United States District Court, E.D. Wisconsin
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
JOSEPH UNITED STATES MAGISTRATE JUDGE
minor child, sues Linda Seemeyer, Secretary for the Wisconsin
Department of Health Services (“DHS”) and Kelly
Townsend, a nurse consultant for DHS, under 42 U.S.C. §
1983 for allegedly violating the Early and Periodic
Screening, Diagnostic, and Treatment (“EPSDT”)
provision of the Medicaid Act (“the Act”) by
denying D.U.'s Medicaid-funded private duty nursing care.
The defendants have moved for summary judgment on D.U.'s
claims. For the reasons stated below, the defendants'
motion for summary judgment is granted in part and denied in
was severely injured in an automobile accident when she was
three years old. (Declaration of Norm Underwood
(“Underwood Decl.”) ¶ 3, Docket # 112.) D.U.
suffers from a traumatic brain injury and posttraumatic
hydrocephalus. (Underwood Decl. ¶ 4, Defs.' Proposed
Findings of Fact (“DPFOF”) ¶ 1, Docket # 102
and Pl.'s Resp. ¶ 1, Docket # 107.) D.U.'s
injuries have profoundly affected her physical abilities,
health, behavior, and cognitive development. (Underwood Decl.
is the Secretary of the DHS. Townsend is a registered nurse
consultant who worked for the State of Wisconsin from July
2011 until June 2016. (DPFOF ¶¶ 2-3 and Pl.'s
Resp. ¶¶ 2-3.) While employed by the State of
Wisconsin, Townsend reviewed and approved or rejected prior
authorization requests for private duty nursing, skilled
nursing services, home health aide services, and personal
care worker services, and traumatic brain injuries.
(Id. ¶ 3.) At all times relevant, Karen
Roberts-Halter, a registered nurse, provided care to D.U.
(DPFOF ¶ 6 and Pl.'s Resp. ¶ 6.) D.U. received
care for approximately twelve hours per day on weekdays.
(Id.) Roberts-Halter assisted D.U. with a variety of
activities of daily living, including grooming, bathing,
feeding, transferring to different chairs or beds, and
toileting, as well as other normal activities performed
throughout the day. (Id. ¶ 21.) Roberts-Halter
also takes D.U. on daily outings to stimulate her.
(Id. ¶ 22.) These outings may take two to three
hours every day. (Id.) A second registered nurse
performed similar tasks to Roberts-Halter and a home health
aide assisted with a number of activities of daily living.
(Id. ¶ 7.)
August of 2013, DHS issued a prior authorization for private
duty nursing for D.U. that explained that D.U. did not meet
the criteria for ongoing private duty nursing services
because there was not at least eight hours per day of skilled
nursing intervention. (Id. ¶ 13.) Nonetheless,
DHS authorized seventy hours of private duty nursing care per
week until November of 2013 to transition D.U. to an
alternative level of care. (Id.) This followed an
earlier warning in February of 2013 that D.U. was borderline
for meeting the criteria. (Id.)
November 5, 2013, Townsend received a request from D.U. for
seventy hours of private duty nursing care per week and an
accompanying letter that appeared to request ninety hours of
private duty nursing care per week. (Id. ¶ 14.)
Townsend denied this request for private duty nursing
services submitted by D.U. on January 2, 2014. (Id.
¶ 15.) It was her decision to deny the prior
authorization request. (Id.) Townsend reviewed
D.U.'s medical records and denied the request because she
determined that D.U. did not need at least eight hours of
skilled nursing care. (Id. ¶¶ 16-17.)
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). “Material facts” are those under
the applicable substantive law that “might affect the
outcome of the suit.” See Anderson, 477 U.S.
at 248. The mere existence of some factual dispute does not
defeat a summary judgment motion. A dispute over a
“material fact” is “genuine” if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
evaluating a motion for summary judgment, the court must draw
all inferences in a light most favorable to the nonmovant.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). However, when the
nonmovant is the party with the ultimate burden of proof at
trial, that party retains its burden of producing evidence
which would support a reasonable jury verdict. Celotex
Corp., 477 U.S. at 324. Evidence relied upon must be of
a type that would be admissible at trial. See Gunville v.
Walker, 583 F.3d 979, 985 (7th Cir. 2009). To survive
summary judgment, a party cannot rely on his pleadings and
“must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
at 248. “In short, ‘summary judgment is
appropriate if, on the record as a whole, a rational trier of
fact could not find for the non-moving party.'”
Durkin v. Equifax Check Services, Inc., 406 F.3d
410, 414 (7th Cir. 2005) (citing Turner v. J.V.D.B. &
Assoc., Inc., 330 F.3d 991, 994 (7th Cir. 2003)).
1965, Congress enacted the Medicaid Act, 42 U.S.C. §
1396 et seq., as Title XIX of the Social Security Act.
Moore v. Reese, 637 F.3d 1220, 1232 (11th Cir.
2011). Medicaid is a jointly financed federal-state
cooperative program, designed to help states furnish medical
treatment to their needy citizens. Id.; see also
Bontrager v. Indiana Family and Social Services Admin.,
697 F.3d 604, 605-06 (7th Cir. 2012). States devise and fund
their own medical assistance programs, subject to the
requirements of the Medicaid Act, and the federal government
provides partial reimbursement. 42 U.S.C. §§
1396b(a), 1396d(b). A state's participation in the
Medicaid program is voluntary, but once a state opts to
participate, it must comply with federal statutory and
regulatory requirements. Bontrager, 697 F.3d at 606.
Wisconsin participates in the Medicaid program and is
therefore bound by its rules and regulations. Wis. Admin.
Code Ch. DHS 101.
Medicaid Act, as supplemented by regulations promulgated by
the Department of Health and Human Services
(“HHS”), “prescribes substantive
requirements governing the scope of each state's
program.” Moore, 637 F.3d at 1232 (citation
omitted). Section 1396a provides that a “State plan for
medical assistance” must meet various guidelines,
including the provision of certain categories of care and
services. See 42 U.S.C. § 1396a. Some of these
categories are discretionary, while others are mandatory for
participating states. Id. § 1396a(a)(10)
(listing mandatory categories). Section 1396a(a)(17) provides
that “[a] State plan for medical assistance must . . .
include reasonable standards . . . for determining
eligibility for and the extent of medical assistance under
the plan which . . . are consistent with the objectives of
1989, Congress amended the Medicaid Act to broaden the
categories of services that participating states must provide
to Medicaid-eligible children. Moore, 637 F.3d at
1233. The 1989 Amendment mandates that participating states
provide EPSDT services to all Medicaid-eligible persons under
the age of twenty-one. Id. The EPSDT program is
codified at 42 U.S.C. § 1396d(r). Section 1396d(r)(5), a
catch-all provision, mandates that participating states
provide to Medicaid-eligible children “[s]uch other
necessary health care, diagnostic services, treatment, and
other measures described in subsection (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.” Section 1396d(a)(1)-(29) enumerates
twenty-nine categories of care and services defined as
“medical assistance, ” which includes
“private duty nursing services.” See
§ 1396d(a)(8). In other words, under the EPSDT, it is
mandatory for states to provide all twenty-nine categories of
care, including “private duty nursing services, ”
to Medicaid-eligible children who qualify under the EPSDT
a state “may place appropriate limits on a service
based on such criteria as medical necessity.” 42 C.F.R.
§ 440.230(d). A state's provision of a required
EPSDT benefit, such as private duty nursing services,
“must be sufficient in amount, duration, and scope to
reasonably achieve its purpose.” 42 C.F.R. §
440.230(b). Although states do not have discretion over the
categories of medical services and treatment that must be
provided to children, the EPSDT did not change the
“medical necessity” limitation. Moore,
637 F.3d at 1234. Thus, even if a category of medical
services or treatments is mandatory under the Medicaid Act,
participating states must provide those medical services or
treatments for Medicaid recipients only if they are medically
necessary. Id. at 1233.
Counts Three and Four and State Law Claims
defendants move to dismiss Counts Three and Four of
D.U.'s amended complaint on the grounds that those counts
fail to state claims upon which relief may be granted.
(Defs.' Br. in Supp. at 8, Docket # 101.) The defendants
also move to dismiss D.U.'s state claims, including a
claim for common law nonfeasance, on the grounds that the
claims are barred because D.U. failed to file a notice of
claim with the attorney general's office pursuant to
Wis.Stat. § 893.82. (Id. at 10.)
Count Three, D.U. asserts that the defendants violated the
Supremacy Clause of the United States Constitution when prior
authorization for various services, including private duty
nursing, was denied. (Am. Compl. ¶ 45, Docket # 25.) The
defendants argue that the Supreme Court has held that the
Supremacy Clause does not confer a private right of action
for individual plaintiffs, citing Armstrong v.
Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1383
(2015) (noting that the Supremacy Clause is not the source of
any federal rights and “certainly does not create a
cause of action”). D.U. does not contest the
defendants' argument. The defendants are entitled to
summary judgment on Count Three of the amended complaint.
defendants also move to dismiss Count Four of the amended
complaint. In Count Four, D.U. alleges that she was deprived
of her right to receive EPSDT benefits in violation of 42
U.S.C. § 1983. (Am. Compl. ¶ 46.) Specifically,
that the “[d]efendant has subjected D.U. to the
deprivation of her rights under color of a statute,
ordinance, regulation, custom, or usage of the State of
Wisconsin.” (Id.) The defendants argue that
the basis for D.U.'s claim in Count Four is unclear, as
she fails to identify which defendant deprived her of her
rights. (Defs.' Br. in Supp. at 9.) The defendants
further argue that to the extent D.U. is asserting a claim
that the defendants have a custom or practice of violating
federal law under Monell v. Dep't of Soc. Servs. of
New York, 436 U.S. 658 (1978), the claim fails as
Monell claims may only be brought against
municipalities or other local government units. Again, D.U.
does not address the defendants' argument; thus, I will
grant the defendants' motion for summary judgment as to
Count Four of D.U.'s amended complaint.
the amended complaint generally alleges several “state
claims” in ¶¶ 51-57. (Docket # 25.) The
defendants argue that these claims must be dismissed because
D.U. failed to file a notice of claim with the attorney
general's office pursuant to Wis.Stat. § 893.82.
Under Wisconsin law, failure to file a notice of claim bars
claims for monetary damages, but not those for declaratory or
injunctive relief except “where the primary ...