first quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (per curiam); and then quoting John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 n.3 (5th Cir. 2007)
How later courts described this case
- first quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (per curiam); and then quoting John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 n.3 (5th Cir. 2007)
Written by the judges who cited it.
The opinion
Case: 24-30244 Document: 105-1 Page: 1 Date Filed: 08/12/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 12, 2025
No. 24-30244
____________ Lyle W. Cayce
Clerk
B. B., by and through her mother, P.B.; D. D., by and through his mother,
P.D.; E. E., by and through his mother, P.E.; G. G., by and through her
mother, P.G.,
Plaintiffs—Appellees,
versus
Michael Harrington, in his official capacity as the Secretary of the
Louisiana Department of Health; Louisiana Department of
Health,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-770
______________________________
Before Ho, Engelhardt, and Douglas, Circuit Judges.
Per Curiam: *
Medicaid-eligible children in Louisiana claim the State isn’t providing
statutorily required mental health services. The district court certified a class
that includes children who require “intensive behavioral services.” But the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 24-30244 Document: 105-1 Page: 2 Date Filed: 08/12/2025
No. 24-30244
definition of those services is too vague to support an ascertainable class. So
we vacate and remand for the district court to narrow its definition.
I.
The district court initially certified the class to include children who
had been recommended intensive care coordination, crisis services, and in-
tensive behavioral services. But this court subsequently vacated that certifi-
cation for lack of specificity in these terms. See A.A. ex rel. P.A. v. Phillips,
2023 WL 334010, at *3 (5th Cir. Jan. 20, 2023).
Following that initial remand, parties have stipulated to definitions of
intensive care coordination and crisis services, so intensive behavioral ser-
vices is the only category left in dispute.
Again certifying the class, the district court set out two steps for de-
fining intensive behavioral services. First, such services must consist of
“therapeutic interventions delivered to children and families in their homes
and other community settings to improve youth and family functioning and
prevent out-of-home placement in inpatient or psychiatric residential treat-
ment facility settings.” Second, intensive behavioral services must also in-
volve one of ten specified components or interventions.
Defendants now appeal that class certification.
II.
“It is elementary that in order to maintain a class action, the class
sought to be represented must be adequately defined and clearly ascertaina-
ble.” DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970). And “the
touchstone of ascertainability is whether the class is ‘sufficiently definite so
that it is administratively feasible for the court to determine whether a par-
ticular individual is a member.’” Brecher v. Republic of Argentina, 806 F.3d
2
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No. 24-30244
22, 24 (2nd Cir. 2015) (quoting 7A Wright & Miller, Federal Practice
and Procedure § 1760 (3rd ed. 1998)).
We conclude that the definition of intensive behavioral services set
forth by the district court on remand is still too “amorphous or imprecise”
to permit a class action. John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443,
445 n.3 (5th Cir. 2007) (cleaned up).
Start with the first prong of the proposed definition. A countless num-
ber of medical treatments are delivered to avoid “placement in inpatient . . .
settings.” And there is no clear line between what supports “youth and fam-
ily function” and what does not.
As for the second prong, four of the ten specified interventions pre-
sent similar line-drawing challenges—namely, “[i]mprovement of self-man-
agement of symptoms”; “[s]upport of the development, maintenance, and
use of social networks, including the use of natural and community re-
sources”; “[s]upport to address behaviors that interfere with a child’s or
youth’s success in achieving educational and vocational objectives in
school”; and “[i]mplementation of risk reduction and crisis prevention strat-
egies.”
We leave it in the capable hands of the district court to determine
more precise and administrable criteria for class membership. Because De-
fendants’ other claims depend on the definition of the class and subsequent
proceedings, we do not address them now. See Phillips, 2023 WL 334010, at
*3.
***
We vacate and remand to the district court for further proceedings.
3
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No. 24-30244
Dana M. Douglas, Circuit Judge, dissenting:
This is an undeniably difficult case, as evidenced by the now back-to-
back decisions of our court vacating and remanding on the issue of class
ascertainability. Although the majority opinion holds that the district court
again got it wrong, I respectfully disagree and therefore dissent.
I
A
The Medicaid Act establishes a jointly financed “cooperative federal-
state program through which the federal government provides financial aid
to states that furnish medical assistance to eligible low-income individuals.”
S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 585 (5th Cir. 2004). States may
choose whether to participate in Medicaid, but if they do, they “must comply
with certain requirements imposed by the Act and regulations of the
Secretary of Health and Human Resources.” Id. at 586. Among those
requirements, a participating state must ensure access to early and periodic
screening, diagnostic, and treatment services (“EPSDT”) for individuals
under the age of twenty-one. 42 U.S.C. § 1396d(a)(4)(B). The EPSDT
benefit “is designed to assure that children receive early detection and care,
so that health problems are averted or diagnosed and treated as early as
possible.” Ctrs. for Medicare & Medicaid Servs., EPSDT — A Guide for
States, 1 (2014), https://www.medicaid.gov/medicaid/benefits/downloads/
epsdt-coverage-guide.pdf. In essence, EPSDT requires states to offer “the
right care to the right child at the right time in the right setting.” Id.
B
Plaintiffs are minor children in Louisiana who are Medicaid recipients
with diagnosed mental illnesses and conditions. They sued the Louisiana
Department of Health (the “Department” or “LDH”) on behalf of
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themselves and a putative class of similarly situated Medicaid-eligible
children. Plaintiffs allege that LDH has consistently failed to provide a
statewide mental health system of intensive home- and community-based
services (“IHCBS”) necessary to treat their conditions, as required by
Medicaid’s EPSDT mandate. 1 Instead, the Department allegedly has
implemented a fragmented and uncoordinated system with gaps in service
coverage, availability, and accessibility; a lack of coordination between and
among behavioral health providers and child-serving systems; and minimal
medication management with infrequent counseling. Medicaid-eligible
children requiring intensive mental health care are therefore often left
untreated and, when they inevitably experience mental health crises, forced
to seek emergency care or institutionalization in psychiatric facilities away
from their families.
The district court initially certified the class to include all Medicaid-
eligible youth under the age of twenty-one in Louisiana who have been
diagnosed with a mental health or behavioral disorder and had been
recommended IHCBS, which the court defined as “intensive care
coordination, crisis services, and intensive behavioral services and supports
that are necessary to correct or ameliorate Plaintiffs’ mental illnesses or
conditions.” A.A. ex rel. P.A. v. Phillips, 339 F.R.D. 232, 236, 249 (M.D. La.
2021) (citation modified). We subsequently vacated that certification for lack
of ascertainability and remanded with instructions for the district court “to
clarify which services are included in the term IHCBS.” See A.A. ex rel. P.A.
_____________________
1
Plaintiffs also brought claims for violations of the Americans with Disabilities Act
of 1990, the Rehabilitation Act of 1973, and the reasonable promptness provisions of the
Medicaid Act, but the district court dismissed those claims during the pendency of this
appeal.
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v. Phillips, No. 21-30580, 2023 WL 334010, at *3 (5th Cir. Jan. 20, 2023) (per
curiam) (unpublished).
On remand, the parties agreed upon definitions for the “intensive care
coordination” and “crisis services” components of IHCBS. The parties’
sole disagreement thus centered on the meaning of “intensive behavioral
services.” Ultimately, in its amended class certification order, the district
court adopted a definition proposed by Plaintiffs:
Intensive Behavioral Services . . . mean[s] “therapeutic
interventions delivered to children and families in their homes
and other community settings to improve youth and family
functioning and prevent out-of-home placement in inpatient or
psychiatric residential treatment facility settings,” specifically
consisting of [ten] discrete “components” (interventions):
1) “Medically necessary individual and family behavioral
health counseling and therapy in the home;
2) Skill-based interventions for the remediation of behaviors
or improvement of symptoms, including, but not limited to,
the implementation of a care plan and/or modeling
interventions for the child’s/youth’s family and/or
significant others, to assist them in implementing the
strategies;
3) Interventions that facilitate the development of adaptive
skills to improve self-care, self-regulation and to ameliorate
other functional impairments by intervening to decrease or
replace non-functional behavior that interferes with daily
living tasks or to avoid exploitation by others;
4) Development of skills or replacement behaviors that allow
the child or youth to fully participate in the Child and
Family Team (a team composed of the youth, family
members, natural supports, and the behavioral health and
other professionals caring for the youth) and service plans;
6
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5) Improvement of self-management of symptoms;
6) Education of the child/youth and/or their family or
caregiver(s) about, and how to manage the child’s/youth’s
mental health disorder or symptoms;
7) Support of the development, maintenance, and use of social
networks, including the use of natural and community
resources;
8) Support to address behaviors that interfere with a child’s or
youth’s success in achieving educational and vocational
objectives in school;
9) Intensive therapeutic de-escalation interventions that
restore personal and situational safety; and,
10) Implementation of risk reduction and crisis prevention
strategies.”
Am. Class Certification Order at 14–15, A.A. ex rel. P.A. v. Harrington, No.
21-30580 (M.D. La. Nov. 30, 2023), ECF 187, 14–15.
II
Our task today is to determine whether the class certified by the
district court is “adequately defined and clearly ascertainable,” which
requires that it be neither “amorphous” nor “imprecise.” Braidwood Mgmt.,
Inc. v. EEOC, 70 F.4th 914, 933 n.36 (5th Cir. 2023) (first quoting
DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (per curiam); and
then quoting John v. Nat’l Sec. Fire & Cas. Co., 501 F.3d 443, 445 n.3 (5th
Cir. 2007)). The majority opinion holds that the amended class remains
incapable of precise definition, ante at 3, but its reasoning is flawed in several
respects.
As an initial matter, the majority opinion dissects the district court’s
adopted definition of intensive behavioral services into a two-pronged test.
Ante at 2–3. But nothing in the district court’s decision suggests that its
7
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definition imposes separate, disjunctive requirements. Rather, the district
court set forth an overarching definition for intensive behavioral services—
“therapeutic interventions delivered to children and families in their homes
and other community settings to improve youth and family functioning and
prevent out-of-home placement in inpatient or psychiatric residential
treatment facility settings”—and then it limited its definition to the ten
specifically delineated “therapeutic interventions” or “components.” In
other words, what the majority opinion deems as two separate “steps” for
defining intensive behavioral services is for all intents and purposes simply
one comprehensive step.
The shortcomings of the majority opinion’s bifurcated interpretation
become apparent in its own reasoning. In discussing “the first prong of the
proposed definition,” the majority opines that “a countless number of
medical treatments” would fall under the definitional umbrella for intensive
behavioral services. Ante at 3. That is true enough if the first portion of the
district court’s definition is read in isolation. But that was clearly not the
intent of the district court, which, within the same sentence, expressly
limited the number of qualifying “therapeutic interventions” to those ten
enumerated components. We should not fault the district court for a lack of
precision within the broader definition when that definition was always
meant to be read “with reference to [the] set of [ten] discrete behavioral
health interventions.” Am. Class Certification Order, supra, at 15.
Moreover, the majority opinion takes issue with the ascertainability of
four specific interventional components (i.e., Numbers 5, 7, 8, and 10), but it
does so without explanation or elaboration. In my view, it is not reasonable
to expect the district court on remand to craft an ascertainably clear
definition when our instructions themselves are unduly vague. While brevity
8
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is a canon of good legal writing, 2 it should not cost us clarity in our edicts.
We owe more forthright and useful guidance not only to the district court but
also to the litigants. Cf. Altria Grp., Inc. v. Good, 555 U.S. 70, 98 (2008)
(Thomas, J., joined by Scalia, C.J., and Alito, J., dissenting) (“We
owe far more to the lower courts, which depend on this Court’s guidance,
and to litigants, who must conform their actions to the Court’s [holding].”);
United Bhd. of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 413
(1947) (Frankfurter, J., dissenting, with Vinson, C.J., and
Burton, J., concurring in result) (“The lower courts must apply the law
as laid down by this Court and we owe them clarity of pronouncement.”).
This aside, I nevertheless disagree with the ultimate ascertainability
determination reached by the majority opinion. All ten interventional
components provide objective criteria upon which the court may readily
identify class members. As the district court explained, it can mechanically
determine whether a person qualifies as a member of the class by looking to
that person’s medical records to see if a healthcare provider has
recommended an intervention that falls within one of those discrete
components of intensive behavioral services. For instance, the district court
can ascertain whether a provider’s recommendation for a particular
intervention qualifies as a recommendation for “individual and family
behavioral health counseling and therapy in the home” or for “[s]upport to
address behaviors that interfere with a child’s or youth’s success in achieving
educational and vocational objectives in school.” The district court, in its
discretion, determined that it could conduct this inquiry without speculation
or subjectivity.
_____________________
2
See John Minor Wisdom, Wisdom’s Idiosyncrasies, 109 Yale L.J. 1273, 1278
(2000).
9
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Additionally, the district court derived the ten specific components
from a declaration submitted by Plaintiffs from Dr. Richard N. Shepler—a
clinical psychologist with more than forty years of practical and supervisory
experience providing and implementing statewide intensive mental health
interventions to Ohio youth. The Department’s own expert, Dr. Roxanne
Kennedy, agreed with the description of the substance of intensive behavioral
services set forth in Dr. Shepler’s declaration, including the ten
interventional components. 3 Thus, because “[t]he actual practitioners (and
experts) plainly understand what is meant by the term Intensive Behavioral
Services,” the district court determined that “it is feasible . . . to objectively
sift through who is a class member and who is not.” Am. Class Certification
Order, supra, at 15.
Because the district court’s conclusion was not based on an erroneous
view of the law or a clearly erroneous assessment of the evidence, nor would
all reasonable persons reject the district court’s view, I would hold that it did
not abuse its discretion in adopting this definition of intensive behavioral
services. See Yates v. Collier, 868 F.3d 354, 359 (5th Cir. 2017); Union Asset
Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 638 (5th Cir. 2012).
Accordingly, I respectfully dissent.
_____________________
3
Compare Ex. A: Decl. of Richard N. Shepler at 9–11, A.A. ex rel. P.A. v. Harrington,
No. 21-30580 (M.D. La. Aug. 31, 2023), ECF 181-1, 10–12 (Dr. Shepler listing the
interventional components within a section entitled “THE SUBSTANCE OF
‘INTERVENTIONAL BEHAVIORAL SERVICES’”), with Ex. B: Decl. of Roxanne
Kennedy at 7, A.A. ex rel. P.A. v. Harrington, No. 21-30580 (M.D. La. Aug. 31, 2023), ECF
181-2, 8 (Dr. Kennedy expressing “agree[ment] with certain aspects of Dr. Richard
Shepler’s expert declaration,” including “the description of the substance of ‘intensive
behavioral services’”).
10