PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ M.G., a minor and through her mother Christina Garcia; C.V., a minor, by and through his father, Jeremy Vaughan; DISABILITY RIGHTS NEW MEXICO, INC., Plaintiffs - Appellees, and A.C., a minor, by and through her mother Alicia Cortez, Plaintiff ,

v. Kari Armijo, * in her official capacity as Secretary for the Human Services Department of New Mexico; HUMAN SERVICES DEPARTMENT, Defendants - Appellants. No. 23-2093

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:22-C V-00325-MIS-DLM)

________________ _________________ Patricia G. Williams, Wiggins, Williams & Wiggins, PC, Albuquer que, New Mexico, for Defendants - Appellants.

* This court substitutes Ka ri Armijo as defendant. See Fed. R. App. P. 43(c)(2). FILED United States Court of Appeals Tenth Circuit 

### September 17, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 12 Nancy L. Simmons, Law Offi ces of Nancy L Simmons PC , Albuquerque, New Mexico, for Plaintiffs – Appellees.

________________ _________________ Before McHUGH , MURPHY , and CARSON , Circuit Judges.

________________ _________________ MURPHY , Circuit Judge.

________________ _________________ I. INTRODUCTION M.G. and C.V. are “medically fragile children” for purposes of New Mexico’s Medicaid program. See N.M. Code R. § 8.314.3.12(B). 1 They sued the New Mexico Human Services Department (“HSD”), asse rting HSD consistently fails to provide them with the number of private duty nu rsing (“PDN”) hours to which New Mexico has determined th ey are entitled. 2 M.G. and C.V. sought a preliminary injunction obligating HSD to take good faith steps to pr ovide them with their entitled level of PDN hours pending the resolution of their suit. The district court granted their requested injunction and HSD appeals.

1 A.C. was a named plaintiff in this su it. She is no longer a party because, as noted by the district court, she died during the pendency of the district court proceedings. Nevertheless, the district court considered ev idence relating to A.C. in a limited fashion in determining whether M.G. and C.V. were entitled to a preliminary injunction. Thus, this court briefly recounts A.C.’s backgr ound in Section II.A. and considers the evidence relied on by the district court in analyzing whether M.G. and C.V. demonstrated that, absent an injunction, they will e xperience irreparable injury. See infra Section IV.A.2.b.
2 HSD and its Secretary, Kari Armijo, w ho was sued exclusively in her official capacity, are referred to colle ctively as HSD. At the ti me of the district court proceedings, Dr. David Scrase was HSD’s S ecretary. Scrase provided evidence in the district court; that evid ence is discussed below. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 23 This court exercises jurisdiction pur suant to 28 U.S.C. § 1292(a)(1) and
affirms . We hold as follows: (1) M.G. and C. V. have standing to seek injunctive relief; (2) the district cour t did not err in concluding M. G. and C.V. established a likelihood of success on the merits of their Medicaid Act claims 3 and did not abuse its discretion in granting inj unctive relief; (3) the district court’s inj unction is not impermissibly vague; and (4) th e Supreme Court’s decision in Armstrong v.

3 In addition to the Medicaid Act, M. G. and C.V. based their request for injunctive relief on the S upreme Court’s decision in Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 600-01 (1999). Olmstead recognized the right of persons with disabilities to participate in the community to the greatest extent possible. This right is known as the “integration mandate.” Fisher v. Okla. Health Care Auth. , 335 F.3d 1175, 1180-81 (10t h Cir. 2003). M.G.’s and C.V.’s Olmstead claim arises, without meaningful distinction, under both the Americans with Di sabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. See Fisher , 335 F.3d at 1179 & n.3. As applied to the facts of this case, the integration mandate has tw o potential aspects: (1) preventing HSD from providing benefits in a way likely to lead to the institutionalization of M.G. and C.V. and (2) preventing HSD from mandating the pr ovision of PDN hours in the home or school, rather than in a community setting. In analyzing the appropriateness of injunctive relief, the district court concluded M.G. and C.V. were substantially likely to prevail on their claims under Olmstead ’s integration mandate. Furthermore, the district court considered th e integration mandate in deci ding whether M.G. and C.V. demonstrated irreparable inju ry. Notably, however, no pa rt of the district court’s preliminary injunction obligates HSD to do anything other than undertake good faith efforts to provide M.G. and C.V. with the PDN hours to which th ey are entitled. That is, the preliminary injunction does not direct HSD to provide PDN hours to M.G. and C.V. in a community setting. And, as r ecognized by the district court, M.G.’s and C.V.’s integration-based argument is lik ely to prevail under the Medicaid Act standing alone. Dist. Ct. Order at 33-34 (citing Lankford v. Sherman , 451 F.3d 496, 512 (8th Cir. 2006) and Skubel v. Fuoroli , 113 F.3d 330, 337 (2d Cir. 1997)). In its appellate briefing, HSD fails to respond to th is aspect of the dist rict court’s ruling. Given this, and because the an alysis set out below demonstr ates the district court’s injunction was properly entere d solely on the basis of M. G.’s and C.V.’s Medicaid Act claims, this court does not address at th is preliminary stage a ny aspect of M.G.’s and C.V.’s claims based on Olmstead ’s integration mandate. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 34 Exceptional Child Ctr., Inc. , 575 U.S. 320 (2015), does not foreclose entry of a preliminary injunction in this case.
II. BACKGROUND A. Factual Background 4 M.G. and C.V. are, and A.C. was, profoundly ill minor children classified as “medically fragile” under New Mexico ’s Medicaid program. The children’s designation as “medically fragi le” reflects that e ach has “a life threatening condition characterized by reasonably frequent periods of acute exacerbation which require frequent medical supervision, or physician consultation a nd which in the absence of such supervision or consultation, would require hospitalization.” N.M. Code R. § 8.314.3.12(B)(1). The child ren’s “life threatening cond itions” include, inter alia, difficulty breathing, frequent seizures, and the inability to feed themselves or go to the bathroom unassisted. M.G. and C.V.’s cl aims arise out of HS D’s alleged failure to provide them, in violation of the Medi caid Act, with PDN hours at the level to which they are entitled. Th at is, they assert that although the mandated review process employed by HSD has bu dgeted each child with a necessary level of PDN hours, HSD ultimately provides a mu ch smaller number of such hours.

4 This limited factual background sect ion sets out basic information about M.G., C.V., and A.C. and the dispute with HSD that led to the initiation of these proceedings. Additional rele vant facts are set out infra in Section IV., the portion of this opinion analyzing the arguments raised on appeal. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 45 The Medicaid Act directs federal fundi ng to states, including New Mexico, for the provision of medical assistance to low-income individuals who would not otherwise be able to afford healthcare. See generally 42 U.S.C. § 1396. States participating in the Medicaid program mu st designate a single state agency to administer and supervise the program and ensure compliance with the law. Id. § 1396a(a)(5). New Mexico has designated HSD for that purpose. The Medicaid Act requires that a state Medicaid pl an furnish, inter alia, PDN services to those living in their home communities, as opposed to uni formly requiring institutionalization for high-need patients. Id. §§ 1396a(a)(10)(A), 1396a(a )(43)(C), 1396d(a)(4)(B), 1396d(a)(8); see also O.B. v. Norwood , 838 F.3d 837, 839 (7th Cir. 2016) (summarizing the statutory basis for mandato ry provision of PDN hours to medically fragile children). One goal of the Medicaid pr ogram is to help disabled individuals to retain the capability for independence. Id. § 1396-1. M.G., a three-year-old girl, suffers from seizures and is dependent on a ventilator and feeding tube. Her mother works as a service coordinator for New Mexico’s Developmental Disa bilities Waiver program; she has worked in that field for twenty-two years. She adopted M.G. in 2020, after caring for her as a foster parent. M.G.’s mother’s full- time employment in public serv ice is at constant risk due to M.G.’s lack of adequate PDN hour s. The PDN shortfall creates a need for M.G.’s mother to care for M.G. during normal working hours. C.V., a three-year-old bo y, suffers from medication-re sistant seizures and is dependent on a feeding tube. C.V. can have ove r fifty seizures in a single day. C.V.’s Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 56 parents, both law enforcement personnel, have submitted, to no avail, repeated requests for PDN services to the manage d care organization with whom HSD has contracted to provide these se rvices. C.V.’s parents allege that, due to the lack of PDN hours, they have been unable to earn income with which to better support C.V. C.V.’s mother averred she had to give up a high-level position as a federal agent “to take a lower paying position that provides more flexibility for l eave, and has since used up all her earned leave.” Due to the defi cits in C.V.’s PDN ho urs, C.V.’s father initially planned to retire early from his posi tion as a state police officer so he could be home with C.V. while his wife worked. He was, however, shot in the line of duty, resulting in “[p]ain in his back, neck and shoulders,” which has made it “extreme[ly] difficult[]” to pick up C.V. or attend to his n eeds. As a result, C.V.’s family is left in ongoing financial and caretaking need. A.C. was a ten-year-old girl who requi red “maximum assistance in basic living functions such as feeding, walking, to ileting and bathing,” a nd required “regular breathing assessments.” She passed away after being hospitali zed for a medical emergency. A.C. allegedly experienced “an average shortfall of 23.8 hours [of PDN] per week.” In the absence of adequate PDN hours, M. G. and C.V. are at constant risk of life-threatening medical complications. For example, in the winter of 2022, C.V. lacked coverage for some approved PDN h ours. At that time, C.V.’s mother was bottle feeding him and noticed “a runny nose, coughing, and some congestion,” which to most parents would indicate a common cold. The condition, however, Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 67 continued for months. Finally in the summe r, a nurse was able to observe C.V.’s condition and recommended a swallow study, wh ich revealed C.V. is unable to safely take food by bottle due to the risk of as piration (i.e., fluid en tering the lungs). B. Procedural Background M.G., C.V., and A.C. filed a complaint in district court on April 28, 2022. As their ninth cause of action, they asserted HSD denied th em their statutory right to PDN hours, in violation of §§ 1396a, 1396d . They sought only equitable relief as to the alleged violations of the Medicaid Act. 5 Thereafter, M.G., C.V., and A.C. sought a preliminary injunction ordering HSD “to provide or ensure PDN services.” The district court denied the re quest, concluding the proposed preliminary injunction was impermissibly vague. In response, M.G., C. V, and A.C. filed a revised motion for a preliminary injunction. Afte r considering the parties’ arguments, together with voluminous documentary evidence and evidence adduced at two hearings, the district court granted the request.

5 In relevant part, the compla int sought the following relief: 270. Declare in favor of Plaintiffs . . . that HSD Defendants are failing to comply with the requirements of the Medicaid Act . . . ; 271. Issue preliminary and perman ent injunctive relief requiring [HSD] to furnish and fulfill authorized pr ivate-duty nursing hours, directly or through referral to appropriate agenci es, organizations, or individuals, to Plaintiffs . . . ; Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 78 In a thorough order, the district court concluded each of the four preliminary injunction requirements weighed heav ily in M.G.’s and C.V.’s favor. 6 In so doing, the district court found that HSD’s impo ssibility arguments—ar guments predicated on a universal shortage of nurses—failed wh ether viewed as a merits-based defense or an attack on M.G.’s and C.V.’s standing. The district court concluded the revised request for a preliminary injunction, as furt her modified by the district court, was not vague. Instead, especially given “the info rmation asymmetry involved in the current case, as well as [HSD’s] e xpertise in administration of the New Mexico Medicaid program,” the district court determined the proposed injunction described in reasonable detail the acts HSD was required to undertake. Fi nally, the district court

6 As noted above, see infra n.1, by the time the dist rict court entered the preliminary injunction, A.C. had passed aw ay. Thus, the injunction only applies to M.G. and C.V. In relevant part, the preliminary inju nction provides as follows: [HSD] shall, in good faith, take a dditional immediate and affirmative steps to arrange directly or throu gh referral to appropriate agencies, organizations, or individuals, corre ctive treatment of in-home shift nursing services to [M.G. and C.V. ] at the level already approved by [HSD], as required by the Medicaid Ac t, pending final judgment in this action or until further order of the C ourt. . . . Such steps may include, but are not limited to, negotiation with Managed Care Organization partners regarding possible solutions , making good faith attempts to attract qualified nurses from other states, increased monitoring of [M.G.’s and C.V.’s] weekly shortfal ls, or any other administrative or other action which tends to and doe s actually increase the average number of private duty nursing hours provided to [M.G. and C.V.] each month without seriously compro mising other programmatic goals. Dist. Ct. Order at 44. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 89 concluded the Supreme Court’s decision in Armstrong , 575 U.S. at 330-31, did not serve as an impediment to the entry of the proposed preliminary injunction. HSD appeals, challenging each of the district court’s relevant findings or conclusions.
III. STANDING HSD asserts M.G. and C.V. lack standing because they failed to demonstrate a favorable judicial decision will redress th eir injuries. “To sati sfy the irreducible constitutional minimum of Article III standing, a plaintiff must not only establish (1) an injury in fact (2) that is fairly traceable to the challenged conduc t, but [] must also seek (3) a remedy that is likel y to redress th at injury.” Uzuegbunam v. Preczewski , 141 S. Ct. 792, 797 (20 21) (quotation omitted). HSD’s justiciability argument is not subs tantial. Boiled down to its essence, HSD asserts a nationwide nursing shortage renders it impossible to provide all allotted PDN hours to which M.G. and C.V are entitled. Focusing exclusively on reimbursement rates paid to private duty nurses by home health agencies, HSD contends, given the nationwid e shortage, there is no record evidence demonstrating a mandated rate increase would result in the provision of a dditional PDN hours to M.G. and C.V. HSD’s argument fails for a pl ethora of reasons. First, HSD has not identified a single analogous case holding th at the issue it raises is one of justiciability, rather than some kind of me rits-based impossibility defense. This court recently rejected the notion a similar defense, one based on the significant probability it would be impossible to fashion a remedy that did not violate federal drug laws, Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 910 went to the issue of redressability. Bartch v. Barch , 111 F. 4th 1043, 1054, 1055 (10th Cir. 2024); id. at 1064 n.1 (Baldock, J., dissenti ng) (agreeing with the majority that this was a merits problem not implicat ing justiciability). None of the cases cited in HSD’s appellate briefing is to the contra ry. Instead, those cases involve past harms that were unlikely to reoccur and, thus, could not be remedied by forward-looking injunctive relief. See, e.g. , Am. Historical Ass’n v. Na t’l Archives & Records Admin. , 310 F. Supp. 2d 216, 228-29 (D.D.C. 2004) (“It is quite obviously impossible to undo the delays that Plaintiffs experienced in gaining access to the Reagan presidential records, and as explained [above ], any future injury Plain tiffs might suffer as a result of the Bush Order is specula tive at this point.”). This case involves a continuing injury caused by an ongoing allegedly illegal practice on the part of HSD. Ultimately, however, it is unnecessary to definitively resolve this legal question because HSD’s argument fails as a matt er of fact. As the district court made clear, see infra Section IV.C., HSD is flatly wron g to assert this suit is focused primarily, let alone exclusively, on reimbu rsement rates for PDNs . Instead, M.G. and C.V. sought a full panoply of remedies to redress HSD’s alleged failure to provide them with their full al lotment of PDN hours. See Dist. Ct. Order at 26 (“[M.G.’s and C.V.’s] ‘primary claim’ as [Medicaid] beneficiaries is clearly for the life-saving healthcare for which they ha ve been approved. Indeed, [their] proposed preliminary injunction includes absolutely no language regarding reimbursement rates.” (record citations omitted)). In granti ng M.G.’s and C.V.’s reques t for injunctive relief, the district court did not orde r HSD to make any rate-bas ed adjustment. Instead, the Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1011 district court ordered HSD to take other good faith effort s to “increas e the average number of [PDN] hours provided to [M.G. and C.V.] each month.” “[T]he ability to effectuate a partial remedy satisfies the redressability requirement.” Uzuegbunam , 141 S. Ct. at 801 (quotation omitted). Thus, HSD’s attempt to make this case about the actions of third parties beyond HSD’s c ontrol is clearly cont rary to the record. As a final nail in the coffin of HSD’s just iciability argument, the district court specifically found it was not, in fact, impossible to increa se the number of PDN hours provided monthly to M.G. and C.V. As discussed infra in Section IV.A.2.a., this finding is amply supported by evidence in the record. Even assuming HSD’s arguments implicate redressab ility, rather than the meri ts, which would mean that M.G. and C.V. must shoulder the burden of demonstrating a lack of impossibility, the record leaves no doubt th ey carried their burden. See Dist. Ct. Order at 10 (noting the district court found that “M .G.’s mother was recently su ccessful in finding her child additional nurses when [HSD was] unable (o r unwilling) to do so”). After all, as long as the record supports the conclusion additi onal efforts on the part of HSD to live up to its obligations under the Medicaid Act w ould result in the provision of at least one additional incremental PDN hour to M.G. and C.V., they have satisfied their obligation to demonstrate redressability. T hus, even setting aside serious questions as to whether HSD’s argument implicates just iciability, its standing argument fails as a matter of fact. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1112 IV. ANALYSIS A. Entitlement to Injunctive Relief
1. Standard and Standard of Review Plaintiffs seeking a preliminary injunc tion must establish (1 ) they are “likely to succeed on the merits,” (2) they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in [their] favor,” and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008). “A preliminary in junction is an extrao rdinary remedy never awarded as of right. In each case, courts mu st balance the competing claims of injury and must consider the effect on each part y of the granting or withholding of the requested relief.” Id. at 24 (quotation and citati on omitted). When a proposed injunction is mandatory rather than prohi bitory, as is the case here, “such an injunction should be even more closely scrutinized to assu re that the exigencies of the case support the granting of a reme dy that is certainly extraordinary.” O Centro Espirita Beneficiente Uni ao Do Vegetal v. Ashcroft , 389 F.3d 973, 979 (10th Cir. 2004) (en banc). 7

7 HSD seems to suggest, at pages eight to fifteen of its openi ng brief, that the district court did not empl oy the heightened standard applicable to disfavored preliminary injunctions (i.e., those that alter the status quo, are mandatory, or afford a movant all the relief the movant could ob tain after a full trial on the merits). See O Centro Espirita , 389 F.3d at 975 (describing th e three types of “disfavored preliminary injunctions”). This assertion is clearly belied by the district court order, which explicitly states: “The Court thus finds that [M.G.’s and C.V.’s] proposed preliminary injunction is clearly mandato ry. Therefore, [they] must meet a heightened burden to show their entitlemen t to relief.” Dist. Ct. Order at 7-8. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1213 “The grant of a preliminary injunction is within the sound discretion of the district court.” Kiowa Indian Tribe of Okla. v. Hoover , 150 F.3d 1163, 1171 (10th Cir. 1998); see also Meccano, Ltd. v. Wanamaker , 253 U.S. 136, 141 (1920) (“The correct general doctrine is that whether a preliminary injunction shall be awarded rests in sound discretion of the trial court. Upon appeal , an order granting or denying such an injunction will not be disturbed, unles s contrary to some ru le of equity, or the result of improvident exercise of judicial discretion.”). Th is standard applies even to the district court’s tenta tive nonlegal conclusions as to likelihood of success on the merits. Oklahoma v. U. S. Dep’t of Health & Human Servs. , 107 F.4th 1209, 1216 (10th Cir. 2024). The distri ct court’s underlying factual findings are reviewed for clear error. Attorney Gen. of Okla. v. Tyson Foods, Inc. , 565 F.3d 769, 776 (10th Cir. 2009).
2. Merits
a. Likelihood of Success M.G.’s and C.V.’s comp laint and associated request for a preliminary injunction assert that HSD is violating the early and pe riodic screening, diagnostic and treatment (“EPSDT”) provisions of the Medicaid Act in denying them PDN hours to which HSD has already determin ed they are entitled. The Medicaid Act directs federal funding to st ates to provide medical assi stance to individuals who would not otherwise be able to afford healthcare. See 42 U.S.C. § 1396. Participation in the program is voluntary but, if a state chooses to partic ipate, it must comply with the Act’s requirements, incl uding federal criteria governing what services must be Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1314 provided. See infra n.20. States participating in Medicaid must designate a single state agency to administ er and ensure compliance with the law. 42 U.S.C. § 1396a(a)(5). The chosen state agency may not delegate to othe rs its “authority to supervise the plan or to develop or issue policies, rules, and regulations on program matters.” 42 C.F.R. § 431.10(e). New Mexico participates in the Medi caid program and HSD is the designated agency. HSD does not provide health services or payments directly to beneficiaries but, instead, contracts with managed car e organizations (“MC Os”) to provide services. See Starko, Inc. v. N.M Human Servs. Dep’t , 333 P.3d 947, 949-51 (N.M. 2014) (explaining the operation of New Me xico’s Medicaid system). The Medicaid Act requires that a state plan furnish healthcare services “with reasonable promptness to all eligible individuals,” including PD N services to those living in their home communities, as opposed to uniformly requ iring institutionalization for high-need patients. 42 U.S.C. §§ 1396a(a )(8), 1396d(a)(8). Indeed, one of the goals of the Medicaid program is to help people with disabilities “retain [the] capability for independence.” Id. § 1396-1. A brief and helpful summary of the statutory basis for the mandate that participating states provide PDN services to medically fragile children is set out by the Seventh Circuit in O.B. : The Act defines “medical a ssistance” as including “early and periodic screening, diagnostic, and tr eatment services [EPSDT] . . . for individuals . . . under the age of 21, ” . . . 42 U.S.C. § 1396d(a)(4)(B), and requires the state to “mak[e] medi cal assistance available” to all eligible individuals. § 1396a(a )(10)(A). A related provision, Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1415 § 1396a(a)(43)(C), requires the state to “provide for . . . arranging for (directly or through refe rral to appropriate agen cies, organizations, or individuals) corrective treat ment the need for which is disclosed by such child health screening services.” (C orrective “treatment” is “T” in the acronym “EPSDT.”) Another provisi on, 42 U.S.C. § 1396a(a)(8), requires that medical assistance “sha ll be furnished with reasonable promptness to all elig ible individuals.” One of the EPSDT treatment services is “private duty nursing services,” 42 U.S.C. § 1396d(a)(8) . . . ; it means that the ch ild lives at home rather than in a hospital or other medical -care facility and is attended by a nurse or series of nurses for th e number of hours allowed by [the agency]. 838 F.3d at 839; see also Moore ex rel. Moore v. Reese , 637 F.3d 1220, 1232-38 (11th Cir. 2011) (pro viding an exhaustive summary of the statutory and regulation system governing the provision of PDN serv ices to medically fragile children). The district court concluded M.G. a nd C.V. were likely to prevail on their claim HSD is violating the provisions of 42 U.S.C. §§ 1396a(a)(10)(A), 1396a(a)(43), and 1396d(a)(4)(B) 8 by not providing to them all the PDN hours to which HSD has determined th ey are entitled. Aside from HSD’s argument’s relating

to Armstrong discussed below, see infra Section IV.C., the dist rict court made two key rulings HSD challenges on appeal. First, the district court f ound that M.G. and

8 In its appellate briefing, HSD argues at length that 42 U. S.C. § 1396a(a)(8), which requires that medical assistance like EPSDT serv ices be furnished with reasonable promptness, does not support th e issuance of the district court’s preliminary injunction. In issuing the prel iminary injunction, ho wever, the district court specifically d eclined to “address [M.G.’s a nd C.V.’s] likelihood of success under [§ 1396a(a)(8)] of the Medicaid Act.” Dist. Ct. Order at 23. Accordingly, the question whether § 1396a(a)(8) could support the district court’ s injunction is not before this court and we d ecline to address the issue. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1516 C.V. had proven they were entitled to the number of PDN hours set out in EPSDT budgets developed by New Mexico. Second , the district court found HSD had not demonstrated it was impossible to provide to M.G. and C.V. the full allotment of hours it had already determined they were entitled to receive, le t alone provide them with at least a few more hours than it was currently providing. HSD has not demonstrated the district court’s findings in these re gards are clearly erroneous. 9
The district court did not err in findi ng, as a preliminary matter, that the number of PDA hours set out in each child ’s EPSDT budget is the number of hours HSD has determined are medi cally necessary. Marg aret Agard, a former registered nurse case manager in New Mexico, test ified at length rega rding New Mexico’s process to develop a medically fragile ch ild’s EPSDT budget. She stated that the documents making up the Level-of-Care pack et, and New Mexico’s ultimate approval of a particular Level of Ca re, satisfy the crite ria for medical neces sity. The medically

9 Our reading of HSD’s appellate lik elihood-of-success arguments being directed to M.G.’s and C.V.’s factua l entitlement to more hours than HSD is currently providing is consistent with the district court’s interpretation of HSD’s arguments below. The district court exp licitly noted HSD did not “even begin to argue that [§§ 1396a(a)(10)(A ), 1396d(4)(B), and 1396a (a)(43)(C)] of the Medicaid Act are judicially unenforceable or that Congress implicitly precluded private enforcement of these sections , and these potential arguments are thus waived.” Dist. Ct. Order at 25. Instead, the district cour t interpreted HSD’s ar guments as focusing on whether M.G. and C.V. sufficiently a sserted their own entitlement to Medicaid benefits as a factual predicate. Notably HS D fails to challenge on appeal the district court’s waiver ruling. And, in any event, the district court nonetheless ruled that Medicaid beneficiaries entitled to EPSDT benefits do have a private right of action under the framework set out by this court in Planned Parenthood of Kansas v. Andersen , 882 F.3d 1205, 1224-29 (10th Cir. 2018). HSD has also not challenged that ruling on appeal. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1617 fragile child’s level of care is ultimate ly incorporated into an EPSDT budget. According to Agard, this process accounts for “doctors’ notes or medical notes in [the child’s] chart”; relevant medical is sues, including medicat ion administration, number of annual doctor visits, how the ch ild receives nutrition, and the child’s respiratory and neurologic st atus; and “if [the medically fragile child has] any complex medical procedures that are done on a daily basis.” Th is “Level-of-Care” assessment is then submitted to Qualis 10 for “final eligibility determination for the program,” including “a long-term care assessm ent abstract . . . that’s a one-page document that the physician signs . . . [,] a health systems review document, which is another document the physicia n signs[,] . . . medical reco rds[, and] an up-to-date history and physical from the physician that outlines the complexity of care.” “The [EPSDT] budget [is] sent to th e MCO for prior authorization.” 11

10 Qualis operates as a thir d-party assessor for HSD. Johnson v. N.M. Human Servs. Dep’t , No. A-1-CA-36993, 2021 WL 72184, at *2 (N.M. Ct. App. 2021). “The Third-Party Assessor . . . or the Department’s Medical As sistance Division . . . is responsible for approving the [service and support plan] and authorizing the annual budget.” Id. at *1.
11 As noted by M.G. and C.V., the district court relied on documents relating to the children’s attempts to get the MCOs to provide the number of allotted PDN hours in concluding they “produced voluminous cred ible evidence . . . th ey are consistently not receiving their required hours.” Dist. Ct . Order at 12. At no point did the MCOs deny that M.G. or C.V. were entitled to th e PDN hours set out in the EPSDT budgets. Instead, they simply responded that they were working to attract additional nurses. M.G. and C.V. argue convincingly that th e for-profit MCOs have every incentive to contest the duty to provide medically unnecessary PDN hour s. The approvals of the EPSDT budgets and failures to contest thei r obligations to provide PDN hours at those levels when the children attempted to administratively grieve shortfalls, supports the district c ourt’s findings of fact. See Starko , 333 P.3d at 952 (“The managed care system is a risk -based system, meaning an MCO bears the risk of loss Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1718 In response, HSD simply asserts Agar d admitted parents of medically fragile children have some ability to override medi cal necessity decisions as part of the EPSDT budgeting process. The district cour t, however, was not compelled to read Agard’s testimony as supporting that asserti on. Indeed, during her testimony, Agard clarified comments she made in a depositi on and, by doing so, rejected HSD’s assertion parents were maki ng medical necessity determin ations: “Q. Families, case managers, and the nursing agencies dete rmine the hours and n eeds for a child, correct? A. No. The hours ar e determined through the Level of Care, so that eligibility is determin ed when Qualis approves them at a certain level. Once we know which level, then we can discuss how to allocate those hours within that level.” Agard’s testimony is corroborated by the te stimony of Michelle German, a Location Director at Thrive Skilled Pe diatric Care (“Thrive”). She testified she relies on the EPSDT budgets of each of Thrive’s client s, including M.G. and C.V., because it is “always important to know how many hours a child qua lifies for and also their utilization.” German also tes tified M.G. and C.V. appeared on Thrive’s internal lists of patients that had not been able to obt ain all the PDN hours to which they were entitled. HSD also relies on the testimony of th en HSD Secretary, Dr. David Scrase. Scrase averred that M.G.’s and C.V.’s P DN hours, even though allotted in their

if the State's fee does not cover all the co sts for the healthcare that the Medicaid program requires MCOs to pr ovide to individuals.”). Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1819 EPSDT budgets, were not medica lly necessary because much of the care they needed could be performed by a home health aide . Scrase did not, however, account in any way for the EPSDT budgeting process or e xplain how the system could work on the ad hoc basis he used to determine medical necessity. Again, the di strict court was not compelled to credit Scrase’s testimony ove r the other record ev idence identified in the district court order. Th e district court did not err in finding, as a preliminary matter, that M.G. and C.V. proved they we re entitled to the number of PDN hours set out by the state approved EPSDT budget. 12 Nor did the district court clearly err in concluding HSD faile d to preliminarily establish it was impossible to undertake a goo d faith effort to provide to M.G. and C.V. PDN hours at the level se t out in their EPSDT budgets. See Dist. Ct. Order at 34

12 This court notes that the district court left open the door to further challenges by HSD as to the medical necess ity of PDN hours set out in M.G.’s and C.V.’s EPSDT budgets. The distri ct court ruled as follows: [Based on the evidence presente d,] there will be a rebuttable presumption of entitlement to the PDN hours specified in the EPSDT budget. Such presump tion may be rebutted by good cause shown, including, for example, an affida vit by the care manager that PDN services are not medically necessar y for a given child at the level represented by the EPSDT budget, an affidavit showing increased need in between regular periodic a ssessments, or other changed circumstances. In the even t that one side seeks to rebut this presumptive entitlement, the other side will have the right to submit evidence in their favor in reply, including, for exam ple, provider testimony. The Court reserves the right to update this de termination at any time as the case proceeds. Dist. Ct. Order at 32. M.G. and C.V. note that at the time of the filing of their response brief, HSD has made no such challenge. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 1920 (“[T]he . . . injunction does not require pe rfect compliance with the EPSDT mandate; it requires good faith efforts.”); Planned Parenthood S. Atl. v. Kerr , 95 F.4th 152, 167 (4th Cir. 2024) (recognizing the Medica id Act “is an example of a substantial compliance statute”); 42 C.F. R. § 440.230(b) (requiring th at a state’s provision of a required EPSDT benefit, such as PDN se rvices, “must be sufficient in amount, duration, and scope to reasonably achieve its purpose”). As noted by the district court, HSD’s own, self-professed effort s to ameliorate the shortage of nurses undercuts the notion no steps exist that will combat the shortage. HSD’s assertion on appeal, see HSD Opening Br. at 28, that it “has taken steps to address the shortage of PDN services in the in-hom e setting” likewise undercuts its impossibility argument. Furthermore, the district court noted its injunction only covers two medically fragile children, not a class of all New Mexico medically fragile children, rendering HSD’s arguments about national markets and macr oeconomic conditions mostly superfluous. Indeed, there is absolutely no evidence in the record it would be difficult, let alone impossible, to provide M.G. and C.V., as opposed to some grander class of Medicaid beneficiaries, with thei r allotted PDN hours. Most importantly, the district court did not err in conc luding two concrete steps identified in the pre liminary injunction could possibl y lead to the provision of additional PDN hours to M.G. and C.V. Firs t, the district cour t suggested HSD could at least partially satisf y its required good faith e ffort by collecting accurate information about whether MCOs are provi ding M.G. and C.V. the PDN hours set out in the EPSDT budgets. Dist. Ct. Order at 44 (noting a step HSD can take to Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2021 comply with the injunction in good faith is to “increase[] monitoring of [M.G.’s and C.V.’s] weekly shortfalls”); see also id. at 40 (“Despite the passage of months, however, the answers to various essential que stions in this case remain mysterious— whether traveling nurses could solve [M.G .’s and C.V.’s] shortfalls or not, the feasibility of attracting nurses from out of state, and why [M.G.’s and C.V.’s] parents are periodically able to solve the staffing problem themselves while [HSD is] not.”). Scrase testified that HSD was operating wit hout sufficient data a bout shortfalls to know whether the MCOs were providing all required hours. But see 42 C.F.R. § 438.206(b) (requiring states to ensure thr ough its contracts, that the MCOs monitor their networks to assure the networks are sufficient to provide all covered services and, if the network is not su fficient, to timely and adequa tely cover those services out of network). Scrase’s tes timony as to lack of inform ation is corroborated by German’s testimony. She testified Thrive produced internal reports about PDN shortages as to each of its clients, incl uding M.G. and C.V. German testified that neither HSD nor any of HSD’s MCOs had ev er asked for copies of those reports. This brings this court to the district court’s second concrete step that, if taken in good faith, could lead to the provision of additional PDN hour s to M.G. and C.V. It is uncontested that the contracts HSD entered into with th e MCOs serving M.G. and C.V. are risk-based contracts requiri ng those MCOs to provide all services necessary, specifically includi ng PDN hours, even if th ey must do so at a loss. See Starko , 333 P.3d at 952. As the district court noted, ther e is no indication in the record that HSD has engaged in any effort to work with MCOs to assure they are Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2122 living up to their contractual obligations. Instead, Scrase te stified that because of a lack of information, HSD was not sure th e MCOs were in brea ch. In response to Scrase’s testimony, the district court as ked him the following question: “So your position is you’ve done nothing because you still, as of today, do not know that these children are not getting some of the nursing ho urs they've been approved for? Is that your position?” In response, Scrase testif ied M.G. and C.V. were not getting their allotted hours and “we” could make sure they get their allocation. 13 Given all the

13 The relevant part of th e colloquy is as follows: [Scrase]: No. I believe that we ’re not up to the full allocation of private duty nurses. I thi nk we could get up to the full allocation of hours. I think that's possible, but I understand, particularly, you know, we have one of the kids who is getting all home health right now and another that’s getting all Private Du ty Nursing. So it’s not the position that they’re not getting it, it’s th at we—you know, this is—we got the Complaint. My attorneys have been working on this, trying to establish the facts in the case. And when t hose are clearly established, we're happy to move forward to resolve them. THE COURT: What do you need for them to be clearly established? I mean, the plainti ffs have laid it out; the MCOs, presumably, have this actual data for you. When you say you want it clearly established, what do you mean? THE WITNESS: I did not—so the data we submitted to you, Your Honor— THE COURT: Yeah. THE WITNESS:—with the aver age number of hours for the two children we're talking about today, that data, I first saw on—which I think is persuasive and it convinced me that we need to do more for the kids to get them th ese Services . . . . Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2223 record evidence, the district court did not clearly er r in determining HSD failed to establish impossibility. Each of the key facts undergirding the district court’s lik elihood-of-success determination challenged by HSD on appeal is supported by the record. Furthermore, this court’s extensive review of the record leaves us with no doubt the district court acted within its discretion in determining M.G. and C.V. are substantially likely to prevail on the merits of their Medicaid Act claim. b. Irreparable Injury The district court undertook a thorough a nd searching analysis of the question whether M.G. and C.V. demonstrated the exis tence of irreparable injury absent entry of a preliminary injunction. As relevant he re, the district cour t first found M.G. and C.V. “made an incredibly strong showing” of irreparable a nd immediate medical harm in absence of preliminary relief. By the very dint of their uncontested designation as “medically fragile,” M.G. and C.V. each has “a life threatening condition characterized by r easonably frequent periods of acute exacerbation which require frequent medical s upervision, or physician cons ultation and which in the absence of such supervision or consulta tion, would require hospitalization.” N.M. Code R. § 8.314.3.12(B)(1). Furthermore, according to the district court, M.G. and C.V. each “demonstrated a high likelihood of irreparable injury in the absence of appropriate medical care.” The record reveal s “M.G. has a tracheostomy to maintain

HSD App. at 512-13. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2324 a clear airway, gastrostomy port in her stomach to receive fluids and nutrition, and is dependent on the use of a ventilator at hom e.” C.V. relies on a gastronomy tube and averages “over 50 seizures a day.” C.V. relies on the pr esence of a “skilled person available to provide emergency services and rescue medicati ons.” As a tangible example of the medical complexity inhere nt in M.G.’s and C.V.’s conditions, the district court noted C.V.’s inability to bottle feed without aspirating went undetected by C.V.’s parents for an extended peri od. The condition was only eventually recognized by a PDN. Likewise, all the or iginal plaintiff ch ildren experienced intermittent hospitalizations during the penden cy of the case in district court. And, tragically, A.C., who allegedly suffered an average shortfall of 23.8 PDN hours per week, died while the case was pending in the di strict court. Finally , and critically, the district court found M.G. a nd C.V. “produced voluminous credible evid ence in the form of affidavits, testimony, and docum entation from [HSD’s] own MCO partners that they are consistently not receiving their required hours.” On appeal, HSD challenges only one na rrow aspect of the district court’s analysis of irreparable injury. It assert s M.G. was receiving all the PDN hours to which she claims she was enti tled at the time of entry of the preliminary injunction and, therefore, she failed to establish the existence of irreparable injury. In so arguing, HSD emphasizes that the “purpose of a preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparabl e injury that will surely result without their issuance.” See DTC Energy Grp., Inc. v. Hirschfeld , 912 F.3d 1263, 1270 (10th Ci r. 2018) (quotation omitted). And, according to HSD, the Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2425 declaration executed by M.G.’s mother on September 27, 2022, demonstrates that M.G. was then receiving eighty-four of eighty-f our allotted PDN hours. 14
HSD has not demonstrated the district court clearly erred in finding M.G. and C.V. are consistently not rece iving their allotted PDN hours. See Tyson Foods , 565 F.3d at 776 (holding that on re view of the grant or denial of a preliminary injunction, the district court’s underlyi ng factual findings are review ed for clear error). HSD does not challenge the district court’s findi ng that C.V. consistently received less than his allotted number of PDN hours. The record evidence relied on by the district court demonstrates that sin ce C.V.’s qualification as a medically fragile child, his parents “have struggled to get consistent [PDN] hours filled.” PDN staffing has always been inconsistent, with “some m onths where the hours are fully staffed but then several months with significantly less st affing.” At the time C.V.’s mother filed her declaration on September 21, 2022, C.V. was only receiving approximately twenty-six of his forty-si x allotted PDN hours. HSD’s arguments are no better as to M.G. It is certainly tr ue, as HSD notes, that at the time of the filing of M.G.’s mother’s September 27 de claration, M.G. was receiving all of her allotted PDN hours. Th e declaration also makes clear, however, the exceptional nature of that state of affairs. M.G. qua lified as a medically fragile

14 The bulk of HSD’s briefing on the issu e of irreparable harm sets out and then attacks a strawm an. It asserts a class wide in junction is not proper because no class has been certified. Th e district court’s injunction, however, applies only to M.G. and C.V. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2526 child in 2019. According to the declaration “[p]rior to September 2022, [M.G.] has typically not been able to access all of the hours of [PDN] that she requires. For instance, for the majority of 2021, M.G. wa s able to access only half or less of the [PDN] hours that she needs and qualifies fo r.” And, as recognized by the district court but ignored by HSD, M.G.’s mother filed a follow-up decl aration on February 21, 2023. The follow-up declara tion revealed that within a month of the filing of the previous declaration, the provision of PDN hours returned to the historically unfortunate norm of irregularit y. Furthermore, at an ev identiary hearing on M.G.’s and C.V.’s request for a preliminary in junction held on May 18, M.G.’s mother testified that although M.G. was then allotted 112 PD N hours per week, the most hours M.G. had received during the mont h was approximately sixty-six hours. In summary, the reco rd fully supports the district court’s finding that M.G. and C.V. have consistently not received the PDN hours to which th ey are entitled and that, absent issuance of a pr eliminary injunction, they w ill experience the same state of affairs during the pendency of the litigation. Furthermore, HSD has not challenged, and the record fully supports, th e district court’s fi nding that a continued shortage of allotted PDN hours will very likely subject M.G. a nd C.V. to medical harm, institutionalization, or death. Th e existence of this likely and imminent irreparable harm, coupled w ith M.G.’s and C.V.’s show ing of likelihood of success on the merits of their Medi caid Act claim, strongly supp orts the district court’s decision to grant M.G. and C. V. interim injunctive relief. See Delaware State Sportsmen’s Assoc. v. Delaware Dep’t of Safety & Homeland Sec. , 108 F.4th 194, Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2627 201 (3d Cir. 2024) (holding that a showing of irreparable harm is more likely to support the issuance of preliminary relief when the potential harm is the movant’s death and that death would prevent the c ourt granting an effective remedy upon the litigation’s conclusion).
c. Balance of Harms The district court concluded M.G. a nd C.V. demonstrated their threatened injuries—risk of immediate medical harm , institutionalization, and possible death— outweighed any potential injury to HSD in complying with a preliminary injunction. The district court began by noting HSD waived any argument by failing to adequately brief the issue. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in th e opening brief are waived . . . .”). The entirety of HS D’s district court briefing of the issue consisted of a singlesentence paragraph, which fo cused exclusively on the exis tence of irreparable harm. 15 In any event, even setti ng aside HSD’s waiver and balancing the equities sua sponte, the district court rule d the record demonstrated the threatened injury to M.G.

15 That sentence/paragraph, which is quot ed at pages seventeen and eighteen of the district court orde r, reads as follows: Because Plaintiffs have not sh own irreparable harm, the Court need not engage in a balancing test to determine whether the cost and disruption to HSD of trying to comp ly with an impermissibly vague injunction . . . that does not guarantee any actual services for Plaintiffs (since HSD cannot create nurses and paying nurses more to serve the named Plaintiffs takes away nursi ng services from someone else) is outweighed by the harm to Plaintiffs. Dist. Ct. Order at 17-18. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2728 and C.V. “greatly outweighs” any possible injury to HSD. This was true, the district court concluded, because (1) M.G. and C. V. demonstrated both the likelihood and magnitude of harms they would likely suff er if HSD continued to deny them their allotted PDN hours and because (2) they carried their burden of establishing the Medicaid Act entitled them to the allotted hours. HSD, on the other hand, failed to demonstrate that providing additional PDN hours to M.G. and C.V. was impossible or disruptive to New Mexico’s Medicaid system. Finally, th e district court concluded the potential harm to HSD, at best, was small because the burden of providing the allotted PDN hours was imposed by the Medicaid Act, not by an injunction. See Haskins v. Stanton , 794 F.2d 1273, 1277 (7th Cir. 1986) (“Because the defendants are required to comply with [the analogous fe deral] Act under the terms of the Act, we do not see how enforcing compliance impos es any burden on them. The Act itself imposes the burden; this injunction merely seeks to prevent the defendants from shirking their responsibilities unde r it.”). This was especially true, the district court determined, because New Mexico’s part icipation in the Medicaid program was entirely voluntary and the record revealed that New Mexico rece ives three federal dollars for every dollar it spends on Medicaid. In its opening brief on appeal to this court, HSD ignores the district court’s ruling entirely, both as to waiver and the ba lance of harms. Instead, it merely repeats verbatim, with the exception of replacing a few parenthe ses with commas, the singleAppellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2829 sentence argument it a dvanced in its district court briefing. 16 HSD’s failure to grapple with any aspect of the district court’s ruling on the balance of harms amounts to a waiver of the issue. See Fed. R. App. P. 28(a)(8) (requiring an appellant to sufficiently argue the issu es it seeks to appeal); SCO Grp., Inc. v. Novell, Inc. , 578 F.3d 1201, 1226 (10th Cir. 2009) (holding that an argument “insufficiently raised” in a party’s brief is “deemed waived”). The re sult is this court c oncludes the district court did not abuse its discretion in ruling that the balance of harms heavily favored the issuance of M.G.’s and C.V.’s reque sted injunction. The district court’s conclusion satisfies the “str ong showing” this court requi res as to the balance of

16 HSD adds the following two sentences to round out its three-sentence argument on appeal: The injunction puts HSD in the positi on of considering rationing care to New Mexicans, reducing eligibility hours by regulation systemwide or pulling PDN services from other patie nts who are not subject to the requirements of the injunction. HSD does not want to do any of these things but cannot allow itself to be in contempt of the injunction. HSD’s Opening Br. at 23. It is ironic HS D is concerned about rationing care. The district court conclude d M.G. and C.V. were likely to prevail on the merits of their claim that HSD was systemat ically “rationing care” to them by providing less than their allotted PDN hours. Mo re to the point, however, th ese two additional sentences do not save HSD from waiver. HSD does not c ite to the record fo r factual support for these assertions and, more importantly, does not take into account the district court’s likelihood-of-success-on-the-merits and tailo ring analyses. The district court, via these analyses, found HSD’s im possibility argument was f actually faulty and ruled the injunction could not be read to ob ligate HSD to undertake any rationing or shuffling of current nursing resources . This court affirms those rulings. See supra Section IV.A.2.a; infra . Section IV.B. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 2930 harms for the issuance of a mandatory injunction. See O Centro Espirita , 389 F.3d at 976, 980 & n.2.
d. Public Interest The district court concluded the request ed preliminary inj unction would not be adverse to the public interest . It began by recognizing th e magnitude of the potential harm absent entry of prelimin ary relief and the irreparabl e nature of that harm. In response, HSD asserted “judicial interfere nce with the admini stration of the New Mexico Medicaid program is counter to the public interest as the planning and commitment of healthcare resources is ‘p eculiarly within the province’ of HSD.” HSD further argued, because there existed a shortage of nurses, granting M.G.’s and C.V.’s requested preliminary injunction could limit services to other Medicaid beneficiaries. The district court rejected HSD’s public -interest argument as to rationing for the same reasons it found HSD’ s merits-based impo ssibility arguments wanting. 17 The district court recognized New Mexico’s “concerns regarding its autonomy and expertise in th e state healthcare sector” were meaningful. For that reason, the district court tailored the prel iminary injunction in such a way as to preserve as much discretion as possible for HSD in comp lying with the injunction’s

17 In particular, the district court em phasized HSD had “not presented a cost study showing that providing nurses for two children woul d bankrupt the state of New Mexico or even that it would be a s ubstantial burden on the budget of HSD, thus potentially threatening the care of other e qually needy patients.” On the contrary, HSD’s counsel “appeared to admit that hiring traveling nurses to staff state hospitals may free up EPSDT-qualified nurses for hom e care positions, suggesting that there may already be mechanisms in place to provide relief.” Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3031 terms. 18 So tailored, the district court rule d that the preliminary injunction was consistent with th e public interest. 19 Although introductory portions of HSD’ s opening brief on appeal appear to indicate HSD is challenging the district court’s public intere st determination, see HSD Opening Br. at 2, 7, no analysis of the issue appear s in the merits section of HSD’s brief. Indeed, the term “public interest” does not appear again in any substantive discussion in HSD’ s opening brief after the one sentence assertion in the “Summary of the Argument” that “[t]he injunction is contra ry to the public interest.” Id. at 7. Unsurprisingly, given this state of affairs, M.G. and C.V. do not address the issue in their response brief. Because HSD did not adequate ly raise the issue in its

18 The district court explained as follows: The Court is unwilling to craft relief which may mandate removal of nurses from other equally urgent duty stations, such as other New Mexico children requiring PDN hours, nursing homes or intensive care units. To do so would be to pit e qually situated New Mexican patients against each other on the basis of w ho filed first. The Court is also uneager to usurp [HSD’s] role[] in determining the best use of [its] limited resources. The Court does not presume to tell [HSD] how to perform the day-to-day administra tion of the state Medicaid program; the Court is merely in the positio n of being obligated to enforce compliance with the federal Medi caid Act to ensure provision of services to the n eediest beneficiaries of [H SD’s] programs. The Court has therefore tailored [M.G.’s a nd C.V.’s] proposed preliminary injunction to allow [HSD] maximum discretion. Dist. Ct. Order at 41-42.
19 HSD asserts on appeal that the di strict court’s maximum-discretionpreserving preliminary injuncti on is too vague for purposes of Fed. R. Civ. P. 65(d). As set out below, HSD’s va gueness argument lacks merit. See infra Section IV.B. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3132 opening brief, any challenge to the district court’s public interest decision is waived. SCO Grp. , 578 F.3d at 1226. Although HSD does br iefly address the issue in its reply brief, we do not generally consider arguments developed for the first time in a reply brief. Hill v. Kemp , 478 F.3d 1236, 1251 (10th Cir. 200 7) (“[T]o allow an appellant to raise new arguments [in a reply brief] would be manife stly unfair to the appellee who, under our rules, has no opportun ity for a written response.” (quotation omitted)). Even if this court were to disregar d HSD’s waiver, we would easily conclude the district court did not err in ruling M.G. ’s and C.V.’s preliminary injunction is not adverse to the public interest . Referencing M.G.’s and C.V.’s distri ct court arguments regarding the balance of harms—i.e., that HSD is not substantially burdened by the preliminary injunction because it only oblig ates HSD to do what is already required by the Medicaid Act—HSD’s reply brief asse rts it “cannot identify sufficient PDNs to provide all the PDN hours a pproved or what [it] will be forced to do in the absence of those nurse[s] in light of the injunction. This is the a pplicable analysis for what constitutes the public interest.” HSD’s Reply Br. at 10-11. This assertion, unfortunately, completely ignores the district court’s analys is. The district court order makes clear HSD is not required to shif t resources away from other Medicaid beneficiaries in an effort to provide extr a hours to M.G. and C.V. Furthermore, the district court specifically found HSD had not produced any evidence that providing already allotted PDN hours to M.G. and C. V. would impose either (1) a financial hardship on New Mexico or (2) an untowar d intrusion on HSD’s administration of its Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3233 Medicaid system. When coupled with the dist rict court’s findings and conclusions as to M.G.’s and C.V.’s substantial likelihood of success on the merits 20 and its findings as to the likelihood and magnit ude of irreparable injury to M.G. and C.V., it cannot be reasonably argued that the district court abused its discretion in concluding its preliminary injunction was not a dverse to the public interest.
e. Conclusion HSD has not identified any legal errors on the part of the district court and has failed to demonstrate any challenged dist rict court finding of fact is clearly erroneous. The district cour t did not abuse its discretio n in concluding the four preliminary injunction factors weigh heavily enough in M.G.’s and C.V.’s favor to

20 Although likelihood of success on the mer its and the public interest are not coterminous, the first certainly has a bearing on the second in a case such as this one: Medicaid offers the States a bargai n: Congress provides federal funds in exchange for the States ’ agreement to spend th em in acco rdance with congressionally imposed conditions. This means that the federal government will share a state’s cost of providing medical care to residents who [cannot] afford it, but only if the state complies with the Medicaid Act’s requirements, incl uding federal criteria governing matters such as who receives care and what services are provided at what cost. Planned Parent hood of Kansas , 882 F.3d at 1224 (quotations and citation omitted). Thus, having concluded M.G. and C.V. made a strong s howing they are likely to prevail on their claim the Medicaid Act co mpels HSD to provide them with all PDN hours it has, itself, determin ed they are entitled to receiv e, and having found it is not impossible to do so, the district court star ted on firm ground in analyzing the public interest. It fortified its d ecision by finding the fiscal impact on New Mexico flowing from the injunction was, in the grand sche me, minimal and by tailoring the injunction to alleviate concerns about interferen ce in HSD’s administrative and technical expertise. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3334 support the issuance of a mandatory injuncti on. Thus, HSD’s challenge to the district court’s entry of preliminar y injunctive relief fails. B. Vagueness Fed. R. Civ. P. 65(d) requires that “[ e]very order granting an injunction” must “state its terms specifica lly[] and [] describe in reasonable detail—and not by referring to the complaint or other document— the act or acts restrained or required.” Injunctions simply requiring defenda nts to obey the law are too vague. Vallario v. Vandehey , 554 F.3d 1259, 1268 (10th Cir. 2009). This is so because such injunctions do not adequately inform a de fendant of its obligations. Swift & Co. v. United States, 196 U.S. 375, 401 (1905); see also Hughey v. JMS Dev. Corp. , 78 F.3d 1523, 1531 (11th Cir. 1996). 21 To satisfy Rule 65(d), the langua ge of a preliminary injunction must be specific enough for the court to determine whether the defendant is complying. Shook v. Bd. of Cnty. Comm’rs , 543 F.3d 597, 605- 06 (10th Cir. 2008).

21 HSD relies heavily on Hughey in asserting the district court’s preliminary injunction is impermissibly vague because it merely mandates that HSD comply with the Medicaid Act. HSD’s attempt to analogize this case to the facts of Hughey simply does not hold water. The injunction in Hughey was limited to the following: “Defendant shall not discharg e stormwater into the waters of the United States from its development property in Gwinnett County , Georgia, known as Rivercliff Place if such discharge would be in violation of the Clean Water Act.” 78 F.3d at 1531 (emphasis omitted). In this case , as explained below, the di strict court operated in an environment in which HSD had superior in formation as to poten tial flexibility in resource deployment and recruitment, worked to preserve HSD’s ability to bring its administrative and technical expertise to bear, recogni zed HSD asserted it had already undertaken steps to remedy the PD N shortfalls, and set out specific steps HSD could take to comply in good faith with the injunction. The preliminary injunction here is nothing like th e stark injunction at issue in Hughey that ordered defendant not violate the Clean Water Act. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3435 Nevertheless, as HSD recognizes in its reply brief, the district court has broad power to deal with unique intricaci es of each case, “for breadt h and flexibility are inherent in equitable remedies.” See United States v. Paradise , 480 U.S. 149, 183-84 (1987). HSD asserts the district court’s pre liminary injunction does not adequately inform it of its obligations. Instead, acco rding to HSD, the preliminary injunction lacks specificity beca use it does “not suggest how HS D can produce or acquire more suitably skilled nurses, acceptable to the specific needs of M.G. and C.V.” HSD Opening Br. at 39. In like vein, HSD asse rts the injunction is “impermissibly vague because it essentially orde rs HSD to solve a complex problem of labor supply and demand, and medical economics, without pr oviding any concrete instructions for accomplishing the task.” Id. at 40 Considering all the facts and surr ounding circumstance s, HSD’s vagueness argument is not convincing. In contrast to HSD’s asser tion, the district court’s preliminary injunction sets out specific step s HSD can take in good faith to provide additional PDN hours to M.G. and C.V. Su ch steps include negotiation with HSD’s MCO partners, making good faith attempts to attract qualifie d nurses from other states, and increased monitoring of M. G.’s and C.V.’s weekly shortfalls. See supra n.6. As discussed above, supra Section IV.A.2.a., the dist rict court did not err in concluding these steps are a meaningful re joinder to HSD’s claim of impossibility. The preliminary injunction gives HSD fl exibility in undertaking those efforts by specifically noting HSD need not “seriously compromis[e] other programmatic Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3536 goals” in undertaking its good faith efforts to comply . Dist. Ct. Order at 40. 22 And, importantly, the district cour t made clear that those requi red good faith efforts did not mandate the shifting of nursing resources away from other Medicaid beneficiaries. Moreover, as HSD asserts in its opening brief on appeal , it “has taken steps to address the shortage of PDN services in the in-home setting.” HSD Opening Br. at 28; see also Dist. Ct. Order at 10 (“[HSD] also ad mit[s] [it] ha[s] taken various steps to attempt compliance, even in the face of the nursing shor tage.”). Given an identical state of affairs, the Sevent h Circuit rejected the notion that an even less specific injunction was impermissibly vague. O.B. , 838 F.3d at 840, 842; see also id. at 843- 44 (Easterbrook, C.J., concurring). 23 Finally, the district court recognized it was

22 This court has specifically concl uded accounting for such matters in an injunction’s mandate is reasonable in a sufficiently complex case. In Keyes v. Sch. Dist. No. 1 , 895 F.2d 659, 669 (10th Cir. 1990), th is court held that an injunctive prohibition against a school di strict continuing an illegally segregated school system, “though stated in general terms” was “not objectionable.” Inst ead, the injunction amounted to a commendable attempt to give the [dis trict] more freedom to act within the confines of the law. We reco gnize the difficulty in drafting an injunction that will allow the distri ct maximum latitude in formulating policies, while at the same time making the injunction sufficiently specific. The degree of specificity n ecessary may be determined in light of the difficult subject matter. Id.
23 The operative injunction in O.B. obligated the relevant Illinois agency to “take immediate and affirmative steps to ar range . . . corrective treatment of in-home shift nursing services to . . . Medicaid-el igible children under the age of 21 . . .who also have been approved for in-home shift nursing services, but who are not receiving those services at the leve l approved by [the agency], as required by the Medicaid Act.” 838 F.3d at 840 (alteration omitted). Although Illinois asse rted the injunction Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3637 acting in the context of what it termed “i nformation asymmetry.” Dist. Ct. Order at 40 (“Despite the passage of months . . . , th e answers to various essential questions in this case remain mysterious—whether traveling nurses could solve [M.G.’s and C.V.’s] shortfalls or not, the feasibility of attracting nurses from out of state, and why [M.G.’s and C.V.’s] parents are periodical ly able to solve the staffing problem themselves while [HSD is] not.”); id. (“Given the information asymmetry involved in the current case, as well as [HSD’s] expertise in ad ministration of the New Mexico Medicaid program, the Court finds a flexib le preliminary injunction to be both permissible and appropriate in this case.”). That is , HSD knew what steps it had taken in the past to recruit additional nurses into the syst em, which of those steps had been successful or unsuccessf ul, how the nursing workfor ce was currently deployed, and how deployments could pot entially be altered to provi de necessary PDN hours to M.G. and C.V. without depriv ing services to other Medi caid beneficiaries. “Courts have recognized . . . issuance of a nonspecifi c injunction . . . may be justified . . . when the information n eeded to make the order specific in form is known only to the

was too vague, O.B. concluded “the order granting the injunction gave reasons for it, stated its terms, and describe d in reasonable detail the ac ts required by the state, and thus complied with” Rule 65(d). Id . (quotations and alterati on omitted). Furthermore, O.B. held that the injunction’s mandate to “take prompt measures to obtain home nursing for the class members” was “a reasonably clear directive.” Id. Finally, O.B. rejected the assertion the injunction manda ted “affirmative steps to provide in-home nursing care, without id entifying those steps.” Id. at 842. Instead, it concluded the state agency “surely . . . knows what those ‘affirmative steps’ are—that is implicit in its claim to have taken many steps already.” Id. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3738 party to be enjoined.” 11A Charles Alan Wr ight & Arthur R. Miller, Federal Practice and Procedure § 2955 (3d ed. June 2024 Update). Under the facts of this case, the district cour t was not required to predetermine every act required to be perform ed by HSD to ensure M.G. and C.V. are not subjected to further irreparable ha rm during the pendency of this matter. Prairie Band of Potawatomi Indians v. Pierce , 253 F.3d 1234, 1243-44 (10th Cir. 2001). The district court’s preliminary injunction su fficiently identifies the actions HSD is required to undertake and guides the cour t in any potential review of HSD’s compliance or noncomplia nce with its terms. Id. at 1243. This is es pecially true given the injunction’s preliminary nature. Id. at 1244 (citing Johnson v. Radford , 449 F.2d 115, 117 (5th Cir. 1971) for the following proposition: “A temporary injunction is intended to be temporary, to meet the exigen cies of the situation, and necessarily at times lacks the degree of precision which may be re quired on final decree.”). C. Impact of Armstrong
In Armstrong , providers of “hab ilitation services,” see 42 U.S.C. § 1396n(c), sued state officials “claim ing that Idaho violates [ 42 U.S.C. § 1396a(a)(30)(A)] by reimbursing providers of habilitation services at rates lower than [§ 1396a(a)(30)(A)] permits.” 575 U.S. at 323-24. The district court ruled in favor of the providers and the Ninth Circuit affirmed. Id. at 324. In so doing, the Ninth Circuit “said that the providers had an implied right of acti on under the Supremacy Clause to seek injunctive relief against th e enforcement or implementa tion of state legislation.” Id. (quotation omitted). The Supreme Court reversed. Id. at 332. The Court first rejected Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3839 the notion the Supremacy Clause creates a cause of action. Id. at 324-27. It then moved on to consider whether, “quite apar t from any cause of action conferred by the Supremacy Clause, [the] suit [could] proceed against Idaho in equity.” Id. at 327. The Court answered the question in the negati ve based on the necessary confluence of two factors: (1) the availabi lity of an administrative re medy in the nature of the withholding of Medicaid funds from Idaho by the Secretary of Health and Human Services and (2) the “judicial ly unadministrable nature of [§ 1396a(a)(30)’s] text.” Id. at 327-29. 24
Four members of the Armstrong Court would have gone further and addressed an issue not raised by the providers: whet her the providers could proceed under the Medicare Act itself. Id. at 331 (“The last possible s ource of a cause of action for respondents is the Medicaid Act itself. They do not claim that, and rightly so.”). Those four members would have held the habilitati on-service providers could not proceed directly under § 1396a(a)(30)(A) because the act is Spending Clause legislation, the provision of benefits under such legisla tion does not generally create a private right of action, and “[n]othing in the Medicaid Act suggests that Congress

24 Section 1396a(a)(30) mandates that state Medicare plans set rates for payment as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that paymen ts are consistent with efficiency, economy, and quality of care and are suffici ent to enlist enough providers so that care and se rvices are available under the plan at least to the extent that such ca re and services are available to the general population in the geographic area . . . . Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 3940 meant to change that fo r the commitments made und er [§ 1396a(a)(30)(A)].” Id. at 331-32. Justice Breyer, the fi fth vote for the other portions of the majority opinion, refused to join the discu ssion of the impact of the Medicaid Act being Spending Clause legislation. Id. at 333 (Breyer, J., concurring in part & concurring in the judgment). Instead, according to Justice Br eyer, the answer to the question whether it is appropriate to grant injunc tive relief against state office rs who are violating federal law “does not follow from the application of a simple, fixed legal formula separating federal statutes that may unde rlie this kind of injunctive action from those that may not. The statute books are too many, the la ws too diverse, a nd their purposes too complex, for any single legal formula to of fer courts more than general guidance.” Id. (quotations and alteration om itted). “Rather,” Justice Brey er “believe[d ],” “several characteristics of the federal statute before [ the Court ], when taken together, make clear that Congress intended to foreclose responde nts from bringing this particular action for injunctive relief .” Id. (emphasis added). As it did before the district c ourt, HSD argues on appeal that Armstrong forecloses M.G.’s and C.V.’s request for injunctive reli ef. The district court rejected this argument because M.G. and C.V. were not proceeding pursuant to § 1396a(a)(30)(A) and were not asking it to undertake a review of HSD’s reimbursement rates. Instead, the distri ct court concluded M. G. and C.V. were seeking only the medical services they were entitled to receive under the EPSDT provisions of the Medicaid Act and “the briefing of both sides includes numerous other options to attempt in good faith to meet [HSD’s] obligations” under the Act. Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 4041 Dist. Ct. Order at 26. Ultimately, the distri ct court concluded that state of affairs “belie[d] [HSD’s] argument th at [M.G. and C.V.] have not identified any way HSD has failed to meet its allege d obligations with respect to furnishing PDN services other than failing to increase reimbursement rates.” Id. (quotation omitted). The district court did not err, cl early or otherwis e, in concluding Armstrong has no application to this case because M.G. and C.V. are not, directly or surreptitiously, seeking to engage the di strict court in ratemaking pursuant to § 1396a(a)(30)(A). They did not seek, and the district court did not grant, an increase in the rate HSD pays any person or entity. 25 To the extent HSD is arguing Armstrong stands for the propositi on that a suit by a Medicaid beneficiary that might tangentially cause it to ra ise rates to provide servic es mandated by the Act is foreclosed, its argument is inc onsistent with the holding in Armstrong as described above. The argument is also inconsiste nt with this court’s decision in Planned Parenthood of Kansas , 882 F.3d at 1226, which refused to give Armstrong such an expansive reading. Finally, it is unsupported by citation to even a single precedent. And, to be clear, numerous c ourts have refused to give Armstrong the breathtaking sweep HSD seeks to attribute to it. See, e.g. , N.Y. State Citizens’ Coal. for Children

25 Indeed, HSD has not explained how § 1396(a)(30)(A) operates in New Mexico’s managed-care system, as opposed to the fee-for-ser vice system at issue in Armstrong

. See generally St. Anthony Hosp. v. Whitehorn , 100 F.4th 767, 774 (7th Cir. 2024) (discussing the differences be tween fee-for-servic e and managed-care systems and noting fee-for-service systems are regulated by §1396a(a)(30)(A), while managed-care systems are regul ated by 42 U.S.C. § 1396u-2), vacated & ordered to be reheard en banc , No. 21-2325, 2024 WL 3561942, at *1 (7th Cir. July, 24, 2024). Appellate Case: 23-2093 Document: 149-1 Date Filed: 09/17/2024 Page: 4142 v. Poole , 922 F.3d 69, 84-85 (2d Cir. 2019); Waskul v. Washtenaw Cnty. Cmty. Mental Health , 979 F.3d 426, 446-48 (6th Cir. 2020). After all, if Armstrong intended to mandate such a rule, it would say so. In any event, Justi ce Breyer’s separate opinion specifically rejected the notion such a rule exists or should exist. On that front, as set out above, the district court applied the rubric set out in Planned Parenthood of Kansas and concluded the EPSDT prov isions of the Medicaid Act created a private right. See supra n.9. HSD has not appealed that ruling. This court rejects as legally unsou nd HSD’s suggestion that Armstrong precludes any suit based on the Medicaid Act’s EPSDT provisions even if there is the re motest possibility HSD will have to expend funds or raise rates to provide the mandated services.
V. CONCLUSION For those reasons set out above, th e preliminary injunction issued by the United States District Court for the District of New Mexico is hereby AFFIRMED

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