 to redress the deprivation, under color of state law, of rights secured by the Constitution and laws of the United States, and as a pre-emption claim brought pursuant to the decision of the United States Supreme Court in Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96 n.14 (1983) (holding that a plaintiff presenting a pre-emption claim “presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve” even in the absence of a cause of action under 42 U.S.C. § 1983).
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Parties 6. A.M.T. are the initials of a minor resident of Johnson County, Indiana. He brings this
action by his mother and next friend, Karla T., and on his own behalf and on behalf of those similarly situated. 7. J.J.M. are the initials of a minor resident of Marion County, Indiana. He brings this action by his mother and next friend, Amy M., and on his own behalf and on behalf of those similarly situated. 8. J.M.G. are the initials of a minor resident of Hamilton County, Indiana. He brings this action by his father and next friend, Michael G., and on his own behalf and on behalf of those similarly situated. 9. Anne Waltermann Murphy is the duly appointed Secretary of the Indiana Family and Social Services Administration, and is sued in her official capacity. 10. Patricia Casanova is the duly appointed Director of the Office of Medicaid Policy and Planning of the Indiana Family and Social Services Administration, and is sued in her official capacity. Class Action Allegations 11. The plaintiffs bring this action on their own behalf and on behalf of a class of those similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 12. The class is defined as follows:
Any and all persons in Indiana who are or will be enrolled in the Medicaid program and who are or will be under the age of twenty-one (21) who have been or will be denied coverage for physical therapy, occupational therapy, respiratory therapy, and/or speech pathology (“therapies”), or who have had or will have coverage for these therapies otherwise limited because of 405 IAC 5-22-6(b)(6) and/or 405 IAC 5-22-6(b)(7), notwithstanding the fact that a physician or other
3

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licensed practitioner of the healing arts acting within the scope of his or her practice under Indiana law has or will recommend and/or prescribe these therapies for the Medicaid recipient. 13. As defined, the class meets all requirements of Rule 23(a) of the Federal Rules of Civil Procedure. Specifically: a. The class is so numerous that the joinder of all members is impracticable. While
the precise size of the class is unknown, it is believed to number at least in the hundreds and possibly in the thousands. b. There are questions of law or fact common to the class, specifically whether the defendants’ practices or policies violate the rights of the class under federal Medicaid law. c. The claims of the representative parties are typical of those of the class. d. The representative parties will fairly and adequately protect the interests of the class. 14. The further requirements of Rule 23(b)(2) of the Federal Rules of Civil Procedure are met in this cause with respect to the class in that the defendants, at all times, have acted or have refused to act in a manner generally applicable to the class, thereby making final injunctive and declaratory relief appropriate with respect to the class as a whole. 15. Undersigned counsel is a skilled and experienced attorney in cases of this type, and should be appointed as counsel for the class pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. Legal Background Background to the Medicaid Program 16. Medicaid is a federal program of medical assistance for the poor established by Title XIX of the Social Security Act and funded by the federal government and participating states. See 42 U.S.C. § 1396, et seq.
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17. Federal Medicaid appropriations to the states are designed to enable states to furnish medical assistance to those whose incomes and resources are insufficient to meet the costs of necessary medical services. See 42 U.S.C. § 1396-1.
18. Eligibility for Medicaid is limited to low-income people who fall into one of several categories or groups specified in federal law, which includes disabled persons. See 42 U.S.C. § 1396a(a)(10)(A).
19. State participation in the Medicaid program is voluntary. However, states that choose to participate in the Medicaid program must submit plans to the United States Department of Health and Human Services in order to qualify for the federal matching funds, and these plans contain the requirements that a state must meet to receive federal approval. See 42 U.S.C. § 1396a(a).
20. Indiana participates in the federal Medicaid program and is bound by all of its requirements. See IND. CODE 12-15-1-1, et seq.
21. Federal Medicaid law lists certain medical services that a participating state must cover in its Medicaid program (i.e., “mandatory” services), and lists certain other medical services which a state may choose to cover in its Medicaid program if it wishes (i.e., “optional” services). 42 U.S.C. §1396a.
Covered Services under Federal Medicaid Law 22. Federal law requires that states participating in the Medicaid program cover, inter alia,
the following: a. Early and periodic screening, diagnostic, and treatment services (“EPSDT services”) for individuals who are under the age of 21. 42 U.S.C. § 1396d(a)(4)(b). b. Physical therapy and related services. 42 U.S.C. § 1396d(a)(11).
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c. Other diagnostic, screening, preventative, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician or other licensed practitioner of the healing arts within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level. 42 U.S.C. § 1396d(a)(13).
d. Respiratory care services. 42 U.S.C. § 1396d(a)(20). 23. EPSDT services are defined to include “necessary health care, diagnostic services,
treatment, and other measures described in subsection (a) of [42 U.S.C. § 1396d] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan.” 42 U.S.C. § 1396d(r)(5). 24. Federal law requires that each medical service covered by a state Medicaid plan, whether “mandatory” or “optional,” must be sufficient in amount, duration and scope to reasonably achieve its purpose, although the state Medicaid agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures. 42 C.F.R. § 440.230(b),(d). 25. Federal and state Medicaid law mandate Medicaid coverage of medically necessary, covered services, including “optional” services that the State chooses to cover. Thie v. Davis, 688 N.E.2d 182 (Ind. Ct. App. 1997), trans. denied; see also Coleman v. Indiana Family & Social Servs. Admin., 687 N.E.2d 366 (Ind. Ct. App. 1997); Davis v. Schrader, 687 N.E.2d 370 (Ind. Ct. App. 1997). 26. Indiana Medicaid law defines a “medically reasonable and necessary service” as one “that is required for the care or well being of the patient and is provided in accordance with generally accepted standards of medical or professional practice.” See IND. ADMIN. CODE tit. 405, r. 5-2-17.
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Prior Authorization Requirements in Indiana 27. Pursuant to Indiana law, some services—including physical therapy, occupational
therapy, respiratory therapy, and speech pathology—require pre-approval (in a process known as “prior authorization”) in order for them to be covered by the Medicaid program. IND. ADMIN. CODE tit. 405, r. 5-22-6. 28. However, state regulation provides that
[t]herapy for rehabilitative services will be covered for a recipient no longer than two (2) years from the initiation of the therapy unless there is a significant change in medical condition requiring longer therapy. Habilitative services for a recipient under eighteen (18) years of age may be prior authorized for a longer period on a case-by-case basis. Respiratory therapy services may be prior authorized for a longer period of time on a case-by-case basis. IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(6). 29. State regulation additionally provides that “[m]aintenance therapy is not a covered service” under Indiana’s Medicaid program. IND. ADMIN. CODE tit. 405, r. 5-22-6(b)(7). 30. “Maintenance therapy” is defined as “therapy addressing chronic medical conditions where further progress can no longer be expected or where progress is minimal in relation to the time needed in therapy to achieve that progress.” IND. ADMIN. CODE tit. 405, r. 522-1(5). Factual Allegations Factual Allegations Concerning the Defendants’ Practices or Policies 31. The Indiana Family and Social Services Administration, through its Office of Medicaid Policy and Planning, is responsible for the operation of, inter alia, the Medicaid program in Indiana. These agencies or departments are occasionally referred to herein collectively as the “Medicaid agency.”
7

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32. A Medicaid enrollee who desires to receive Medicaid payment for certain services— including, inter alia, physical therapy, occupational therapy, respiratory therapy, and speech pathology (collectively, “therapies”)—must obtain approval for these services from the Medicaid agency before receiving Medicaid payment for these services. This is a process known as “prior authorization.”
33. A request for prior authorization is submitted on behalf of a Medicaid enrollee by the provider that will provide the services to the Medicaid enrollee. Once such a request is submitted on behalf of a Medicaid enrollee, it will be approved, denied, or modified by the Medicaid agency.
34. The Medicaid agency has contracted with two (2) companies to issue decisions on prior authorization requests. These companies are Advantage Health Solutions, Inc, and MDWise, Inc., and these companies both therefore operate as agents of the Medicaid agency.
35. The Medicaid agency and its contractors refuse to approve therapies for more than two (2) years from the initiation of the therapy, unless there is a significant change in medical condition requiring longer therapy. Although there is an exception for children under eighteen (18) years of age, this exception only applies when the agency determines that the patients are continue to experience significant progression in their functional states.
36. The Medicaid agency and its contractors also refuse to approve so-called “maintenance therapy,” which is defined as “therapy addressing chronic medical conditions where further progress can no longer be expected or where progress is minimal in relation to the time needed in therapy to achieve that progress.”
8

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37. Thus, “maintenance therapy” is, in essence, therapy designed to prevent an individual from regressing to a lesser functional state rather than therapy designed to enable an individual to progress to a better functional state.
38. Although the Medicaid agency may approve therapies for longer than two (2) years for a Medicaid recipient under the age of eighteen (18) on a case-by-case basis, it will not do so if it determines that the therapies requested qualify as “maintenance therapy.”
39. The Medicaid agency’s practices or policies in both of these regards have been promulgated in Title 405 of the Indiana Administrative Code and have been recorded in its policy manual regarding prior authorization services. The relevant portions of the latter document are attached and incorporated herein as Exhibit 1.
40. The Medicaid agency enforces both of these policies even when the requested therapies have been recommended and/or prescribed by a Medicaid enrollee’s physician or other licensed practitioner of the healing arts within the scope of their practice under Indiana law.
41. Indeed, because a prior authorization request must be submitted on a Medicaid enrollee’s behalf by his or her physician or other licensed practitioner of the healing arts within the scope of their practice under Indiana law, each prior authorization request for therapies has necessarily been recommended and/or prescribed by these individuals.
42. These two (2) limitations on the approval of prior authorization for therapies in Indiana possess no relationship to medical necessity, nor do they possess any relationship to whether therapies are necessary for the maximum reduction of physical or mental disability or the restoration of a Medicaid enrollee to his or her best possible functional level.
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43. Indeed, minors for whom therapies have been recommended and/or prescribed will oftentimes have chronic medical conditions and/or serious disabilities that hinder their ability to function or develop. For these individuals, because of their age it is difficult and oftentimes impossible to determine whether and when they have reached their best possible functional state.
44. However, even if they have reached their best possible functional state, therapies are generally necessary in order to prevent regression. A minor for whom therapies have been recommended and/or prescribed and who possesses a chronic medical condition and/or serious disability that hinders his or her ability to function or develop will likely lose the ability to walk, crawl, roll over, stretch, or assist their caretakers with their activities of daily living if these therapies are stopped. In many cases, if therapies are stopped the minor will require one (1) or more surgeries (which will likely be paid for by the Medicaid agency).
45. Thus, regardless of whether therapies for minors are capable of advancing an individual to a higher functional state, they are certainly preventative in nature and are necessary to prevent these individuals from regressing to a worse functional state.
Factual Allegations Concerning the Named Plaintiffs Factual Allegations Concerning A.M.T. 46. A.M.T. are the initials of a seven (7) year old resident of Johnson County, Indiana, with a
primary diagnosis of cerebral palsy. 47. A.M.T. is a juvenile Medicaid recipient who has been receiving physical therapy and
occupational therapy since he was approximately four (4) months old. With very few
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exceptions over the past seven (7) years, he has received one (1) hour-long session of physical therapy and one (1) hour-long session of occupational therapy each week. 48. As a result of the therapies that A.M.T. has received, he is capable of walking. He has also recently begun trying to run, although he is not yet capable of running. 49. A.M.T. has not yet reached his best possible functional state. However, even if he has neared this state, both physical therapy and occupational therapy are necessary in order to keep him from regressing. 50. Thus, if A.M.T. stops receiving these therapies, his muscles will become tighter and he will begin having trouble walking and otherwise functioning. It is extremely likely that he will need one (1) or more surgeries if his therapies are stopped. 51. In early 2010, the Children’s Theraplay Foundation, Inc., and a physician or other licensed practitioner of the healing arts submitted a request for prior authorization of Medicaid services on behalf of A.M.T. These services were thus recommended and/or prescribed by a physician and/or other licensed practitioner of the healing arts acting within the scope of his or her practice under Indiana law. 52. On March 5, 2010, the prior authorization request submitted on behalf of A.M.T. was denied in substantial part. According to the denial notice, the Medicaid agency would approve only six (6) more weeks of therapies for A.M.T. This decision was “based on the information provided and Indiana Administrative Code guidelines 405 IAC 5-22-6. The patient has had therapies since 8/2004. The requested services would not [b]e restorative of an im[p]airment in function caused by an acute change in the pati[en]t’s medical condition, and maintenance therapy is noncoverable per IAC guidelines.” A true
11

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 12 of 20 PageID #: 656
and correct copy of this notice is attached and incorporated herein as Exhibit 2 (identifying information has been redacted). 53. Continued therapies have been recommended and/or prescribed by A.M.T.’s physician or other licensed practitioner of the healing arts within the scope of their practice under Indiana law. At least one (1) hour a week each of physical therapy and occupational therapy is medically necessary for A.M.T. At least this amount of therapy is necessary for the maximum reduction of physical or mental disability and the restoration of A.M.T. to the best possible functional level. 54. This amount of therapies will correct or ameliorate A.M.T.’s defects and physical and mental illnesses and conditions discovered by EPSDT screening services, whether or not such services are covered under the State Medicaid plan. Factual Allegations Concerning J.J.M. 55. J.J.M. are the initials of a nine (9) year old resident of Marion County, Indiana, with a primary diagnosis of Pyruvate Carboxylase Deficiency Type II (“PCD Type II”), which is a type of mitochondrial metabolic myopathy. 56. PCD Type II is a condition that hinders J.J.M.’s ability to develop and to function, and that results in his being medically fragile. J.J.M. is the only known individual with PCD Type II who has lived beyond the age of two (2) or three (3). As a result of this condition, J.J.M. cannot walk. However, he does have the ability to roll around and to stretch his legs. 57. J.J.M. is a juvenile Medicaid recipient who has been receiving physical therapy and occupational therapy since he was an infant. Since he was approximately three (3) years
12

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 13 of 20 PageID #: 657
old, he has received three (3) hour-long sessions of physical therapy and one (1) hourlong session of occupational therapy each week. 58. As a result of the therapies that J.J.M. has received, he is capable of rolling over, stretching his legs, and engaging in other movements that would be considered rudimentary for a child without disabling conditions. 59. J.J.M. has not yet reached his best possible functional state. However, even if he has neared this state, both physical therapy and occupational therapy are necessary in order to keep him from regressing. 60. Thus, if J.J.M. stops receiving these therapies, he will lose strength throughout his body, his muscles will become tighter and he will begin having trouble rolling over, stretching on his own, participating in his educational activities, and otherwise functioning. His overall quality of life will, in this vein, be detrimentally affected. It is extremely likely that he will need one (1) or more surgeries if his therapies are stopped. 61. In late 2009 or early 2010, the Children’s Theraplay Foundation, Inc., and Dr. Paul Jarvis, M.D., submitted a request for prior authorization of Medicaid services on behalf of J.J.M. This request sought to continue J.J.M.’s therapies at their current level for an additional six (6) months, and was substantially similar to the prior authorization requests submitted on J.J.M.’s behalf and approved by the Medicaid agency for several years. 62. On or about December 9, 2009, the prior authorization request submitted on behalf of J.J.M. was denied in substantial part. According to the denial notice, the Medicaid agency would approve only two (2) sessions of therapies each month for J.J.M. for four (4) months. This decision was because, according to the Medicaid agency, “[r]ehabilitative therapies will be covered for no longer then [sic] two (2) years except
13

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 14 of 20 PageID #: 658
when there is a significant change in the recipient’s condition necessitating additional therapies” and that the therapies had already “been provided for at least two (2) years with minimal documented change in [J.J.M.’s] condition.” This decision was made following a “[r]eview of the criteria set out in [405 IAC 5] for the service requested.” A true and correct copy of this notice is attached and incorporated herein as Exhibit 3 (identifying information has been redacted). 63. Continued therapies at the rate of three (3) sessions of physical therapy and three (3) sessions of occupational therapy each month have been recommended and/or prescribed by J.J.M.’s physician or other licensed practitioner of the healing arts within the scope of their practice under Indiana law. At least three (3) hours a week each of physical therapy and occupational therapy are medically necessary for J.J.M. At least this amount of therapy is necessary for the maximum reduction of physical or mental disability and the restoration of J.J.M. to the best possible functional level. 64. This amount of therapies will correct or ameliorate J.J.M.’s defects and physical and mental illnesses and conditions discovered by EPSDT screening services, whether or not such services are covered under the State Medicaid plan. Factual Allegations Concerning J.M.G. 65. J.M.G. are the initials of a twelve (12) year old resident of Hamilton County, Indiana, with a primary diagnosis of cerebral palsy. 66. As a result of his condition, J.M.G. cannot walk or ambulate by himself. His cerebral palsy is considered the worst of the three (3) categories of cerebral palsy, and it is unlikely that he will ever be able to walk or live by himself. He can stretch out, assist his
14

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 15 of 20 PageID #: 659
parents or caretakers somewhat with transfers, but cannot so much as crawl short distances. 67. J.M.G. is a juvenile Medicaid recipient who has been receiving physical therapy and occupational therapy for most of his life. For several years, he has received two (2) hourlong sessions of physical therapy and one (1) hour-long session of occupational therapy each week. 68. As a result of the therapies that J.M.G. has received, he is capable of rolling over, stretching his legs, sitting independently on a chair or bench with supervision, assisting his parents or caretakers somewhat with transfers, and engaging in other movements that would be considered rudimentary for a child without disabling conditions. 69. J.M.G. has not yet reached his best possible functional state. However, even if he has neared this state, both physical therapy and occupational therapy are necessary in order to keep him from regressing. 70. Thus, if J.M.G. stops receiving these therapies, his tendons will shorten, his muscles will become tighter, and he will begin having trouble stretching on his own, assisting his parents and caregivers in his daily care, and otherwise functioning. His parents and caretakers will have more difficulty transferring him or assisting him with bathing or showers, and moving and caring for J.M.G. (who is presently 126 pounds) will become incredibly hard on their backs. It is extremely likely that he will need one (1) or more surgeries if his therapies are stopped or decreased. 71. In late 2009, Homefront Learning Center, submitted a request for prior authorization of Medicaid services on behalf of J.M.G. This request sought to continue J.M.G.’s physical therapy at their current level for an additional six (6) months, and was substantially
15

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 16 of 20 PageID #: 660
similar to the prior authorization requests submitted on J.M.G.’s behalf and approved by the Medicaid agency for several years. The previously approved prior authorization request for J.M.G.’s occupational therapy has recently expired, although future services have been suspended pending consultant review, and therefore no new request for J.M.G.’s occupational therapy has been submitted. 72. On or about December 9, 2009, the prior authorization request submitted on behalf of J.M.G. was denied in substantial part. According to the denial notice, the Medicaid agency determined that J.M.G.’s requested services should be denied as a result of 405 IAC 5-22-6(b)(6) and 405 IAC 5-22-6(b)(7). A true and correct copy of this notice is attached and incorporated herein as Exhibit 4 (identifying information has been redacted). 73. Based on this denial, and the reasons stated therefore, J.M.G. and his parents believe and are understandably concerned that a request to continue his occupational therapy at its current level will be denied for the same reasons as soon as it becomes time for J.M.G. to request renewed authorization for these services. 74. J.M.G. filed an administrative appeal of the denial of the request for physical therapy submitted on his behalf, and an administrative fair hearing was scheduled on that appeal. Shortly before the date on which the hearing was scheduled, a manager from Advantage Healthcare contacted J.M.G.’s parents and informed them that, if they withdrew the administrative appeal filed on J.M.G.’s behalf they would approve one (1) session of physical therapy each week for four (4) months. 75. Because J.M.G. and his parents were concerned that if they did not agree to this they would not receive any physical therapy, they agreed to withdraw their appeal on these terms. However, both J.M.G.’s parents and his providers believe that two (2) sessions of
16

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 17 of 20 PageID #: 661
physical therapy each week are medically necessary for J.M.G. and are necessary to ensure that he reaches his best possible functional state and to prevent him from regressing. 76. Based on the denial of his prior authorization request, and the reasons stated therefore, J.M.G. and his parents believe and are understandably concerned that a request for any amount of physical therapy after four (4) months will be denied for the same reasons as soon as it becomes time for J.M.G. to request renewed authorization for these services. 77. Following the termination of J.M.G.’s prescribed therapies, he experienced significant regression in his physical state and in his functional abilities. Once this regression occurred, it became necessary for J.M.G. to receive three (3) sessions of physical therapy each week in order to make up these losses in functional ability. 78. Continued therapies at the rate of three (3) sessions of physical therapy and one (1) session of occupational therapy each week have been recommended and/or prescribed by J.M.G.’s physician or other licensed practitioner of the healing arts within the scope of their practice under Indiana law. At least three (3) hours a week of physical therapy and one (1) hour a week of occupational therapy are medically necessary for J.M.G. At least this amount of therapy is necessary for the maximum reduction of physical or mental disability and the restoration of J.M.G. to the best possible functional level. 79. This amount of therapies will correct or ameliorate J.M.G.’s defects and physical and mental illnesses and conditions discovered by EPSDT screening services, whether or not such services are covered under the State Medicaid plan. Concluding Factual Assertions
17

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 18 of 20 PageID #: 662
80. As a result of the practices or policies of the defendants, the plaintiffs and the members of the putative class are suffering irreparable harm for which there is no adequate remedy at law.
81. At all relevant times, the defendants have acted or refused to act under color of state law. Legal Claims 82. The defendants’ practice or policy whereby it denies and/or limits Medicaid coverage for
the plaintiffs and the members of the class for physical therapy, occupational therapy, respiratory therapy, and/or speech pathology notwithstanding the fact that these services have been recommended and/or prescribed by a Medicaid recipient’s physician or other licensed practitioner of the healing arts acting within the scope of his or her practice under Indiana law violates and is preempted by the following provisions of federal Medicaid law: 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230. 83. The defendants’ practice or policy whereby it refuses to cover “maintenance therapy” for the plaintiffs and the members of the class violates and is preempted by the following provisions of federal Medicaid law: 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230. 84. The defendants’ practice or policy whereby it refuses to cover therapies for more than two (2) years for the plaintiffs and the members of the class without a significant change in medical condition requiring longer therapy violates and is preempted by the following provisions of federal Medicaid law: 42 U.S.C. § 1396a(a)(8); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396a(a)(17); and 42 C.F.R. § 440.230. Request for Relief
18

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 19 of 20 PageID #: 663
WHEREFORE, the plaintiffs respectfully request that this Court: 1. Accept jurisdiction of this cause and set it for hearing. 2. Certify this cause as a class action with the class and sub-class as defined above. 3. Declare that the defendants have violated the rights of the plaintiffs and the class and subclass for the reasons specified in paragraphs 81 through 83, above. 4. Issue a preliminary injunction1, later to be made permanent, enjoining the defendants from refusing or limiting Medicaid coverage for therapies recommended and/or prescribed by a Medicaid recipient’s physician or other licensed practitioner of the healing arts acting within the scope of his or her practice under Indiana law. 5. Issue a preliminary injunction, later to be made permanent, enjoining the defendants from enforcing either Title 405, Rule 5-22-6(b)(6), or Title 405, Rule 5-22-6(b)(7), of the Indiana Administrative Code. 6. Award the plaintiffs their costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 and all other applicable statutes. 7. Issue all other proper relief.
1 In lieu of proceeding with the preliminary injunction hearing that was originally scheduled in this cause for May 28, 2010, the parties agreed that the named plaintiffs would be provided with Medicaid payment for the therapies identified herein (and in the plaintiffs’ initial complaint) pending the final disposition of this case. See Second Stipulation (R. Doc. 55). The plaintiffs’ Motion for Preliminary Injunction (R. Doc. 12) was therefore withdrawn. See Entry Following Oral Argument (R. Doc. 56). Nonetheless, the plaintiffs have reserved their right to renew their preliminary injunction motion should circumstances warrant.
19

Case 1:10-cv-00358-JMS-TAB Document 60 Filed 10/11/10 Page 20 of 20 PageID #: 664
Respectfully submitted, /s/ Gavin M. Rose Gavin M. Rose, No. 26565-53 Kenneth J. Falk, No. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 Ph: 317/635-4059, x106 Fax: 317/635-4105 <grose@aclu-in.org> Attorney for the plaintiffs and the putative
class
CERTIFICATE OF SERVICE I hereby verify that on this 11th day of October, 2010, a copy of the foregoing was filed electronically with the Clerk of this Court. This filing may be accessed through the Court’s electronic system. This filing was served on the following parties by operation of the Court’s electronic system:
Betsy M. Isenberg Eric J. Beaver Office of the Attorney General IGCS – 5th Floor 302 W. Washington St. Indianapolis, IN 46204
/s/ Gavin M. Rose Gavin M. Rose Attorney at Law
20

 
 Case 1:10-cv-00358-JMS-TAB Document 115 Filed 06/10/11 Page 1 of 2 PageID #: 1073

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

A.M.T., by his mother and next friend Karla )

T., et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

MICHAEL A. GARGANO , in his official )

capacity as Secretary of the Indiana Family )

and Social Services Administration, et al., )

)

Defendants.

)

No. 1:10-cv-0358-JMS-TAB

ORDER

The plaintiffs and the certified class having filed their Unopposed Motion to Withdraw (a) Motion to Amend Judgment Pursuant to Rule 59 of the Federal Rules of Civil Procedure (ECF No. 101) and (b) Motion for Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988 (ECF No. 103) (“Motion”), and the Court having read and reviewed the same and being duly advised, the Court now finds that said Motion should be GRANTED.
IT IS THEREFORE ORDERED that the plaintiffs’ Motion to Amend Judgment Pursuant to Rule 59 of the Federal Rules of Civil Procedure (ECF No. 101) and their Motion for Attorneys’ Fees and Costs Pursuant to 42 U.S.C. § 1988 (ECF No. 103) are hereby withdrawn.
SO ORDERED.

__0_6_/_1_0_/2_0_1_1___ Date

_________________________________________________________________ Judge, United States District Court
Tim A. Baker United States Magistrate Judge Southern District of Indiana
1

Case 1:10-cv-00358-JMS-TAB Document 115 Filed 06/10/11 Page 2 of 2 PageID #: 1074 cc: Gavin M. Rose ACLU of Indiana grose@aclu-in.org Kenneth J. Falk ACLU of Indiana kfalk@aclu-in.org Betsy M. Isenberg Office of the Attorney General betsy.isenberg@atg.in.gov Erica S. Sullivan Office of the Attorney General erica.sullivan@atg.in.gov
2

 
 Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 1 of 10
CMP,CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:10−cv−00358−JMS−TAB

A.M.T. et al v. MURPHY et al Assigned to: Judge Jane Magnus−Stinson Referred to: Magistrate Judge Tim A. Baker Cause: 42:1983 Civil Rights Act Plaintiff A. M. T. by his mother and next friend Karla T.
Plaintiff J. J. M. by his mother and next friend Amy M.
Plaintiff J. M. G. by his father and next friend Michael G., on their own behalf and on behalf of those similarly situated

Date Filed: 03/25/2010 Date Terminated: 02/10/2011 Jury Demand: None Nature of Suit: 444 Civil Rights: Welfare (DISCONTINUED AFTER 1/7/2012) Jurisdiction: Federal Question
represented by Gavin Minor Rose ACLU OF INDIANA 1031 E. Washington Street Indianapolis, IN 46202 317−635−4059 ext.106 Fax: 317−635−4105 Email: grose@aclu−in.org ATTORNEY TO BE NOTICED
Kenneth J. Falk ACLU OF INDIANA 1031 East Washington Street Indianapolis, IN 46202−3952 (317) 635−4059 x104 Fax: (317) 635−4105 Email: kfalk@aclu−in.org ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED
represented by Gavin Minor Rose (See above for address) ATTORNEY TO BE NOTICED
Kenneth J. Falk (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
MICHAEL A. GARGANO in his official capacity as Secretary of the Indiana Family and Social Services Administration

represented by Betsy M. Isenberg INDIANA OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS − 5th Floor Indianapolis, IN 46204 (317) 232−6231 Fax: (317) 232−7979 Email: Betsy.Isenberg@atg.in.gov

Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 2 of 10

ATTORNEY TO BE NOTICED

Erica Sue Sullivan INDIANA ATTORNEY GENERAL 302 West Washington Street, Indiana Government Center South Fifth Floor Indianapolis, IN 46204 317−232−6297 Email: erica.sullivan@atg.in.gov ATTORNEY TO BE NOTICED

Defendant
PATRICIA CASANOVA in her official capacity as Director of the Office of Medicaid Policy and Planning of the Indiana Family and Social Services Administration

represented by Betsy M. Isenberg (See above for address) ATTORNEY TO BE NOTICED
Erica Sue Sullivan (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/25/2010
03/25/2010 03/25/2010 03/25/2010 03/25/2010 03/25/2010 03/25/2010 03/25/2010
03/25/2010
03/25/2010 03/25/2010 03/25/2010 03/30/2010

# Docket Text
1 COMPLAINT against PATRICIA CASANOVA, ANNE WALTERMAN MURPHY, filed by A. M. T., by his mother and next friend, Karla T., J. J. M. by his mother and next friend, Amy M., and J. M. G., by his father and next friend Michael G, on their own behalf and on behalf of those similarly situated. (Attachments: # 1 Exhibit 1−Excerpts from Provider Manual, # 2 Exhibit 2−Denial Notice of A.M.T., # 3 Exhibit 3−Denial Notice of J.J.M., # 4 Exhibit 4−Denial Notice of J.M.G.)(LBK) (Entered: 03/25/2010)
2 CIVIL COVER SHEET, filed by Plaintiffs. (LBK) (Entered: 03/25/2010)
3 NOTICE of Appearance by Gavin Minor Rose on behalf of Plaintiffs. (LBK) (Entered: 03/25/2010)
4 RECEIPT #IP017334 in the amount of $ 350.00. (LBK) (Entered: 03/25/2010)
5 Summons Issued as to PATRICIA CASANOVA. (LBK) (Entered: 03/25/2010)
6 Summons Issued as to ANNE WALTERMAN MURPHY. (LBK) (Entered: 03/25/2010)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (LBK) (Entered: 03/25/2010)
8 MOTION of Parents and Next Friends to Proceed by Anonymous Name, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Affidavit (Karla T.), # 2 Affidavit (Amy M.), # 3 Affidavit (Michael G.), # 4 Text of Proposed Order)(Rose, Gavin) (Entered: 03/25/2010)
9 BRIEF/MEMORANDUM in Support re 8 MOTION of Parents and Next Friends to Proceed by Anonymous Name, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 03/25/2010)
10 MOTION to Certify Class, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 03/25/2010)
11 BRIEF/MEMORANDUM in Support re 10 MOTION to Certify Class, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 03/25/2010)
12 MOTION for Preliminary Injunction, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 03/25/2010)
13 RETURN of Service by CMRRR, filed by A. M. T., J. J. M., J. M. G.. ANNE WALTERMAN MURPHY served on 3/29/2010. (Rose, Gavin) (Entered: 03/30/2010)

Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 3 of 10

03/30/2010 03/30/2010 03/30/2010
03/30/2010 04/09/2010 04/09/2010 04/09/2010 04/09/2010 04/15/2010 04/16/2010 04/19/2010 04/19/2010 04/22/2010
04/27/2010 04/28/2010 04/28/2010

14 RETURN of Service by CMRRR, filed by A. M. T., J. J. M., J. M. G.. PATRICIA CASANOVA served on 3/29/2010. (Rose, Gavin) (Entered: 03/30/2010)
15 ORDER granting Plaintiff's 8 Motion to Proceed by Anonymous Names and to Seal Affidavits Containing Actual Names (S.O.). Signed by Judge Sarah Evans Barker on 3/30/2010. (MAC) (Entered: 03/30/2010)
16 Entry setting Briefing Schedule and Notice of Hearing on Plaintiffs' Motion for Preliminary Injunction. Plaintiffs' Brief shall be filed by 4/16/2010. Defendants' Response shall be filed by 5/14/2010 and Plaintiffs' Reply Brief shall be filed by 5/21/2010. SCHEDULING ORDER: Hearing set for 5/28/2010 10:00 AM in room #216 before Judge Sarah Evans Barker. Signed by Judge Sarah Evans Barker on 3/30/2010.(MAC) (Entered: 03/30/2010)
17 SEALED Notice of Filing of Affidavits Containing Real Names of Parents and Next Friends, re 15 Order on Motion, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Affidavit (Karla T.), # 2 Affidavit (Amy M.), # 3 Affidavit (Michael G.))(Rose, Gavin) (Entered: 03/30/2010)
18 NOTICE of Appearance by Betsy M. Isenberg on behalf of Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 04/09/2010)
19 NOTICE of Service of Sealed Affidavits, filed by Plaintiffs J. M. G., J. J. M., A. M. T., re 17 SEALED Document. (Rose, Gavin) (Entered: 04/09/2010)
20 NOTICE of Appearance by Eric James Beaver on behalf of Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Beaver, Eric) (Entered: 04/09/2010)
21 MOTION for Extension of Time to April 27, 2010 to file response to 10 MOTION to Certify Class, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 04/09/2010)
22 MOTION for Discovery (Expedited Discovery), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Exhibit 1 (Proposed Discovery Request), # 2 Text of Proposed Order)(Rose, Gavin) (Entered: 04/15/2010)
23 BRIEF/MEMORANDUM in Support re 12 MOTION for Preliminary Injunction, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 04/16/2010)
24 NOTICE of Parties' First Extension of Time, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 04/19/2010)
25 ORDER granting Defts' 21 Motion for Extension of Time to File Response to 4/27/2010 re 10 MOTION to Certify Class. Signed by Magistrate Judge Tim A. Baker on 4/19/2010. (SWM) (Entered: 04/19/2010)
26 SCHEDULING ORDER: Status Conference set for 4/23/2010 01:30 PM in Telephonic before Magistrate Judge Tim A. Baker. The purpose of this conference is to address case management and Plaintiff's motion for expedited discovery. [Docket No. 22.] Parties shall appear by counsel, who shall contact the Court at 317−229−3660. Signed by Magistrate Judge Tim A. Baker on 4/22/2010.(SWM) (Entered: 04/22/2010)
27 RESPONSE in Opposition re 10 MOTION to Certify Class, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 04/27/2010)
28 Unopposed MOTION for Extension of Time to 05/21/2010 to file reply to 10 MOTION to Certify Class, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 04/28/2010)
29 Minute Order for proceedings held before Magistrate Judge Tim A. Baker: Telephone Status Conference held on 4/23/2010. Discussion held regarding discovery and related matters. Plaintiffs' motion for expedited discovery 22 is granted. Given the presence of a preliminary injunction hearing on May 28, 2010,

Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 4 of 10

05/04/2010 05/10/2010 05/14/2010 05/17/2010 05/17/2010 05/20/2010
05/21/2010 05/21/2010
05/21/2010 05/21/2010 05/27/2010 05/28/2010
05/28/2010

and given the urgency of the issues presented by this case, good cause clearly exists for expedited discovery. The Defendants are ordered to produce a designated deponent or deponents pursuant to Federal Rule 30(b)(6) no later than May 12, 2010, and shall respond to Plaintiffs' request for production of documents no later than 72 hours before any scheduled deposition. Signed by Magistrate Judge Tim A. Baker. (SWM) (Entered: 04/29/2010)
30 SCHEDULING ORDER: Conference set for 5/5/2010 11:00 AM telephonic before Magistrate Judge Tim A. Baker. The purposed of this conf is to address a discovery dispute. Signed by Magistrate Judge Tim A. Baker on 5/4/2010.(CBU) (Entered: 05/04/2010)
31 ORDER granting pltfs' 28 Motion for Extension of Time to File Reply to 5/21/2010 re 10 MOTION to Certify Class. Signed by Magistrate Judge Tim A. Baker on 5/10/2010. (SWM) (Entered: 05/10/2010)
32 RESPONSE in Opposition re 12 MOTION for Preliminary Injunction, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 05/14/2010)
33 MOTION to Dismiss, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 05/17/2010)
34 BRIEF/MEMORANDUM in Support re 33 MOTION to Dismiss, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 05/17/2010)
35 Minute Order for proceedings held before Magistrate Judge Tim A. Baker: Telephonic Status Conference held on 5/5/2010. Discussion held regarding discovery and related matters. Defendants objected to two categories of discovery sought by Plaintiffs. Argument held, and the Court ruled as follows (see Order). Signed by Magistrate Judge Tim A. Baker.(SWM) (Entered: 05/21/2010)
36 STIPULATION, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY, Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Exhibit 1 (405 IAC 5−22−6(b)(7) denials), # 2 Exhibit 2 (405 IAC 5−22−6(b)(6) denials))(Rose, Gavin) (Entered: 05/21/2010)
37 NOTICE Designation of Evidence in Support of Motion for Preliminary Injunction and Motion for Class Certification, filed by Plaintiffs J. M. G., J. J. M., A. M. T., re 10 MOTION to Certify Class, 12 MOTION for Preliminary Injunction. (Attachments: # 1 Exhibit 3 (Part 1 of 2) (Dep. of Jeremy Brown − Tr. &Exhs 1 − 2), # 2 Exhibit 3 (Part 2 of 2) (Dep. of Jeremy Brown − Exhs 3 − 7), # 3 Exhibit 4 (Aff. of Dr. Susan Caldecott Dieterich), # 4 Exhibit 5 (Aff. of Dr. Laura J. Wilner), # 5 Exhibit 6 (Aff. of Kimberli Curtis), # 6 Exhibit 7 (Aff. of Raquel Ravinet), # 7 Exhibit 8 (Supp. Aff. of Karla T.), # 8 Exhibit 9 (Supp. Aff. of Amy M.), # 9 Exhibit 10 (Supp. Aff. of Michael G.)) (Rose, Gavin) (Entered: 05/21/2010)
38 REPLY in Support of Motion re 10 MOTION to Certify Class, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 05/21/2010)
39 REPLY in Support of Motion re 12 MOTION for Preliminary Injunction, 33 MOTION to Dismiss (Reply in Support of Motion for Preliminary Injunction and Response in Opposition to Motion to Dismiss), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 05/21/2010)
40 NOTICE of Appearance by Kenneth J. Falk on behalf of Plaintiffs J. M. G., J. J. M., A. M. T.. (Falk, Kenneth) (Entered: 05/27/2010)
41 MOTION for Leave to File Surreply in Opposition to Plaintiffs' Motion for Class Certification, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Attachments: # 1 Text of Proposed Order, # 2 Surreply in Opposition to Plaintiffs' Motion for Class Certification)(Isenberg, Betsy) (Entered: 05/28/2010)
43 Minute Entry for proceedings held before Judge Sarah Evans Barker on 5/28/2010: On this date, the parties appeared by counsel for a hearing on Plaintiffs' Motion for Preliminary Injunction. Prior to the hearing, at the behest of the Court, counsel

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05/31/2010 06/15/2010 06/30/2010
06/30/2010 06/30/2010 07/15/2010
08/16/2010 08/17/2010 08/30/2010 09/01/2010 09/09/2010 09/14/2010
09/20/2010

conferred in chambers. As a result of said discussions, an agreement was reached with respect to the pending preliminary matters. There being no need to proceed with the hearing, the attorneys were dismissed and the hearing cancelled. (TRG) (Entered: 06/01/2010)
42 REPLY in Support of Motion re 33 MOTION to Dismiss, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 05/31/2010)
44 Reassignment of Case to Judge Jane Magnus−Stinson. Judge Sarah Evans Barker no longer assigned to the case. Please include the new case number (1:10−cv−00358−JMS−TAB), which includes the initials of the newly assigned judge, on all future filings in this matter. (SWM) (Entered: 06/16/2010)
45 SCHEDULING ORDER: Status Conference set for 7/12/2010 10:30 AM in Telephonic before Magistrate Judge Tim A. Baker. The purpose of this conference is to address case status and settlement. Parties shall appear by counsel, who shall contact the Court at 317−229−3660. Signed by Magistrate Judge Tim A. Baker on 6/30/2010.(SWM) (Entered: 06/30/2010)
46 ORDER granting defts Anne Waltermann Murphy and Patricia Casanova's 41 Motion for Leave to File Surreply in Opposition to Motion for Class Certification. Signed by Magistrate Judge Tim A. Baker on 6/30/2010. (SWM) (Entered: 06/30/2010)
47 Surreply re 10 MOTION to Certify Class, filed by Defendants PATRICIA CASANOVA and ANNE WALTERMAN MURPHY. (SWM) (Entered: 06/30/2010)
48 Minute Order for proceedings held before Magistrate Judge Tim A. Baker: Telephonic Status Conference held on 7/12/2010. Discussion held regarding settlement and related matters. The parties shall file a status report in 30 days addressing the status of settlement and the need for and timing of a settlement conference. Signed by Magistrate Judge Tim A. Baker.(SWM) (Entered: 07/16/2010)
49 MOTION for Extension of Time to August 30, 2010 to Submit Joint Status Report, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 08/16/2010)
50 ORDER granting Defendants Anne Waltermann Murphy and Patricia Casanova's 49 Motion for Extension of Time to submit joint status report concerning settlement to 8/30/2010. Signed by Magistrate Judge Tim A. Baker on 8/17/2010. (SWM) (Entered: 08/18/2010)
51 Second MOTION for Extension of Time to September 13, 2010 to Submit Joint Status Report, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Attachments: # 1 Text of Proposed Order)(Isenberg, Betsy) (Entered: 08/30/2010)
52 ORDER granting defts' 51 Motion for Extension of Time to submit a joint status report regarding the status of settlement to 9/13/2010. Signed by Magistrate Judge Tim A. Baker on 9/1/2010. (SWM) (Entered: 09/01/2010)
53 STATUS REPORT by PATRICIA CASANOVA, J. M. G., J. J. M., ANNE WALTERMAN MURPHY, A. M. T.. (Rose, Gavin) (Entered: 09/09/2010)
54 SCHEDULING ORDER: Hearing on pending motions is set for 9/22/2010 01:00 PM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Counsel shall have 20 minutes per side. Signed by Judge Jane Magnus−Stinson on 9/14/2010.(CBU) (Entered: 09/14/2010)
55 STIPULATION (Second), filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY, Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 09/20/2010)

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09/23/2010
09/28/2010 10/01/2010 10/03/2010
10/11/2010
10/11/2010 10/11/2010 10/12/2010 10/12/2010 10/12/2010 10/15/2010 10/22/2010 10/27/2010

56 Minute Order for proceedings held before Judge Jane Magnus−Stinson: The parties appeared by counsel to present oral argument on pending motions. Plaintiffs orally moved to withdraw their Motion for Preliminary Injunction, [dkt. 12], and the Court ORDERED the motion WITHDRAWN WITHOUT PREJUDICE. The Court heard oral argument on Defendants' Motion to Dismiss, [dkt. 33], and Plaintiffs' Motion to Certify Class, [dkt. 10], and took both of those motions UNDER ADVISEMENT. Signed by Judge Jane Magnus−Stinson. (Court Reporter Jean Knepley.)(LBK) (Entered: 09/23/2010)
57 ORDER granting in part and denying in part 33 Motion to Dismiss; taking under advisement 10 Motion to Certify Class. (See Order) The Court ORDERS the Plaintiffs to file a more definite statement within fourteen days. Signed by Judge Jane Magnus−Stinson on 9/28/2010. (TMA) (Entered: 09/29/2010)
58 Statement (More Definite Statement Concerning Legal Claims) by J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 10/01/2010)
59 ORDER. Plaintiffs' statement, [Dkt. 58 at 2], substantively satisfies the concerns outlined in the Court's 9/28/2010 Order. Because the FSSA has not yet answered Plaintiffs' Complaint, and to ensure that all parties are operating under the same controlling allegations, the Court ORDERS Plaintiffs to file a comprehensive amended complaint within seven days of the date of this Order. Additionally, the Court ORDERS Plaintiffs to file a statement contemporaneously with their amended complaint setting forth their position on whether the allegations in the amended complaint affect their pending Motion for Class Certification. The FSSA should answer or otherwise plead to Plaintiffs' Amended Complaint within 21 days of the date on which Plaintiffs' amended complaint is filed and, at the time of its answer, also file its own statement setting forth its position on whether the allegations in Plaintiffs' amended complaint affect the pending Motion for Class Certification. Signed by Judge Jane Magnus−Stinson on 10/3/2010.(LBK) (Entered: 10/04/2010)
60 AMENDED COMPLAINT (First Amended Class Action Complaint for Declaratory and Injunctive Relief) against PATRICIA CASANOVA, ANNE WALTERMAN MURPHY, filed by A. M. T., J. J. M., J. M. G.. (Attachments: # 1 Exhibit 1 (Excerpts from Provider Manual), # 2 Exhibit 2 (Denial Notice of A.M.T.), # 3 Exhibit 3 (Denial Notice of J.J.M.), # 4 Exhibit 4 (Denial Notice of J.M.G.))(Rose, Gavin) (Entered: 10/11/2010)
61 MOTION (Renewed Motion of Parents and Next Friends to Proceed by Anonymous Names), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 10/11/2010)
62 Statement Concerning Class Certification (and Renewed Motion for Class Certification) by J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 10/11/2010)
63 ORDER: The parties are ordered to file a proposed Case Management Plan within 14 days from the date of this order. Signed by Magistrate Judge Tim A. Baker on 10/12/2010.(SWM) (Entered: 10/12/2010)
64 MOTION for Summary Judgment, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Exhibit 11 (Second Supp. Aff. of Karla T.))(Rose, Gavin) (Entered: 10/12/2010)
65 BRIEF/MEMORANDUM in Support re 64 MOTION for Summary Judgment, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 10/12/2010)
66 ORDER granting pltfs and their parents and next friends' 61 Motion to proced by anonoymous names (see Order). Signed by Magistrate Judge Tim A. Baker on 10/15/2010. (SWM) (Entered: 10/18/2010)
67 CASE MANAGEMENT PLAN TENDERED, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY, Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 10/22/2010)
68 ORDER: CASE MANAGEMENT PLAN APPROVED AS SUBMITTED. Dispositive Motions due by 4/1/2011. Signed by Magistrate Judge Tim A. Baker on 10/27/2010.(SWM) (Entered: 10/28/2010)

Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 7 of 10

10/28/2010
10/29/2010 10/29/2010 11/01/2010 11/01/2010 11/01/2010 11/01/2010 11/01/2010 11/03/2010 11/10/2010 11/10/2010 11/10/2010 11/10/2010 11/12/2010

69 TRIAL SETTING AND NOTICE OF FINAL PRETRIAL CONFERENCE. Bench Trial set for 9/26/2011 at 09:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Final Pretrial Conference set for 9/1/2011 at 10:00 AM in room #307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Judge Jane Magnus−Stinson. Counsel are reminded of the required pretrial preparation deadlines set forth in paragraph VIII of the case management plan [dkt. 68]. Counsel are further reminded to review the undersigned's Practices and Procedures, available on the internet at http://www.insd.uscourts.gov/Publications/CourtroomProceduresJMS.pdf. Signed by Judge Jane Magnus−Stinson on 10/28/2010.(LBK) (Entered: 10/29/2010)
70 PROCEDURES AND PRACTICES before Judge Jane Magnus−Stinson. (LBK) (Entered: 10/29/2010)
71 MOTION to Withdraw as Attorney, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Attachments: # 1 Text of Proposed Order)(Beaver, Eric) (Entered: 10/29/2010)
72 NOTICE of Service of Initial Disclosures, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 11/01/2010)
73 Exhibit List (Preliminary), filed by Plaintiffs J. M. G., J. J. M., A. M. T., Witness List (Preliminary), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 11/01/2010)
74 ANSWER to 60 Amended Complaint and Statement of Defenses, filed by PATRICIA CASANOVA, ANNE WALTERMAN MURPHY.(Isenberg, Betsy) (Entered: 11/01/2010)
75 Statement Regarding Class Certification by PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 11/01/2010)
76 NOTICE of Service of Initial Disclosures, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 11/01/2010)
77 ORDER granting 71 Motion to Withdraw as Attorney. Attorney Eric James Beaver withdrawn. Signed by Magistrate Judge Tim A. Baker on 11/3/2010. (SWM) (Entered: 11/04/2010)
78 MOTION for Judgment on the Pleadings Partial, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 11/10/2010)
79 BRIEF/MEMORANDUM in Support re 78 MOTION for Judgment on the Pleadings Partial, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 11/10/2010)
80 MOTION to Stay Briefing on Plaintiffs' Motion for Summary Judgment, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 11/10/2010)
81 RESPONSE in Opposition re 80 MOTION to Stay Briefing on Plaintiffs' Motion for Summary Judgment, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 11/10/2010)
82 ORDER − Plaintiffs filed a Motion for Summary Judgment on 10/12/2010. [Dkt. 64.] Defendants filed a Motion for Partial Judgment on the Pleadings on 11/10/2010. [Dkt. 78.] Contemporaneously, Defendants also filed a Motion to Stay Briefing on Plaintiffs' Motion for Summary Judgment. [Dkt. 80.] Plaintiffs filed a response that same day, objecting to Defendants request to stay briefing on their summary judgment motion. [Dkt. 81.] The Court notes that, based on its calculation, Defendants' response to Plaintiffs' summary judgment motion is due today. Defendants should not presume that their belated motion to stay relieves them from filing a timely response to Plaintiffs' summary judgment motion. If they intend to file a reply in support of their Motion to Stay, they should do so by noon today. The Court will rule on their Motion to Stay after that time. Signed by Judge

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11/12/2010 11/12/2010
11/15/2010 11/18/2010
11/22/2010
11/24/2010 11/24/2010 11/29/2010 12/01/2010 12/01/2010 12/01/2010 12/03/2010

Jane Magnus−Stinson on 11/12/2010.(LBK) (Entered: 11/12/2010)
83 REPLY in Support of Motion re 80 MOTION to Stay Briefing on Plaintiffs' Motion for Summary Judgment, filed by Defendants PATRICIA CASANOVA, ANNE WALTERMAN MURPHY. (Isenberg, Betsy) (Entered: 11/12/2010)
84 ORDER − For the reasons discussed herein, the Court DENIES Defendants' Motion to Stay Briefing on Plaintiffs' Motion for Summary Judgment. [Dkt. 80.] The Court recognizes that it has not ruled on Plaintiffs' Motion to Certify Class and that Defendants' summary judgment response may be affected by the Court's forthcoming ruling. Therefore, the Court grants Defendants an extension of time to respond to Plaintiffs' Motion for Summary Judgment and ORDERS that they file their response within five business days of the Court's ruling on Plaintiffs' Motion to Certify Class. Signed by Judge Jane Magnus−Stinson on 11/12/2010. (LBK) (Entered: 11/12/2010)
85 RESPONSE in Opposition re 78 MOTION for Judgment on the Pleadings Partial, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 11/15/2010)
86 ENTRY − For the reasons discussed herein, the Court ORDERS Michael A. Gargano, in his official capacity, substituted for Ann Walterman Murphy as a defendant in this action. The Clerk is directed to update the case caption to reflect this change. Patricia Casanova, in her official capacity as Director of the Office of Medicaid Policy and Planning of the FSSA, remains a defendant in this action. Signed by Judge Jane Magnus−Stinson on 11/18/2010.(LBK) (Entered: 11/18/2010)
87 ORDER CERTIFYING CLASS ACTION. For the reasons discussed herein, the Court GRANTS Plaintiffs' Motion to Certify Class. Class is certified as described in this Order. The Court hereby DESIGNATES A.M.T., J.J.M, and J.M.G. as the representative plaintiffs for the certified class and, pursuant to Federal Rule of Civil Procedure 23(g), DESIGNATES Mr. Kenneth Falk and Mr. Gavin Rose as lead class counsel. The Court now ORDERS the parties to meet and confer with one another and, by December 3, 2010, submit a joint report in this matter setting forth a proposed plan (or alternative plans) as to what notice, if any, should be provided to the class. Additionally, pursuant to docket entry 84, FSSA has until December 1, 2010 to file a response to Plaintiffs' Motion for Summary Judgment. See Order. Signed by Judge Jane Magnus−Stinson on 11/22/2010. (LBK) (Entered: 11/22/2010)
88 NOTICE of Appearance by Erica Sue Sullivan on behalf of Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Sullivan, Erica) (Entered: 11/24/2010)
89 REPLY in Support of Motion re 78 MOTION for Judgment on the Pleadings Partial, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 11/24/2010)
90 Exhibit List Preliminary, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO, Witness List Preliminary, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 11/29/2010)
91 MOTION Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Attachments: # 1 Affidavit Affidavit of Counsel Betsy Isenberg)(Isenberg, Betsy) (Entered: 12/01/2010)
92 BRIEF/MEMORANDUM in Support re 91 MOTION Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 12/01/2010)
93 RESPONSE in Opposition re 64 MOTION for Summary Judgment, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 12/01/2010)
94 NOTICE (Joint Report Regarding Class Notice), filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO, Plaintiffs J. M. G., J. J. M., A. M. T., re 87 Order on Motion to Certify Class. (Rose, Gavin) (Entered: 12/03/2010)

Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 9 of 10

12/03/2010
12/04/2010 12/09/2010 12/14/2010 02/10/2011
02/10/2011
02/11/2011 02/11/2011 02/23/2011 02/23/2011 02/28/2011 03/06/2011 03/14/2011 03/15/2011

95 ENTRY re 94 Notice (Other) filed by J. M. G., A. M. T., PATRICIA CASANOVA, MICHAEL A. GARGANO, J. J. M. The Court has reviewed the parties' Joint Report in which they agree that it is not necessary to give notice to absent class members at this time. Because the class was certified pursuant to Trial Rule 23 (b)(2), the Court finds that it is not necessary to issue notice at this time (Marginal Notation). Signed by Judge Jane Magnus−Stinson on 12/3/2010.(MAC) (Entered: 12/03/2010)
96 RESPONSE in Opposition re 91 MOTION Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 12/04/2010)
97 REPLY in Support of Motion re 64 MOTION for Summary Judgment, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 12/09/2010)
98 REPLY in Support of Motion re 91 MOTION Pursuant to Rule 56(f) of the Federal Rules of Civil Procedure, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 12/14/2010)
99 ORDER granting in part and denying in part 64 Motion for Summary Judgment; denying 78 Motion for Judgment on the Pleadings; denying 91 alternative Motion. The Court denies pltfs request for attny fees. The Court grants pltfs request for permanent injunctive relief. Signed by Judge Jane Magnus−Stinson on 2/10/2011. (CBU) (Entered: 02/10/2011)
100 PERMANENT INJUNCTION and FINAL JUDGMENT −The Court enters Final Judgment in favor of pltfs and the class and against defts to the extent that pltfs sought relief in their Amended Complt. The Court Grants pltfs request for permanent injunction. Signed by Judge Jane Magnus−Stinson on 2/10/2011.(CBU) (Entered: 02/10/2011)
101 MOTION to Amend/Correct (Motion to Amend Judgment), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 02/11/2011)
102 BRIEF/MEMORANDUM in Support re 101 MOTION to Amend/Correct (Motion to Amend Judgment), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 02/11/2011)
103 MOTION for Attorney Fees and Costs, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Exhibit 1 (Aff. of Gavin M. Rose), # 2 Exhibit 2 (Aff. of Kenneth J. Falk), # 3 Exhibit 3 (Aff. of Richard A. Waples))(Rose, Gavin) (Entered: 02/23/2011)
104 BRIEF/MEMORANDUM in Support re 103 MOTION for Attorney Fees and Costs, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 02/23/2011)
105 RESPONSE in Opposition re 101 MOTION to Amend/Correct (Motion to Amend Judgment), filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 02/28/2011)
106 REPLY in Support of Motion re 101 MOTION to Amend/Correct (Motion to Amend Judgment), filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 03/06/2011)
107 RESPONSE in Opposition re 103 MOTION for Attorney Fees and Costs, filed by Defendants PATRICIA CASANOVA, MICHAEL A. GARGANO. (Isenberg, Betsy) (Entered: 03/14/2011)
108 ENTRY. Presently pending before the Court are Plaintiffs' Motion to Amend Judgment and Motion for Attorney Fees. [Dkts. 101, 103.] In response to Plaintiffs' Motion for Attorney Fees, Defendants ask the Court to allow the parties to confer on the issue of attorney fees and costs before issuing an order on fees. [Dkt. 107 at 1 n.1.] To that end, the Court refers this matter to Magistrate Judge Baker to confer with the parties to facilitate resolution of the attorney fees issue at his earliest convenience. Signed by Judge Jane Magnus−Stinson on 3/15/2011.(LBK) (Entered: 03/16/2011)

Case: 1:10-cv-358 As of: 10/30/2012 05:46 PM EDT 10 of 10

03/16/2011
03/16/2011 03/17/2011 03/31/2011
04/14/2011 06/09/2011 06/10/2011

109 SCHEDULING ORDER: Pretrial Conference set for 3/29/2011 09:30 AM in room #234, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Tim A. Baker. The purpose of this conference is to address Plaintiffs' motion to amend the judgment [Docket No. 101] and Plaintiffs' motion for attorneys' fees and costs. [Docket No. 103.] Signed by Magistrate Judge Tim A. Baker on 3/16/2011.(SWM) (Entered: 03/16/2011)
110 ORDER VACATING AND RESETTING CONFERENCE: The Court, on its own motion, vacates the pretrial conference set for 9:30 a.m. on March 29, 2011, and resets this conference for 1:30 p.m. on March 31, 2011. All requirements in the order originally setting this conference shall remain in effect. Signed by Magistrate Judge Tim A. Baker on 3/16/2011.(SWM) (Entered: 03/17/2011)
111 REPLY in Support of Motion re 103 MOTION for Attorney Fees and Costs, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Rose, Gavin) (Entered: 03/17/2011)
112 Minute Order for proceedings held before Magistrate Judge Tim A. Baker: Pretrial Conference held on 3/31/2011. Discussion held regarding settlement and related matters. Status Conference set for 4/14/2011 02:00 PM in Telephonic before Magistrate Judge Tim A. Baker. Parties shall participate in this conference by counsel, who shall call the Court at 317−229−3660. The purpose of this conference is to address settlement. Signed by Magistrate Judge Tim A. Baker.(SWM) (Entered: 04/01/2011)
113 ORDER: The Court, on its own motion, hereby vacates the telephonic status conference set for April 14, 2011, at 2:00 p.m. Signed by Magistrate Judge Tim A. Baker on 4/14/2011.(SWM) (Entered: 04/14/2011)
114 Unopposed MOTION to Withdraw 101 MOTION to Amend/Correct (Motion to Amend Judgment), 103 MOTION for Attorney Fees and Costs, filed by Plaintiffs J. M. G., J. J. M., A. M. T.. (Attachments: # 1 Text of Proposed Order)(Rose, Gavin) (Entered: 06/09/2011)
115 ORDER withdrawing pltfs and the certified class' 101 Motion to Amend Judgment; withdrawing pltfs and the certified class' 103 Motion for Attorney Fees; granting pltfs and the certified class' 114 Motion to Withdraw Dkt. Nos. 101 and 103. Signed by Magistrate Judge Tim A. Baker on 6/10/2011. (SWM) (Entered: 06/13/2011)

Case #: 1:10−cv−00358−JMS−TAB