Indiana Protection and Advocacy Services Comm'n v. Indiana Family and Social Services Administration

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 24-2633, 24-2741, & 24-2770

INDIANA PROTECTION AND ADVOCACY SERVICES COMMISSION,

et al.,

Plaintiffs-Appellees/

Cross-Appellants,

v.

INDIANA FAMILY AND SOCIAL SERVICES ADMINISTRATION, et al.,

Defendants-Appellants/

Cross-Appellees.

____________________

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:24-cv-00833-TWP-TAB — Tanya Walton Pratt, Judge.

____________________

ARGUED APRIL 8, 2025 — DECIDED AUGUST 11, 2025

____________________

Before HAMILTON, LEE, and MALDONADO, Circuit Judges.

HAMILTON, Circuit Judge. These appeals address Indiana’s

obligation to provide medically necessary services to

medically fragile children. Individual Plaintiffs E.R. and G.S.

are two children with severe, complex, and unpredictable

medical conditions. Since birth, both children have required

2 Nos. 24-2633, 24-2741, & 24-2770

around-the-clock care and supervision by a caregiver trained

to meet their complex medical needs. Many of their medical

needs require actions ordinarily performed by a trained

health care professional. For several years, however, the

families of E.R. and G.S. have been unable to secure nurses to

attend to their needs at home rather than in an institution. In

lieu of other options that would forestall institutional

placement, both children’s needs have been met by their

mothers—their principal caregivers and sole sources of

financial support. Both mothers have been trained by their

children’s medical teams to perform tasks that would

ordinarily be performed by a health care professional. In

addition to addressing E.R.’s and G.S.’s more complex

medical needs, both mothers also provide the 24/7

supervision and assistance with activities of daily living that

both children require.

The Indiana Family and Social Services Administration

(FSSA) has reimbursed both mothers for providing medically

necessary care to their sons through its Medicaid program.

Until recently, FSSA paid them for providing “attendant care

services,” which cover unskilled assistance in performing

basic life activities, such as eating, bathing, dressing, and toi-

leting, that E.R. and G.S. cannot perform by themselves. FSSA

authorized and paid Plaintiffs’ mothers to provide attendant

care services through one of its Medicaid waiver programs.

The programs are intended to enable individuals who would

otherwise require care in an institution to receive services at

homes. For years, Plaintiffs have used waiver services to re-

ceive their medically necessary care at home from their moth-

ers, who care for them full-time.

Nos. 24-2633, 24-2741, & 24-2770 3

A July 2024 policy change by FSSA would have made both

mothers ineligible to be paid providers of attendant care ser-

vices for their children. If allowed to take effect as applied to

these Plaintiffs, it would eliminate both mothers’ ability to

care for their children full-time. Plaintiffs’ mothers testified

that, if left in place, the July 2024 change would force them to

make the difficult decision to have their children institution-

alized. The Indiana Protection and Advocacy Services Com-

mission and individual Plaintiffs E.R. and G.S. brought this

suit to prevent the July 2024 policy change from going into

effect and to obtain an order requiring FSSA to take concrete

steps toward securing in-home nurses for both children.

Plaintiffs contend that the July 2024 policy change violates the

Americans with Disabilities Act’s requirement that States ad-

minister Medicaid programs “in the most integrated setting

appropriate to the needs of qualified individuals with disabil-

ities.” 28 C.F.R. § 35.130(d). They further allege that the State’s

failure to make in-home skilled nursing available violates the

Medicaid Act.

After briefing and oral argument, the district court entered

a preliminary injunction requiring FSSA to pay Plaintiffs’

mothers for providing attendant care services until in-home

nurses are procured for each child. We affirm and remand for

further proceedings. As the district court concluded, Plaintiffs

have a high likelihood of succeeding on the merits of their

ADA claims. Further, we find no abuse of discretion in the

district court’s balancing of the equities or its assessment that

the public interest is best served by preserving Plaintiffs’ ac-

cess to medically necessary care and enforcing federal anti-

discrimination law.

4 Nos. 24-2633, 24-2741, & 24-2770

I. Factual Background

A. The Individual Plaintiffs

We begin by summarizing E.R.’s and G.S.’s medical con-

ditions, caregiving arrangements, and financial circum-

stances.

1. E.R. and His Family

E.R. is a six-year-old boy who resides with his mother, Jes-

sica Carter, and his 19-year-old sister. He has a rare genetic

disorder called cri-du-chat syndrome that causes chronic lung

disease, severe respiratory problems, and epilepsy. His epi-

lepsy causes significant seizures that are not fully controlled

by medication. He is also substantially deaf and blind, non-

verbal, and non-ambulatory. Although E.R. is six years old,

his ailments give him the developmental profile of a nine-

month-old. He therefore requires close, 24/7 care and super-

vision and assistance with all his activities of daily living.

Ms. Carter is E.R.’s primary caregiver, in addition to being

solely responsible for supporting E.R. financially. She trained

with E.R.’s medical team for two months to learn how to pro-

vide the care and supervision he requires on a daily basis.

E.R.’s sister has also received some training from E.R.’s med-

ical team. Today, Ms. Carter and E.R.’s sister are the only in-

dividuals who can provide the constant care that E.R. requires

outside of a hospital or nursing facility.

2. G.S. and His Family

G.S. is a ten-year-old boy on palliative care who resides

with his mother, Heather Knight, and his three minor

Nos. 24-2633, 24-2741, & 24-2770 5

siblings. 1 Ms. Knight is G.S.’s primary caregiver, in addition

to being solely responsible for supporting G.S. financially.

G.S. has a severe form of dysautonomia, a disorder that pre-

vents his body from regulating vital processes, including

blood pressure, body temperature, digestion, heart rate,

sweating, and breathing. He also has hypoxic-ischemic en-

cephalopathy, a kind of brain damage that affects the central

nervous system, and progressive white matter brain loss,

which causes developmental and intellectual deficits. In addi-

tion, he has Lennox-Gastaut syndrome, a severe condition

characterized by repeated seizures. G.S. is nonverbal, quadri-

plegic, deaf, and severely immunocompromised. Like E.R., he

requires close, 24/7 care and supervision and assistance with

all his activities of daily living.

B. Services Available through Indiana’s Medicaid Program

Due to their severe medical needs and family incomes,

Plaintiffs E.R. and G.S. are both eligible for services through

Indiana’s Medicaid program, which is administered by de-

fendant Indiana Family and Social Services Administration.

Indiana’s Medicaid program is composed of the “State Plan,”

which covers traditional Medicaid services, and several

home- and community-based waiver programs. “Both the

state’s core Medicaid program and its waiver programs must

be approved by the federal Center for Medicare and Medicaid

Services (CMS), an entity lodged within the Department of

Health and Human Services.” Vaughn v. Walthall, 968 F.3d 814,

822 (7th Cir. 2020)

1 Palliative care is a medical approach intended to optimize qualify of

life and to mitigate the suffering of individuals with serious, complex, and

oftentimes terminal illnesses.

6 Nos. 24-2633, 24-2741, & 24-2770

Plaintiffs receive services through both the State Plan and

Indiana’s Health and Wellness Waiver (H&W Waiver). In this

suit, they contend that a July 2024 policy change, which

would prohibit their mothers from serving as paid providers

of attendant care services under the H&W Waiver, violates the

integration mandate of the Americans with Disabilities Act

(ADA). See 42 U.S.C. § 12132; 28 C.F.R. § 35.130(d). Plaintiffs

also argue that FSSA’s failure to ensure that they receive home

nursing assistance through the State Plan violates the Medi-

caid Act. We set forth relevant background on those services

below.

1. Traditional Medicaid Services

Due to Plaintiffs’ various medical conditions and func-

tional limitations, they both require what FSSA calls “skilled”

nursing services. Skilled nursing services are health care ser-

vices that are delegated or ordered by a licensed health pro-

fessional, such as administering medication, feeding a patient

through a gastronomy tube, or monitoring seizure activity.

FSSA has approved both Plaintiffs to receive in-home skilled

nursing services through the State Plan. G.S. has been ap-

proved to receive 80 hours per week of in-home skilled nurs-

ing services. E.R. has been approved to receive 40 hours per

week of in-home skilled nursing services.

Despite FSSA’s approval, it has been years since Plaintiffs’

families were able to find nurses to staff their approved

skilled nursing hours in their homes. In early 2020, G.S.’s

nurse moved out of state to accept a higher paying position.

In 2021, E.R.’s nurse did the same. Although Ms. Carter and

Ms. Knight have spoken with their sons’ case managers at

FSSA to explore the possibility of obtaining additional nurs-

ing assistance, FSSA has taken few steps to locate a nurse for

Nos. 24-2633, 24-2741, & 24-2770 7

either child. In FSSA’s view, its only role is to approve or deny

a request for nursing services once submitted. Ms. Carter has

placed E.R. on waiting lists at numerous nursing agencies but

thus far has had no success. Ms. Knight is unaware of any

skilled providers available to ensure that G.S. receives the care

and supervision that he requires without risking his health.

Nonetheless, both Plaintiffs have skilled nursing needs

that must be met, whether at home or in an institution. In the

absence of any other viable options for caring for E.R. and G.S.

at home, Ms. Carter and Ms. Knight have learned how to meet

their sons’ skilled needs. Both mothers provide Plaintiffs

emergency care for seizures, feed them through gastronomy

tubes attached to their abdomens, and monitor them for res-

piratory distress, among other things. E.R.’s sister also cares

for E.R. to give Ms. Carter a chance to sleep. Because Ms.

Carter and Ms. Knight are not medical professionals, they

cannot be paid for meeting their children’s skilled nursing

needs.

2. Home and Community-based Services

E.R. and G.S. are also eligible to receive services through

the H&W Waiver, one of Indiana’s home- and community-

based waiver programs. Waiver programs allow States to

diverge from the traditional Medicaid structure by providing

community-based services to people who would otherwise

need to be institutionalized. See 42 U.S.C. § 1396n(c)(1);

Steimel v. Wernert, 823 F.3d 902, 906–07 (7th Cir. 2016). Waiver

services are intended to supplement, not to replace, the

services provided through the State Plan such as in-home

skilled nursing. “Participating states have significant

discretion in how they craft their waiver programs.” Steimel,

823 F.3d at 907. They may include any service requested by

8 Nos. 24-2633, 24-2741, & 24-2770

the State and approved by the federal government “as cost

effective and necessary to avoid institutionalization.” 42

C.F.R. § 440.180(b)(9). Two services that Indiana has chosen to

provide are at issue in this case.

The first, “attendant care services,” is defined as “direct,

hands-on and unskilled care” that assists an individual with

activities of daily living, such as personal hygiene, like bath-

ing and toileting, and mobility. The second, “structured fam-

ily caregiving,” also covers assistance with activities of daily

living. It is designed to facilitate an arrangement in which the

waiver enrollee lives with a principal caregiver who provides

“unskilled” care and support on a daily basis. The services

covered by attendant care and structured family caregiving

substantially overlap. The primary difference between the

two services is the rates of reimbursement that caregivers

earn.

Attendant care is paid currently on an hourly basis at a

rate of $34.36 per hour. Structured family caregiving is paid

on a per diem basis. The rate is between $77.54 and $133.44

per day, depending on the assessed level of need. Individual

caregivers like Ms. Carter and Ms. Knight do not, however,

receive the full Medicaid rate. FSSA estimates that individual

caregivers receive, at most, 60% of the hourly rate for at-

tendant care and between 65% and 70% of the daily rate for

structured family caregiving. Actual compensation may be

less than FSSA’s estimates, and many caregivers are catego-

rized as independent contractors and therefore lack typical

employment benefits

Nos. 24-2633, 24-2741, & 24-2770 9

a. Attendant Care Services under the Aged and Disa-

bled Waiver

Before the policy changes that led to this lawsuit, E.R. and

G.S. were both approved to receive attendant care services

through the Aged and Disabled Waiver (A&D Waiver). The

A&D Waiver placed an important limit on who was eligible

to serve as a paid provider of both attendant care services and

structured family caregiving. It prohibited a waiver partici-

pant’s “legally responsible individual” or “LRI” from serving

as a paid provider of either service. Federal regulations define

the term “legally responsible individual” to include spouses

of recipients and parents of minor recipients. Personal Care

Services in a Home or Other Location, 62 Fed. Reg. 47896,

47899 (Sep. 11, 1997). Although Indiana could have chosen to

authorize LRIs to serve as paid providers of attendant care

under specified circumstances, it did not elect to do so. As a

result, LRIs like Ms. Carter and Ms. Knight seemed to be inel-

igible to serve as paid providers of attendant care under the

terms of the A&D Waiver.

Despite the prohibition in the A&D Waiver, however,

FSSA for years approved and reimbursed hundreds of LRIs

to provide attendant care. G.S. and E.R. were among the A&D

Waiver participants whom FSSA approved to receive LRI-

provided attendant care. In 2021, FSSA approved Ms. Carter

to be reimbursed for providing E.R. 112 hours of attendant

care each week. In 2022, FSSA approved Ms. Knight, G.S.’s

only attendant care provider, to be reimbursed for providing

84 hours of attendant care each week.

For the last several years, the income that Ms. Carter and

Ms. Knight receive for providing attendant care has been their

only income. Working as paid providers of attendant care

10 Nos. 24-2633, 24-2741, & 24-2770

enabled Ms. Carter and Ms. Knight to care for their sons in

their homes. Without it, both mothers would have needed to

seek full-time employment outside of their homes. Due to the

unavailability of in-home skilled nursing to provide the care

and supervision Plaintiffs require, returning to full-time em-

ployment outside of the home would have forced both moth-

ers to seek institutional placement for their sons.

b. Attendant Care Services under the Health and Well-

ness Waiver

FSSA’s practice of reimbursing LRIs for providing at-

tendant care lasted until July 2024. The practice came under

fresh review in late 2023 after FSSA discovered a shortfall in

its budget for fiscal years 2023, 2024, and 2025 of more than

$900 million. While much of that variance was the result of

State budget reversions, approximately half stemmed from an

unanticipated increase in projected expenditures for the A&D

Waiver. The forecasted increase in expenditures was the prod-

uct of three factors: (1) increased enrollment in the waiver pro-

gram; (2) a 2023 increase in reimbursement rates; and (3) in-

creased utilization of attendant care services, especially in the

pediatric population. FSSA has not determined what percent-

age of the forecasted expenditure increase is attributable to

increased utilization of attendant care provided by LRIs like

Ms. Carter and Ms. Knight.

FSSA considered different ways of addressing the fore-

casted variance without asking the State legislature for addi-

tional appropriations. It implemented several cost-contain-

ment and sustainability strategies, including some specific to

its home- and community-based waiver programs. For bene-

ficiaries under the age of 60, FSSA replaced the A&D Waiver

with the Health and Wellness Waiver. Through the H&W

Nos. 24-2633, 24-2741, & 24-2770 11

Waiver, FSSA began enforcing the prohibition on LRIs

providing attendant care. However, it also authorized LRIs to

serve as paid providers of structured family caregiving,

which is reimbursed at a much lower rate than attendant care

services. Like the A&D Waiver, the H&W Waiver prohibits

enrollees from receiving simultaneously both attendant care

services and structured family caregiving. On June 4, 2024, af-

ter a notice and comment period, CMS approved the newly

renamed H&W Waiver. The changes went into effect on July

1, 2024.

II. Procedural History

In May 2024, shortly before the new H&W Waiver went

into effect, the Indiana Protection and Advocacy Services

Commission (IPAS) and E.R. and G.S. through their mothers

filed this suit against FSSA. 2 The complaint alleges that the

H&W Waiver’s prohibition on LRI-provided attendant care

violates the ADA and the Rehabilitation Act by placing E.R.,

G.S., and other IPAS constituents at serious risk of institution-

alization. It also alleges that FSSA’s failure to make in-home

nursing services available with reasonable promptness vio-

lates the Medicaid Act. On May 21, Plaintiffs moved for a pre-

liminary injunction to require FSSA to continue reimbursing

Ms. Carter and Ms. Knight for providing attendant care to

their children at the higher rates that apply to those services.

2 The Indiana Protection and Advocacy Services Commission was cre-

ated pursuant to federal law to represent, advocate for, and protect the

rights and interests of individuals with disabilities. See Ind. Code § 12-28-

1-3; 42 U.S.C. § 15001; 42 U.S.C. § 10801; 29 U.S.C. § 794e. While the issues

presented in and the ultimate resolution of this case may affect many IPAS

constituents, the district court’s preliminary injunction and this appeal fo-

cus specifically on E.R. and G.S. We therefore do not discuss IPAS further.

12 Nos. 24-2633, 24-2741, & 24-2770

To give the district court time to consider Plaintiffs’ request

for a preliminary injunction, FSSA voluntarily extended the

deadline for E.R. and G.S. to transition to the H&W Waiver

until September 1, 2024.

After expedited discovery, briefing, and oral argument on

Plaintiffs’ motion for a preliminary injunction, the district

court granted some of the relief Plaintiffs requested. The court

found that Plaintiffs were likely to succeed on the merits of

their Medicaid Act, ADA, and Rehabilitation Act claims, but

that the balance of harms and public interest precluded the

court from ordering FSSA to pay Plaintiffs’ mothers to pro-

vide attendant care. The court reasoned that Plaintiffs’ re-

quested relief would cause FSSA irreparable harm by forcing

it to violate federal law, putting the State at risk of not receiv-

ing federal reimbursement. Nevertheless, the court ordered

FSSA “to take immediate and affirmative steps to (1) arrange

directly or through referral to appropriate agencies, organiza-

tions, or individuals, corrective treatment of in-home skilled

nursing services to E.R. for a minimum of forty hours and G.S.

for a minimum of eighty hours per week and, (2) reimburse

the mothers for providing [structured family caregiving] in

conjunction.”

Plaintiffs filed an “Emergency Motion to Modify Prelimi-

nary Injunction,” again seeking an order requiring FSSA to

reimburse Ms. Carter and Ms. Knight for providing attendant

care. They argued that the district court’s order was insuffi-

cient to prevent Plaintiffs from being deprived of medically

necessary care at home so that they would have to be institu-

tionalized. The court thought that Plaintiffs may have been

right that the likelihood of FSSA suffering irreparable harm

was low. Nonetheless, it again declined to order Plaintiffs’

Nos. 24-2633, 24-2741, & 24-2770 13

requested relief, reasoning that such an order would require

FSSA to violate federal law. The court did, however, modify

the preliminary injunction to require FSSA to file biweekly

status reports about its progress toward obtaining in-home

nursing assistance for E.R. and G.S.

Plaintiffs then filed a notice of appeal for the modified pre-

liminary injunction and also sought an injunction pending ap-

peal. For the first time, Plaintiffs argued that 42 C.F.R.

§ 431.250(b)(2) made federal financial participation available

for any payments made to Ms. Carter and Ms. Knight pursu-

ant to a future court order. The district court agreed and, on

September 27, entered a new order requiring FSSA to pay Ms.

Carter and Ms. Knight for providing attendant care services

“in the amount approved by the agency immediately before

the policy changes challenged in this litigation took effect on

September 1.” On October 1, the court entered an amended

preliminary injunction specifying that FSSA is to pay Ms.

Carter and Ms. Knight for providing attendant care “until in-

home skilled nursing services are secured for the Individual

Plaintiffs.” Defendants filed a notice of appeal on September

30 and an amended notice of appeal after the district court

modified its September 27 order. Plaintiffs’ appeal and De-

fendants’ cross-appeal were consolidated before this panel.

We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1). 3

3 The parties dispute which of the district court’s orders are properly

before us. We agree with FSSA that we may review all the district court’s

orders, including those filed on September 27 and October 1 after Plaintiffs

filed their notice of appeal. We construe the October 1 preliminary injunc-

tion as a new injunction, which the district court properly entered after

Plaintiffs filed their notice of appeal, and which FSSA timely appealed. A

district court may resolve a new motion for a preliminary injunction after

a previous injunction has been appealed. Adams v. City of Chicago, 135 F.3d

14 Nos. 24-2633, 24-2741, & 24-2770

Plaintiffs defend the district court’s conclusion that they

are likely to succeed on the merits of their Medicaid Act,

ADA, and Rehabilitation Act claims. 4 They also defend the

October 1 injunction as a proper exercise of the court’s equi-

table authority, although they believe it needs to be modified

further to prevent either Plaintiff from experiencing irrepara-

ble harm. FSSA argues that Plaintiffs do not have a private

right of action to pursue any of their Medicaid Act claims. It

further argues that all of Plaintiffs’ claims are disguised chal-

lenges to the State’s Medicaid reimbursement rates and there-

fore barred by Armstrong v. Exceptional Child Center, 575 U.S.

320, 329 (2015). Finally, FSSA argues that Plaintiffs are un-

likely to succeed on the merits of their claims and that the bal-

ance of equities and public interest weigh against the injunc-

tion.

1150, 1153–54 (7th Cir. 1998). That is what the district court did here; it

relied on a new legal authority to grant a new form of relief that it had not

previously ordered. Although a new motion for a preliminary injunction

may be barred for other reasons such as collateral estoppel, see id. at 1153,

FSSA has not made any such argument. As a practical matter, the October

1 injunction superseded the portion of the September 9 order requiring

FSSA to pay Plaintiffs’ mothers for providing structured family caregiving

services. But it did not substantially change the issues on appeal because

the district court’s refusal to order substantially similar relief was the sub-

ject of Plaintiffs’ appeal. We therefore proceed to the merits of the appeal

and cross-appeal.

4 Because the relevant provisions of the Rehabilitation Act and its reg-

ulations are materially identical to their ADA counterparts, courts con-

strue and apply them in a consistent manner. Steimel, 823 F.3d at 909. Go-

ing forward, we will refer only to the ADA, but our analysis applies with

equal force to Plaintiffs’ Rehabilitation Act claims.

Nos. 24-2633, 24-2741, & 24-2770 15

We affirm the district court’s October 1 injunction and

remand for further proceedings consistent with this opinion.

We first explain that even if the Supreme Court’s recent

decision in Medina v. Planned Parenthood South Atlantic, 606

U.S. —, 145 S. Ct. 2219 (2025), undermines Plaintiffs’ Medicaid

Act claims, they may proceed under the ADA and the

Rehabilitation Act. Then, we explain why the district court

did not abuse its discretion in entering the October 1

injunction ordering FSSA to pay Ms. Carter and Ms. Knight

for providing attendant care until FSSA secures in-home

nurses for E.R. and G.S.

III. Private Right of Action for Medicaid Act Violations

Plaintiffs seek relief under 42 U.S.C. § 1983 for alleged

violations of three provisions of the Medicaid Act, 42 U.S.C.

§ 1396a(a)(8), (a)(10)(A), and (a)(43)(C). Together, these three

provisions require Indiana to provide eligible Medicaid

beneficiaries specified kinds of “medical assistance,”

including skilled in-home nursing care, with “reasonable

promptness.” 42 U.S.C. § 1396a(a)(8); see O.B. v. Norwood, 838

F.3d 837, 839 (7th Cir. 2016). FSSA challenged the use of

section 1983 to enforce only section 1396a(a)(8), even though

sections 1396a(a)(10)(A) and (a)(43)(C) impose overlapping

obligations on the State.

When this appeal was originally briefed, all of Plaintiffs’

Medicaid Act claims were legally viable under Seventh Cir-

cuit precedent. We have long held or assumed that these Med-

icaid Act provisions are privately enforceable through a sec-

tion 1983 action. See Bontrager v. Indiana Family & Soc. Servs.

Admin., 697 F.3d 604, 607 (7th Cir. 2012) (holding that section

1396a(a)(10)(A) is privately enforceable through section 1983);

16 Nos. 24-2633, 24-2741, & 24-2770

O.B., 838 F.3d 837 (assuming that sections 1396a(a)(8),

(a)(10)(A), and (a)(43)(C) are privately enforceable).

The Supreme Court’s recent decision in Medina v. Planned

Parenthood may well have undermined the availability of sec-

tion 1983 to enforce these portions of the Medicaid Act. In Me-

dina, the Court wrote that Gonzaga University v. Doe, 536 U.S.

273 (2002), sets out the proper method for determining

whether a plaintiff may bring a section 1983 suit to enforce a

provision of spending clause legislation. 606 U.S. at —, 145 S.

Ct. at 2232–34. To enforce such a spending clause provision

through a private plaintiff’s section 1983 action, the statute

must “unambiguously confer individual federal rights” on the

party seeking to sue. Id. at 2233, quoting Health & Hospital

Corp. of Marion County v. Talevski, 599 U.S. 166, 180 (2023). Ap-

plying that standard, Medina held that the Medicaid Act’s

any-qualified-provider provision, 42 U.S.C. § 1396a(a)(23)(A),

is not privately enforceable under section 1983. Id. at 2239. The

Court relied primarily on the lack of “clear and unambiguous

‘rights-creating language’” in section 1396a(a)(23)(A), id. at

2235, quoting Talevski, 599 U.S. at 186, but it also invoked some

features of the Medicaid Act common to all the provisions of

section 1396a, including those relied upon by Plaintiffs. Id. at

2235–36. The Court also expressly repudiated the reasoning

of Wright v. City of Roanoke Redevelopment & Housing Auth., 479

U.S. 418 (1987), and Wilder v. Virginia Hospital Ass’n, 496 U.S.

498 (1990). See Medina, 606 U.S. at —, 145 S. Ct. at 2233–34.

Although the Gonzaga test as applied in Medina and Talev-

ski is a “demanding bar,” id. at 2233, quoting Talevski, 599 U.S.

at 180, some provisions of section 1396a(a) may yet satisfy it.

This is not the right case, though, to decide whether sections

1396a(a)(8), (a)(10)(A), or (a)(43)(C) clear that hurdle. The

Nos. 24-2633, 24-2741, & 24-2770 17

ADA indisputably gives Plaintiffs a cause of action to chal-

lenge the H&W Waiver’s terms as a violation of the ADA’s

integration mandate. See 42 U.S.C. § 12133 (incorporating by

reference 29 U.S.C. § 794a; authorizing suit against public en-

tities by “any person alleging discrimination on the basis of

disability”); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590

n.4 (1999). The integration mandate is sufficiently broad to

justify the district court’s October 1 injunction ordering FSSA

to pay Plaintiffs’ mothers for attendant care until in-home

nursing services can be procured. District courts may craft in-

junctions that are “broad enough to be effective.” Republic

Technologies (NA), LLC v. BBK Tobacco & Foods, LLP., 135 F.4th

572, 587 (7th Cir. 2025), quoting Russian Media Group, LLC v.

Cable America, Inc., 598 F.3d 302, 307 (7th Cir. 2010). The com-

bination of the practical lack of available in-home nursing care

and the H&W Waiver’s prohibition on LRI-provided at-

tendant care creates the serious risk of institutionalization

that triggers the integration mandate here. See Steimel, 823

F.3d at 914 (integration mandate applies when State policies

place individuals with disabilities “at serious risk of institu-

tionalization”). The district court could therefore tailor its in-

junction to order relief under the ADA until in-home nursing

care becomes available, even in the absence of a viable Medi-

caid Act claim.

We say no more here about whether sections 1396a(a)(8),

(a)(10)(A), and (a)(43)(C) of the Medicaid Act may be enforced

through a section 1983 action. Those are issues with high

stakes under other circumstances, and they should be decided

in cases in which those issues will be fully litigated and will

affect the outcomes.

18 Nos. 24-2633, 24-2741, & 24-2770

As a result, we consider only Plaintiffs’ ADA claims below.

On remand, the district court may consider in the first in-

stance whether Plaintiffs’ Medicaid Act claims are still viable

under Medina. If the court decides that these claims are not

viable, it will be best positioned to modify the terms of its in-

junction to the extent equity might require. Regardless of its

decision, both sides will have another opportunity to appeal

an adverse ruling and to brief that issue to this court. 5

IV. The October 1 Preliminary Injunction

Although all the district court’s orders are properly before

us, for clarity’s sake, we focus our analysis on the October 1

preliminary injunction. “A preliminary injunction is ‘an exer-

cise of a very far-reaching power, never to be indulged in ex-

cept in a case clearly demanding it.’” Finch v. Treto, 82 F.4th

572, 578 (7th Cir. 2023), quoting Cassell v. Snyders, 990 F.3d

539, 544 (7th Cir. 2021). “To obtain a preliminary injunction, a

plaintiff must show that (1) he has some likelihood of success

on the merits of his claim; (2) traditional legal remedies are

inadequate; and (3) he would suffer irreparable harm without

preliminary injunctive relief.” Id. “If the plaintiff establishes

these threshold requirements, then the court must balance the

equities, weighing the harm to the moving party if the

5 After Medina was decided, IPAS filed a letter pursuant to Federal

Rule of Appellate Procedure 28(j). It raised the possibility that IPAS may

be able to pursue its Medicaid Act claims through statutory vehicles other

than section 1983. Because Plaintiffs’ Medicaid Act claims were clearly vi-

able under pre-Medina circuit precedent, the parties did not initially brief

whether a right of action other than section 1983 authorizes IPAS to pur-

sue Medicaid Act claims on behalf of its constituents. We need not resolve

that question at this time. On remand, the district court will have the op-

portunity to consider this issue in the first instance.

Nos. 24-2633, 24-2741, & 24-2770 19

requested injunction is denied against the harm to the non-

moving party and the public—including third parties—if it is

granted.” Id. The party seeking a preliminary injunction bears

the burden of showing that it is warranted. Id.

We review the district court’s factual findings for clear er-

ror and its legal conclusions de novo. Life Spine, Inc. v. Aegis

Spine, Inc., 8 F.4th 531, 539 (7th Cir. 2021). The ultimate deci-

sion to grant or deny preliminary injunctive relief is commit-

ted to the sound discretion of the district court. Wesley-Jessen

Div. of Schering Corp. v. Bausch & Lomb Inc., 698 F.2d 862, 864

(7th Cir. 1983). Our review of the October 1 injunction is there-

fore limited. Absent a clear error of fact or law, the district

court’s balancing of equities and assessment of the public in-

terest is entitled to significant deference. Finch, 82 F.4th at 578;

Cassell, 990 F.3d at 545.

Here, the district court determined that Plaintiffs had

shown a high likelihood of success on the merits of their ADA

claims and had shown irreparable harm in the form of the

denial of medically necessary care. It then held that the

balance of equities and public interest weighed in favor of

enjoining FSSA to “allow the Individual Plaintiffs to continue

receiving medically necessary attendant care services from

their mothers in the amount approved by FSSA immediately

before the policy changes challenged in this litigation took

effect on September 1, 2024, until in-home skilled nursing

services are secured for the Individual Plaintiffs.” We agree.

A. Likelihood of Success on ADA Claims

Title II of the ADA prohibits public entities such as FSSA

from excluding or discriminating against qualified disabled

individuals in the provision of public services. 42 U.S.C.

20 Nos. 24-2633, 24-2741, & 24-2770

§ 12132. Congress further provided that unjustified segrega-

tion of disabled individuals amounts to an actionable form of

discrimination. Olmstead, 527 U.S. at 600, citing 42 U.S.C.

§ 12101(a)(2), (a)(5). That is so for two reasons. “First, institu-

tional placement of persons who can handle and benefit from

community settings perpetuates unwarranted assumptions

that persons so isolated are incapable or unworthy of partici-

pating in community life.” Id. “Second, confinement in an in-

stitution severely diminishes the everyday life activities of in-

dividuals, including family relations, social contacts, work

options, economic independence, educational advancement,

and cultural enrichment.” Id. at 601. Some of the aspirations

enshrined in these policies may seem lofty for the young

Plaintiffs before us. But for them too, Title II serves a vital pur-

pose: enabling them to receive public services without relin-

quishing close contact with their parents and siblings.

Consistent with Congress’s desire to prevent the

unnecessary confinement of disabled individuals in

institutions, the regulations implementing the ADA contain

an integration mandate. The integration mandate provides:

“A public entity shall administer services, programs, and

activities in the most integrated setting appropriate to the

needs of qualified individuals with disabilities.” 28 C.F.R.

§ 35.130(d). The “most integrated setting appropriate” is

defined as “a setting that enables individuals with disabilities

to interact with nondisabled persons to the fullest extent

possible.” 28 C.F.R. pt. 35, app. B, subpt. B. § 35.130. The

integration mandate, however, does not impose an

“unqualified obligation” on public agencies. Radaszewski ex

rel. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004).

“Although an agency must make such modifications as are

‘reasonable’ in order to avoid unduly segregating the

Nos. 24-2633, 24-2741, & 24-2770 21

disabled, it is relieved of that obligation if it can show ‘that

making the modifications would fundamentally alter the

nature of the service, program, or activity.’” Id., quoting 28

C.F.R. § 35.130(b)(7)(i).

In Olmstead, the Supreme Court applied the integration

mandate to Medicaid services. It held that the integration

mandate requires States to provide community-based treat-

ment for individuals with disabilities if three conditions are

met. 527 U.S. at 607; see Radaszewski, 383 F.3d at 608. First, the

State’s treatment professionals must find that community-

based treatment is appropriate for the affected individual.

Second, the affected individual must not oppose community-

based treatment. Finally, it must be the case that community

placement can be reasonably accommodated, taking into ac-

count the State’s resources and the needs of others with simi-

lar disabilities. Olmstead, 527 U.S. at 607. We have acknowl-

edged that the third element “‘represent[ed] the thinking of

only a plurality of the Court,’ while the first two commanded

a majority.” Vaughn v. Walthall, 968 F.3d 814, 819 (7th Cir.

2020), quoting Steimel, 823 F.3d at 914–15. “Nonetheless, the

concurring opinions made ‘clear that some version of the

“reasonable modifications” provision—and its flip side, the

fundamental-alteration defense—must be taken into account

before deciding that the integration mandate was violated.’”

Id., quoting Steimel, 823 F.3d at 915.

Plaintiffs assert that the State’s refusal to authorize LRIs to

provide attendant care violates the integration mandate be-

cause it denies E.R. and G.S. an existing benefit that would

enable them to continue receiving care at home instead of in

an institution such as a nursing home. FSSA resists that con-

clusion on two grounds. First, it claims that the H&W

22 Nos. 24-2633, 24-2741, & 24-2770

Waiver’s prohibition on attendant care provided by LRIs does

not trigger the integration mandate at all because it does not

place E.R. or G.S. at serious risk of institutionalization. FSSA

also argues that authorizing LRI-provided attendant care

would “fundamentally alter” the H&W Waiver. On this rec-

ord, given the district court’s well-supported factual findings,

neither of FSSA’s arguments is persuasive.

1. Serious Risk of Institutionalization

In Steimel, we explained that disabled individuals need not

be institutionalized before they can “challenge an allegedly

discriminatory law or policy that threatens to force them into

segregated isolation.” 823 F.3d at 912, quoting Fisher v. Okla-

homa Health Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003).

The integration mandate can apply whenever a State admin-

isters Medicaid in a manner that places disabled individuals

at “serious risk of institutionalization.” Id. at 914. The district

court made a factual finding that FSSA’s July 2024 policy

change placed both E.R. and G.S. at serious risk of institution-

alization. We review that finding for clear error. See Life Spine,

8 F.4th at 539.

In finding that the prohibition on LRI-provided attendant

care put Plaintiffs at serious risk of institutionalization, the

district court carefully examined the record and made the

following subsidiary findings. First, given Plaintiffs’ medical

needs and functional limitations, they cannot be left with a

caretaker who is unfamiliar with or incapable of meeting their

skilled needs for any period of time. Second, right now, only

Plaintiffs’ family members are trained to handle their full

array of medical needs. Third, if Ms. Carter and Ms. Knight

cannot serve as paid providers of attendant care for their

children, they will have no choice but to seek outside

Nos. 24-2633, 24-2741, & 24-2770 23

employment to meet the basic needs of their families. Finally,

in that case, they will also be forced to seek institutional

placement for their children because other home-based and

community-based services are insufficient to ensure that their

sons’ complex and unpredictable needs are met.

We find no clear error in any of these subsidiary findings

or the court’s finding that the H&W Waiver’s prohibition on

LRI-provided attendant care would place E.R. and G.S. at se-

rious risk of institutionalization. To the contrary, the court’s

findings are amply supported by the record. FSSA’s argu-

ments fail to come to terms with the inability of other availa-

ble services to meet either Plaintiff’s needs. 6

FSSA first argues that E.R. and G.S. do not require what it

characterizes as “direct, hands-on care” for 24 hours each day.

But as the district court found, FSSA’s litigating position is

contradicted by the eligibility screenings the State completed

for E.R. in 2022 and G.S. in 2023. Those screenings note that

Plaintiffs require “24 hours a day supervision and/or direct

assistance … to maintain safety.” The court also did not err by

6 FSSA attacks the affidavits of Ms. Carter and Ms. Knight as “self-

serving.” Most affidavits from parties and their allies, including those sub-

mitted by FSSA in this case, are self-serving in that they try to support the

submitting party’s legal arguments. See Hill v. Tangherlini, 724 F.3d 965,

967 (7th Cir. 2013) (collecting cases). The federal rules do not prohibit or

give lesser weight to self-serving affidavits based on personal knowledge.

We have repeatedly emphasized that the term “self-serving” should not

be used to “denigrate perfectly admissible evidence.” Id. Ms. Carter’s and

Ms. Knight’s affidavits contain key information about their children’s

medical histories and needs, their financial circumstances, and their ongo-

ing attempts to seek Medicaid services. Their testimony is grounded in

their personal knowledge and years of experience caring for their children

under difficult and at times dire conditions.

24 Nos. 24-2633, 24-2741, & 24-2770

crediting the assessments of Plaintiffs’ mothers and treating

physicians over that of FSSA’s chief medical officer, Dr. S. Ma-

ria Finnell, who has never examined either Plaintiff.

Even if Plaintiffs did not need “direct, hands-on care” at

all times, that would not undermine the district court’s key

finding that E.R. and G.S. simply cannot be left in the care of

someone who is not capable of meeting their skilled nursing

needs. That finding explains why Plaintiffs’ mothers, and not

unskilled home-health aides, must provide Plaintiffs’ at-

tendant care to preserve Plaintiffs’ health and safety. Despite

some handwringing about whether Plaintiffs require skilled

nursing services every moment of every day, Dr. Finnell’s af-

fidavit is fully consistent with that part of the district court’s

findings. As Dr. Finnell acknowledges, both children have se-

vere and unpredictable medical needs that may produce a

medical emergency requiring skilled aid at any moment.

The State next argues that Plaintiffs’ attendant care hours

may be replaced with structured family caregiving hours. The

district court explained why this argument is not persuasive.

Ms. Carter and Ms. Knight are currently the only people ca-

pable of providing the full-time care their children require at

home. The court explained in detail why it would not be fea-

sible for Ms. Carter and Ms. Knight to transition to structured

family caregiving: the reimbursement rate for structured fam-

ily caregiving is too low to be the sole source of income for

either family. If Ms. Carter and Ms. Knight were unable to

serve as paid providers of attendant care, they would need to

seek full-time employment outside the home to meet their

families’ basic needs and their children’s heightened needs.

None of these findings is clearly erroneous. In practice,

then, neither Plaintiff can replace attendant care hours with

Nos. 24-2633, 24-2741, & 24-2770 25

structured family caregiving hours staffed by their mothers.

The theoretical availability of structured family caregiving

hours does nothing to prevent either Plaintiff from being in-

stitutionalized. See Waskul v. Washtenaw County Community

Mental Health, 979 F.3d 426, 462 (6th Cir. 2020) (reversing dis-

missal when complaint allowed for inference that plaintiff

would be “at serious risk of institutionalization if his guard-

ian is unable to continue caring for him due to her dire finan-

cial situation”).

FSSA’s final argument is that other services—specifically,

in-home skilled nursing and public schools—could fill the

gap left by the inability of Ms. Carter and Ms. Knight to care

for their children while they seek and obtain full-time em-

ployment. But this argument too relies on mere theoretical

possibilities rather than evidence of alternative services that

are currently available to meet Plaintiffs’ medical needs at

home. FSSA begins by faulting Plaintiffs for failing to use their

approved skilled nursing hours—the same hours that Plain-

tiffs seek to staff through their Medicaid Act claims. FSSA re-

lies on the fact that the State has approved skilled nursing

hours for both Plaintiffs and ignores entirely the evidence

showing that Plaintiffs and FSSA have not been able to find

nurses who are actually available and willing to staff those

hours.

The State next contends that Plaintiffs are failing to take

full advantage of resources that are supposed to be available

through the public school system. The State points out that

Plaintiffs are entitled to continuous nursing services under the

Individuals with Disabilities Education Act (IDEA). See 20

U.S.C. §§ 1401(26), 1412; Cedar Rapids Community Sch. Dist. v.

Garret F. ex rel. Charlene F., 526 U.S. 66, 70, 79 (1999) (holding

26 Nos. 24-2633, 24-2741, & 24-2770

that under IDEA, school district was required to provide

continuous one-on-one nursing services that ventilator-

dependent plaintiff needed to remain in school). The district

court found, however, that the public schools near E.R. and

G.S. are unable or unwilling to provide continuous nursing

services. Unable to contest the evidence supporting the

district court’s finding that continuous nursing services are

not actually available to either child, FSSA simply emphasizes

that public schools have an obligation to provide such

services under the IDEA. It then goes on to suggest that there

is no reason that these children—with their limited mobility,

their impaired vision and hearing, their intellectual and

developmental deficits, and their frequently life-threatening

medical conditions—should not attend school to the same

extent as children without disabilities.

To state FSSA’s argument is to refute it. E.R. and G.S. can-

not attend school in the same manner and at the same fre-

quency as any other child. Even if either child could attend

school more regularly, he would be excluded from doing so

due to the unavailability of nursing services capable of keep-

ing him safe and healthy during school hours. Without pars-

ing the allocation of responsibility under the IDEA as between

the State itself and the local public school system, we will as-

sume for the sake of argument that FSSA might bring the pub-

lic school system into the case, perhaps as a third-party de-

fendant. That possibility does not show that the district court

erred by focusing on the services that might actually be avail-

able to prevent E.R. and G.S. from being institutionalized.

2. Olmstead Analysis

Having found no clear error in the district court’s finding

that Plaintiffs are at serious risk of institutionalization, we

Nos. 24-2633, 24-2741, & 24-2770 27

move on to the Olmstead analysis. FSSA contests only the third

prong of the Olmstead test—whether LRI-provided attendant

care is a reasonable accommodation or instead would be a

fundamental alteration of the H&W Waiver. It is the State’s

burden to establish its fundamental-alteration defense. See

Steimel, 823 F.3d at 916. To that end, FSSA makes two argu-

ments. It claims (1) that LRI-provided attendant care is a new

service and (2) that the cost of providing it is fiscally unsus-

tainable. At this stage, neither argument is persuasive. Like

the district court, we think that Plaintiffs have shown a high

likelihood of succeeding on their claims that the H&W

Waiver’s prohibition on LRI-provided attendant care violates

the integration mandate.

a. New Service

FSSA’s principal theory is that LRI-provided attendant

care is a “new service” that should count as a “fundamental

alteration” to its Medicaid program. It cites Radaszewski v.

Maram, which recognized that States are “not obligated to cre-

ate new services in order to enable an institutionalized indi-

vidual to live in a more integrated setting.” 383 F.3d at 609.

Closer attention to the facts and holding of Radaszewski, how-

ever, shows that Plaintiffs are not seeking a new service.

In Radaszewski, the 21-year-old plaintiff sought continuous

private-duty nursing that would enable him to remain at

home instead of being institutionalized in a hospital. Id. at

600. At that time, the State generally did not provide private-

duty nursing to people over the age of 20. Id. at 601–02. The

plaintiff could obtain some private-duty nursing through a

cost-limited waiver program for adults, but the applicable

“service cost maximum” would not cover the 24/7 nursing

care that he needed to remain at home. Id. at 602–03.

28 Nos. 24-2633, 24-2741, & 24-2770

Nonetheless, we rejected the State’s argument that it was

entitled to judgment on the pleadings based on its argument

that private-duty nursing was an entirely new service. The

State conceded that if the plaintiff were placed in an institu-

tion, it would be required to provide him with the level of care

that he needed in order to survive. Id. at 611. The plaintiff al-

leged that if he were institutionalized, he would require a

more care-intensive setting than a nursing home, such as a

hospital, to meet his need for “constant, one-on-one care.” Id.

at 610. We reasoned that private-duty nursing might be a rea-

sonable modification to the form of existing services, rather

than a new service, if the plaintiff could show that a private-

duty nurse would provide the same level of care as a care-

intensive unit in a hospital. Id. at 611. The care would be de-

livered differently in the plaintiff’s home, with a private-duty

nurse replacing a hospital staff. But the substance of the

care—“constant monitoring and continuous skilled assistance

in accomplishing basic bodily functions”—would remain the

same. Id.

Although Radaszewski was about the adaptation of

institutional services to community-based settings, the same

general principles apply where, as here, a plaintiff seeks an

accommodation in the form of a modification to a service

already delivered in a community setting. An unreasonable

limit on a home- or community-based service that places a

disabled individual at serious risk of institutionalization is

just as capable of violating the integration mandate as a

State’s refusal to modify a service ordinarily delivered in an

institutional setting. To determine whether a plaintiff is

requesting a new service or only a modification to the way an

existing service is delivered, Radaszewski instructs us to look

at the substance of the care, not the form, method, or provider.

Nos. 24-2633, 24-2741, & 24-2770 29

See id. at 611 (“But so long as it is possible for the plaintiff to

show that the services he seeks to receive at home are, in

substance, already provided in the institutional setting, then

the State is not entitled to judgment on the pleadings based

on the argument that the services would take on a different

form or method if provided in a community setting.”). Under

that standard, Plaintiffs are not seeking a new service here.

FSSA already provides the exact service that Plaintiffs seek

in the exact form that Plaintiffs seek it in, and it has already

approved both Plaintiffs to receive it. Removing the prohibi-

tion on LRIs serving as paid providers of attendant care for

these Plaintiffs does not change the substance of the service as

defined by the H&W Waiver. It merely gives Plaintiffs access

to an existing benefit that has been granted to other disabled

individuals, and one that FSSA agrees Plaintiffs need and for

which they qualify. See Steimel, 823 F.3d at 913 (no fundamen-

tal alteration where plaintiffs sought “access to existing bene-

fits available under [the waiver programs]—benefits that

[had] been granted to some persons with disabilities, but not

to them”); Radaszewski, 383 F.3d at 611–12 (“the fact that the

State already provides for some private-duty nursing tends to

belie the notion that providing such care … would require the

State to alter the substance of its Medicaid programs by creat-

ing an entirely ‘new’ service”); cf. Rodriguez v. City of New

York, 197 F.3d 611, 618–19 (2d Cir. 1999) (neither ADA nor Re-

habilitation Act compelled State to offer safety monitoring to

persons with mental disabilities so that such individuals

could remain at home, where safety monitoring was not an

30 Nos. 24-2633, 24-2741, & 24-2770

existing personal care service that city offered through its

Medicaid program). 7

FSSA cites Vaughn v. Walthall as support for its argument

that LRI-provided attendant care is a new service. But in

Vaughn, we evaluated the reasonableness of an accommoda-

tion very similar to the one requested by Plaintiffs and came

to a different conclusion. The Vaughn plaintiff requested the

ability to hire and train non-nurses to perform skilled tasks

that the State allowed only licensed nurses to perform. 968

F.3d at 823. We explained that if the relevant tasks could be

lawfully delegated to a trained caregiver, “but Indiana simply

as a matter of policy prefers that they be performed by

nurses,” then the State’s “exercise of discretion might well be

unreasonable given the integration direction.” Id. Because it

was unclear, though, whether non-nurses could lawfully per-

form skilled care under State and federal law, we remanded

the case to the district court for further fact-finding. Id. at 824

Here, unlike in Vaughn, FSSA explicitly acknowledges that

it could authorize LRIs to perform attendant care consistent

with State law and federal requirements for waiver program

approval and funding. The fact that Indiana could allow LRIs

7 In this court, FSSA renews its argument that Plaintiffs are seeking a

new service because they want to be paid for performing skilled tasks out-

side of the scope of attendant care. This argument is not supported by the

record. At the preliminary injunction hearing, Plaintiffs’ counsel explicitly

denied that Plaintiffs are seeking to be reimbursed for providing skilled

care. Counsel asserted that Plaintiffs are seeking reimbursement only for

attendant care exactly as that service is defined in the State’s waiver doc-

ument. The fact that Plaintiffs have complex medical needs explains why

their mothers, and not untrained caretakers, must provide their attendant

care. It does not transform LRI-provided attendant care into a new service

within the meaning of Radaszewski.

Nos. 24-2633, 24-2741, & 24-2770 31

to provide attendant care but has simply chosen not to do so

makes Plaintiffs’ case for an accommodation stronger. See id.

at 823. Authorizing a different, unambiguously qualified pro-

vider to perform an existing non-skilled service is just the

kind of minor modification to an existing service that the in-

tegration mandate can require.

At bottom, FSSA’s argument appears to be that LRI-

provided attendant care is a new service merely because it is

not currently permitted under the H&W Waiver. In Steimel v.

Wernert, we rejected the same kind of circular objection to

changing the eligibility criteria of a waiver program: “After

all, the state creates the waiver programs, and therefore those

programs’ eligibility criteria. If the state’s own criteria could

prevent the enforcement of the integration mandate, the man-

date would be meaningless.” 823 F.3d at 916. Likewise, the

integration mandate would be an empty promise if a State’s

policy choices regarding the services it provides were insu-

lated from judicial review under the ADA merely because

they were formalized in the State’s Medicaid documents. LRI-

provided attendant care is not currently authorized by the

H&W Waiver, but if Plaintiffs prevail in this suit, the district

court could enter a permanent injunction requiring FSSA to

amend the H&W Waiver. The fact that Plaintiffs’ requested

relief may eventually require the State to amend its waiver

does not transform an otherwise reasonable accommodation

into a new service. To hold otherwise would enable the State

to “avoid the integration mandate by binding its hands in its

own red tape.” Id. at 916.

b. Fiscal Sustainability

FSSA also argues that amending the H&W Waiver to au-

thorize LRI-provided attendant care would be fiscally

32 Nos. 24-2633, 24-2741, & 24-2770

unsustainable. It contends that a permanent injunction would

impair its ability to mitigate the effects of its anticipated

budget deficit and would therefore result in interruptions to

Medicaid services.

A State’s resource constraints are relevant to the

fundamental-alteration inquiry. In Olmstead, the plurality

explained that a State may establish its fundamental-

alteration defense by showing that “in the allocation of

available resources, immediate relief for the plaintiffs would

be inequitable, given the responsibility the State has

undertaken for the care and treatment of a large and diverse

population of persons with mental disabilities.” 527 U.S. at

604. However, neither the plurality nor the concurring

Justices suggested that a State’s fiscal problem, by itself,

justifies any restriction on an existing, medically necessary

service. As other courts have recognized after Olmstead, a

State’s reasonable attempt to solve a fiscal problem may still

violate the integration mandate. See, e.g., Pashby v. Delia, 709

F.3d 307, 323–24 (4th Cir. 2013) (collecting cases for the

premise that “although budgetary concerns are relevant to the

fundamental alteration calculus, financial constraints alone

cannot sustain a fundamental alteration defense”); Fisher, 335

F.3d at 1182–83. States are not required, however, to make an

accommodation that would be so costly or would so disrupt

the allocation of available resources that it would compel the

State to alter the substance of the services it provides to other

disabled Medicaid beneficiaries.

On this record, FSSA has not yet shown that amending the

H&W Waiver to authorize LRIs to provide attendant care

would either solve its fiscal problem or be inequitable. Re-

garding its fiscal situation, FSSA has not shown that

Nos. 24-2633, 24-2741, & 24-2770 33

prohibiting LRI-provided attendant care actually saves the

State any money. As the district court observed, this case is

not about how many services an enrollee may receive. It is only

about whom FSSA is willing to pay to provide those services.

One curious feature of FSSA’s position here is that if E.R. or

G.S. had any other family member or family friend qualified

and willing to provide the full-time care they need to remain

at home, FSSA would have no problem reimbursing those

providers at the higher attendant care rates. If E.R. or G.S. had

less extreme ailments that did not place them in danger if su-

pervised part of the day by a home-health aide incapable of

meeting their skilled needs, FSSA would have no problem re-

imbursing their providers. If Plaintiffs’ families could find

nurses willing to work in their homes, FSSA would not hesi-

tate to pay for home nursing at a cost that is nearly identical

to the cost of attendant care. And, of course, FSSA would also

have no objection to placing both Plaintiffs in institutions that

would be far more expensive than home-based care.

In other words, the State is willing to provide the services

and care that Plaintiffs require, and it is willing to spend as

much—or more—as it would cost to reimburse Ms. Carter

and Ms. Knight to do so in the form of attendant care. Even

though FSSA justifies the prohibition on LRI-provided

attendant care as a cost-containment strategy, it has provided

no evidence that the limitation would actually reduce the

expense of Plaintiffs’ care. Given the unavailability of other

services, it appears the restriction would eventually push

Plaintiffs into nursing homes, which are significantly more

costly than home-based care—even when we factor in the rise

in FSSA’s expenditures for home-based care. If even a

substantial increase in the cost of a plaintiff’s care cannot

defeat a Title II claim, see Radaszewski, 383 F.3d at 614,

34 Nos. 24-2633, 24-2741, & 24-2770

evidence that a plaintiff’s request would cost the State the

same or less than every other alternative, including

institutionalization, does not establish a fundamental-

alteration defense.

Although our analysis highlights the cost of providing

care to E.R. and G.S., we are cognizant of the need to consider

the cost of authorizing LRI-provided attendant care for all el-

igible waiver enrollees. Looking only at the cost of changing

Plaintiffs’ care “would be unfair to the state and fail to give it

the leeway for which [the concurring Olmstead Justices]

called.” Steimel, 823 F.3d at 915, citing Olmstead, 527 U.S. at 603

(plurality op. of Ginsburg, J.) (“If the expense entailed in plac-

ing one or two people in a community-based treatment pro-

gram is properly measured for reasonableness against the

State’s entire mental health budget, it is unlikely that a State,

relying on the fundamental-alteration defense, could ever

prevail.”). Our analysis applies equally when we look at the

cost of providing care to all individuals with disabilities com-

parable to Plaintiffs. If other waiver recipients need to seek in-

home skilled nursing services or institutionalization as a re-

sult of the prohibition on LRI-provided attendant care, the

cost of their care would rise in the way explained above.

As for the services that the State provides to other

Medicaid beneficiaries, FSSA invokes a parade of horribles to

show that authorizing LRI-provided attendant care would be

inequitable. It hypothesizes that it may have to limit the H&W

Waiver in various ways or even eliminate the waiver program

entirely. It relies on the affidavit of FSSA’s Medicaid Director,

Cora Steinmetz, who listed, without any explanation, several

options of varying gravity that FSSA might take if the district

court enters a permanent injunction. That list includes the

Nos. 24-2633, 24-2741, & 24-2770 35

possibility of seeking additional budget augmentation or

appropriations from the State Budget Agency and the Indiana

legislature. That indicates to us that, at this time, all options

are on the table. FSSA’s unexplained and unsupported

assertions about the options a permanent injunction might

lead it to consider are too speculative to sustain its

fundamental-alteration defense. They do not show that

authorizing attendant care from LRIs would compel cutbacks

in services to other Medicaid waiver participants or be

otherwise inequitable.

Beyond Steinmetz’s affidavit, FSSA’s experience to date

with the H&W Waiver tends to undermine its suggestion that

it would be either impossible or undesirable for FSSA to au-

thorize LRI-provided attendant care while staying within its

fiscal constraints. As of July 1, 2024, FSSA had received tran-

sition service plan updates for most pediatric waiver enrol-

lees. Of those enrollees, more than 68% have transitioned to

structured family caregiving, and many remaining enrollees

are receiving attendant care from a non-LRI or have pursued

other waiver and State Plan services. It appears, therefore, that

only a small minority of H&W Waiver enrollees with various

combinations of uniquely challenging ailments and family

circumstances are likely to need LRI-provided attendant care

to avoid institutionalization. To satisfy the integration man-

date, the State may design the H&W Waiver to preserve LRI-

provided attendant care as a last resort for that small subset

of cases without prohibiting it entirely. That would be a law-

ful and reasonable alternative to hoping that imaginary or hy-

pothetical providers will provide needed care. The federal

government encourages States to develop waiver policies that

make LRIs providers of last resort, without prohibiting them.

If LRI-provided attendant care is needed in only a small

36 Nos. 24-2633, 24-2741, & 24-2770

minority of cases, the expense of reimbursing it is unlikely to

compel drastic reductions in services for other disabled indi-

viduals—especially since the alternative, institutionalization,

is more expensive. 8

This lawsuit is still in its early stages. Perhaps FSSA can

develop the record and show that authorizing LRI-provided

attendant care would require it to shift resources in an

inequitable manner. But at this time, it has offered only

doomsday predictions about the impact of authorizing LRI-

provided attendant care on Indiana’s Medicaid program.

Those predictions are difficult to reconcile with the State’s

apparent willingness to spend the same amount of money or

more on other home-based services or to institutionalize

Plaintiffs and other waiver enrollees. FSSA has therefore

failed to show that LRI-provided attendant care is so

financially burdensome that it would compel a fundamental

alteration to the substance of the H&W Waiver.

8 FSSA has also raised the concern that authorizing attendant care ser-

vices for a smaller subset of waiver enrollees would result in some families

being without any option for paid care from an LRI. This argument as-

sumes that LRI-provided attendant care cannot be authorized without

taking away the option of LRI-provided structured family caregiving.

FSSA has not pointed to any legal authority, and we have found none, that

would require it to eliminate LRI-provided structured family caregiving

to authorize LRI-provided attendant care. Like the decision to disallow

LRI-provided attendant care, eliminating LRI-provided structured family

caregiving would be the State’s policy choice—a choice that would also be

subject to the integration mandate. If FSSA is permanently enjoined from

enforcing the restriction on LRI-provided attendant care, it could obvi-

ously modify other parts of the H&W Waiver as necessary to comply with

its legal obligations and fiscal constraints. At all times, though, FSSA is

subject to and must comply with the integration mandate.

Nos. 24-2633, 24-2741, & 24-2770 37

3. Effect of Armstrong v. Exceptional Child Center

Having failed to show that Plaintiffs are not at serious risk

of institutionalization or that authorizing LRI-provided at-

tendant care would fundamentally alter the H&W Waiver,

FSSA offers one last argument. It depends on recharacterizing

Plaintiffs’ position. FSSA contends that Plaintiffs’ ADA claims

seek in substance to raise the State’s reimbursement rates, a

form of relief that FSSA says is barred by the Supreme Court’s

decision in Armstrong v. Exceptional Child Center, Inc., 575 U.S.

320 (2015). In Armstrong, the Court considered whether

health-care providers have a private cause of action to enforce

42 U.S.C. § 1396a(a)(30)(A) of the Medicaid Act, which sets out

requirements that States must follow when setting Medicaid

reimbursement rates. 575 U.S. at 322–24. The Court concluded

that section 1396a(a)(30)(A) is not privately enforceable under

the Supremacy Clause or through a suit in equity. Id. at 326–

28. Although the Armstrong plaintiffs did not assert that sec-

tion 1396a(a)(30)(A) itself contains an implied private right of

action, a plurality of the Court and Justice Breyer agreed that

it does not, albeit for different reasons. Id. at 331 (plurality

opinion of Scalia, J.), 336 (opinion of Breyer, J.).

FSSA reads Armstrong to prohibit Medicaid beneficiaries

from bringing any claim seeking a different Medicaid reim-

bursement rate under section 1396a(a)(30)(A) or through any

other vehicle. It believes that Plaintiffs’ ADA claims are dis-

guised challenges to the State’s Medicaid reimbursement

rates and therefore barred by Armstrong. We disagree on both

points. Neither Armstrong’s holding nor its reasoning sup-

ports FSSA’s attempt to evade the Olmstead framework for

evaluating Plaintiffs’ ADA claims. And regardless, Plaintiffs’

38 Nos. 24-2633, 24-2741, & 24-2770

ADA claims are not disguised attempts to engage the district

court in ratemaking.

First, Plaintiffs are not proceeding pursuant to section

1396a(a)(30)(A), and Armstrong has no bearing on Plaintiffs’

ADA claims. The question presented in Armstrong was nar-

row: whether section 1396a(a)(30)(A) is privately enforceable.

In saying no, the Court never suggested that the unenforce-

ability of section 1396a(a)(30)(A) somehow nullifies other

causes of action explicitly created by Congress in different

statutes, such as the ADA. Furthermore, Armstrong did not

place a substantive limit on the relief that Medicaid benefi-

ciaries may seek through litigation brought under statutory

provisions other than section 1396a(a)(30)(A). See M.G. ex rel.

Garcia v. Armijo, 117 F.4th 1230, 1252–53 (10th Cir. 2024) (Arm-

strong does not preclude every suit that might require States

to spend funds or to raise health-care rates). None of the var-

ious opinions even broached the unpresented and legally dis-

tinct issue of the kind of relief that a plaintiff may seek under

the ADA. 9

9 Our precedent does not hold otherwise. In O.B., we speculated that

“we could not order the agency to eliminate the [nurse] shortage by rais-

ing [its] rates.” 838 F.3d at 842. But the O.B. plaintiff did not seek that relief,

and our statement considering such a hypothetical request is not binding,

as we later recognized in Vaughn. See 968 F.3d at 826 (clarifying that the

“question whether a Medicaid recipient has a private right of action to

challenge Medicaid rates as too low to elicit necessary services may come

up” is still unresolved). Moreover, in O.B., the plaintiffs relied exclusively

on other provisions of section 1396a(a). See O.B., 838 F.3d at 839. If they

had sought an order requiring the State agency to raise its Medicaid rates,

there would have been a genuine possibility that they were attempting to

circumvent Armstrong since their claims relied exclusively on other

Nos. 24-2633, 24-2741, & 24-2770 39

Even if Armstrong could be read to limit substantively the

relief that disabled individuals may seek through litigation

under the ADA, it would have no bearing on the outcome of

this case. Plaintiffs “are not, directly or surreptitiously, seek-

ing to engage the district court in ratemaking pursuant to

§ 1396a(a)(30)(A)” or any other statute. Id. at 1252. They do not

ask FSSA to raise the rate it pays to any category of providers

or for any category of services. They ask only that FSSA allow

their uniquely qualified and available LRIs to provide at-

tendant care services, as it had for years prior to the July 2024

policy change. In other words, Plaintiffs are challenging who

is allowed to perform a certain service, not the rate at which

FSSA reimburses providers. Their request for a different pro-

vider does not embroil the courts in the kind of direct rate-

setting that Justice Breyer found problematic in Armstrong.

See 575 U.S. at 334–35 (opinion of Breyer, J.).

Because the State continues to raise Armstrong in ADA

cases, we acknowledge that rates have a significant impact on

the availability of Medicaid services. Many Medicaid benefi-

ciaries would likely be better off if States raised their Medicaid

reimbursement rates. But a plaintiff’s ADA suit does not au-

tomatically fail under Armstrong merely because she brings it

to rectify an issue that could be addressed in numerous ways,

one of which is raising rates. The State cannot avoid its legal

obligations under the ADA and its integration mandate by

pointing out that a plaintiff’s dilemma could be solved by a

rate increase that she did not request. Here, the preliminary

injunction record shows that the difference between the rates

for attendant care services and structured family caregiving is

provisions of section 1396a(a). Because the Plaintiffs here are seeking relief

primarily under the ADA, this suit does not present that problem.

40 Nos. 24-2633, 24-2741, & 24-2770

the difference between E.R. and G.S. remaining at home with

their loved ones and being forced to reside in institutions. The

State could comply with the integration mandate by paying

structured family caregiving providers more, but that is not

what Plaintiffs request, nor what the district court’s injunction

requires. Armstrong therefore does not block the injunctive re-

lief granted in this case.

In sum, then, Plaintiffs have shown a substantial likeli-

hood of prevailing on the merits of their claims under the

ADA’s integration mandate, supporting the injunctive relief

ordered in this case.

B. Irreparable Harm and Balance of the Equities

Because the district court did not err in finding that Plain-

tiffs are likely to succeed on the merits of their ADA claims,

we turn to its finding that Plaintiffs are likely to suffer irrepa-

rable harm without preliminary injunctive relief and its equi-

table balancing of the harms. We agree with the district court

that Plaintiffs will likely suffer irreparable harm—the denial

of medically necessary attendant care services in their

homes—without preliminary injunctive relief. See Bontrager v.

Indiana Family & Soc. Servs. Admin., 697 F.3d 604, 611 (7th Cir.

2012) (collecting cases).

FSSA argues, however, that the October 1 injunction

places it at risk of grave and irreparable harm. It contends that

the injunction impermissibly compels FSSA to violate federal

law, thereby placing the entire H&W Waiver at risk of being

terminated. FSSA further argues that the district court ex-

ceeded its equitable authority in entering the October 1 in-

junction. It asserts that Seventh Circuit precedent prohibits

district courts from issuing injunctions requiring a State to

Nos. 24-2633, 24-2741, & 24-2770 41

furnish a Medicaid beneficiary’s care “entirely out of its own

funds, unreimbursed and unsupplemented by Medicaid.”

Vaughn, 968 F.3d at 826. In the State’s view, any payments

made to Plaintiffs’ mothers are ineligible for federal reim-

bursement, rendering the October 1 injunction impermissible.

We appreciate FSSA’s concerns—the termination of the

H&W Waiver would undoubtedly cause irreparable harm to

both the State and to other waiver enrollees who would expe-

rience service disruption. The argument has the superficial

appeal of a complete showstopper. But a closer look shows

that the October 1 injunction does not compel FSSA to violate

federal law or to furnish Plaintiffs’ care entirely out of its own

funds. FSSA’s allegations of irreparable harm are too specula-

tive to overcome Plaintiffs’ concrete evidence that they will be

denied medically necessary care without preliminary injunc-

tive relief.

1. Violation of Federal Law?

FSSA asserts that federal regulations expressly prohibit

FSSA from paying Ms. Carter and Ms. Knight for providing

attendant care services. By ordering the State to pay them for

providing attendant care services, the argument goes, the dis-

trict court’s order compels it to violate federal law. Needless

to say, courts are not authorized “to issue injunctions that au-

thorize or direct people to violate valid federal statutes” or

regulations. Schering Corp. v. Illinois Antibiotics Co., 62 F.3d

903, 907 (7th Cir. 1995). But after reviewing the applicable reg-

ulations, we think that FSSA misconstrues the legal con-

straints on its ability to pay Ms. Carter and Ms. Knight for

providing attendant care.

42 Nos. 24-2633, 24-2741, & 24-2770

FSSA’s argument hinges on 42 U.S.C. § 1396d(a)(24) and

42 C.F.R. § 440.167, both of which define “personal care ser-

vices,” the category of services to which attendant care and

structured family caregiving belong. As relevant here, both

provisions define personal care services as services

“[p]rovided by an individual who is qualified to provide such

services and who is not a member of the individual’s family.”

42 C.F.R. § 440.167(b) specifies: “For purposes of this section,

family member means a legally responsible relative,” which

is defined in turn to include the spouse of a recipient or the

parent of a minor recipient. Personal Care Services in a Home

or Other Location, 62 Fed. Reg. 47896, 47899 (Sep. 11, 1997).

According to FSSA, sections 1396d(a)(24) and 440.167 ex-

pressly prohibit it from paying Plaintiffs’ mothers for provid-

ing attendant care services.

Neither provision relied upon by FSSA expressly prohibits

the State from doing anything. They both define “personal

care services” and therefore inform States which services are

eligible for approval and reimbursement through the Medi-

caid program. But they do not contain any prohibitory lan-

guage directly regulating the conduct of States, which remain

free to authorize and reimburse any service they like—just

without federal financial participation. That understanding of

section 440.167 comports with the federal government’s tech-

nical Medicaid guidance, which explains that “42 CFR 440.167

prohibits [federal financial participation] for payments to le-

gally responsible individuals for the provision of state plan

personal care services.” CMS Technical Guidance at 120. The

technical guidance confirms that section 440.167 sets out

CMS’s policy for when it will approve and pay for personal

care services. It does not prohibit States from paying LRIs for

Nos. 24-2633, 24-2741, & 24-2770 43

providing personal care services. The October 1 injunction

therefore does not compel FSSA to violate federal law.

2. Federal Financial Participation

Our discussion of 42 U.S.C. § 1396d(a)(24) and 42 C.F.R.

§ 440.167 emphasizes what is really at stake here: the State’s

ability to receive federal financial participation for its provi-

sion of these Medicaid services. The State’s concern about the

prospect of losing federal financial participation is well taken.

In Vaughn, we explained that district courts should not order

injunctive relief that requires a State to furnish Medicaid ser-

vices “entirely out of its own funds, unreimbursed and un-

supplemented by Medicaid.” 968 F.3d at 826. That limitation

makes good sense.

Medicaid is a cooperative federal-state program in which

States agree to provide certain medical care and services in

exchange for receiving federal funding. See Douglas v.

Independent Living Center of Southern California, Inc., 565 U.S.

606, 610–611 (2012). Requiring the State to provide services

that are ineligible for federal reimbursement denies it the

benefit of the bargain that it has struck with the federal

government. The ADA does not require States to go beyond

the constraints imposed by federal Medicaid law to

accomplish its purposes. Although our equitable authority to

enforce federal anti-discrimination laws is broad, we do not

think it stretches as far as compelling the State to provide

Medicaid services that are ineligible for federal

reimbursement and therefore outside the scope of Medicaid.

See Georgia ex rel. Dep’t of Med. Assistance v. Heckler, 768 F.2d

1293, 1298 (11th Cir. 1985) (holding that services for which

federal funds are not available are outside scope of federal

Medicaid program); see also Harris v. McRae, 448 U.S. 297, 310

44 Nos. 24-2633, 24-2741, & 24-2770

(1980) (unavailability of federal funding for medically

necessary abortions under Hyde Amendment relieved States

of the obligation to cover those abortions in their Medicaid

plans).

At present, however, there is no evidence that the State

will be forced to bear the full cost of Plaintiffs’ care. That dis-

tinguishes this case from Vaughn, where there was conclusive

evidence that the district court’s permanent injunction had

compelled the State to provide Medicaid services without fed-

eral financial participation. In Vaughn, the State certified that

it had complied with the injunction by contracting with a

home-health agency at the market rate for skilled nursing

care, which was higher than the Medicaid cap. 968 F.3d at 818.

Because the contract exceeded the Medicaid cap, the State was

not authorized to use any federal Medicaid funds to pay the

home-health agency. As a result, it allocated only State funds

to cover the cost of the plaintiff’s services. Id.

In this case, there is no similar affirmative evidence that

federal financial participation is unavailable for payments

FSSA makes to Ms. Carter and Ms. Knight pursuant to the Oc-

tober 1 order. CMS’s policy is that it will not pay LRIs “for

supports that they are ordinarily obligated to provide.” CMS

Technical Guidance at 120. It will, however, pay LRIs for

providing “extraordinary care,” which is defined as “care ex-

ceeding the range of activities that a legally responsible indi-

vidual would ordinarily perform in the household on behalf

of a person without a disability or chronic illness of the same

age.” Id. Plaintiffs argue, and the district court agreed, that

“there is no doubt … that what [Ms. Carter and Ms. Knight]

do for their children is extraordinary in every sense of the

word.” We agree. The 24/7 supervision and assistance with

Nos. 24-2633, 24-2741, & 24-2770 45

activities of daily living that E.R. and G.S. require go far be-

yond what the law expects of parents of children without dis-

abilities. The October 1 injunction is therefore consistent with

CMS’s policy for when it will and will not pay LRIs for

providing attendant care. We will not disturb the injunction

in the absence of affirmative evidence that federal financial

participation is not available. 10

Setting aside the lack of affirmative evidence for FSSA’s

position, the agency’s own conduct in this case and experi-

ence in prior ADA cases undermine the force of its stated fear

of losing federal financial participation or of having its waiver

program terminated. FSSA paid LRIs (including Ms. Knight

10 FSSA also cites 42 C.F.R. § 441.360(d) as evidence that federal

financial participation is not available for payments made to Ms. Carter

and Ms. Knight for providing attendant care. This argument is also

unpersuasive. Section 441.360(d) provides that federal funds are not

available for expenditures for “[s]ervices that are not included in the

approved State Plan and not approved as waiver services by CMS.” But

this section only applies to services listed in 42 C.F.R. § 440.181, which

governs home- and community-based services for individuals age 65 or

older. E.R. and G.S. are both children, so the limits in section 441.360(d) do

not apply to them. 42 C.F.R. § 441.310 sets out the limits for federal

financial participation applicable to the services that E.R. and G.S. receive.

See 42 C.F.R. § 440.180(a)(3). Unlike section 441.360(d), section 441.310

does not prohibit federal financial participation for services not approved

by CMS. The absence of that limit in section 441.310 is evidence that no

such limit applies to the services received by Plaintiffs. See Miller v.

F.D.I.C., 738 F.3d 836, 842–43 (7th Cir. 2013) (“the inclusion of limiting

language in one subsection but not another subsection usually yields the

inference that the limitation does not apply to the latter subsection” (citing

Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. 207, 216 (2012))); Bria

Health Servs., LLC v. Eagleson, 950 F.3d 378, 382 (7th Cir. 2020) (“The same

basic rules that apply to statutory interpretation apply to regulatory

interpretation.”).

46 Nos. 24-2633, 24-2741, & 24-2770

and Ms. Carter) to provide attendant care services for years

even though such payments were not authorized by the terms

of the A&D Waiver. There is no evidence that the federal gov-

ernment ever threatened to terminate the A&D Waiver over

FSSA’s supposed noncompliance.

FSSA has not presented any evidence that CMS intends in

the future to withhold federal funds for payments made to

Plaintiffs’ mothers for providing attendant care pursuant to

the district court’s order. At oral argument, FSSA confirmed

that there is currently no indication that CMS will take such

action. Further, this is not the first or even the second time that

FSSA has been ordered to act contrary to the terms of its fed-

erally approved Medicaid program. E.g., Bontrager, 697 F.3d

604 (affirming injunction preventing State from enforcing cap

on dental services); Order of Judgment, B.N. ex rel. A.N. v.

Murphy, No. 3:09-CV-199 (N.D. Ind. Nov. 30, 2011) (enjoining

enforcement of A&D Waiver provision). FSSA has not pro-

vided any evidence that it lost federal funding in any of the

past cases in which it was enjoined.

Accordingly, the availability of federal funding for partic-

ular expenditures is, at least in this case, a factual question.11

Further factual development might call for a different out-

come. If FSSA produced persuasive evidence that federal

funding for Indiana’s Medicaid plan is actually at risk, the dis-

trict court would have to consider that evidence, rebalance the

11 In other cases, it may be clear from the language of the Medicaid

Act or its implementing regulations that federal funding is unavailable.

See, e.g., 42 C.F.R. § 441.360(d). Because the federal regulations applicable

to the H&W Waiver are ambiguous about the availability of federal finan-

cial participation, we treat the availability of federal funding for payments

to Ms. Carter and Ms. Knight as a factual question.

Nos. 24-2633, 24-2741, & 24-2770 47

equities, and potentially modify the October 1 injunction.

Still, we have yet to find a single example of a State agency

that has been denied federal funds or had its waiver program

terminated for complying with a court order providing relief

under the ADA. Courts have been adjudicating ADA cases for

decades and on occasion have enjoined States from enforcing

parts of their Medicaid programs that violate the ADA’s inte-

gration mandate. They have also ordered preliminary and in-

terim relief to prevent irreparable harm until States can for-

mally amend their Medicaid programs through the federal

approval process. See, e.g., Chisholm ex rel. CC v. Kliebert, No.

97-3274, 2013 WL 4089981, at *11–12 (E.D. La. Aug. 13, 2013)

(declining to stay a preliminary injunction requiring State to

provide services pursuant to court order that were not yet ap-

proved by CMS). We see no reason to depart from that prac-

tice. On this record, the risk that the H&W Waiver will be ter-

minated or that the State will have to fund E.R.’s and G.S.’s

care entirely out of its own funds appears to be more specula-

tive than real. 12

3. Balancing the Equities

Having rejected FSSA’s argument that the preliminary in-

junction improperly compels it to violate federal law or to

12 Because there is no evidence that payments made pursuant to the

preliminary injunction are ineligible for federal financial participation, we

need not opine on whether 42 C.F.R. § 431.250(b) explicitly makes federal

funds available under these circumstances. If it does, that would reinforce

our conclusion that the district court properly ordered FSSA to continue

paying Ms. Carter and Ms. Knight for providing attendant care. If, how-

ever, section 431.250 does not authorize federal financial participation in

these circumstances, it would not render the district court’s injunction an

abuse of discretion for the reasons set forth above.

48 Nos. 24-2633, 24-2741, & 24-2770

fund Plaintiffs’ care exclusively out of State funds, we further

conclude that the district court did not abuse its discretion by

finding that the balance of equities and public interest

weighed in favor of granting injunctive relief. In making this

determination, the court had to consider whether “the harm

to the defendant would substantially outweigh the benefit to

the plaintiff.” Bontrager, 697 F.3d at 611, quoting Michigan v.

U.S. Army Corps of Eng’rs, 667 F.3d 765, 789 (7th Cir. 2011). Be-

cause the court’s “equitable judgment is entitled to substan-

tial deference on appeal,” FSSA has a “steep hill to climb.”

Finch v. Treto, 82 F.4th 572, 578 (7th Cir. 2023). Its task is espe-

cially difficult because we have already affirmed a prelimi-

nary injunction under very similar circumstances.

In Bontrager, we affirmed the district court’s preliminary

injunction preventing the State from enforcing its $1,000 cap

on medically necessary dental services covered by its Medi-

caid plan. 697 F.3d at 612. As in this case, the State had

adopted the $ 1,000 cap as a cost-cutting measure. Id. at 606.

Regarding the balance of the equities, we explained that the

State’s “potential budgetary concerns” did not outweigh the

potential harm the plaintiff would suffer from the denial of

medically necessary dental services. Id. at 611. Because the

“Medicaid statute was designed to pay for the healthcare

costs of ‘the most needy in the country,’” the public interest

was best served by preserving “Medicaid recipients’ interests

in access to medically necessary health care.” Id. at 611–12,

quoting Schweiker v. Hogan, 457 U.S. 569, 590 (1982).

This case presents essentially the same constellation of in-

terests that we considered in Bontrager. The attendant care

that Plaintiffs seek from their mothers is necessary to prevent

them from being uprooted from their homes, families, and

Nos. 24-2633, 24-2741, & 24-2770 49

support systems. In the absence of preliminary injunctive re-

lief, Plaintiffs are highly likely to be institutionalized. Before

the court entered the October 1 injunction, both Ms. Carter

and Ms. Knight had already taken concrete steps toward plac-

ing their children in institutions. By contrast, for the reasons

explained above, FSSA is unlikely to experience any irrepara-

ble harm as a result of complying with the injunction. The dis-

trict court therefore did not err in concluding that Plaintiffs’

interest in receiving medically necessary health care on terms

equal to non-disabled persons outweighs the State’s concerns

about its budget variance or the highly speculative possibility

of the loss of federal funding. The court also did not err in

determining that the public interest is best served by enforc-

ing federal anti-discrimination law.

C. Scope of Relief

Finally, Plaintiffs contend that the district court’s October

1 injunction is insufficient to fully prevent Plaintiffs from ex-

periencing irreparable harm in two ways. First, they argue

that Plaintiffs’ mothers must be allowed to serve as paid pro-

viders of attendant care until home nurses are both secured

and properly trained—a process that could take weeks or

months to complete. Second, Plaintiffs argue that the amount

of home nursing ordered by the district court is inadequate,

given Plaintiffs’ medical conditions and the care they have

needed in the past.

The appropriate scope of an injunction is committed to the

district court’s sound discretion. Republic Technologies (NA),

LLC v. BBK Tobacco & Foods, LLP, 135 F.4th 572, 587 (7th Cir.

2025); Eli Lilly Co. v. Arla Foods, Inc., 893 F.3d 375, 384 (7th Cir.

2018). On this record, it is uncertain whether Plaintiffs’ re-

quested modifications are necessary or appropriate.

50 Nos. 24-2633, 24-2741, & 24-2770

Regarding the amount of home nursing Plaintiffs need, the

court’s most recent order did not order a specific amount of

home nursing, and it is not clear whether the court intended

to retain that element of its previously ordered relief. Further-

more, after Medina, it may no longer be appropriate for the

district court to order a specific amount of home nursing ser-

vices.

It is also not clear that it would be appropriate for Plain-

tiffs’ mothers to serve as paid providers of attendant care until

their hypothetical and not-yet-newly-hired home nurses are

eventually trained to care for these Plaintiffs. As Plaintiffs

themselves explained, they are seeking to be paid for at-

tendant care as that service is defined in the H&W Waiver.

Training home nurses does not appear to be one of the ser-

vices encompassed by that definition. It may be, however, that

a combination of home nursing and attendant care services is

necessary to prevent either child’s institutionalization and

therefore that the injunction should be modified to take that

possibility into account. For example, G.S.’s medical provid-

ers have advised that he needs multiple caretakers at a time

to meet his mobility needs. Ms. Knight might therefore need

to continue providing attendant care, even if she secured a

nurse to meet G.S.’s skilled nursing needs. Because the district

court is closer to the facts and to changing circumstances, it is

best positioned to consider Plaintiffs’ arguments and to tailor

the preliminary injunction to prevent Plaintiffs’ avoidable in-

stitutionalization.

The district court’s October 1 injunction is AFFIRMED,

and we remand this case for further proceedings consistent

with this opinion.