How the U.S. Supreme Court could end up blocking a key path to sue states

The U.S. Supreme Court will hear a case early next month that will determine if residents of publicly owned nursing homes that receive Medicaid funds can sue the facilities for violating their civil rights.

Advocates for the elderly, the poor and people with disabilities worry that the court’s decision could strip away the legal rights of millions of vulnerable Americans and lead to the shredding of the government safety net that reaches far beyond the Medicaid program. "It's a very consequential case,'' said Sara Rosenbaum, a professor of health law and policy at George Washington University. "What this would do, essentially, is to shut down the courts to the poorest Americans.”

The case, Health and Hospital Corporation of Marion County, Indiana v. Talevski, hasn’t received the attention that far-reaching legal battles typically draw. But the implications are enormous: at stake are judicial protections for nursing home residents in Medicaid-funded public facilities, as well as, potentially, those who rely on an array of other state-administered welfare programs funded by Congress, such as the children’s health insurance program, known as CHIP, and the Supplemental Nutrition Assistance Program.

In Florida, the Department of Veterans’ Affairs "operates eight skilled nursing facilities and one assisted living facility," according to its website. "All facilities are licensed by the Agency for Health Care Administration and inspected annually by AHCA and the U.S. Department of Veterans Affairs."

“Our network of state veterans’ homes accepts payment from many sources, to include Medicare and Medicaid; Medicaid accounts for about one quarter of our payments,” says Lt. Col. R. Steven Murray, USAF (Ret.), an FDVA spokesperson. “Our two newest veterans’ homes, which opened to residents a couple of months ago, do not take Medicare or Medicaid at present, but will later when their resident census reaches a particular threshold.”

Murray said other sources of income include the U.S. Department of Veterans Affairs, which covers “all costs of those residents who have service-connected disabilities rated 70%-100%,” resident co-pays and private insurance, among others.

Lawsuit alleges patient's rights were violated

Gorgi Talevski was 79 and suffering from dementia when he entered a county-run nursing home owned by Health and Hospital Corporation. His wife, Ivanka Talevski, filed a lawsuit alleging her husband’s rights were being violated, citing the Federal Nursing Home Reform Act, a “bill of rights” for patients in nursing homes that receive Medicaid funding.

Ivanka Talevski’s lawsuit was brought under Section 1983 of the U.S. Legal Code, which was passed in 1871 and allows individuals to bring legal action against state or local governments for civil rights violations. 

An appeals court agreed that Talevski had a right to sue under Section 1983, but the Health and Hospital Corporation appealed. Indiana and 16 other states filed a brief supporting the hospital corporation, arguing that private individuals who aren’t a party to the contract between the federal government and the states can’t use Section 1983 to bring their claims.

Another brief, filed by a coalition representing state, county and local government groups, argues that allowing individuals to sue could expose states to unknown legal risks down the road.

“Many local governments may simply decide it is not worth the increased risk of liability, and choose to get out of the nursing-home business,’’ the State and Local Legal Center wrote in a friend-of-the-court brief.

“That would not be good for patients: As numerous studies confirm, county-owned nursing homes are widely regarded as providing better patient outcomes than private alternatives, including private-equity-owned facilities," the brief adds. "The Court should carefully examine the significant down-stream consequences the Seventh Circuit’s decision could have on patients.”

Advocates say the stakes are enormous

But dozens of groups advocating for people with disabilities and the elderly filed briefs urging the Supreme Court not to scrap those protections. 

“Section 1983 gives nursing facility residents and their families a mechanism to enforce their rights against abuse and neglect in government-run facilities,’’ AARP and other advocacy groups wrote. “These legal rights are a matter of life and death for nursing facility residents. Even today, residents experience abuse, neglect, and dangerously poor care in many facilities. This abuse includes being chemically restrained for the staff’s convenience or illegally discharged into unsafe situations without notice.”

The Arc of the United States and other disability rights organizations said removing an individual’s ability to sue under Section 1983 would leave them without a tool to enforce their rights.

“Enforcement of Medicaid law is therefore unlikely without Section 1983 lawsuits,” the Arc’s brief states. “Non-enforcement of Medicaid would be an especially devastating outcome for people with disabilities, who depend on that program for services that are virtually inaccessible on the private market.”

Democratic members of Congress also weighed in with an amicus brief that argues against restricting a nursing home resident’s right to sue. The federal Nursing Home Reform Act was specifically drafted with the expectation that it gave residents the right to sue under Section 1983, the lawmakers state.

'At stake here is the legal right to sue'

“Without private actors identifying and elevating government failures, Congress will lose an important avenue for collecting information and addressing systemic issues that arise out of Spending Clause legislation,’’ they wrote.

“Overruling this Court’s long-standing precedent would mean states, localities, and local institutions may be largely unaccountable for their actions, particularly for rights violations of the most vulnerable citizens," the lawmakers' brief goes on to say. "Any decision altering the status quo would dramatically impede, if not decimate, the complementary oversight of these programs provided by private suits and potentially curtail future legislation that seeks to improve the lives of millions of Americans affected by federal-state cooperative programs.”

Rosenbaum, the professor at George Washington University, said she worries about the impact of the case on poor women and children. “What is at stake here is the legal right to sue,’’ she said. “The upshot is so many people could be vulnerable and have no recourse.”

The Supreme Court is scheduled to hear oral arguments on Nov. 8.