United States Court of Appeals

for the Fifth Circuit

No. 21-30580

A. A., by and through his mother, P.A.; B. B., by and 

through her mother, P.B.; C. C., by and through her 

mother, P.C.; D. D., by and through his mother, P.D.; E. 

E., by and through his mother, P.E.; F. F., by and 

through her mother, P.F., 

Plaintiffs—Appellees,

versus

Courtney N. Phillips, Dr., in her official capacity as 

the Secretary of the Louisiana Department of Health; 

Louisiana Department of Health, 

Defendants—Appellants.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:19-CV-770

Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

January 20, 2023

Lyle W. Cayce

Clerk

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Medicaid-eligible children living in Louisiana allege that the Louisiana 

Department of Health (the “Department”) fails to provide them and 

similarly situated children with intensive home- and community-based 

services (“IHCBS”) needed to treat their diagnosed mental health or 

behavioral health conditions, as required by Medicaid’s Early and Periodic 

Screening, Diagnostic, and Treatment (“EPSDT”) mandate. Plaintiffs on 

behalf of themselves and a putative class of similarly situated Medicaideligible children sued the Department and its Secretary for violating 

Plaintiffs’ rights to necessary treatment under EPSDT and to treatment in 

the least restrictive setting under the ADA and Rehabilitation Act. The 

district court certified the class, which Defendants appeal. We VACATE

the class certification and REMAND the case for further proceedings 

consistent with this opinion.

I.

Plaintiffs are six Medicaid-eligible children residing across Louisiana 

who have been diagnosed with mental health or behavioral health conditions. 

Plaintiffs allege that the Department fails to provide Plaintiffs and similarly

situated children across Louisiana with the IHCBS needed to treat their 

conditions, as required by Medicaid’s EPSDT mandate. Under the EPSDT 

mandate, Medicaid-administering agencies like the Department must 

provide or arrange for all “necessary health care, diagnostic services, 

treatment, and other measures described in subsection (a),” which 

encompasses all services identified as medically necessary by a health 

professional.1

1 42 U.S.C. §§ 136d(a)(13), 1396d(r)(5). Congress amended the EPSDT provision 

in 1989 to impose “a mandatory duty upon participating states to provide EPSDT-eligible 

children with all . . . treatments and other measures described in § 1396d(a) of the Act, 

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Plaintiffs’ core allegation is that the Department maintains a policy of 

not providing IHCBS, which the district court defined as “intensive care 

coordination, crisis services, and intensive behavioral services and supports 

that are necessary to correct or ameliorate [Plaintiffs’] mental illnesses or 

conditions.” Plaintiffs allege that the Department instead only provides basic 

mental health interventions such as medication management and infrequent 

counseling. As a result, Medicaid-eligible children requiring intensive mental 

health care are untreated and, when they inevitably experience mental health 

crises, are forced to seek emergency care or psychiatric institutionalization.

In 2019, Plaintiffs, on behalf of themselves and a putative class of 

similarly situated Medicaid-eligible children in Louisiana, sued the 

Department and its Secretary, Dr. Courtney Phillips, in her official capacity,

(collectively “LDH”) contending that LDH’s failure to provide IHCBS 

violates their right to medically necessary treatment under Title XIX of the 

Social Security Act (the “Medicaid Act”)2 and violates their right to 

treatment in the least restrictive setting under Title II of the ADA3 and the

Rehabilitation Act.4 The district court certified a class under Rules 23(a) and 

(b)(2) consisting of: 

All Medicaid-eligible youth under the age of 21 in the State of 

Louisiana (1) who have been diagnosed with a mental health or 

behavioral disorder, not attributable to an intellectual or 

developmental disability, and (2) for whom a licensed 

practitioner of the healing arts has recommended intensive 

when necessary to correct or ameliorate health problems discovered by screening . . . .” 

S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 589–90 (5th Cir. 2004) (emphasis added).

2 42 U.S.C. § 1396(a)(13).

3 42 U.S.C. § 12132, et seq.

4 29 U.S.C. § 701, et. seq.

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home- and community- based services to correct or ameliorate 

their disorders.

LDH appeals the class certification, arguing that the class is not 

ascertainable, the district court abused its discretion in certifying the class, 

and the district court failed to conduct a rigorous analysis.

II.

We review a district court’s decision to certify a class for abuse of 

discretion.5 A district court “maintains great discretion in certifying and 

managing a class action.”6 We will reverse a class certification if a district 

court “abuses its discretion when its ruling is based on an erroneous view of 

the law or a clearly erroneous assessment of the evidence.”7 “Implicit in this 

deferential standard is a recognition of the essentially factual basis of the 

certification inquiry and of the district court’s inherent power to manage and 

control pending litigation.”8 “Whether the district court applied the correct 

legal standard in reaching its decision on class certification, however, is a legal 

question that we review de novo.”9

5 M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 836 (5th Cir. 2012).

6 Berger v. Compaq Comput. Corp., 257 F.3d 475, 478 (5th Cir. 2001)(quoting Mullen 

v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)).

7 Yates v. Collier, 868 F.3d 354, 359 (5th Cir. 2017) (quoting Bocanegra v. Vicmar 

Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).

8 Stukenberg, 675 F.3d at 836 (quoting Maldonado v. Ochsner Clinic Found., 493 F.3d 

521, 523 (5th Cir. 2007)).

9 Berger, 257 F.3d at 479 (quoting Allison v. Citgo Petroleum Corp., 151 F.2d 402, 408 

(5th Cir. 1998)).

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III.

For class certification to succeed under Rule 23, the class “must be 

adequately defined and clearly ascertainable.”10 To be ascertainable, the 

class must be susceptible to a precise definition to properly identify “those 

entitled to relief, those bound by the judgment, and those entitled to 

notice.”11 The district court “need not know the identity of each class 

member before certification[,]” but it needs to “be able to identify class 

members at some stage of the proceeding.”12 “The order defining the class 

should avoid subjective standards (e.g., a plaintiff’s state of mind) or terms 

that depend on resolution of the merits (e.g., persons who were discriminated 

against).”13 “There can be no class action if the proposed class is 

‘amorphous’ or ‘imprecise.’”14 “[T]he possibility that some [claimants] 

may fail to prevail on their individual claims will not defeat class 

10 DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); see also John v. Nat'l 

Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The existence of an ascertainable 

class of persons to be represented by the proposed class representative is an implied 

prerequisite of Federal Rule of Civil Procedure 23.” (footnote omitted)).

11 In re Monumental Life Ins. Co., 365 F.3d 408, 413 (5th Cir. 2004) (quoting 5 JAMES 

W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 23.21[6] (Matthew Bender 3d ed. 

1997)).

12 Seeligson v. Devon Energy Prod. Co., L.P., 753 F. App’x 225, 230 (5th Cir. 2018) 

(unpublished per curiam) (quoting Frey v. First Nat’l Bank Sw., 602 F. App’x 164, 168 (5th 

Cir. 2015) (unpublished per curiam)). The ascertainability standard is less burdensome in 

this circuit than in others, which require that the class be readily ascertainable at 

certification. See id. at 230 (discussing the Third Circuit’s requirements). 

13 Plaza 22, LLC v. Waste Mgmt. of La., LLC, No. CIV.A. 13-618-SDD, 2015 WL 

1120320, at *3 (M.D. La. Mar. 12, 2015) (quoting MANUAL FOR COMPLEX LITIGATION § 

21.222 at *1 (4th ed. 2004)).

14 John, 501 F.3d at 445 n.3 (quoting 5 JAMES W. MOORE ET AL., MOORE’S 

FEDERAL PRACTICE § 23.21[1] (Matthew Bender 3d ed. 1997)).

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membership’ on the basis of the ascertainability requirement.”15 Ultimately, 

“the touchstone of ascertainability is whether the class is ‘sufficiently 

definite so that it is administratively feasible for the court to determine 

whether a particular individual is a member.’”16

LDH argues that the class definition is not ascertainable because it is 

not clear which services are included in the term “IHCBS” and which are 

not. We agree. The district court defined IHCBS as “intensive care 

coordination, crisis services, and intensive behavioral services and supports 

that are necessary to correct or ameliorate [class members’] mental illness or 

conditions.” These three terms are not defined, nor are they specific, billable 

behavioral health services ordered by a doctor or licensed mental health 

professional. Billable specialized behavioral health services include things 

like psychosocial rehabilitation or community psychiatric support and 

treatment. Here, it is not clear which care coordination services and 

behavioral services are “intensive,” falling within the IHCBS definition, and 

which are not. Knowing which services IHCBS encompasses is essential to 

evaluating whether an individual is a class member.

The district court found that the class definition was ascertainable in 

large part because IHCBS is the “functional equivalent” to specialized 

behavioral health (“SBH”) services that Louisiana state law mandates.17

15 In re Deepwater Horizon, 739 F.3d 790, 821 (5th Cir. 2014) (quoting In re 

Rodriguez, 695 F.3d 360, 370 (5th Cir. 2012)); see also McKeage v. TMBC, LLC, 847 F.3d 

992, 999 (8th Cir. 2017) (holding that manual review does not preclude ascertainability).

16 Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (quoting 7A 

CHARLES ALAN WRIGHT & ARTHUR R. MILLER ET AL., FEDERAL PRACTICE &

PROCEDURE § 1760 (3d ed. 1998)).

17 See La. Admin. Code tit. 50, Pt. XXXIII, § 2101 (2021) (“The specialized 

behavioral health services rendered to children with emotional or behavioral disorders are 

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Because the Louisiana Legislative Auditor reports on SBH services available 

to Louisiana’s Medicaid recipients and LDH has responded to those 

findings, the district court reasoned that LDH must understand what 

services are included in SBH, and thus understand what services are included 

in its “functional[ly] equivalent” IHCBS. But “functional equivalent” does 

not mean that SBH services are identical to IHCBS. For example, while some 

SBH services, like inpatient care and long-term residential care,18 are 

presumably not included in IHCBS, it is not clear if other SBH services, like 

group therapy, functional family therapy, and homebuilders services,19 are 

encompassed in IHCBS. Accordingly, we are not convinced that LDH’s use 

of the term SBH services indicates an understanding of what services are 

included in IHCBS.20

those services necessary to reduce the disability resulting from the illness and to restore the 

individual to his/her best possible functioning level in the community.”).

18 LOUISIANA LEGISLATIVE AUDITOR, ACCESS TO COMPREHENSIVE AND 

APPROPRIATE SPECIALIZED BEHAVIORAL HEALTH SERVICES IN LOUISIANA, LA. DEP’T 

HEALTH 1 (Feb. 14, 2018), 

https://www.lla.la.gov/PublicReports.nsf/B99F834BF8F4AB908625823400758F9B/$F

ILE/000179B4.pdf.

19 Id. at 6, 14. Functional family therapy “[t]argets youth primarily demonstrating 

externalizing behaviors or at risk for developing more severe behaviors which affect family 

functioning.” Id. at 6. Homebuilders services “[t]argets families with children at imminent 

risk of out-of-home placement or being reunified from placement.” Id. It is not clear to us 

whether these services would be considered “intensive care coordination, crisis services, 

and intensive behavioral services and supports that are necessary to correct or ameliorate 

[class members’] mental illness or conditions.”

20 We recognize that an Illinois district court approved a class with an identical 

definition. N.B. v. Hamos, 26 F. Supp. 3d 756, 762 (N.D. Ill. 2014). However, the defendant 

in that case did not object to the use of the term “IHCBS.”

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We hold that the term IHCBS, as defined by the district court, is too 

vague to identify class members, and that the class—as currently defined—

is unascertainable. 

IV.

We VACATE the class certification and REMAND the case to the 

district court for further proceedings consistent with this opinion to clarify 

which services are included in the term IHCBS. Because further proceedings 

may impact the Defendants’ remaining claims that the district court abused 

its discretion certifying the class under Rules 23(a)(1)–(4) and (b)(2) and 

failed to conduct a rigorous analysis, we do not address those claims now. 

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