Sharpening the Lens of Ascertainability:
B. v. Harrington and the Fifth Circuit’s Demand for Precision in Medicaid EPSDT Class Actions

1. Introduction

B. v. Harrington, No. 24-30244 (5th Cir. Aug. 12, 2025), is the latest skirmish in long-running litigation over Louisiana’s compliance with the Medicaid Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) mandate for children with serious mental-health needs. Four named minors—B.B., D.D., E.E., and G.G.—sued the Louisiana Department of Health (“LDH”) and its Secretary, Michael Harrington, alleging systemic failure to provide intensive home- and community-based mental-health services (“IHCBS”).

The district court twice certified a statewide class, but each time the Fifth Circuit vacated the order for want of a “clearly ascertainable” class definition. The appellate court’s 2025 decision tightens its already exacting approach to ascertainability, holding that the term intensive behavioral services—one of the three core IHCBS components—remained too amorphous despite the lower court’s attempt to anchor it in ten enumerated interventions. The panel majority (Judges Ho and Engelhardt) again remanded, while Judge Douglas penned a detailed dissent defending the district court’s handiwork.

2. Summary of the Judgment

• The Fifth Circuit vacated the amended class-certification order.
• It held that the district court’s definition of intensive behavioral services did not allow an administratively feasible determination of class membership, flunking the ascertainability requirement of Rule 23.
• The court declined to reach defendants’ remaining arguments (typicality, commonality, etc.) because they turned on the yet-to-be-refined class definition.
• The matter was remanded with instructions to craft more precise and administrable criteria.
• Judge Douglas dissented, arguing the majority misconstrued the district court’s single, closed-ended definition and offered insufficient guidance for the next round.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970) – the Fifth Circuit’s seminal statement that a class must be adequately defined and clearly ascertainable. Harrington relies on DeBremaecker to reiterate that amorphous definitions doom certification.
2. John v. National Security Fire & Casualty Co., 501 F.3d 443 (5th Cir. 2007) – warns against amorphous or imprecise classes. Harrington cites John to condemn the open-textured language regarding family functioning and risk-reduction strategies.
3. Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015) – defines the touchstone of ascertainability as administrative feasibility. The Fifth Circuit adopts this articulation.
4. A.A. ex rel. P.A. v. Phillips, 2023 WL 334010 (5th Cir. Jan. 20, 2023) – the panel’s first remand in the same litigation; Harrington treats Phillips as law of the case, doubling down on the mandate that the three IHCBS sub-categories be separately and specifically defined.
5. Braidwood Mgmt. v. EEOC, 70 F.4th 914 (5th Cir. 2023) – re-affirms that classes must avoid subjective criteria. Though cited only in the dissent, Braidwood’s footnote on ascertainability underpins the majority’s framework.
6. S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004) – provides EPSDT background; invoked in the dissent to highlight Congress’s broad remedial purpose.

3.2 The Court’s Legal Reasoning

The majority homes in on Rule 23’s implied ascertainability prerequisite. Two analytic moves are pivotal:

1. Bifurcation of the Definition. The district court offered one long sentence defining intensive behavioral services and listed ten qualifying interventions. The majority artificially splits this into: (i) a general functional statement (therapeutic interventions … to improve youth and family functioning and prevent out-of-home placement) and (ii) a list of ten interventions. It then attacks each part separately. This segmentation magnifies ambiguity because the general statement, standing alone, sweeps in a countless number of medical treatments.
2. Line-Drawing Objections. Four of the ten interventions—self-management of symptoms, social-network supports, educational/vocational behavior supports, and risk-reduction/crisis prevention— allegedly present similar line-drawing challenges. The court faults the district court for not furnishing metrics to decide, e.g., when a given therapy session crosses the threshold into self-management improvement. The absence of objective inclusion/exclusion criteria, the majority says, would force the judge to delve into qualitative provider notes, defeating administrative feasibility.

3.3 Judge Douglas’s Dissent

Judge Douglas castigates the majority for a bifurcated interpretation never intended by the district court. She underscores the presence of provider-specific, record-based recommendations as an objective membership trigger—precisely the type of evidence Rule 23 contemplates. Emphasising concurrence between both sides’ experts on what constitutes intensive behavioral services, she concludes the trial court acted well within its discretion. The dissent also laments the majority’s vague instructions, warning that brevity … should not cost us clarity.

3.4 Likely Impact of the Decision

• Tactical Effect on Medicaid Litigation. Plaintiffs’ counsel nationwide will view Harrington as a cautionary tale: EPSDT or foster-care reform cases often describe services in functional, outcomes-oriented language; those definitions may now invite a fatal ascertainability challenge in the Fifth Circuit.
• Heightened Drafting Burden. District courts must insist on tight, checklist-style class definitions (e.g., CPT codes, service-modality codes, or formal Medicaid service names) rather than purpose-driven descriptions (to prevent institutionalisation, to improve functioning).
• Inter-Circuit Tension. Some circuits (e.g., Third, Eleventh) treat ascertainability as implicit but flexible, while others (First, Ninth) de-emphasise the doctrine. Harrington entrenches the Fifth Circuit among the strictest jurisdictions, setting the stage for a potential circuit split ripe for Supreme Court review.
• Substantive EPSDT Enforcement. Repeated procedural setbacks may delay or deter systemic EPSDT suits, indirectly blunting enforcement of children’s statutory entitlement to early and periodic treatment.

4. Complex Concepts Simplified

Ascertainability

The requirement that a class be defined with enough clarity that the court (or claims administrator) can decide, without individualised mini-trials, whether any given person belongs.
Think of it as a membership checklist: if you cannot tick “yes/no” quickly from objective data, the class is not ascertainable.

EPSDT

Short for Early and Periodic Screening, Diagnostic, and Treatment, a Medicaid benefit guaranteeing children under 21 the healthcare necessary to “correct or ameliorate” physical or mental conditions. States must cover services—even if not provided to adults—when medically necessary for a child.

Intensive Behavioral Services

A suite of robust, usually home-based mental-health interventions meant to avoid psychiatric hospitalization. Examples: in-home therapy multiple times per week, crisis-prevention planning, behavior-modification skills training.

Rule 23(b)(2) vs. Rule 23(b)(3)

Although not expressly discussed in the opinion, EPSDT systemic suits typically rely on Rule 23(b)(2) (injunctive relief) rather than monetary-damages (b)(3) classes. Ascertainability debates nevertheless spill over because the Fifth Circuit imports it as a threshold to all Rule 23 categories.

5. Conclusion

B. v. Harrington does not resolve whether Louisiana meets its EPSDT obligations; it clarifies—decisively—what cannot qualify as a class definition in the Fifth Circuit. The court demands objective, bright-line criteria derivable from existing records and shuns qualitative descriptors like improve family functioning.

For litigants, the message is unmistakable: draft first, fight later. Meticulous attention to procedural prerequisites may now be the single most important determinant of whether systemic Medicaid or civil-rights cases ever reach the merits.

Whether the heightened threshold promotes judicial efficiency or stymies Congress’s remedial design remains to be seen. What is certain is that Harrington sharpens the lens of ascertainability, compelling lower courts—and advocates—to focus that lens with near-clinical precision.