Sunday, October 30, 2022
Thursday, October 27, 2022
This term the United States Supreme Court will decide Health and Hospital Corporation of Marion County, Indiana v. Talevski. It is a case that, depending on how it is decided, could have a major impact in the ability of litigants to redress grievances in our nation's courts. More on that in a second.
Don't be fooled by the "Marion County" in its name. Yes, Marion County Health and Hospital, a municipal corporation, performs a number of assorted tasks within the Indianapolis city limits, including making sure local homeowners keep their yards mowed and the trash picked up. However, HHC also has partnered with private companies to help run a number of nursing homes throughout the State of Indiana. HHC is an important player in that nursing home partnership. Because HHC is governmental in nature, it is able to
bilk bill taxpayers for the maximum amount when it comes to getting paid for services provided to Medicaid patients. Privately-owned nursing homes get reimbursed by the federal government for Medicaid patients at much lower rates even though they offer the same services. Despite HHC-run nursing homes getting more money from taxpayers, HHC is often called out for running some of the worst nursing homes in the state.
Although HHC is technically a part of Indianapolis city-county government, it has operated without any meaningful oversight for decades. Neither the Indianapolis Mayor's Office or the Indianapolis City-County Council, regardless of whether run by Democrats or Republicans, has ever taken action to reign in HHC. Likewise our state legislature has done nothing. This is despite numerous critical newspaper articles about HHC, including the aforementioned nursing home Medicaid
Now the HHC is in the news for another reason. The HHC decided to appeal the Talevski case to the United States Supreme Court in an effort to establish the principal that families of patients in HHC's nursing homes have no right to go to court to challenge the HHC's failure to comply with the Federal Nursing Home Reform Act (also known as the Omnibus Budget Reconciliation Act of 1987 or OBRA '87). The act provides a national minimum set of standards of care and rights for people living in certified nursing facilities. The 1987 Act, which received overwhelming support in Congress, including from Republicans, was signed into law by President Reagan.
HHC's legal position is that it has a "contract" with the federal government to provide these nursing home services for Medicaid patients, and that only federal officials can say whether the HHC is violating the minimum standards for nursing homes established by Congress. If HHC succeeds at the Supreme Court, Medicaid patients in nursing homes will be at the mercy of federal regulators to ensure providers like HHC meet congressionally-mandated minimum standards. Given the poor quality of care HHC has, allegedly, provided at its nursing homes, does anyone believe the care at HHC facilities will improve if it is shielded from private enforcement of minimum standards?
In pursuing this appeal, the HHC, which now has its activities supervised entirely by a Democratic Mayor and a Democrat-dominated City-County Council, has a number of GOP allies in Republican Attorneys General. Together they are using the case not just to block nursing home patients from challenging the adequacy of their care, but to stop other private legal challenges to the provision of other congressionally-provided benefits.
As an attorney, I have had civil-rights type cases in which my clients were expressly protected through some provision adopted by Congress. In response, the government attorneys would admit that those protections exist and even concede that the state or local government they represent failed to enforce the law. But they would nonetheless seek dismissal of the case based on the argument that there was no "private cause of action" provided which would allow people to challenge the government's failures that resulted in harm to my clients.. In short, while laws exist to protect people, we were to simply accept it on faith that government would do the right thing and enforce the law.
When I first heard of the Talevski case, I was dumbfounded as to why my fellow Republicans would support HHC's position. After all, it is not conservative ideology that people should simply trust government to do the right thing. Nor is it conservative ideology that people should be denied the right to challenge government's failures in court. The Supreme Court should find in favor of Talevski and uphold the 7th Circuit's decision allowing her case to move forward.
Sunday, October 16, 2022
One of the best measures of partisanship advantage going into an election is the so-called generic congressional ballot question. The public being polled is asked whether they would vote for the Republican or Democratic candidate for Congress. No names are attached to the question.
At the end of April, Republicans led on the question by 4.8% according to the Real Clear Politics average of polls. On September 22nd, the first day of Fall, RCP had Democrats with a 1.3% gain. In just three weeks since then, the Republicans have move to a 1.6% lead.
Looking at particular matchups, Republicans are doing better in Wisconsin. Senator Ron Johnson, who is the most unpopular incumbent Republican Senator seeking re-election, has polled ahead of his Democratic rival Lt. Governor Mandela Barnes in the 7 of the last 8 polls conducted in that state. (The 8th one showed the races as tied.) This is in contrast to polls in the summer almost all of which had Barnes ahead. When a post-mortem is done on the 2022 mid-terms, there is going to be a lot of discussion of how Republicans lost winnable Senate races due to former President Donald Trump foisting on the GOP weak candidates who are out-of-step with their states' voters. But let's not forget how the Democrats have likely blown the easy pick up of a Republican seat in Wisconsin by nominating a Bernie Sanders-endorsed, Defund the Police candidate.
There is also good news for Ohio in that J.D. Vance continues to maintain a small lead and Republican "Dr." Mehmet Oz has cut his opponent Lt Gov. John Fetterman's lead to just 3.4%. In the middle of August, Fetterman's lead was 8.7%.
What is going on? My guess is the economy, and in particular inflation, is hurting the Democrats more as the election gets closer.. Also, the Republicans are skillfully using the crime issue to hurt Democrats in individual races. Democrats have tried to counter inflation and crime with abortion. However, while that's an important issue that motivates the Democratic base voters to go to the polls, using abortion to get independent and Republicans to vote for Democratic candidates has always proven to be problematic.
There is a bit of good news for Democrats out of all places...Iowa. Incumbent Senator Chuck Grassley's lead is down to 3% in a poll conducted by Selzer & Co. Ann Selzer, president of Selzer & Co, is considered one of the most accurate pollsters in the country. I have long been saying that Iowa could be close. Grassley is 89 years old seeking an 8th Senate term. He is running against a centrist-appearing Democrat, Mike Franken, who rose to the position of Admiral during his decades in the military. Yet, it seems no professional political pundit in the country believes Iowa is even remotely competitive. For example, Five Thirty Eight says Franken has only a 1% chance of winning.
Thursday, October 13, 2022
So, Georgia Senate candidate and former football star Herschel Walker is a liar and a hypocrite and Republican elected officials have no problem with that. In shades of Seinfeld, the GOP has become a party about nothing, a valueless vessel for candidates seeking the spotlight of elected office. As former NRA gadfly and right-wing radio host Dana Loesch put it "winning is a virtue." Actually, winning at all costs is the only thing that seems to matter to the Trumpified GOP.
Meanwhile, Republican Governor Brian Kemp appears to be on his way to to re-election. I have long been a critic of his 2018 and 2022 opponent Democrat Stacey Abrams. In 2018, Abrams claimed Kemp stole the election when he, as then Secretary of State for Georgia, removed a number of people from the voting rolls who had not voted for several cycles. Never mind that Kemp was simply following the law in doing a much overdue cleaning up of the registration lists of perpetual non-voters who were likely deceased or had moved. The media was quick to call out Trump for claiming, without offering any proof, that the Georgia election was stolen from him. Yet, that same media refused to call out Abrams, who lost the state by a margin three times what Trump did, for claiming, without evidence, that Kemp stole the governorship from her.
While it appears the Republicans have a shot of picking up a Senate seat in Nevada, virtually everywhere across the country Republican Senate candidates are underperforming. Donald Trump was very successful in winning Senate Republican primaries. But winning a primary gets you nothing if you don't win the general election. In addition to Georgia, Trump saddled the Republicans with terrible candidates in Arizona, Pennsylvania, Ohio, North Carolina and New Hampshire. Trump cost the Republicans control of the Senate in 2020 and he is poised to do the same in 2022.
A political party standing for nothing except opposing the other party is not a winning formula. In the era of Trump, the GOP has eschewed its conservative principles to go all in on "winning" at all costs. The only problem is the Republican Party is not winning.
Tuesday, October 4, 2022
Indiana 2022 Election Prediction: Senator Young Will Cruise to Re-Election While Democrats May Win the Secretary of State's Race
No, I'm not believing a Indy Politics/ARW Strategies poll showing Indiana Senator Todd Young up by just two points on his Democratic rival Tom McDermott. Young has skillfully avoided going too MAGA (unlike his colleague Senator Mike Braun) and is, thus, unlikely to lose enough base support to give McDermott a chance to win. I can't say the same for the Republican Secretary of State candidate Diego Morales who the poll suggests is running four points behind his Democratic opponent, Destiny Scott Wells. Morales has a number problems as a candidate. Besides being an election denier, he had a spotty record
|Senator Todd Young (R-IN)|
I also anticipate the Republicans will lose a few seats in the Indiana General Assembly in November. Frankly, the Indiana GOP had pretty much maxed out their numbers and the recent redrawing of districts after the 2020 census was aimed at shoring up incumbents districts, not expanding the GOP numbers.
As I've documented on these pages before the GOP base in the state has been weakening the last several election cycles, a trend that has accelerated during the Trump years. The population centers of the former GOP bastion Hamilton County - Fishers, Carmel and Westfield - are rapidly becoming Democratic. What has helped offset the GOP downturn in the Indianapolis suburbs has been increased rural turnout that heavily favors Republicans. I don't anticipate that will continue forever. If it doesn't happen in 2022, Republicans may lose more legislative races than a "few."
But one thing is clear when it comes to Indiana politics - Democrats do a lot better in the higher turnout, presidential election years. I expect, assuming the party can find moderate candidates, the Democrats will have real chances to win the the Governorship and defeat Senator Braun in 2024.