The Supreme Court will hear nursing home cases that could affect millions

When Susie Talevski sued her elderly father’s care agency before he died, she hoped to get justice for her family. He didn’t expect the case to become a national bellwether. A ruling against him could strip millions of vulnerable Americans of their ability to hold states accountable if they don’t receive benefits authorized by law.

“This case really took a different path than I could have ever imagined,” said Talevski, a resident of Valparaiso, Indiana.

Talevski filed a lawsuit in 2019 alleging her father’s rights were violated at a nursing home where he lived to care for his dementia.

“He went from being able to walk and talk … to not being able to move,” Talevski said. “[The nursing facility] My father was treated like garbage, like a dog. In fact, dogs are treated better than that.”

In court filings, the Talevski family claims Gorgi Talevski was overmedicated to keep him asleep, his dementia was not properly managed, and he was involuntarily moved to various facilities hours away from the family’s home, which hastened his decline. Her father died a year ago in October.

Talevski sued the Health and Hospitals Corporation of Marion County, Indiana’s public health agency that owns the nursing facility. The company, known as HHC, declined to comment on the case but denied any wrongdoing. In court documents, it argued that Gorgi Talevski was violent and sexually aggressive, which affected his care. It tried to dismiss the suit, saying Talevski lacked standing to sue. But the federal court said the case could go forward.

So, the public health agency took an unexpected step. That took the case to the nation’s highest court and raised an obvious question: Should those who rely on initiatives partially funded by the federal government — such as Medicaid and programs that provide nutrition, housing and disability services — be allowed to sue states? ? When they believe their rights have been violated?

A ruling in favor of HHC could mean millions of Americans who rely on federal assistance programs will lose that right. Oral arguments are scheduled to be heard in the Supreme Court on November 8.

“The reach of an adverse decision would be catastrophic,” said Jane Perkins, an attorney with the National Health Law Program. “It will leave these programs standing there without real enforcement.”

HHC of Marion County owns and operates 78 skilled nursing facilities throughout Indiana in a public-private partnership with the American Senior Community.

The question of whether people dependent on federal assistance programs can sue for rights violations has been settled by decades of precedent, said Perkins, who has litigated numerous civil rights cases for Medicaid beneficiaries.

For that reason, he was shocked when he learned that the Supreme Court had chosen to hear the case. The Supreme Court is asked to review about 7,000 cases each year, and they often agree to hear only 1%-2% of them.

Perkins said he saw parallels between the case and recent Supreme Court decisions that struck down the constitutional right to abortion.

“The idea that a court will take this case and take up the question of whether you can enforce these laws is troubling,” Perkins said. “Recent court decision- Dobbs The abortion context comes to mind—showing that courts are willing to set aside precedent.”

Since the Supreme Court agreed to hear the case, at least 25 entities have submitted amicus briefs, which provide the court with information from individuals not directly involved in a case. Many have sided with Talevski — including members of Congress such as House Speaker Nancy Pelosi and Majority Whip James Clyburn, AARP, the American Cancer Network, the American Public Health Association, and children’s health care providers and advocates. The Marion County HHC will be represented by Lawrence Robbins, who has argued 19 cases before the Supreme Court, and Christine Blasey Ford during Justice Brett Kavanagh’s confirmation hearing. Talevsky will be represented by Andrew Tutt of Arnold & Porter. Recently, Tutt argued and won a case before the Supreme Court that protected the reemployment rights of thousands of veterans and service members.

Programs that depend on federal money flowing from Congress to states, like Medicaid, usually come with a set of provisions or requirements that states must follow in order to receive and use the funds. Civil rights lawsuits are one of the primary enforcement mechanisms that beneficiaries of these programs have to hold state agencies accountable if the agencies violate their rights or fail to provide services to which they are entitled.

There are other avenues of oversight, which proponents of the Indiana state agency’s petition claim are viable alternatives to litigation. One is federal monitoring by the Department of Health and Human Services. The agency can investigate and threaten to cut off funding from state programs that fail to comply with federal regulations. But that usually involves lengthy legal processes that can be counterproductive, cutting off benefits rather than helping individual patients.

“If [HHS] By trying to cut off the money, states can immediately take them to court and get an injunction,” arguing that cutting off federal funding would cause irreparable harm, said Sarah Rosenbaum, a professor of health law and policy at George Washington University. “Man [would be] are left without their benefits entirely, or providers are left entirely without their payments.”

Former senior HHS officials say federal oversight is not enough and that civil rights lawsuits remain an important enforcement mechanism. Individual enforcement through litigation is essential for nursing home residents, they say, especially in places like Indiana where the state owns the most nursing homes.

Former officials said in a court brief that a decision in favor of HHC would potentially increase the risk of waste, fraud and abuse of Medicaid funds, leading to widespread under-implementation and putting “millions of individuals, providers and other beneficiaries at greater risk. Their statutory violation of rights.”

About 83 million Americans, a quarter of the US population, are enrolled in Medicaid. That means HHS oversees more than half a trillion dollars in spending across all states and US territories — and the federal agency, former officials argue, lacks the logistical and practical capacity to “meantly remedy many private breaches.”

Indiana’s attorney general, Todd Rokita, is among allies publicly supporting the state’s position. Rokita, in a court brief filed with 21 other Republican attorneys general, said civil rights cases burdened states and crippled them with legal costs, lining attorneys’ pockets rather than benefiting Medicaid enrollees.

“The state has filed 1,200 civil rights cases in the past three years,” Rokita said in a written statement.

One photo shows Emily Munson in a wheelchair at home  A dog is sitting next to him.
Emily Munson, an attorney with Indiana Disability Rights, said the premise of the Supreme Court’s case, Health and Hospital Corp. v. Talevsky, terrifies her. He filed an amicus brief in support of the Talevskis, outlining the case’s importance in enforcing rights for vulnerable populations.(Farah Youssery / Side Effects Public Media)

Legal experts told Side Impact that the number cited by Rokita is highly misleading because it combines all civil rights cases, not just the federal entitlement programs that are at the center of the case.

If the Supreme Court rules in HHC’s favor, cases like the 2015 case that won Medicaid recipients the right to an expensive hepatitis C drug may not be possible in the future, said Emily Munson, an attorney with the advocacy group Indiana Disability Rights.

When states tried to cap benefits for people with disabilities in Indiana and across the country, civil rights cases helped patients gain access to things like help at home with daily tasks, known as attendant care.

Munson made a similar case. She herself is disabled, and the prospect of a Supreme Court decision in Marion County’s favor terrifies her.

“I rely on Medicaid for attendant care, for wheelchair repairs,” Munson said, “and losing the ability to go to federal court if necessary is very scary.”

During the last HHC Board of Trustees meeting in mid-October, the memorial case was absent from the agenda. But when the meeting is open to public comment, state representatives, patients and advocates use the opportunity to voice their concerns.

They had one demand from the organization: withdraw the Supreme Court petition.

State Rep. Robin Shackleford, an Indianapolis Democrat, and others in the Legislature have been vocal about their concerns. Shackleford said much of his material is in Medicaid and SNAP, the 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.

A photo shows a man inside the house holding a sign that reads, "HHC recuses Talevski from SCOTUS"
Michael Oles, national field director for the advocacy organization Our Revolution, holds a Health and Hospitals Corporation sign during the Marion County Board of Trustees meeting on Oct. 18, 2022.(Farah Youssery / Side Effects Public Media)

This story is part of a partnership that includes Side Effects Public Media — a public health news initiative based on WFYI, NPR and KHN.

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