The Supreme Court is hearing a nursing home case that could affect millions

The Supreme Court is hearing a nursing home case that could affect millions

When Susie Talevski sued the agency that managed her elderly father's care before his death, she hoped to get justice for her family. She didn't expect the case to become a national landmark. A ruling against them could strip millions of vulnerable Americans of their power to hold states accountable when they fail to receive legally permitted benefits.

“This case has really taken on a life of its own, far beyond what I could have predicted,” 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 couldn't walk or talk anymore...he couldn't move," Talevski said. "[The nursing facility] treated my father like trash, like a dog. In fact, dogs are treated better."

In court papers, the Talevski family alleges that Gorgi Talevski was overdosed on medication to keep him asleep, his dementia was not properly treated and he was involuntarily moved hours away from the family home to various facilities, hastening his decline. Her father died a year ago, in October.

Talewski complained the Health and Hospital Corp. of Marion County, the Indiana public health agency that owns the nursing facility. The agency, known as HHC, declined to comment on the case but denies any wrongdoing. Court documents argued that Gorgi was Talevski violent and sexually aggressive, which affected his care. It sought to dismiss the case, saying Talevski did not have standing to sue. But federal courts said the lawsuit could move forward.

So the health department took an unexpected step. It took the case to the highest court in the country and asked a wide-ranging question: Should people who rely on initiatives partially funded by the federal government — such as Medicaid and programs that provide food, housing and disability services — be allowed to sue states if they believe their rights have been violated?

A judgment in favor of the HHC could mean millions of Americans relying on government assistance programs would lose that right. The Supreme Court is scheduled to hear oral arguments on November 8th.

“The scope of a negative decision would be catastrophic,” he said Jane Perkins, an attorney at the National Health Law Program. “It would really make these programs stand out without a real enforcement mechanism.”

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

The answer to the question of whether people who rely on government assistance programs can sue for violations has been precedent for decades, said Perkins, who has litigated numerous civil rights cases on behalf of Medicaid beneficiaries.

That's why she was shocked when she learned that the Supreme Court had decided to hear this case. The Supreme Court is asked to review nearly 7,000 cases every year, and they often agree to only watch 1% to 2% of them.

Perkins said she sees parallels between this case and the recent Supreme Court decision that struck down the constitutional right to abortion.

“The idea that the court would accept this case and the question of whether you can ever enforce these laws is troubling,” Perkins said. “Recent court decisions — Dobbs in the abortion context come to mind — show that the Court is willing to overturn precedent.”

The Supreme Court has at least agreed to take up the case 25 companies submitted amicus briefs, which provide courts with information from people not directly involved in a case. Most have sided with the Talevskis - including Members of Congress like House Speaker Nancy Pelosi and Majority Whip James Clyburn, AARP, American Cancer Network, American Public Health Society And Child health care providers and advocates. Marion County HHC is represented by Lawrence Robbins, who has argued 19 cases before the Supreme Court and represented Christine Blasey Ford during Judge Brett Kavanagh's confirmation hearing. Talevski is represented by Andreas Tutt by Arnold & Porter. Recently, Tutt argued and won a Supreme Court case that protected the re-enlistment rights of thousands of veterans and service members.

Programs that rely on federal funding funds that flow from Congress to states, such as Medicaid, typically come with a set of regulations or requirements that states must follow in order to receive and use the funds. Civil rights lawsuits are one of the primary enforcement mechanisms. Beneficiaries of these programs must hold public authorities accountable when authorities violate their rights or fail to provide legitimate services.

There are other avenues of scrutiny that supporters of the Indiana state agency's petition tout as viable alternatives to lawsuits. One is federal surveillance by the Department of Health and Human Services. The agency can investigate and threaten to withhold funding from state programs that violate federal regulations. However, this usually involves lengthy legal processes that can be counterproductive, hindering benefits for individual patients rather than helping them.

“If [HHS] tries to shut off the money, the state could immediately take them to court and get an injunction,” he said Sarah Rosenbaum, professor of health law and policy at George Washington University. “People [would be] without their services or the providers without their payments.”

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Former senior HHS officials say federal oversight is far from enough and that civil rights lawsuits remain a crucial enforcement mechanism. Private enforcement through lawsuits is essential for nursing home residents, they say, especially in places like Indiana, where the state owns the most nursing homes.

The former official said in a Court briefly that a ruling in favor of HHC would potentially increase the risk of waste, fraud, and misuse of Medicaid funds, leading to widespread inadequate enforcement and making “millions of individuals, providers, and other beneficiaries more vulnerable to violations of their legal rights.”

Almost 83 million Americans, a quarter of the U.S. population, are enrolled in Medicaid. That means HHS oversees more than half a trillion dollars in spending across every state and U.S. territory — and the federal agency, the former officials argue, lacks the logistical and practical capacity to “in many cases meaningfully address individual violations.”

Indiana Attorney General Todd Rokita is among allies publicly supporting the state's perspective. Rokita, in a Court briefly filed along with 21 other Republican attorneys general, said civil rights lawsuits burden states and cripple them with legal costs just to line attorneys' pockets rather than help Medicaid enrollees.

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

Legal experts told Side Effects that the number Rokita cites is highly misleading because it lumps together all civil rights lawsuits, not just those related to federal entitlement programs that are at the heart of this case.

If the Supreme Court rules in favor of HHC, lawsuits will be like a 2015 case that won Medicaid recipients the right an expensive hepatitis C drug may not be possible in the future, said Emily Munson a lawyer with the interest representation Indiana Disability Rights.

As states sought to limit benefits for people with disabilities in Indiana and across the country, civil lawsuits have helped patients gain access to things like home assistance with daily tasks, known as attendant care.

Munson has litigated similar cases. She has a disability herself and the prospect of a Supreme Court decision in Marion County's favor frightens 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 monumental case was missing from the agenda. But when the meeting opened to public comment, state officials, patients and advocates took the opportunity to voice their concerns.

They had one demand of the agency: withdraw their petition to the Supreme Court.

Rep. Robin Shackleford, a Democrat from Indianapolis, and other members of the Legislature have been vocal about their concerns. Shackleford said many of her constituents are on Medicaid and SNAP the Department of Agriculture's Supplemental Nutrition Program.

“They would be horrified ... if they knew that the board was the reason their rights were taken away,” Shackleford said.

This story is part of a partnership that includes Side effects public media — a public health news initiative housed at WFYI, NPR and KHN.

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