(CN) — New Mexico’s Human Services Department asked a Tenth Circuit panel Tuesday to vacate a lower court’s injunction mandating it take steps to ensure medically fragile children receive the proper at-home nursing care they’re entitled to under the state’s Medicaid program, arguing that a national nursing shortage makes that mission impossible.
“The plaintiffs in this case are extraordinarily sympathetic,” department attorney Patricia Williams told a three-judge panel in Denver. “Medically fragile children who hover on the brink of death. [But sympathy is] not the court’s role."
“Reason is the soul of all law. Not emotion,” she added.
As much as the department wants to help these children, she said, the department’s hands are tied.
Disability Rights New Mexico and the families of three medically fragile children sued the state’s Human Services Department in an April 2022 class action, claiming that their children weren’t receiving the required number of at-home nursing hours they need under Medicaid.
The department contracts with three health care providers — Western Sky, New Mexico Blue Cross Blue Shield and Presbyterian Health — that hire nurses to provide Medicaid services to New Mexico patients. The plaintiffs claim that those providers are pocketing extra Medicaid money given to them by the Human Services Department not spent on nurses.
Meanwhile, the plaintiffs say, the roughly 50 children in New Mexico deemed medically fragile — children who need around-the-clock care from a certified nurse — aren’t receiving the amount of care they need. One of the child plaintiffs died over the course of this litigation. The 50 or so children have recently been certified as a class, though the appeal on this injunction applies only to two individual children and their families.
A federal judge issued a preliminary injunction in May 2023, ordering the department to “take additional immediate and affirmative steps” to provide the plaintiffs with the level of care already approved by the department, as required by Medicaid.
The judge offered suggestions to do so, including negotiating with the health care providers for potential solutions, devising ways to attract qualified nurses from other state, increasing monitoring of the plaintiffs’ weekly shortfalls or taking any other administrative action that would increase the number of nursing hours provided to the plaintiffs.
Williams told the panel Tuesday that the order is “impermissibly vague” because the department is already doing what the order tells them to do. An injunction that simply tells a party to follow a pre-existing law that already governs its actions is unenforceable, she said.
U.S. Circuit Judge Michael Murphy, a Bill Clinton appointee, questioned what would happen if, rather than instructing the department to do its best to provide the hours, the injunction simply said to “just do it.”
“Then it’s impossible to comply,” Williams answered. “There are not enough nurses to provide the hours.”
In the department’s appellant brief, Williams pointed to testimony from former department head David Scrase, who confirmed that a longstanding national nursing shortage, exacerbated by Covid-19, left at-home care providers without the necessary numbers to fulfill the required hours of care. The pandemic pulled large numbers of nurses away from at-home care and into hospitals, and stress of pandemic care forced others out of the profession entirely.
“This is not a disputed fact,” Williams said.
“Well, the extent of the shortage is an issue, isn’t it?” Murphy asked. “If you offer higher salaries, you could maybe get the nurses, notwithstanding the shortage.”
Williams said given the national shortage, offering higher pay to work in New Mexico rather than other states would be more like “pirating nurses.”
“We call that competition, don’t we?” Murphy said. He reminded Williams that while the department itself cannot raise nurse salaries, it can demand that the health care providers do so.
That’s exactly what the plaintiffs want.
“There should be nurses available,” Nancy Simmons, attorney for the plaintiffs, told the panel. “Why aren’t they coming? They aren’t getting paid enough.”
While she acknowledged the nationwide nursing shortage, Simmons pointed to a 2023 New Mexico Legislative Finance Committee study that found a nursing surplus in Bernalillo County, where the two plaintiff families live.
She also argued that the defendants failed to prove there’s nothing that can be done about the shortage. Even among the health care providers that the department contracts with, she said, there are discrepancies in the nursing pay rates. She said the department should order those providers to set higher minimum pay rates to encourage nurses to take at-home nursing contracts.
Murphy paraphrased Williams, suggesting the state should “kick ‘em in the rear end.”
U.S. Circuit Judges Carolyn McHugh, a Barack Obama appointee, and Joel Carson, a Donald Trump appointee, rounded out the panel.
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