In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1243
D.U., a minor,
Plaintiff‐Appellant,
v.
KITTY RHOADES and
KELLY TOWNSEND,
Defendants‐Appellees.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:13‐cv‐01457 — Nancy Joseph, Magistrate Judge.
ARGUED MARCH 30, 2016 — DECIDED JUNE 3, 2016
Before WOOD, Chief Judge, and POSNER and ROVNER, Circuit
Judges.
ROVNER, Circuit Judge. D.U. is a minor who was receiving
the assistance of a Medicaid‐funded private duty nurse for
seventy hours each week after a catastrophic accident rendered
her severely disabled. After many years of care, the State of
Wisconsin determined that full‐time skilled nursing assistance
was no longer medically necessary for D.U.’s care, and the
2 No. 15‐1243
State denied further authorization of that level of care. D.U.
then sued Kitty Rhoades, Secretary for the Wisconsin Depart‐
ment of Health Services (“DHS”), and Kelly Townsend, a nurse
consultant in the Quality Assurance and Appropriateness
Review Section (“QAARS”) in the DHS Office of the Inspector
General, asserting that the reduction in hours of her private
duty nurse is a violation of the Medicaid Act. See 42 U.S.C.
§ 1396 et seq. D.U. moved for a preliminary injunction, asking
the court to compel the State to provide seventy hours of
private duty nursing care each week pending the outcome of
the lawsuit. The district court denied the motion for a prelimi‐
nary injunction. Although we conclude that the district court
erred in assessing D.U.’s likelihood of success on the merits of
her claim, we affirm because D.U. has failed to demonstrate
that she will suffer irreparable harm if the injunction is denied.
I.
In 2005, when she was three years old, D.U. was severely
injured in a car accident. She initially qualified for Wisconsin
Medicaid services on financial grounds, and was provided
extensive medical care through that program until August
2013. After a change in family circumstances in 2013, D.U. no
longer qualified on financial grounds for State‐provided
services. Wisconsin nevertheless continued to provide the
same services under the State’s “Katie Beckett Program,”
which funds Medicaid benefits for children who are otherwise
ineligible because of the assets or income of their parents. See
42 U.S.C. § 1396a(e)(3) (allowing states to provide Medicaid
benefits at home to severely disabled children who would
otherwise require institutional care). Other than the financial
No. 15‐1243 3
qualifications, benefits under the Katie Beckett Program are
subject to the same rules as ordinary Medicaid benefits.
Certain services must be reviewed and authorized by DHS
before Wisconsin Medicaid will pay for them. Medical services
are approved if an application and supporting documentation
demonstrate that the services are medically necessary. The care
that D.U. requested and received for many years was private
duty nursing care. A patient qualifies for private duty nursing
if she requires skilled nursing care for eight or more hours each
day. In D.U.’s case, private duty nursing was provided by the
State for seventy hours per week. “Skilled nursing” includes
the provision of medically complicated care “furnished
pursuant to a physicianʹs orders which require the skills of a
registered nurse or licensed practical nurse and which are
provided either directly by or under the supervision of the
registered nurse or licensed practical nurse.” Wis. Admin Code
§ DHS 101.03(163). The regulation lists examples of services
that would qualify as skilled nursing:
(a) Intravenous, intramuscular, or subcutaneous
injections and hypodermoclysis or intravenous
feeding;
(b) Levin tube and gastrostomy feedings;
(c) Nasopharyngeal and tracheotomy aspiration;
(d) Insertion and sterile irrigation and replacement
of catheters;
(e) Application of dressings involving prescription
medications and aseptic techniques;
4 No. 15‐1243
(f) Treatment of extensive decubitus ulcers or other
widespread skin disorder;
(g) Heat treatments which have been specifically
ordered by a physician as part of active treatment
and which require observation by nurses to ade‐
quately evaluate the patientʹs progress;
(h) Initial phases of a regimen involving administra‐
tion of medical gases; and
(i) Rehabilitation nursing procedures, including the
related teachings and adaptive aspects of nursing
that are part of active treatment, e.g., the institution
and supervision of bowel and bladder training
programs.
Wis. Admin Code § DHS 101.03(163).
In February 2013, the State authorized a continuation of
private duty nursing for D.U. through the end of July 2013.
However, the authorization noted that D.U., whose condition
had substantially improved over the years, was now “border‐
line” for meeting the criteria to qualify for private duty nursing
care. D.U. was instructed to submit additional information
with her next request. In August 2013, the State informed D.U.
and her father that D.U. no longer qualified for private duty
nursing services. In order to transition D.U. to an alternate
level of care, the State authorized three additional months of
private duty nursing. In November, as the clock ran out on
authorized services, D.U. filed a new request for seventy hours
per week of private duty nursing. At the State’s request, D.U.
submitted additional information, but the request was ulti‐
No. 15‐1243 5
mately denied on the ground that the documentation submit‐
ted by D.U. did not support a need for at least eight hours of
skilled nursing care per day. Although an administrative
appeal was available, D.U. did not appeal the denial of skilled
nursing services. Instead, she filed this suit and moved for a
preliminary injunction requiring the State to continue provid‐
ing skilled nursing services. The district court concluded that
the evidence that D.U. submitted in support of her request for
injunctive relief failed to demonstrate a likelihood of success
on the merits. The court therefore denied D.U.’s request for an
injunction, and D.U. filed this interlocutory appeal.
II.
On appeal, D.U. contends that the court misapplied the
medical necessity standard and also erred in assessing whether
D.U. met the standard for a preliminary injunction. “A plaintiff
seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public
interest.” Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7, 20 (2008). A preliminary injunction is an extraordi‐
nary remedy and is never awarded as of right. Id. at 24. We
review the district courtʹs findings of fact for clear error, its
legal conclusions de novo, and its balancing of the factors for a
preliminary injunction for abuse of discretion. Stuller, Inc. v.
Steak N Shake Enterprises, Inc., 695 F.3d 676, 678 (7th Cir. 2012);
United Air Lines, Inc. v. Air Line Pilots Assʹn, Intʹl, 563 F.3d 257,
269 (7th Cir. 2009); Hodgkins ex rel. Hodgkins v. Peterson, 355
F.3d 1048, 1054‐55 (7th Cir. 2004).
6 No. 15‐1243
The district court began and ended its analysis on the first
factor, finding that D.U. was unlikely to succeed on the merits
and therefore was not entitled to a preliminary injunction. The
district court framed the issue as “whether D.U. has estab‐
lished that she has a more than negligible chance of persuading
the trier of fact by a preponderance of the evidence that at least
70 hours of private duty nursing services is medically neces‐
sary.” Applying this standard, the court found that the records
submitted did not demonstrate that D.U.’s private duty nurse
was medically necessary for her care.
D.U. contends that, in reaching this conclusion, the district
court misapplied the standards under the Early and Periodic
Screening, Diagnostic and Treatment Services (“EPSDT”)
provision of the Medicaid Act. See 42 U.S.C. § 1396d(r). The
EPSDT provision mandates that the states provide certain
categories of care to all Medicaid‐eligible patients under the
age of twenty‐one. In addition to screening services, a catch‐all
provision of EPSDT requires participating states to provide to
these children “[s]uch other necessary health care, diagnostic
services, treatment, and other measures described in subsec‐
tion (a) of this section to correct or ameliorate defects and
physical and mental illnesses and conditions discovered by the
screening services, whether or not such services are covered
under the State plan.” Private duty nursing is one of the
categories of services mandated under EPSDT, but states are
free to limit the provision of services based on medical neces‐
sity. 42 C.F.R. § 4.230(d). Although EPSDT broadened the
categories of care that participating states are required to
provide to Medicaid‐eligible children, it did not change the
medical necessity limitation.
No. 15‐1243 7
Medical necessity is not expressly defined in the Medicaid
Act, but Wisconsin law provides that:
“Medically necessary” means a medical assistance
service under ch. DHS 107 that is:
(a) Required to prevent, identify or treat a recipientʹs
illness, injury or disability; and
(b) Meets [certain] standards[.]1
Wis. Admin. Code § DHS 101.03(96m). The medical necessity
determination is made in Wisconsin by QAARS consultants
such as defendant Kelly Townsend, who review information
submitted by the applicant’s health care providers.
1
The nine enumerated standards are: “1. Is consistent with the recipientʹs
symptoms or with prevention, diagnosis or treatment of the recipientʹs
illness, injury or disability; 2. Is provided consistent with standards of
acceptable quality of care applicable to the type of service, the type of
provider and the setting in which the service is provided; 3. Is appropriate
with regard to generally accepted standards of medical practice; 4. Is not
medically contraindicated with regard to the recipientʹs diagnoses, the
recipientʹs symptoms or other medically necessary services being provided
to the recipient; 5. Is of proven medical value or usefulness and, consistent
with § DHS 107.035, is not experimental in nature; 6. Is not duplicative with
respect to other services being provided to the recipient; 7. Is not solely for
the convenience of the recipient, the recipientʹs family or a provider; 8. With
respect to prior authorization of a service and to other prospective coverage
determinations made by the department, is cost‐effective compared to an
alternative medically necessary service which is reasonably accessible to the
recipient; and 9. Is the most appropriate supply or level of service that can
safely and effectively be provided to the recipient.” Wis. Admin. Code
§ DHS 101.03(96m).
8 No. 15‐1243
In support of the motion for preliminary relief and in an
attempt to demonstrate the medical necessity of eight hours
per day of skilled nursing care, D.U. submitted the statement
of Karen Roberts, who had served as D.U.’s case manager and
registered nurse for seven years; letters from two physicians
who treated D.U.; and some of D.U.’s medical records. One
doctor stated that the skilled nursing services provided to D.U.
have “assisted in her recovery/functionality and helped to
avoid inpatient hospital stays.” That physician also stated that
D.U. has “greatly benefitted from skilled nursing services,”
and therefore requested “a continuation of this very important
and beneficial service.” R. 53. The other doctor chronicled
D.U.’s progress over the years, noting that, initially D.U. was
“in her own world, wheel chair bound, aphasic, g‐tube fed and
having seizures,” but that now she is “socially interactive,
walking with assistance, verbalizing, self feeding, and only
occasionally having seizures.” The second doctor attributed
D.U.’s impressive progress to the skilled nursing care she
received over the years and concluded that for “continued
improvement, she will require at least 70 hours of skilled
nursing a week,” but the doctor did not identify the specific
skilled nursing tasks required for D.U.’s care. This is the only
document that quantifies in any manner the number of hours
of skilled nursing services required for D.U.’s care.
D.U.’s nurse, Karen Roberts, submitted the most extensive
evidence of the services required to care for D.U., listing in a
seventy‐eight paragraph affidavit the services that she was
providing to D.U. as of August 2014. Roberts listed D.U.’s
diagnoses as “post traumatic hydrocephalus, post traumatic
seizure disorder, general epilepsy with myoclonic seizures, rt.
No. 15‐1243 9
spastic hemiparesis, parietal‐occipital shunt, visual‐hearing
disorder, spastic cerebral palsy‐displegia, incontinence of
bowel/bladder, early puberty, development and cognitive
delay, vocalization and speech delayer non‐verbal, limited fine
motor and gross motor abilities, apraxia/dyspraxia, ataxia.”
Among the services that Roberts provided to D.U. are speech
therapy, monitoring of food and liquid intake, monitoring of
D.U.’s ability to chew and swallow (and providing suction as
needed to prevent choking), training and assistance in eating
and nutrition, auditory stimulation, vision therapy, neuro‐
muscular electrical stimulation, occupational and physical
therapy, placement of splints and braces as needed, monitoring
for and treatment of leg spasms, assessment of and interven‐
tion for mood and behavioral issues, assessment of motor and
sensory functions, assistance with wheelchair training and use,
assistance with weight‐bearing exercises and gait training,
transportation to and assistance in hippotherapy and aqua‐
therapy, assistance in all activities of daily living, daily
assessment of blood circulation in the extremities to prevent
complications from poor circulation, consulting with physi‐
cians regarding D.U.’s care, transportation in a specialized van
to all needed locations, and continual assessment for skin
breakdown, deformities and contractures.
The State takes the position that, although D.U.’s health
care providers describe skilled nursing care as beneficial to
D.U., only one of the care givers described seventy hours of
skilled nursing care as medically necessary at this stage of
D.U.’s treatment. And none of the care givers identify eight
hours of specific skilled nursing tasks required for D.U.’s care
each day. Kelly Townsend, the nurse who evaluates requests
10 No. 15‐1243
for Medicaid‐funded private duty nursing, also submitted an
affidavit, explaining the basis of the denial for D.U. According
to Townsend, the skilled nursing activities identified in D.U.’s
application for a private duty nurse consisted primarily of
assessing and monitoring D.U., services that could be provided
in a medical office or by a parent, a trained school aide or child
care worker. Townsend averred that private duty nursing will
not be deemed medically necessary for assessing and monitor‐
ing tasks that could be provided by other persons with proper
training. Private duty nursing will also not be approved for
other activities, such as showering, applying lotion, assessing
urine output, providing verbal cues for eating and checking for
skin breakdown, because these tasks can be performed by
personal care workers, home health aides or family members.
Nor is private duty nursing deemed necessary for routine
transportation or taking a child to medical appointments.
Townsend noted that most of the care provided by D.U.’s
private duty nurse is not listed in Wisconsin Medicaid guide‐
lines as the type of care that requires skilled nursing.
Townsend conceded that the services listed in the guidelines
are not exclusive, but she averred that the guidelines demon‐
strate the nature of the services and the severity of medical
needs that require skilled nursing services. She opined that
many of the services listed by D.U.’s nurse were the type of
care that can be provided by a paraprofessional such as a home
health aide or personal care worker, or by parents, informal
supports or therapists. Townsend also said that parapro‐
fessionals, teachers, school aides, family members and other
care givers could be taught how to respond to potential
medical needs and how to determine when additional medical
No. 15‐1243 11
services are required. Townsend noted that D.U. had been
trending for some time towards no longer requiring eight
hours per day of skilled nursing, that she had been “border‐
line” for meeting the criteria at the time of her last approval for
private duty nursing services, and that her records indicated
that she was medically stable and no longer in need of eight
hours per day of skilled nursing intervention. As for informa‐
tion submitted by D.U.’s father, Townsend noted that the
relatively infrequent focal seizures that D.U. experienced were
not inherently dangerous or life threatening, do not result in
loss of consciousness, and can be assessed by trained care
givers to determine if medical intervention is required.
Moreover, D.U. had not experienced more severe seizures that
required medication injections in the three months prior to the
application.2 Townsend noted that D.U. might qualify for a
lesser amount of skilled nursing services known as “intermit‐
tent skilled nursing,” but that she had not applied for it.
Based on this evidence, the district court found that D.U.
failed to establish a likelihood of success on the merits. But the
threshold for demonstrating a likelihood of success on the
merits is low. Michigan v. United States Army Corps of Engineers,
667 F.3d 765, 782 (7th Cir. 2011). In framing the probability of
success necessary for a grant of injunctive relief, we have said
repeatedly that the plaintiff’s chances of prevailing need only
2
D.U. noted in her opening brief that the State requested seizure and
injection logs, and then denied private duty nursing when D.U. failed to
produce the logs. D.U. postulated that she would have been approved for
skilled nursing had she provided the requested logs. Yet she also inexplica‐
bly failed to produce the logs (if they exist) to the district court.
12 No. 15‐1243
be better than negligible. See Girl Scouts of Manitou Council, Inc.
v. Girl Scouts of the United States of America, Inc., 549 F.3d 1079,
1096 (7th Cir. 2008) (to obtain preliminary relief, the plaintiff
must show it has a better than negligible chance of success on
the merits of at least one of its claims); Lineback v. Spurlino
Materials, LLC, 546 F.3d 491, 502‐03 (7th Cir. 2008) (same);
Curtis v. Thompson, 8 F.2d 1291, 1296 (7th Cir. 1988) (same). In
requiring D.U. to establish “that she has a more than negligible
chance of persuading the trier of fact by a preponderance of the
evidence that at least 70 hours of private duty nursing services
is medically necessary,” the district court may have overstated
D.U.’s burden at this stage of the proceedings:
This circuit employs a “sliding scale” approach in
deciding whether to grant or deny preliminary
relief; so that even though a plaintiff has less than a
50 percent chance of prevailing on the merits, he
may nonetheless be entitled to the injunction if he
can demonstrate that the balance of harms would
weigh heavily against him if the relief were not
granted[.]
Curtis, 8 F.2d at 1296. As we noted in Curtis, the sliding scale
approach is limited by the plaintiff first demonstrating “at
least” a negligible chance of success on the merits. Id. But once
that low threshold is met, the court must consider and balance
the remaining factors.
For a number of reasons, we conclude that D.U. met that
threshold here. First, D.U. demonstrated several diagnoses
associated with severe impairments. Second, she had qualified
for private duty nursing for a number of years and had only
No. 15‐1243 13
recently been rated as “borderline” for this type of care. The
State’s use of the word “borderline” suggests that D.U. is very
close to qualifying for this care if she provides adequate
documentation supporting the opinions of her doctors and
nurse. Third, one of her doctors and the nurse who treated her
for seven years were of the opinion that D.U. still requires this
level of care. Finally, a second doctor noted that skilled nursing
care would be beneficial to D.U., which would suggest that this
level of care would meet at least some of the nine criteria under
the Wisconsin statute. Wis. Admin. Code § DHS 101.03(96m).
In fact, the evidence submitted by both doctors and by D.U.’s
nurse suggest that skilled nursing care would meet those nine
criteria, but the district court undertook no analysis of those
factors after concluding that D.U. failed to meet the threshold
requirement. Although D.U. may not have yet presented
enough documentation in support of her claim to meet the
preponderance of the evidence standard necessary to ulti‐
mately prevail, she has certainly presented enough evidence to
show that she has a more than negligible chance of succeeding
on the merits.
Because D.U. has met that threshold inquiry, we turn to the
other factors for obtaining a preliminary injunction. D.U.
objects that the court failed to consider the other factors,
including whether she will suffer irreparable harm without the
care of a private duty nurse, whether the balance of equities
tips in her favor and whether an injunction is in the public
interest.3 Plaintiffs seeking preliminary relief must demon
3
On the last two factors, she makes only undeveloped and conclusory
(continued...)
14 No. 15‐1243
strate that irreparable injury is likely in the absence of an
injunction. Winter, 555 U.S. at 22. In Winter, the Court noted
that “[i]ssuing a preliminary injunction based only on a
possibility of irreparable harm is inconsistent with our charac‐
terization of injunctive relief as an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Id.
In seeking to demonstrate that she will suffer irreparable
harm, D.U. cites the depletion of a special needs trust that was
established after the settlement of claims related to the accident
that caused her injuries. She contends that the trust has been
paying for her skilled nursing care since the State stopped
providing it, and that the trust was intended to supplement
Medicaid services, not supplant it. At oral argument, her
attorney explained that the settlement of claims resulted in a
structured settlement that provided an initial fund plus a
monthly annuity that was designed to allow her to continue to
qualify for public assistance. By the time of oral argument,
counsel stated that the initial fund had been depleted to a
value of $269, and that the monthly annuity was being used to
pay for skilled nursing services. D.U. is also receiving services
from a Medicaid‐funded personal care worker, although
Townsend noted that D.U. was not using the full amount of
personal care worker services that had been authorized as of
January 2014. The only harm that D.U. claims at this time is the
depletion of funds.
3
(...continued)
claims. Because we ultimately conclude that she failed entirely to demon‐
strate irreparable harm, we need not consider these factors further.
No. 15‐1243 15
Because money damages could make D.U. whole again
should she prevail in her lawsuit, she does not meet the
standard for irreparable harm. Girl Scouts, 549 F.3d at 1095 (a
party seeking a preliminary injunction must demonstrate,
among other things, that traditional legal remedies, such as
money damages, would be inadequate). See also Sampson v.
Murray, 415 U.S. 61, 90 (1974) (noting that “[m]ere injuries,
however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay, are not enough”
to demonstrate irreparable harm and that the “possibility that
adequate compensatory or other corrective relief will be
available at a later date, in the ordinary course of litigation,
weighs heavily against a claim of irreparable harm.”). At oral
argument, D.U.’s attorney asserted that there was no mecha‐
nism in Wisconsin law for obtaining a refund of the money
expended on skilled nursing. But if D.U. prevails on the merits
of her suit, a federal court order will provide the only process
required. Because D.U. failed to demonstrate irreparable harm,
the district court did not err in denying the preliminary
injunction.
AFFIRMED.