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D.U. v. Seemeyer

United States District Court, E.D. Wisconsin

February 20, 2018

D.U., Plaintiff,



         D.U., a 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 part.


         D.U. 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. ¶ 3.)

         Seemeyer 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.)

         In 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.)

         On 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.)


         Summary 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.

         In 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)).


         1. Legal Background

         In 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.

         The 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 this [Title].”

         In 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 provision.

         However, 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.

         2. Counts Three and Four and State Law Claims

         The 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.)

         In 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.

         The 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.

         Finally, 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 ...

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