Indiana nursing home case before Supreme Court could affect millions
When Susie Talevski of Valparaiso, Indiana, sued the agency that managed her elderly father’s care before he died, she hoped to get justice for her family.
She didn’t expect the case would grow into a national bellwether. A ruling against her could strip millions of vulnerable Americans of their power to hold states accountable when they do not receive benefits allowed by law.
“This case has taken on really a life of its own, way beyond what I could have foreseen,” Talevski said.
She filed a lawsuit in 2019 in which she said her father’s rights were violated at a nursing home where he lived to get care for his dementia.
“He went from being able to walk and talk … to not being able to move,” Talevski said. The nursing facility “treated my dad like trash, like a dog. In fact, dogs are treated better than that.”
In court filings, the Talevski family says Gorgi Talevski was overmedicated to keep him asleep, his dementia wasn’t properly managed, and he was involuntarily transferred to different facilities hours from the family’s home, accelerating his decline. He died in October 2021.
Talevski sued the Health and Hospital Corp. of Marion County, the Indiana public health agency that owns the nursing facility. HHC would not to comment on the case.
Previously denying any wrongdoing, it has said in court documents that Gorgi Talevski was violent and sexually aggressive, which affected his care. It tried to get the case dismissed, saying Talevski didn’t have the right to sue. But federal courts said the lawsuit could move forward.
So the public health agency made an unexpected move. It took the case to the nation’s highest court and posed a sweeping question: Should people who depend on initiatives funded in part by the federal government — such as Medicaid and programs that provide services for nutrition, housing and disabilities — be allowed to sue states when they believe their rights have been violated?
A ruling in favor of the HHC could mean millions of Americans who rely on federal assistance programs would lose that right.
“The reach of an adverse decision would be catastrophic,” said Jane Perkins, an attorney with the National Health Law Program. “It would leave these programs really standing out there without a true enforcement mechanism.”
HHC of Marion County owns and operates 78 skilled-nursing facilities across Indiana in a public-private partnership with American Senior Communities.
The answer to the question of whether people who depend on federal assistance programs can sue over rights violations has been a settled legal precedent for decades, according to Perkins, who has litigated numerous civil rights cases for Medicaid beneficiaries.
So she was shocked when she learned the Supreme Court had chosen to hear this case. The high court is asked to review nearly 7,000 cases every year and often agrees to look at only 1% to 2% of them.
Perkins said she sees parallels between this case and the Supreme Courts recent Dobbs decision overturning the constitutional right to an abortion.
“The idea that the court would accept this case and accept that question of whether you can ever enforce these laws is of concern,” Perkins said. “The recent court decisions — Dobbs in the abortion context coming to mind — shows the court is willing to set aside precedent.”
Since the Supreme Court agreed to look at the case, at least 25 entities have filed amicus briefs, which provide information from people not directly involved in a case. Most have sided with the Talevskis — including members of Congress such as House Speaker Nancy Pelosi and Majority Whip James Clyburn, AARP, American Cancer Network,
American Public Health Association, and Children’s Health Care Providers and Advocates.
Marion County HHC is represented by Lawrence Robbins, who represented Christine Blasey Ford during the confirmation hearing of Justice Brett Kavanaugh. Talevski is represented by Andrew Tutt of the firm Arnold & Porter. Recently, Tutt argued and won a case before the Supreme Court that safeguarded the reemployment rights of thousands of veterans and service members.
Programs such as Medicaid that rely on federal money Congress sends to states typically come with requirements that states are supposed to follow to receive and use the funds. Civil rights lawsuits are one of the primary enforcement mechanisms that beneficiaries of those programs can use to hold state agencies accountable if they believe the agencies violated their rights or failed to provide entitled services.
There are other means of oversight, which supporters of the Indiana state agency’s petition tout as viable alternatives to lawsuits. One is monitoring by the U.S. Department of Health and Human Services. The agency can investigate and threaten to withhold funding from state programs that fail to comply with federal provisions. But this usually involves lengthy legal processes that can end up stalling benefits to patients instead of helping them.
If HHS “tries to turn off the money, the state could take them to court immediately and get an injunction,” arguing that halting federal funds would cause irreparable harm, said Sara Rosenbaum, a professor of health law and policy at George Washington University. “People [would be] left totally without their benefits, or the providers are left totally without their payments.”
Former senior HHS officials say federal oversight is far from sufficient and that civil rights lawsuits remain a crucial enforcement mechanism. Private enforcement through lawsuits is indispensable for nursing home residents, they say, especially in places like Indiana, where the state owns the most nursing homes.
In a court brief, the former officials said a decision in favor of HHC could raise the risk of waste, fraud and abuse of Medicaid funds, leading to underenforcement and leaving “millions of individuals, providers and other beneficiaries more vulnerable to violations of their statutory rights.”
Nearly 83 million Americans — a quarter of the U.S. population — are enrolled in Medicaid. This means HHS oversees more than half a trillion dollars in spending across all states and U.S. territories — and the federal agency, the former officials argue, lacks the logistical and practical capacity to “meaningfully remedy individual violations in many cases.”
Indiana Attorney General Todd Rokita is among those publicly supporting the state’s stance. In a court brief filed along with 21 other Republican attorneys general, Rokita said civil rights suits burden states, crippling them with legal expense, just to line the pockets of lawyers rather than benefit Medicaid enrollees.
“The state has litigated 1,200 civil rights cases just in the last three years,” Rokita said in a written statement.
Legal experts said the number Rokita cites is misleading because it lumps together all civil rights lawsuits, not just those that have to do with federal entitlement programs, which are at the heart of this case.
If the Supreme Court rules in favor of HHC, lawsuits like a 2015 case that won Medicaid recipients the right to an expensive hepatitis C drug might not be possible in the future, said Emily Munson, an attorney with the advocacy group Indiana Disability Rights.
When states tried to cap the benefits of people with disabilities in Indiana and across the nation, civil rights lawsuits have helped patients gain access to things like in-home support with day-to-day tasks, known as attendant care.
Munson has litigated similar cases. She has a disability and said the prospect of a Supreme Court decision in favor of Marion County terrifies her.
“I rely on Medicaid for attendant care, for wheelchair repairs,” Munson said, “and losing the ability to go to federal court if need be is very scary.”
During the latest HHC board of trustees meeting in mid-October, the monumental case was absent from the agenda. But when the meeting opened for public comment, state representatives, patients and advocates seized the opportunity to voice their concerns.
They had one demand for the agency: withdraw its Supreme Court petition.
State Rep. Robin Shackleford, D-Indianapolis, and others in the Indiana Legislature have been vocal about their concerns. Shackleford said many of her constituents are on Medicaid and SNAP, the U.S. Department of Agriculture’s supplemental nutrition program.
“They would be horrified … if they knew the board was the driver behind removing their rights,” Shackleford said.
This story is part of a partnership that includes Side Effects Public Media — a public health news initiative based at WFYI, —NPR and KHN (Kaiser Health News), a national newsroom that produces in-depth journalism on health issues.