On November 8, the Supreme Court will hear oral argument in what my colleague Leo Cuello has called “the most consequential case you’ve never heard of:” Health and Hospital Corporation of Marion County v. Talevski. The case began as a lawsuit against a county-owned nursing facility in Indiana by a now-deceased resident who alleged that he was sedated and transferred in violation of his rights under Medicaid law. As Leo explains, it has now morphed into a whether the federal courts will continue to be available to any Medicaid beneficiaries—not just nursing facility residents—to enforce their rights under federal Medicaid law. The stakes for children and families could not be higher.
As in all Supreme Court cases, the parties to the case, the nursing facility and the resident, have filed briefs laying out arguments for their positions. In addition, a total of 25 briefs have been filed by amicus curiae in support of keeping the doors of federal courthouses open to Medicaid beneficiaries like Mr. Talevski. Four amicus briefs were filed in support of the nursing home’s position.
Amicus curiae means “friends of the court” in Latin. These are not Randy-Newman-Toy-Story- You’ve-Got-A-Friend-in-Me types of friends. They are organizations and individuals who are not parties to the case but have an interest in its outcome as well as data and expertise that they believe will help inform the Court’s decision.
The amici supporting Mr. Talevski’s ability to enforce his Medicaid rights in federal court range from organizations representing the elderly (AARP), people with disabilities (Bazelon Center for Mental Health Law), and children (National Center for Youth Law), to health care providers (National Association of Community Health Centers), to former senior HHS officials and Members of Congress, to heath policy scholars, among others. The National Health Law Program, which also filed a brief, has summarized each of the briefs here.
A theme common to many of these briefs is that, under current law and practice, federal Medicaid rights are enforced primarily by a combination of federal agency oversight and federal court actions. Because the monitoring capacity and enforcement authority of the Department of Health and Human Services (HHS) are so limited, a decision to close off access to the federal courts would leave beneficiaries and providers with no practical remedy if states violate or fail to protect those rights. No remedy, no rights.
The amicus briefs spell this out. In their brief, the former senior federal officials explain that the federal court enforcement of Medicaid rights by beneficiaries “plays a crucial role in Medicaid’s statutory scheme, in part, because HHS lacks the legal authority, logistical capacity, and practical ability to meaningfully remedy individual violations in many cases.” They point out that, unlike the federal courts, which can provide “monetary damages or specific injunctive relief from ongoing or future violations,” HHS has only one remedy if a state is not in compliance with Medicaid requirements: withholding federal matching payments until the state returns to compliance. This does nothing to help individual beneficiaries whose rights have already been violated. Moreover, it can undermine the state’s Medicaid program. For example, if a state is not providing the EPSDT services to which children are entitled, withholding the federal matching funds for the costs of those services will make it more difficult for the state to pay for the services and bring itself back into compliance.
This all assumes that HHS is willing to exercise its authority to withhold funds. Not so much. In practice, HHS rarely proposes to withhold funding due to noncompliance, much less actually withholds the funds. Over the past ten years, CMS has noticed only four compliance hearings in the Federal Register: in Alabama (2017), Arkansas (2016), Florida (2014), and Texas (2019). This is hardly surprising. Withholding of federal funds is politically fraught, invites litigation, and consumes lots of management and staff resources. If HHS can no longer rely on the federal courts to help enforce beneficiary and provider rights, its resource constraints will become even more problematic for beneficiaries and providers whose rights are being violated.
The amicus brief filed by children’s health care providers and advocates documents just how federal courts, over the past forty years, have been integral to the enforcement of children’s entitlement to EPSDT services (CCF is a signatory). The brief explains what, to child health providers and advocates is obvious, but what to the justices may be new information: “Despite robust federal requirements to promote and protect children’s health, state compliance with EPSDT is often deficient, creating health risks for children as well as anxiety and administrative obstacles for parents, providers, and health care advocates. History offers numerous examples of state policies or practices restricting children’s access to needed health care services, whether arising out of neglect, a misunderstanding of federal law, or an attempt to reduce program costs.”
The brief cites numerous instances in which children and/or their providers have sought and received relief from federal courts against denials of EPSDT services. Among the services the courts have ensured children receive are: preventive dental services (1983), blood lead-level screenings (1993), early intervention services (2002), and physical, occupational, and speech therapy services (2021). These cases, along with others cited by the National Center for Youth Law, underscore the role of the federal courts in protecting the right to EPSDT services for the 34 million children enrolled in Medicaid, both as a remedy for state violations of children’s coverage and, perhaps more importantly, as a deterrent for such violations.
Litigation risk matters. Without the possibility of federal court intervention, it may be easier for some state Medicaid agencies to decide that compliance with EPSDT requirements is “too expensive,” particularly for medically complex children. In that event, the likelihood of HHS intervention is slim, in part because HHS’s only remedy is to withhold federal funds, making compliance even more “expensive” for the state. Children, like adult beneficiaries, have the right to a fair hearing to challenge the denial of a service to which they believe they are entitled. But what if a state decides to limit the number of fair hearings it will conduct, or discontinue them altogether? The current solution is a federal court injunction or settlement agreement under which the state complies with the fair hearing requirement. In a world in which beneficiaries can no longer ask federal courts to intervene, will withholding of federal matching funds for fair hearings bring the state into compliance?
Sometime in the next 8 months we’re going to find out how many friends the 81 million Medicaid beneficiaries have on the 9-person Supreme Court. Here’s hoping that Randy Newman has nailed it:
And as the years go by
Our friendship will never die
You’re gonna see it’s our destiny
You’ve got a friend in me