# United States Court **of Appeals**  **f or 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

— App ellees **,**

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 Case: 21-30580 Document: 00516617806 Page: 1 Date Filed: 01/20/2023No. 21

- 30580

2 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 diagnos ed mental health or
behavioral health conditions, as required by Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) mandate. Plaintiffs on behalf of themselves and a putative class of similarly situated Medicaid

eligible children sued the Department and its Secretary for violating Plaintiffs’ rights to necessary treatment under EPSDT and to treatment in the least restrictive setting under the ADA and Rehabilitation Act. The district court certified the class, which Defendants appea l. 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 fail s to provide Plaintiffs and similarly
situated children across Lou isiana with the IHCBS needed to treat their conditions, as required by Medicaid’s EPSDT mandate. Under the EPSDT mandate, Medicaid

- administering agenc ies 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

- elig i ble children with all

. . . treatments and other measures described in § 1396d(a) of the Act, Case: 21-30580 Document: 00516617806 Page: 2 Date Filed: 01/20/2023No. 21

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3 Plaintiffs’ core allega tion 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
he alth 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

- eli gible 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 o f the Social Security Act (the “Medicaid Act”) 2 and violates their right to treatment in the least restrictive setting under Title II of the ADA 3 and the
Rehabilitation Act. 4 The district court certified a class under Rules 23(a) and (b)(2) consisting o f:

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

wh en 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. Case: 21-30580 Document: 00516617806 Page: 3 Date Filed: 01/20/2023No. 21

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4 home

- and community

- based services to correct or ameliorate their disorders. LDH appeals the c lass certification , arguing that the class is not ascertainable, the district court abused its discretion in certi fying 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
l egal 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)). Case: 21-30580 Document: 00516617806 Page: 4 Date Filed: 01/20/2023No. 21

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5 III.
For class certification to succeed under Rule 23, the class “must be adequately defined and clearly ascertainable.” 10 To be ascertai nable, 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 pla intiff ’ s state of mind) or terms that depend on resolution of the merits (e.g., persons who were discriminated against).” 13 “T here can be no class action if the proposed class is ‘amorphous’ or ‘imprecise.’” 14 “[T]h e possibility that some [claimants] may f ail 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 a n 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 J AMES W. M OORE E T A L ., M OORE ’ S F EDERAL P RACTICE § 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 S w

. , 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

. S ee 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 M AN UAL FOR C OMPLEX L ITIGATION § 21.222 at *1 ( 4th ed. 2004 ) )

.

14 John , 501 F.3d at 445 n.3 (quoting 5 J AMES W. M OORE E T A L ., M OORE ’ S F EDERAL P RACTICE § 23.21[1] (Matthew Bender 3d ed. 1997)). Case: 21-30580 Document: 00516617806 Page: 5 Date Filed: 01/20/2023No. 21

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6 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 service s are included in the term “IHCBS” and which are not. We ag ree. 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.” The se three terms are not def ined , 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 an d

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 i s a class member.

The district court found that the class definition was ascertainable in large part because IHCBS i s 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) (quotin g 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 C HARLES A LAN W RIGHT & A RTHUR R. M ILLER E T A L ., F EDERAL P RACTICE & P ROCEDURE § 1760 (3d ed. 1998) )

.

17 S ee La. Admin. Code tit. 50, Pt. XXXIII, § 2101 (2021) (“ The specialized behavioral health services rendered to children with emotional or beh avioral disorders are Case: 21-30580 Document: 00516617806 Page: 6 Date Filed: 01/20/2023No. 21

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7 Because the Louisiana L egislative 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 i ncluded 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 service s, 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 in dicates 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 L OUISIANA L EGISLATIVE A UDITOR , A CCESS TO C OMPREHENSIVE AND A PPROPRIATE S PECIALIZED B EHAVIORAL H EALTH S ERVICES IN L OUISIANA , L A

. D EP ’ T H EALTH 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.” Case: 21-30580 Document: 00516617806 Page: 7 Date Filed: 01/20/2023No. 21

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8 We hold that t he term IHCBS , as defined by the district court , is too
vague to identify class member s , and t hat t he class

— as currently defined

— i s un ascertainabl e

. IV.

We **VACATE** the class certification and **REMAND** the case to th e 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 t he 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. Case: 21-30580 Document: 00516617806 Page: 8 Date Filed: 01/20/2023