M.G. v. Scrase, 1:22-cv-00325 MIS/DLM

CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesM.G., a minor and through her mother, Christina Garcia, et al., Plaintiffs, v. DAVID SCRASE,[1] in his official capacity as Secretary for the Human Services Department of New Mexico, et al., Defendants.
Decision Date26 May 2023
Docket Number1:22-cv-00325 MIS/DLM


THIS MATTER is before the Court on Plaintiffs' Second Motion for Preliminary Injunction (“Motion”), ECF No 150. Defendants responded, and Plaintiffs replied. ECF Nos 176, 192. Both parties have also incorporated by reference parts of their prior briefing on Plaintiffs' First Motion for Preliminary Injunction, ECF No. 59. ECF Nos. 150 at 2 n.1 (incorporating by reference the declarations attached to ECF No. 59); 176 at 1 (incorporating by reference ECF No. 85). The Court issued an Order Directing Briefing on the current Motion, ECF No. 151, and the parties submitted a Joint Notice addressing the Court's Order, ECF No. 178, which included certain responsive documents. Plaintiffs have also submitted a Supplemental Response, ECF No. 195, and a Second Response, ECF No. 202, addressing changed circumstances. The Court held a hearing on Plaintiffs' First Motion for Preliminary Injunction, ECF No. 59, on November 4, 2022, and another hearing on the instant Motion on May 18, 2023. Having considered the parties' submissions, the evidence presented, the arguments made by counsel, and the relevant law, the Court will GRANT the Motion IN PART.


Plaintiffs are profoundly ill minor children who are classified as “medically fragile” under New Mexico's Medicaid program. See generally ECF No. 1. Plaintiffs' designation as “medically fragile” refers to the fact that each child has “a life threatening condition characterized by reasonably frequent periods of acute exacerbation, which require frequent medical supervision or physician consultation and which, in the absence of such supervision or consultation, would require hospitalization.” Medically Fragile Home and Community-Based Services Waiver,[2] N.M. Human Servs. Dep't, 8.314.3.12(B)(1) NMAC. Plaintiffs' severe disabilities include-among others-difficulty breathing, frequent seizures, and the inability to feed themselves or go to the bathroom unassisted. ECF No. 1 at 24, 26-27, 29.

Plaintiffs' claims arise out of Defendants' alleged failure to provide them with adequate hours of private duty nursing (“PDN”) services, despite Plaintiffs' each having already been approved for a certain number of hours by New Mexico's Medicaid program. ECF Nos. 1 at 2, 8; 48 at 2. The two surviving Plaintiffs remain at home with their families, who understandably refuse to have them institutionalized, as they do not wish to be separated from their children. See generally ECF Nos. 1, 150.

Plaintiff M.G. is a three-year-old girl who suffers from seizures and is dependent on a ventilator and a feeding tube. ECF No. 1 at 29. Her mother, Christina Garcia, works as a service coordinator for New Mexico's Developmental Disabilities Waiver program and has worked in that field for twenty-two years. ECF No. 59-2 at 1. She adopted M.G. in 2020, after fostering her in 2019. Id. Many of M.G.'s disabilities result from illegal drug use during pregnancy by her biological mother, who is not involved in the case. Id. Ms. Garcia's full-time employment in public service is at constant risk due to M.G.'s lack of adequate PDN hours and the corresponding need for Ms. Garcia to care for her during normal working hours. Id. at 3.

Plaintiff C.V. is a three-year-old boy who suffers from medication-resistant seizures and is dependent on a feeding tube. ECF No. 1 at 26-27. C.V. can have over 50 seizures in a single day. ECF No. 59-7 at 2. C.V.'s parents, both law enforcement personnel, have submitted repeated requests for PDN services to the managed care organization with whom Defendants have contracted to provide these services, to no avail. ECF No. 1 at 27. 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., stating that, for example, “C.V.'s mother had to give up a high-level position [as a federal agent] to take a lower paying position that provides more flexibility for leave, and has since used up all her earned leave.” Id. at 28.

Due to the deficits in C.V.'s PDN hours, C.V.'s father, in turn, had initially planned to retire early from his position as a state police officer so he could be home with C.V. while his wife worked. ECF No. 59-7 at 5. However, in February 2022, he was shot in the line of duty and now suffers [p]ain in his back, neck and shoulders,” which has made it “extreme[ly] difficult[] to pick up his child or attend to his needs, leaving the family in ongoing financial and caretaking need. Id.

Plaintiff A.C. was a ten-year-old girl who required “maximum assistance in basic living functions such as feeding, walking, toileting and bathing,” and required “regular breathing assessments.” ECF No. 1 at 24. She recently passed away after being hospitalized for a medical emergency. See ECF Nos. 200, 203 (Suggestion of Death). Plaintiffs alleged that she had experienced “an average shortfall of 23.8 hours [of PDN] per week.” ECF No. 1 at 25.

Plaintiffs assert that, in the absence of adequate PDN hours, they are at constant risk of life-threatening medical complications. ECF No. 1 at 26, 29, 31. For example, in the winter of 2022, C.V. lacked staff coverage for some of his approved nursing shifts. ECF No. 109 at 74. At that time, C.V.'s mother states that she was bottle feeding him and noticed “a runny nose, coughing, and some congestion,” id., which to most parents would indicate a common cold. However, it continued for months, until finally in the summer, a nurse was able to observe C.V.'s condition and recommended a swallow study, which revealed that C.V. is unable to safely take food by bottle at all due to the risk of aspiration (fluid entering the lungs). Id. at 73 -74.

Plaintiffs filed their Complaint on April 28, 2022, alleging that Defendants' failure to provide medically necessary PDN hours exposes Plaintiffs to “the risk of institutionalization or hospitalization,” in violation of the Americans with Disabilities Act, the Rehabilitation Act, and the Patient Protection and Affordable Care Act, as well as “unnecessary isolation” as their families are not able to take them outside the home without assistance. Id. at 5.

On October 7, 2022, Plaintiffs filed their first Motion for Preliminary Injunction, asking that the Court enter an injunction requiring Defendants to provide them with adequate PDN hours. ECF No. 59 at 1. The Court denied Plaintiffs' first Motion for Preliminary Injunction, finding that the original language proposed did “not take into account either market factors or the steps Defendants have already taken to fulfill their legal obligations.” ECF No. 136 at 6. The Court also found that the language of Plaintiffs' proposed injunction ran afoul of Rule 56 in that it was overly vague. Id.

After the close of the evidentiary presentations at the November 4, 2022 motion hearing, Plaintiffs provided the Court and Defendants with an alternative phrasing of the preliminary injunction. ECF Nos. 109 at 185-86; 135-2. The Court declined to consider this at that time on due process grounds but allowed Plaintiffs to file a renewed motion for preliminary injunction upon appropriate notice to Defendants. ECF No. 136 at 7.

Plaintiffs have since filed their renewed Motion, ECF No. 150, which asks that, among other things, the Court order Defendants to “take immediate and affirmative steps to arrange directly or through referral to appropriate agencies, organizations, or individuals, corrective treatment of in-home shift nursing services to Plaintiffs . . . at the level already approved by Defendants, as required by the Medicaid Act ....” ECF No. 150-3 at 2.

I. Medicaid Regulatory Scheme

Medicaid directs federal funding to states, including New Mexico, to provide medical assistance to individuals who would not otherwise be able to afford healthcare. See generally 42 U.S.C. § 1396. States participating in Medicaid must designate a single state agency to administer and supervise the program and ensure compliance with the law. 42 U.S.C. § 1396a(a)(5). The chosen state agency may not delegate to others 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).

In New Mexico the New Mexico Human Services Department (HSD) is the designated agency. See ECF Nos. 1 at 33; 18 at 3. HSD does not provide health services or monies directly to enrollees, but instead contracts with managed care organizations (“MCOs”) to provide services. See ECF No. 1 at 2, 9; see also ECF No. 21. The Medicaid Act requires that a state Medicaid plan furnish healthcare services “with reasonable promptness to all eligible individuals,” including “private duty nursing services” to those living in their home communities, as opposed to uniformly requiring 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 to “retain [the] capability for independence ....” 42 U.S.C. § 1396-1.

II. Preliminary Injunction Standard

A party seeking preliminary injunctive relief pursuant to Federal Rule of Civil Procedure (“Rule”) 65(a) must establish (1) a substantial likelihood of success on the merits; (2) irreparable injury to the movant if the injunction is denied; (3) the threatened injury to the movant outweighs...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT