By Gail Moriarity, JHBL Staffer
To receive federal funding for administering healthcare to Medicaid and Medicare beneficiaries, healthcare facilities must comply with certain federal requirements and regulations, aimed in large part to protect the health and safety of patients.[i] For decades, patients and their families have had the right to sue a healthcare facility that is not complying with those federal requirements.[ii] Health and Hospital Corporation of Marion County v. Talevski puts that right of action in jeopardy, threatening to overturn decades of precedent.[iii]
Gorgi Talevski, now deceased, was a Medicaid enrollee who resided in a nursing home owned by Health and Hospital Corporation of Marion County (HHC).[iv] Susie Talevski, Gorgi’s daughter, brought this action against HHC for inadequate and unsafe treatment of her father, including forced sedation and involuntary transfer to another facility.[v] Susie cited violations of the Federal Nursing Home Reform Act (FNHRA) and Section 1983 of the Civil Rights Act of 1871.[vi] The FNHRA establishes minimum standards of care that are required in nursing facilities, and Section 1983 has historically been used as the mechanism under which individuals can enforce rights provided to them in federal programs.[vii] The federal district court dismissed the case, holding that Medicaid beneficiaries cannot enforce the FNHRA.[viii] The Seventh Circuit Court of Appeals reversed the decision, deciding in favor of Talevski.[ix] The case went to the Supreme Court. The Court heard oral arguments in November 2022, and a ruling on the case is expected in June 2023.[x] The Court will rule on two questions: (1) whether the Court should reexamine its position that individuals have a right to sue to protect rights granted under federal programs; and (2) if individuals do have the right to sue under Section 1983, are the rights guaranteed under FNHRA enforceable?[xi]
HHC, and those who filed amicus briefs in support of HHC, argue that allowing private rights of action to enforce federal programs will halt the administration of such programs because the state will be tied up in litigation.[xii] Further, they argue that, because private facilities are not subject to the same laws governing facilities receiving Medicaid and Medicare funding, allowing a private right of action will create disparate treatment for public facilities.[xiii]
If the Supreme Court agrees with their argument and decides in favor of HHC, the results will be catastrophic. Such a decision will overturn decades of precedent and drastically limit the scope of Section 1983, in direct contrast to Congressional intent.[xiv] Currently, there are two ways that requirements for federal programs are enforced: (1) oversight from the Centers for Medicare and Medicaid Services (CMS); and (2) litigation in federal courts.[xv] If the Supreme Court rules in favor of HHC, the Court will abolish the right to litigate in federal courts, meaning oversight from CMS will be the only remaining enforcement mechanism.[xvi] Thousands of facilities receive funding under federal programs, and CMS does not have the capacity or resources to ensure that each facility complies with federal requirements.[xvii] Healthcare facilities will go largely unchecked, and patients like Gorgi Talevski will have no protection against unsafe or inadequate treatment.[xviii]
Further, if CMS finds that a nursing facility is not in compliance with federal requirements, the only disciplinary option is to withhold funding.[xix] Federal programs are already underfunded.[xx] Withholding additional funds to force compliance will only hurt the program, and, ultimately, the patients receiving the care.[xxi]
The consequences of this ruling would prove to be far-reaching and detrimental.[xxii] Currently, 83 million Americans, 25% of the overall population, are enrolled in the Medicaid program.[xxiii] Of those, 61% of Medicaid beneficiaries are Black, Hispanic, Asian American, or another non-white race or ethnicity.[xxiv] However, this ruling would not only affect Medicaid.[xxv] Because the Court is contemplating limiting the private right of action allowed under Section 1983, such a ruling would affect all federal programs that were authorized under the Spending Clause of the Constitution.[xxvi] These “Spending Clause programs” include Medicaid, Medicare, Supplemental Nutrition Assistance Program (SNAP), Children’s Health Insurance Program (CHIP), and federal public housing benefits, to name a few.[xxvii]
While the fate of a small nursing home in Indiana may seem inconsequential, the implications of this Supreme Court ruling in June are far from it.[xxviii] The results of this case could potentially strip the rights of millions of Americans, leaving them with no recourse should states and facilities fail to comply with federal requirements.[xxix] With no right of action, the only mechanism for accountability is through federal oversight.[xxx] With all Spending Clause programs at risk, it is impossible for federal officials to perform this oversight effectively, and patients like Gorgi will be left vulnerable and disenfranchised.[xxxi]
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Gail Moriarity is a second-year law student at Suffolk University Law School, interested in health law. She graduated from the University of Dayton in 2016 with a dual degree in Human Rights Studies and Psychology, and a minor in Spanish. She worked in the healthcare sector prior to starting law school.
[i] Robin Rudowitz, What is at Stake for Medicaid in Supreme Court Case Health and Hospital Corp. v. Talevski?, Kaiser Family Foundation, (Oct. 28, 2022), [hereinafter Rudowitz], https://www.kff.org/policy-watch/what-is-at-stake-for-medicaid-in-supreme-court-case-health-hospital-corp-v-talevski/.
[ii] Id.
[iii] Id.
[iv] Talevski v. Health and Hospital Corporation of Marion County Explained, Bazelon Center for Mental Health Law, (2022), [hereinafter Bazelon], http://www.bazelon.org/wp-content/uploads/2022/09/Talevski-v.-HHC-Fact-Sheet-1.pdf.
[v] James Campbell, Latest Supreme Court Case, Health and Hospital Corp. v. Talevski, May Change Medicaid As We Know It, Nat’l P’ship for Women and Families, (Nov. 9, 2022), [hereinafter Campbell], https://www.nationalpartnership.org/our-impact/blog/general/health-and-hospital-corp-v-talevski.html.
[vi] Rudozwitz, supra note iii.
[vii] Id.
[viii] Id.
[ix] Id.
[x] Rudozwitz, supra note iii.
[xi] Leonardo Cuello, The End of Medicaid Rights May Be Upon Us: You Need to Know About the Talevski Case, Georgetown Univ. Health Pol’y Inst., (Oct. 31, 2022), https://ccf.georgetown.edu/2022/10/31/the-end-of-medicaid-rights-may-be-upon-us-you-need-to-know-about-the-talevski-case/.
[xii] Rudozwitz, supra note iii.
[xiii] Id.
[xiv] Bazelon, supra note iv.
[xv] Rudozwitz, supra note iii.
[xvi] Farah Yousry, A SCOTUS nursing home case could limit the rights of millions of patients, NPR, (Nov. 6, 2022), [hereinafter Yousry], https://www.npr.org/sections/health-shots/2022/11/06/1133947431/scotus-nursing-home-case-could-limit-right-to-sue.
[xvii] Id.
[xviii] Id.
[xix] Bazelon, supra note iv.
[xx] Id.
[xxi] Id.
[xxii] Campbell, supra note v.
[xxiii] Id.
[xxiv] Id.
[xxv] Rudozwitz, supra note iii.
[xxvi] Id.
[xxvii] Id.
[xxviii] Campbell, supra note v.
[xxix] Id.
[xxx] Yousry, supra note xvi.
[xxxi] Id.