Thursday, October 27, 2022

Talevski Case Tests Whether Citizens Should Be Able to Go to Court to Enforce Legal Protections

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 scam scheme.  Much of the HHC's operations, especially those involving its state-wide nursing home operations, are about enriching those fortunate enough to work for HHC.  Did I mention that most of this money comes from we taxpayers?  As a conservative, I want to emphasize that point.  

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.

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