Las Vegas Review-Journal (Sunday)
Supreme Court case’s outcome could curtail rights of Medicaid patients
Gorgi Talevski did not live long enough to see his case argued before the U.S. Supreme Court this past month. A Macedonian-born resident of Indiana, Talevski operated a crane for three decades, raised a family and loved to dance before his dementia deepened, and he died last year.
But the court’s decision, expected in spring, could have profound effects for tens of millions of beneficiaries of federal safety net programs, including those that provide health care, housing, education services and heating aid. If the court rules against the estate of Talevski, participants in many federal entitlement programs could lose the right to go to court when they believe a state, city or county has violated their rights in the administration of those programs.
For example, the courthouse doors could be closed to a person who is eligible for Medicaid but denied benefits, or a child with disabilities who should have been screened for lead poisoning but wasn’t. They could be closed to Americans with lower incomes who qualified for, but didn’t receive, food stamps.
Beneficiaries instead would have to seek redress from the states, cities or counties they think broke the law, or from federal agencies, which have limited capacity to investigate and address state violations of individual rights.
Based on questions justices asked during the Supreme Court’s oral arguments, some legal observers think the court might issue a narrower ruling, barring lawsuits only from Medicaid nursing home residents who sue under the federal law known as the nursing home bill of rights.
Indiana and 21 other Republican-leaning states, in a friend of the court brief, have urged the Supreme Court to issue a broader decision, blocking all beneficiaries of entitlement programs from suing if a state or municipality denies them services they are eligible for or violates their rights. The states argue federal funding for entitlement programs is a contract between federal and state or local governments and doesn’t give a third party — such as beneficiaries — grounds for legal action.
John Bursch, senior counsel of the anti-abortion organization Alliance Defending Freedom, which also filed an amicus brief opposing Talevski, reiterated the argument that individuals should not be able to interfere with a contractual relationship between the federal and state governments.
“If the terms are changed,” as a result of a private lawsuit, Bursch said, “that puts the states in an unfair position.” He said his organization joined the lawsuit to stop individuals from suing states that deny Medicaid reimbursement to abortion providers such as Planned Parenthood.
Many other officials and groups reject the contract argument. Through their own amicus briefs, they have asked the court to follow a half-century of precedent and continue to allow such lawsuits. They include a mostly Democratic group of present and past members of Congress, former federal health officials, medical organizations, community health centers, disability rights advocates, consumer groups, the AARP and others. They say banning lawsuits would be a devastating blow to individual rights.
“Neither federal nor state authorities have sufficient resources to provide complete oversight over the funding funneled into state programs,” the current members of Congress wrote in their amicus brief. “Instead, their attention must often be dedicated to remedying systemic abuses, while preserving the option for aggrieved persons to seek individual remedies in federal court.”
One prominent health legal scholar said a ruling against Talevski could be as consequential for safety net programs as the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision was for abortion rights.
“It is an existential case,” said Sara Rosenbaum, founding chair of the Department of Health Policy at George Washington University. “It will define whether or not Medicaid beneficiaries truly have a right to their coverage.
“The expectation that rights can be enforced is crucial to having the rights to begin with,” she said.
Origins of the case
What Talevksi’s family initially regarded as a minor case has become a far-reaching one, said Susie Talevski, one of two daughters and a lawyer herself. That is not something they wanted, she said.
“It doesn’t feel good, knowing that if we lose, it will have such profound consequences for the most vulnerable people in the country,” she said in a telephone interview. “That is pretty scary. It’s pretty terrifying.”
By January 2016, Gorgi Talevski’s family determined that his deepening dementia made it impossible to care for him at home. They placed him in nearby Valparaiso Care and Rehabilitation, an Indiana nursing home run by the Health and Hospital Corp. of Marion County, a public health agency.
At that point, according to court documents, Talevski, who was nearing 80 years old, could still communicate in English and Macedonian, feed himself and recognize family members.
That changed quickly. Within months, he could no longer feed himself and seemed capable of understanding only Macedonian. The nursing home ascribed his deterioration to his advancing dementia, but his family was skeptical. They discovered that the nursing home, without their knowledge, had put Talevski on six psychotropic drugs. They hired a private neurologist, who got him off those drugs.
Meanwhile, the nursing home, claiming Talevski had become violent and sexually aggressive with staff and patients, repeatedly transferred him to another facility more than an hour away. At one point, his family said, the nursing home tried to transfer him to a facility two-and-a-half hours away. Eventually, Valparaiso Care refused to allow his return, the family said.
That’s when the family sued the Health and Hospital Corp., claiming the medications and transfers violated his rights under the Federal Nursing Home Reform Act, sometimes known as a bill of rights for nursing home patients. The law sets minimum standards of care that nursing homes must meet to receive Medicaid reimbursement, and it specifically prohibits drugging nursing home residents for “purposes of discipline or convenience.” It also forbids involuntary transfers except in certain circumstances.
The corporation’s board is appointed by the mayor of Indianapolis, and the Marion County Commission and the city-county council, both of which were majority Democratic.
The Health and Hospital Corp. did not agree to an interview, nor did Indianapolis Mayor Joe Hogsett, a Democrat. On the eve of the Nov. 8 oral arguments before the Supreme Court, the Indianapolis City-county Council passed a resolution urging the corporation to drop its appeal of the 7th U.S. Circuit Court of Appeals ruling in favor of the Talevskis.
‘Our only ammunition’
The statute the Talevskis and other beneficiaries of federal programs have wielded in lawsuits over the past 50 years is an 1871 law aimed at the Ku Klux Klan, which terrorized formerly enslaved people throughout the South. One of the law’s provisions, Section 1983, created a private right of action — a pathway to the courts — for individuals claiming a state violated their federal rights.
For decades, plaintiffs, especially Medicaid beneficiaries, have relied on Section 1983. Medicaid, which provides health care coverage for more than 80 million adults and children, is jointly administered and financed by the federal government and the states.
In Indiana alone, according to the American Civil Liberties Union, beneficiaries of federal safety net programs have used Section 1983 to impel the state to cover hepatitis C medications for Medicaid patients and to require medically necessary dental services. Beneficiaries and their families have relied on it to secure physical and occupational therapy for children with severe disabilities, such as cerebral palsy, and to gain services for severely disabled Medicaid recipients so they can live outside institutions.
In the Talevski case, the Health and Hospital Corp. surprised many by choosing not to argue the case on the narrow grounds of whether the Nursing Home Reform Act allowed individual residents to sue in federal court.
Instead, the corporation argued Section 1983 does not apply to the nursing home law, to Medicaid generally or to many other federal safety net programs, because all were enacted under the Spending Clause provision of the U.S. Constitution. That clause enables the federal government to create programs and give money to the states and local jurisdictions to manage those programs.
The Health and Hospital Corp. argues that those spending programs create a contract between the federal and state or local governments that recognizes no rights for beneficiaries. If there are violations, the corporation argues, investigation and enforcement are up to government entities, such as the federal Centers for Medicare and Medicaid Services.
Indiana Attorney General Todd Rokita, a Republican, argues that allowing private citizens to sue interferes with the ability of state and other governments to run their affairs. The court, Rokita argues, should “set forth the principled rule that private actors may not use Section 1983 to enforce implied rights in Spending Clause statutes.”
Rokita’s office did not respond to a request for an interview.
Talevski and allies argue that a half-century of litigation has established the legal rights of beneficiaries to seek relief in the courts. Without the ability to sue, they say, beneficiaries would have no realistic way to challenge violations of their rights.
“This case gets to the heart of folks being able to realize the benefits that Congress intended, because there really is not another viable process,” said Melissa Keyes, executive director of Indiana Disability Rights, which also filed a friend of the court brief.
Kaitlin A. Kerr-heidenreich, a disability rights advocate in Pittsburgh who co-founded an organization that helps Medicaid beneficiaries navigate the system, said if the court rules against Talevski, her organization would lose all its leverage. The right of her clients to go to court is what helps her win concessions.
“Our only ammunition to enforce is the threat of a lawsuit, and the only reason we have that is because of 1983,” Kerr-heidenreich said. “It terrifies me to think of what happens when we only have empty threats.”